Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00796/2015

THE IMMIGRATION ACTS

Heard at The Royal Courts of Justice
Decision & Reasons Promulgated
On 1 August 2016
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

AF
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Chandran, Counsel, instructed by Kesar & Co Solicitors (Bromley)
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Afghanistan. He appealed to a Judge of the First-tier Tribunal against the respondent's decision of 7 August 2015 to make a deportation order.
2. The appeal proceeded by way of submissions only, the judge accepting the evidence in a psychological report that the appellant should not be required to give evidence as he was not fit to do so.

3. The appellant claimed to be at risk on return to Afghanistan as a consequence of the fear he had of the Taliban resulting from his family's opposition to the Taliban. He also claimed to be at risk on account of his homosexuality. The reason for the deportation stemmed from his conviction in 12 November 2007 on a charge of rape. He was given an indeterminate sentence of imprisonment on 15 August 2008. The respondent did not accept that he was gay, did not accept that his claimed persecutors would have retained an interest in him and contended that there was an internal flight option to him.

4. As will be seen, there are some doubts which need to be clarified as to whether or not the judge accepted that the appellant was homosexual and I shall need to turn to what she had to say about that in due course. She accepted that his father was a member of Hezb-i-Islami, that he was killed by the Taliban and that the appellant had been detained by the Taliban as regards the claimed risk and considered that it might well be that his home area was not a safe area for him to return to but he could internally relocate. There was also an Article 3 health issue considering the appellant's mental health and the question of whether or not he was at risk of suicide. Again there are criticisms of the judge's findings in this regard and I shall return to those in more detail subsequently.

5. The upshot was that the judge dismissed the appeal on all grounds, and the appellant sought and was granted permission in relation to the suicide risk issue and the issue of the appellant's claimed sexuality.

6. Ms Chandran argued that the judge had not addressed the 2016 report of Dr van Leeson and Mr Calderwell (the 2016 report) in addressing the suicide risk issue. In that report it was made clear that if the appellant were removed to Afghanistan his risk of suicide would increase to very high. It was also argued that the judge had not followed the correct approach to suicide risk cases as set out in Y (Sri Lanka) and Z (Sri Lanka) [2009] EWCA Civ 362, in particular failing to make findings on key issues such as whether the appellant's fear of serious harm or persecution on return was genuine, and whether by reason of that fear there was a real risk of suicide on return. She also argued that the judge had failed to follow the legal test as defined in HJ (Iran) [2010] UKSC 31. In any event it was argued that the judge had not made clear findings as to the appellant's sexuality and that was a key component of the HJ (Iran) analysis.

7. Mr Whitwell, relying on the Rule 24 response, argued that little had been accepted, and with regard to the first ground, the expert evidence had been taken into account at various points in the judge's decision, for example paragraph 39 and also at paragraph 111, and the evidence had to be understood in light of the credibility of the matter and the credibility findings were quite nuanced. Although the judge had not referred to the decision in Y nor the decision in J [2005] EWCA Civ 629, on which Y built, it could be seen from paragraphs 118 and 119 that the reasoning in those two cases had been properly taken into account. There was no need to set out all the tests in J and in Y as that would be to put form over substance.

8. It was also argued that it was sufficiently clear from paragraphs 112 and 113 in particular that the judge did not accept that the appellant was gay and therefore any argument about misapplication of HJ was by the way but if the Tribunal was against Mr Whitwell on that point, the findings had to be seen in light of the discretion exercised by the appellant in respect of his homosexuality while in the United Kingdom. It was not enough that he had said in his witness statement that he would act discreetly on return for fear of harm, bearing in mind in particular the submissions recorded at paragraphs 21 and 24 from the Presenting Officer at the hearing before the judge.

9. By way of reply Ms Chandran emphasised the context of the vulnerability of the appellant and the relevance of the vulnerable person guidelines, the critical nature of the error in respect of the medical report and the failure to take that into account, and the lack of clear findings as to suicide risk and the failure to consider properly the issue of the appellant's sexuality.

10. I reserved my determination.

11. It is certainly the case that the judge referred to the 2016 report, as can be seen for example in her references to it at paragraph 71 in the context of the level of risk the appellant posed but there is no specific reference to it in the analysis of paragraphs 118 to 120 of Article 3 health. The judge referred there to an earlier report from 2013 which he had also taken into account at paragraphs 110 and 111.

12. In the 2016 report at paragraph 8.6.3 the author of the report expressed the opinion that the appellant's risk of attempting to commit suicide would increase to very high were he informed that he was being repatriated to Afghanistan. This came at the end of the section which addressed specifically the effect of returning him to Afghanistan on his mental health including risk of suicide and noting at 8.6.1 that at present he was able to function because there were limited psychological or emotional stressors aside from the anxiety and anticipated threat of being returned to Afghanistan and that if the symptoms remained untreated they would significantly interfere with his ability to engage in any psychological treatment that exposed him to further vulnerability. Although the author of the report could not comment on what medical care was or was not available in Afghanistan, if he was unable to access services that would both support him and provide the requisite and essential psychological treatment it was likely that the deterioration in his mental health would be distressing and degrading for him.

13. That, then, was a very up-to-date assessment of risk to which the judge did not refer. At paragraph 119 she considered the risk of suicide, bearing in mind the reference to previous suicide attempts in the 2013 psychiatric assessment. That suggested that the suicide risk at that stage was not related necessarily to a fear of return but noting that uncertainty regarding the impact of his asylum claim and the indeterminate sentence had affected his mental health and the trauma that he had suffered on the way to the United Kingdom also contributed. It was said that treatment would not be effective if it was undertaken in a place where the appellant did not feel safe, but the judge considered it to be notable that much of the traumas leading to his PTSD were as a result of his journey to the United Kingdom and the violent attack to which he had been subjected here, and she commented that the return to Afghanistan was not return to where those traumatic events took place.

14. This in my view does not adequately take into account the evidence in the 2016 report which clearly more specifically than the 2013 report had done linked the suicide risk to the concerns the appellant had about return to Afghanistan.

15. I canvassed with Ms Chandran whether paragraph 120 potentially saved the earlier findings in that it was said there that the respondent would be well aware of any suicide risk at the time that the appellant was removed from the United Kingdom and would therefore ensure that necessary precautions were put in place. The judge concluded that there was insufficient evidence before her to suggest that his mental health would deteriorate if he was returned to Afghanistan to such an extent as to engage Articles 3 and 8. That latter point is clearly relevant to the issue as I have noted above as to the failure to take account of the linking of the impact of return on Afghanistan to suicide risk, and also, it was argued, this failed adequately to take account of the guidance in J and in Y. In J, Dyson LJ as he then was, set out the various points in J that it was said had to be followed in order properly to asses the issue of suicide risk. This includes first, the requirement of an assessment to be made of the severity of the treatment which it is said the appellant would suffer if removed, secondly, the need to show a causal link between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the Article 3 rights; thirdly, in the context of a foreign case the Article 3 threshold is particularly high; fourthly, the fact that an Article 3 claim can in principle succeed in a suicide case; fifthly, the question of whether the fear of ill-treatment in the receiving state is objectively well-founded; and sixthly, a further question of considerable relevance whether the removing and/or receiving state has effective mechanisms to reduce the risk of suicide.

16. I do not think that it can properly be said that paragraph 120 or anything in the previous paragraphs effectively addresses the structured approach which is encouraged in J and in Y. This can be seen from the above list of factors, such matters as the failure to address what effective mechanisms there are to reduce the risk of suicide in the receiving state, nor was there an evaluation in that context of the well-foundedness or otherwise of the claim. As a consequence, I am satisfied that the judge materially erred in her evaluation of the suicide risk both in terms of the failure to address specific relevant evidence and a failure to apply the proper test.

17. The other issue is that of the appellant's sexuality. At paragraph 112 the judge expressed concerns regarding his statements as to his sexuality given the conflicting accounts that he had given which suggested a capacity to change accounts when he felt it might benefit him and the fact that he appeared to have had, fluctuated with regard to his sexuality. These concerns are understandable ones for the judge to have, but the paragraph does not resolve her doubts in that regard. Nor do I consider that the statement at paragraph 113 "moreover, even if the appellant is gay ..." can properly be said to be a finding on this point. In this regard it is of course important to recall the issues which the Supreme Court in HJ (Iran) required to be asked in relation to sexuality-based protection claims, the first of these being the need to make a finding as to whether the person is gay as claimed. That in my judgement was not done in this case. The alternative finding that paragraph 113 goes on to make does not save the position, in my view. The judge commented that the appellant did not suggest that he would live an openly gay life in Afghanistan. That needed however to take into account his evidence that he would be discreet because he feared ill-treatment if he were not discreet. I bear in mind Mr Whitwell's point that that has to be seen in the light of the credibility findings and the submissions made by the Presenting Officer in that regard, but again it was a matter on which the judge was required to make a finding as a consequence of the evaluation of the evidence as a whole, and did not do so. It would have been open to the judge for example to say that she accepted his sexuality but did not accept in light of the evidence as a whole and even bearing in mind his statement that the discretion with which he would exercise his sexuality was a matter of choice rather than compulsion, but that was not done.

Notice of Decision

18. Accordingly, bringing these matters together, I consider that material errors of law as contended for in the grounds, have been made out. Both parties were in agreement that the decision would in the circumstances have to go back for a full hearing before a First-tier Judge and I direct that that shall take place. The matter will be listed for 3 hours, with a Dari interpreter. It will be heard at Taylor House.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Allen 18 October 2016