Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00314/2015 (V)

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 11 January 2022
and 9 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE KEBEDE
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

LB
(Anonymity Order made)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Bandegani, instructed by Greater Manchester Immigration Aid Unit (GMIAU)
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Guyana, born on 8 October 1966. She entered the United Kingdom on 18 December 2001 with leave to enter as a visitor, together with her three children. On 15 May 2002 she married AB, a British citizen, and on 28 February 2003 she was granted leave to remain as a spouse. On 19 May 2004 she was granted indefinite leave to remain.

2. On 19 April 2005, further to her arrest in 2004, the appellant was convicted of conspiracy to produce a controlled class A drug, cocaine, and conspiracy to become concerned in an arrangement to facilitate the acquisition, retention, use or control of criminal property, for which she was sentenced on 27 February 2006 to 18 years’ imprisonment. A deportation order was signed against the appellant on 9 January 2014 and a deportation decision was made, against which she appealed unsuccessfully, on Article 8 human rights grounds, on 30 May 2014. On 28 July 2014 she became appeal rights exhausted.

3. On 21 August 2014 the appellant made a claim for asylum. On 5 June 2015 the respondent made a deportation decision in which her asylum and human rights claims were refused.

4. The appellant’s appeal against that decision was dismissed by First-tier Tribunal Judge Buckwell on 20 May 2016. However, following judicial review proceedings, permission was eventually granted to appeal the decision to the Upper Tribunal and the decision was set aside by Deputy Upper Tribunal Judge Woodcraft on 12 November 2018 and the case remitted to the First-tier Tribunal for a de novo hearing. As the respondent had changed her position during the hearing before Deputy Upper Tribunal Judge Woodcraft and was resiling from parts of the refusal letter, a ‘supplementary decision letter’ was issued by the respondent on 7 November 2019 and that was the decision considered by the First-tier Tribunal at a hearing on 20 November 2019.

5. In that decision, the respondent rejected the submissions made on behalf of the appellant seeking to rebut the presumption in section 72 of the Nationality, Immigration Act 2002 that she had been convicted of a particularly serious crime and constituted a danger to the community. The respondent considered the sentencing remarks of the Crown Court Judge which referred to the appellant’s involvement, together with BC, with whom she was in a relationship at the time of her marriage to AB, in a global conspiracy as part of a criminal enterprise based in the UK as well as France, USA, Canada and the Caribbean, which generated an income of £48 million in the UK alone from the large-scale importation and distribution of crack cocaine. The Crown Court Judge described the appellant and her partner as being part of a multinational, organised crime syndicate and as being jointly responsible for the day to day running of a crack factory. The respondent certified that the presumption in section 72(2) applied to the appellant, with the effect that she was excluded from the benefit of the Refugee Convention and from humanitarian protection.

6. As regards the appellant’s claim to be at risk in Guyana, the respondent noted that the claim was two-fold. The appellant claimed to be at risk from a gang of which her brother M had been a member and that, following his disagreement with the gang, she and her sister were kidnapped and held for a month, and questioned about her brother, beaten, raped and tortured, before being helped to escape by one of the gang members who was later killed. The appellant fled to Dutch Guyana and then French Guyana and received indefinite leave to remain there, before coming to the UK in December 2001. The appellant claimed also to be at risk as a result of providing the police with information as part of a plea-bargain in relation to the drug conspiracy. She claimed to have been openly threatened by BC at the trial and to have received threats under her cell door via a Serco employee. BC had since completed his sentence and been deported to Guyana. Her son D, who lived in French Guyana, received two anonymous telephone calls in August 2015 informing him they knew she had been released from prison and he was shot in the back in November 2015 and murdered on 12 February 2017. The appellant believed that his death was connected to BC and that she would be killed by BC and the other co-defendants if she returned to Guyana.

7. The respondent did not accept the appellant’s account of being kidnapped in Guyana and considered that even if the account was true, she would not be at risk on return to Guyana on that basis, in particular as her brother M had since been killed by the police whilst he was with other gang members. The respondent did not accept the appellant’s account of being threatened by her co-defendants, having never previously mentioned such threats until August 2014, a decade after first appearing in court. The respondent noted that the appellant had never previously mentioned a son D and considered that she had failed to demonstrate that his death had any connection to her claimed problems with her co-defendants. The respondent considered that the appellant could return to Guyana, but even if her claim was accepted, she could return to French Guyana. The respondent considered the appellant’s medical problems including her mental health and the risk of suicide but concluded that the Article 3 threshold was not met on that basis and that the exceptions to deportation under Article 8 did not apply. Her children were all adults and were not dependent upon her for her care and her criminal offending outweighed her Article 8 human rights.

8. The appellant’s appeal was heard on 20 November 2019 by First-tier Tribunal Judge Thew. Judge Thew noted that the appellant was released from custody in April 2015 and remained on licence until the end of her sentence on 23 June 2022. She considered that, despite the probation service reports concluding that the appellant posed a low risk of re-offending, the appellant had failed to rebut the presumption in section 72 of the NIAA 2002 to show that she had ceased to be a danger to the community. She accordingly upheld the section 72 certificate, as a result of which she found that the appellant was excluded from the protection from the Refugee Convention and excluded from a grant of humanitarian protection. The judge went on to consider Article 3 and the various medical reports and found it to be evident that the appellant had significant mental health issues. She found no reason to reject the appellant’s account of being detained and abused by a gang in Guyana together with her sister, although she concluded that there was no current risk to the appellant in Guyana on that basis. She did not make any credibility findings on the appellant’s claim to have been threatened by, and to be at risk from, BC, nor on the circumstances of the death of her son in French Guyana. She concluded, however, that the extremely serious nature of the appellant’s offending weighed very heavily in the balance against her and that the Article 3 threshold was not met on the basis of the appellant’s mental health or otherwise and she considered that the respondent’s decision was a proportionate one which did not breach Article 8. She accordingly dismissed the appeal.

9. The appellant sought, and was granted, permission to appeal to the Upper Tribunal. The appeal was heard on 19 April 2021 (by UTJ Kebede sitting alone) and, in a decision promulgated on 10 May 2021, it was concluded that the judge had made material errors of law in her decision, on the following basis:

“12. I cannot agree with the assertion in the respondent’s rule 24 response that the judge’s findings on Article 3 can be explained in a way that would not have impacted materially upon the decision as a whole. The judge clearly misdirected herself at [65] when importing a balancing exercise into her Article 3 assessment, as the second ground of appeal asserts. The submissions in the rule 24 response suggest that the judge was in fact making an Article 8 assessment and referred to Article 3 in error, but I cannot see how that could be the case, when there are otherwise no actual conclusions on Article 3. I do not see how that could be interpreted as a mistake and consider it to be a fundamental and material error.

13. Furthermore, it is of note that the judge’s Article 3 assessment was based almost exclusively on health issues, with limited findings on the risk on return in relation to the asylum-related grounds. At [41] the judge set out the appellant’s claim to be at risk on return to Guyana and referred to the respondent’s response, but made no findings at that point and instead, at [42], went on to consider her health issues. At [51] the judge made findings on the appellant’s claim in relation to past abuse in Guyana arising from her brother Michael’s gang involvement, concluding that the account was credible but did not give rise to a risk on return. Then, somewhat bizarrely, when referring at [52] to the second strand of the appellant’s claim, to be at risk in the UK from her co-defendant in relation to the criminal proceedings, the judge declined to make credibility findings because of the exclusion of the asylum and humanitarian protection claims as a result of the section 72 certificate and made some observations but no actual findings or conclusions on the question of risk on return on that basis. The same approach appears at [55] and then from [56] the judge returned to a consideration of the appellant’s health matters. The judge clearly misdirected herself in relation to her credibility assessment and made no clear findings as to the Article 3 risk on return arising from the criminal proceedings in the UK. Accordingly the judge’s findings and conclusions on Article 3 fail to take into account all relevant considerations, as the third ground asserts, and as such the decision is legally flawed on that basis as well.

14. I do not, however, find merit in the first ground of appeal challenging the judge’s decision on the section 72 certification. I agree with the submission made in the respondent’s rule 24 response in that regard, that the grounds over-emphasise the judge’s reference to the public interest, at [33]. I do not agree with the assertion in the grounds that that demonstrated that the judge had conflated the legal test to be applied under section 72 and section 117(C) of the NIAA 2002. Whilst the judge’s findings at that point could perhaps have been better expressed, I agree with the rule 24 response at [3], that the reference to the public interest was made within the context of establishing the nature of the appellant’s offence and the impact on society. The judge’s assessment of the relevant question under section 72 was a detailed and comprehensive one and included a very careful consideration of the documentary evidence, taking full account of the positive nature of much of the evidence but also providing cogent reasons for concluding, ultimately, that the presumption had not been rebutted.

15. Accordingly, for the reasons I have given and in light of the concession made by Ms Cunha, I set aside the judge’s findings and conclusions on Article 3. Although there are no particular concerns about the judge’s assessment of the appellant’s health issues under Article 3, I note that that was argued by Mr Bandegani as part of the overall Article 3 assessment together with the question of risk on return and therefore the entire assessment must be re-made. However, in view of the fact that I find no error of law in the judge’s section 72 assessment and findings, I do not consider it appropriate for the matter to go back to the First-tier Tribunal. The matter has already been remitted once previously in any event. Accordingly, the case will be retained in the Upper Tribunal.

16. I therefore set aside Judge Thew’s decision. The case will be listed for a resumed hearing in the Upper Tribunal to re-make the decision on Article 3. The judge’s findings on the section 72 certification are preserved.”

Hearing and Submissions

10. The case was then listed for a resumed hearing and came before the Upper Tribunal again (Upper Tribunal Judge Kebede and Deputy Upper Tribunal Judge Haria, sitting as a panel) on 11 January 2022, to re-make the decision on Article 3. The appellant was represented by Mr Bandegani, instructed by JCWI, as she had been in her previous appeals from 2016 onwards, and Mr Kotas appeared for the Secretary of State. The appellant’s representatives had prepared and submitted a skeleton argument for the hearing and a consolidated, core bundle (“Bundle A”), together with a medical evidence bundle (“Bundle B”), which included more recent medical evidence including a report from Dr Alicia Griffiths, a Highly Specialised Clinical Psychologist, who had diagnosed the appellant as suffering from severe and complex PTSD and Major Depressive Disorder.

11. The appellant did not give evidence before the Upper Tribunal, owing to her mental health and vulnerability. However, there was oral evidence from her son J who confirmed that he had lost his job in 2019 and was not working and was covering his living costs with universal credit, that his brother was not in good health and took medication for depression, that his sister was working for the council and that his mother lived by herself.

12. Following completion of the oral evidence and the commencement of submissions by Mr Kotas, it became apparent that the respondent’s challenge to the appellant’s credibility involved detailed references to the evidence which Mr Bandegani would need time to consider and address. Both parties agreed that the most appropriate course would be for Mr Kotas to put his detailed submissions in writing and for Mr Bandegani to then be given a period of time to respond after taking instructions from the appellant, following which the hearing could resume for brief, final submissions without the appellant being required to attend. The appeal was accordingly adjourned part-heard.

13. Written submissions dated 31 January 2022 were then produced by Mr Kotas and a written response and submissions dated 11 March 2022 were received from the appellant’s representatives on 17 March 2022, together with a “Submissions Bundle” (“Bundle C”). That bundle included inter alia a witness statement from the appellant’s solicitor Nicola Burgess and a letter from Dr Alicia Griffiths responding to the respondent’s submissions relating to her previous report and was accompanied by a request made under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for it to be admitted.

14. The matter then came us on 9 June 2022, following a postponement of a prior date of 15 March 2022 owing to Mr Bandegani being unavailable. On this occasion the parties attended remotely, by way of video-link, which proceeded without problems. In light of the fact that there was a differently constituted panel of the Tribunal we canvassed the parties as to whether there was any objection to the hearing resuming without a need to start afresh, taking account of the oral evidence previously given by the appellant’s son J. Neither party had any objection.

15. Both Mr Kotas and Mr Bandegani relied upon their written submissions. There were some additional matters which required further discussion. In relation to the appellant’s rule 15(2A) application, Mr Kotas objected to Bundle C being admitted, although he was content for the letter from Dr Griffiths to be admitted as that had previously been agreed. He submitted that the documents ought to have been produced for the previous, adjourned hearing and that, aside from Dr Griffiths’ report, there had never been any agreement for further evidence to be submitted. However, we agreed with Mr Bandegani that the previous hearing was adjourned as a result of Mr Kotas raising numerous credibility issues in his submissions which had not previously been raised and which it was agreed the appellant ought to have an opportunity to address. We accepted that the contents of the bundle were part of the appellant’s response to the respondent’s written submissions. Furthermore, we did not see how the respondent was prejudiced by the Tribunal admitting and considering the bundle, given that she had had almost three months to object to it being admitted but had not done so prior to the hearing, and considering that Mr Kotas confirmed that he had read it and did not require further time to consider its contents. Likewise, we refused Mr Kotas’s request to cross-examine Ms Burgess as we did not consider that to be appropriate and noted in any event that there had been no prior notice given of an intention to do so despite her statement having been provided to the respondent almost three months earlier. We made it clear, however, that in considering Ms Burgess’s statement we would take account of the fact that her evidence had not been subjected to any questions by the respondent.

16. We also enquired of Mr Bandegani as to whether the appellant was pursuing a discrete Article 8 claim as it did not appear from the previous proceedings that that remained a live issue. Mr Bandegani helpfully confirmed that it was not considered that Article 8 added to the appellant’s Article 3 claim. Finally, we raised some questions about the respondent’s reliance upon the appellant’s ability to benefit from the Facilitated Return Scheme (FRS). Mr Kotas referred us to the decision of the Upper Tribunal in SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37, where it was said at [26] that “ In considering the grounds of appeal in s84(1), therefore, it is clear that a court or Tribunal is concerned with the consequences of enforced removal by the Secretary of State and not with the possibility of voluntary return.” He accepted that that may undermine the Secretary of State’s position. Both Mr Kotas and Mr Bandegani accepted that it was for the Tribunal to make a finding of fact, on the evidence, as to whether the appellant would leave the UK voluntarily. However, following the hearing Mr Bandegani sent in a brief written submission in response to that point, asserting that in light of SA (Iraq), the Tribunal should not determine the consequences of the appellant possibly voluntarily returning to Guyana.

Discussion and Findings

17. It is relevant to state at this point that both members of the panel have contributed to the writing up of this decision.

18. The sole issue before us is the claim that the appellant’s removal to Guyana would give rise to a breach of the UK’s obligations under Article 3 of the ECHR. Mr Bandegani confirmed that Article 8 was not argued as a discrete issue as it did not add to the appellant’s claim, an acknowledgement which we accept, considering the strong public interest in deporting a person involved in such criminal activity as reflected by the appellant’s sentence. Article 3, on the contrary, is an absolute, unconditional right which does not involve any balancing of the public interest against the appellant’s own circumstances. Accordingly, irrespective of the seriousness of the appellant’s crime and the very lengthy sentence imposed upon her, and despite the high profile nature of this case and the wide-reaching impact of the gang’s activities, the appellant’s criminal past cannot form any part of our consideration of her Article 3 claim save in so far as it impacts in any way on the reliability and credibility of her evidence and on the risk she would face in Guyana, for example from her former co-conspirators or by reason of her vulnerability and psychological condition. It is important to stress these basic legal principles.

19. As Mr Kotas properly noted, there are three strands to the appellant’s case: her experiences in Guyana of being kidnapped, detained and tortured by the gang of which her brother M was formerly a member; the threats from her former partner and co-conspirator, BC, and her fear of reprisals on return to Guyana; and the Article 3 claim based upon her mental health and the circumstances to which she would be returning in Guyana.

20. Whilst the appellant quite rightly is not pursuing a claim to be at risk in Guyana based upon the first of these strands, given in particular the passage of time and the fact that her brother M has since died, it is nevertheless necessary to make findings on her account since, as Mr Kotas observed in his submissions, that was relevant to the overall assessment of her mental health. We therefore start by considering the appellant’s account and, in so doing, we note that both Judge Buckwell and Judge Thew accepted her claim to have been detained, abused and tortured by a gang and Judge Buckley specifically accepted that that directly related to her late brother M. Their conclusions in that regard were not challenged by the respondent, although we note that both their decisions were set aside with no specific indication of any findings being preserved, and that the respondent has consistently maintained that the account was a fabrication.

21. Having assessed the evidence for ourselves we accept that the appellant has provided a genuine account of being detained and tortured by gang members in Guyana. The evidence is not entirely without discrepancies, as Mr Kotas has pointed out, but we are satisfied that the medical evidence and the background country information sufficiently supports a conclusion that such events indeed occurred, and that the trauma of the events has contributed to the appellant’s psychological condition and to the accuracy of her recollection of events and dates. We address Mr Kotas’s submissions in that respect, as follows.

22. At [16] to [25] of his written submissions, Mr Kotas set out various discrepancies in the evidence upon which he relied in asserting that the appellant’s account was a fabrication, in relation to the circumstances under which she and her sister were detained and the ill-treatment to which they were subjected, and her account of her contact with her family, comparing the evidence given by the appellant at her asylum interview in November 2014 to the account she gave to the medical practitioners in March and November 2016 in the scarring and psychiatric report from Dr Lohawala and the rule 35 report from Dr Ward, and in her own witness statement. We have carefully considered each of these points but find that none can be said to reveal direct contradictions. On the contrary the detailed account given by the appellant of that period of time and the ill-treatment she suffered remained broadly consistent throughout the various stages of the proceedings, in her interviews with the Home Office and the medical practitioners, her communications with the various health support workers and her own statements. Mr Kotas’s focus on isolated and narrow parts of the evidence ignores the wider picture and the overall consistency of the appellant’s detailed narrative and ignores the clinical observations of the various medical practitioners, all of whom were confident in opining that the appellant’s mental health problems were very much consistent with her experiences at that time. We refer, furthermore, to [7] of Dr Griffiths’ letter of 28 February 2022, where she referred to the impact of PTSD and depression on a person’s memory and recall and stated that “peripheral details if traumatic events were particularly likely to be inconsistent and with severe levels of PTSD, the longer the delay between the interviews, the more likely the details of stories were to change”. As for Mr Kotas’s view, that the appellant’s account of one of the gang members helping her and her sister to escape from detention was “deeply implausible”, we find no reason why that is so, and we note that Mr Kotas makes no reference to the appellant’s claim that that gang member was subsequently killed for his part in their escape.

23. In so far as the medical reports support the appellant’s claim, both with respect to the consistency of her scars and her mental health with the experiences she has recounted, and in relation to the extent of her vulnerability, Mr Kotas submitted that both were of limited weight, being predicated upon an acceptance of the appellant’s account. Further, at [22] of his written submissions, Mr Kotas submitted that Dr Lohawala was not suitably qualified to give an opinion on the causation of the appellant’s scars. With regard to the latter, we find there to be no reason why we should not accept Dr Lohawala’s expertise as a scarring expert. Whilst his primary discipline is in the field of psychiatry, his CV refers to the fact that he volunteered for two years as a medico-legal report writer for the Medical Foundation/ Freedom from Torture and prepared specialist scarring reports for that organisation, having received specialist training in that area. The Medical Foundation/ Freedom from Torture is a highly respected organisation whose reports are accorded weight by the Secretary of State and the Tribunal, and it seems to us that that experience would have adequately prepared him for providing expert reports such as that prepared in this case. We note Dr Lohawala’s confirmation, at [6.4] and [6.25], that the report was prepared in line with the Istanbul Protocol, and we accept that his conclusions are consistent with the terminology provided for in the protocol.

24. As for Mr Kotas’s submission that Dr Lohawala’s and Dr Griffith’s reports were predicated upon an acceptance of the appellant’s account, we note that Dr Griffith opined at paragraph 6.25 of her report of 4 January 2022 that: “her psychological sequela are, in my opinion, directly attributable to the traumatic experiences she has described… [LB]’s presentation is entirely consistent with her claimed account.” We also take account of Dr Griffith’s response to Mr Kotas’s suggestion in her letter of 28 February 2022, where she stated at [2] of her letter, that “my opinions…remain even if her accounts of events in Guyana including reasons for leaving and mistreatment of gangs were not accepted to be true by the tribunal… because the assessment I made is objective and not based only on [LB]’s account relating to self-report but an assessment of all of the available evidence.” It is clear that neither expert took the appellant’s account at face value and we conclude that both were and are amply qualified to provide reliable expert opinions.

25. In any event, whilst these medical reports were prepared for the purpose of the deportation proceedings before the Tribunal, they do not stand alone in supporting the appellant’s account, albeit that they provide the most detailed account aside from the appellant’s own statements. The expert opinions of Dr Griffiths and Dr Lohawala are supported by the evidence from the Mental Health and PTSD team at St Ann’s Hospital in Haringey, to which the appellant was referred in March 2017 when her mental health deteriorated after the death of her son, and which includes letters from a consultant psychiatrist (page 60 of the medical bundle), an associate specialist (pages 41 to 55), a clinical psychologist (pages 37 and 57), a CMHN care coordinator (page 57) and an associate mental health worker (pages 39 to 42). The letters testify to the appellant’s mental health over a period of time, and we note the specific references in the letter dated 8 August 2019 from the CMHN care coordinator (page 57) to the appellant’s experiences of rape which led her to flee Guyana. In addition, the reports are supported by the various letters of support from the Community Link Project, WISH, with which the appellant was involved whilst in prison and continued to be involved subsequent to her release into the community, and which refer to the death of her son bringing back memories of her traumatic past and to her earlier experience of being kidnapped and raped. We refer in particular to the letter of 12 April 2019 from the Community Link Manager (page 57 of the core bundle) and the letters from the Community Link Worker, Kelly Royer, at pages 60 and 61.

26. Accordingly, we consider there to be more than ample evidence to support the appellant’s claim of her experiences in Guyana leading to her departure and we do not consider that the limited discrepancies relied upon by Mr Kotas undermine the overall credibility of the appellant’s account. Having had regard to all the available evidence, we therefore accept the appellant’s account of her experience of being detained and tortured by gang members in Guyana and we also accept the link to her brother M.

27. Turning to the appellant’s account of being threatened by BC due to having provided information to the police to ensure a lighter sentence, and of being at risk on return to Guyana on that basis, we note that the appellant’s account is rejected by the respondent on the grounds that it was not raised until some ten years after the claimed threats were initially made. The respondent’s reasons are set out at length at [47] to [63] of the supplementary refusal decision of 7 November 2019, where it is noted that the appellant was first arrested in 2004, she first appeared in court on 24 June 2004, she was convicted on 19 April 2005 and sentenced on 27 February 2006, yet no mention was made of the threat until her asylum claim of 21 August 2014, despite there having been plenty of opportunity for her to have communicated her fears to any of the officials with whom she had contact or her own legal team. The appellant’s explanation for that, namely that she was too scared to mention the matter until she knew that BC had been deported and was no longer in the UK, was rejected by the respondent as not being credible. The respondent did not accept that the appellant had provided information to the police in any event. Neither did the respondent accept the appellant’s account of her son D being killed as a result of having passed on such information or that his death had any connection to her own problems. Mr Kotas, in his submissions at [26] to [38], maintained that view and asked us to reject the appellant’s account of having passed information to the police and of that information having been leaked by prison guards or the police to BC, and to reject the account of the appellant’s son’s death being related to her own issues.

28. We do have some difficulty in accepting the appellant’s claim in this regard. We accept that it is not entirely implausible that information about the appellant assisting the police could have become known to her co-conspirators and that elements within the prison or detention security services were open to being bribed to pass on messages to her. However, as Mr Kotas submitted at [27] of his written submissions, there was no evidence of the appellant having passed on any useful information to the police and no indication of that within the evidence, other than her own account. Further, we have difficulty accepting the reasons provided by the appellant for her failure to mention her fear of her co-conspirators until August 2014, in particular her failure to mention this to her legal team during the deportation proceedings leading up to the appeal in May 2014, by which time she would have been aware that BC had either been deported or was about to be deported. We also accept Mr Kotas’s submission at [29] that if BC was a man of such notoriety with such international connections, it is not unreasonable to expect that he would have threatened the appellant either directly or (if he was no longer in the UK) indirectly since her release into the community if he retained any interest in her. Like Mr Kotas, we find the appellant’s claim that her son D was targeted and killed as a reprisal for betraying BC, to be highly tenuous and speculative, particularly in light of her claim to have lost contact with him and to have had no knowledge of his whereabouts for several years. We conclude, therefore, that there has been some exaggeration by the appellant of the details provided in relation to this aspect of her claim and we do not accept that there is sufficient reason to accept that she has demonstrated a real risk on return to Guyana on such a basis. We do not go so far as to say that she is being deliberately untruthful about the matter, but we consider that the reality of the situation at the time is not entirely as she has described it.

29. Nevertheless, we do accept that there is some basis for the appellant’s fear in this regard and we accept that she has a genuine subjective fear of BC. It is clear from the media articles in the appellant’s core bundle about the particular gang with which the appellant and BC were involved that BC is, or certainly was, a dangerous and violent man. The report at page 553 refers to him having escaped from prison abroad prior to coming to the UK and having stabbed a prison officer in Guyana. There is reference in the evidence to the appellant’s relationship with BC involving violence and abuse. The letters from WISH refer to the appellant’s fear for her safety in Guyana (page 56 of the core bundle) and her guilt over her son’s death as having been connected to her own situation (page 61). The PTSD team at St Ann’s Hospital also refer to the appellant feeling responsible for D’s death (page 54 of the medical bundle). Dr Griffith’s report, likewise, refers to the appellant’s fear of BC and her belief that her son D was killed because of her own previous associations (page 21, para 6.41 and page 24, paragraph 6.56 and 6.58 of the medical bundle). There is therefore sufficient support in the evidence relating to the appellant’s mental health to suggest that, whether by reason of her fragile mental state or otherwise, she genuinely believes herself to be at risk from BC and believes that she would be targeted on return to Guyana. The report of the Centre of Cosmopolitan Studies at page 69 of the core bundle, in particular the conclusion at page 82, refers to the small scale of the country and the ease with which people can be found, and that is consistent with the appellant’s claim to be fearful of being easily located if she returns there. Although that may not be a basis for concluding that she would be at risk on return to that country on objective grounds, it is a relevant consideration when assessing Article 3 in the context of her psychological state and her overall circumstances on return. We therefore turn to that last strand of the appellant’s case.

30. We have referred above to the evidence of the appellant’s mental health issues, confirmed not only in the expert reports prepared specifically for the deportation proceedings, but also in the various letters and reports from St Ann’s Hospital mental health and PTSD team and the community link project WISH which refer to the decline in her mental health over an extended period of time and the treatment and support with which she was provided over several years. The respondent does not dispute that the appellant suffers from PTSD and major depressive disorder, as diagnosed by the various medical experts. However, the respondent considers that her conditions are not rooted in the causes claimed but have arisen as a result of other factors such as a difficult childhood which included the appellant’s early loss of her parents, sexual abuse by an uncle, being forced into prostitution in Guyana, issues with accommodation and homelessness in the UK, her earlier separation from her children who were placed in foster care, and the threat of deportation. For the reasons given above, we have found the appellant’s account of her kidnap and torture by gang members in Guyana to be true and we accept that that forms a significant cause of her psychological condition. (We refer again to the report of Dr Griffiths of 4 January 2022 at paragraphs 5.1, 6.3, 6.25 to 6.27, 6.56 and 7.1). Likewise, we have found that the appellant has a genuine and subjective fear of being found by BC in Guyana and genuinely believes herself to be responsible for the death of her son D, both of which are also factors contributing to the decline in her mental health, again as confirmed by Dr Griffiths throughout her report and in particular at paragraphs 5.1, 6.41, 6.56 and 7.1. The medical reports and the letters from WISH and St Ann’s Hospital all make it clear that her mental health significantly deteriorated with the news that her son had been shot and subsequently killed and that this then brought back the trauma of her torture in Guyana, and we refer by way of example to a report from Dr Edelman, Consultant Psychiatrist at St Ann’s Hospital’s, dated 12 April 2019, at page 60 of the medical bundle.

31. Having so observed, we note that there is a very high threshold to meet in order to meet the test for establishing an Article 3 claim. That test is set out in AM (Article 3, health cases) Zimbabwe [2022] UKUT 131, where the Supreme Court endorsed the test in medical cases for establishing an Article 3 case is that set out at [183] of Paposhvili, namely:

“substantial grounds … 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.”

32. That test was found, in the case of MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232, to apply also in suicide cases, where the six principles identified at [26] - [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) continued to apply. The test was also extended, in the case of Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203, to cases of material deprivation, a matter upon which the appellant also relies when asserting that she would face destitution in Guyana owing to her lack of support in that country.

33. We note that Mr Bandegani emphasised, in his submissions before Judge Thew, that the appellant’s appeal was not a paradigm case on health grounds but was one encompassing all of the circumstances relating to the appellant’s health, deportation, lack of family support and lack of support from the state on return. He did not make the same specific submission before us, but it seems to us that that has to be correct. There is strong evidence of the appellant’s vulnerability in terms of her mental health, but we do not consider that that alone would be sufficient to meet the Article 3 test, considering in particular that the evidence does not suggest that she is currently suicidal or unable to take care of herself, that she is not in receipt of regular treatment and she is living alone and thus capable of looking after herself, albeit with the support of her children, in particular her daughter. We therefore assess all of the factors which could be said to give rise to the appellant being at risk of “being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy”.

34. We start with the appellant’s mental health and, in so doing, we consider first of all the reports from Dr Lohawala, Dr Griffiths and other mental health professionals.

35. Dr Lohawala’s report is now of some vintage, having been prepared on 10 March 2016. At that time, his opinion was that there would be a deterioration in the appellant’s condition if she were deported to Guyana, which he considered to be as a result of removing her from the many protective factors in the UK: paragraph 8.7.1 “ …being part of a family, giving and receiving attention from the family and voluntary organisation she works for as well as having a meaning and purpose in life…” and paragraph 8.9.1: “support from family satisfies an important emotional need. If this were to be removed, this would increase the chances of [LB]’s mental health deteriorating as well as a risk of self-harm and suicide.”. As for her ability to access treatment in Guyana, he opined at paragraph 8.6.1 that: “…the main problem, even if the support were to be available, would be one of engagement with the support and services…”

36. In a report of 12 April 2019 Dr Edelman, a Consultant Psychiatrist at St Ann’s Hospital, concluded (page 61 of the medical bundle, Bundle B) that: “If her deportation were to become a realistic prospect then it is likely that her suicidal impulses would intensify and she could be at risk of impulsive self-harming behaviour.” In a letter dated 14 December 2021, Dr Lucy Butler, a Senior Clinical Psychologist at St Ann’s Hospital (page 37 of Bundle B) referred to the appellant having been under the care of their mental health team since December 2017 and stated: “The chronicity and complexity to her mental health needs is a dynamic risk factor and demonstrates the severity of her needs…”

37. In her report of 4 January 2022 Dr Griffiths, at paragraph 6.23, considered that the appellant, although not currently suicidal, was at high risk if the protective factors from which she benefitted in the UK were removed. Those protective factors, as described at paragraphs 6.33 to 6.37, included her daughter, WISH and the PTSD team at St Ann’s Hospital. At paragraph 6.39 Dr Griffiths described the significant impact on the appellant’s mental health if she were removed from the UK, including the worsening of the severe and complex PTSD and major depression from which she was suffering. At paragraph 6.40 she referred to the impact on the appellant of the lack of social support, her inability to access support and her vulnerability to harm, all of which increased the risk of suicide. At paragraph 6.41 she referred to the appellant’s subjective fear of BC and the impact that that would have on her mental health if she returned to Guyana: “Therefore, alongside her current symptoms of PTSD, if she is returned she is likely to be living in constant fear and would have a much compromised quality of life.” Dr Griffiths went on to refer to the risk of destitution and likelihood of exploitation. Significantly, Dr Griffiths opined on the appellant’s ability to engage with medical services in Guyana if they existed, concluding at paragraphs 6.44 to 6.50 that she would not be able to engage with such services and that her mental health would seriously decline to an extent that her suicide ideation would increase. We provide some extracts from her opinion as follows:

“6.44. In my clinical opinion,…ability to seek support for her medical needs, is heavily compromised by her current diagnoses of complex PTSD and major depression which are likely to worsen if she is returned to Guyana….would struggle significantly on returning to Guyana in all aspects of her capacity to fend for herself and cope with her mental health and psychological difficulties. Her psychological problems compound her capacity to engage in skills required for her to live independently and support herself and because she requires the support of professional services, and relies on her current support network in the UK, I believe that she would be highly vulnerable…

6.46…In my opinion, I believe that a forced removal to Guyana would inhibit her ability to access any available treatment independently especially as described, her symptomology is likely to worsen.

6.49. In my opinion removal would have a significantly detrimental effect on her mental health and well-being and I believe that [LB]’s mental health is likely to deteriorate further if she is returned to Guyana. She is preoccupied by fear relating to forced removal from the UK. She is suffering with severe and complex PTSD and Major Depression. Both of these could worsen if she is forcibly removed to Guyana and if she is unable to access the recommended treatment and living in threat…she would be living in constant threat (due to the past trauma as well as fear of threat from her ex-partner), without any social or potentially medical support. This is likely to result in intense suffering (increase in PTSD symptomology and depression symptoms) and could increase her suicidal ideation.”

38. We have already referred, above, to Dr Griffiths’ letter of 28 February 2022 responding to the respondent’s submissions and we note further that she refers to the deterioration in the appellant’s risk of suicide since Dr Lohawala’s report, “especially as she is growing more hopeless and anxious with regards to fear of return to Guyana.”

39. Finally, we come to the statement from the appellant’s own solicitor, Ms Burgess, formerly the Legal Director at JCWI and currently a solicitor at the Greater Manchester Immigration Aid Unit (GMIAU). As we have already mentioned, we refused Mr Kotas’s request to cross-examine Ms Burgess and we therefore approach her statement on the basis that it has not been subjected to any questions or enquiry. Having said that, we have no real reason to doubt the reliability of Ms Burgess’s evidence, given her position and legal status. We appreciate that it is unusual to be provided with supporting statements from an appellant’s legal representative, but we understand that Ms Burgess plainly felt it necessary to express her own concerns about the appellant, having acted for her since October 2014 and observed her over many years, in her previous role at JCWI and her current role at the GMIAU. At [5] of her statement she refers to the appellant as “…one of the most vulnerable clients I have worked with in my 16-year career to date…”. At [11] to [14] she provided her observations of the appellant when she was present at the psychological assessment with Dr Griffiths, noting that at one point the appellant was so distraught that she tried to physically distance herself by putting her coat over her head (as consistent with Dr Griffiths’ report of 4 January 2022 at paragraph 3.1.1). She stated that she found the appointment to be deeply upsetting and that “LB’s evident trauma was visceral.”

40. Drawing all of these conclusions and opinions together, it is clear that there is a consensus amongst all the medical professionals, both those who have been treating the appellant over a number of years and those who have provided reports specifically for the deportation proceedings following time-limited sessions, that the appellant is a very vulnerable woman who has complex mental health issues arising from her past experiences in Guyana and her fear of returning there. Although the appellant is not said to be a suicide risk presently, it is a common theme throughout the reports that her mental health condition would significantly deteriorate and that her suicide risk would increase if she were removed from the protective factors from which she benefitted in the UK, in particular her children, the PTSD team at St Ann’s Hospital and the organisation WISH. The information relied upon by the respondent in the supplementary refusal decision at [137] to support her claim that mental health treatment would be available to the appellant in Guyana dates back to 2016 and 2017, and in any event paints a dismal picture of available support, referring to Guyana as having the highest suicide rates in the world and to mental health having been placed on the back burner. That is consistent with the conclusions in the addendum country expert report by Dr Wardle and Laura Obermuller from the Centre for Cosmopolitan Studies at page 82 of the core bundle, Bundle A, referring to the high suicide rate in Guyana, the limited number of psychiatrists in the country and the insufficient and inefficiently used resources for mental health care, and to the discrimination suffered by people with mental disorders, the pervasive stigma against the mentally ill and the lack of safeguards to protect individuals with mental illness. Further and more recent supporting country evidence is provided in Bundle A and we refer in particular to a report of 19 July 2019 from ‘The Borgen Project’ at page 718 of the bundle, which also describe the limited resources for mental healthcare in Guyana. In any event, it was Dr Griffiths’ opinion, as referred to above, that the appellant would be incapable of engaging with medical health services, even if it was available, owing to her mental health condition.

41. In addition, it has already been established that the appellant would constantly be living in fear, owing to her subjective fear of reprisals from BC, and we refer again to paragraph 6.49 of Dr Griffiths’ report in that respect. Furthermore, the risk of the appellant being homeless, destitute and vulnerable to exploitation were all matters identified by Dr Griffiths in her report, as we have mentioned above. We refer again to paragraph 6.41 of her report where she referred to the “risk of facing destitution which would increase her vulnerability further and in particular lead to an increased likelihood of exploitation.” There is no dispute that the appellant has no family members in Guyana. She has not lived there for over 20 years and has no support network or means of support there and nowhere to live. Her children in the UK have all provided statements to confirm their inability to provide any financial support for her: her son C is unemployed and struggles to support himself; her daughter L has a temporary job, due to end this month, and is struggling to support herself; and her son J relies upon universal credit, having lost his job during the pandemic. We find no reason to doubt that evidence and note that the appellant was recently made homeless after having to leave her ex-mother-in-law’s house. The appellant’s mental health condition is said to be an obstacle to her finding ways to support herself in Guyana and we note Dr Griffiths’ observation at paragraph 6.60 of her 4 January 2022 report, that the appellant “has not acquired skills or any psychological resilience to look after herself independently…”.

42. As for the respondent’s suggestion that the appellant would be entitled to a sum of up to £1,250 under the Facilitated Returns Scheme, we note Mr Kotas’s acknowledgment that the decision in SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 did not assist him, since it precluded consideration of the appellant as a voluntary returnee. In any event, we note from the Home Office FRS policy of 31 December 2021 that aside from the first £500 loaded onto a card or provided as cash, the onus was on the applicant to contact the International Organisation for Migration (IOM) in their country of origin within a month of their return in order to trigger the uploading of the balance, a matter which we consider would cause the appellant some difficulties given her mental health.

43. The respondent, at [122] of the supplementary refusal decision, refers to the availability of emergency shelter programmes in Guyana which it was considered the appellant could approach. However, we note Ms Burgess’s reference to the difficulties in accessing such support, in her witness statement. At [15] and [16] of her statement she explains the steps which she took to contact some shelters in Guyana and annexed her emails as evidence, confirming the lack of response from any. Although Mr Kotas objected to that evidence being admitted, as we said earlier, we have no reason not to accord it due weight and note that the respondent has had some three months to digest it and to respond or challenge it, which she has not done. We note, in any event, the conclusions in the addendum country expert report by Dr Wardle and Laura Obermuller from the Centre for Cosmopolitan Studies at the University of St Andrews, at page 96 of Bundle A, dated 21 March 2016, that Guyanese officials interviewed for the research study about the provision of women’s shelters and care facilities in Guyana took the view that, in practice, there was no effective provision for deportees with mental health problems and that individuals in that position had to fend for themselves. In their initial report (unfortunately undated, but with references up to 2015) Dr Wardle and Laura Obermuller, at page 82 of Bundle A, referred to the general risk of violence to women in Guyana and to the negative reputation in the Caribbean of deportees from the UK and the fact that they would be unlikely to receive assistance, concluding that the appellant would be likely to fall into destitution and/ or exploitation. That is also supported by the more recent report included in the submissions bundle, Bundle C, entitled “Women’s health and life experiences: a qualitative research report on violence against women in Guyana” by Ruth Rodney and Sireesha Bobbili, which refers to the social inequality of women in Guyana and their susceptibility to violence and abuse.

44. We therefore return to the test in AM (Zimbabwe) and consider whether, in light of the above, the appellant would face a real risk, on account of the absence of appropriate treatment in Guyana or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy. We conclude that, whilst the very high threshold may not necessarily be met on discrete and individual aspects of the appellant’s case, it is met on a cumulative basis when taking account of the combination of her current mental health status and vulnerability and the likely significant deterioration of her mental health if removed from the protective factors in the UK, the lack of mental health services and treatment in Guyana and her inability to access such services in any event, the subjective fear of BC and of him locating and killing her, the separation from her children and the overall lack of support in Guyana and the likelihood of destitution and exploitation. We refer once again to Dr Griffiths’ conclusion at paragraph 6.49 of her report of 4 January 2022, that the impact of the appellant’s removal from the UK and from the protective factors in this country “is likely to result in intense suffering (increase in PTSD symptomology and depression symptoms) and could increase her suicidal ideation”. We conclude, for all of these reasons, that the evidence demonstrates that the Article 3 threshold is met, if not on the basis of a risk of suicide in line with the J test, but certainly on the question of intense suffering. We accordingly allow the appellant’s appeal.

DECISION

45. The original Tribunal was found to have made an error of law in relation to the findings on Article 3 and the decision was set aside. We re-make the decision by allowing the appellant’s appeal on Article 3 human rights grounds.

Anonymity

We maintain the anonymity order made in the directions of 11 January 2022, pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed S Kebede
Upper Tribunal Judge Kebede Dated: 22 June 2022