Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10860/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 July 2016
On 11 August 2016
Prepared 28 July 2016

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

sr
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Haywood, Counsel instructed by Duncan Lewis & Co
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, a citizen of Sri Lanka, born on [ ] 1985 appeals with permission against a decision of Judge of the First-tier Tribunal Grant who in a determination promulgated on 21 March 2016 dismissed his appeal against a decision of the Secretary of State to refuse to grant asylum.

2. The appellant had entered Britain on 1 June 2009 as a student with a visa valid until 31 December 2010. His leave was extended until 12 April 2013. A further application for leave as a student was refused. The appellant was granted a right of appeal which he did not exercise. He overstayed and in October 2014 was served with notice of liability to removal. On 1 November that year he claimed asylum and was placed in the detained fast track procedure. His application was refused and he appealed.

3. His appeal then came before Judge of the First-tier Tribunal Maxwell who in a determination promulgated on 11 March 2015 dismissed his appeal.

4. The appellant was given permission to appeal further and the appeal then came before me on 27 March 2015. I found that there were errors of law in the determination of Judge of the First-tier Tribunal Maxwell. I ordered that the appeal be removed from the fast track and remitted the appeal for a hearing afresh. The appeal then came before Judge of the First-tier Tribunal E V Grant who heard the appeal on 1 February 2016. She dismissed the appeal and by chance the appeal came before me again. I again found that there were errors of law in the determination of Judge Grant. I ordered that the appeal proceed to a further hearing afresh and that it remain in the Upper Tribunal. In these circumstances the appeal came back for hearing before me.

5. Before the hearing Mr Haywood and Mr Tarlow agreed the facts in this case as set out in Mr Haywood's skeleton argument. These were as follows:-
"7. So far as relevant, and in outline:
(a) The appellant comes originally from Palali in the northern province of Sri Lanka. His family were displaced from Jaffna in 1994/5;
(b) The appellant's older brother Suseelan joined the LTTE in approximately 2001;
(c) The appellant, along with others, went to Mullaitivu to assist in the wake of the tsunami. While trying to return home, he was forcibly recruited by the LTTE. He underwent training with the LTTE, who gave him the codename 'Neelavan' [scr 1.3];
(d) He was detained by the army in 2007, questioned, and held for 3 days, and then released on payment of a bribe by his father;
(e) He was detained again in 2009, from home (so the detention was a targeted one), when he was held for 3 weeks, questioned about his brother and connections with the LTTE, required to sign blank papers, and ill-treated before being released on the basis of a bribe. When detained, he was fingerprinted [scr. 2.13];
(f) The appellant's national identity card (NIC) was taken from him when he was arrested by the army in 2009 [scr 2.6];
(g) The appellant initially came to the UK with tier 4 leave. He arrived in the UK on 28 January 2009. That leave was subsequently extended, to 12 April 2013.
(h) The appellant sent money from the UK in 2013 to fund the 'release' of his cousin from detention. The appellant's cousin had been a 'high level' member of the LTTE. Afterwards, the army came looking for his cousin at the home of the appellant's aunt. They came across the appellant's father as a result, and took him away. They found money transfer receipts, and connected the appellant to the 'releases' and now seek the appellant [scr.4.2];
(i) In this country, and although he has not become a formal member of any organisation, the appellant has attended demonstrations, including Martyr's day."

6. These agreed facts were in line with what the appellant said in his witness statement dated 26 January 2016.

7. The reason that I had set aside the decision of Judge Grant was because I considered it necessary to have further and more detailed consideration of the appellant's mental health issues including his suicidal ideation and the difficulties which he would face on return to Sri Lanka - I had paid particular note to the medical report of Dr Dhumad - and, as the medical evidence had indicated that it would not be either appropriate or possible for the appellant to give evidence, it was agreed by Mr Haywood and Mr Tarlow that the appellant would not give evidence and that I would deal with the appeal on the basis of submissions made to me.

8. It was considered appropriate that Mr Tarlow should set out his submissions first. His concise submissions were that taking the appellant's claim at its highest and accepting his account of scarring and the fact that he was mentally unwell he would not, under the provisions of the country guidance case of GJ & Others (post civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), face persecution on return as he was clearly not a threat to the integrity of Sri Lanka nor would he be on a stop list and in any event there were mental health facilities in Sri Lanka. Mr Tarlow pointed out that in her report dated 24 July 2016 Dr Rachel Thomas had stated that the appellant was not currently on a suicide risk, although he had been in the past and that his mental health problems were less severe because of the fact that he was living with family here. Moreover, Mr Tarlow pointed out that on any objective basis treatment would be available for the appellant in Sri Lanka and therefore he could be returned.

9. In his submissions Mr Haywood, having emphasised that it is accepted that the appellant had scarring and that the treatment which he had suffered in Sri Lanka had led to his mental illness, stated that it was not conceded that the appellant would not be on the stop list. He referred to the fact that the appellant came from a family who had supported the LTTE and that he had been detained on two occasions by the army and questioned by them. He went on to say that the second detention was a "targeted" detention as the appellant had been taken from his home and that he had been fingerprinted. Moreover, he had signed a blank sheet of paper and it was not clear therefore what would have been contained therein. Also his national ID card had been taken from him. Mr Haywood argued that this was a potentially significant factor as the appellant would have to say why he did not have the card if he returned to Sri Lanka. The card was a necessary document for daily living in Sri Lanka and should the appellant apply for a replacement he would have to say how it had been taken away from him and he could not be expected to lie about this.

10. He referred to a report from Dr Nadarajah, a Lecturer at the Centre of International Studies and Diplomacy at SOAS dated 27 January 2016 which emphasised that in 2005 the security forces continued practices of harassment, intimidation and arrest of those who were or were suspected of being former LTTE members and supporters and said that there was evidence that those who had been former members of the LTTE who had gone through the government's "rehabilitation" programme continued to be harassed and threatened. In his skeleton argument he referred to instances of arrests on return at the airport of former LTTE members and a report that the MP for Batticaloa district, Mr P Ariyanenthiran had stated that it was not yet safe for Tamils who had fled abroad to return. There was a reference also to the Attorney General, Senaka Perera who had stated that those who had sought political asylum abroad were being victimised on their return, contrary to assurances given by the President and also the fact that release from custody on payment of a bribe did not alter the level of interest the security forces would have in those returning. Moreover, there is evidence that the appellant was known to have sent money from Britain to Sri Lanka and that this had led to his father being detained. It was also known that his cousin had been a high ranking member of the LTTE and it was believed that the money which the appellant had sent to Sri Lanka had been to secure his release. Mr Haywood pointed out that the appellant was too afraid to have contacted his family since 2016. Therefore, notwithstanding the fact that he was at a low level cadre of the LTTE the appellant would, he argued, be at risk on return.

11. In any event, he pointed out that it was accepted that the appellant had a subjective fear of return and that that would impact on the assessment of the effect of return on the appellant. He referred to the Court of Appeal judgment in Y (Sri Lanka) [2009] EWCA Civ 362 in this regard.

12. He referred to the various medical reports which included not only that from Dr Martin which dealt with the scarring which the appellant had which was consistent with his claimed ill-treatment but also the psychiatric reports and the medical notes from Harmondsworth. All doctors agreed that the appellant was suffering from post-traumatic stress disorder - an assessment not disputed by Mr Tarlow and moreover the appellant was still on extremely strong medication - he was on the maximum dose of Citalopram.

13. Mr Haywood referred to the fact that it was Dr Thomas's view that while the appellant was not at a high risk of suicide now that would change if he were forcibly removed.

14. He took me through the relevant passages in GJ and in MP (Sri Lanka) [2014] EWCA Civ 829 and asked me to find not only that the appellant would suffer because of his profile on return as a supporter of the LTTE but also that he would face Article 3 ill-treatment because of the suicide risk and the inability of the appellant to access mental health care in Sri Lanka. He emphasised that each case should be considered on its own merits: this was the clear guidance in paragraph 436 of GJ. He referred to the UNHCR guidance.

Discussion

15. It is clearly the case that when considering whether or not an applicant will face persecution or Article 3 ill-treatment on return it is necessary to take into account the particular make up of the claimant including his own particular vulnerabilities. What may well not be persecution for a robust man in good health might well be persecution for a more vulnerable individual.

16. In this case I am grateful to Mr Tarlow for accepting the basis of the appellant's claim including the fact that he had been detained and ill-treated in Sri Lanka and that his mental health issues follow from the ill-treatment which he received.
17. I have taken into account the various factors which are not in dispute which were emphasised by Mr Haywood. These included the fact that the appellant had been picked up not in a "round-up" but from his home, that the authorities knew that he had sent money from Britain to secure the release of a cousin who was a member of the LTTE and indeed that he had a relative who had been relatively senior in that organisation.
18. While it is the case that he may not be on a stop list I consider that it is reasonably likely that, at some stage, for example when he was required to renew his identity card the authorities would be aware that he had returned and there is a possibility that he would then be taken in for further questioning. Alternatively, given the evidence from the report of Dr Nadarajah there is the possibility that he would be questioned on entry.
19. I have considered the appellant's claim in the light of the determination in GJ (Sri Lanka). The reality is that and I note the evidence of Mr Malcolm Lewis, a witness for UKBA who stated that returnees were asked at the airport about addresses they were associated with before leaving the country. I note that the appellant had been picked up at his home address. I note also that the appellant would be asked about his reasons for returning to Britain. It was also Mr Lewis' evidence that onward addresses might well be checked by the police. I consider that, given the appellant's background and family connections there is a possibility that he might be traced on return and questioned still further. I am conscious that this is an appellant who would not be able to move around the country with ease given his state of mental health. He would therefore be unlikely to be able to evade questioning should the authorities decide to question him.
20. I consider also that there is a possibility that the appellant might face being placed in a "rehabilitation programme" which could well last for up to two years. While the Tribunal in GJ did not consider that that would amount to persecution it is something which, given the mental health of this appellant would, I consider, amount to persecution of this particular individual. I would accept, however, that the appellant does not fit neatly into the categories of those at risk as set out in GJ. I am however aware of the conclusions of the Court of Appeal in MP (Sri Lanka) [2014] EWCA Civ 829. which emphasised the importance of looking at every case on its own merits and in particular that the fact that certain individuals who might not fall easily into the categories set out in GJ might still be at risk. In all, taking into account the appellant's background and particularly taking into account his mental health, I conclude, applying the relevant low standard of proof, that the appellant would be at risk of persecution because of his perceived political opinions on return.
21. Even, however, if I were wrong in that conclusion I consider that the appellant's removal would infringe his right under Article 3 of the ECHR. In reaching that conclusion I have considered his claim and the medical reports in the light of the judgment in Y (Sri Lanka) [2009] EWCA Civ 362. In paragraph 6 of his judgment Sedley LJ referred to the judgment in J [2005] EWCA Civ 629 and in particular the conclusions set out in paragraphs 26 onwards. These were as follows:-
"26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para [91], the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added).
See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka?"
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights. "
22. Sedley LJ added the additional principle which was whether any genuine fear which the appellant might establish albeit without an objective foundation is such as to create a risk of suicide if there is an enforced return.
23. In this case it cannot be doubted that the appellant does have such an objective fear. Therefore even if I were wrong in finding that given the changed circumstances in Sri Lanka he would not be at risk of persecution on return, it would simply not be arguable that he does not have such an arguable fear and of course his fear is based on past persecution which has been accepted by the respondent. That is the context in which I must consider the medical evidence before me.
24. It is clear from the notes of the appellant's mental health that as early as January 2015 the appellant stated that he believed that the army were going to kill him and that he "will die here". He had, on 24 December 2014, been noted as stating that he experienced voices which were disturbing him and that he was confused and there were very considerable concerns about his mental health.
25. By the time of the hearing in the Upper Tribunal there was a psychiatric report from Dr Saleh Dhumad dated 8 January 2015. Dr Dhumad concluded that:-
"(c) (Page 139) In my opinion, the risk of suicide in Mr R's case is significant in the context of possible, there are a number of risk factors that makes suicide more likely if he were deported to Sri Lanka where he believes that he will face torture and death by the authorities. These risk factors are severe depression, PTSD and hopelessness, he feels suicidal, these are triggered by exposure to reminders of the traumatic experience and hopelessness and have been worse in detention. Hopelessness has a serious and significant association with the suicide risk. The risk will be greater when he feels that the deportation is close, and any threat of removal, in my opinion, would trigger a significant deterioration in his mental suffering and subsequently increases the risk of suicide.
(d) This type of risk is very difficult to manage in Sri Lanka, as he will be extremely anxious and frightened; his mental health will deteriorate dramatically coupled with high risk of suicide.
(e) In relation to the impact of a return to Sri Lanka on his mental health additionally that he is currently depressed, hopeless, feeling suicidal and experiencing PTSD."
26. That report was, of course, well over a year ago.
27. In September 2015 an addendum psychiatric report was prepared by Dr Dhumad. He noted the fears expressed to him by the appellant and clear evidence of self neglect and lack of eye contact. He emphasised that the appellant's symptoms met the criteria for PTSD and referred to the anti-depressant medication the appellant was on - the maximum dose of Citalopram. Again he stated at paragraph 14.8:-
"In my opinion, the risk of suicide is very high if he were to be deported, if he survives the deportation process; he is not fit for interviewing by the Sri Lankan authorities on return, the nature of the illness is extreme anxiety. The very thought of appearing outside the therapeutic setting and he does not have coping mechanisms to help him deal with such exposure. It is my opinion that if he were to be questioned by the Sri Lankan authorities he would be extremely frightened of what they might do to him. This would create a psychological state, in which he would be unable to think sufficiently clearly to explain himself properly; it would be extremely difficult for him to keep focused and control his emotions under stress."
28. He went on to say that his view was that if the appellant was separated from cousins that would make his condition worse and increase the risk of suicide.
29. Finally, before the hearing three further reports were produced. The first on scarring had been prepared by Dr Martin. Is largely academic now but it had been accepted that the appellant suffered ill-treatment in Sri Lnka which led to scarring.
30. The second is a letter from the appellant's doctor who stated that the appellant is currently diagnosed with PTSD. He stated that the appellant's symptoms contend to be moderate to severe.
31. A thorough report had been prepared by Dr Rachel Thomas. She stated that her conclusions were "highly congruent with those reached by Dr Dhumad in his reports as well as that of Dr Koglanathan" She considered there was a slight improvement in the appellant's diagnosis because he was free from immigration detention, the care he was receiving from his cousins and the medication which he is receiving. She stated that if any of those protective factors were to be removed and his psychiatric condition was to again worsen he would then be "more severely symptomatic".
32. In paragraphs 51 onwards of her report she referred to the issue of self harm and "suicidality". Having noted the appellant's comments and having set out what she referred to as "post traumatic traits" she concluded in that although the appellant denied any active "suicidality" or self harm on account of his current social support system in the UK and having been released from detention on his current medication she considered that that was also due to his retaining some hope of a better outcome to the situation. In paragraphs 108 onwards she gave her prognosis on the consequences of return. She stated that the appellant was suffering psychiatrically here in the safety of Britain and with excellent family support around him and therefore it could readily be seen how removal from Britain to a country where he feared for his life and safety and where he no longer had a stable base or any robust social support/protection "would almost certainly precipitate another psychiatric crisis, assumingly occurred when he was detained". She stated that the appellant had a history of acute "suicidality" whilst detained and mentioned that he had been apparently placed on recurrent suicide watch for around one month while in detention. She talked of the difficulties that the appellant would face if he were returned to Sri Lanka and foresaw a rapid deterioration in his psychiatric condition there. She stated that "in the event he did not make a suicide attempt", he would be highly vulnerable to further abuse and to exploitation. She did however conclude at paragraph 143 that he was not currently a suicide risk but she did consider that that risk would worsen considerably in the event of the appellant's removal from Britain and could rapidly become a significant risk.
33. It is clear from the various medical reports and in particular the report of Dr Rachel Thomas that although the appellant is not at present a suicide risk that is because of the relative security he feels living with his cousins in this country. I can only conclude from reading the reports that should he be removed the suicide risk would be magnified and that risk would be based on his subjective fear of what would happen to him on return. That subjective fear itself is based on his past experiences which have been accepted by the respondent. I consider that he meets the test set out in the further factor in a "suicide" case as set out by Sedley LJ in Y (Sri Lanka). Indeed I consider that this appellant's claim is on all fours with the third appellant in GJ (Sri Lanka) with the proviso that while it is the case that the Tribunal in that case considered that that appellant was not entitled to asylum I have concluded that on the particular facts of this case this appellant would be at risk.
34. I would add that I have taken into account the lack of effective treatment in Sri Lanka given the large numbers suffering from mental illness there and the very small number of psychiatrists and psychiatric facilities.
Notice of Decision
35. I have therefore concluded that, having set aside the determination of the judge of the First-tier Tribunal this appeal shall be allowed on both asylum and human rights grounds.

Decision

This appeal is allowed on both asylum and human rights grounds.

Signed Date

Upper Tribunal Judge McGeachy