RG (Suicide - Risk - Razgar Considered)
| Jurisdiction | England & Wales |
| Judge | J BARNES,VICE-PRESIDENT |
| Judgment Date | 23 March 2005 |
| Neutral Citation | [2005] UKIAT 72 |
| Court | Immigration Appeals Tribunal |
| Date | 23 March 2005 |
[2005] UKIAT 72
IMMIGRATION APPEAL TRIBUNAL
Mr J Barnes – Vice-President
Mr F T Jamieson
For the Appellant: Mr J Middleton of Counsel instructed by A J Paterson Solicitors
For the Respondent: Mr G S Jagpal, Home Office Presenting Officer
RG (Suicide — Risk — Razgar Considered) Sri Lanka
This determination is being reported as it deals with the effect of the House of Lords decision in R (Razgar) v SSHD [2004] UKHL 27 on the consideration of claims that either Article 3 or Article 8 of the European Convention will be engaged by virtue of a claimed suicide risk on or following removal of a claimant.
For this reason, after reviewing the factual basis of the claimant's history and the changes which have taken place in Sri Lanka at paragraphs 5 and 6 of the determination, the psychiatric evidence before the tribunal is then set out at length at paragraphs 10 to 23 (evidence before the Adjudicator) and at paragraphs 29 to 34 (additional evidence before the Tribunal).
Paragraphs 37 to 47 are concerned with the Article 3 claim, taking account of N [2003] EWCA Civ 1369 in the light of the guidance of the House of Lords in Razgar and conclude that Kurtolli [2003] EWHC 2744 (Admin) can no longer be regarded as raising any arguable issue that the ratio in N is not of general application including application to suicide risk claims. In order to succeed under Article 3 a claimant's case would have to be exceptional in the way found by the European Court in D v United Kingdom.
Paragraphs 48 onwards consider the Article 8 claim, again by extensive reference to the guidance in Razgar At paragraphs 58 to 63 the degree of deference to be accorded to the Secretary of State' views and the continuing effect of the starred decision of the Tribunal in M (Croatia) is considered. Paragraphs 64 to 71 are concerned with the speculative nature of claimed suicide risk by reference to Tribunal jurisprudence (paragraph 67 and 71) with fuller consideration of the ratio of Bensaid v United Kingdom in this respect at paragraphs 68 to 70 below.
It is hoped that the sub-headings will be of some assistance in conjunction with this note in identifying the issues considered but neither form part of the determination itself.
The appellant is a citizen of Sri Lanka of Tamil ethnicity born on 2 August 1978 in Chankanai in northern Sri Lanka. He entered the United Kingdom illegally on 15 March 1998 from Belgium and made an asylum claim in his real identity. He had previously made an asylum claim in the false identity of Silvan Nadaraja in Belgium on or about 11 February 1998 and the Belgian authorities accepted that they were the state responsible for examining his asylum application under Article 10(1))(e) under the provisions of the Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (the Dublin Convention). Accordingly the Secretary of State gave notice of his intention to issue directions for the removal of the appellant to Belgium under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971 by letter dated 8 January 1999. It transpired that the appellant had in fact arrived in Germany on 24 September 1997 and had subsequently twice tried to apply for asylum in Switzerland during October 1997 under various aliases, and also in Germany when he was returned there by the Swiss authorities for the second time. It was only then that he travelled to Belgium intent, as he says, on trying to reach the United Kingdom but claimed asylum in Belgium also when he was arrested in the course of his journey.
The appellant then initially instructed his solicitors to make an application for judicial review which was ultimately withdrawn on 16 January 2001 by which time the Human Rights Act 1998 and the Immigration and Asylum Act 1999 had come into force leading to a claim that his removal to Belgium would be in breach of Articles 3, 5, 6 and 8 of the European Convention on Human Rights. That claim was refused by the Secretary of State on 1 August 2001 and the appellant then exercised his right of appeal against that decision under Section 65 of the Immigration and Asylum Act 1999. The grounds of appeal were submitted on 15 August 2001 by his solicitors who had previously submitted a psychiatric report on the appellant made by Dr Coleman dated 14 July 2000, diagnosing him as suffering from post traumatic stress disorder (PTSD) and severe depression with suicidal ideation as a result of his experiences in Sri Lanka and his fears of removal from the United Kingdom.
Nothing further then happened for a little over two years until the Home Office referred the appeal to the Immigration Appellate Authorities on 11 November 2003. The appeal was listed for hearing shortly thereafter on 8 January 2004 before Mr Warren L Grant, an Adjudicator.
The basis of the appellant's asylum application has, of course, never been substantively considered because of the steps which he took in order to seek to avoid removal to Belgium when the initial decision was issued in 1999. That is, perhaps, unfortunate from his point of view because if his account of his history in Sri Lanka is credible, he might well at that time have been successful had he pursued his application in the country which had accepted responsibility for dealing with his claim.
In brief, his claim was that his sister had started helping the LTTE in northern Sri Lanka and had in the following year been arrested and tortured by the Indian Peace-keeping Force (IPKF). When the family arranged for her to be moved away on her release this led to the detention and torture by the IPKF of his father in 1989. Thereafter the family suffered as part of the civil population in a war situation. his grandmother was killed in an air raid in 1995 within sight of him and other members of his family. They moved away from their home area and from November 1995 the appellant assisted the LTTE by collecting money and food, distributing leaflets and putting up posters; an activity which he continued until in mid 1996 the family decided to return to Chankanai. He was detained for the purposes of interrogation with other youths in the course of that journey on suspicion that they might be LTTE supporters. In the course of that detention he was severely beaten and ill-treated. He was photographed and fingerprinted and released on payment of a bribe. He then returned to the family in the village and resumed his studies. But, within a few months rumours were circulating that he had helped the LTTE whilst he had been away from the village and in November 1996 the family home was searched and he was detained for 25 days at Manipay Camp where he was again interrogated regarding suspected LTTE support and tortured. He was released from that detention after a further bribe had been paid and the village headman had assured the army that he would be responsible for the appellant's good behaviour, at a time when the Red Cross had apparently also intervened. The LTTE were concerned, however, to find out whether he had given any information during his detention about their activities, but this came to nothing further until in May 1997 one of his relatives was detained and identified LTTE supporters to the army under torture, resulting in the torture of the LTTE members so identified and the revealing of the location of an LTTE arms store. Although the appellant was not directly connected with this event, his mother was concerned that it would reawaken possible interest by the LTTE in the family and lead to possible adverse interest in him. She made arrangements for him to move to Colombo and to leave the country, which he did on 12 July 1997. We have already noted his subsequent stays in several European countries before he finally arrived in the United Kingdom in March 1998.
The position in Sri Lanka changed dramatically, however, following the ceasefire brokered between the authorities and the LTTE in February 2002. It is quite clear from the Tribunal jurisprudence from Jeyachandran [2002] UKIAT 01869 and Brinston [2002] UKIAT 01547 onwards that, taken his claims at their highest, there is no prospect that the appellant's history in Sri Lanka would give rise to any successful claim that his return from mid 2002 onwards to Sri Lanka would engage either the Refugee Convention or Article 3 of the European Convention. He clearly falls into the category of those now regarded as having no current well-founded fear of persecution by reason of their ethnicity or imputed political opinion or of breach of their protected human rights under Article 3 on the basis of their past history.
Whilst the removal directions against which the appellant has appealed are to Belgium, it has been his consistently expressed fear that the effect of removal there would simply be a stage in his ultimate return to Sri Lanka. We cannot think that on the basis of his past history, taken at its highest, that is an unrealistic view on his part in relation either to his asylum claim or, so far as based on that history, his Article 3 claim.
The basis of his appeal both before the Adjudicator and before us is that his removal from the United Kingdom would be in breach of his protected human rights under Articles 3 and 8 of the European Convention. He relies in this respect on his current mental condition and the expressed views of two psychiatrists from Dr Coleman's initial report in July 2002 until the present time that removal would breach his human rights by reason of the real risk that he would commit suicide rather than be removed either to Belgium or to Sri Lanka.
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