RA (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Lawrence Collins,Lord Justice Rix |
| Judgment Date | 06 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1210 |
| Docket Number | Case No: C5/2008/0638 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2008 |
[2008] EWCA Civ 1210
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 Rix
Lord Justice Richards and
Lord Justice Lawrence Collins
Case No: C5/2008/0638
(Appeal Number HR/01258/2004)
Alasdair Mackenzie (instructed by Birnberg Peirce & Partners) for the Appellant
Rory Dunlop (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 8 October 2008
The appellant is a Sri Lankan Tamil who applied for asylum in the United Kingdom in May 1999. His application was refused and an appeal was dismissed by an adjudicator, Mr Varcoe, in November 2000. Further asylum representations made in January 2001 were rejected. There was then an application on human rights grounds, in October 2003. That application was refused in November 2004 and an appeal was dismissed. A reconsideration was ordered but the appeal was dismissed again on the reconsideration. There followed an appeal to this court, resulting in a remittal for the reconsideration decision to be taken again. The remitted case was heard by Senior Immigration Judge Gill who notified her decision on 11 January 2008. The appeal to this court is against that decision.
In the light of the history of the case, Senior Immigration Judge Gill decided “to leave no stone unturned in assessing the evidence in this appeal and in reaching my conclusions”. Her decision therefore dealt with the issues before her at considerable length and with great care. In my view she is to be commended on its quality. Although permission to appeal was granted by Sir Henry Brooke on three grounds, I am satisfied after hearing full argument that her decision should stand.
In his human rights appeal the appellant relied on articles 3 and 8 ECHR. The article 3 claim was based on two distinct points: first, a fear of being ill-treated in Sri Lanka on account of the matters upon which his asylum claim had been based, namely actual or suspected involvement with the LTTE; secondly, his mental health and in particular the risk of suicide in Sri Lanka if he were returned there. The article 8 claim was based on the risk of suicide and interference with the private life he had established in the United Kingdom.
It was agreed that, because the earlier asylum decision of the adjudicator, Mr Varcoe, had not been overturned, the senior immigration judge should approach the redetermination on the basis of the guidance in Devaseelan (Second Appeals – ECHR – Extra-territorial Effect) Sri Lanka [2002] UKIAT 00702, that is by taking the adjudicator's decision as the starting-point for her own decision. The adjudicator had found that the appellant helped the LTTE at a very low level indeed and had rejected his evidence as to arrest and detention, finding him to have fabricated the greater part of his asylum application. Fresh evidence was placed before the senior immigration judge with a view to persuading her to take a different view on this, but she reached the same conclusion as the adjudicator had done. She found there to be no credible evidence that the appellant or any member of his family had ever been arrested or detained in Sri Lanka on account of any suspicion of being involved in the LTTE. Her adverse credibility findings are not challenged in this court.
The appeal is pursued on the basis of risks which are said to exist independently of the appellant's credibility and to arise out of the appellant's physical scars and his psychiatric condition.
The appellant's scars
A report from Dr Michael Seear, a registered medical practitioner, listed the marks he had found on examination of the appellant and considered their consistency with the appellant's account of having been beaten, burnt and dragged along a rough floor while detained by the Sri Lankan authorities. On the left leg there were two small, pale scars consistent with blows; a small, pale, very well healed scar consistent with a childhood injury; some irregular scarring of the knee, consistent with the appellant having been dragged on the floor; and, on the back of the knee, a scar 2 inches in length and 1/2 inch in maximum width which was highly consistent with the appellant's account of having been burnt with an iron rod. On the right leg there were a small, pale, well healed scar consistent with a cigarette burn; three pale, small, very well healed scars highly consistent with childhood injuries; and two pale scars (one measuring 3/4 inch by ? inch, the other 1 1/4 inches by 1/4 inch) consistent with cigarette burns.
The appellant's psychiatric condition
There was a body of evidence before the senior immigration judge on the subject of the appellant's mental health. It is sufficient to refer to a report by Dr David Bell, a consultant psychiatrist, who was in agreement with earlier diagnoses and gave a full assessment of the appellant's condition. Dr Bell said that the appellant was suffering from severe depressive disorder, with typical symptoms of objective features of depression, pervasive apathy, pervasive depressed mood, very poor appetite, guilt and self-blame, history of suicide attempts, disturbed sleep and morbid existential preoccupations. There were also typical symptoms of post-traumatic stress disorder, with a typical pattern of intrusive thought, noise sensitivity, flash-back phenomena, hallucinatory experiences, nightmares, avoidance of stimuli that might trigger anxiety attacks, and paranoid ideation.
As regards treatment, Dr Bell said this:
“Psychotropic medication would not be expected to make a big difference in this case. This is because so many features of his mental state are overwhelmingly determined by his current context of insecurity and terror (I refer particularly to the fear of being returned). Further, it is important that psychotropic medication be administered where there is a context of enduring trusting relationship with mental health personnel. Clearly this cannot be the case when he is under threat of removal ….
Psychological help is likely to be helpful in the longer term. However it would be hazardous at the present time to embark on any in-depth psychotherapy or counselling, as this again requires a context of an enduring trusting relationship with a therapist ….
The most important feature of his treatment currently is the care that is being provided by his cousin and Mr N [a friend]. If it were not for this care, it is my view that his condition would deteriorate very substantially to a state in which he would be likely to need admission to hospital ….”
Under the heading of “suicidality”, Dr Bell dealt as follows with the existing position:
“The syndrome of severe depressive disorder is associated with an elevated risk of acts of self-harm/suicide. There is already a history of three suicide attempts and currently there is evidence of suicidal thinking. There is therefore a significant risk of suicide or self-harm currently, and I would regard that risk as moderate ….”
Dr Bell was of the clear view that the threat of immediate return to Sri Lanka would bring about a “serious and precipitated deterioration” in the appellant's psychiatric state, for a number of reasons: (1) removal to Sri Lanka would return him “to the context in which he suffered serious trauma”, and his mind would be flooded with thoughts, memories and feelings that he would not be able to manage; (2) he was very attached to the context in which his daily needs were taken care of, and the threatened or actual breaking of this attachment would be experienced as a violent and traumatic event; (3) his belief that he would be under threat of immediate detention, torture and possibly murder would be material to the deterioration in his state; and (4) he suffered from a significant degree of paranoid ideation, and if he found himself in a context in which he believed he was under immediate threat it would make it very difficult for him to distinguish between his paranoid imaginings and actual threats. The deterioration in his psychiatric state would be associated with an immediate change in the risk of self-harm/suicide, from moderate to being very high. The increased suicide risk would take place from the moment he heard of a negative determination and would remain very high while he was awaiting removal, during removal and indefinitely thereafter.
I should also set out Dr Bell's responses to a number of questions he had been asked:
“I have been specifically asked if the care and support that [the appellant] receives from his cousin … and his friend … could be provided by someone else. I believe I have already dealt with this matter above, namely I have made it clear that [the appellant] has formed very secure attachments to those immediately around him and these attachments are not of a promiscuous nature, and the figures supporting him could not be easily replaced.
I would also like to point out that apart from the fact that appropriate psychiatric resources are not likely to be available in Sri Lanka, it is my view that [the appellant] would be most unlikely to be able to make use of them. This is because he is likely to view psychiatric personnel as agents of the state and therefore is likely to be distrustful of them.
I have commented above on the risk of suicide, however another outcome needs to be borne in mind. Given the degree of profound apathy and self-neglect that is a feature of his psychiatric state, it is also possible that in Sri...
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