AJ (Liberia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Maurice Kay |
| Judgment Date | 15 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1736 |
| Docket Number | Case No: C5/2006/1173 AJ |
| Date | 15 December 2006 |
| Court | Court of Appeal (Civil Division) |
[2006] EWCA Civ 1736
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATIUON TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of The Family Division
Lord Justice Maurice Kay and
Lord Justice Hughes
Case No: C5/2006/1173 AJ
ASO/2869/2004
Mr P Jorro (instructed by Brighton Housing Trust, Immigration Legal Services)
for the Appellant
Mr R Palmer (instructed by Treasury Solicitor)
for the Respondent
In this appeal from the Asylum and Immigration Tribunal, the Appellant challenges the decision that his return to Liberia will not put this country in breach of its obligations under Articles 3 and 8 of the European Convention on Human Rights. His contention is that he is at such risk of suicide if returned that a breach of both Articles would ensue.
The Appellant arrived in this country by plane on 18 November 2003 and claimed asylum immediately. He does not reliably know his exact age, and it has never been possible to determine it, but he has been treated as having been about 16 or 17 at time of arrival. The ultimate conclusions of the fact-finding exercises which have been carried out are that he had a traumatic time as a child in Liberia at the time of rebellion and subsequent civil war. Not all the dates can be made to add up perfectly, which is unsurprising, but the broad historical shape of the history is as follows. When he was something like 9 years old his parents were killed and he was taken by the rebel band responsible and made to lead the life of a child soldier. That involved fighting and looting, and being witness to atrocity. For some of the time he was under the influence of drugs forcibly administered to the children who were used as soldiers. The band which had taken him was supportive of Charles Taylor, who was later to come to power as President between 1997 and 2003. The period of existence as a child soldier lasted for something like eighteen months until Taylor achieved power. Some two or three years after the fighting had halted, he got away from the band and went to the capital, Monrovia. That was in or about 2000, and he was then about 13 or 14. He had two uncles living there, and had limited contact with them, but he lived rough on the streets for approximately three years until he arranged to come to the UK in 2003.
The Appellant's account of his experiences was challenged at a number of points during the immigration hearings. In the end, the outline history set out above was accepted. The appellant was, however, disbelieved when he asserted that after the fall of President Taylor in August 2003 he was recognised on the streets of Monrovia as a former child soldier and assaulted and harassed as such. By then it was several years since he had fought, elsewhere, as a child soldier. It was not plausible that he would be recognised for something done in a different place many years beforehand; moreover he would have altered in appearance considerably over those years. He had, if assaulted, been the victim of random act or acts of violence or aggression.
President Taylor was forced out of office by local resistance and international agreement forged at Accra. There has followed a multi-national force supervising the establishment of some form of democracy; elections were held in October 2005. The force remains present; the country remains in a very rudimentary state.
The appellant's case has had a comparatively lengthy history in the immigration adjudication system. It first came before an adjudicator for hearing in March 2004. The claim then was for asylum on the basis of an asserted fear of persecution as a former child soldier, founded on the allegation of targeted assault as such. A claim that his return would entail a breach of Article 3 was advanced in parallel, on the basis of a real risk of ill-treatment by others in Liberia, but that did not at that stage raise any issue distinct from the asylum claim. At that stage there was a long medical report from a doctor who had examined the appellant. He identified old lesions consistent with the administration of drugs. He added that the appellant had many of the symptoms of PTSD and was in need of counselling. In that passage, the doctor referred to the appellant having some thoughts of killing himself. But the case was not presented as one in which a suicide risk provided an Article 3 or 8 imperative against return to Liberia.
The first adjudicator disbelieved the appellant's evidence generally. He accepted that he had been exposed to conflict somewhere in Africa, but not necessarily in Liberia. That conclusion was quashed by the Immigration and Asylum Tribunal in January 2005 on the grounds that the adjudicator had gone wrong in deducing a general lack of veracity from discrepancies between the appellant's evidence and what he had said in interview in what was not his first language. The IAT remitted the case to a fresh adjudicator.
The re-hearing took place in March 2005, before an adjudicator duly re-styled an immigration judge by the time the decision was released. The principal claim remained for asylum on the grounds of feared persecution as a former child soldier. But by now the appellant had been referred to a clinical psychologist, Dr Dodgson, who has experience of counselling, and reporting upon, the victims of trauma, including violence and torture. On the basis of his report, the appellant's claim was now also advanced on the distinct ground that there was such a risk of suicide in the event of return to Liberia that irrespective of whether there was or was not a risk of persecution, such return would constitute a breach by this country of its international obligations under Article 3 and/or Article 8 of the European Convention on Human Rights.
The asylum claim failed before the second immigration judge as a consequence of the appellant being disbelieved in the assertion that he had been targeted for assault as a former child soldier, and because, particularly in the changed conditions in Liberia, there was found to exist no real risk that he might be recognised or suffer persecution as such. The asylum claim, and the associated ECHR claim based upon risk of treatment by third parties is no longer pursued.
The second immigration judge also rejected the Article 3 and Article 8 claims based on risk of suicide, describing the risk as speculative. There was a second "appeal", now correctly an application for re-consideration under the transitional provisions introduced following the passage of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. After a first-stage hearing, the Asylum and Immigration Tribunal ordered a full re-consideration hearing. That took place before a senior immigration judge and two other judges. The claims under Article 3 and Article 8 were evaluated afresh. The AIT did not hear the appellant since it accepted the findings of fact made by the second immigration judge. It did receive the oral evidence of Dr Dodgson in amplification of his four reports. The claims were rejected. It is from that decision that this appeal is brought.
The medical and psychological evidence was to this effect:
i) The appellant had been referred by his general practitioner to a consultant psychiatrist and on by the latter to Dr Dodgson for therapy. That was in Summer 2004, viz after the failure in front of the first adjudicator in March of that year. Since July 2004, Dr Dodgson has seen the appellant regularly, some 38 consultations by January 2006. He is thus a treating psychologist with a close knowledge of his patient, and not a consultant preparing a report solely for legal purposes.
ii) Dr Dodgson had found the appellant to be suffering from post traumatic stress disorder and an adjustment disorder. Flashbacks to violent incidents witnessed had been successfully treated and he had responded well to therapy, plus (in the early stages) medication. The stressor was regarded as a fear of return to Liberia and of suffering violence if that were to occur. As therapy had proceeded, he had identified also in the appellant a sense of shame and guilt at what he had done or witnessed. He was currently attending college and the prognosis was good if he remained in the UK with ongoing counselling. He had not needed medication for some time; indeed Dr Dodgson as a psychologist was not in a position to prescribe it. If he were to be returned to Liberia there was a significant risk of deterioration. He would lack counselling. There were likely to be external cues which triggered painful memories. He might develop psychosis and there was a significant risk of suicide. The level of that risk was described in different terms at different stages of the reporting. By the time Dr Dodgson was giving oral evidence before the AIT, he described it as a "very high risk".
iii) There had been no sign of suicidal ideas in the three year period when the appellant was actually living in Monrovia. Dr Dodgson suggested that that might be because at that time he would have had hope, whereas now the prospect of return loomed.
iv) There had been no attempt at suicide. There had however been an increase in anxiety since the likelihood of return increased. At some stage, the appellant had cut himself deliberately; it was not clear exactly when this had been.
v) The assessment of suicide risk was not wholly dependent on the appellant's (rejected) account of being targeted as a former child soldier in Monrovia. Dr Dodgson had in the...
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