Tribunal decisions

The decision

IAC-FH-NL-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00673/2011

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 5 September 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

[j s]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Sandell instructed by Lambeth Law Centre
For the Respondent: Mr K Norton, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is the re-hearing of the appellant’s appeal against the respondent’s decision of 9 January 2012 making a deportation order against him. I set aside the determination of the First-tier Tribunal allowing his appeal, in a decision and directions dated 21 September 2012.

History
2. The appellant is a national of Angola. He came to the United Kingdom in April 2003. In an earlier determination in September 2003 an Adjudicator had found credible his account to have been conscripted by force into the UNITA army and made to fight against the MPLA. The Adjudicator found that his fears in relation to the MPLA and what they would do to him on return were entirely unfounded and that he was not in a position of responsibility and would not be persecuted in view of the demobilisation process that was happening if he were to be returned to Angola. It was found that he would be no different a person from other internally displaced persons in Angola or other ex-combatants who might be in demobilisation camps. The Adjudicator had not made a finding on the specific issue of whether or not the appellant had been tortured in Angola.
3. Removal directions were set for 24 November 2003 but they did not proceed due, it is said in the refusal letter, to disruptive behaviour on the part of the appellant. On 31 August 2005 he signed a declaration of voluntary return to Angola but he withdrew this on 25 January 2006.
4. On 6 July 2010 he was convicted in the Crown Court at Snaresbrook on indictment of trespassing with intent to commit a relevant sexual offence; sexual assault – intentionally touching a female – no penetration; and burglary and theft – dwelling. He was sentenced to three years’ imprisonment. In her sentencing remarks the judge said that he was at the moment a dangerous man in the community towards lone females and possibly other people but was not dangerous within the 2003 Act and it was possible that the risk would diminish as he received treatment within the mental health units of the prison system. The judge noted psychiatric evidence and said she was persuaded that he was somebody who might not have committed these offences but for his underlying mental difficulties, but that was not conclusive and in the circumstances none of the reports recommended a mental health disposal.
5. The panel which heard his appeal noted the evidence in the pre-sentence report which indicated that the appellant did not accept the victim’s account of the offence and that he claimed not to have committed any sexual assault or burglary. The offender assessment found him to pose a high risk of harm to the public, namely adult females, and a medium risk to intimate partners. The panel found that the appellant in his oral evidence before it had not demonstrated a willingness to accept liability for his offences. The panel considered that his illness was a significant factor in his offending and that the evidence showed the risk of further offending to be minimal and that it would be disproportionate to deport him on the grounds of his previous conviction in light of the evidence of the prognosis and the relationship between his mental illness and his offending.
6. The appeal having been allowed, the Secretary of State challenged the judge’s decision, permission to appeal was granted, and in a determination following a hearing on 13 September 2012 I concluded that the determination was marred by errors of law and that as a consequence the appeal required to be re-heard.
The Evidence
7. At the hearing Detective Constable Edis adopted both of his statements, that of 15 August 2012 and that of 12 September 2012. He confirmed that they were true and accurate to the best of his ability. There was no cross-examination.
8. The next witness was Ms [M]. She was referred to her statement and identified her signature and said she was happy for it to form part of her evidence-in-chief.
9. She had met the appellant a year and four months ago. They were girlfriend and boyfriend. They had met while he was on bail. He had been put back into prison at the end of last year. Since then the relationship had been the same. She went to visit him twice a week, sometimes on her own and sometimes with her children. They were respectively [J] her son aged 15 who lived with her and was at school and her son [P] who was aged 4 and lived with her. She had an older son of 27 who lived on his own.
10. As regards the relationship, she loved the appellant. She saw them as having a future together and he was a man to make her happy. They had plans. In five years time for example she would see her life getting better and would start working with him by her side. They would like to live together and get married and had discussed this.
11. With regard to the allegations about him these were some years ago and referred to violent sexual offences, possibly against prostitutes. She had to say that nothing had happened to her. She had talked about it with him and thought he was not the only guilty one. She did not know. She did not worry about her safety with the appellant. She had seen nothing to show he was a risk to her or her children or anyone.
12. She was aware of the breach of bail conditions and that he had spent nights with her and was therefore back in prison. She was asked whether that would happen again and said no. He had assured her that he would never go back to prison and she believed he had had time to think about his mistakes. He had to go when it was time to go.
13. She was a Portuguese national. She did not have her passport with her today. She took her ID when she went to the prison. She had a Portuguese passport. She was not working at the moment. She would be working at the end of the month when her son started school full-time. She would do whatever came her way. She had some money, but not a lot.
14. On cross-examination she said it was the case that she was not listed as a bail surety today. It was the case that she loved him and wished to marry him. She was asked why therefore she was not standing as a surety and said that she could do so.
15. Mr Sandell said that the witness had not been asked to act as a surety as she had her own difficulties to deal with and his instructing solicitors had thought it would increase the strain and a lot of supervision would be required and it would be an additional pressure which was not necessary. Ms [M] had said she was willing to act as surety and if seen as decisive then the matter could be re-visited.
16. When cross-examination was resumed Mr Norton asked why there was any reason to wait for marriage and she said no but for the time being she wanted to spend more time with the appellant and later on to get married. As to why she had a social worker, it was because she was not well-treated by the father of her son. They had not been together for more or less a year and a half. She had not seen the social worker for the last three months. She was aware that the social worker said the appellant was not allowed to come to her house, but she was working on it. They had said that because of the mistakes the appellant had made. They had said that if he came to her home her children would be taken away. That could not be the case. She was asked why she thought the social worker was telling her that and said that she understood it was to do with her situation as she had not been well-treated before and the social worker thought she should have another person around her, that she herself was the person who knew. But even if the appellant did not come to her place now, one day he would, because things changed. She was asked whether she was working on what the social worker had told her and she said she had seen a solicitor and they were working on it. The social worker could not forbid her because the appellant had never harmed her and it was not for her to choose the witness’s friends and boyfriends and she herself was responsible for whatever happened. This was never forgetting her children of course.
17. On re-examination she confirmed that paragraphs 11 and 12 of her statement were correct. It was the case that initially they had said she should have nothing to do with him but as time passed they could meet up and they were not worried about the children.
Submissions
18. In his submissions Mr Norton noted that the asylum claim had been dealt with and rejected. This was confirmed by Mr Sandell. The appellant’s main fear was concluded to be unfounded. There were two points to be decided, first whether his mental health was such as to pose Articles 2, 3 and 8 risks and the significance of the public interest. Liability for deportation under the 2007 Act was established.
19. As regards the public interest there were two comprehensive statements from DC Edis who is a member of a unit concerned with high risk of harm foreign criminals, Operation Nexus. Police records were used to build a picture of alleged offending and convictions. This was relevant to the decisions in Bah [2012] UKUT 196 (IAC) and Farquharson [2013] UKUT 146 (IAC) concerning this being admissible evidence of conduct. That was especially so with regard to convictions and was highly relevant. As to the weight to be attached to the allegations, that was a matter for the Tribunal. The Tribunal was asked to attach weight to the pattern of offending involving vulnerable victims which meant that prosecution was not possible. In Farquharson the appellant had no convictions and was found guilty to the civil standard. In Bah there was a discussion as to the future risk of re-offending, reasonable likelihood being the standard of proof. On the evidence provided there was more than a reasonable likelihood in this case.
20. The Tribunal was also referred to paragraph 74 and 75 of SS (Nigeria). There had to be very strong reasons for family/private life or health grounds outbalancing the public interest.
21. The appellant’s private life was well-documented. There had been an attempt to remove him in 2003 which had been cancelled. This was on account of his disruptive behaviour. He had reported initially but later there were failures. He had made one voluntary return application. It was only after the serious offence conviction that he was detained for immigration purposes. The private life grounds were insufficient.
22. With regard to family life he had a recent relationship. Ms [M]’s intentions were not doubted but that was not enough. The concept of family life did not overtake the public interest.
23. As regards the issue of the appellant’s health there was the question of the provision of treatment in Angola. This had troubled the panel, given his mental health problems and the anti-psychotic and anti-depressant medication he had taken and there were articles on these in the bundle.
24. At pages 847 and 851 there were reports concerning these. There was an improvement between 2005 and 2011. The Tribunal was referred to the article at page 853, 857 and 858. It was from Wikipedia but seemed well-sourced and accurate. Medication was not rare or unobtainable and alternatives were available. The test in a medical case was a very high one as could be seen from N v United Kingdom [2008] 47 EHRR 39, D v United Kingdom [1997] 24 EHRR 423 and Akhalu [2013] UKUT 00400 (IAC). Mr Sandell had referred to Aswat v United Kingdom (Application No.17299/12) being one of those rare cases, but the facts in the instant case came nowhere close. It was necessary to look at the severity. The appellant there had been treated in a secure hospital. The sentencing remarks had to be read in their entirety as set out at Appendix N in the Secretary of State’s bundle. The N & D threshold was not met. The public interest was the underlying point.
25. In his submissions Mr Sandell adapted his skeleton argument and developed points in it. There were, as identified at paragraph 29 of the skeleton, five key factual submissions to be taken into account. As regards the appellant’s mental health, he was stabilised in the United Kingdom and currently all right but very vulnerable. With regard to what Mr Norton had said about any comparison with the decision in Aswat, the appellant had also been detained under the Mental Health Act, hence his current high level of support. There were four potential triggers to significant deterioration in the appellant’s mental health as detailed at paragraph 29(c) of the skeleton. In reality there was no mental health care or social or family support available to the appellant in Angola. Although there had been a risk to the public in the past, that was while the appellant was seriously mentally unwell and not stabilised. He posed a low risk now. The Secretary of State had nothing to say to the assertion that the risk profile might be different now his mental health problems were sorted out.
26. With regard to Article 2 the argument was as set out in the skeleton.
27. In respect of Article 3, there was first a risk of deterioration in the appellant’s mental health condition if he was unsuccessful in the appeal. There was also a risk of suicide which cut across the Article 2 point also. If the threshold was reached that was sufficient whatever risk he posed to the public because Article 3 rights were absolute. The Tribunal was referred to paragraphs 43 to 45 of the skeleton where the argument was set out in detail. At F16 was to be found the 2003 report and the summary. F17 predated the serious deterioration in his mental health. At J10 was a report of the social worker in 2007. They would continue to support him. At J20 was to be found the psychiatric report of Dr Timms from 2007. He was the treating psychiatrist at the Start Team. It could be seen from that report that the appellant had been sectioned in 2005. The Tribunal was also referred to the report at L1 of Dr Chao. The appellant had had psychiatric therapy while he was on remand. His detailed personal history was set out at pages 2 and 3 of that report. L6 onwards described the point when things began to get stabilised. There was no evidence of risk from this point. L7 and L8 set out his therapeutic relationship with Mr Emerson whose team still offered support. There was reference at L9 to L10, at paragraph 10 to suicide risk.
28. The next report was that of Dr Farnham, at M1 and onwards. He had been instructed by the defence solicitors, Dr Chao having been instructed by the court. Dr Farnham’s report contained the best assessment of the risk of offending, in particular at page M9 onwards. He was very well qualified to assess risk. The appellant’s release on bail had tested this. It had been from 21 September 2011 until November 2012 and thus a period of fourteen months living in the community, largely complying with his conditions and the only breach was victimless. There was a further letter from Dr Chao of 1 March 2011 responding to specific questions. Dr Chao spoke of effective alternative medication but that it was unknown whether the appellant would respond to this. The available medication in Angola had not been used in the United Kingdom for many years so there was a real risk he would not respond to or tolerate it.
29. The Tribunal was also referred to the report of Dr Katona at page 46 of the bundle. Pages 11 and 12 of 70 were emphasised because the Secretary of State disputed the suicide attempts but they were clearly a consequence of re-detention and this had been a serious attempt. Being observed five times an hour was indicative of the level of concern.
30. In light of the above submissions, Mr Sandell argued that the key facts set out at paragraph 29 of his skeleton were made out. There was the expert report of Mr Bridgland and also the background evidence at M13 of the Secretary of State’s bundle. These as had been stated were all drugs no longer used in the United Kingdom. The medication the appellant currently used was not listed as being available in Angola.
31. The Tribunal was referred to the background evidence at pages 22 and 39. There was also the addendum concerning the 2011 WHO Atlas confirming there was no reason to change the original conclusions.
32. With regard to page 853 of the Home Office bundle it had only been put in this morning. Given its nature and the timing of the disclosure the lightest of weight should be given to it. To an extent it was a discrepancy in the evidence given the views of Mr Bridgland to which much more weight should be given. It seemed to be a press release from a hospital and was unclear. The evidence showed more than four psychiatrists and that would mean they would be dealing with 150 patients a day which was nothing like the necessary healthcare that had helped the appellant in the United Kingdom. It could not be taken seriously as reassurance that there would be no real risk to the appellant.
33. The judge had accepted that there was no one in Angola whom the appellant knew. This was a non-appealed finding of fact and there was no evidence to the contrary. That was in sum the Article 3 evidence.
34. It was entirely clear from the medical evidence that there was a real suicide risk if the appellant lost the appeal. He had made a very determined effort in November 2012. There was likely to be a deterioration in his mental health if there was an adverse finding and/or loss of social support and/or pre-removal detention. There was no requirement of exceptionality or rareness. He was a very damaged man. His case could not be distinguished from successful Article 3 cases. He was suffering from a serious illness and had been sectioned in the past and was in receipt of a great deal of support. No balancing exercise was needed.
35. The Article 8 issue was more complicated. The Maslov criteria had to be borne in mind. The appellant had been in the United Kingdom for ten years and it was nearly four years since his last offence. He had developed the relationship with Ms [M] since then and received mental health support. The decision in Bensaid was relevant with regard to the preservation of mental stability, in his Article 8 claim. From MM (Zimbabwe) [2012] EWCA Civ 279 and Akhalu it was clear that an absence of medical treatment was relevant to Article 8. In MM it had been said that if a person was only relying on the Article 8 claim in the absence of medical treatment there would need to be other Article 8 considerations. Akhalu clarified that that was not a rule of law and that there were in fact in this case in any event other Article 8 considerations. It was clear from the head note in Akhalu that there was no exceptionality requirement. It might be rare for a case to succeed under Article 8 if it did not succeed under Article 3 but it was not a legal test and the question was whether the public interest in deportation outweighed the individual’s interest. The Tribunal was referred to paragraph 16 of the skeleton argument. It was clear that there had been an improvement in the appellant’s mental health. It could not be assumed that the experts had taken at face value all he said. The evidence concerning the previous suicide attempt should be revisited.
36. As regards family life, this was accepted by Mr Norton. As a consequence the issue was one of proportionality. The appellant and Ms [M] were clearly a couple in an enduring relationship. The fact that she had a social worker was not in issue as it was to help her in respect of her former partner. The appellant played an increasingly important role in her children’s lives.
37. The appellant did dispute the factual basis of the crime, but this was on the basis set out at paragraph 77 of the skeleton. He was not well and could find committing such an offence hard to deal with. The most probative evidence of current risk was the expert evidence and the need to consider how his behaviour was tested now it had stabilised. He was no longer a substantial risk.
38. As regards D C Edis’s evidence, all the matters referred to there occurred when the appellant was unwell. The event in 2005 had led to him being sectioned. When things were sorted out the offending had ceased and he had been on bail for some fourteen months. He had had his bail revoked as he had stayed at his girlfriend’s house but he had told the authorities where he was. The offences looked like disputes with prostitutes. They were not proven allegations and had not been tested in court and in some cases the police decided no offence had been committed. There were inconsistencies, or the victims had not wished to pursue the allegations and they had perhaps been untrue. There were minor drugs offences. It was not a reason to deport. The point had been made at paragraph 80 of the skeleton that these matters would be proved by taking the case to court or bringing the witnesses to the Tribunal. A lot of documents had been provided but a lot were missing. It was accepted there was some smoke but it could not be tested at all. The appellant had always given plausible explanations. The Tribunal was not asked to ignore this evidence but to consider what it said about the likelihood of an intention to re-offend. There were serious problems with this evidence, and it was of little relevance now.
39. Paragraph 82 of the skeleton set out relevant considerations. It should be noted that the judge whose sentencing remarks could be found at N1, had not recommended deportation. The appellant remained entitled to after care. There was the probation officer’s report on him in the bundle at page 174. There was the reference to the mentoring support in a letter from Lambeth. The letter had been at the hearing before the judge and had been positive. There had been an error of law about the importance of immigration control, although the Secretary of State had never made submissions on this. There had never been any great focus on removal. Very late evidence had been put in. The case of Omar considered the relaxed attitude by the Secretary of State and this was relevant. Paragraphs 87 and 89 of the skeleton were referred to. Also paragraph 90 onwards was relevant. Of course there was an issue of the public interest, but when properly examined it was not overwhelming at all. It was very clear that if the appellant were deported his mental health would suffer. There were relevant cases and there were very weighty private and family life issues in this case. The appeal should be allowed.
I reserved my determination.
Discussion
Article 3
40. There are a number of medical reports concerning the appellant. These go back to the report of Dr Steadman in 2003. In his skeleton Mr Sandell focused in particular on the report of Dr Katona of 22 November 2011 which was supplemented in an e-mail of 18 February 2012. Dr Katona diagnosed the appellant as suffering from complex post traumatic stress disorder and depression. He noted that the depressive symptoms were less severe than those documented by Dr Chao in her reports of 18 August 2010 and 1 March 2011. He considered that although antidepressants were effective in the treatment of PTSD and major associated depressive symptoms, psychological treatments including trauma focused cognitive behavioural therapy were crucial components of a comprehensive individual treatment package for PTSD. He considered that the appellant had made a useful although incomplete response to a combination of a sedative antidepressant (Mirtazapine) and on a typical anti-psychotic (Olanzapine). He agreed with Dr Farnham (report of 8 September 2010) that the appellant should be referred to a specialist centre for individually tailored relational psychotherapy which might need to continue for at least two to three years. A sense of being able to live safely alongside a sense of being deemed worthy of protection by the authorities were important starting points for further re-integration and rehabilitative therapeutic work.
41. Dr Katona went on to say that in his opinion the risk of re-offending was now significantly lower than when the appellant was assessed shortly after his index offence and that his remaining risk was a result of his complex PTSD which in turn reflected the very profound traumatisation he suffered in Angola. He considered that the appellant’s fear of return to Angola was genuine, whether or not objectively justified. His fears would make it very difficult for him to build up a new support network for himself. He would be unlikely to have the trust and confidence of local mental health services to be able to access the therapy he needed in Angola. Dr Katona noted that the recent deportation decision concerning the appellant acknowledged that the Angolan government did not have a mental health policy and did not have a budget allocation for mental healthcare and that there were no community facilities for people who were mentally ill. This strongly suggested that the appellant would not be able to access the specialist therapy he needed even if he did seek it. He went on to say that although as was stated in the deportation decision, therapeutic drugs were generally available in Angola, including anti-psychotic and antidepressant medication, the appellant’s treatment needs extended beyond medication and there was also a considerable risk that the relatively expensive drugs to which he had responded in the United Kingdom would not be available and that he would not be able to tolerate cheaper alternatives with more side effects. Both antidepressants and anti-psychotics caused a wide range of problematic side effects including dry mouth, sedation and tremor. In the absence of treatment his worsening PTSD and associated psychotic depressive symptoms would also prevent him from being able to work and therefore support himself and if he suffered a psychotic relapse as he very likely would, this would increase his risk of further violent behaviour.
42. Dr Katona noted the previous serious suicide attempts by the appellant. He said that although Mr De Silva was not actively suicidal at present, there was a real and significant risk that he would attempt suicide with potentially fatal consequences if he lost all hope of being allowed to remain in the United Kingdom and such risk would be significant in the United Kingdom prior to removal, during removal and once he was back in Angola.
43. In his follow-up e-mail of 18 February 2012 Dr Katona said that he would expect the appellant’s mood and behaviour to fluctuate, in particular for his mood to be more agitated and distressed and his ability to engage with an interview process to be more impaired when his current stress levels were highest. Inconsistencies in his evidence would be attributable to his mental health problems. It would not be inconsistent with the diagnosis of complex PTSD that he would voice his opposition to the President and government on return and would not wait for them to get him first.
44. It is a little surprising that there is no more recent medical evidence than Dr Katona’s e-mail of a year and a half ago and no full report more recent than the report of 22 November 2011 of Dr Katona. It is relevant, for example, to note Dr Katona’s comment at paragraph 11.3 of his report that individually tailored relational psychotherapy will need to be continued for at least two to three years and whether that has taken place, what the consequences have been. It is of course the case that the appellant has been in custody since November 2012, but it would have been helpful to know if such therapy had taken place and if so what the impact of it on the appellant had been.
45. In any event the evidence is as set out above. I have also read and borne in mind the earlier reports of Dr Chao, Dr Timms, Dr Steadman and Mr Emerson. As regards the background evidence concerning available mental health facilities in Angola, there is a World Health Organisation Mental Health Atlas for 2005 extracted at page 124 of the appellant’s bundle. This notes the absence of a mental health policy. There is a National Mental Health Programme and a National Therapeutic Drug Policy/Essential List of Drugs is present. There are no budget allocations for mental health and details concerning expenditure on mental health are not available. The primary source of mental health financing is out of pocket expenditure by the patient or family. Angola has disability benefits for people with mental disorders. Mental health is not part of the primary healthcare system and acute treatment of severe mental disorders is not available at the primary level. There is no facility in the primary level due to the lack of a mental health policy. Regular training of primary care professionals is not carried out in the field of mental health. There are no community care facilities for patients with mental disorders, due to a lack of training of personnel. NGOs are involved with mental health in the country and they are mainly involved in advocacy and rehabilitation. It appears from the evidence that there are no psychiatrists and there is a total of 0.13 psychiatric beds per 10,000 of the population. There are no psychologists. There is reference to a number of therapeutic drugs which are available, and there is no mention of Mirtazapine or Olanzapine in that list.
46. There is an updated Mental Health Atlas for Angola from the World Health Organisation of 2011. Although there is not an officially approved mental health policy, a mental health plan exists and was approved recently and revised in 2010. This includes time lines for the implementation of the mental health plan and a funding allocation for the implementation of half or more of the items in the mental health plan. Mental health and mental hospital expenditures by the Government Health Department/Ministry are not available. As regards mental healthcare delivery, prescription regulations authorise primary healthcare doctors and nurses to prescribe and/or to continue prescription of psycho-therapeutic medicines but with restrictions. The majority of primary healthcare doctors and nurses have received official in-service training on mental health within the last five years. As regards mental health services, the figures show quite a lot of unknowns, but there are two mental health outpatient facilities, two mental hospitals and five beds in mental hospitals. There are 0.02 psychiatrists per 100,000 of the population, .05 medical doctors not specialised in psychiatry, 0.61 nurses, 0.03 psychologists. There are 0.01 social workers and 0.01 occupational therapists and 0.8 other health workers.
47. Mr Norton referred also to a document in his bundle at page 853 which appears to be from an Angolan press organisation and refers to the casualty section of the Luanda Psychiatric Hospital receiving 90 to 100 patients daily. It also says that about 150 people are treated every day in the outpatients section. This is dated 23 December 2011. At page 857 of the bundle is a list of pharmacies in Luanda. The Wikipedia Report on Olanzapine does not make it clear whether Olanzapine is available in Angola.
48. There is a report from Fred Bridgland on various aspects of the appellant’s claim. Mr Bridgland has reported on Angola for more than three decades for a number of organisations including Reuters, the Sunday Telegraph and other newspapers. His report is dated 22 December 2011. He says that access for the general Angolan population to health services is minimal and financing for treatment of mental health fares even worse than physical health. With regard to a report from the 2005 WHO Mental Health Atlas he subsequently confirmed that his views would be no different in light of the 2011 report. He notes the comments of the Bridge UK – Angola UK Angola Charity that most psychiatric patients in Angola have had to endure unbelievably bad conditions. He also quotes remarks of the South African Ambassador to Angola whom he interviewed, who said that according to qualified medical practitioners who know the Angolan public healthcare facilities with whom he had spoken, there was absolutely no chance of the appellant being able to receive the kind of treatment necessary if he suffered from a serious mental health condition. He notes the Home Office Angola Country Report for 2005 as stating that there are no community care facilities for patients with mental conditions and psychiatric cases are often badly treated in Angolan general society. Mr Bridgland says that the appellant would have no recourse to either a mental health service or family support, specialised drugs recommended as necessary to treat the appellant are unlikely to be available through the public health system and would be very expensive through private routes. There is no national suicide prevention policy.
49. I turn to the relevant legal tests. The issue of Article 3 in suicide risk cases was considered by the Court of Appeal in J [2005] EWCA Civ 629. The case involved a Sri Lankan appellant who was said to be a high risk of suicide if returned to Sri Lanka.
50. The Court of Appeal relied on the distinction originally identified in Ullah v Secretary of State for the Home Department [2004] UKHL 26 between “foreign cases” and “domestic cases”. The situation both when the appellant was informed that a final decision to remove him had been made and when he was physically removed by aeroplane would be treated as domestic cases and the situation after arrival in Sri Lanka would be treated on the basis of it being a foreign case. With regard to the latter the relevant test as set out at paragraph 25 of the judgment is “whether there are strong grounds for believing that a person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment”. It is clear from the amplification of the test set out at paragraphs 26 to 31 of the judgment that, among other things, an assessment must be made of the severity of the treatment which the appellant would suffer if removed, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on, the Article 3 threshold is particularly high simply because it is a foreign case and 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, that an Article 3 claim can in principle succeed in a suicide case, in such a 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 and a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide.
51. With regard to domestic cases the above factors are equally applicable except that the concern to avoid or minimise the extraterritorial effect of the ECHR is absent.
52. I consider first the risk of suicide in the United Kingdom. I have set out above the medical evidence in this regard. In this context it is however important to bear in mind that now having been granted bail, the appellant is residing at Woodside Court which is described in the Lambeth Legal Services’ letter of 4 September 2013 as a registered care home with ten beds that specialises in high support to forensic patients with the aim of working towards rehabilitation. It is staffed 24 hours a day by experienced registered mental nurses and support workers who provide a high level and intense support alongside social work input. It is clear also from the evidence that after the suicide attempt in November 2012 in prison the appellant was placed on regular watch. He also has the support of Ms [M] but that must be a lesser matter since he would not be living with her. As I understand the position he will remain at Woodside Court for the foreseeable future where he will enjoy considerable support. Accordingly I conclude that it has not been shown that there is a real risk of the appellant committing suicide in the United Kingdom.
53. As regards the situation while in transit, I consider that concern in this regard can be allayed by appropriate support of medical and immigration authorities on the flight. Any suicide risk that exists can be effectively managed, given the facilities that can be made available for support in the course of a flight: hence I do not accept that it has been shown there is a real risk in that regard either.
54. I turn to risk on return in Angola, bearing in mind the evidence that I have set out above concerning available medical facilities there and the fact that the appellant has nobody to return to there.
55. From the evidence it is clear that the medical facilities available are distinctly limited, but equally they are not non-existent: there are facilities to which the appellant would have access. It is unclear whether he would have access to the specific medication that he is on at the moment but it is clear that medication is available and it has not been shown that the medication available in Angola is such that it would not be able to continue with the medication-based aspect of the treatment he is receiving at the moment. It is not clear what medical support he is in receipt of at the moment besides the medication. Until very recently he had been in custody since last November, as a consequence of breaching his bail conditions, and it can probably be surmised that he has been treated only with medication and not the therapy which was recommended by Dr Katona. During this time he has maintained his relationship with Ms [M]. As I have noted above, it is unclear to what extent that therapeutic need remains in light of the relative age of Dr Katona’s report and follow-up e-mail. To be factored into the equation, as set out at paragraph 30 in J, is the fear of ill-treatment in Angola being found not to be well-founded and that weighs against the risk of removal being in breach of Article 3. Against that is the point at paragraph 31 concerning effective mechanisms to reduce the risk of suicide in Angola. Other than the limited medical support available no evidence has been provided to show that such mechanisms exist.
56. In assessing the claim in this regard I have taken account of the evidence as a whole in the context of the J guidelines. I consider that it has not been shown that there is a real suicide risk in Angola.
57. It is relevant to move on then to consider the situation concerning other aspects of Article 3 and indeed Article 2 of deterioration in the appellant’s mental condition as set out at paragraphs 42 to 54 of Mr Sandell’s skeleton. Again the guidance in J is of clear significance in this regard. I have borne in mind what was said in the medical reports about the impact on the appellant of return above in relation to suicide risk, but it requires also to be considered in terms of broader Article 3 issues, the risk of inhuman or degrading treatment as a person suffering from significant mental health problems returned to a country with limited mental health resources. Again I find the claim in this regard not to be made out. The threshold is clearly a high one, as is clear at paragraph 28 in J because, as is said there, it is a foreign case and again when it is a consequence as in this case of a naturally occurring illness, whether physical or mental. The circumstances that would confront the appellant on return to Angola in light of his mental health problems must be a matter of concern, but I am not persuaded that they cross the Article 3 threshold and accordingly the appeal is dismissed in this regard also.
Article 8
58. I have set out above the evidence and my findings concerning the appellant’s health claim in the context of Article 3. That evidence also forms a part of the Article 8 assessment. In MM (Zimbabwe) [2012] EWCA Civ 279, it was accepted that as had been held in previous cases, it could not be said that Article 8 could never be engaged by health consequences of removal from the United Kingdom if the facts relied upon by the applicant were sufficiently strong. In Razgar Baroness Hale said that it was not easy to think of a foreign healthcare case which would fail under Article 3 but succeed under Article 8. She said that in striking the balance under Article 8(2), only the most compelling humanitarian considerations were likely to prevail over legitimate aims of immigration control or public safety. It was not a matter of comparing the adequacy of the healthcare available in the two relevant countries. The question was whether removal to the foreign country would have a sufficiently adverse effect upon the applicant. As was said by the Tribunal subsequently in Akhalu [2013] UKUT 00400 (IAC), the correct approach is not to leave out of account the issue of difficulty or inability to access healthcare but to recognise that the countervailing public interest in removal will outweigh the consequences for the health of the claimant because of a disparity of healthcare facilities in all but a very few rare cases. Essentially for the reasons set out above in respect of Article 3, I do not consider that this can be said to be one of the very rare cases as referred to by the Tribunal in GS & EO [2012] UKUT 397 (IAC), where an Article 8 claim in such circumstances would succeed where the Article 3 claim does not. As was noted in that decision, in principle the scope of Article 8 is wider than that of Article 3, but it is necessary to weigh the appellant’s health circumstances against the public interest in ensuring that the limited resources of this country’s health service are used to the best effect for the benefit of those for whom they are intended. In my conclusion the weight of the public interest prevails in this case in that regard.
59. The appellant has been in the United Kingdom for some ten years now. I have set out above the circumstances of his claim and conviction. In addition, as is clear from cases such as Farquharson [2013] UKUT 146 (IAC), although the respondent relies on allegations of conduct in proceedings for removal, the same principles apply to proof of conduct in the assessment of risk to the public as in deportation cases, as set out in Bah [2012] UKUT 196 (IAC). It is clear from Farquharson that a criminal charge that has not resulted in a conviction is not a criminal record but the charge may be established as conduct and the relevant documents in respect of this are to be produced in good time to prepare for the appeal. Mr Sandell was content to proceed on the basis of the evidence that was provided, albeit it was later in the day than should have been the case.
60. In this regard it is necessary to consider the witness statements of D C Edis of 15 August and 12 September 2012 and what is set out thereafter concerning a number of incidents.
61. In his statement of 12 September 2012 D C Edis refers to documentation relating to the offending history, profile, criminal behaviour and associates of the appellant. The appellant has one conviction for a sexual offence as detailed above, in 2010, one offence against property, two of theft and kindred offences and one of offences relating to police/courts/prisons.
62. Of the incidents said to go to conduct the first is that of 19 April 2005. The appellant is said to have threatened his then girlfriend with violence. He was arrested for assault but the girlfriend declined to pursue the allegation and did not provide a statement of the incident and said it was the first time this had happened.
63. There was a further incident in respect of the same girlfriend, by now the ex-girlfriend of the appellant, on 9 September 2005. He was said to have broken windows in her flat by throwing stones at them and to have forced his way into the property and assaulted her. His behaviour was such that he was assessed as displaying signs of mental illness and he was sectioned under the Mental Health Act. It transpired that the victim was unwilling to support the police investigations and provide a statement and the case could therefore not be progressed.
64. The next incident was on 1 January 2006 when he was asserted to have raped a woman at his flat. The woman in question had previously been a prostitute. Her file was submitted to the CPS but their opinion was that there was insufficient evidence to charge him.
65. The next incident listed was on 21 October 2007 which involved a claimed assault by the appellant on an ex-girlfriend. He is said to have admitted to the police that he head-butted her. He caused criminal damage in his police cell and was sentenced to fourteen days’ imprisonment for that. The ex-girlfriend did not assist British Transport police officers with their enquiries by refusing to respond to all police requests, and the case could not progress.
66. On 15 March 2007 he was found in possession of a small plastic bag containing herbal cannabis and he received a formal warning for this offence.
67. The next incident was on 5 October 2007 when the appellant was said to have raped a woman in his flat. He claimed that the incident had in fact involved consensual sex. The CPS declined to charge him as they believed there were inconsistencies in the victim’s account.
68. The next incident was on 16 January 2009 when the appellant was said to have sexually assaulted a woman at his address. The evidence seemed to show consent, including her agreeing to have sex with him for cash. Officers believed it was unlikely that a sexual offence had taken place in the circumstances.
69. The next incident was on 25 September 2009 when the appellant was stopped and found to have a small amount of cannabis in his possession and was issued with a caution.
70. The index offence is the one set out above committed on 6 December 2009 when he was prosecuted for sexual assault and other offences.
71. The final incident recorded is one of failing to surrender to custody at the appointed time when he failed to answer police bail. He was fined £50 which he did not pay and he served one day and had a victim surcharge of £15 to pay.
72. With regard to the first incident, I am satisfied that it is more likely than not that this did in fact occur. On the report it can be seen that police noted the girlfriend’s face was swollen and she had a bloodshot eye and she declined to pursue the allegation seemingly on the basis that she said it was the first time that it had happened and she did not want to substantiate it.
73. Likewise I consider the second incident is made out. It is not clear that the police would have understood threats that it is said the appellant made since they were in Portuguese, but it is noted that this caused the victim great stress and she told the police she was afraid and believed he would carry out the threats. The fact that she was subsequently unwilling to support the police investigation does not to my mind show that it has not been established on a balance of probabilities that this occurred.
74. With regard to the third incident, the conclusion of the CPS as I have set out above was that there was insufficient evidence to charge the appellant. The accounts of the appellant and the woman were at variance and it does not seem to me that one can properly conclude that it shows a likelihood that an offence was committed. Likewise the incident of 21 October 2007 appears inconclusive.
75. Again with the incident of 5 October 2007 the CPS did not charge the appellant as they believed there were inconsistencies in the victim’s account. Accordingly I think it would be wrong to consider that as made out. However the incident of 21 October 2007 is, in my judgement, made out, bearing in mind the admission the appellant is said to have made. The incident of 16 January 2009 was one where the officers believed it unlikely a sexual offence had taken place and again I consider it is inconclusive.
76. Taking these matters together there is evidence of criminal conduct by the appellant other than in relation to the offences with which he was prosecuted and found guilty. These are matters to be placed into the balance accordingly. It is relevant however to bear in mind Mr Sandell’s point that these incidents occurred, at a time when the appellant was suffering from significant mental health problems and that his behaviour subsequent to the index offence has been unblemished other than his breach of bail conditions in respect of staying at Ms [M]’s home.
77. With regard to the claimed family life I regard this as being relatively tenuous. It is said that the appellant and Ms [M] have been a couple for a year, though for a significant period of time that relationship has had to exist despite the couple being separated due to a breach of the bail conditions to which I have referred above which led to the appellant being returned to custody in November 2012. In her witness statement Ms [M] says that the appellant gets on very well with the three of her children he has met and is especially close to her 15 year old son. She says that she still has confidence in the appellant and trusts him and has been a positive influence on her life and her children love him.
78. In his statement the appellant refers to having formed an enduring relationship with Ms [M] and that he had spent a handful of nights at her place. He says the thing that really changed him was that she and her son both wrote letters to him when they heard about his suicide attempt in prison and he says the thought of being with her and the support she has provided has made a difference to his mind. She has been to visit him every week since he was recalled and normally came twice a week. He said he felt his mental health was better at the moment because of his relationship with her and the support she provides him with.
79. I do not consider the relationship between the appellant and Ms [M] can be properly described as being family life. She is part of his private life as are her children. It is relevant to mention also the fact that she stood surety for him in his bail application and also has referred to the fact that he provides her with a lot of emotional support and she hopes they will be able to live together in the future. It is the case at the moment that he is living in separate accommodation but I anticipate that they will be meeting when they can now he is out on bail.
80. Otherwise the appellant’s private life consists of the amount of time he has spent in the United Kingdom and activities he has formed part of during that time. Those include membership of the Mosaic Clubhouse Community for a number of years as attested to by Beverley Randell in a letter of 26 June 2013. She says that he has been committed to the service and delivered a peer support group and ran a creative writing course and they would be more than happy to welcome him back to their community. A supporting letter to the same effect was written by Jonathan Morally of the Mosaic Clubhouse, noting that the appellant attends on a regular basis and contributes towards their community by applying himself to all the work there and typically tends to work in all their units. He says that he is a real asset with loads of friends and social networks. A further letter of support from the same organisation comes from Nina Yalimiul who talks about the appellant beginning the creative writing workshop there and involving many members and using media.
81. I return to the issue of the public interest in deportation. Reliance is placed by the respondent on the prevention of crime and disorder in this regard. Clearly of particular significance here is the index offence committed by the appellant in 2010. Part of the concern in this regard must be the fact that he did not accept guilt and that is of relevance in assessing future risk. I have set out above my conclusions in relation to the other allegations. I agree with Mr Sandell that this evidence is not determinative in respect of Article 8 but nevertheless I consider it to be of relevance. I bear in mind also that the trial judge was persuaded that the appellant was somebody who might not have committed the offences but for his underlying mental difficulties. She also accepted that he was not “dangerous” for the purposes of the Criminal Justice Act 2003. She did not recommend deportation. It is the case there has been no subsequent offending and he has spent over a year on licence. His probation officer described him as attending weekly appointments without fail, and working through offending behaviour work trying to use his time as constructively as possible. It is relevant to note the breach of licence conditions as set out above. This can properly be described in a sense by Mr Sandell as a victimless crime, nevertheless despite him telling the authorities what was happening it was a breach of the conditions and again is not without relevance.
82. There is a clear interest in the maintenance of effective immigration control. The appellant has spent a number of years in this country unlawfully and had no right to be here at the time when his relationship with Ms [M] had developed. As so often the issue comes down to that of proportionality. I do not agree with the submission made by Mr Sandell that the public interest in the appellant’s deportation is not high. There must be a clear interest in the public interest in deporting a person who has committed a serious sexual offence, remains in denial as to that offence and who has engaged in conduct on other occasions which indicates in my view on balance that offences of the kind set out above were committed. I do not derive much benefit from the authorities set out at paragraph 93 of the skeleton. Each case must be determined on the basis of its own facts. In my view the public interest in the maintenance of an effective immigration system, the need to deter potential offenders, and the prevention of crime and disorder outweigh the private life interests in this case, taking all of them as a whole, such as to lead me to conclude that the appellant’s removal would not be disproportionate to his Article 8 rights.
83. This appeal is dismissed on all grounds.

Signed Date

Upper Tribunal Judge Allen