Tribunal decisions

The decision

Heard at Field House

On: 6 January 2005
Prepared: 12 January 2005

MC (Article 3:- Suicide –Preventive Measures) Sri Lanka [2005] UKIAT 00064

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

9 March 2005

Before:

Mr H J E Latter (Vice President)
Mr P Aujla
Mrs M Padfield JP

Between

APPELLANT

and

Secretary of State for the Home Department

RESPONDENT

Representation:

For the appellant: Mr S Cox of Counsel
For the respondent: Ms A Holmes, Home Office Presenting Officer.

DETERMINATION AND REASONS

1. The appellant, a citizen of Sri Lanka, appeals against the determination of an Adjudicator, Mrs C Bart-Stewart, who dismissed his appeal on both asylum and human rights grounds against a decision made on 18 April 2001 giving directions for his removal following the refusal of his claim for asylum.

2. The appellant claims to have arrived in the United Kingdom on 4 March 1999 using a passport of which he was not entitled and which was returned to the agent after he had gained entry. He applied for asylum the same day. His application was refused for the reasons set out in the decision letter dated 20 December 2001. There was an appeal against this decision which was dismissed by an Adjudicator. A further appeal to the Tribunal was dismissed but this determination was set aside by consent in the Court of Appeal and subsequently the Tribunal remitted the appeal for a fresh hearing. That hearing took place before the Adjudicator on 6 February 2004.

Background

3. The Adjudicator summarised the basis of the claim as follows. The appellant is of Tamil ethnicity and lived in the Jaffna peninsular. In 1982 he was involved with the TULF. He was arrested by the army and held for one night. He began to assist the LTTE in 1984 and when the Indian Peacekeeping Forces intervened in Sri Lanka between July 1987 and December 1989 there was one occasion when he was arrested, held for four days and seriously assaulted. He continued assisting the LTTE primarily by repairing their vehicles but also in leafleting and providing them with food. He was arrested at an army checkpoint on 1 February 1999 and detained for eleven days. He denied involvement with the LTTE but was told that he could help to identify LTTE members. His release from detention was secured by his wife paying a bribe. The appellant was told that he should leave the country or risk being killed. An agent was arranged to help him leave. He travelled to Colombo and left by air transiting in at least two countries before arriving in the United Kingdom.

4. The Adjudicator not only had background evidence relating to the situation in Sri Lanka but also medical evidence in the form of psychiatric reports from Dr Patterson dealing with the appellant's medical and psychiatric condition. It was the doctor's view that the appellant should not be cross-examined and in those circumstances Mr Cox who appeared before the Adjudicator did not call him to give evidence but relied on the documentary evidence.

5. The Adjudicator was not satisfied that the appellant had been subjected to torture whilst in detention in February 1999 and considered it unlikely that the authorities would have released him if they believed him to be actively involved with the LTTE. She considered that his decision to leave at that time was an extreme reaction to one relatively short detention. She was not satisfied that the authorities would now have any adverse interest in him. There was no evidence to suggest continuing interest or that he was wanted.

6. The Adjudicator went on to consider the medical evidence. She found it difficult to reconcile the problems presented to the doctor with the account the appellant gave in his SEF statement and interview. The account given to the doctor had been exaggerated considerably and the Adjudicator approached with caution her conclusions as to his medical state noting in particular that the consultation was nearly three years after the appellant's arrival in this country. The appellant did not appear to be receiving any psychiatric treatment or counselling despite a diagnosis of post traumatic stress disorder (PTSD) and depression. The doctor's prognosis was that without psychological intervention and anti-depressant treatment the appellant was unlikely to recover. The Adjudicator referred to the most recent report before her and to the fact that there were five scars on the appellant's wrist where he had burnt himself with a cigarette. He said that he would kill himself if he were told for certain that he must go back to Sri Lanka. The Adjudicator was not satisfied that the appellant was at a high risk of suicide. She regarded the marks as superficial and questioned the appellant's motives. She was not satisfied that the medical evidence supported a submission that there would be an increased risk of suicide were the appellant to be removed.

The Grounds of Appeal

7. In the grounds of appeal it is argued that the Adjudicator erred in law by failing to have regard to the fact that there was evidence that the appellant had been in receipt of treatment. She had failed properly to assess the expert evidence before her. The hearing before the Adjudicator had been adjourned on the respondent's application to consider his response to the medical evidence but he had made no response and had not attended the final hearing. The Adjudicator had erred in her reasons for rejecting Dr Patterson's report. She had misdirected herself on the approach to be applied in cases where there was a risk of suicide and had also erred in her assessment of whether the appellant would be at risk of persecution.

The Submissions

8. At the hearing before the Tribunal Mr Cox submitted that the Adjudicator had erred in law by leaving out of account the fact that the appellant had been receiving psychiatric treatment. He submitted that the proper test when assessing the risk of suicide was whether there was a real risk of a significantly increased likelihood of suicide. He referred the Tribunal to the judgements of the Court of Appeal in Soumahoro[2003] EWCA Civ 840, the High Court in Kurtolli [2003] EWHC 2744 and Tribunal determinations in N (Kenya) [2004] UKIAT 0053, SP (Risk – Suicide – PTSD – IFA – Medical Facilities) Kosovo CG [2003] UKIAT 0017, SJ (Issue of Risk of Suicide in UK and in Country of Origin) Sri Lanka [2004] UKIAT 00265 and KK (Risk, Return, Suicide, Roma) Serbia and Montenegro [2004] UKIAT 00228. There was no evidence to contradict Dr Patterson's view. The Secretary of State had had an opportunity of considering the medical evidence but had not responded and had not attended the hearing before the Adjudicator.

9. Ms Holmes submitted that the issue was whether there was such a degree of risk of an increased likelihood of suicide that Article 3 was engaged. Even taking the medical evidence at face value, there was nothing to show that the appellant had attempted to commit suicide. The issue was whether there was real evidence of a real risk. An allegation of such a nature needed to be proved even to the lower standard on the clearest possible evidence. There was no evidence to show that the appellant would not be able to receive treatment in Sri Lanka or support from relatives. In KK the Tribunal had been right to express reservations about whether the scope of Article 3 was such that it prevented the Secretary of State taking an action properly open to him such as making and notifying a decision to remove the appellant.

The Appeal on Asylum Grounds

10. Although the grounds sought to challenge the Adjudicator's finding and conclusions on the asylum appeal, Mr Cox did not press these strongly. This was the proper course to take. The Tribunal is not satisfied that there is any basis for a successful argument that the Adjudicator erred in law in her assessment of whether the appellant would be at risk on return. He relied primarily on a detention in 1999 and to a lesser extent on earlier events. In the light of the background evidence before her, the Adjudicator was fully entitled to conclude that the appellant would not be of any adverse interest to the authorities. She considered whether the fact that he had been released by payment of a bribe would affect the position but concluded that it would not. There is nothing in the appellant's background and profile to support a contention that he would now be at real risk from the authorities still less that the Adjudicator erred in law in her assessment of this issue.

The Human Rights Appeal : the Law.

11. The position relating to the claim under Article 3 on the particular facts of this appeal is more complex. The consequences arising from an increased risk of suicide were considered by the Court of Appeal in the context of an Article 3 claim in Soumahoro. The appeal was a challenge to a certificate issued by the Secretary of State under Section 11(2) of the 1999 Act and in particular whether the claim based on Article 3 could be certified as manifestly unfounded. There was uncontroverted evidence that if the claimant was returned to France as proposed by the Secretary of State, there was a real risk that she might commit suicide and this risk was likely to subsist until she realised that the French authorities did not intend, assuming that to be the case, to send her back to the Ivory Coast. Dyson LJ agreed with the first instance judge that the issue was the degree of risk that there would be an increased likelihood of suicide. If it was arguable on the evidence that there was a real risk of a significantly increased risk that, if removed to France, the appellant would commit suicide, then her claim based on Article 3 could not be certified as manifestly unfounded. There was an issue as to whether the risk could be minimised by protective measures (such as detention and warning the French authorities of this tendency) to render unarguable what would otherwise be an arguable claim. As there was no evidence about what precautions could be taken to minimise the risk of suicide and in particular what measures the French authorities would take and for how long and how effective they would be, it could not be said that the claim would be bound to fail.

12. In SP, the Tribunal accepted the principle that if the evidence established that a removal decision would expose a person to a real risk on return of committing suicide, then a decision requiring him to return could give rise to a violation of Article 3. On the particular facts of that appeal the Tribunal held that it had been open to the Adjudicator to conclude that return would not expose the claimant to a real risk of suicide or to any other type of serious or significant detriment to his physical and moral integrity. In SJ the principle was accepted that a risk of suicide in this country following an adverse immigration decision could engage Article 3 although the appeal failed on its merits.

13. This issue was considered at some length in Kurtolli by Silber J. The court was considering a challenge to a certificate and followed the judgment of the Court of Appeal in Soumahoro. It was argued that the Court of Appeal judgments in N and Djali had the effect of superseding the judgment in Soumahoro. This argument was rejected for the reasons give by Silber J in paragraphs 79-82 of his judgment. He commented that Soumahoro was dealing with an issue of suicide risk which was totally different from the subject matter in N which concerned the difference between medical treatment in this country and abroad. An increased risk of suicide would constitute extremely exceptional facts of the kind referred to in N. The claim was not based on events occurring outside the jurisdiction but on the consequences of being notified of a removal decision. There would be an affront to humanitarian principles because the notification of the decision to remove the claimant with her particular mental health problems caused by her experiences in Kosovo and the implementation of that decision would lead to a deterioration in her mental condition so that she would probably or might well succeed in committing suicide. To remove or threaten to remove a person psychiatrically and psychologically scarred such as the claimant would affront humanitarian principles in light of the greatly increased risk that she would commit suicide.

14. The comments of the Tribunal in KK must be read in the light of this judgement. On the facts of that case the Tribunal were satisfied that the Adjudicator's findings were properly open to him and that the claimant was adequately protected from the risk of suicide whilst he remained in the United Kingdom and that on return he would be within a sizeable Roma community with adequate security and appropriate safeguards to prevent his depression causing his suicide.

15. In summary the Tribunal accept that the proper test to be applied when assessing a claim under Article 3 based on an asserted risk of suicide is as set out in the Court of Appeal in Soumahoro, whether there is a real risk of a significantly increased risk that the appellant would commit suicide. The factual difficulty facing Adjudicators and the Tribunal is that this is an easy assertion to make and one that is exceptionally difficult to assess in the context of an appellant resisting a removal decision where there is an inevitable temptation to seize upon any argument. In this context the Tribunal was right to make the point in N (Kenya) that there would need to be the clearest possible evidence of a real risk which would not otherwise be preventable by appropriate medical supervision both on the part of the removing country and having regard to facilities which might reasonably be expected to assist in the country of destination. We endorse these comments. It is not a question of imposing a higher standard of proof than a real risk or reasonable gegree of likelihood but of testing and analysing the evidence on which the claim is based.

16. It is also important to note that it has to be shown that there is a real risk of a significantly increased risk. In the absence of an increased risk, the notification of the decision and the subsequent removal have no causative effect. Similarly, a threat to commit suicide which is rationally made in an attempt to frustrate removal cannot form the basis for an argument that removal would lead to a breach of Article 3 because it is not the threatened removal which is causative. The rationale behind the judgments of both the Court of Appeal in Soumahoro and Silber J in Kurtolli is the need to protect a person who is unable to behave rationally because of the psychiatric and psychological consequences of torture or ill-treatment received before coming to the United Kingdom. It is only a particularly vulnerable claimant, whether through mental, psychiatric or psychological problems however caused, who would be likely to make a genuine threat of suicide where the objective facts do not support their fears. The threat of suicide in such a case is not manipulative in the sense of being a rationally based attempt to prevent removal but is a genuine indication of vulnerability. However, the risk of a breach of article 3 in these circumstances is normally met by showing that proper arrangements have been made both for removal and for care and treatment on return. These measures remove the risk or at least minimise it to a level below a real risk.

The Facts relating to this Appeal

17. Set against this background the Tribunal turn to consider the medical evidence relating to this appellant. In her psychiatric report dated 8 December 2002 Dr Patterson describes the appellant as presenting a complicated picture, characteristic of many survivors of trauma. His statement that he would kill himself in the United Kingdom rather than be returned to Sri Lanka should be taken seriously. He has been suffering from severe depression and perceives that he would be arrested, tortured and murdered if returned. It was her view that there would be a significant risk of completed suicide if he was told for certain that he must return. There is a supplementary report dated 3 April 2003 which restates this view. In the further report dated 13 December 2004 the doctor observes that the appellant requires specialist psychological intervention. There she refers to the fact that he has attempted to harm himself and remains of the view that he would be at substantial risk of suicide. It was after her second report that the doctor discovered that the appellant had started to cut himself. More recently he has burnt himself with cigarettes. Individuals with a history of deliberate self-harm have a one hundred fold increased risk of suicide compared to the general population.

18. The evidence that was before the Adjudicator was submitted to the Secretary of State but he failed to make any response. Of course this does not mean that the Adjudicator is bound to accept the evidence but the Tribunal is not satisfied that there was any adequate basis for rejecting Dr Patterson's evidence. The Adjudicator erred by proceeding on the assumption the appellant had not been in receipt of treatment when it is clear from the expert evidence that he has received some psychiatric treatment and counselling: see the report of Dr Patterson dated 12 January 2004 at page 2. The Adjudicator's comment that the appellant's symptoms were out of all proportion to the experiences he suffered failed to take account of the fact that what is important is the assessment of whether the symptoms exist and if so what inferences can properly be drawn from them. In this light it may not be unreasonable for the appellant to describe what happened to him according to his own perception as "atrocities".

19. As the Tribunal is satisfied that the Adjudicator erred in law in her assessment of the evidence, we must consider whether we should assess the risk for ourselves or remit the matter for further consideration to an Adjudicator. We accept Mr Cox's submission that we are in as good a position as the Adjudicator to assess the medical evidence. We are satisfied that the evidence does show a real risk of a significantly increased risk of suicide. We accept the conclusions set out in Dr Patterson’s reports and note in particular the increased risk where there is previous evidence of self-harming. It may be that this risk can be prevented by appropriate medical supervision before and during removal and by evidence that proper treatment and support would be received in Sri Lanka. However, there is no adequate evidence in this appeal to enable us to reach this conclusion. It may be that such evidence is available but it has not been produced either before the Adjudicator or before the Tribunal.

20. On this basis the Tribunal is satisfied that on the particular facts of this appeal, the medical evidence shows that the appellant is a vulnerable person suffering from acute psychological problems and that without adequate safeguards there would be a real risk of self harm were he to be removed to Sri Lanka.

21. The appeal is dismissed on asylum grounds but allowed on Article 3 grounds.

H J E Latter
Vice President