Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/01038/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 16 June 2016
On 13 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

secretary of state for the home department
Appellant
and

CHANEL [R]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Lewis, Counsel instructed by Binberg Pierce & Partners
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant in this case was the Respondent before the First-tier Tribunal and the Respondent was the Appellant. For ease of reference I refer to them as the Secretary of State and Claimant respectively. The Secretary of State served the Claimant with a decision to make a deportation order against him in accordance with section 32 (5) of the UK Borders Act 2007 on 10 November 2014. The Secretary of State decided to refuse his human rights claim dated 10 January 2015 and maintained the decision to deport him as it was not accepted that he fell within any of the exceptions set out in section 33 of the 2007 Act.
2. The Claimant appealed against this decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002. His appeal was heard by Designated Judge of the First-tier Tribunal Peart and First-tier Tribunal Judge Moller. They allowed his appeal in a decision promulgated on 1 December 2015 under Article 3 of the 1950 Convention. They found that the exception to automatic deportation at section 33 (2) (a) of the UK Borders Act 2007 applied and the Claimant satisfied the human rights exception at paragraph 397 of the Immigration Rules.
3. The Secretary of State sought permission to appeal against that decision. The grounds assert that the First-tier Tribunal materially misdirected itself in law as to the Claimant's circumstances and failed to give adequate reasons on material matters, namely the public interest.
4. Permission to appeal was granted by First-tier Tribunal Judge Davies on 6 May 2016 on the grounds that the First-tier Tribunal appeared to have made no reference to the public interest or to have taken it into account.

The Hearing
5. Ms Isherwood argued that there was a material error of law in the decision of the First-tier Tribunal and relied on the grounds of appeal. She submitted that the Claimant had continually offended bringing him into paragraph 398 of the Immigration Rules and had to show there were very compelling circumstances over and above those described in paragraph 399 and 399A. The First-tier Tribunal did not refer to the public interest in considering the Claimant's claim and the Secretary of State's decision. The decision focused on the medical evidence from the Claimant. The Claimant relied on evidence from the WHO which showed that mental health facilities were available and there was country information showing that it was available. Dr Skogstad's assessed him before the Secretary of State and at R7 of the Secretary of State's bundle it could be seen that he expressed no symptoms. The Tribunal had relied on the Claimant's report which conflicted with the Secretary of State's evidence. This issue needed to be addressed. Evidence was produced to show that medical treatment was available and because it was a lesser service did not mean that it reached the Article 3 threshold. At paragraph 39 of the determination it was noted that in 2011 the Claimant said he would not commit offences. He then committed a further criminal act and did not plead guilty until the very last point. The Tribunal had not sufficiently explained why Dr Durkin's report could not be considered. Para 54 of the decision the panel had failed to consider the evidence in the round because they considered Dr Durkin's evidence to be inconsistent. There was in fact no contradiction. Then from paragraph 69 the Tribunal considered the availability of treatment in Angola. Dedicated provision did not exist but there was some availability and even in the findings the Tribunal did not consider all the evidence. There was no consideration of the objective evidence provided by the Presenting Officer at the hearing. With regard to the risk of suicide the reliance placed on Dr Skodstad's report was in error. If I were to accept that they could place weight on that expert report there was no reference to public interest. It clearly needed to be considered. The Tribunal had to and did not give reasons why there were very compelling circumstances.
6. Mr Lewis submitted that fundamental to this appeal was that it was not allowed under Article 8 and the Secretary of State's challenge was misconceived. This was a very experienced panel who heard and determined the appeal. The panel actually heard evidence from Dr Skogstad who was cross-examined with regard to his opinions. The Tribunal had regard to his evidence and the fact that his opinion was not undermined. Reference was made to Dr Durkin's report at U2-3 of the Secretary of State's bundle. Mr Lewis' submission in relation to this report was that if you looked at it very significant mental health issues had been identified and the conclusion that this was not present in 2015 was inconsistent with the actual report. Against that there was the evidence from the prison where he had been a consultant psychiatrist. The Claimant presented as a risk of further self-harm. It was suggested by the Secretary of State that Dr Skogstad's assessment was wrong because he erred in the conclusion in relation to re-offending. He dealt with this in his report. He made very clear reference that this conclusion was dependent upon the Claimant receiving proper treatment. Tragically he was not provided with any such treatment. Rather than his assessment being undermined there was no reason to reject it. It was open to the panel to place emphasis on this. The Claimant was a refugee and a minor and he was a witness to the most horrific trauma of the rape and torture of his niece and the murder of his parents at the age of 8. He was never given any treatment or therapy. The assessment of risk was on the basis of the very extensive prison records to which Dr Skogstad had regard and to his own assessment of the Claimant. There was no challenge to J v SSHD [2005] EWCA Civ 629 which made clear that a case could succeed on the basis of the risk of suicide. It was open to the panel to accept Dr Skogstad's opinion and base their opinion on this. It was open to the panel to have regard to the evidence that there was insufficient psychiatric care. There was no evidence to show that this condition could be managed. They considered he would continue to be at risk. It was accepted at a previous hearing that he had a deep-seated fear and no connections. His condition had been created there and there was an absence of any support network. In determining the appeal the panel had very clear evidence in relation to this. On the basis of his evidence and the absence of an ability to manage his condition and having no connections there it was open to them to find that it would be inhuman and degrading treatment. The focus of the Secretary of State's challenge was one of the clearest examples of a disagreement with the findings rather than a material error of law given that J v SSHD identified that Article 3 could succeed and the reasons were adequate. On the very particular facts of this case they were entitled to conclude that there was a real risk. The determination was perhaps admirably brief. He asked me to dismiss the Secretary of State's appeal.

Discussion and Findings
7. Section 32 (5) of the UK Borders Act 2007 provides that the Secretary of State must make a deportation order in respect of a foreign criminal subject to section 33 of the same Act. The exception relied on by the Claimant in section 33 (2) was that his removal would breach his Convention rights. Paragraph 397 of the Immigration Rules provides that a deportation order will not be made if the person's removal would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will be only be in exceptional circumstances that the public interest is outweighed.
8. The First-tier Tribunal allowed the appeal under Article 3 of the ECHR and therefore did not move on to consider the Claimant's rights under Article 8 either within or outwith the Immigration Rules. Having concluded that Article 3 would be breached the First-tier Tribunal was not required to consider the public interest considerations in paragraphs 398 to 339 of the Immigration Rules and the Secretary of States Grounds 2 and 3 are misconceived as indeed is the grant of leave in this case.
9. The First-tier Tribunal allowed the appeal under Article 3 because the panel concluded at paragraph 92 that there was a real risk that the Claimant would take his own life. The Secretary of State challenges this finding in Ground 1 of the grounds of appeal. The basis for the challenge at 1 (a) to (c) is that the First-tier Tribunal erred in concluding that the limited assistance available in Angola was a determinative factor. However, the submissions in the grounds and the case law relied on relate to Article 8 and not Article 3 and are therefore not relevant to this appeal.
10. The Secretary of State impugns the First-tier Tribunal's findings in relation to Article 3 at paragraphs 1 (d) to (l). The alleged errors of law are that:
(i) The First-tier Tribunal concludes that there is an Article 3 breach without any explanation of how the Claimant's circumstances reach the very high threshold required save for the lack of treatment available;
(ii) The First-tier Tribunal failed to consider the case of GS (India) SSHD [2015] EWCA Civ 40;
(iii) The First-tier Tribunal placed far too much weight on the report of Dr Skogstad provided by the Claimant which had already proved to be incorrect;
(iv) The First-tier Tribunal had based their entire reasoning on whether the Claimant could seek medical assistance in Angola based on the report of Dr Skogstad and a report from WHO. The Tribunal did not consider the report provided by the Presenting Officer at the hearing and found in favour of the Claimant because he had no financial or other resources;
(v) The First-tier Tribunal noted that the Claimant had not been entirely truthful but placed significant weight on the report provided by the Claimant which was based on his evidence;
(vi) The First-tier Tribunal failed to take note of relevant paragraphs of J V SSHD [2005] EWCA Civ 629 and consider the question of whether the fear of ill-treatment was well-founded. It is asserted that there was no evidence before the First-tier Tribunal that the Claimant would not be able to access any assistance upon return that would work as an "effective mechanism";
(vii) It is also asserted that the First-tier Tribunal failed to take a holistic approach to all the facts of the case and it is said that the Claimant has family in the West Bank.
11. The last point is clearly an error and I disregard it. I have considered firstly whether the Secretary of State has demonstrated that the First-tier Tribunal's approach to the expert evidence was flawed. The Tribunal had before it a medical report dated 12 January 2015 written by Dr Catherine Durkin, Specialist Registrar in Forensic Psychiatry. She was asked by the Home Office to answer a number of questions in relation to the Claimant's mental health and had access to his medical records during his time in custody. She also interviewed him in January 2015. She concluded that his presentation was variable. On assessment he presented as calm with no evidence of suicidal ideation. She also stated that he did present as a risk of further self-harm or attempted suicide were he to be placed under significant stress which he appeared to cope poorly with.
12. The First-tier Tribunal also had before it the report of Dr Wilhem Skogstad, Consultant Psychiatrist in Psychotherapy dated 18 December 2014. The Tribunal also heard oral evidence from Dr Skogstad who was cross-examined. Dr Skogstad reviewed the Claimant's medical records in his report and examined him for two hours. At paragraph 5.4.3 of his report he concluded that there would be a serious deterioration in the Claimant's mental state if he were deported and regarded the risk of committing suicide as very serious once he had arrived in Angola. He noted in this context that there had been a very serious deterioration in his mental state that occurred as a result of the threat of deportation in 2007 leading to serious suicide attempts.
13. I find that there was no error of law in the First-tier Tribunal's approach to the medical evidence for the following reasons. The first criticism made of the approach is that the report of Dr Skogstad has proved to be incorrect. Whilst this ground is clumsily expressed, it appears that the Secretary of State means that Dr Skogstad's evidence was to be treated with circumspection because he had been wrong previously about the Claimant's propensity to re-offend. The Claimant's previous appeal against deportation was allowed on 10 May 2011 and the Tribunal in that case record at paragraph 36 that Dr Skogstad stated that he was quite sure that if allowed to stay the Claimant would not slip backwards in his life. However, the First-tier Tribunal noted this submission at paragraph 50 of the decision and addressed it at paragraph 58 of the decision and accepted that the basis on which Dr Skogstad predicted that he would not re-offend was that he would obtain the treatment he required. That conclusion was open to the Tribunal on the evidence as Dr Skogstad had stated at paragraph 5.2.3 of his report that the absence of support was in his view what ultimately led to his renewed offence.
14. The grounds further assert that Dr Skogstad's report was based on the evidence provided by the Claimant who the Tribunal had noted was a dishonest witness. It is clear from reading the report that Dr Skogstad's report diagnosis was not dependent on an assumption that the account given by the Claimant was to be believed. The diagnosis was made after assessing the Claimant's medical records and a comprehensive analysis of his medical history and symptoms. The Tribunal did not therefore fall into the error identified in JL (medical reports-credibility) [2013] UKUT 00145 of attaching too much weight to the report on the basis that the diagnosis was dependent on an assumption that the account was to be believed. The Tribunal assessed the Claimant's credibility at paragraphs 35 to 46 and specifically considered, at paragraph 40, whether his re-offending, when he said he would not, undermined his evidence as to symptoms of PTSD and risk of suicide. The Tribunal subjected Dr Skogstad's conclusions both in his report and oral, to analysis at paragraphs 47 to 61 of the decision. They found his account credible as it was consistent and supported by other evidence (paragraph 49). The First-tier Tribunal did not, as the grounds assert, accept the report of Dr Skogstad at face value.
15. Nor do I find that the First-tier Tribunal failed, as Ms Isherwood asserts, to give adequate reasons for preferring the evidence of Dr Skogstad over that of Dr Durkin. The Tribunal gave clear and adequate reasons for preferring the evidence of Dr Skogstad at paragraphs 52 and 53. Those reasons were that his qualifications were excellent and his experience gained over many years; his report was detailed and cogent and his opinion was based on facts that flowed logically from the substance of his findings. In contrast they found that Dr Durkin was not a consultant and did not justify the conclusions she reached. Further, the three page report did suggest that Dr Durkin reviewed the Claimant more than once and there was no indication whether the time spent with the Claimant was in private. The reasons given for preferring the evidence of Dr Skogstad, whose evidence was tested in cross-examination were open to them on the evidence before them.
16. I therefore find that there is no error of law in the Tribunal's approach to the expert evidence and the Tribunal gave adequate reasons to justify accepting Dr Skogstad's evidence that the risk of suicide if deported was very high. In so doing the Tribunal took account of the fact that the Claimant had an undisputed history of suicidal ideation, deliberate self-injury and suicide attempts.
17. I have therefore considered whether the First-tier Tribunal misdirected itself on the law and failed to give any explanation as to why the Claimant's circumstances reached the very high threshold set under Article 3 save for the lack of treatment in Angola and failed to direct itself in accordance with the guidance given by the Court of Appeal at paragraphs 30 and 31 of J v SSHD [2005] EWCA Civ 629.
18. In principle, the risk of suicide can engage Article 3 but the threshold is very high. In N v UK Application 26565/05 the Grand Chamber upheld the decision of the House of Lords and concluded that in medical cases Article 3 only applied in very exceptional circumstances particularly as the suffering was not the result of an intentional act or omission of a State or non-State body. The fact that the person's circumstances, including his or her life expectancy, would be significantly reduced was not sufficient in itself to give rise to a breach of Article 3. Those same principles apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering pain or reduced life expectancy and required specialist medical treatment that might not be readily available or which might only be available at considerable cost. In J v SSHD [2005] EWCA Civ 629 the Court of Appeal held that in a foreign case the Article 3 threshold would be particularly high and even higher where the alleged inhuman treatment was not the direct or indirect responsibility of the public authorities in the receiving state and resulted from some naturally occurring illness whether physical or mental. The Court of Appeal set out the test in Article 3 cases: (i) the feared ill treatment must be of a minimum level of severity; (ii) a causal link must be shown between the act of removal and the inhuman treatment relied on; (iii) in a foreign case the Article 3 threshold will be particularly high; (iv) in principle it was possible for an Article 3 case to succeed on the basis of a risk of suicide and (v) in a foreign case of suicide risk it would be relevant to consider whether the fear of ill treatment in the receiving state was objectively well founded; if not, this would weigh against there being a real risk of there being a breach; and (vi) it would also be relevant to consider whether the removing and/or the receiving state had effective mechanisms to reduce the risk; if there were, this would also weigh against there being a real risk of a breach.
19. The First-tier Tribunal directed itself properly in relation to the threshold required in Article 3 cases at paragraphs 74 and 75 of the decision. The Tribunal accepted the expert evidence that there would be a very high risk of suicide if the Claimant were deported. A very high risk of suicide is, on the authorities, capable of reaching the high threshold required. The conclusion was based on the evidence of Dr Skogstad, which, I have held, the Tribunal did not err in accepting. Further, the Tribunal made clear findings of fact based on Dr Skogstad's evidence, in relation to the risk of suicide at paragraph 81 of the decision. The Tribunal found that the recent deterioration in the Claimant's mental state was directly linked to the threat of deportation; psychological help and medication would assist, but as long as the threat of deportation remained, would not relieve his symptoms of PTSD; being deported to Angola would have a very serious impact leading to severe deterioration in PTSD and depression; symptoms, if reminded of the trauma, include intrusive memories, flashbacks, nightmares and insomnia; he was deeply afraid of deportation due to his traumatic history, lack of relatives or other support, inability to speak the language and vulnerability; he would experience despair and depression; the impact of the psychological trauma would be a very high risk of suicide.
20. It is clear in my judgement that the First-tier Tribunal manifestly did not as the Secretary of State asserts, fail to give any reasons for finding the high threshold would be met save for in relation to the lack of treatment. On the contrary, full reasons rooted in the evidence were given.
21. Contrary to the Secretary of State's assertion in the grounds of appeal the Tribunal also specifically considered the fifth question of the test in J v SSHD at paragraph 76 of the decision. The fifth limb relates to the objective well-foundedness of the fear of ill-treatment in the receiving state. The Tribunal considered the case of Y and Z (Sri Lanka) v SSHD [2009] EWCA Civ 362 and set out the passages on which the panel relied. In particular, the Tribunal relied on the addition to the fifth principle in J that of equal importance is whether any genuine fear which the Claimant may establish, albeit without objective foundation, is such as to create a risk of suicide if there is an enforced return [16]. The Tribunal then accepted, at paragraph 78 that the Claimant's fear was genuine despite its subjective nature and gave reasons for that finding, namely that Dr Skogstad had said that when there was a threat of deportation in prison, the Claimant made a serious suicide attempt. The Tribunal accepted that this history was an important indicator of future behaviour.
22. The First-tier Tribunal also specifically considered the sixth question in J v SSHD, namely whether the removing and/or the receiving state had effective mechanisms to reduce the risk of suicide. According to the Secretary of State's grounds, there was no evidence before the First-tier Tribunal that the Claimant would not be able to access any assistance on return that would work as "an effective mechanism". Again, I find that this assertion is wholly without foundation. The Tribunal set out at paragraph 76 of the decision the passages from Y and Z in relation to the question of effective mechanisms in the receiving state to reduce the risk of suicide. The Tribunal found at paragraph 91 that on the evidence the likelihood was that the Claimant's only perceived means of escape from the isolation and fear in which removal would place him would be to attempt suicide and that as in Y and Z the existence of a rudimentary health service did not attenuate this risk. The Tribunal devoted paragraphs 69 to 75 of the decision to an assessment of the availability of medical treatment in Angola. They considered the evidence of Dr Skogstad that the possibility of managing the risk in Angola was more or less nil as there were virtually no psychiatrists, community psychiatric nurses or other mental health services. Contrary to the Secretary of State's assertion, they did, at paragraph 71 consider the Presenting Officer's Country of Origin Information about Angola. They found, on the basis of evidence from the World Health Organisation (WHO), endorsed by Dr Skogstad, that the Claimant would be unlikely to obtain prescribed drugs or treatment and that there were only two psychiatrists in Angola for a population of 18 million people. They noted that although a few citizens may be able to access private treatment the Claimant had no financial resources and would not be able to do so. They found that there was no evidence that the risk of suicide could be managed in Angola.
23. In the light of the evidence and these findings the panel was entitled to conclude, as it did at paragraph 88 that Angola did not have effective mechanisms to reduce the risk of suicide.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
There is no direction for anonymity none having been made and none being appropriate on the facts.

Signed Dated

Deputy Upper Tribunal Judge L Murray 13 September 2016