(Immigration and Asylum Chamber) Appeal Number: DA/01953/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 9 November 2017
On 21 November 2017
THE RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL
the Secretary of State for the Home Department
(ANONYMITY DIRECTION made)
For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Mr T Gaisford, Counsel instructed by Wilson Solicitors LLP
DECISION AND REASONS
1. In a decision sent on 14 August 2017 Judge Bird of the First-tier Tribunal (FtT) allowed the appeal of the respondent (hereafter "the claimant") against the decision made by the appellant (hereafter "the Secretary of State" or "SSHD") on 26 April 2016 refusing his protection and human rights claim and maintaining a decision to deport him from the UK. The claimant is aged 44 and is a national of Nigeria. The SSHD did not accept his claim that he faced persecution on account of his Christianity and on account of the risk his two daughters would face of FGM. Nor did the SSHD accept that the claimant's mental health problems would place him at real risk of ill treatment contrary to Article 3. The deportation order followed his conviction at Kingston Crown Court on 6 November 2011 for sexual offences for which he was sentenced to six years' imprisonment. The three women he assaulted had learning difficulties.
2. The particularly serious nature of his offending also led the SSHD to certify the claimant's protection claim under s. 72 of the Nationality, Immigration and Asylum Act 2002.
3. At the hearing the claimant did not give evidence in light of the psychiatric evaluation that he was unfit to do so. The appeal proceeded on submissions only.
4. The FtT judge decided to uphold the s. 72 certificate in respect of the asylum claim and to conclude commensurately that he was excluded from humanitarian protection by the terms of paragraph 339D of the Immigration Rules. However the judge decided to allow the claimant's appeal on Article 3 grounds on the basis that attempts to remove him or any removal would create a real risk that he would seek to end his life. In the course of giving her reasons for allowing the claimant's appeal on this basis the judge sought support from the judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Paposhvili v Belgium, App. No. 41738/10, 13 December 2016.
5. The SSHD's grounds raise no challenge to the judge's findings that the claimant was not entitled to asylum or humanitarian protection. Their focus was solely on her decision to allow the appeal on Article 3 grounds relating to the claimant's mental health problems.
6. The SSHD's grounds of appeal first submitted that if the guidance in the authorities cited in her refusal decision had been correctly applied the judge would have been bound to dismiss the appeal. The authorities principally relied on were the two Strasbourg cases, N v UK  47 EHRR, App. No. 41738/10; Bensaid v UK  33 EHRR; and two Court of Appeal cases, J v SSHD  EWCA Civ 629 (hereafter J) and Y v SSHD  EWCA Civ 362. It was argued that the judge had made no findings that the appropriate level of medical care would not be available if the claimant was returned to Nigeria as indicated in paragraphs 98-99 of the decision letter. It was noted that there was no suggestion the receiving country would refuse treatment. The grounds further placed reliance on the authority of Richen Turner  EWHC 2426, a case in which the court found no Article 3 risk would face an applicant who had made three attempts at self-harm. It was submitted that the judge should have treated the mechanisms to prevent self-harm as decisive rather than focusing on the claimant's determination to self-harm.
7. Finally the grounds stated that the authority of Paposhvili "runs counter to binding domestic case law" and it was the latter, the leading authority of J in particular, that should prevail.
8. The claimant sent a Rule 24 Response which in turn drew upon the lengthy skeleton argument the claimant's representatives had produced before the judge. The essential points made in these documents were that: the judge's findings were properly and expressly founded on uncontradicted psychiatric evidence; further or alternatively the judge correctly applied Paposhvili and was entitled to do so; in any event, the judge evidently considered the nature/availability of medical treatment in Nigeria and concluded that it was inadequate to avert the risk of serious harm and/or suicide; in the alternative the judge's' failure to make detailed findings in respect of the nature/unavailability/adequacy of medical treatment in Nigeria was immaterial to the outcome.
9. We heard helpful oral submissions from Mr Duffy and Mr Gaisford amplifying their respective written submissions.
10. We remind ourselves that we are not entitled to interfere in the decision of a FtT judge unless it is one vitiated by material error of law. That consideration is of potential importance in this case because the SSHD's grounds raise no challenge to the medical evidence or to the judge's assessment of it. The judge had before her several medical reports. The main one from Professor Katona dated 17 July 2016 stated that the claimant's history showed serious suicide attempts, suicidal ideation and significant self-harm from January 2012 until the present date. It stated that the claimant "suffers from a Major Depressive Episode, experiences great difficulty in coping with stress and adverse events and exhibits impulsive and potentially dangerous and disruptive self-harming behaviour". Professor Katona's opinion was that the claimant would be at "high risk of suicide" once he lost all hope of being allowed to remain in the UK and would remain at "high risk" during the removal process and once he was back in Nigeria.
11. Professor Katona also considered that "[a]lthough measures (such as hospitalisation, removal of means and close or consistent observation) could be taken to reduce that risk, they would not eliminate it and could not be sustained long-term". Professor Katona also considered that the marked and continued deterioration in the claimant's mental health would leave him unable to secure his basic needs.
12. The judge also took into account a forensic psychiatric report from Dr Boucher dated 3 September 2016 which noted the claimant's "recurrent ongoing suicidal ideation, his multiple impulsive past suicide attempts [including the week before his interview with her] and his history of attempts without seeking assistance or attention afterwards". These factors demonstrated that "he is a high and chronic suicide risk". Return to Nigeria would increase his suicide risk.
13. Before the judge were also a number of psychiatric care plans of Dr Gaete, Speciality Doctor in Psychiatry. Dr Gaete's opinion was that the claimant not being able to stay in the country "would be very detrimental to his mental health". There were also GP records recording the claimant's suicide attempts, suicidal ideation, low mood, recurrent depressive disorder, a hanging attempt on 25 August 2015 and repeat entries of anxiety with depression; letters from Dr Sukhwai, Consultant Forensic Psychiatrist; and extensive medical evidence indicating the claimant suffered from erectile dysfunction and urethra constriction, the latter for which he had had operations. The medical documentation recorded that the claimant's latest suicide attempt was in March 2017 resulting in hospitalisation for a period of two weeks as a psychiatric in-patient.
14. Both Professor Katona and Dr Boucher considered that having his two children in the same vicinity helped to protect the claimant from his intrusive suicidal thoughts.
The judge's treatment of Article 3 risk
15. The SSHD's grounds reveal a difference of view between the parties regarding the status of Paposhvili as an authority. We shall address that issue below, but we first of all consider the SSHD's contention that the judge's assessment of Article 3 was inconsistent with J. If that contention is not made out, then the SSHD must palpably fail since in her view the approach taken by the ECtHR in Paposhvili is more favourable to the claimant.
16. At -  of J Dyson LJ set out the applicable principles that should be applied in Article 3 cases involving suicide risk:
"25. It should be stated at the outset that the phrase "real risk" imposes a more stringent test than merely that the risk must be more than "not fanciful". The cases show that it is possible to amplify the test at least to the following extent.
26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para , the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added).
See also para  of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka?"
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para  of D and para  of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para  of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights.
32. We were shown a number of cases which were declared inadmissible at Strasbourg: A.G v Sweden Appl No 27776/95; Kharsa v Sweden Appl No 28419/95; Nikovic v Sweden Appl No 28285/95; Ammari v Sweden Appl No 60959/00; Nasimi v Sweden Appl No 38865/02. The sixth factor which we have identified above was considered to be relevant in each of these cases. The fifth factor was considered to be an additional relevant factor in Kharsa, Ammari and Nasimi."
17. Before proceeding to decide whether Judge Bird's decision was vitiated by legal error it is useful to note some of its main features. Her decision contains a number of findings negative to the claimant. As regards his asylum claim, she reminded herself that it relied on two factors: that he has converted to Christianity and that he has two daughters who would be at risk of further FGM if returned to Nigeria. The judge was prepared to discharge the s. 72 certificate but found his claim to have converted to Christianity and to be at risk of ill-treatment in Nigeria as a consequence to be unsubstantiated. The judge also considered that the claimant had failed to substantiate his claim that the children he claimed were his had been partially subjected to FGM before coming to the UK and that, in any event, his paternity of the two children was not established. She also concluded that the claimant had not been a victim of trafficking (in that regard she concurred with the Competent Authority who on 5 May 2016 had rejected his claim to them to be a victim of trafficking).
18. The judge noted the parties' different submissions regarding the adequacy of mental health services in Nigeria. She noted at paragraph 48 that the claimant's Counsel before her (Ms Francis) had produced background country information about this; and earlier at paragraph 20 she had noted Ms Francis's submission that there was little evidence of adequate mental health services in Nigeria (there were said to be only ten regional mental health centres there and only three were providing relevant mental health support; there was also stigmatisation of mental health). At paragraph 50 the judge noted the contrasting submission of the SSHD that there are medical facilities available to the claimant in Nigeria to deal with his mental health issues (earlier at paragraph 26 she had recorded the submissions made by Ms Alvarez on behalf of the SSHD that the claimant would be able to access medical treatment in Nigeria and had family who could return with him to Nigeria).
19. We turn then to the SSHD's grounds, bearing in mind that for the present we are concerned only with the issue of whether the judge gave sustainable reasons for allowing the appeal on Article 3 grounds based on the claimant's mental health difficulties. It is convenient to begin with the SSHD's contention that the judge made no findings that the appropriate level of care would not be available if the claimant was returned to Nigeria. That is correct as a description (and we consider the claimant's Rule 24 Response is wrong to suggest otherwise), but we do not find that that that failure gave rise to any error since at paragraph 50 the judge was prepared to proceed on the basis that "[t]his may well be". Put another way, the judge's decision to allow the appeal under Article 3 was not based at all on the availability of adequate mental health services in Nigeria; it was based solely on her assessment that such availability would not obviate the real risk of suicide.
20. We turn next to the SSHD's grounds placing reliance on  of J and maintaining that it was the existence of mechanisms to prevent self-harm that were normally decisive. Dyson LJ in J stated at :
"33. In relation to domestic cases, it is apparent that Strasbourg applies a somewhat different approach, since the concern to avoid or minimise the extra-territorial effect of the ECHR (ie the third of the 6 factors we have just mentioned) is absent. But the remaining factors are equally applicable in domestic cases. The sixth factor is of particular significance. This is not surprising because the signatories to the ECHR have sophisticated mechanisms in place to protect vulnerable persons from self-harm within their jurisdictions. Although someone who is sufficiently determined to do so can usually commit suicide, the fact that such mechanisms exist is an important, and often decisive, factor taken into account when assessing whether there is a real risk that a decision to remove an immigrant is in breach of article 3."
21. This analysis has to be read together with what is stated at  of the same judgment:
"17. ... In cases such as the present case the risk of a violation of article 3 or 8 must be considered in relation to three stages. By reference to the claim made in this case, these are: (i) when the appellant is informed that a final decision has been made to remove him to Sri Lanka; (ii) when he is physically removed by airplane to Sri Lanka; and (iii) after he has arrived in Sri Lanka. In relation to stage (i), the case is plainly a domestic case. In relation to stage (iii), it is equally clearly a foreign case. The classification of the case in relation to stage (ii) is less easy. Since in practice arrangements are made by the Secretary of State in suicide cases for an escort it is safer to treat this as a domestic case."
We shall summarise these three stages as pre-removal; removal; and post-removal.
22. We asked Mr Duffy to elaborate this part of the challenge further. He was not able to refer to any specific Home Office policy, but stated that in his understanding there were procedures in place to ensure the safety of persons who were a suicide risk both prior to the removal and during the removal process, including on the plane.
23. Bearing in mind that on J principles there are three different stages that have to be considered in suicide cases [pre-removal; the removal itself; and post-removal] we see force in the point raised in the grounds regarding the judge's treatment of the first two stages. At paragraphs 50-51 the judge appears to have simply seen the evidence of the medical experts to be enough on its own establish a real risk of treatment contrary to Article 3 at both the pre-removal and removal stages - e.g. at paragraph 50 she stated with approval that "Professor Katona's opinion was that the [claimant] was not fit to fly and would not survive his flight to Nigeria". When questioned by the bench regarding this matter, Mr Gaisford pointed to Professor Katona's statement in his report that although measures such as hospitalisation, removal of means; close or constant supervision might reduce the risk of suicide "they would not eliminate it and it could not be sustained in the long term". We agree that this part of the medical evidence lends some evidential support to the judge's conclusions at paragraphs 51-52, but it cannot be said to be conclusive. If such measures would "reduce" risk, then it was possible they brought the level down below the threshold of sufficient severity needed to establish a breach of Article 3. The judge did not specifically address this matter. Further, she did not specifically address what measures the Home Office were able to guarantee in cases such as this. We observe that in J Dyson LJ stated at :
"62. In our judgment, the IAT were entitled to take judicial notice of the arrangements that, no doubt conscious of his obligations under section 6 of the 1998 Act, the Secretary of State makes to escort vulnerable persons who are removed to their countries of origin. This is reflected in a document that we were shown which sets out Home Office policy for dealing with claimants who threaten suicide."
24. At the same time, we do not understand his lordship to mean in this passage that taking judicial notice of Home Office policy for dealing with claimants who threaten suicide necessarily absolves the SSHD from providing assurances that such policy can be effectively implemented in every case. To take a hypothetical example, suppose that on the unchallenged medical evidence the individual concerned would respond involuntarily to escorted removal by panic attacks that would induce fits and asphyxiation; in such a scenario the policy may have no practical utility. In this regard the SSHD's and Mr Duffy's failure to provide any evidence to demonstrate that the UK immigration authorities would be able to put in place effective mechanisms to prevent suicide at the pre-removal and removal stages in the claimant's particular case, was decidedly unhelpful.
25. Even so, had the judge's decision turned on her assessment of the pre-removal and removal stages we would have found her decision vitiated by legal error through failure to address the question of whether effective mechanisms would have been available to obviate the serious risk of suicide at these stages in light of the evidence as a whole (which included that concerning Home Office policy as identified in J).
26. However, it is clear from paragraphs 50 and 51 that the judge's conclusion was that the claimant's high risk of suicide would continue at the third stage, once back in the country of origin. Applying the guidance in J we would make two observations. First, if the judge was right about this, then her assessment did not involve any deviation from the principles set out in J. In essence a real risk of suicide on return to a country of origin can give rise to a breach of Article 3. Second, on the evidence before the judge it was reasonably open to her to find that on return "there is a real risk he will seek to end his life". Clearly from the judge's treatment of the issue of availability of mental health services in Nigeria, she was not here relying on any argument as to their non-availability. She was relying simply on the compelling medical evidence showing a strong causal link between removal and high suicide risk; and showing that the claimant is someone who (i) was profoundly mentally unwell, (ii) would not be in sufficient mental state to seek assistance from anyone or anybody in a position to help him avoid self-harm there; and (iii) would also be unable to secure his basic needs.
27. We consider the above analysis to sufficiently address the SSHD's written grounds and Mr Duffy's elaboration of them. Nevertheless we consider it necessary to explore further propriu motu whether the judge's decision was in fact consistent with the principles set out in J. Here several observations are in order. We have already addressed the sixth factor of the test set out in J relating to the "domestic" dimension encompassing stages 1 and 2 (see above paragraph 20). We consider the judge can be criticised for not expressly confirming that she understood that in a case turning on its "foreign" dimension (stage 3 as set out in J at ) the threshold was a very high one as it could not be said that the harm likely to befall the claimant in Nigeria would be inflicted by state (or non-state) actors there. At the same time, she formulated the test she applied in precisely the same terms as set out in Bensaid and approved by the Court of Appeal in J. Hence in our judgement the judge's assessment complied with the first, third and fourth factors of the six-fold test set out in J. Dealing with the fourth factor, we have already observed that the judge was satisfied on the basis of the uncontradicted medical evidence that there was a direct causal link between the proposed decision to deport and the likely suicide back in Nigeria. were satisfied. Concerning the fifth factor comprising the test in J regarding whether a claimant's fear of ill-treatment in the receiving state is objectively well-founded, we construe the judge's decision to have clearly rejected the claimant's claims that he had objective fears about persecution on account of his Christianity and on account of the risk his two daughters would face of FGM. However, the nature of the claimant's case was not one that turned on such objective fear. Rather it turned on the objective nature of the real risk of suicide.
28. We also gave consideration to whether it was consistent of the judge to rely heavily on the medical evidence when some of that appeared to consider that one of the factors likely to place the claimant at a high risk was his alarm at being physically separated from his daughters (see above paragraph 16) - whereas the judge had found his paternity of these children had not been established. Mr Duffy's submissions to us did advance an argument on these lines. On analysis we have concluded that the medical opinions relied on by the judge nowhere treated such alarm as constitutive of the seriousness of the suicide risk. They were confined to observing that claimant's relative proximity to the children in the UK served to protect him to some degree against impulsive attempts at suicide. In any event, whilst the judge did not find paternity established, she did not dispute that he considered himself their father (we note as well that the SSHD accepted they were his children).
The Richen Turner case
29. In deciding this case we took account of the SSHD's submissions in the Richen Turner case and Mr Gaisford's counter-submissions. We did not find this case of assistance. It did not seek to enunciate any legal principles distinct from those set out in J and it turned on very different facts involving a person whose suicidal ideation on any reading was much less severe than the claimant's (see paragraphs 42-48).
The Paposhvili issue
30. In light of our conclusion that the judge's assessment did not breach binding UK authority, J in particular, it is unnecessary for us to address the issue of whether her analysis of the two "developments" in the Article 3 case law exhibited by Paposhvili involved legal error. We note the analysis of Paposhvili by UTJs Jordan and Pitt in EA & Ors (Article 3 medical cases-Paposhvili not applicable-Afghanistan)  UKUT 445, 7 August 2015. In the instant case, however, the nub of the matter is that although the judge sought to rely on Paposhvili, her assessment did not materially rely on it. In our judgement, her assessment of the claimant's Article 3 circumstances was consistent with UK authority. It was based essentially on the particularly strong and uncontradicted medical evidence that due to the claimant's mental state and high risk of suicide he would be unable to engage with or seek medical help in Nigeria and would be at real risk of ending his life there through self-harm.
31. In conclusion we would reiterate the point made earlier that we can only interference in a judge's findings of fact if they are legally erroneous. We must also have regard to the ambit of the grounds of challenge to the judge's decision on which permission was granted. We do not find the SSHD's grounds made out even after interpreting them broadly to include points not explicitly made.
Notice of Decision
31. For the above reasons we conclude that the judge did not materially err in law. Accordingly, her decision to allow the claimant's appeal on Article 3 grounds must stand.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 his 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: 20 November 2017
Dr H H Storey
Judge of the Upper Tribunal