DA/01586/2014

• Status of case: Unreported
• Hearing date: 22 Nov 2016
• Promulgation date: 6 Feb 2017
• Publication date: 1 Oct 2021
• Last updated on: 1 Oct 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01586/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 November 2016
On 06 February 2017



Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

T T
(ANONYMITY DIRECTION MADE)
Appellant


and



THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Miss R Chapman, Counsel, instructed by Wilson Solicitors
For the Respondent: Mr T Melvin, Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of Designated Judge of the First-tier Tribunal Peart promulgated on 12 July 2016 dismissing his appeal against the decision of the Respondent's decision of 24 July 2014 not to revoke a deportation order made against him on 21 January 2008.

Anonymity Direction
2. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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.
Introduction
3. The appellant is a citizen of Sri Lanka, of Tamil ethnicity. He suffers from paranoid schizophrenia which has resulted in him requiring in-patient treatment on a number of occasions on account of relapses which occur from time to time. That is in addition to the two prolonged stays in hospital pursuant to orders made under sections 37 and 41 of the Mental Health Act 1983 subsequent to convictions in 2002 and 2004 for ABH and GBH respectively.
4. His case is that he is at risk on return of ill-treatment of sufficient severity to engage article 3 of the Human Rights Convention on the grounds that:
(i) He falls within the categories of those at risk as identified in GJ & Ors (Sri Lanka) (post-civil war returnees) CG [2013] UKUT00319; alternatively,
(ii) Owing to the manifestation of his mental illness, he is at real risk of being detained, and following GJ at [168] and the headnote at [(4)] he faces serious ill-treatment or torture; and, alternatively,
(iii) His mental health is such, and the lack of facilities on return to Sri Lanka is such that article 3 is breached; further, that he is at risk of detention in Sri Lanka under mental health provisions, and that the conditions under which he would be held would violate article 3.
5. For the reasons set out at length in the refusal letter, which it is unnecessary to repeat here, the respondent did not accept that deporting the appellant to Sri Lanka would be in breach of article 3.
6. There is, as is noted in the three earlier decisions in this appeal, a long history to this case. That is not in dispute, and there is little purpose in rehearsing it again here save in setting out the history of this appeal; an earlier asylum appeal was dismissed in 2003 and an appeal against a decision to make a deportation order was dismissed in 2007.
7. This appeal first came before First-tier Tribunal Judge Youngerwood who, in a decision promulgated on 24 June 2015, dismissed the appeal finding, amongst other matter that:
(i) The appellant did not fall within the categories of those identified in GJ as being at risk [21];
(ii) There was no real risk (as opposed to a speculative risk) that he would be detained because of his mental problems, and be subjected to severe ill-treatment in detention [22], the observation in GJ at [168] that those who were detained were at risk of torture being confined to those fell within the risk categories identified in GJ.
(iii) This was not a deathbed or critical case scenario [31]; that the appellant would be able to access the same treatment as in the UK, and that the in-patient treatment facilities had improved;
(iv) This case was not exceptional, and article 3 would not be breached by his removal.
8. The appellant appealed with permission to the Upper Tribunal on four grounds, identified by it in its determination at [21]:
Ground 1 - the First-tier Tribunal Judge's interpretation of the application of Article 3 to a health case was too narrow and incorrect;
Ground 2 - the First-tier Tribunal Judge proceeded upon a misunderstanding of all aspect of Dr Smith's report and failed to take account of the guidance in the case of GJ;
Ground 3 - the First-tier Tribunal Judge had had erred in his interpretation of what had been said by the Upper Tribunal in paragraph 168 of the decision in GJ;
Ground 4 - the First-tier Tribunal Judge had erred in his interpretation of paragraph 398 and 399A of the Immigration Rules.
9. The Upper Tribunal found no merit in grounds 2 - 4, concluding in particular at [24] that the concession made in GJ at [168] in context "makes it plain that the concession was to the effect that detained individuals within a certain category remained at risk. That category was those detained under the Prevention of Terrorism Act, such as members of the LTTE who had been undergoing a re-education process known as "rehabilitation" and had found themselves detained for lengthy periods without judicial supervision."
10. The Upper Tribunal did, however, find merit in ground 1, remitting the decision to the First-tier Tribunal for rehearing. The terms of that remittal are not set out in the decision nor are there directions made pursuant to section 12 (3) of the Tribunals, Courts and Enforcement Act 2007, although there was a power to do so.
11. On remittal to the First-tier Tribunal, the appeal came before judge Peart who, at [22] - [24] stated:
22. Ms Chapman asked me to consider the appellant's vulnerability and risk on return in the event that he is interviewed and detained. This was explored in some detail in the decision of Judge Youngerwood at [221 and referred to in the Upper Tribunal decision promulgated on 21 December 2015 finding the error of law only with regard to ground 1. Grounds 2, 3 and 4 were found to have no merit. The circumstances relied on in at [1681 made it plain that the concession that anyone detained in Sri Lanka would be at risk of persecution was to the effect that detained individuals within a certain category remained at risk; that category did not include the appellant. See the decision of Judge Youngerwood at [221].
23. I accept that because of the manner in which the appellant might present due to his illness, in the event that he is apprehended by the Sri Lankan authorities for any reason, stopped at random for checks or interview of any kind, a speculative outcome might be that he is temporarily detained. I do not accept that such a speculative outcome reaches the high Article 3 threshold.
24. Insofar as the appellant's Article 3 claim comprises a claim for protection because of the fear of ill-treatment in Sri Lanka, I find that was comprehensively addressed in the decision of Judge Youngerwood and the error of law decision of the Upper Tribunal panel. I turn to the other aspect of the appellant's Article 3 claim that he cannot return to Sri Lanka because of his psychiatric illness and the detrimental effect that return would have upon him.
12. In addition, the judge found that:
(i) This was not a deathbed case, unlike that in N [20015] UKHL 31 [25];
(ii) There is provision for psychiatric treatment in Sri Lanka, albeit no to the standard available in the United Kingdom [44], [49];
(iii) The appellant's parents are elderly, and not in the best of health but there was no suggestion that that appellant's siblings would be unable or unwilling to support him as they had supported their parents, and that there was not credible evidence to suggest that the appellant's mother would not want or be able to care for him, ensuring his compliance with his drug regime, and so on [46]; and,
(iv) It would not be unreasonable to expect him to relocate to Colombo with the assistance of family to access better treatment there.
13. The judge then dismissed the appeal on article 3 and 8 grounds.
14. The appellant sought permission to appeal on the grounds that in the de novo hearing before the First-tier Tribunal that the judge erred:
(i) In that, having found that the appellant would be at risk of detention if apprehended by the Sri Lankan authorities for any reason [23], due to the manner in which he may present on account of his illness, he then applied [23] too high a threshold, the test here being serious possibility, following Aswat v UK [2012] ECHR 473; and, that there are difficulties in him accessing treatment as a Tamil;
(ii) In finding, in the absence of any evidence, that the appellant's family would rally round to support him [46]; a finding which was contrary to the appellant's brothers evidence, there being no explanation for rejecting the latter;
(iii) In concluding that the National Institute of Mental Health in Colombo would have appropriate expertise to treat the appellant [47], contrary to the evidence of the appellant's psychiatrist and the findings in GJ at [456]
15. On 11 August 2016, Designated Judge Murray granted permission on all grounds.
16. It was on that basis that the appeal came before me on 29 September 2016 when I found that the decision of the First-tier Tribunal involved the making of an error of law and I set it aside. The reasons for that decision are set out in the annex to this decision. I also gave directions as to how this matter was to proceed.
17. The primary issue in remaking this appeal is whether there is a real risk that the Appellant will be detained if returned to Sri Lanka. It is submitted on his behalf that this is likely for a number of reasons:-
(i) due to a relapse and a display of erratic, disturbing or violent behaviour resulting in detention at a police station rather than hospitalisation;
(ii) due to the appellant's obsessive compulsive disorder ("OCD");
(iii) as a Tamil returnee;
(iv) on account of a real or imputed association of the LTTE given that several family members were involved with that organisation;
(v) on account of time spent in the United Kingdom.
18. It is further submitted that, as Sri Lanka has a long and proven history of routine torture as an habitual practice that the appellant is at risk of such treatment, the risk being heightened on account of his ethnicity and on account of the stigma attached to those mental health problems. It is submitted also that the appellant may suffer a violent psychotic episode if detained, heightening the risk of ill-treatment at the hands of the police.
19. Further, and in the alternative, it is submitted that the appellant requires a very high level of specialist care which is not available in Sri Lanka; and, that the absence of such care exacerbates the likelihood of a relapse, subsequent detention and the risk of violent mistreatment and torture.
20. The respondent submits that the appellant does not fall within the risk categories set out in the country guidance there being little evidence that Tamils per se face danger on return and that although the appellant has had a number of relapses over the past decade, the chances of this are insufficient to show he would become violent such that he faces detention by the police and subsequent ill-treatment nor is it accepted that the stigmatisation of discrimination towards those with mental health problems is such to indicate that the appellant faces a real risk.
21. It is not accepted that the appellant's ethnicity would increase any risk to him nor is it accepted that his family is associated with the LTTE or, even if it did, this would increase the risk to him, GJ indicating that nearly all the Tamils have some family links with the LTTE which is not without more increase to the risk to them. It is not accepted either that the appellant would be at risk from a visit from the police as he did not fall within the risk categories.
22. The respondent did not accept, in considering the chances of relapse if the appellant's extended family were unable to assist him on return.
23. The respondent did not accept the expert report of Dr David Rampton noting that there was only one example quoted of somebody with mental health problems being detained and beaten by the security forces and most of the evidence relied upon is out of date. It is submitted also that the Upper Tribunal in GJ had significant doubts about Dr Rampton's evidence.
24. An evaluation of the appellant's mental health is central to the determination in this case. It is not disputed that the appellant has serious mental health problems there is no effective challenge to the diagnosis of Dr Chiedu Obuaya set out in his report of 15 June 2016, building on his original report of 17 March 2015. The doctor states in his report as follows:-
"6.1 Diagnosis and Treatment
6.2 In my original report I made a diagnosis of paranoid schizophrenia as characterised in the 10th revision of the International Classification of Diseases by the World Health Organisation (ICD10 WHO 1992).
6.3 Mr T still fulfils the diagnostic criteria for paranoid schizophrenia. He has in the past twelve months suffered a relapse of his psychosis, necessitating a brief inpatient psychiatric admission.
6.4 I base this opinion on my objective examination of Mr T's mental state, my previous knowledge of his psychiatric history, my perusal of his medical records and the collateral history provided by staff at his care home.
6.5 Mr T's mental state is relatively stable, although there are some residual psychotic symptoms evident (4.12). Schizophrenia is by its nature relapsing and remitting. I note that the relapse in December 2015 occurred in spite of his concordance at the time with his prescribed psychotropic medication.
6.6 This highlights the role that psychosocial factors can play in precipitating relapses of psychosis. Whilst it would be speculative to attribute the relapse with any degree of certainty to Mr T's unsuccessful asylum claim of 2015, I note the absence of any other apparent stresses that may have triggered the relapse. This suggests that the ongoing uncertainty about his immigration status may have plausibly been a factor.
6.7 Mr T's current treatment consists of psychotropic medication and psychosocial interventions. The former consists of the oral anti-psychotic drugs clozapine and amisulpride, as well as the anti-depressant drug sertraline. Psychosocial support is provided in the care home and includes direct supervision by staff, engagement in one-to-one sessions and the provision of structured daytime activities."
It is sensible at this point to observe that the recent summary of recent progress includes at[4.5] that the appellant had had to be returned to the home in which he stays by the police in which he damaged a medicine cabinet in his room earlier [4.6] and that he had expressed delusional beliefs that people could read his mind; that in autumn 2015 he had engaged in an increasing degree in ritualised behaviour, an indicator for relapse; that he had been informally re-admitted as an inpatient at Chase Farm Hospital showing symptoms of psychosis despite no evidence that he had not complied with his medication and that whilst his mental state had remained relatively stable, the staff had noticed that he was responding to unseen stimuli, indicative of psychosis and that he engages in compulsive rituals such as repeatedly opening and closing doors and chanting which can be managed sensitively by the staff.
25. Commenting on the prognosis, Dr Obuaya states as follows:-
"7.3 The medication (which has been optimised) has been effective in treating his psychosis (and compulsive rituals) and should, in the longer term, reduce the risk of relapse, as well as harm to Mr T and others.
7.4 Whilst Mr T's symptomatic response to treatment has been very good, it is not possible to predict when or under what circumstances future episodes will occur. However, I would emphasise that future relapses are essentially inevitable. His functioning is reasonably good when his symptoms are in partial or full remission, although he still requires a high level of supervision from experienced care staff and is not able to live independently.
7.5 At his current level of functioning, Mr T's prognosis would thus be moderate and his illness would most likely follow a relapsing and remitting course. He is likely to need at least twelve to eighteen months of stability before a move to an independent accommodation is considered. At present, were he to move to a more independent setting, the risk of relapse would increase significantly and the prognosis would be worse.
7.6 Mr T has a number of good prognostic factors including his adequate level of insight into his diagnosis and his characteristic symptoms, his reasonably good level of functioning and his compliance with his prescribed psychotropic medication. Poorer prognostic factors include his limited support network and social isolation."
26. The doctor also observes that the appellant will need lifelong treatment with the anti-psychotic drugs which have been prescribed.
27. Dr Obuaya observes also, in connection with the fact that the observation that psychiatric care in Sri Lanka is not of a high standard that without the current level of care he receives his mental state is likely to deteriorate and the periods of relapse are likely to be longer and more severe. It is also noted [9.11] that any form of perceived adversity or psychosocial stress would increase the risk of Mr T relapsing to a moderate degree. This would also include the process of relocating to Sri Lanka and adjusting to life there without the support currently provided.
28. Additional information about the appellant's condition is provided in a statement of Evelyn Yusufu, currently the manager of the care home in which the appellant resides. This is a rehabilitation unit where those with mental issues are taught the basic steps towards independent living. The appellant is said to be able to do the basics [3] including cooking and he also has one-to-one sessions with a member of staff every day. It is also said that he exhibits usually around 3pm onwards each day OCD in opening and closing doors and if he is not allowed to do so becomes agitated and can get aggressive. The issue of self-medication has been put on hold [6] and reference again made to a relapse in January 2016 [8]. It is noted at [9] that stepping him down to supported housing with 24 hour staff is not appropriate though this might be possible in the future. Miss Yusufu has concerns as to what could happen to the Appellant if his structure were to be disrupted and his removal to Sri Lanka may cause deterioration and given his history and aggression and the fact that he has had physical fights with other residents she is concerned as to what reactions would be to his behaviour in Sri Lanka.
29. I have considered also the statement of Josephine Lynch who was the previous manager of the Maison Moti Care Home. This is broadly consistent with the more recent report of Miss Yusufu and in her description of the appellant's behaviour. A number of incidents of aggression and destructive behaviour are described, similarly, the earlier report of Dr Obuaya dated 17 March 2015. This does, however, give more detail of other previous relapses and instability in the appellant's mental state.
30. Viewing this evidence as a whole, I consider that there is a real risk of the appellant relapsing on return to Sri Lanka. I find that there is a real risk of a relapse even if, as has happened in the past in the United Kingdom, he were to receive optimal treatment; that is what has happened in the past on an almost annual basis. I consider also that, as the medical evidence indicates, there is a real risk that the change in the appellant's circumstances occasioned by removal to Sri Lanka is likely to exacerbate the risk of relapse given the change from the surroundings with which he is familiar.
31. Whilst I note the respondent's submission that the appellant's parents, mother and/or extended family would be able to assist and support him, I find this is unsupported by the evidence when properly analysed.
32. For the reasons given in the attached error of law decision, I am not satisfied that finding that there was no credible evidence to suggest that the appellant's mother will not want to or be unable to care for the appellant is sustainable. The judge's findings at [46] are speculative, and failed properly to take into account the account of the appellant's brother who was otherwise believed. Given the stigma attached to mental illness in Sri Lanka even now, despite the improvement since the experience of many cases of PTSD after the Tsunami, it is likely that extended family would not want to help, not least because of how the appellant's mental ill-health manifests itself.
33. Given the particular condition of this appellant, and the challenges he poses even to experienced professionals in a specialist hostel, and who were unable to prevent the deterioration noted by Dr Obuaya at [4.7], I consider that the appellant's elderly mother would not be able to manage him or care for him, however much she might wish to do so. She is herself elderly and in poor health.
34. The level of support from mental health professionals provided at Maison Moti cannot be compared with the support of family which could be provided. Whilst it is clear that, as Mr Melvin submits, the appellant is compliant with his drug regime and supervision and is able to cook for himself, do his washing and keep his room clean, that is while he receives support from professionals closely monitoring his situation. He is in an environment where there is professional support 24 hours a day. It is to be noted also that the circumstances are such that he needs permission to leave the property and that it is locked. That is clear from the reports referred to above from the current and former managers.
35. It is also evident that despite this high level of intervention that the appellant has nonetheless regularly relapsed and the OCD which manifests itself on a daily basis needs careful management. Further, a common thread through all the medical evidence is that the appellant becomes violent and aggressive when he relapses or when attempts are made to prevent him carrying out the behaviours such as opening and shutting the doors in which his OCD manifests itself.
36. While I bear in mind Miss Chapman's submission that the OCD may continue in Sri Lanka, I consider that it would be entirely speculative to consider how in an entirely different environment this would manifest itself, if at all; there is insufficient medical evidence to support the submission.
37. I consider it unlikely given the lack of facilities available for inpatient mental health care in Sri Lanka, that the appellant would be taken into inpatient care at least initially, nor is there sufficient evidence that he would be admitted if he sought voluntary admission. Further, for the reasons set out above, it is unrealistic, I consider, to expect the appellant's elderly mother to be able to provide him with the necessary support or to control him when he relapses or becomes aggressive. I am not satisfied that there are any other relatives who would be able to support him.
38. What then is the risk of the appellant being taken into detention on return to Sri Lanka? For the reasons set out above, given the appellant's history, and the particular manner in which his illness manifests itself, and cannot be controlled, I consider that it is likely that the appellant will after arrival suffer a relapse and become aggressive or violent owing to his mental illness.
39. While I accept that, as the medical evidence shows, he has some insight into his illness, there is no indication that this is such that he has sought, even in the context of his current highly-supervised care regime, additional help when he has begun to relapse. On the contrary. In his report, Dr Obuaya noted [4.7] that on admission after a deterioration, the appellant showed little insight into the deterioration in his mental state, or removes for his threatening behaviour prior to admission. It is also of note that this admission was as a result of a police response to his behaviour [4.6]. It is therefore, given past behaviour, unlikely that the applicant would seek help prior to any serious deterioration in his mental health.
40. It is thus likely that the appellant will at some point behave in an aberrant manner which is likely to cause alarm or an apprehension or fear.
41. There is, as Mr Melvin submitted, little evidence specific to how the police react to those with mental health problems. The expert, Dr David Rampton, was able to identify only one case in which a mentally ill person was ill-treated by the police and whilst Mr Melvin is correct to submit that one incident is not indicative that all persons with mental health problems face violent beatings by the authorities, that is in reality to ask the wrong question. The question is how are the police likely to react to a Tamil man being violent and/or aggressive when encountered and to how they treat those detained.
42. With regard to the risks of the appellant being detained by the police I have had regard to the report of Dr David Rampton produced by the appellant. Whilst I note the submissions from Mr Melvin that Dr Rampton's evidence was not to be accepted without caution, given what was said in GJ at [240] to [241] those concerns do not, I consider apply to what he states in his report at [4.2]:

4.2 It is also highly likely that violent or even erratic behaviour will attract the attention of the police in Sri Lanka, as it has done in the UK. Sri Lanka has a considerable security force presence, including the police, with State forces having undergone significant expansion under the Rajapaksa-led government. The Sri Lankan Police force has 16 divisions and a working force of over 89,000.10 This is an approximate ratio of 1ce service worker for every 230 citizens, stronger in ratio to population size than the police-to citizen ratio of the combined Police services of England and Wales.11 Given also that there is evidence from science and social science sources that individuals suffering from mental health illnesses in Sri Lanka are stigmatised and that there is a lack of sensitivity, if not stigmatisation of the mentally ill,12 combined with the sparse and rudimentary availability of mental health workers in the country, 13 it is highly likely that the Police would intervene and a possible breach of the peace caused by [the appellant's] illness with detention or custody at a Police Station rather than hospitalisation being a likely recourse. As has been acknowledged in a Sri Lankan Ministry of Health and World Health Organisation, report, in Sri Lanka "violence has always been considered a police, legal, personal, or family problem and not as a health problem that needs detailed epidemiological analysis." 14. The same report goes on to acknowledge the "gross inadequacy" of mental health provision in Sir Lanka and the urgent need for a multi-stakeholder approach that goes beyond the tendency to respond to violence through family or police frameworks. 15 All of this indicates a likelihood that the Police rather than another public service would deal with a mentally ill person undergoing behavioural problems.
43. It is clear from the extensive footnotes which are longer than the cited passage, that these conclusions are properly reasoned and supported by evidence. I am satisfied also that, in this context, violence being seen as a family problem is a reference to domestic violence.
44. I consider that, in the circumstances, the appellant's behaviour is likely to attract the attention of the police, both by its nature, and in the particular circumstances where he does not have family support or connections with the community. I am satisfied that it is, as Dr Rampton opines, likely that the police would intervene and would detain the appellant and that the police would more likely to be involved than another public service is to an extent confirmed by the lack of availability of help in mental ill health in Sri Lanka.
45. There is insufficient indication that it would be immediately apparent to the police that the appellant is suffering from any mental ill health nor is it likely, I consider, that the police would treat somebody whose aggression or violence flows from mental health problems differently from somebody who did not have those problems; they would not necessarily be apparent nor, were the person being aggressive or violent and thereby creating a risk for others, be likely to be treated differently from any other such person.
46. I note also that there continues to be a significant stigma attached to mental health albeit the evidence indicating that this has lessened in the light of the numbers of people who have acquired PTSD and other mental difficulties in the aftermath of the Tsunami. With regard to the risks attendant on those returning, I consider that, although the situation has changed to a degree since the change in government in Sri Lanka, there is insufficient indication to show that I should depart from the guidance given in GJ.
47. I do not consider that the appellant submits that he is at risk of persecution as a Tamil per se or that Tamils are simply by virtue of being Tamils at risk of detention; the submission to that effect made by Mr Melvin is, I consider, to misrepresent the case which is that as a result of a number of cumulative risks, the appellant is at risk of ill-treatment of sufficient severity to engage Article 3. In any event this submission does not focus on the issue in this case which is the evidence that torture has been used as a routine practice against those suspected of major and minor crimes (see Dr Rampton's report at [5.0]) which is supported by evidence from Human Rights Watch and other sources (see note 21). None of that evidence was addressed by the respondent nor were submissions made about it.
48. It would be apparent to the police that the appellant has recently returned from the United Kingdom. He is at the very least likely to be asked where he lives and where he has been and any electronic records consulted will indicate a recent return to Sri Lanka. Any ID card would have been newly issued. That does not, however, in my view materially increase the risk of ill-treatment but I do note that there is considerable evidence of discrimination against Tamils in Sri Lanka. It is notable also, from the respondent's own country information and guidance on Tamil separatism, version 3, August 2006 at 2.3.3 the security personnel continue to be responsible for the detention of civilians accused of LTTE connections in 2015; and at 3.1.4 that if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection. There is also evidence at section 6.1.8, 6.1.9 of continuing harassment of Tamils albeit not reaching the threshold as to amount to persecution. It is also noted in section 6.2 societal attitudes discrimination continues. At section 6.6 it is noted that several sources indicate the continuation of torture against criminal suspects, not just against suspected LTTE members or supporters albeit that abductions are less common [6.6.6]. I also note the evidence that the appellant's family were involved with the LTTE, this was at some point considerable distance in the past, the elder brother having fled in 1989, claiming asylum in Norway and there is no indication of any adverse interest in the family since 2000.
49. While I have considered the report from Freedom of Torture dated August 2015 I do not consider that it adds materially to the background evidence set out above or in GJ. In any event, it is concerned primarily with those who have come initially at least to the adverse attention of the authorities on account of links perceived or otherwise with the LTTE. That is of little assistance here where, for the reasons set out above, I consider that any adverse attention is more likely to flow from the manifestations of the appellant's mental ill health.
50. Accordingly, I am satisfied that there is a real risk of the appellant relapsing and that this will result in behaviour which will result in his arrest and detention. I am satisfied also that if detained he is, on the basis of the evidence before me at risk of being ill-treated and/or subjected to torture by occasioning a breach of Article 3. On that basis alone given that this ill-treatment would flow directly from the actions on the part of the state.
51. Having reached these findings of fact it is unnecessary for me to consider whether, were the appellant not at risk of ill-treatment at the hands of the state, the conditions in which he would be treated for his psychiatric problems would engage Article 3. I consider that in any event they would not. Whilst it is clear that the facilities available in Sri Lanka are inadequate there is nonetheless some facilities available. The drugs which were prescribed to the appellant are available; there is inpatient treatment available, albeit to a restricted degree but in reality given the very high threshold identified in N, I do not consider that it could in any way be argued that the any lack of treatment that the appellant would incur or the subsequent consequences of his relapse would in and of themselves amount to a breach of Article 3. The reason that I have found a potential breach in this case is because of the treatment that would be meted out to him by the state, that is by the police and/or the army, not through any inaction or failure to provide treatment on their part.
52. For the reasons set out above, the appellant has satisfied me that appeal must be allowed as he has satisfied me that the immigration decision made was wrong on the basis of section 84 (1) (g) of the 2002 Act.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remake the decision by allowing the appeal.
3. Attention is drawn to the anonymity order made in this case, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
4. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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 Date: 1 February 2017

Upper Tribunal Judge Rintoul





ANNEX - ERROR OF LAW DECISION


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01586/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016


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Before

UPPER TRIBUNAL JUDGE RINTOUL
Between

t t
(ANONYMITY ORDER MADE)
Appellant


and



secretary of state for the home department
Claimant


Representation:

For the Appellant: Ms R Chapman, instructed by Wilsons solicitors
For the Respondent: Mr Kotas, Presenting Officer


DECISION ON ERROR OF LAW AND REASONS
1. The appellant appeals with permission against the decision of Designated First-tier Tribunal Judge Peart promulgated on 12 July 2016 dismissing his appeal against the decision of the respondent's decision of 24 July 2014 not to revoke a deportation order made against him on 21 January 2008.
2. The appellant is a citizen of Sri Lanka, of Tamil ethnicity. He suffers from paranoid schizophrenia which has resulted in him requiring in-patient treatment on a number of occasions on account of relapses which occur from time to time. That is in addition to the two prolonged stays in hospital pursuant to orders made under sections 37 and 41 of the Mental Health Act 1983 subsequent to convictions in 2002 and 2004 for ABH and GBH respectively.
3. His case is that he is at risk on return of ill-treatment of sufficient severity to engage article 3 of the Human Rights Convention on the grounds that:
(i) He falls within the categories of those at risk as identified in GJ & Ors (Sri Lanka) (post-civil war returnees) CG [2013] UKUT00319; alternatively,
(ii) Owing to the manifestation of his mental illness, he is at real risk of being detained, and following GJ at [168] and the headnote at [(4)] he faces serious ill-treatment or torture; and, alternatively,
(iii) His mental health is such, and the lack of facilities on return to Sri Lanka is such that article 3 is breached; further, that he is at risk of detention in Sri Lanka under mental health provisions, and that the conditions under which he would be held would violate article 3.
4. For the reasons set out at length in the refusal letter, which it is unnecessary to repeat here, the respondent did not accept that deporting the appellant to Sri Lanka would be in breach of article 3.
5. There is, as is noted in the three earlier decisions in this appeal, a long history to this case. That is not in dispute, and there is little purpose in rehearsing it again here save in setting out the history of this appeal; an earlier asylum appeal was dismissed in 2003 and an appeal against a decision to make a deportation order was dismissed in 2007.
6. This appeal first came before First-tier Tribunal Judge Youngerwood who, in a decision promulgated on 24 June 2015, dismissed the appeal finding, amongst other matter that:
(i) The appellant did not fall within the categories of those identified in GJ as being at risk [21];
(ii) There was no real risk (as opposed to a speculative risk) that he would be detained because of his mental problems, and be subjected to severe ill-treatment in detention [22], the observation in GJ at [168] that those who were detained were at risk of torture being confined to those fell within the risk categories identified in GJ.
(iii) This was not a deathbed or critical case scenario [31]; that the appellant would be able to access the same treatment as in the UK, and that the in-patient treatment facilities had improved;
(iv) This case was not exceptional, and article 3 would not be breached by his removal.
7. The appellant appealed with permission to the Upper Tribunal on four grounds, identified by it in its determination at [21]:
Ground 1 - the First-tier Tribunal Judge's interpretation of the application of Article 3 to a health case was too narrow and incorrect;
Ground 2 - the First-tier Tribunal Judge proceeded upon a misunderstanding of all aspect of Dr Smith's report and failed to take account of the guidance in the case of GJ;
Ground 3 - the First-tier Tribunal Judge had had erred in his interpretation of what had been said by the Upper Tribunal in paragraph 168 of the decision in GJ;
Ground 4 - the First-tier Tribunal Judge had erred in his interpretation of paragraph 398 and 399A of the Immigration Rules.
8. The Upper Tribunal found no merit in grounds 2 - 4, concluding in particular at [24] that the concession made in GJ at [168] in context "makes it plain that the concession was to the effect that detained individuals within a certain category remained at risk. That category was those detained under the Prevention of Terrorism Act, such as members of the LTTE who had been undergoing a re-education process known as "rehabilitation" and had found themselves detained for lengthy periods without judicial supervision."
9. The Upper Tribunal did, however, find merit in ground 1, remitting the decision to the First-tier Tribunal for rehearing. The terms of that remittal are not set out in the decision nor are there directions made pursuant to section 12 (3) of the Tribunals, Courts and Enforcement Act 2007, although there was a power to do so.
10. On remittal to the First-tier Tribunal, the appeal came before judge Peart who, at [22] - [24] stated:
22. Ms Chapman asked me to consider the appellant's vulnerability and risk on return in the event that he is interviewed and detained. This was explored in some detail in the decision of Judge Youngerwood at [221 and referred to in the Upper Tribunal decision promulgated on 21 December 2015 finding the error of law only with regard to ground 1. Grounds 2, 3 and 4 were found to have no merit. The circumstances relied on in at [1681 made it plain that the concession that anyone detained in Sri Lanka would be at risk of persecution was to the effect that detained individuals within a certain category remained at risk; that category did not include the appellant. See the decision of Judge Youngerwood at [221.
23. I accept that because of the manner in which the appellant might present due to his illness, in the event that he is apprehended by the Sri Lankan authorities for any reason, stopped at random for checks or interview of any kind, a speculative outcome might be that he is temporarily detained. I do not accept that such a speculative outcome reaches the high Article 3 threshold.
24. Insofar as the appellant's Article 3 claim comprises a claim for protection because of the fear of ill-treatment in Sri Lanka, I find that was comprehensively addressed in the decision of Judge Youngerwood and the error of law decision of the Upper Tribunal panel. I turn to the other aspect of the appellant's Article 3 claim that he cannot return to Sri Lanka because of his psychiatric illness and the detrimental effect that return would have upon him.
11. In addition, the judge found that:
(i) This was not a deathbed case, unlike that in N [20015] UKHL 31 [25];
(ii) There is provision for psychiatric treatment in Sri Lanka, albeit no to the standard available in the United Kingdom [44], [49];
(iii) The appellant's parents are elderly, and not in the best of health but there was no suggestion that that appellant's siblings would be unable or unwilling to support him as they had supported their parents, and that there was not credible evidence to suggest that the appellant's mother would not want or be able to care for him, ensuring his compliance with his drug regime, and so on [46]; and,
(iv) It would not be unreasonable to expect him to relocate to Colombo with the assistance of family to access better treatment there.
12. The judge then dismissed the appeal on article 3 and 8 grounds.
13. The appellant sought permission to appeal on the grounds that in the de novo hearing before the First-tier Tribunal that the judge erred:
(i) In that, having found that the appellant would be at risk of detention if apprehended by the Sri Lankan authorities for any reason [23], due to the manner in which he may present on account of his illness, he then applied [23] too high a threshold, the test here being serious possibility, following Aswat v UK [2012] ECHR 473; and, that there are difficulties in him accessing treatment as a Tamil;
(ii) In finding, in the absence of any evidence, that the appellant's family would rally round to support him [46]; a finding which was contrary to the appellant's brothers evidence, there being no explanation for rejecting the latter;
(iii) In concluding that the National Institute of Mental Health in Colombo would have appropriate expertise to treat the appellant [47], contrary to the evidence of the appellant's psychiatrist and the findings in GJ at [456]
14. On 11 August 2016, Designated Judge Murray granted permission on all grounds.
15. Ms Chapman submitted that the judge had erred in concluding that the risk of ill-treatment in detention identified in GJ ant [168] was confined to those in the risk categories; and, that accordingly he had erred in adopting too high a threshold in respect of article 3 violations where the state is responsible. Further, there was a risk of him being detained in a mental hospital in condition which, owing in part to his vulnerability, would breach article 3 in themselves, given the evidence about Angoda, the only secure inpatient facility available in Sri Lanka,
16. Mr Kotas submitted that there was no risk of the appellant being detained other than temporarily, and that this was not likely to result in ill-treatment.
Discussion
17. Care must be taken to identify the basis of the hearing before Judge Peart. It is evident from Judge Youngerwood's decision that he considered both articles 3 and 8, and the relevant provisions of the Immigration Rules, dismissing the appeal on both grounds. The grounds of appeal to the Upper Tribunal challenged both findings and permission was given on all grounds. I do not consider that fact that the Upper Tribunal found no error in respect of grounds 2 - 4 can be construed as a direction that only part of the decision was to be remade, or that its scope was to be limited. Indeed, given that at [36] - [37] the Upper Tribunal observed that what would amount to exceptional circumstances was not something they could describe or list, it would be difficult and impractical to make directions limiting the scope of a fresh decision in respect of article 3. In the circumstances, neither the findings of the First-tier Tribunal or the Upper Tribunal were binding on Judge Peart.
18. The challenges to the article 8 and Immigration Rules findings had been made contained within grounds 2 to 4. Given that the judge did make findings in respect of both article 8 and the Immigration Rules at [52] - [63], it appears that he proceeded, properly, on the basis that this was a de novo hearing. To the extent that he considered that the matters referred to at [22] were not matters on which he needed to reach a finding, that was incorrect.
19. Putting aside the health aspects of the article 3 case, that is, access to treatment (and more remotely, whether detention as an inpatient would engage article 3), the appellant's case is that he is, owing to his behaviour both in the aspects of OCD and in lashing out, at risk of detention if he comes to the attention of the Sri Lankan authorities. He argues also that if detained, he is at risk of ill-treatment of sufficient severity to engage article 3.
20. The judge considers at [23] that the chance of the appellant being detained is speculative but it not clear whether he considers that the article 3 threshold is not met because of a low probability of the event occurring, or because the probability of ill-treatment is low, given what at [22] he concludes is the risk of that occurring. Further, this analysis is conducted through the prism of what is said to be the high article 3 threshold.
21. Despite Mr Kotas' submissions to the contrary, I do not consider that the article 3 threshold in respect of actions on the part of a state are high, unlike in health cases; the issue is one of real risk or serious possibility of a breach. While it is unlikely that a short detention would not per se cross that threshold, that is predicated on there being no real risk of ill-treatment in detention.
22. Were the appellant to be detained, that would not necessarily engage article 3 unless that were in conditions that were so poor as to constitute inhuman or degrading treatment. It is not argued that conditions in criminal detention do reach such a threshold, and thus the adoption of an incorrect test does not necessarily affect the outcome. If, however, there is a risk of ill-treatment in detention, then the outcome is, as Ms Chapman submitted, material.
23. The absence of the risk of ill-treatment was addressed by the judge at [22], and flows from an analysis of GJ. Having considered GJ in detail, I respectfully disagree with the previous Upper Tribunal as to the effect of [168]. First, the guidance given at (4) makes no qualification as to the risk of ill-treatment in detention. Had the guidance been that only certain categories of people would be at risk of torture or ill-treatment in detention, then the Upper Tribunal would have said so. Further, there is nothing in the nature of the concession given that limits it, and the concessions recorded at [168] and [169] must be seen in the context of the issues agreed between the parties, the origin of the comments on those undergoing "rehabilitation".
24. The decision under challenge contains no independent reasoning for the conclusion that the risk of ill-treatment is confined to certain categories, and I am satisfied that conclusion is an incorrect application of Country Guidance as set out in GJ.
25. In this context, I am satisfied that the conclusion that the appellant was not at a risk of ill-treatment in detention serious enough to engage article 3 involved the making of an error of law.
26. Turning to the other grounds of appeal, I bear in mind that, absent the possible article 3 violation while detained on mental health grounds, this is otherwise a health case. In that context, it is difficult to argue that, even taking the appellant's case at its highest, it crosses the high threshold set out in N, not least in the light of GS (India) [2015] EWCA Civ 82.
27. That said, there is, as Ms Chapman submitted, a possibility that the appellant, given the nature of his condition which, even when managed in the United Kingdom, relapses such that he requires inpatient treatment, may result in him being detained in a hospital in Sri Lanka. The only possibility is, it appears, Angoda, and it is submitted that the conditions there are so severe as to engage article 3, on an analogy with Aswat. That issue is not expressly considered in the decision of the First-tier Tribunal which I consider is an error, given that the threshold in such circumstances is lower than that applicable in health cases.
28. Given that any analysis of whether inpatient treatment is likely involves an evaluation of what support and outpatient treatment is likely to be provided, then errors identified in the grounds at [4.2] and [6] are material, given that here is no proper evidential basis for the conclusion that the family would rally round, and for not taking into account at [45] the appellant's brother's evidence that the family would not be able to assist. Further, the finding at [46] that there was no credible evidence that the appellant's mother would be unable to assist is an unreasoned rejection of this brother's evidence which was otherwise accepted.
29. In the circumstances, I am satisfied that the decision of the First-tier Tribunal did involve the making of an error of law and I set it aside.
Remaking the decision - directions
30. It is my preliminary view that the decision should be remade in the Upper Tribunal. Accordingly, I make the following directions:
(i) The appellant and respondent are permitted to adduce further background and/or expert material in respect of the following issues:
(i) The basis on which it is said the appellant is at risk of being detained, and in what circumstances;
(ii) The likely consequences of detention by the authorities;
(iii) What support and treatment he is likely to receive, and the likelihood that he faces in patient treatment; how soon that is likely to be needed; where it would take place; whether that would necessarily be compulsory and/or in a secure unit; the conditions in such units.
(ii) Such material must be served at least 21 days before the next hearing.
(iii) If it is intended to call further oral evidence, the prior permission of the Upper Tribunal MUST be sought at least 10 working days before the next hearing.
(iv) The appellant must serve a skeleton argument 5 working days before the hearing, addressing the above issues.
(v) The parties are at liberty to apply for any further directions, in writing, and preferably by email to:
FieldHouseCorrespondence@hmcts.gsi.gov.uk
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.

Signed Date: 5 October 2016

Upper Tribunal Judge Rintoul