J v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON |
| Judgment Date | 24 May 2005 |
| Neutral Citation | [2005] EWCA Civ 629 |
| Docket Number | Case No: C4/2004/2432 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2005 |
[2005] EWCA Civ 629
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice-President of the Court of Appeal, Civil Division
Lord Justice Dyson and
Lord Justice Lloyd
Case No: C4/2004/2432
Mr Joseph Middleton (instructed by Messrs A. J Paterson Solicitors) for the Appellant
Mr Kieron Beal (instructed by the Treasury Solicitor) for the Respondent
this is the judgment of the Court.
Introduction
This is an appeal against the decision of the Immigration Appeal Tribunal ("IAT") dated 22 September 2004. The appellant is a citizen of Sri Lanka and an ethnic Tamil. He alleges that he would commit suicide if he were returned to Sri Lanka, and for that reason he claims that the decision by the Secretary of State to remove him to Sri Lanka violated his rights under articles 3 and 8 of the European Convention on Human Rights ("ECHR").
The IAT dismissed his appeal against a determination by Mr D A Radcliffe as adjudicator, which was promulgated on 13 August 2003. The adjudicator rejected an appeal against the Secretary of State's refusal of his claim for asylum. He also rejected his appeal on human rights grounds under section 65 (1) of the Immigration and Asylum Act 1999.
The adjudicator accepted that the appellant was a credible witness in relation to the events that led to his leaving Sri Lanka. He had been working for the Liberation Tigers of Tamil Eelam ("LTTE") under duress (effectively as a prisoner) from 1991 to 1993. He was then released on payment of a bribe. He was detained by the Sri Lankan army in 1995, when he was interrogated and tortured. He was released by the army in 1997 when the army had no further interest in him. The LTTE detained him from 1998 until May 2000, when he was able to escape. In September 2000, he left Sri Lanka, travelling on a false passport, and arrived in the UK. He had been subjected to the most horrific torture at the hands of the Sri Lankan army and bad treatment at the hands of the LTTE.
The adjudicator held that the appellant had no well–founded fear of persecution for a Refugee Convention reason in respect of either the Sri Lankan army or the LTTE. He rejected the appeal based on article 3 of the ECHR for the same reasons as he rejected the asylum appeal. In relation to the claim based on article 8, he accepted that the appellant suffered from post traumatic stress disorder ("PTSD") and depression. He was satisfied that on 3 October 2002 the appellant was admitted to hospital in Tooting for depression, but did not accept that the appellant had attempted to take his own life on that date. He accepted the evidence contained in a CIPU Report dated April 2003 that there were adequate medical facilities in Sri Lanka for the treatment of the appellant's PTSD. If returned, the appellant would be able to take advantage of palliative care and support provided by his mother. The adjudicator, therefore, also dismissed the appeal in so far as it was based on article 8.
The IAT granted the appellant permission to appeal against the adjudicator's dismissal of the human rights appeal. They held that the adjudicator was wrong to find that the appellant had not attempted to take his own life on 3 October 2002. Accordingly, they reviewed the evidence that was before the adjudicator, as well as other evidence that was adduced before them apparently without objection. Before I come to the IAT's determination, we need to refer to the salient features of this evidence.
Dr Kanagaratnam, a consultant psychiatrist, has at all material times been treating the appellant for his mental illness in this country. In his report of 20 November 2002, he referred to the appellant's admission to hospital on 3 October 2002 with a history of having taken an overdose of Buspirone. A precipitating factor was said to have been the refusal of asylum by the Home Office after an asylum interview. Dr Kanagaratnam stated that the appellant had "features of severe depressive disorder and had attempted suicide for which he required inpatient treatment". He was suffering from PTSD. In his "further observations", he said:
"His prognosis is presently extremely uncertain. It is a matter of concern that he had attempted suicide. Though the shock of being refused asylum had been a precipitant, the significant predisposing factors relate to his traumatic experiences. These had then led to his depressive illness the onset of which could be established to the period when he was detained by the Sri Lankan army.
He was admitted to inpatient psychiatric care on the 3 October 2002 and discharged from hospital on the 7 November 2002.
He continues to present with a risk of suicide. This could be aggravated if he had to return to Sri Lanka. Such risk would be high as a result of his knowing that the Home Office would return him to Sri Lanka."
Upon his discharge from hospital, he continued to take medication and receive treatment. His progress was monitored by the psychiatric services. For the purposes of the appeal before the adjudicator, the appellant's solicitors instructed Dr Anne Patterson, a consultant psychiatrist in psychotherapy, to write a report on the appellant's mental state. She agreed with the diagnosis made by Dr Kanagaratnam. She noted that the appellant had lost close contact with his mother upon whom he felt reliant for emotional support. She said that the appellant's statement that he might kill himself in the UK rather than be returned to Sri Lanka if he were told for certain that he must be returned to Sri Lanka "should be taken very seriously". In relation to the risk of suicide associated with being returned to Sri Lanka, she said:
"if [J] is sent back to Sri Lanka the risk of exacerbating his existing suicidal ideation is greatly increased because he is likely to have lost all hope. Hopelessness has a serious, significant association with completed suicide.
In my opinion, if he does not manage to kill himself in the UK there is a high risk that he would try to commit suicide en route and may therefore pose a threat to other passengers in his desperation to kill himself.
If he is prevented from killing himself either in the UK or while being returned I think it is likely that he would commit suicide upon his arrival in Sri Lanka to avoid falling into the hands of the authorities from whom he perceives he is in mortal danger".
She concluded that the appellant's symptoms of mental disturbance had been exacerbated by his experience of trying to claim asylum in the UK. Accordingly, "his fragile psychological functioning would be seriously undermined if he were returned to Sri Lanka, he would be unable to cope with everyday life, access the necessary treatment and is in grave danger of suicide".
Following the adjudicator's decision of 13 August 2003, further medical reports were produced. Dr Patterson wrote a supplementary report dated 15 May 2004. She recorded that the appellant continued to take antidepressant medication as before, and that he had been attending psychiatric out-patient appointments for review of his mental state and the Traumatic Stress Clinic for psychological treatment. He had told her that he still thought that it was not safe in Sri Lanka, and that he was convinced that he would be arrested at the airport by the Sri Lankan authorities if he were sent back. He said that he might kill himself in the UK if he were told for certain that he must go back. Dr Patterson stated that the appellant's mental state was little changed since her last assessment in 2002, despite continuing psychiatric treatment. He continued to remain "at a significant risk of committing suicide in the UK if he knew for certain that he would be returned to Sri Lanka". If he were returned to Sri Lanka, that would be likely to be a severe setback for the appellant, especially if he were returned to Colombo where he had no one to support him and the risk of suicide would be "high".
Finally, Dr Kanagaratnam wrote a further report dated 19 May 2004 in which he said:
"In my opinion there is a very significant risk of completed suicide in the United Kingdom if [J] knows for certain that he is to be removed to Sri Lanka. He has as mentioned already made one serious attempt at suicide here.
He has found support and sympathy from his relatives in the United Kingdom which to a large extent has provided him with a sense of stability".
In addition to the medical evidence there was also evidence before the adjudicator and the IAT from the appellant himself and his uncle. In his statement dated 29 June 2003, the appellant's uncle said of the appellant: "he is very close to me and my wife and our children and is now like one of our immediate family".
The IAT stated at para 8 of their decision that they were applying the principles set out by the IAT in P (Yugoslavia) [2003] UKIAT 00057. We think this is a reference to the IAT's decision in SP (Yugoslavia) v Secretary of State for the Home Department [2003] UKIAT 00017 where at para [17] it was said in the context of a risk of suicide case:
"….Although suicide is a form of self-harm and is to be distinguished from harm inflicted by others, if the real risk of it is a foreseeable consequence of a removal decision, then that may well be enough to establish serious harm under both Conventions. Under the Human Rights Convention we would accept in principle that if the evidence in a case establishes that a removal decision will expose a person to a real risk upon...
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