Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06550/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 March 2018
On 30 April 2018

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

mr c j
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Joseph, Counsel, instructed by Turpin & Miller Solicitors (Oxford)
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS
1. In accordance with the request made by the appellant's representatives, a copy of this determination will be sent to them and not the appellant.
2. This case concerns an appellant who is a national of Afghanistan. He arrived in the UK in August 2009 and claimed asylum. His claim was refused. He appealed. His appeal was dismissed on 25 June 2012. He lodged further submissions in January 2014 which were refused with a right of appeal on 20 January 2014. He again appealed unsuccessfully. The First-tier Tribunal who dismissed his appeal on that occasion was Judge Whiting. Following further submissions lodged on 9 January 2017, the respondent made a decision on 4 July 2017 refusing to grant asylum and humanitarian protection, again with a right of appeal. The appellant's appeal came before Judge Real of the First-tier Tribunal (FtT) who, in a decision sent on 23 August 2017, dismissed his appeal.
3. The appellant's written grounds of appeal are lengthy and identify nine errors in the judge's decision which can be summarised as:
(i) incorrect application of Devaseelan principles resulting in a failure to conduct a fresh assessment of risks to the appellant;
(ii) perversely concluding that the appellant had not made serious attempts at suicide;
(iii) failure to accept that the new evidence demonstrated a significant change in respect of the appellant's mental health than was the position before Judge Whiting;
(iv) failure to grasp that the appellant's removal to Afghanistan itself and the living conditions in Afghanistan would create a real risk of suicide;
(v) erroneously concluding that the objective evidence showed that the appellant would have access to psychiatric treatment and inpatient facilities in Afghanistan;
(vi) wrongly rejecting as speculative the submission that the appellant would be at risk on return by virtue of "ranting and raving in the street about terrorism and Islam" in front of Allied forces and Taliban at checkpoints;
(vii) failure to consider, when assessing risk on return, the appellant's inability to look after himself without extensive support;
(viii) failure to separately or adequately consider whether the appellant's health and the conditions in Afghanistan which if not amounting to breaches under Articles 2 and 3 of the ECHR still amounted to very significant obstacles for the purposes of para 276ADE(vi) of the Immigration Rules; and
(ix) commensurate failure to properly consider the appellant's Article 8 circumstances outside the Rules.
4. I heard very apposite oral submissions from both representatives, Mr Josephs amplifying the written grounds and Mr Richard's developing the respondent's Rule 24 response.
5. I observe at the outset that a number of judges have been involved in the appellant's case, both in the context of statutory appeals and on judicial review. I note that when sitting in the Upper Tribunal in March 2018 I granted permission to apply for judicial review against the respondent's decision refusing to accept his further representations as a fresh claim. Subsequently, following a consent order, his submissions were accepted as a fresh claim.
6. Following on from this observation, it is fair to say that on the part of all the judges involved there has been very careful attention to the appellant's circumstances and recognition that his was a complex case.
7. A third observation I would make is that cases in which it is alleged that there is a high risk of suicide on return to third countries pose considerable difficulties for judicial fact-finders. The leading case giving guidance on such cases remains the Court of Appeal decision in J v Secretary of State for the Home Department [2005] EWCA Civ 629, but there have been a number of other relevant authorities since. At the same time, all relevant authorities highlight the point that cases of this type are highly fact-sensitive. For example, in Y (Sri Lanka) [2009] EWCA Civ 362, of crucial importance was the fact that both appellants had been ill-treated when in Sri Lanka.
8. I would begin with two general remarks about Judge Real's decision. The judge was careful to treat the appellant as a vulnerable witness and to apply the Joint Presidential Guidance Note of 2010. The judge's decision also makes clear that she took into account all of the documentation which was copious and required reference back to all proceedings since 2008.
9. My second remark constitutes my main reason for rejecting ground (i), which contends that the judge did not apply the Devaseelan guidelines appropriately in terms of the factors relevant to deciding whether to depart from the previous findings of fact. In particular, I am satisfied that Judge Real did consider the previous findings of fact made by Judge Whiting and the more recent medical evidence holistically: that is made clear by the judge in para 29 which states:
"29. In order to update and summarise the position, I have highlighted only a number of key documents in which the Appellant's condition has been assessed, but I have considered the totality of the medical evidence within the Appellant's bundle which documents both the past and recent history in relation to his mental health, and I find this contains records of concerns and behaviours that continue to the present."
10. I am also satisfied, moving to ground (ii), that the judge's assessment that the appellant had not made serious attempts at suicide was within the range of reasonable responses. Arguably, the judge erred in portraying the attempts as "further manifestations of suicidal ideation", terminology which might suggest there were not even attempts. But it is quite clear that the judge took cognisance of the attempts at suicide made by the appellant. Issue is taken with the judge's assessment that they were not serious, by reference to the fact they involved attempts to hang himself and walking in front of cars, but on the evidence before the judge none of these attempts was witnessed; reports about them were based on the appellant's claims. The gravamen of the judge's concern regarding these attempts was lack of corroboration, coupled with the lack of evidence of injuries accompanying them. In relation to the most recent risk assessment by Mr Skitt dated 17 July 2017, the judge noted that that assessment itself commented that there is "no real evidence" of the attempt by the appellant to hang himself (see para 30).
11. The judge was clearly aware that the medical reports included an assessment by Dr Adams that on the appellant's return there was "a high suicide risk" (see para 33) and properly understood that the issue of risk was essentially for her to assess based on all the evidence, including background country evidence. The judge gave a sound reason for arriving at a different conclusion.
12. I consider, for similar reasons, that ground (iii) amounts to a mere disagreement with the judge's assessment that, whilst there had been a deterioration in the appellant's mental health since Judge Whiting's decision, there had not been a significant change. It is true that whereas when the appellant's case was before Judge Whiting the only diagnosis (from Dr Briffa) was of "severe depression"; before Judge Real there was now a clear diagnosis of bipolar disorder, schizoaffective disorder, psychosis, acute depression, suicidal ideation and PTSD. But even before Judge Phillips in 2012 there was evidence that the appellant had been sectioned and had mental health issues; before Judge Whiting there was evidence of three documented episodes of acute psychotic illness and of suicidal ideation and historic attempts at self-harm (although without resultant scarring). Further, whilst there was before Judge Real, now a 9-year history, the pattern of the appellant being sectioned at least once a year in the UK was one that went back a number of years.
13. Clearly there were some differences in the appellant's situation, in particular the fact that whereas at the date of hearing before Judge Whiting the appellant was living alone in standard accommodation, before Judge Real he had been placed in 24 hour supported accommodation and referred to the assertive outreach team in March 2017, this being the highest level of support in the community that is possible. Judge Real was clearly aware of such differences and was entitled to conclude that whilst this was part of the evidence indicating his condition had deteriorated since Judge Whiting's decision, it did not do so "starkly" (para 31).
14. Ground (iv) alleges a failure to grasp that the appellant's removal itself and the living conditions in Afghanistan would create a real risk of suicide. Once again, I consider this ground a mere reiteration of submissions made to the judge. The judge clearly did address the likely impact of the removal itself, as well as the country conditions the appellant was likely to face: that is the clear purport of paras 32-34. The judge was entitled in making her assessment to take into account that the appellant's history of repeated deteriorations in this mental health has not led to any serious attempt on his own life. The judge did not "conflate" the issues of how the appellant was managing in the UK and how he would manage in Afghanistan.
15. Ground (v) contends that the judge's decision not to depart from Judge Whiting's assessment that there would be effective mechanisms to reduce the risk of the appellant coming to harm in the form of psychiatric treatment and inpatient facilities ignored the evidence that the appellant would be unable to access any of the limited services available. Reference was made to D6, D7, D10-11, D23 of the bundle. However, this ground effectively submits that the judge was obliged to base herself solely on the appellant's evidence. The evidence before the judge included that identified by Judge Whiting at paras 53-55 in which the respondent had undertaken to ensure not just that during the appellant's physical removal he would be accompanied by suitably qualified experts if necessary, but (i) that following arrival in Afghanistan he would receive help and support from the Migration Delivery Office and/or the Returns Liaison Officer and that these officials liaise with public mental health hospitals in Kabul; and (ii) that the respondent would ensure he was returned with a supply of any prescribed medication, together with a letter from IRC medical staff for future clinicians.
16. Judge Real stated at para 34:
"34. The Reasons for Refusal cite sources for inpatient and outpatient psychiatric care in Kabul, albeit limited, and this has not been the subject of particular challenge by the Appellant. No new information has been put before me in relation to the Appellant's journey to Afghanistan and the measures that will be in place on arrival. I am satisfied that there are effective mechanisms to reduce risk in the form of psychiatric treatment and inpatient facilities, and I find no reason to depart from the findings of Immigration Judge Whiting on this issue."
17. In light of the evidence before Judge Whiting regarding access to post-arrival assistance, evidence unchallenged by the appellant's subsequent evidence, Judge Real was entitled to assess matters regarding access in the same way. The fact that the appellant on the evidence before Judge Real struggles to take care of basic personal functions and managing his finances, was a matter properly considered by the judge in the context of the evidence that the appellant would not on arrival be abandoned or left to his own devices, but would receive professional help from persons used to dealing with cases of returnees with suicidal ideations. A further neutral factor that Judge Real (like Judge Whiting) found would reduce risk of self-harm on return was the appellant's belief that he would go to hell if he committed suicide. That finding was consistent with the medical evidence.
18. For similar reasons, I would reject ground (vii) which contends that due to his inability to look after himself the appellant would end up living in an IDP camp or on the street.
19. I see nothing in ground (vi). The evidence regarding the appellant's episodes in the UK of "ranting and raving in the street about terrorism" did not indicate that the appellant was oblivious that he was in the UK. It was entirely open to the judge to consider merely speculative the argument that he would replicate the same type of behaviour in Afghanistan (a Muslim country with a national government), and position himself at Allied forces or Taliban checkpoints.
20. Grounds, (vii) and (viii), maintain that the judge discounted or failed to consider that the circumstances the appellant would face on return to Afghanistan (even assuming they did not amount to breaches of Articles 2 and 3 ECHR) would amount to very significant obstacles. Reference is made to "the prevailing circumstances in Afghanistan, the lack of family support and the appellant's mental health", especially in view of the recent evidence the judge had from Mr Skitt about the appellant's inability to look after himself.
21. In my judgement, such grounds merely repeat disagreements with the judge's findings of fact on such matters as the availability of effective mechanisms to reduce risk on return. The appellant's lack of family in Afghanistan (and indeed the fact that he had never lived there) were matters that have been closely considered by all the IAC judges who have had conduct of proceedings involving the appellant since 2012. Judge Whiting noted that the appellant remained in contact with his mother and father. Although they were not in Afghanistan, this meant he was not an orphan. The appellant was an adult (aged 23 before Judge Real) and so was not in the position of an unaccompanied minor or someone slightly older than 18. In such circumstances the previous judges were entitled to focus on his private life rather than his family life, circumstances on return to Afghanistan and in this respect the fact that in addition to his native Farsi he had understanding of Dari, Pashtu and Urdu and spoke Uzbek-Turkish when he was growing up, was properly treated as a factor likely to mean he did not have communication problems on return. He clearly had religious and cultural ties with Afghanistan through his parents, both of whom had lived in Afghanistan. It was Judge Whiting's conclusion at para 80 that there was "a clear expectation that [the appellant] could integrate within Afghanistan...". Judge Real's assessment at para 41 that [as far as concerns factors relevant to very significant obstacles] "I find these factors unchanged" was entirely within the range of reasonable responses, as was her conclusion at para 42 that what was known about the appellant's mental health had to be assessed in light of her earlier finding about the availability of psychiatric facilities.
Notice of Decision
22. For the above reasons I conclude that the FtT judge did not materially err in law and her decision shall stand.
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: 26 April 2018

Dr H H Storey
Judge of the Upper Tribunal