Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09930/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd July 2016
On 25th August 2016

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

MRS SNPM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N S Ahluwalia of Counsel instructed by A J Paterson, Solicitor
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS
1. We continue the anonymity direction made by the Upper Tribunal under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in the error of law decision in this appeal sent out on 8th November 2015.
Background
2. In the error of law decision by The Deputy Upper Tribunal Judge in this panel, the conclusion was reached that Judge of the First-tier Tribunal G J Ferguson erred in law in his decision to dismiss the appeal against the decision of the respondent taken on 26th February 2012 to refuse asylum, humanitarian and human rights protection to the appellant, a female citizen of Sri Lanka. The relevant part of the decision states:
"2. Judge Shimmin granted permission because he thought it was arguable that the credibility assessment, having regard to a previous judge's decision and fresh evidence, was flawed. He also considered it arguable that the judge had failed, in relation to the Article 8 assessment, to attach any or sufficient weight to the question of whether the appellant's British citizen husband could be expected to go to Sri Lanka with the appellant.
3. At the hearing in the Upper Tribunal before me Mr McVeety agreed that Judge Ferguson was wrong to assume that the Medical Report by a Dr Beeks was before the first Immigration Judge who had found the appellant to be credible. He agreed that there had actually been no medical evidence of scarring before the first judge on the basis alleged in paragraph 6.2 of the grounds of application. However, Mr McVeety suggested that paragraph 15 of the present decision suggested that Counsel for the appellant may have conceded that the appellant was not in any of the risk categories identified in the country guidance decision, GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 and so the judge was not wrong to dismiss the asylum appeal. In particular he referred to paragraph 126 of GJ in which it was suggested that scarring was not a significant factor but may contribute to arousing suspicion. He suggested that a statement may be needed from Counsel at the time, Ms Rutherford, to confirm whether or not she had made the concession.
4. Mr McVeety also submitted that, even if the judge had erred in his consideration of the findings of the first judge, that should not be regarded as material because he thought that the judge had shown that he had given consideration to the scarring in reaching his conclusions in paragraph 27.
5. Mr Ahluwalia intervened to indicate that he had in front of him the report made by Ms Rutherford following her representation of the appellant before Judge Ferguson. He said this did indicate that he had made the concession which features in paragraph 15 that the appellant did not fit into any of the current risk categories set out in GJ. On this basis Mr Ahluwalia fairly conceded that there was no basis for him pursuing the application in relation to the judge's dismissal of the asylum claim. However, he argued that the error in failing to consider the scarring report could be seen to taint the judge's findings on human rights issues including Articles 2 and 3.
6. Mr Ahluwalia also maintained that the judge had failed to consider Article 8 issues adequately in relation to the issue of whether or not it was reasonable to expect the appellant's husband to go to live with her in Sri Lanka bearing in mind his British citizenship and his medical condition. This is more fully set out in paragraph 8 of the grounds of application.
7. After considering the submissions I announced that I was satisfied that the decision of Judge Ferguson showed an error on a point of law in relation to the human rights claim only. My reasons for that conclusion follow.
8. It is clear that, having regard to the concession made by Counsel at the hearing in the First-tier Tribunal, it was accepted that the appellant could not benefit from any of the risk categories set out in the current country guidance of GJ. Although the judge was in error in assuming that the Scarring Report by Dr Beeks had also been before the first judge, that error is not material when considered in the light of the concession. Thus, the judge's conclusion that the appellant is not a refugee can stand.
9. However, the human rights decision also shows an error because of the evident failure on the part of the judge to take into consideration relevant medical evidence when assessing the Article 8 claim. Although paragraph 40 of the decision shows that the judge did consider whether it would be reasonable for the husband to live with his wife in Sri Lanka, there is no reference to the medical condition of the appellant's husband which was before the judge in his witness statement. Additionally, there is no consideration of the husband's full-time employment position and the future prospect of employment required to maintain both parties in Sri Lanka having regard to any medical treatment which may also be required by the appellant.
10. Although the re-making of the decision on human rights grounds can take into consideration Article 2 and Article 3 issues in the light of medical evidence, I repeat my conclusion that the finding that the appellant is not entitled to asylum or humanitarian protection can stand."
3. Owing to an administrative error this appeal was set down for a resumed hearing in the Upper Tribunal before Deputy Upper Tribunal Judge Pickup on 30th March 2016 when it should have been before the Deputy Upper Tribunal Judge in this panel. Because of that error the matter proceeded to a CMR hearing on 3rd May 2016 when the present panel was sitting. At that hearing Mr Ahluwalia made it clear that the appeal would continue on human rights issues only which would encompass Articles 2 and 3 in relation to risk on return to Sri Lanka in addition to Article 8 family and private life issues.
4. The appeal then came before us for a substantive hearing on human rights issues on 22nd July 2016.
The Hearing
5. Mr Ahluwalia helpfully identified the documentary evidence which was to be relied upon. This is: the appellant's original bundle of 246 pages containing the items listed in the index; the indexed bundle submitted by representatives on 23rd March 2016; and a supplementary indexed bundle submitted on 20th July 2016. We were also handed signed copies of the statements which the supplementary bundle contains.
6. Mr Ahluwalia informed us that the appellant would not give evidence having regard to her state of mental health. The witnesses to be called would be the consultant psychiatrist, Dr Mala Singh, and the appellant's husband, SM, although, for the reasons which follow, it was unnecessary for him to give oral evidence.
7. Mr Ahluwalia also handed to us a comprehensive skeleton argument which, both representatives confirmed, identified the main issues for our consideration as:
(i) the appellant's removal would be contrary to Articles 2 and 3 of the ECHR arising from a serious and appreciable risk of a significant deterioration in the appellant's mental health and the result and risk of suicide; and that
(ii) her removal would amount to a disproportionate interference with her right to respect for family life contrary to Article 8 ECHR outside the Immigration Rules.
8. The skeleton also emphasises that, although it had been accepted at a previous First-tier hearing that, taken at its highest, the appellant's claim does not fall within the current risk categories identified in GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), to make out a claim to refugee status on return, the appellant's account of her torture by the Sri Lankan security forces during 2009 is credible.
9. Dr Mala Singh gave evidence with reference to her report which is to be found on pages A114 to A138 of the bundle submitted on 23rd March 2016.
10. She said that she had seen the appellant on four occasions including on the morning of the hearing before us. She confirmed that she had reached the conclusion that the appellant suffered from post-traumatic stress disorder and major depression with psychotic symptoms. She agreed that her conclusions were not fully in line with the earlier Psychiatric Reports of Professor Katona although she pointed out that, in his update report of 26th February 2016, he had diagnosed the appellant as suffering from both PTSD and a major depressive episode. That accorded with her own conclusions.
11. Dr Singh explained that the appellant hears voices telling her that she has no right to live, is worthless and guilty of what has happened to her. She believed these feelings were the result of historic trauma in the form of rape, torture and fear of death. Dr Singh said she was aware of, and had read, the documents which she lists on pages A115 and A116 of her report, some of which had indicated that the appellant's claims were regarded as incredible. Despite that evidence she had concluded that the appellant's symptoms and the accounts she had given to support those symptoms had been consistent and were not the result of losing a child or having an uncertain immigration status. She had reached that conclusion because the appellant's symptoms were unlikely to have causes outside the incidents claimed. She said that, having seen the appellant that morning, she was concerned that, if she gave evidence, she might have a "catastrophic reaction". She also emphasised that, if the appellant were to be removed to Sri Lanka there would be a severe deterioration in her condition with "severe recall and an aggravation of PTSD". She stated the appellant would "kill herself, I have no doubt". She added that the appellant "would react to even routine questions on return by becoming very anxious".
12. As to the possibility of the appellant being treated in Sri Lanka Dr Singh explained that the appellant would suspect psychiatric services in Sri Lanka as being associated with the authorities and would therefore believe she would be at risk of arrest and torture, again. Even if she were to get through immigration control and return to her former home, the risk, in that situation, would remain the same because of her attitude. She emphasised that it was the appellant's perception that was important to her and not what was actually happening. The appellant would still believe that she was at risk.
13. Dr Singh then spoke to us about the report by Dr Beeks on page 96 of the original bundle. Dr Singh said that she had noted the suggestion by Dr Beeks that there was evidence of post-traumatic stress disorder when the appellant was examined on 11th February 2012 at Yarlswood Detention Centre. This had led her, Dr Singh, to the conclusion that the appellant was, actually, suffering from PTSD at the time of arrival. Because of that she surmised that the appellant would be incapable of recalling events accurately.
14. Dr Singh also commented on the effects of the appellant's husband's medical condition as a sufferer from diabetes. She had concluded that the appellant would feel guilty about her husband's condition which will add to a situation of desperation in turn leading to the appellant killing herself. The availability of private or public medical help would make no difference as the appellant would also feel ashamed of her condition.
15. At the conclusion of her evidence-in-chief Dr Singh said that she was "certain" that the appellant was not feigning her evidence. She thought she could not have deceived so many people, particularly the medical practitioners who had examined her. She also pointed out that the appellant had been truthful in admitting to an improvement in her condition at one stage which, Dr Singh thought, was something a person feigning their condition would not do. She pointed out that there had been an occasion where she had found an asylum seeker who was not telling the truth. She did not regard the appellant as in that category. She had "no doubt" that the appellant had been truthful. She had noted that thoughts of the trauma which the appellant claimed to have suffered had returned to her on the morning of the hearing.
16. During cross-examination Dr Singh was asked if she was aware of the previous decisions concluding that the appellant was unreliable. She said she had considered that but believed that, at the time, the appellant was in a state of confusion and wanted protection. She confirmed that she was aware that the appellant had tried to enter the United Kingdom fraudulently before the events of which she now complained. However, she was aware that, at that time, the appellant's family were harassed. Her view was not affected by the appellant's earlier behaviour.
17. Dr Singh was asked if she was aware of the appellant harming herself. She said she had seen a bruise on the appellant's head and chest on the second occasion she saw her. Having asked about this, the appellant informed her that she had injured herself because of a nightmare. When questioned about her conclusion that the appellant was frightened of the authorities in Sri Lanka, Dr Singh indicated that this was not unusual in the appellant's culture. She emphasised her diagnosis that the appellant suffered from PTSD caused by trauma. If questioned by the authorities, even in a neutral manner, this would cause the appellant to react.
18. As to the appellant's husband, Dr Singh conceded that she had not examined him but noted that he had been seen by Dr Mahmood whose report commences on page C73 of the second bundle. She also stated that she had asked the appellant's husband about his intentions and he had indicated that he did not want to return to Sri Lanka as he was now a British citizen. She thought he was devoted to his wife as illustrated by his attending to her during the night and helping her with other requirements.
19. Dr Singh's attention was then drawn to the report by Joanne O'Sullivan, nurse practitioner at South Staffordshire and Shropshire Healthcare NHS, concerning the risk of suicide for the appellant. Dr Singh asserted that, at present, the appellant is at "very high risk" of suicide because of her depression with psychotic symptoms added to which is PTSD.
20. During re-examination Dr Singh reasserted her view that the appellant's current symptoms were consistent with her suffering as claimed. She said it was quite possible for the appellant to have lied in the past but to be truthful now. She emphasised that, regardless of whether or not the appellant had been raped and detained by the LTTE, she still had two major symptoms of mental illness. However she pointed out that she did not believe that any suggestion of ill-treatment by the LTTE as opposed to the authorities would be right as the appellant had described her attackers to her as speaking in Sinhalese and not Tamil. She reiterated her knowledge of the appellant's husband's reluctance to go to Sri Lanka and pointed out that this was another reason for the appellant feeling guilty.
21. At this point in the hearing we adjourned for a few minutes as we wished to consider the consequences of an acceptance of the psychiatric evidence put before us by Dr Singh. On returning we announced that we found the expert evidence of Dr Singh to be credible particularly as to the high risk of suicide. We had found that Dr Singh's conclusions were materially consistent with previous expert evidence. We therefore offered representatives a further adjournment for a few minutes to enable them to consider the future progress of the case particularly having regard to the Articles 2 and 3 claims.
22. On return Mr Avery indicated, on behalf of the respondent, that he had no further comments or submissions to make. We then announced that we were satisfied that the appeal could be allowed on human rights grounds particularly bear in mind the high risk of suicide identified in the medical evidence. We indicated that the reasons for our conclusion would follow.
Conclusions and Reasons
23. In human rights claims the burden of proof is upon the appellant to show, to the lower standard, that his or her ECHR rights will be infringed as a consequence of the respondent's decision. Where that is shown it is for the respondent to show, where the relevant Article permits, that the decision was proportionate in the public interest.
24. We consider, first, the appellant's claims that her Article 2 and 3 rights will be infringed if she is returned to Sri Lanka. These are absolute rights unlike the qualified right to family and private life under Article 8. Articles 2 and 3 rights do not feature specifically in the Immigration Rules unlike article 8 rights which are covered in paragraph 276 ADE and appendix FM. Thus we are able to consider the application of Articles 2 and 3 without the pre-requisite to consider the application of the Rules or any intermediate test before assessing the claim outside the Rules and section 117B of the 2002 Act.
25. Mr Ahluwalia's skeleton argument has assisted us to identify the relevant legal issues which we set against the background of the medical evidence, notably Dr Singh's conclusion that the appellant is at very high risk of suicide if removed to Sri Lanka.
26. We are satisfied that the opinions of Dr Singh can be relied upon for the reasons we now give.
27. The skeleton, from page 4, identifies past expert medical opinion in the form of reports from Dr Beeks, Dr Limb (concerning scarring), Professor Katona and Dr Singh. Dr Beeks Report pointed to the appellant suffering from PTSD which, Dr Singh not unreasonably thought, could suggest that the appellant was suffering from that disorder at the time of her arrival in the country. Whilst, initially, Professor Katona was not satisfied that the appellant suffered from full-blown PTSD when he first saw her in 2015 he was able to conclude in an addendum to his report on 19th June 2015 that the appellant was likely to relapse into PTSD upon return with a significant increase in the risk of suicide. His additional report of 26th February 2016 noted that the appellant's condition had deteriorated "very significantly". He acknowledged that the appellant suffered from PTSD and was suffering a major depressive episode. He, too, was not satisfied the appellant was feigning or exaggerating her symptoms and her removal would result in a "severe sense of threat and danger".
28. Following the evident deterioration in the appellant's mental state Dr Singh's Report brings matters up-to-date and is, we find, consistent with those earlier reports both as to diagnosis and the likelihood of the appellant having told the truth about her symptoms and causes. We do not believe there is any room to criticise Dr Singh's conclusion that the risk of suicide if returned is now high. Indeed, Dr Singh has gone so far as to state bluntly both before us and in her report that the appellant would kill herself if sent back. There is also evidence to suggest that the appellant has self harmed. The risk of suicide is identified as either before or after removal and "needs to be taken very seriously".
29. In view of our comments we find that we can rely upon Dr Singh's Report as an indication of the real risk of serious harm to the appellant if returned or even if the appellant is made aware that she is to be returned. She is reasonably likely to commit suicide. Both consultant psychiatrists confirm that the appellant's subjective state of mind is such that she will not accept the medical treatment she needs if returned to Sri Lanka because of her subjective fear of the authorities. We take this to mean that any event, whether routine or intrusive, relating to the circumstances of her return will provoke suicidal thoughts which are likely to be implemented.
30. We agree with Mr Ahluwalia's arguments in paragraph 36 of his skeleton that this case is analogous of the situation set out in the Court of Appeal decision in Y & Z [2009] EWCA Civ 362 which is quoted as follows:
"47. The subjective reality of fear has to be given its full - and sometimes overwhelming - weight.
61. The upshot of the material findings and of the expert evidence which (for reasons I have given) stood unshaken, is that, although some psychiatric care is available in Sri Lanka, these two appellants are so traumatised by their experiences, and so subjectively terrified at the prospect of return to the scene of their torment, that they will not be capable of seeking the treatment they need ..."
62. None of this reasoning represents a licence for emotional blackmail by asylum-seekers. Officials and immigration judges will be right to continue to scrutinise the authenticity of such claims as these with care. In some cases the Home Office may want to seek its own or a joint report. But there comes a point at which an undisturbed finding that an appellant has been tortured and raped in captivity has to be conscientiously related to credible and uncontradicted expert evidence that the likely effect of the psychological trauma (aggravated in the present cases by the devastation of home and family by the tsunami), if return is enforced, will be suicide."
31. In Y the Court of Appeal also held that, although the humanitarian consequences of returning a person to a country where their health was likely to deteriorate terminally did not normally place the returning state in breach of Article 3, the anticipated harm to Y would not be of a naturally occurring illness, but would be the consequence of the acts of the Sri Lankan security forces; N v United Kingdom ([26565/05) [2008] 47 E.H.R.R. 39 was distinguished.
32. The illness of the appellant in this case is not on account of a naturally occurring illness but the torture and rape suffered in Sri Lanka which both consultant psychiatrists believe are the cause of the appellant's severe mental state. In that respect we should indicate that the medical evidence has also enabled us to conclude that the ill treatment which the appellant claims she suffered in Sri Lanka at the hands of the authorities is believable even if that conclusion does not bring her within the risk categories identified in GJ and Others. Thus, the high threshold test in N does not apply. Whether the state has available medical facilities for those suffering PTSD is not relevant when the appellant's subjective fears mean that such facilities will not be accessed and attempts at suicide or a significant deterioration in mental health will follow. We therefore conclude that there is a real risk of harm contrary to Articles 2 and 3 if the appellant is removed.
33. Mr Ahluwalia argues that, in the alternative, the appellant can meet the requirements of the Immigration Rules in Appendix FM by reference to EX.1 or on Article 8 grounds outside the Immigration Rules. For the sake of completeness we considered that aspect of the claim briefly below as our findings in relation to Articles 2 and 3 already point to the appellant also succeeding under EX1.
34. In relation to this aspect of the human rights claim we are guided by the decision of the Court of Appeal in SS (Congo) and Others [2015] EWCA Civ 387. The court, in acknowledging the decision in MM (Lebanon), found that there would generally be no or only a small gap between the new Immigration Rules and the requirements of Article 8 in individual cases. However where the individual interests at stake were of a particular pressing nature there could be consideration of human rights issues outside the Immigration Rules. Such cases would arise where a claimant could show that compelling circumstances existed, not sufficiently recognised under the Rules and requiring the grant of leave. The test was not as demanding as exceptionality or "very compelling circumstances".
35. The appellant is in a genuine and subsisting relationship with her husband, a British citizen. Paragraph EX.1 of Appendix FM can apply to that situation. EX.1 states:
"EX.1 This paragraph applies if
...
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."
36. EX.2 defines the meaning of "insurmountable obstacles" as follows:
"EX.2 For the purposes of paragraph EX.1.(b) 'insurmountable obstacles' means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."
37. We conclude, having regard to the matters to which we have already referred in relation to Articles 2 and 3, that very significant difficulties would be faced by the applicant and her husband if forced to continue their family life in Sri Lanka. These are difficulties which cannot be overcome or would entail very serious hardship. That is because we have already indicated that the appellant's removal to Sri Lanka would lead to an infringement of her Article 2 and Article 3 rights. Additionally her husband is a British citizen who suffers from diabetes which would add to high suicide risk for the appellant. In any event, as the appellant cannot be removed to Sri Lanka for human rights reasons other than Article 8 this creates the insurmountable obstacle envisaged in EX.1.
38. Thus, we are also able to allow the appeal under the Immigration Rules.
Decision
The decision of the First-tier Tribunal to dismiss the appellant's asylum appeal shall stand. The decision in relation to human rights issues shows an error on a point of law. We re-make the human rights appeal and allow it on Articles 2 and 3 ECHR grounds and under the Immigration Rules.

Signed
Date 25th August 2016
Deputy Upper Tribunal Judge Garratt