Y and Z (Sri Lanka) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Arden,Lord Justice Moses |
| Judgment Date | 29 April 2009 |
| Neutral Citation | [2009] EWCA Civ 362 |
| Docket Number | Case No: 1. C5/2008/2262 & 2. C5/2008/2261 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 2009 |
[2009] EWCA Civ 362
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lady Justice Arden and
Lord Justice Moses
Case No: 1. C5/2008/2262 & 2. C5/2008/2261
AS/56874/2003 & AS/57476/2003
Mr Alasdair Mackenzie (instructed by Messrs Fisher Meredith) for the A ppellants
Miss Susan Chan (instructed by Treasury Solicitors) for the Respondents
Hearing date: Thursday 12 March 2009
The appellants, who are brother and sister, are Sri Lankan Tamils. Because their fate is still uncertain, with the agreement of both parties the court has directed that they be referred to as Y (the brother) and Z (the sister). They arrived here in October 2003 and sought asylum. It is now accepted that they had been tortured by the Sri Lankan security forces as suspected LTTE members or sympathisers, that both had been raped in captivity, and that both suffer from consequent post-traumatic stress disorder and depression.
The outcome of a succession of appeals has been, however, that they have been found ineligible for asylum or for humanitarian protection. It has further been decided that returning them to Sri Lanka will not violate their Convention rights, in particular by causing them to take their own lives.
The detailed procedural history is not material, but the salient points for present purposes are these. Following a partial decision in Z's favour by an adjudicator, Mr Elvidge, in January 2004, remitted cross-appeals resulted in a full reconsideration of both cases, first by IJ Craig in April-May 2005 and then by DIJ Manuell in February 2007. DIJ Manuell dismissed both appeals, finding in relation to art. 3 that there was no real risk that return would provoke suicide. An application to this court for permission to appeal was granted, but the appeal was compromised by an agreed order remitting the cases for a fresh reconsideration hearing on the risk of suicide or self-harm.
It was agreed in the statement of reasons that DIJ Manuell had erred in his application of the tests set out by this court in J v Home Secretary [2005] EWCA Civ 629. It is also material to the present appeal that, in granting permission, Hallett LJ (with the agreement of Toulson LJ) had accepted that DIJ Manuell had arguably failed to deal adequately either with the expert evidence about the appellants' current mental state or with the state of psychiatric provision in Sri Lanka.
It is against the consequent decision of DIJ Woodcraft, again dismissing both appeals, that the present appeals are brought. Giving permission to appeal on sight of the papers, I wrote:
1. I do not hold out great hope for these appellants, but there seems to me to be a real – and difficult – issue: where, as here, an accepted history of shocking state violence and abuse has been held not to create an entitlement to humanitarian protection because the fear of repetition is not well-founded, does that finding necessarily carry over into the assessment of the risk of suicide? The fifth proposition in Re J suggests that it does; but it must be arguable that, in relation to suicide, what frequently matters is whether there is a real and overwhelming fear, not whether it is well-founded.
2. Beyond this, but associated with it, are tenable concerns about the DIJ's appraisal of the psychiatric evidence and the availability of treatment and of extended family support in Sri Lanka. The two groups of issues need to be looked at together.
It may be helpful to set out at the start what J laid down. Dyson LJ, giving the judgment of the court, said in relation to the possibility that enforced return might bring about the appellant's suicide:
25. …… It should be stated at the outset that the phrase “real risk” imposes a more stringent test than merely that the risk must be more than “not fanciful”. The cases show that it is possible to amplify the test at least to the following extent.
26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must “necessarily be serious” such that it is “an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment”: see Ullah paras [38–39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para [91], the court said:
“In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”(emphasis added).
See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue “must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…”
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights.
I have reproduced this passage in full in order to set the context, but the present case hinges upon the last two propositions. It also touches on the third. The broad contention is that, notwithstanding the emphasis in the fifth proposition in J on the fear being well-founded, a fear of renewed torture and sexual abuse may sometimes be just as real, and its potential consequences just as grave, when there is no longer a foundation for it. The narrow contention is that in relation to both appellants DIJ Woodcraft has misread the uncontested expert evidence, in every instance to the appellants' detriment and to a point at which his conclusion cannot stand. In particular, it is submitted that he has damagingly conflated two things which the experts were at pains to distinguish: the current state of mind of the appellants and the prognosis if they were to be returned.
In addition to the torture and sexual violation of both appellants in government custody, the second appellant's husband and daughter were killed by the security forces in 2001 while she was working in Malaysia as a housemaid to support her family. Two male cousins were executed by the security forces, and their mother (the appellants' aunt) starved herself to death in a public protest. None of this was found to create a well-founded fear of persecution or ill-treatment on return, but in the light of the AIT's reappraisal in LP [2007] UKAIT 00076 of the situation of returnees in Sri Lanka a further application has been made, and is still pending, by way of a fresh claim. Meanwhile, however, the severity of the appellants' experiences is capable of having a bearing on the issues before this court, as is the further tragedy of the loss of some 50 family members in the tsunami which occurred at the end of 2004.
The Home Office has at no point of this protracted and complex case sought to have either appellant examined by a psychiatrist nominated by itself or to secure agreement to a joint psychiatric examination. All the expert evidence has been submitted on the appellants' behalf, and all has come from reputable specialists whose qualifications and experience have not been in question. The Home Office's case has depended entirely on finding fault with it.
One fault that they have found, and which was accepted by DIJ Woodcraft, is in the over-explicit letter of instruction to Dr Anne Patterson, the consultant psychiatrist who has examined and reported on both appellants. Ms Chan, for the Home Secretary, justifiably calls the questions slanted, and the immigration judge expressed his concern about them. But there is no finding that any part of Dr Patterson's evidence has been influenced by the form of the questions put to her, and there the matter rests. It is to be hoped, nevertheless, that notice will be taken by the solicitors acting in this and other cases of the impropriety (and incidentally the damage that can be done to...
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