Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13183/2015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 8th August 2016 On the 12th August 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MRS P
(Anonymity Direction made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Wilford (Counsel)
For the Respondent: Mrs Ahmad (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge J. McDonald promulgated on the 21st April 2016, in which he dismissed the Appellant's appeal against the Respondent's refusal of her protection and Human Rights claim.
2. The Appellant is a citizen of Sri Lanka who says that she fears persecution were she to be returned to Sri Lanka, due her to imputed political opinion. The Appellant, in an application for permission to appeal to the Upper Tribunal, summarised her case as being that she feared ill treatment upon return by or on behalf of General Fonseka, his former son-in-law Danuna Tillakaratne and Rohan Gunuratna, due to her husband's suspected knowledge of their corrupt activities. It is also said that within the permission to appeal application that she fears ill treatment from the Sri Lankan police due to this association having been detained, beating and raped by them in 2011.
3. First-tier Tribunal Judge J. McDonald, in his decision, accepted that the Appellant was a credible witness and that she had been arrested by the Sri Lankan police in November 2011 and that she had been beaten and raped as claimed and that the Appellant had been diagnosed as suffering from PTSD, the most likely explanation for which Judge McDonald found, was the treatment that she suffered in November 2011. However, the Judge found that the Appellant had consistently said that her fear was of General Fonseka and his son-in-law Tillakaratne, and that she had not at any point stated that her fear was of the Sri Lankan police, despite the ordeal that she suffered at their hands. He found that there was no evidence that General Fonseka or his associates had at any time taken action against the Appellant or her husband apart from oral threats [116]. The Judge went on to find that "Given the rehabilitation on Fonseka and his associations, I do not find, applying the lower standard of proof, that there are substantial grounds for believing that if the Appellant were returned to Sri Lanka she would face a real risk of suffering serious harm." In this regard, the Judge noted that although General Fonseka had served a prison sentence for corruption in relation to arms dealings, he had been pardoned and indeed promoted to the range of Field Marshall.
4. The First-tier Tribunal Judge went on to find that there had been no submissions put forward that the Appellant's mental health and PTSD engaged Article 3 and noted that it was an extremely high threshold.
5. In respect of the Appellant's claim under Article 8, the Judge noted the Appellant had a child who was born in the UK on the 28th April 2015 who was at that stage 11 months old, but that she and her husband did not meet the eligibility requirements of Appendix FM as partners, given that neither were British citizens and were in the UK with refugee leave or as persons with humanitarian protection. In respect of the Appellant's private life under Paragraph 276ADE(1)(vi) when considering whether or not there would be very significant obstacles to the Appellant's integration into the country to which she would be returned, namely Sri Lanka, the Judge considered that although the psychiatrist Dr Obuaya had said that the risk of suicide or serious self-inflicted harm may increase if the Appellant returned to Sri Lanka, and that her mental state may significantly worsen if she was forcibly returned, he found that there was no evidence that the type of treatment that Dr Obuaya envisaged would not be available in Sri Lanka. He found that the Appellant previously had employment in Sri Lanka and had always expressed a wish that she could return to Sri Lanka and continue with her employment. He found that the risks expressed by Dr Obuaya did not amount to very significant obstacles to return and that the Appellant's claim therefore failed on Human Rights grounds. The Judge therefore dismissed the appeal on asylum grounds, on humanitarian protection grounds and on Human Rights grounds.
6. The Appellant has now sought to appeal against that decision for the reasons set out within the application for permission to appeal to the Upper Tribunal. This is a matter of record and is therefore not repeated in full here, but I have fully taken account of the same, in reaching my decision. In summary, it is argued that the Judge materially erred in his consideration of the Appellant's mental health and its implications for her ability to meet Paragraph 276ADE(1)(vi) and that the Judge failed to have regard to the findings at paragraphs 447 to 547 of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) regarding the availability and suitability of mental health treatment in Sri Lanka for those suffering PTSD following torture and that there were only 25 working psychiatrists in Sri Lanka and that such mental health institutions as do exist they are "inaccessible and do not provide appropriate care for mentally ill people". It was further stated that in Y and Another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362, that the Court of Appeal had acknowledged that where PTSD arises from torture by the State, there may be a consequent unwillingness to seek treatment in the country concerned and thereby disclose the torture. It was argued that the Appellant would be unable to access psychiatric treatment in Sri Lanka and that any treatment she did experience would be ineffective, given her reluctance to recount her experiences to those in authority and that the arguable consequence would be a significant deterioration in her mental state, which may inhibit her ability to work and readjust to Sri Lankan society and create very significant obstacles to reintegration. It was argued that the Judge failed to take these factors into account when considering Paragraph 276ADE(1)(vi).
7. In the second ground of appeal it was argued that the Judge had failed to make findings as to the Appellant's claimed fear of Rohan Gunuratna who had been identified as involved in the Korean meetings and having threatened her and her husband in the past and that the Judge had also failed to make findings as to the Appellant's claimed future risk from the Sri Lankan police, whom she had said had repeatedly visited her family in search of her and it is said that the Judge erroneously stated that the Appellant had not asserted a fear of the police, but she had mentioned such a fear, which was recorded at paragraph 43 of the determination.
8. Permission to appeal was initially refused by First-tier Tribunal Judge Robertson on the 25th May 2016, but permission to appeal was then granted by Upper Tribunal Judge Allen on the 28th June 2016, in which he found that:
"It is on balance arguable in light of what was very recently decided by the Supreme Court in MP (Sri Lanka) [2016] UKSC 32, that this case is sufficiently akin to that for the conclusions there to be applicable here also. The matters raised in the grounds are of less immediate concern but are nonetheless arguable."
9. Within the Respondent's Rule 24 Reply, it is argued that the First-tier Tribunal Judge directed himself appropriately, and that when considering Paragraph 276ADE(1)(vi), the Judge gave reasons at paragraph 127 as to why the Judge did not find the Appellant's mental health amounted to a significant obstacle and that the Judge actively considered the risk on return to Sri Lanka as set out in paragraph 123.
10. It was on this basis that the case came before me in the Upper Tribunal.
Oral Submissions
11. In his oral submissions to me, Mr Wilford on behalf of the Appellant noted that the Supreme Court in the case of MP had not in fact made any specific findings of fact, but had referred a question to the Court of Justice of the European Union, namely, "Does Article 2(c) read with Article 15(b) of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the Applicant, if retuned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?". However, Mr Wilford agreed that at paragraph 8 of the decision of the Supreme Court, it was said that the Upper Tribunal had in the case evidence from a psychiatrist which had showed that the Appellant in that case was suffering from severe post-traumatic stress disorder, severe depression and that that Appellant had showed a high degree of suicidality and he appeared to have a serious determination to kill himself if he were returned to Sri Lanka. Mr Wilford conceded that the Appellant Mrs P's post-traumatic stress disorder and risk of suicide was not said by her psychiatrist to be as severe as the psychological illness suffered by the Appellant in MP, but he did ask if I did consider that the Supreme Court case of MP was relevant, that the appeal be stayed pending the outcome of the reference to the Court of Justice of the European Union. He argued that the Appellant may be at an increased risk of suicide were she to be returned and that the question set out by the Supreme Court of Appeal in terms of whether or not in light of the continuing material risk the Appellant would be entitled to subsidiary protection was relevant.
12. Mr Wilford went on to argue that the First-tier Tribunal Judge had erred in his consideration of Paragraph 276ADE and failed to take account of the fact that at paragraph 454 of GJ, there had been evidence submitted in the Country Guidance case that there were only 25 working psychiatrists in the whole of Sri Lanka and that although there were some mental health facilities in Sri Lanka it had been said at paragraph 4 of the April 2013 UKBA Operational Guidance Note that money spent on mental health only really went to the larger mental health institutions in capital cities which were inaccessible and do not provide appropriate care for mentally ill people.
13. However, Mr Wilford was unable to point me to any other evidence before the First-tier Tribunal Judge other than what was stated in the Country Guidance case, regarding the lack of treatment in terms of counselling, recommended for the Appellant's PTSD. However, he did argue that her psychiatric condition would affect her ability to get employment and that the psychiatrist at paragraph 65 had said that, if untreated, this would affect her ability to find work.
14. Mr Wilford further argued that the Judge had failed to make material findings in respect of the threat posed to the Appellant from Mr Gunuratna and also from the police, but he did concede that there was no evidence before the First-tier Tribunal of a continuing threat from Rohan Gunuratna, apart from the earlier threats that had been made. He further conceded that there is no evidence as found by the First-tier Tribunal Judge, as to who actually went to the Appellant's property in January 2016, as to whether it was the police or supporters of Fonseka.
15. In her submissions on behalf of the Respondent, Mr Ahmad argued that the Appellant's mental health problems were very different in severity to that of the Appellant in MP and that the psychiatric evidence in this case referred to there being a low suicide risk and that this Appellant simply required counselling or other treatment, and that such counselling did not necessarily need to be provided by a psychiatrist and that there was not actual evidence before the Judge that counselling was not available. She argued that GJ had not said that counselling was not available in Sri Lanka, and argued that there was a high threshold before it could be said that there were very significant obstacles to integration for the purposes of Paragraph 276ADE.
16. In respect of the second ground of appeal she argued that in submission it had been argued by the Appellant that she simply feared Fonseka and Tillakaratne, and not a continued threat from Gunuratna, and that the Judge at paragraph 116 had said the Appellant did not fear the police. She argued there was no material error of law and asked me to dismiss the appeal.
My Findings on Error of Law and Materiality
17. The Appellant in the case of MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32, as was noted at paragraph 8 of the decision of the Supreme Court, who was, according to the evidence of the psychiatrist before the Upper Tribunal, suffering from "severe post-traumatic stress disorder and severe depression" and who had showed a high degree of suicidality and appeared to have a serious determination to kill himself if he returned to Sri Lanka, such that the Upper Tribunal had considered that Article 3 was engaged in that case if the Appellant were to be returned, given the risk of suicide. The question posed by the Supreme Court for the Court of Justice to the European Council was whether or not "Article 2(e), read with Article 15(b) of the Qualification Directive covers a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible". The threshold for breach of Article 3 in terms of the severity of the psychological condition and risk of suicide had already been passed.
18. However, the severity of the Appellant's mental health problems in this case, is in no way comparable to the mental health problems suffered by the Appellant in MP. Although in his report Dr Obuaya, the Consultant Psychiatrist, had concluded that the Appellant was suffering from PTSD, and that she required a course of therapy, at [61] of his report, he indicated that "In my clinical opinion, Ms P has a low risk of attempting a suicidal act at present. I based this opinion on the absence of any suicidal acts historically and the fact that her daughter and husband are likely to be strong protective factors against suicide.". He went on to find at [62] that "The risk of suicide or serious self-inflicted harm may, in my view, increase moderately upon her hearing that she will definitely be returning to Sri Lanka, during the transit there and once she was back there. In all the circumstances, it is my opinion less likely that she will be able to take stock of her situation and make a considered decision in an environment where she regards to be full of danger."
19. Therefore the Appellant, although suffering from PTSD from her past experiences at the hand of the police in Sri Lanka in 2011, was said only to have a low risk of attempting suicide, which may increase significantly, were she to be returned. This is at an entirely different level of severity to the Appellant in MP, who was said to have had severe post-traumatic stress disorder, severe depression and showed a high degree of suicidality and a serious determination to kill himself if returned. In MP, it was found that Article 3 was engaged, whereas as noted by First-tier Tribunal Judge McDonald, at [122], no submission was advanced on behalf of the Appellant that her mental health and PTSD engaged Article 3 and he did not find that Article 3 applied in the case given the Appellant's mental health and PTSD. Further, as Judge McDonald noted, the evidence from the psychiatrist was that the Appellant's risk of suicide "may" increase moderately, and was not a finding that it would increase.
20. I do not consider in light of the medical evidence before First-tier Tribunal Judge McDonald, and in light of his findings, that he would have found that the Appellant would be entitled to subsidiary protection under Article 2(e) in terms of facing a real risk of suffering serious harm as defined under Article 15(b) in light of her mental health, irrespective of which way the Court of Justice of the European Union decides the question that has been referred to them. Her mental health condition simply was not serious enough for her to qualify for subsidiary protection on this basis. I therefore do not consider that the basis upon which permission was actually granted by Upper Tribunal Judge Allen has merit, and I do not consider that it is necessary to stay this case pending the outcome of the referral to the Court of Justice of the European Union.
21. In respect of the first ground of appeal, which argues that First-tier Tribunal Judge McDonald erred in his consideration of Paragraph 276ADE of the Immigration Rules. Criticism is made of the Judge's findings at paragraph 127 of his judgement in which he stated that "The only significant obstacles raised in the psychiatric report is where Dr Obuaya says at paragraph 62 that the risk of suicide or serious self-inflicted harm may increase if the Appellant returned to Sri Lanka and that her mental state may worsen significantly if she were forced to return, see paragraph 64. There is no evidence that the type of treatment that Dr Obuaya envisages would not be available in Sri Lanka. The appellant had employment in Sri Lanka and she has always expressed a wish that she can return to Sri Lanka and continue with her employment. I do not find that the risks expressed by Dr Obuaya to the Appellant's mental health amount to a very significant obstacle."
22. Although reference in that regard is made by the Appellant to the findings of the Upper Tribunal in the case of GJ and Others, that there were only 25 working psychiatrists in Sri Lanka and that such mental health institutions as do exist are inaccessible and do not provide appropriate care for mentally ill people and that the money is sent to the larger institutions in the cities, I bear in mind that treatment for PTSD, does not necessarily have to be provided by a psychiatrist, as opposed to a psychologist or other medical practitioner. Further, the point being made by Judge McDonald was that there was "no evidence that the type of treatment that Dr Obuaya envisaged would not be available in Sri Lanka". Mr Wilford was unable to point to any evidence being before the Judge, other than those paragraphs within the Country Guidance case, which in fact indicated that treatment, for PTSD would not be available. The fact that there are a limited number of psychiatrists and that money for mental health is invested into the larger centres in the cities and that mental health institutions are inaccessible and do not provide appropriate care for mentally ill people, as found within GJ, does not establish that treatment for PTSD was not available. The point being made by Judge McDonald was there was no evidence before him that the treatment was not available in Sri Lanka. On the evidence before him, that was a perfectly valid comment. The findings in GJ do not prove that treatment for PTSD in itself would not be available.
23. Although the Judge accepted that the Appellant had been arrested, beaten and raped whilst in Sri Lanka, and this was the likely cause of her PTSD, that in itself did not indicate that treatment for PTSD would not be available in Sri Lanka or would not be effective, even if she was reluctant to recount her experiences to those in authority.
24. In my judgement the First-tier Tribunal Judge has quite properly considered the Appellant's mental health and the evidence before him in respect of her PTSD and risk of suicide, has fully and properly considered the psychiatric report and the evidence presented in respect of it and the lack of evidence regarding treatment presented to him, and made findings that were perfectly open to him on the evidence that there would not be very significant obstacles to her ability to integrate back into life in Sri Lanka, even bearing in mind her mental health problems. There is no material error of law in this regard.
25. In respect of the second ground of appeal, where it is argued that the Judge has not made any findings in respect of the claim of a fear of Rohan Gunuratna, the submission made by Counsel on behalf of the Appellant before First-tier Tribunal Judge McDonald was recorded at [89], where it was said that the argument was that "the Appellant's fear on return from Fonseka and Tillakaratne is credible". Seemingly, it was not argued in closing submissions that the Appellant was at a real risk in the future from Rohan Gunuratna, but in any event, the Judge at [119] found specifically that "Further, given the rehabilitation of Fonseka and his associations I do not find, applying the lower standard of proof, that there are substantial grounds for believing that if the Appellant were returned to Sri Lanka, she would face a real risk of suffering serious harm.". In such circumstances, the Judge has adequately and sufficiently dealt with the risk from General Fonseka and his associates, including Mr Gunuratna. He did not need make a separate specific finding for Mr Gunuratna, given his finding about General Fonseka's associates.
26. In respect of the submission that the Judge has failed to consider the risk faced to the Appellant from the police in the future, although at paragraph 116, Judge McDonald had said that "The Appellant however has consistently said that her fear is of General Fonseka and his son-in-law Tillakaratne. She does not at any point state that her fear is of the Sri Lankan police despite the ordeal that she has suffered at their hands". I do note that at [43] it was said that "The Appellant says that further visits from police to their family properties and that she is scared that if she returns to Sri Lanka she will be arrested again or killed." The Appellant therefore had raised concerns regarding the threat from the police, but in her own statement, she stated specifically that when she was arrested by CID officers, they were asking her about her husband's involvement with Tillakaratne and Gunuratna. Although I do consider that Judge McDonald did err in stating that the Appellant had never said that she feared the police upon return, I do not consider that this error is material, given that in light of her own evidence, the police had arrested her, questioned her and that she suffered the beating and rape, at a time when they were questioning her regarding her husband's involvement with Tillakaratne and Gunuratna. Given Judge McDonald found Fonseka and his associates had been rehabilitated, indeed Fonseka had been promoted to Field Marshall, even if Judge McDonald had considered the risk to the Appellant from the police in the future, he would come to the same conclusion that the Appellant did not face any real risk of persecution or serious harm from the police in the future, despite having previously suffered at their hands. The police had only been interested in her, on her own case, to find out what her husband's involvement with Tillakaratne and Gunuranta was, and given that rehabilitation of Fonseka and his associates, Judge McDonald would in any event have found that the Appellant was not at a continuing risk of suffering serious harm from the police were she to be returned. No other reason was advanced by the Appellant for the police having any continuing adverse interest in her. I therefore do not consider that the error of Judge McDonald in this regard was a material error.
27. In such circumstances, the decision of First-tier Tribunal Judge J. McDonald does not reveal a material error of law and is maintained.
Notice of Decision
The decision of First-tier Tribunal Judge J. McDonald does not reveal a material error of law and is maintained.
The Appellant was granted anonymity by the First-tier Tribunal, and I consider it appropriate for the anonymity to be maintained. I therefore do make an anonymity order. Unless and until a Tribunal or Court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.
Signed

Deputy Upper Tribunal Judge McGinty Dated 9th August 2016