Tribunal decisions

The decision

IAC-FH-nl-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/01747/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 3 March 2017

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

gunaratnam surendrakumar
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M. Sihwa, Duncan Lewis & CO., Solicitors
For the Respondent: Mr S. Whitwell, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka. He was born on 28 August 1967 and is now 49 years old. He appeals against the determination of First-tier Tribunal Judge Miller whose determination was promulgated on 6 September 2016 in which he dismissed the appellant’s appeal against a decision made by the Secretary of State to refuse his human rights claim and a claim which was made in response to reasons why the appellant should not be deported from the United Kingdom following a number of criminal convictions.
2. Those criminal convictions are set out in paragraph 4 of the Judge’s determination. Suffice it to say that he has been convicted on six occasions for a total of eleven offences. He received a sentence of imprisonment of fifteen months for an offence of wounding in 2005 and finally, on 25 June 2007, a hospital order was made in relation to his second conviction of violence which was wounding with intent to cause grievous bodily harm.
3. The circumstances of that offence are unpleasant but the crucial point emerges from the sentence that was imposed; the sentence being a hospital order. It demonstrates that the appellant has a history of mental health problems and it is those problems which are the focus of the appeal before me this afternoon.
4. I will deal with the medical history in some detail. Before doing so, perhaps I ought to refer to the determination of the First-tier Tribunal Judge. He said in paragraph 33:
“I accept that he has been in hospital since 2007 and that his condition has fluctuated. In her letter dated 25 May 2016 Dr Llewellyn-Jones states: ‘He has never been an easy man to communicate with, as he is very prone to distorting reality, and placing himself in a good light. He often does not co-operate with accepting nursing requests for physical observations, and recently bought some paracetamol when he was on leave from the hospital which he is not prescribed as it is metabolised by the liver). It is difficult to know what information he does not understand, and which information he is wilfully disregarding’. Dr Llewellyn-Jones considered that the appellant was fit to appear in Court. Although she said that he might need breaks during the course of the proceedings, he appeared to give his evidence before me in a clear manner without any obvious difficulties.”
5. Dr Llewellyn-Jones made a second report that was dated 8 August 2016 where the doctor described his current position. I shall deal with that report in greater detail in due course.
6. The Judge then recorded in paragraph 35 that there was no evidence that had been submitted on behalf of the appellant referring to the availability of treatment for him in Sri Lanka, but details had been provided in the refusal letter that there was psychiatric treatment available in Sri Lanka. It was on that basis that the Secretary of State decided to refuse him leave to remain on human rights grounds and it was on the same basis that the Judge determined the appeal should fail.
7. There are two criticisms, it appears to me, that might be made of the First-tier Tribunal Judge’s determination. The first is that the Judge does not deal with the additional material that was before him and the second (and of course it is a failure for which the Judge is in no way responsible) is that the Judge did not have the guidance that has recently been provided in the case of Paposhvili v Belgium (Application No.41738/10, Strasbourg), a decision which was reached on 13 December 2016 and which postdated the relevant determination in this appeal.
8. The grounds of appeal speak of the risk of survival and that, without support and comprehensive treatment, he would not be able to cope. It is also said that he would be destitute but that was not a point that was pursued before me this afternoon in relation to the problems that he would face were he to be returned to Sri Lanka. Those problems centre exclusively upon his medical condition and, when there is an individual who is suffering from the effects of alcoholism and the physical damage that has caused his body to suffer from over a number of years, it is inevitable that one would feel a considerable degree of sympathy because of the unfortunate position which the appellant faces. Indeed, it is a situation where, almost certainly, he is dying as a result of cirrhosis of the liver. As the medical evidence makes clear, it is not a question of treating him but of managing his present existence. The chances of his survival are poor and that arises whether he is in the United Kingdom or whether he is in Sri Lanka.
9. I was referred to medical reports which were not mentioned by the First-tier Tribunal Judge but which, for the sake of caution, I shall refer to in my judgment. Many of these reports are relatively old and it may be that they are of only marginal significance.
10. The first report to which I was referred is a report beginning at H1 of the bundle which was placed before the Secretary of State. It refers to the appellant as being diagnosed as suffering from PTSD as a result of traumatic events which he experienced in Sri Lanka. I find it difficult to see what weight one should attach to this material since there was an appeal before the First-tier Tribunal in which his claim to be at risk of persecution as a result of what he did in Sri Lanka was discredited. Although this report postdates that event, it seems to operate on the principle that the appellant’s account is true. Be that as it may, the diagnosis of PTSD that was then made does not greatly assist.
11. The subsequent reports shed much more light on his psychiatric condition. There is a report from Dr S-J. Spencer which is found at J1. That is illuminating in relation to the problems that the appellant faced. It is a report which is dated 13 December 2006 at a time when he was on remand at HMP Pentonville in relation to the offence of wounding with intent contrary to Section 18 of the 1961 Act. It describes the appellant as being one who has had a history of substance misuse. At J4 it says that the appellant had begun drinking when he was about 16. It was difficult to get a clear account of his alcohol use since then. He admitted to drinking about half a bottle of whiskey a day and a couple of strong lagers on top of this but it was quite clear from Dr Spencer’s report that that was not truthful. She said:
“When I asked him if he had had help from specific substance misuse services in the past, he did say that he had seen a team in Ilford whom he said helped him and he reported not drinking for the last four years. I reminded him that he had already told me he had been drinking alcohol on the day of the alleged index offence and Mr Gunaratnam then clarified his previous comment saying that he had only been drinking for ten days when he was out in the community after his last custodial sentence.”
It was apparent from this that the appellant’s version of his own history of alcohol abuse was not frankly revealed by him.
12. It was also apparent that, probably related to his drinking, the appellant had been diagnosed with diabetes mellitus. It was initially diet-controlled but had since deteriorated and we now know that it requires greater intervention. There is at page J6 in the bundle a note which is of some significance. It refers to a letter which I have not seen dated 12 April 2006 from Dr Abou-El-Fadi in which he stated that he believed the appellant had an antisocial personality disorder which was “rather serious”. Dr Abou-El-Fadi goes on to say that he did not believe Mr Gunaratnam should be “entertained in the psychiatric services” as he did not believe that Mr Gunaratnam has benefited from input historically and also commented that he felt Mr Gunaratnam “had abused services he was offered in the past”.
13. This is a pattern which emerges from the subsequent documentation to the effect that whilst there are forms of management and indeed perhaps even treatment which were available to the appellant, he did not take up those opportunities and continued the drinking that will, ultimately, lead to his death.
14. It is clear that the appellant described (J12) that he had been hearing voices and that those voices were related to his mental state. The risk assessment which was carried out at J13 was related to risk to self and concluded:
“It is my opinion that the risk Mr Gunaratnam poses to himself is a chronic risk. It is likely to increase in the context of worsening auditory hallucinations, especially if they are of a command nature and telling him to harm himself. It is also likely that alcohol intoxication will increase the risk he poses to himself.”
The risk posed by self-harm is not something that features in the latest material.
15. The opinion that was subsequently provided by Dr Sarah-Jane Spencer was that she did not believe the disorder was schizophrenia and that the hallucinations were best explained as a diagnosis of alcoholic hallucinosis.
“Hallucinatory experiences of this nature are central to such a diagnosis as is clear consciousness. It is my opinion that Mr Gunaratnam’s primary diagnosis is that of alcohol dependence syndrome.”
I think as a layman I would perhaps oversimplify that by saying that the appellant is, unfortunately, an alcoholic. The recommendation was that he should be managed rather than treated in a medium secure unit.
16. The medical evidence continues with a report from the East London NHS Foundation Trust dated 8 October 2013 in which his family history was recorded. The appellant had reported that his father drank alcohol excessively and had suffered from mental illness and had experienced auditory hallucinations. There was also a history of depression on his mother’s side, a psychotic illness on his father’s side and also a history of mental illness in a paternal uncle who apparently committed suicide in 1991. In describing his personal history the appellant records how he came to the United Kingdom in 1992 and was working in a convenience fast food shop but was sacked in 1995 as he was not doing his job properly, doubtless as a result of his alcohol dependency. This particular report refers to Dr Waldron, the Community Consultant, who expressed the view that the appellant’s drinking and immigration issues would be too stressful and too risky for him if he were discharged from psychiatric care which at that time he was undergoing and that he should not be discharged from hospital until his immigration history had been sorted out. That report, as I said, is dated October 2013.
17. The reports continue. There is a report of the Mental Health Review Tribunal which was prepared by Dr Jamie Sullivan, the Consultant Forensic Psychiatrist who was treating the appellant. The report is dated 15 December 2014 and it describes, at P3, how the appellant’s first reported contact with mental health services was in 1991 whilst still living in Sri Lanka. He was admitted to hospital for six months in Sri Lanka following the suicide of his paternal uncle. The appellant said he took his uncle’s death very badly. He was not able to cope and, as a result, was admitted under the care of its psychiatric services. He was subsequently discharged by his father as he, his father, had felt he was not receiving any help while in hospital and would be better off outside. It is at least an indication that he was in receipt of some form of access to psychiatric services whilst he was in Sri Lanka.
18. The report refers at P8 to a review conducted by Dr Turiac, the speciality doctor for the Loxford ward in which the appellant was held. This was a review conducted on 31 March 2014. She elicited no psychotic symptoms but noted that the appellant still only had partial insight into his attitudes to alcohol. It was noted that he was not attending the on-ward service users’ support group designed to address substance misuse problems. He was due to start the drug and alcohol group in April 2014 and the results of whatever involvement he had are then provided in the report. I note for example that he reported that he had not had a drink in eleven years, at [P9]. That was clearly untrue. It is a feature of the appellant’s mental health condition that he will not accept either that he has the problem that we know he has or would not accept the treatment or management of the difficulties he faces as suggested by those around him whose duty it is to provide him with support.
19. The opinion and recommendations offered in December 2014 are of some importance. In paragraph 1 of the opinion and recommendations it is said in part:
“1. At present he is fully compliant with his depot antipsychotic medication and his positive psychotic symptoms are in remission. However, when unwell he has displayed numerous psychotic symptoms, particularly in the context of intoxication with alcohol, and these have led him to behave violently, resulting in two convictions for grievous bodily harm.
2. In the last four months Mr Gunaratnam’s leave has been formally rescinded by the Ministry of Justice and was greatly restricted before that by the clinical team. This was as a result of him not abiding by the conditions of his leave, drinking alcohol on at least two occasions which were detected by positive breathalyser tests, and on a further three occasions that he subsequently disclosed. He has been involved in gambling up to £2000 for another patient who himself had no leave.
3. At present, Mr Gunaratnam’s risk to others is managed as he has extremely limited access to alcohol and has only escorted leave. I am particularly concerned that in recent sessions with clinicians he has minimised the effect of his drinking, for example making reference to the fact that he has not drunk alcohol for 11 years when this is patently untrue.
5. Mr Gunaratnam is now at a point where he needs to plan to have further leave, dependent on the outcome of the next application to the Ministry of Justice. He must then be able to use the leave in an appropriate and safe manner: he must travel only to destinations which are agreed in advance with the clinical team; he must engage in therapeutic activities at institutions such as MIND; he must maintain complete abstinence from alcohol; and he must not engage in activities which breach clinical boundaries, for example gambling for other patients. I am concerned that if he continues to engage in these activities there may be a conflict with others and at such times Mr Gunaratnam’s risk may be increased.”
20. I pause there to say that, at that time, there was hope that the appellant would be able to be provided with unescorted leave. It was hoped that that might have been within the next month and then it would require the appellant to maintain a period of approximately four months of leave without changes in his mental state or risk profile before it would be considered appropriate to grant him day visits to a community placement. As I have said this was written on 15 December 2014, that is now over two years ago, and still there has not been the community placement for the reason that the appellant has not unfortunately shown himself compliant with the requirements of the clinicians and medical practitioners who surround him. It is apparent that the Mental Health Review Tribunal, who were considering the grant to Mr Gunaratnam of a conditional discharge, were doing so on the basis that some strict conditions were complied with. Those conditions included that he would be completely abstinent from alcohol and elicit substances and was to submit to screening. However, there was no evidence before the Judge in the appeal before him that he had complied with those conditions.
21. I have spent some time dealing with the appellant’s past medical history because that has been the subject of a challenge in the submissions made by Mr Sihwa that the Judge failed to take into account the totality of the evidence. It is true that the Judge did not refer to the material to which I have referred and limited his comment to two letters, one dated 25 May 2016 and the other dated 8 August 2016, part of which I have already referred to. The letter of 25 May 2016 was directed towards whether the appellant was able to appear in court in relation to his immigration hearing and it was suggested that he might need breaks. That was something that was dealt with by the Immigration Judge who expressly recorded that he considered the appellant had been fully able to engage with the proceedings.
22. I shall deal with what was said in May 2016 in summary terms. He was suffering and remains suffering from illnesses which have been diagnosed as (1) Schizoaffective Disorder, (2) Alcohol dependency Syndrome, (3) Insulin dependent Diabetis Mellitus, (4) Cirrhosis of the Liver – Physical health currently stable, and (5) Fluctuating confusion due to Hepatic Encephalopathy. It was said that he was somewhat improved by May 2016 and that was contrasted with the very pessimistic prognosis that was made on the last occasion. Dr Llewellyn-Jones wrote, although we have not been provided with a copy of that last letter,
“He seemed more stable although not well enough to have unescorted leave from the hospital since January 2016. He has had some successful treatment with antibiotics that have helped”.
It appears that the antibiotic treatment was to do with the cirrhosis of the liver and it was in this letter that it was said:
“He has never been an easy man to communicate with as he is very prone to distorting reality and placing himself in a good light. He often does not co-operate with accepting nursing requests for physical observations, and recently bought some paracetamol when he was on leave from the hospital (which he is not prescribed as it is metabolised by the liver). It is often difficult to know what information he does not understand and which information he is wilfully disregarding.”
23. In the later report of 8 August 2016 there was a diagnosis, in addition to those previously referred to, of life-threatening gastro-intestinal bleeding. This report also written by Dr Llewellyn-Jones refers to the fact that his physical health was poor; there were eleven admissions in the course of 2016 lasting at least overnight because of complications as a result of liver failure; they were admissions which took on a pattern requiring management rather than treatment. He needed specialist treatment at the Royal Free Hospital for a bleed of his oesophagus earlier in the year but that appears to have been treated successfully and it no longer features as a continuing difficulty. His level of confusion has been significant.
24. The report continues that he required support with dressing, feeding himself and sometimes washing and toileting. He is chronically disorientated and often it is difficult to have a conversation with him. He recognises people but often cannot bring their name to his mind. His level of functioning has significantly deteriorated in the last six months. The report continues:
“His prognosis is poor. He has seen a liver specialist, who states that he has a 50% chance of surviving the next 2 years. His treatment is only managed by a high level of support. He refuses his diabetes treatment and argues about his treatment for his liver failure (laxatives and antibiotics). Although he is somebody we were preparing for community discharge, it is now difficult to see where he could go because he needs such a high level of support. It is very difficult to know how his needs would be met if he was deported back to Sri Lanka.”
25. The crucial factor to consider in relation to the report of August 2016 is that there is no suggestion that there is treatment leading to a cure for the cirrhosis of the liver. There can be treatment by way of antibiotics in the sense of preventing bacterial infections but it is not suggested that the cirrhosis of the liver can be treated in a way that leads to a full recovery. His prognosis it is said is poor and even in the United Kingdom, he only has a 50% chance of surviving the next two years. What, perhaps, this report does not address is the position beyond two years. It strikes me as being unlikely that the appellant’s condition will improve and his ultimate survival is something on a knife edge. It is important to understand that this is the management of his condition by a high level of support, often against his own particular wishes. He appears to refuse his treatment for diabetes and argues against the treatment for liver failure. It is not a question of the medication being unavailable in Sri Lanka. The ‘treatment’, if that is what it is, for his cirrhosis of the liver, is a course of antibiotics and laxatives. Those are obviously available ain Sri Lanka, as is the treatment for his diabetes. As for the management of his condition, whilst that was originally thought to lie in the community, this appears to be rendered impossible because of his own attitude towards his illness. This means it has been conducted in the past by use of hospital admission. I was not told whether this is the case now.
26. We are not looking at treatment that will effect a cure. That is an important consideration and one which becomes particularly important in the context of the case-law. The original approach of the Tribunal towards Article 8 and serious illness was to consider the twin cases of D v United Kingdom [1997] and N v Secretary of State for the Home Department [2005] UKHL 31 in relation to the high threshold which existed in the cases of those who are going to be removed from the United Kingdom where they are seriously ill. That has been clarified by the decision of the European Court of Human rights in Paposhvili v Belgium (Application No.41738/10). This was heard on 13 December 2016 and, as I have said, postdated the Judge’s determination. The purpose of the hearing was to clarify the approach that has been adopted by certain member states which had signed up with the European Convention on Human rights. It is paragraph 183 which is crucial:
“The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v United Kingdom which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person to which substantial grounds had been shown for believing that he or she, although not at imminent risk of dying, would face a real risk on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment of being exposed to a serious rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.
27. It should be pointed out that the appellant in the case of Paposhvili had already died from the leukaemia which was the reason for the claim he brought before the European Court of Human Rights. It was a case involving an individual who was dying and which involved the treatment for that illness that was available in the United Kingdom but not elsewhere. It was not a case involving the management of a person who, like the appellant, appears to be dying from cirrhosis of the liver which has been the result of his abuse of alcohol. The appellant is not somebody who faces a real risk on account of the absence of appropriate treatment in the receiving country of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or a significant reduction in life expectancy. His life expectancy has already been affected by his cirrhosis of the liver. What we are concerned with is whether there is an obligation on the part of the UK authorities to continue to manage his illness as a result of the condition which, apparently, is irreversible and which cannot be treated. The issue is whether Sri Lanka lacks the capacity to manage his condition or lacks facilities for the appellant’s discharge into the community.
28. Pausing with the consideration of discharge into the community, there seems to be no prospect of that because of the appellant’s own attitude towards the treatment that he needs. There is a high level of support which is provided by care in a hospital setting, not for the purposes of treatment but to monitor compliance better. There was no suggestion when the matter came before the Judge that he was in a position to benefit from a community discharge. That is the first point that needs to be made.
29. The issue as I see it is whether or not there are facilities in Sri Lanka which, whilst not necessarily as good as facilities in the United Kingdom, would be able to provide for him within the context of a person who is suffering from cirrhosis of the liver. That appears to be conducted at the moment in the context of hospital treatment. There was treatment available when the appellant was originally admitted to a hospital in Sri Lanka when he first suffered a psychiatric illness (see paragraph 17 above). There is no evidence as to the quality of the care but clear evidence as to its availability. In most circumstances, it is the availability of care that is crucial. Although the appellant is confused, we are not directly concerned with a psychiatric illness in the usual sense and therefore those parts of the Reasons for Refusal Letter which deal with the availability of psychiatric treatment are not strictly relevant.
30. The Judge was dealing with a case where the appellant himself had wished the case to proceed and where no evidence had been submitted according to paragraph 35 of the determination as to the availability of treatment of the type that the appellant needed. The Judge referred to the provision of psychiatric treatment but as I have said that was not really the key issue. The question was the management of his illness and there is nothing to suggest that the management of the appellant’s condition required him to remain in the United Kingdom. We simply do not know what the type of support that might be provided in Sri Lanka for the particular needs of this appellant. All that we do know is that he does not readily respond to the care that is offered to him. He refuses his diabetes treatment and argues against the treatment for liver failure even though the treatment is relatively straightforward in the case of liver failure in the form of laxatives and antibiotics.
31. This is a person who is very difficult to manage. There is no saying whether his management in Sri Lanka is going to be any different from that which it is in the United Kingdom. There is clearly a risk that he will not survive the next two years. That is a risk that is going to exist in Sri Lanka as it is in the United Kingdom. On the material before the Judge there was no compelling evidence that the deprivation of treatment such as he has at the moment with the management of his condition could not be replicated in Sri Lanka. Inevitably, Dr Spencer was not able to say what facilities were available in Sri Lanka. In those circumstances I am not satisfied that the Judge made an error of law in his assessment of what was taking place. It is true that he did not have the assistance of the decision of Paposhvili v Belgium but, looking at the terms of that judgment, there is nothing to say that this would have resulted in a different outcome.

NOTICE OF DECISION

32. The Judge made no error on a point of law and the original determination of the appeal shall stand.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL