Tribunal decisions

The decision

JS (Sri Lanka) (Suicide risks – Articles 3 and 8) [2005] UKIAT 00083

IMMIGRATION APPEAL TRIBUNAL

Date: 15 December 2004
Date Determination notified:
...11 April 2005

Before:

The Honourable Mr Justice Ouseley (President)
Dr H H Storey (Vice President)
Mr G Warr (Vice President)

Between:

[ ]
APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

Appearances:
For the Appellant: Mr J Constable, instructed by Higgotts Solicitors
For the Respondent: Miss T Hart, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This appeal is from the determination of an Adjudicator, Mr W D Mark-Bell, promulgated on 25 March 2003. He dismissed the appeal of the Appellant against the decision of the Secretary of State on 6 December 2000 to refuse to grant asylum and leave to enter; shortly after he issued removal directions for Sri Lanka. The Appellant is a married woman, a citizen of Sri Lanka, born in 1972, who arrived in the United Kingdom in October 2000 with her husband. They each made asylum claims in their own right. These claims were processed separately, perhaps for good reason in this case. The claimants made no application for them to be heard together, but there has been a certain amount of leapfrogging and mutual reliance on the various claims at their various stages.

2. The asylum claim was abandoned at the Adjudicator hearing, and the claim proceeded as a claim that removal would breach Articles 3 and 8 ECHR, not just examining the Appellant’s claim by reference to her own experiences and needs, but also by reference to the impact on her of her husband’s psychiatric difficulties which she would have to face if she were returned with him to Sri Lanka. There has never been any question of one being returned without the other. By the time of the Adjudicator’s hearing, the Appellant had given birth to a baby girl in October 2002.

3. The Appellant is a Christian ethnic Tamil. She alleged that she had been recruited in 1989 to undertake various propaganda activities by the LTTE; her brother had been killed fighting for them in 1991. Her father died shortly after; they sold their estates and she moved with her mother to a town where she had few difficulties pursuing her education. In 1998, she was raped by two Sri Lankan army soldiers and suffered physically and mentally as a result. Although the army took immediate steps to assist her to pursue a complaint against the soldiers, she declined to make a complaint for various reasons, including the humiliation and adverse social reaction which she would experience. A few weeks later she married her husband whom she had known since 1990, but although she told him that she had been attacked, she felt unable to tell him that she had been raped. The two lived apart because of difficulties obtaining a marriage certificate. During that time the army officer who had sought to help her pursue her complaint, came to her mother’s house frequently to press his physical attentions upon her, seeking sex and marriage. He threatened to tell her husband that she had been raped. She felt that there was no one to whom she could complain. In October 2000 she and her husband left Sri Lanka to come to the United Kingdom. His asylum claim was based on the torture which he had suffered at the hands of the army and the psychological effect which that had had on him.

4. The Adjudicator accepted that she had been raped because there was corroborating evidence from a local doctor; he also accepted that she was suffering from PTSD as a result of the rape, because of the report of Dr Kamlana dated 16 August 2002. He referred to the support for those contentions because in other respects he did not accept what the Appellant had to say. He did not accept her story that she had been threatened by the LTTE, and concluded that her fear of retribution from them was a lie, fabricated to gain access to the United Kingdom. There is no challenge to those adverse findings.

5. The Adjudicator also rejected the fear of ill-treatment at the hands of army officers or of one in particular. He did not do so in terms which left the fear as a genuine one but one which had no substantive foundation; he did so in terms which said that she no longer had any such fear. (The first sentence of paragraph 38 of the determination might be ambiguous in that respect but that is clarified by the penultimate sentence.) He pointed out that there had been an attempt to investigate and charge the rapists, and that although the Appellant had been advised to move away from the town and had done so for two years, she had moved back to be with her mother again. He also concluded that there was no evidence that she was under any actual threat of sexual harassment anywhere in Sri Lanka other than in the town where the incident had happened. This latter qualification is not wholly consistent with his earlier point.

6. Although Dr Kamlana had said that she would benefit from a combination of medication and counselling through weekly visits from a Community Psychiatric Nurse, the evidence from the Appellant was that this was not advancing her condition much, indeed it made her dislike herself more. He concluded that the background evidence showed a good range of medical facilities in Sri Lanka with adequate facilities for the treatment of severe PTSD. Accordingly, the Adjudicator concluded that there would be no breach of Article 3 through removal because he had not been satisfied that removal would worsen her condition to the level required by Article 3.

7. He then turned to Article 8, and equiparating the requirements of Article 3 with those of Article 8 taken as a whole, he concluded that the risks faced by the Appellant would not reach the necessary high threshold. The last point which he considered related to the husband’s position. By this stage, an Adjudicator had dismissed his appeal on asylum grounds and under Article 3 but had allowed it under Article 8. She had done so, although Mr Mark-Bell makes no reference to this, on the basis that he would be a suicide risk were he to face return to Sri Lanka. He knew that there was an appeal against that decision by the Secretary of State. The Adjudicator said that the two had decided to pursue their appeals separately and that he had to consider the appeal in front of him on its own merits, just as the Adjudicator had done in the case of the husband.

“45. I am not persuaded that it is for me to embark on a determination on the Appellant’s husband’s appeal and then apply those conclusions either to the benefit or detriment of the Appellant’s claim. If the Appellant’s husband is allowed to remain in the United Kingdom at the end of his appeal process, then the Appellant will be allowed to remain here with him.”

8. The grounds of appeal contended that the Adjudicator ought to have considered, for both Articles 3 and 8, the evidence submitted about the husband’s medical condition. The adverse effect to the husband of his return and consequent traumatisation would impact in turn on the Appellant, stressed as she would be, and with a baby. This impact had not been considered.

9. The Tribunal’s jurisdiction in this case covers both errors of fact and law.

10. By the time the appeal came to be dealt with, after various adjournments, matters had moved on in certain respects. The Secretary of State’s appeal in the husband’s case had been successful; the determination had been promulgated on 8 September 2003. The Adjudicator had accepted as accurate, and there was no challenge to it, the claim that the husband had been detained on a number of occasions by the Sri Lankan army and that on two occasions, in 1996 and 2000 he had been severely tortured. There had been a diagnosis of PTSD in the same general terms by the same doctor who had examined the Appellant. The husband was reluctant to take medication and was reluctant to receive counselling because he wanted to forget the experiences. He was in work and active but fearful of a return to Sri Lanka, threatening suicide rather than accept return. The Adjudicator found that he would in fact take his own life rather than be returned but the Tribunal took the view that that was not sustainable on the evidence and involved a misreading of it. There was no risk that he would be exposed to any repetition of his past experiences; there were adequate facilities for any medical needs which he might have; he had quite a substantial and active life here which showed the extent to which he would be able to cope with life there; both his parents were in Colombo; he would be reassured by what he saw when he returned and the Adjudicator had failed to recognise that this was not one of those rare cases in which return would disproportionate to the interests of immigration control.

11. We have been provided with two further reports on the Appellant’s condition, prepared after the Adjudicator’s determination. They were not said to be excluded under Ladd v Marshall and we have considered them. The first is a report of September 2003 from Dr Shrestha, a consultant psychiatrist, who diagnosed PTSD and Post-Natal Depression. She had been treated for the latter with medication, and received the support of the Community Psychiatric Nurse. Such support was expected to be needed for at least a year. But progress had been impeded because of a suicide attempt by her husband in August 2003 or thereabouts, which had led to his becoming a psychiatric in-patient. He was expected to remain there for some time. The consultant concluded that the Appellant was at a high risk of suicide or deliberate self harm; there had been a number of incidents of lacerations to the arm which seemed to provide some sort of relief but had been hitherto unknown behaviour. She needed to remain on treatment until full recovery and therapy would be beneficial after the acute phase was over. The consultant was not aware of what treatment might be available in Sri Lanka, but reported what she had been told about the pressure under which the Appellant and her mother had felt and what the consultant had been told about the lack of facilities outside Colombo. She reiterated that suicide was distinct possibility, “particularly, if the treatment should be discontinued”.

12. The second report is dated October 2003 and is from Dr Naismith a consultant forensic psychiatrist from a different hospital. The report, like the first, was prepared in connection with the appeal, but the Appellant saw Dr Shrestha as an out-patient every three to six months and the CPN once or twice a week. Dr Naismith also recorded the fears of the Appellant, and her thoughts of harming herself, and noted the extensive superficial lacerations to her forearm. She said that she had overdosed twice, once shortly after arrival and a second time six months later. He accepted the PTSD and PND diagnosis on the basis of his own examination, and commented that her continuing symptomatology was influenced by her experiences in Sri Lanka, her husband’s mental state, the stress of a baby, and her immigration status. Both she and her husband were likely to require psychiatric treatment for the future. He did not know what care might be available on return to Sri Lanka. He could not say whether return to another area of Sri Lanka other than the one from which she came would lead to harm. But the fears, real or not, were genuine to her. The prospect of return would be likely to increase her distress and further prejudice her mental health and there was very real danger that there would be an act of completed suicide.

13. The Appellant produced a number of very recent documents. Dr Shrestha said that she saw the Appellant regularly in the out-patient clinic, apparently every three months or so. She took anti-depressants, saw the CPN and had been gradually improving. She was not actively suicidal at present and had not made any attempts in the last twenty months but she might become suicidal if subjected to stress, and she continued to express suicidal ideas. She should continue in therapy and the family counselling had helped her relationship with her husband. This was supported by a letter from the CPN. Their GP wrote to say that return would have catastrophic results for the whole family. There were also letters of support, one from the local church, which attested to the couple’s hard work and community contribution.

14. We were told a little more about the husband’s attempts at suicide after the success of the Secretary of State’s appeal, which had led to his being sectioned, and it was this which had led to the more serious investigation of their mental health. There was no up to date report on him, but he was no longer in hospital.

15. Mr Constable for the Appellant accepted that the Tribunal’s determination of the husband’s appeal had been unchallengeable when delivered but contended that the subsequent events cast a different light on his case, in the light of which the Appellant’s case also had to be considered. The husband’s discharge could be prioritising for bed spaces and not too much should be read into it. We were told that only his mother was in Colombo.

16. The correct legal approach was that set out in Kurtolli [2003] EWHC 2744 Admin, which held that the decision in Soumahoro [2003] EWCA Civ 840 remained good law after the decisions in N [2003] EWCA Civ 1369, and Djali [2003] EWCA Civ 1371.

17. This Appellant had a high subjective fear of removal from the United Kingdom; it was not a resource issue but one of the impact on her. The level of suicide risk was such that it engaged Articles 3 and 8. The Adjudicator had ignored the effect of the decision in Katrinak [2001] EWCA Civ 832, paragraph 23, in which Schiemann LJ had said that it was possible to persecute someone through the treatment meted out to his immediate family. The question was what was reasonably likely to happen to them and whether that would be reasonably likely to constitute persecution of him. This aspect had been ignored by the Adjudicator, and was reinforced by the later evidence.

18. Miss Hart, with a careful skeleton argument for the Secretary of State, submitted that the Appellant could not reopen the decision in her husband’s case by the backdoor. If it was the combined effect of the impacts which mattered, it had always been open to them to have their cases joined. Katrinak was of no help because of the findings of the Adjudicator and Tribunal in the husband’s case which showed that he did not face persecution or a breach of his rights were he to be returned. The Appellant’s case did not reach the high threshold of N and the cases showed that it would be wrong to have any large difference it result as between Articles 3 and 8 in a case in which the same factors underlay the alleged breaches. Reliance was also placed on the Tribunal decisions in P (Yugoslavia) [2003] UKIAT 00017, in which at paragraph 43, it was pointed out that return to the country of origin did not mean return necessarily to any place where trauma had been experienced.

19. It is also worth noting here two other decisions of the IAT: N (Kenya) [2004] UKIAT 00053, in which the tests in relation to the seriousness of harm required in respect of mental illness and suicide risk where treated as essentially similar under both Articles 3 and 8, and KK (Serbia and Montenegro) [2004] UKIAT 00228, in which it was correctly pointed out that Kurtolli was a case concerning a certificate of manifest unfoundedness, and which considered separately the effect of an adverse decision in the United Kingdom on risk in the United Kingdom and risk on return after removal. It recognised the problems of acceding to any claim that an adverse decision could lead to suicide in the United Kingdom, with the protective measures available, and considered the relevance of the Adjudicator’s role in assessing circumstances in the country of return against the relevant thresholds, as opposed to medical evidence which considered the best clinical outcome for the client.

20. Miss Hart pointed to the CIPU October 2003 Report, paragraphs 5.32 to 5.39, which identified the available mental health facilities in Colombo, including treatment for PTSD. There was nothing to contradict this and that is where the family would be returned and where they had relatives. She invited scepticism of the Appellant’s reported suicide attempts within six months of arrival in the United Kingdom, because she had not mentioned them in earlier medical reports. The strength of the letters concerning the community activities of the Appellant and her husband sat ill with the picture which was portrayed in the medical reports; those letters showed a couple who were vigorous and active and therefore had a far greater ability to cope than those medical reports suggested.

Conclusions

21. We accept that the husband’s case has been resolved and that there is no legal impediment to his return save for the outstanding appeal of his wife. It might appear strange, at least, if she could not be returned because of the condition of her husband, which in itself would involve no breach of any international obligations. But that is an unusual but not impossible position.

22. We also accept that, except for any impact which her husband’s condition may have on her, the return of the Appellant would breach no international obligations either. The conditions which she would experience on return would not of themselves breach Article 3. She would not return either to the town where she experienced the trauma of rape. There is no reason for disapplying the Adjudicator’s reasoning in respect of Article 3. She had not been suicidal for twenty months; there was some reason to doubt the truth of her suicide attempts alleged to have occurred shortly after her arrival in the United Kingdom. There is a genuine contradiction between the picture which emerges from her medical reports and the picture painted by her friends from the community as to her strength and ability to cope with life. She has had the benefit of treatment and support in her dual depressions. There would be protection available against any significant risk that she might commit or attempt suicide here before removal. On return, she would find that treatment was available for her depression. She would have some family support.

23. We do not consider that this would give rise to an interference with her rights under Article 8. She would have access to treatment. We accept that her return and the wait pending return would be a time of real anxiety to her, but we do not accept that she would be without genuine protection from any attempt to harm herself. If it were to do so, it could not be an interference which was disproportionate. There is no basis upon which the legitimate interests if immigration control could be outweighed by the concerns which she could have. She has not told the truth about the background. She has no basis for remaining here other than her mental state, for which she has received treatment for some years. The main trauma was seven years ago. She would be able to receive support, medical and familial, in Sri Lanka. The reality of return would to some extent remove the unfounded fears as she would recognise that they were not in fact well-founded.

24. In terms of Article 3, on the basis upon which we are considering it at present, we consider that it is considerably below the circumstances in N. What is striking about that case is the narrow range of facts which could lawfully engage Article 3 where the circumstances in the country of return do not themselves engage Article 3. This case is not close to that category.

25. Although this case involves a mental illness and risk of suicide, that does not bring in any different test for the purposes of Article 3. The extremity of circumstances to engage Article 3 does not vary. The nature of suicide from mental illness, with the associated despair or anguish, may more readily excite humanitarian considerations than a physical illness, but the answers are unlikely to be much clearer in an individual case by attributing any preconceived differential weight to the different forms of illness which may face judges.

26. It is the case, however, that mental illness and an increased risk of suicide through the effect of removal are capable also of engaging Article 8. It seems to us that the effect of removal is capable of interfering with the rights in Article 8(1). But the interference then can be justified under Article 8(2), or otherwise, by the legitimate interests of immigration control which here can include the public interest served by giving effect to the deportation of the Claimant following a court recommendation. In R v Special Adjudicator ex parte Ullah [2004] UKHL 26, [2004] Imm AR 419, the House of Lords agreed (paragraph 24) with what the Tribunal had said in Devaseelan [2002] UKIAT 702, a flagrant denial or gross violation had to be shown; only where the right would be completely denied or nullified would there be a breach of ECHR by the removing state.

27. As Lord Steyn put it, (paragraph 30), only in exceptional circumstances as in D, could someone subject to expulsion claim any entitlement to remain in order to benefit from medical assistance in the expelling state. But, (paragraph 47), it was the real risk of a flagrant violation which engaged Article 8. This point does not appear to have concluded the Article 8 issue, because a breach would then depend on the application of Article 8(2). But the general theme of the speeches is that the flagrancy has to reach the level equivalent to that of a breach of Article 3; it is irrelevant then what justification Article 8(2) might proffer.

28. The Article 8 issue was considered in more detail in R v SSHD ex parte Razgar in the House of Lords. It makes it clear that Article 8 can be engaged by the consequences of removal for mental health, ie Article 8(1) rights exist and would be interfered with, but that interference may be justified by legitimate immigration control and other public interests; see paragraph 3 and 10. In the latter, Lord Bingham, agreeing largely with the Tribunal in Kacaj [2002] Imm AR 213, that legitimate immigration control would almost certainly meant that interference under Article 8(2) would be proportionate, said that the degree of overstatement in that comment was small:

“Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.”

29. The theme, that the cases failing under Article 3 but succeeding under Article 8 would be small in number, was repeated by others. Although Baroness Hale dissented in the result, her comment in paragraph 59 that in striking the balance, only the most compelling humanitarian considerations were likely to prevail over the legitimate aims of immigration control or public safety were in harmony with the other speeches.

30. Lord Carswell in paragraph 72 put it this way:

“For the reasons given by your Lordships in the appeals of R (Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department [2004] UKHL 26, it must now be accepted that in principle article 8 could exceptionally be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 3 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights. It is necessary accordingly to consider the present case in order to determine whether an adjudicator could arguable find that the removal decision is a breach of article 8.”

31. The specific consideration of suicide in R (Soumahoro) v SSHD, a case heard with Razgar in the Court of Appeal, has been to a considerable extent overtaken. It identifies that a real risk or a significantly increased risk of suicide on removal can engage Article 3 so that the case could not be treated as manifestly unfounded. It was a certificated case and not a case on the final decision. It was arguable that those circumstances engaged Article 3, and were not a definitive test for its breach. It preceded N, and although not specifically overturned, the analysis in N of the extremity of circumstances involving a breach of Article 3 must apply to mental illness, and Soumahoro must be read with that in mind. The Razgar questions shows how Article 8 should be approached and paragraph 20 indicates that the application of Articles 3 and 8 to the same factors are likely to produce overall similar results.

32. We do not consider this case is one in which Article 3 and 8 should lead to different results.

33. We make a few closing observations about Soumahoro in the light of N and of Razgar in the House of Lords. It is important to remember that Soumahoro and Kurtolli involved certificates of manifest unfoundedness. They do not purport to decide more than what are possible thresholds for a breach of Article 3 and do not set out definitive thresholds for a breach of Article 3. The real risk or a significantly increased risk of suicide (Soumahoro paragraph 85) does not purport to constitute a test for the breach of Article 3. It represented circumstances in which a breach of Article 3 could not be regarded as unarguable. Bensaid v UK [2001] INLR 325 ECtHR does not suggest that an increased risk of suicide of itself is a breach of Article 3; in certain circumstances it is capable of being a breach; nor would that necessarily engage or constitute an interference with Article 8 rights let alone constitute a disproportionate one having regard to the legitimate interests of immigration control.

34. Second, although Soumahoro was not expressly considered in Razgar in the House of Lords because that was an Article 8 case, no conclusion one way or the other can be drawn from that. But what is important though for Article 8 is that the questions in paragraph 17-20 of Razgar be asked. No conclusion was expressed about the final answer in that case beyond that it was a possibility that the return of Razgar might breach Article 8. But the answer under Article 8 as a whole will rarely be different from what it would be under Article 3 if the same factors are relied on. Bensaid reflects that same approach while considering Articles 3 and 8 separately.

35. Third, N illustrates the extremity of condition which still does not satisfy Article 3 and how high the test has to be for a case to satisfy Article 3; that in turn affects the way in which a breach of Article 8 overall has to be approached; the violation has to be a flagrant one amounting to an effective denial of the rights in Article 8. It is difficult to see that risks of self-harm or suicide for mental illness or personality disorder should be approached very differently from other illnesses which may lead to a painful death in an awareness that such a death is increasingly imminent. This point was made in Djali (paragraph 30), post Razgar and N in the Court of Appeal.

36. But all this leaves the question of the impact on the Appellant of the condition of her husband. We accept that this is a relevant consideration in the case of the Appellant. We do not think that the Adjudicator was right to deal with it on the basis that there had been a choice by the couple as to whether they had their cases determined separately in this case. The husband’s ignorance of the nature of the attack upon his wife could have been a justifiable reason for separate hearings of the appeals. But, in any event, that does not provide an answer to the point. If the matter was material to the wife’s appeal, it should have been taken into account even if there might have been a better way of doing so. It could not be dismissed simply on the basis that the form of the appeal hearings determined what was material.

37. We accept that the fact that the husband’s case did not itself reach the thresholds necessary for his return of itself to constitute a breach of the ECHR or of the Refugee Convention, cannot be determinative of the relevance of his condition to his wife’s case. It may not reach that high threshold, but the stress of coping with it may still have a real effect upon the wife. Katrinak was of course considering whether or not a spouse could suffer persecution through what was done to her partner. But the point underlying Mr Constable’s submissions is the simple one that the husband’s condition was one which was capable of materially affecting the ability of the Appellant to function and cope with the stresses of return, it was therefore a material consideration in her case under the ECHR. It required to be considered but instead, it was ignored. Cases under Articles 3 and 8, while they may fall within a narrow compass and have to pass over a high threshold, are nonetheless sensitive to fact and degree. The full facts have to be considered in so far as the evidence permits. This is not to re-open the case of the husband; his position has been determined. He is liable to be removed unless his wife succeeds.

38. Although, as we have said, there are weaknesses in the Appellant’s evidence and ignoring the husband’s condition she would not succeed, that is to consider only part of what she as an individual would face on return. It may well be that better evidence could have been provided at her appeal and also before us. But the Adjudicator did not consider the material which he had from Dr Kamlana about the husband in the context of the wife’s case. We know that there may well be areas which we know little about, as matters have evolved. We have concluded that we have to remit this case for hearing before another Adjudicator than Mr Mark-Bell or Mrs E B Grant. It should be heard by a panel of the AIT. That panel will be able to take into account the up to date position of both the Appellant and her husband, though it must be understood that it will not re-open the decision in his case. It will not need to form any view as to how his case would then fare taken in isolation; it will only be concerned with the effect of his condition, however the panel find it to be, upon the wife. We make no comment about the prospects of success which the remitted appeal may have. But the Appellant should not raise her hopes high.

39. This appeal is accordingly remitted. It is reported for what we say about suicide risks and the relevance of the position of those who would be returned with the Appellant.

MR JUSTICE OUSELEY
PRESIDENT