SN (Medical and Corroborative Evidence - Credibility - Article 3)

This determination is being reported in relation to (a) the corroborative value of medical evidence (paragraphs 12 to 15); (b) the approach to considering whether an adjudicator has taken into account the totality of the evidence before making findings of fact (paragraphs 16–18); and (c) the treatment of suicidal ideation in relation to claims under Articles 3 and 8 of the European Convention and the effect of the decisions of the Court of Appeal in N [2003] EWCA Civ. 1369 and Djali [2003] EWCA Civ. 1371 (paragraphs 20 to 24).

The appellant is a citizen of Kenya born on 1 January 1972. She arrived in the United Kingdom on 28 February 1998 and claimed asylum after being refused leave to enter. She was accompanied by one son as her dependant. She was due to be removed on third country grounds on 17 September 1998 but absconded. On 18 May 1999 she claimed asylum as a Somali but withdrew this application at interview. In a letter dated 21 August 2000 and served on her on 10 September 2000, the appellant was refused asylum. She appealed against that decision but withdrew her appeal by letter dated 6 April 2001. At the same time she claimed that removal would be in breach of her human rights citing Article 3 of the European Convention. On 24 September 2001 that application was refused on such information as was then available to the Secretary of State and it is relevant to set out the terms of the refusal which are as follows:

“The Secretary of State has noted your claim that to return your client to Kenya would breach the United Kingdom's obligations under the European Convention on Human Rights. You state that your client will suffer inhuman and degrading treatment if removed from the United Kingdom because she is suffering from depression as a result of being raped. You claim that to return Ms Nganga would lead to the deterioration of her health. The Secretary of State has considered your claim but is aware that case law at Strasbourg makes clear that depression cannot amount to inhuman and degrading treatment even when a condition deteriorates on return. This opinion has been confirmed in ( Cruz Varas v Sweden 1991-14 EHRR 1) and Kudla v Poland (26/10/LO). Such conditions do not meet the minimum level of severity required to achieve a claim under the ECHR. Furthermore, the Secretary of State is of the opinion that should your client's condition continue or deteriorate on return to Kenya she will be able to access adequate medical facilities there. He is also aware that there are numerous of human rights organisations [ sic] in Kenya. These include NGOs such as the KHRC, the Kenya Anti-Rape Organisation, the Legal Advice Centre and Development, People Against Torture, the Independent Medico-Legal Unit [IMLU].

The Secretary of State has considered your claim but is satisfied that you have failed to show substantial grounds that your client or her child would face a real risk of torture, inhuman or degrading treatment if returned to Kenya.”

On 16 February 2002 the Secretary of State issued his notice of refusal of leave to enter coupled with removal directions to Kenya. The appellant appealed against that decision and her appeal came before Mr C J Tipping, an Adjudicator, on 30 May 2003. He dismissed the appeal in which she claimed that her removal would be in breach both of her Article 3 and Article 8 rights under the European Convention.

Before the Adjudicator the appellant elected not to give evidence and the Adjudicator summarises the appellant's claim at paragraph 6 of his determination in the following terms:

“The basis of the appellant's claim is that at some date in 1994 she was attacked and raped. (Ms Bruce's skeleton argument refers to this event occurring in 1998, but it is clear that this is a typographical error). As a result of this attack, it is claimed that the appellant now suffers from a mental illness so severe that it would be a breach of Article 3 to return her to Kenya, especially as her symptoms would be likely to worsen in that country. Further and in the alternative, it is claimed that returning the appellant and her son would also represent a disproportionate interference with the private life which they have established in this country.”

The Adjudicator did not believe her factual claims as to what had occurred in Kenya. He noted that at interview the appellant had made no mention of any personal attack on her but had merely said that she had left Kenya because of the danger arising from ongoing tribal violence. That inconsistency was not addressed in the evidence before the Adjudicator although he noted that she had told the psychiatrist who has examined her that she was too embarrassed to mention the alleged attack at interview. The Adjudicator deals with these issues at paragraphs 7 and 8 of the determination as follows:

“7. … While I can understand the appellant's reluctance to mention the alleged sexual nature of an attack, it is to my mind inconceivable that, if it occurred, she would have failed to mention that she had been physically attacked; the attack is alleged to have included a wound to her knee from a knife wielded by her assailant which subsequently required stitching and now carries a scar. She maintained this silence on the matter until the Additional Grounds were lodged, more than four years after her arrival here.

8. The appellant has made a number of attempts to deceive, including a fraudulent attempt to gain entry to the United Kingdom and a false claim to asylum based on Somali nationality. In the absence of oral evidence from the appellant tested in cross-examination, I do not accept that the appellant suffered the attack she claims. I recognise that the appellant's son was born in 1995, but that is not evidence that he was conceived in the course of a rape.”

Before the Adjudicator, the appellant placed considerable reliance on two reports by Dr Rose Anne Varley, a psychiatrist at the Traumatic Stress Service at the Maudsley Hospital, who says that she had been involved with the psychiatric assessment and treatment of refugees for some eight years prior to the first report based on consultations which apparently took place on 24 and 25 June 2002. The second report, which is also undated, is based on a further consultation on 2 May 2003. Dr Varley had before her a report from the appellant's general practitioner, Dr F Hussain, which stated that from November 2000 he had prescribed anti-depressants for the appellant. This appears to have been the first medical treatment which she received after her arrival in the United Kingdom. In her first report Dr Varley diagnosed the appellant as suffering from severe symptoms of Post Traumatic Stress Disorder and co-morbid depression (of moderate severity). She said that these symptoms appear to have developed in response to the appellant having been raped while living in Kenya and that she started to suffer symptoms in the week following the alleged rape which had persisted since then with some decrease in severity after the departure from Kenya. She had been treated with anti-depressants as noted above and seen by a counsellor on a couple of occasions at her GP's surgery but was unable to continue. Dr Varley was of the opinion that she was in need of specialist treatment for her symptoms of Post Traumatic Stress Disorder which could be long-term. She then continued:

“Ms Wanja Nganga does not have such stability, safety or security as long as her asylum status remains uncertain and her fear of having to return to Kenya persists.

I believe if she were asked to return to Kenya her symptoms would most likely worsen and her risk of suicide would increase. [There is nowhere else within the report any analysis of a risk of suicide]. Ms Wanja Nganga's potential suicidality increased not only in relation to Kenya but also in relation to protecting her son from having to return there also. She believes that if she were not around he would not be sent back and would be fostered safely here in the UK.”

In her second report Dr Varley states that the appellant continued to take anti-depressant medication which had been recently increased and had also recently been prescribed sleeping tablets, although the appellant told her that the medication had only minimal effects on her mental state. She continued to wait for reference to the local psychiatric service who had not yet been able to provide any appointment. The report continues that the appellant had

“admitted to an increase in her suicidal thoughts but denied any current intent. She did not present with any psychotic phenomena. She complained of symptoms of panic and anxiety. She was fully orientated. Her concentration was poor. She continues to show good insight into her psychological symptoms and is very motivated to have appropriate treatment.”

Dr Varley then said that the appellant continued to suffer from symptoms of Post Traumatic Stress Disorder which had increased in intensity since she had learned of the date of her appeal hearing. Dr Varley said that she was of the same opinion as she was in June 2002 for the initial assessment report. She continued:

“As stated previously, I believe if Ms Wanja Nganga were to return to Kenya her symptoms would worsen. This has been demonstrated in the recent exaggeration of her symptoms of Post Traumatic Stress Disorder as a result of the issue of her possible return to Kenya has come to the forefront [sic].

Ms Wanja Nganga...