Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01785/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 2nd December 2016
On 19th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mp
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr M Diwnycz, Home Office Presenting Officer.
For the Respondent: Mr B Davison, Solicitor.

DECISION AND REASONS
1. The Appellant in this case is the Secretary of State for the Home Department. However, for the sake of clarity, I shall use the titles by which the parties were known before the First-tier Tribunal, where the Secretary of State was referred to as "the Respondent" and MP as "the Appellant".
2. The Appellant is a citizen of Sri Lanka. She and her three children arrived in the United Kingdom on or around 29 June 2015 when she claimed asylum, Humanitarian Protection and leave to remain under the Human Rights Act.
3. An anonymity direction was made in the First-tier Tribunal and I direct that it continues in the same terms in the Upper Tribunal.
4. The Appellant's application was refused by the Respondent and she appealed. Following a hearing at Bradford, and in a decision promulgated on 4 October 2016, Judge of the First-tier Tribunal Myers dismissed the Appellant's appeal on asylum and Humanitarian Protection grounds but allowed it on Human Rights grounds. Reasons for allowing it on Article 3 grounds can be gleaned from paragraphs 31, 32 and 33 of the Judge's decision which state:-
"31. Under this Article I have to decide whether there is a breach of the prohibition on torture, or inhuman or degrading treatment or punishment. In the asylum section of this determination I indicated that I found the Appellant's claim credible.
32. She has been diagnosed as suffering with severe depression and post-traumatic stress disorder. Dr Bonnet concludes that at present whilst in the UK she is a medium risk of suicide, and has denied any intent to act on her suicidal thoughts and her children are a strong protective factor. However, her risk of suicide can change in response to adverse events such as a change of asylum status. The report noted that at present she avoids thinking about Sri Lanka wherever possible and when she is forced to recall she becomes agitated and very unwell. She had described an improvement in some of her symptoms since arriving in the UK and taking anti-depressant medication. I find it very likely that her mental health will deteriorate if she is forced to return to the country where she suffered appalling ill treatment.
33. If at present she is of medium risk of suicide, in my judgment enforced return will increase the risk to that of high, and in those circumstances I find her situation comparable to that of the third Appellant in GJ and note the comments made by the Upper Tribunal
453. Although the appeal fails under the Refugee Convention and Qualification Directive, we must consider whether the suicide risk which this appellant presents is such as to engage Article 3 ECHR. Applying the J and Y principles, and reminding ourselves of the gravity of the appellant's past experience of ill-treatment and his current grave mental health problems, with severe forms of both post-traumatic stress disorder and depression, we have considered whether returning the appellant to Sri Lanka will breach the United Kingdom's international obligations under Article 3.
454. The evidence is that there are only 25 working psychiatrists in the whole of Sri Lanka. Although there are some mental health facilities in Sri Lanka, at paragraph 4 of the April 2012 UKBA Operational Guidance Note on Sri Lanka, it records an observation by Basic Needs that "money that is spent on mental health only really goes to the large mental health institutions in capital cities, which are inaccessible and do not provide appropriate care for mentally ill people" .
455. In the UKBA Country of Origin Report issued in March 2012, at paragraph 23.28-23.29, the following information is recorded from a BHC letter written on 31 January 2012:
"23.28 The BHC letter of 31 January 2012 observed that: "There are no psychologists working within the public sector although there are [sic] 1 teaching at the University of Colombo. There are no numbers available for psychologists working within the private sector. There are currently 55 psychiatrists attached to the Ministry of Health and working across the country."
Post Traumatic Stress Disorder (PTSD)
23.29 The BHC letter of 31 January 2012468 observed that:
"Post Traumatic Stress Disorder (PTSD) was first recognised in Sri Lanka in patients affected by the 2004 tsunami. Many of the psychiatrists and support staff in Sri Lanka have received training in Australia and the UK for the treatment of the disorder. A Consultant Psychiatrist from NIMH said that many patients often sought ayurvedic or traditional treatment for the illness long before approaching public hospitals, adding that this often resulted in patients then suffering from psychosis."
5. The Respondent sought permission to appeal on two grounds. Firstly that the Judge materially misdirected herself in law and secondly that she failed to give adequate reasons.
6. Permission to appeal was granted by Judge of the First-tier Tribunal Froom in a decision dated 19 October 2016. His reasons for that decision are: -
"Permission is granted because it is arguable that the FtTJ's analysis fails to apply the guidance given by the Court of Appeal in J. The grounds may be argued."
7. The Respondent asserts that the Judge failed to conduct any careful analysis of the case law in relation to Article 3 and the risk of suicide. In particular the authorities of J v SSHD [2005] EWCA Civ 629 and Y (Sri Lanka) v SSHD [2009] EWCA Civ 362. It is asserted that the principles set out in J have not been analysed at all and that the Judge has done no more than adopt the stance that the Appellant is "on a par with the third Appellant in GJ". This, the Respondent asserts is inadequate as this is a fact sensitive decision.
8. Secondly it is asserted that the Judge's decision is flawed as the Judge appears to speculate at paragraph 33 of her decision that if the Appellant were returned to Sri Lanka her suicide risk would go from medium to high. This, it is said, appears not "to be founded on the medical report - such an opinion must have been asked of the expert, and the lack of any direct reference to a high risk of suicide if returned within the medical report arguably shows the FTJ assuming the role of a medical expert of which she is not qualified". Moreover, that in coming to such a speculative conclusion the Judge has ignored her previous findings at paragraph 32 of her decision that the Appellant's children are a "strong protective factor" and the Appellant has denied any intent to commit suicide. Finally it is said that the Judge failed to consider "if the risk could be mitigated for by the provision of medication, and medical escorts".
9. Thus the appeal came before me today.
10. Beyond the materials already filed within this appeal I have taken into account, alongside the respective submissions of both representatives, a Rule 24 (Reply/skeleton) handed up by Mr Davison.
11. In his submissions Mr Diwnycz relied upon the grounds seeking permission to appeal. He referred me to the report of Dr J Bonnet and in particular paragraph 88. He urged me to accept that the Judge had "stretched the point" and that the expert evidence in relation to potential suicide was not as found by the Judge who had come to speculative conclusions.
12. Unsurprisingly Mr Davison asked me to adopt the opposite view so far as the expert evidence is concerned. He said there was ample evidence of the Appellant's mental health issues to show that the level of risk she is at if faced with imminent or actual return to Sri Lanka entitled the Judge to come to the conclusions that she did. There has been a thorough consideration of the Appellant's mental health and the Judge directed herself to the appropriate paragraphs of GJ and others (Post civil war: returnees) Sri Lanka CG [2013] which he submitted included the proper application of J. Accordingly it is clear that the Judge has taken into account relevant guiding case law when reaching her decision in respect of the Appellant's risk of suicide if returned and that the application made by the Respondent for permission to appeal fails to take account of the expert evidence.
13. The medical evidence in this case comes from a report prepared by the Medical Foundation, Medico Legal Reports Service and prepared by Dr J Bonnet. The report is dated 30 June 2016 following two examinations of the Appellant in April of that year and one in May.
14. Dr Bonnet assesses the Appellant's risk of suicide as medium. This is gleaned from paragraph 88 of her report which states:-
"MP has frequent thoughts of wishing she was dead particularly in relation to thinking about having been raped. She denies any intent to act on these thoughts. There are protective factors such as her religious belief that suicide is wrong and the fact that she wishes to live to care for her children. Currently I judge her risk of suicide as medium. Suicide risk is not fixed but rather can change in response to a change in circumstances. Adverse events such as a change in asylum status could lead to an increased risk and she would require reassessment."
15. Paragraphs 89 to 91 of Dr Bonnet's report states:
"As instructed in the Istanbul Protocol, Paragraph 105(f), I have considered the possibility of a false allegation of torture. I find nothing in MP's account to suggest this. I found her psychological symptoms and physical lesions accord with her account. I have not relied solely on her testimony but also on the large number of objective observations of psychological symptoms which I have noted throughout this report.
I have considered whether I would expect this presentation in a refugee who had not been ill-treatment (sic) and in my opinion this would not occur. The psychological symptoms experienced by MP are highly specific to the ill-treatment she described. The nightmares she experiences are directly related to being raped and beaten in the police station and her anxiety and low mood are related to recollections of this ill-treatment
It is my opinion that this report would be of assistance to MP's GP in the treatment of both her and children. I recommend that a copy should be sent to her registered surgery by her Solicitors, with her consent."
16. She summarises her findings at paragraph 92 onward of her report which state:
"MP is a 44-year-old Tamil woman from Sri Lanka. Her husband was a member of the LTTE and he disappeared in 2012. Between January 2012 and June 2015 MP was required to report monthly at the police station. There she was questioned regarding her husband's activities and subject to the following forms of ill-treatment:
Made to stand outside in the sun for long periods of time
Made to kneel for long periods of time
Hit with a wooden stick
Forced to undress
Hand cuffed
Raped on two or three occasions
Burnt with cigarettes on her back and her chest
In March 2014 MP did not keep her appointment to report to the police station as she felt too psychologically unwell. The police came to her house and took her 15-year-old son. He was kept at the police station for a week. His leg was broken by the police with a cricket bat.
She has the following lesions attributed to ill-treatment:
Two lesions consistent with being beaten with a stick
20 lesions highly consistent with being burnt with a cigarette
Two lesions diagnostic of being burnt with a cigarette
She has three lesions she does not attribute to ill-treatment.
She has a joint diagnosis of Severe Depression and Post Traumatic Stress Disorder. She has thoughts of wanting to die but no current suicidal plans. Her children are a strong protective factor.
I have considered the six questions set out at paragraph 105 of the Istanbul Protocol in formulating my clinical opinion on MP's claim to have been tortured. In my opinion, the physical and psychological evidence I have documented in this report and the clinical findings I have made correlate with MP's claim to have been tortured in the manner she describes."
17. The other evidence considered by Judge Myers was background material detailed in Section B of the Index to the Appellant's bundle and from Section A thereof a chronology and a witness statement of the Appellant dated 12 September 2016.
18. Paragraph 16 of the judgment in J assists in the distinction between "foreign cases" and "domestic cases". A "foreign case" is one where it is not claimed that that State complained of has violated the applicant's ECHR rights within its own territory, but where it is said that the conduct of the State in removing a person from its territory to another territory will lead to violation of the person's ECHR rights in that other territory. "Domestic cases" are ones concerning claims based on the ECHR where a State is said to have acted within its own territory in a way which infringes the enjoyment of an ECHR right within that territory.
19. Like the Appellant here the Appellant in J was Sri Lankan claiming a risk of suicide if returned to his country of origin.
20. Paragraph 17 of J assists in the approach to an Appellant in these circumstances. It states: -
"17. This has been recognised as an important distinction both in Strasbourg and in our own jurisprudence. In cases such as the present case the risk of a violation of article 3 or 8 must be considered in relation to three stages. By reference to the claim made in this case, these are: (i) when the Appellant is informed that a final decision has been made to remove him to Sri Lanka; (ii) when he is physically removed by airplane to Sri Lanka; and (iii) after he has arrived in Sri Lanka. In relation to stage (i), the case is plainly a domestic case. In relation to stage (iii), it is equally clearly a foreign case. The classification of the case in relation to stage (ii) is less easy. Since in practice arrangements are made by the Secretary of State in suicide cases for an escort it is safer to treat this as a domestic case."
21. It is settled law that in the context of a foreign case the Article 3 threshold is particularly high because it is a "foreign case". It is even higher where the alleged in-human treatment is not the direct or indirect responsibility of the public authorities of the receiving State, but results on some naturally occurring illness whether physical or mental. The Article 3 claim of this Appellant can of course in principle succeed on the basis of suicide risk. The Judge must have regard to whether the removing and/or receiving State has effective mechanisms to reduce the risk of suicide and if there are effective mechanisms that will weigh heavily against an Appellant's claim that removal will be a violation of her Article 3 rights.
22. Having considered the evidence in this appeal I am satisfied that Judge Myers has speculated, as asserted by the Respondent, that the Appellant's risk would go from medium to high as she concludes in paragraph 33 of her decision. Such a conclusion cannot be drawn from evidence within the report of Dr Bonnet and as such it can be said that the Judge has materially erred in failing to give adequate reasons as to how such a speculative conclusion has been reached.
23. The Judge has also similarly erred in failing to give consideration to how any risks the Appellant faces could be mitigated by the provision of, for example, medication or medical escorts and the like.
24. Whilst GJ is Country Guidance in relation to the Appellant's country of origin and was rightly taken into account by the Judge it was incumbent upon her to give consideration to other material authorities including J.
25. The ill-treatment relied upon by the Appellant must attain a minimum level of severity such that it is an affront to fundamental humanitarian principles to remove her to a country where she is at risk of serious ill-treatment. The Appellant here had to show before Judge Myers a causal link between the act or threatened act of removal or expulsion and the in-human treatment relied on as violating her Article 3 rights. Examination of the Article 3 issue had to focus on the foreseeable consequences of the removal of the Appellant to her country of origin and here the medical evidence was insufficient to enable Judge Myers to come to the conclusion that she did and does not demonstrate the necessary causal link.
26. Therefore in her consideration of the totality of evidence that was before her the Judge has materially erred for the reasons set out within the Respondent's application for seeking permission to appeal. Accordingly I set aside the Judge's decision and remake it myself.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remake the decision in the appeal by dismissing it.

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 18 January 2017

Deputy Upper Tribunal Judge Appleyard

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date 18 January 2017

Deputy Upper Tribunal Judge Appleyard