KR (Iraq) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Smith,Lord Justice Auld |
| Judgment Date | 24 May 2007 |
| Neutral Citation | [2007] EWCA Civ 514 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2006/2347 |
| Date | 24 May 2007 |
[2007] EWCA Civ 514
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
HX/08418/2002
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Sedley and
Lady Justice Smith
Case No: C5/2006/2347
Mr E Nicholson (instructed by Messrs Wilson & Co) for the Appellant
Ms J Collier (instructed by Treasury Solicitors) for the Respondent
Hearing date: Wednesday 18 April 2007
The appellant is an Iraqi Kurd, now in his early forties. He was a lieutenant in the state police under Saddam Hussein's regime but acted as an informer for the separatist PUK movement. In 1987 his clandestine activity was suspected. He was detained and tortured but the following year was released and resumed work as a police officer. In 1991 he defected to the Kurdish Autonomous Authority and continued to work as police officer in Irbil until, in 1994, the KDP (PUK's rival) seized and tortured him. He was released after about three months and resumed work, but in 1996 fled to Sulaymania, where he married a woman from an orthodox Muslim family which disapproved of the liaison.
Although the fact-finder did not accept that she had been murdered, it was accepted that in 2002 news of his wife's death reached the appellant. Two years or so later news reached him that his brother too had been killed. The appellant was by then in the UK awaiting a final decision on his asylum claim. He had fled here October 2001 and claimed asylum on arrival. The Home Secretary refused his application, but his initial appeal succeeded. The adjudicator's decision was, however, overset by the IAT on the Home Secretary's appeal. On remission, an immigration judge in June 2004 dismissed the appeal, but on appeal the AIT found errors in the determination and adjourned the case for reconsideration on the factual basis which I have summarised.
The relevance of this assumed state of fact is that the case before us turns on the appellant's psychiatric state. The medical report on which he relied cited the news of his wife's death as the factor which precipitated a suicidal depression requiring in-patient treatment. The second-stage tribunal said:
“We are prepared to approach our evaluation of the appellant's claim on the basis that the appellant did receive news of his wife's death, whether murdered by IMIK or not, in March 2002 and that on 13 January 2004 he learned that his brother had been killed.”
They nevertheless dismissed his appeal, holding that the claim had to succeed under ECHR art.8 or not at all, and that the facts did not reach the threshold of exceptionality required to engage art.8. Alternatively, they held that if art.8 were engaged it would be proportionate to remove the appellant in the interests of immigration control.
The medical evidence
The psychiatric evidence before the AIT came solely from the appellant's side. Its substance was carefully distilled by them in the following passage:
7. … The report of Dr Omotayo states that the appellant had a diagnosis of Post-Traumatic Stress Disorder. He initially started to experience symptoms whilst in Iraq as long as 1987 following his first period of imprisonment. Dr Omotayo reported that the appellant's torture took a number of forms including flogging, the application of electric shock to his genitalia, being suspended from the ceiling for long periods of time from handcuffs and starvation. He also had various objects introduced into his anal and rectal canal. In dealing with the appellant's past psychiatric history Dr Omotayo said that he was seen by a psychiatrist in Baghdad in 1987 who commenced him on Amitriptylin and Thioridazine (anti-depressant and anti-psychotic). He made progress but seemed to have major relapses when he was re-imprisoned in 1994 and 1997. The appellant's first contact with the Mersey Care NHS Trust was in February 2001 when he was seen by a consultant psychiatrist. He then reported symptoms including early morning awakening, poor appetite, tearfulness, periods of intense anger, flashbacks and nightmares. He described being in a state of constant autonomic hyper arousal with hyper vigilance. He suffered from insomnia, anxiety and depression. Suicidal ideation was not infrequent and he occasionally drank excessive amounts of alcohol. His symptoms were then found to be consistent with the diagnosis of Post-Traumatic Stress Disorder. He was then commenced on medication and follow-up at the Out-Patient Department. His symptoms had, however, proven largely resistant to treatment despite regular reviews of medication. A clear maintaining factor in his illness would appear to be the uncertainty of his future. The appellant was turned down for psychotherapy because it was felt that the uncertainty about his immigration status would interfere with his progress and treatment. Dr Omotayo made mention of the event in March 2002 to which we have referred and stated that March 2003 was a particularly difficult time as well while the Iraq war was on. A more recent blow was when he visited relatives in London, only to learn that his brother was murdered in Iraq over a year ago. His current medication at the date of the report consisted of Amitriptylin and Chlorpromazine (anti-psychotic and calming agent). He had a PPS counsellor and attended the Umbrella Centre for anxiety management. He also received out-patient support on an average of once every three months from Dr Omotayo.
8. The opinion reached by Dr Omotayo was that the appellant suffered from a form of mental disorder, namely Post-Traumatic Stress Disorder. He required treatment in the form of out-patient care, medication, psychotherapy. His response had been generally poor. The illness was precipitated initially in 1987 by extreme ill-treatment when he was a captive in Iraq. Despite that he had made a concerted effort to settle in the country learning English and IT skills to improve himself. He was quite fearful of being sent back to Iraq and impressed on Dr Omotayo that his life might be in danger. There was a small but significant risk of precipitous reactions such as severe self-harm or suicide if the appellant was turned down on this occasion. Dr Omotayo thought that the disappointment at this time would only reinforce his chronic sense of hopelessness and helplessness which were major risk indicators for suicide.
9. In her report dated 24 th July 2006 Dr Craig stated that the major symptoms that the appellant experienced were anxiety and heightened arousal, instability of mood including periods of depression, avoidance of reminders of his traumatic experiences and intense flashbacks of his past trauma. His avoidance was severe, for example he was unable to watch Kurdish TV and avoided any references in the media to Iraq as these triggered severe anxiety and flashbacks. In addition he isolated himself socially, was irritable and low in mood and had difficulty concentrating. He had recurrent thoughts of self-harm which at times were intense. They had seen no significant improvement in his mental state in the years that he had been under the care of the mental health services in Liverpool. At the time Dr Omoytayo had prepared his report the appellant was engaged in some English classes and computer classes but since then had become more withdrawn and although he did have friends locally he saw little of them. He spent a great deal of time alone in his flat and as a result his symptoms had worsened somewhat. On a positive note his grasp of English had improved a great deal. He continued to be prescribed a high dose of anti-depressant medication and anti-psychotic medication of the type mentioned by Dr Omotayo but there had been no recent change in his medication which did bring about some improvement of his symptoms, although they persisted. Dr Craig expressed the view that they would see a significant improvement in his mental state if he were granted asylum but a complete resolution of his symptoms was not anticipated and he would require ongoing support from mental health services whatever the outcome. In a paragraph numbered 3 in the report Dr Craig expressed the view that were the appellant to be forced to return to Iraq and in the process was unable to continue with his medication he would anticipate a severe deterioration in his mental state with very high levels of anxiety, depressed mood and a very high risk of self-harm or suicide. In the paragraph numbered 5 Dr Craig stated that it was conceivable that the appellant might be able to access the medications that he was currently prescribed as both of these had been available worldwide for many years. Dr Craig thought it was very unlikely that the appellant would be able to access a psychiatrist and thought it all but impossible that he would be able to access the kind of psychological work that their psychotherapy service in Liverpool would be able to offer him. The respondent has not taken issue with the opinions expressed in either of these reports save that Mr Blundell did suggest that the appellant's account of his symptoms as time went on was exaggerated.
10. In the addendum to Dr Craig's report dated 1 st August 2006, Dr Craig painted a much bleaker picture than had been evident in the report dated 24 th July 2006, which had suggested that it was only if the appellant were unable to continue with his medication that there would be a severe deterioration in his mental state. The addendum suggested that if the appellant were forced to return to Iraq he would be exposed to a...
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