SP v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | DR H H STOREY |
| Judgment Date | 01 July 2003 |
| Neutral Citation | [2003] UKIAT 17 |
| Date | 01 July 2003 |
| Court | Immigration Appeals Tribunal |
[2003] UKIAT 17
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey (Chairman)
Rt Hon The Countess of Mar
Mr A A Lloyd JP
SP (Risk-Suicide-PTSD-IFA-Medical Facilities) Kosovo CG
The appellant, a national of Federal Republic of Yugoslavia (FRY), has appealed with leave of the Tribunal against a determination of Adjudicator, Miss M Lingard, dismissing the appeal against the decision of the Secretary of State refusing asylum although granting limited leave until 18 November 2002. This was a s. 69(3) appeal. Ms J Alexander of Counsel instructed by Messrs Thompson Leatherdale Solicitors appeared for the appellant. Miss M Banwait appeared for the respondent.
This appeal requires us to address issues relating to the assessment by adjudicators of medical evidence and the proper approach to be taken in human rights cases based on a claim that return would give rise to a real risk of suicide.
The Tribunal has decided to dismiss this appeal.
The appellant based his claim on submissions that if he were now to return to Kosovo, he would be at high risk of taking his own life in order to avoid reliving traumatic experiences. At 14 years old he had escaped from his family home when Serb militiamen had set it on fire. He had subsequently learnt that his parents had been killed then or later. He had been told they were buried in a mass grave. Before he left Kosovo he had had to survive begging on the streets doing his best to avoid being harmed or used by criminal gangs.
His asylum grounds of appeal were conceded before the adjudicator but it was maintained that in view of his traumatised condition the decision refusing him asylum would amount to a breach of Arts 3 and 8 of the ECHR. The adjudicator did not accept there would be any breach of the claimant's human rights. Leave was granted confined to the Arts 3 and 8 issues.
In our view leave should not have been granted since at that time (3 September 2002) the appellant still had limited leave to remain which was not due to expire until 18 November 2002. Whilst by virtue of the Court of Appeal judgment in Saad, Diriye and Osorio (2002) INLR 34 the claimant was entitled to have his asylum grounds of appeal determined on the hypothetical basis of whether he would face a real risk of persecution as at the date of hearing, the same considerations cannot apply in an appeal based on human rights grounds. In an asylum-related appeal based on human rights grounds there is no link to a status recognised at international law or indeed to any status established by UK domestic law. Furthermore, whilst Strasbourg has identified the proper test as being, like that under the Refugee Convention, one of current risk to be assessed as at the date of hearing, the obverse side of this recognition is that the risk has to be shown to be an imminent one. A risk cannot be imminent if the appellant has available a further effective remedy: see Vijayanathan and Pushparajah v France (1992) 15 EHRR 62. In the instant case, since it remained open to the appellant as at the date of hearing before the adjudicator to have applied for an extension of limited leave to remain and to have appealed if refused, there was just such an effective remedy available.
However, leave was granted and we are required to decide the appeal on the basis of the situation at the date of hearing. That is critical in this case because by the time of the hearing before us (4 February 2003) the appellant no longer had limited leave to remain and so was at imminent risk of removal. We were informed that the appellant had not been granted any extension of his exceptional leave to remain. It would appear that ELR was granted because the appellant was a minor and was not renewed once he reached 18 on 18 November 2002.
The adjudicator accepted the claimant had given an entirely credible account in relation to his claimed experiences and that the appellant genuinely believed his parents were dead and that he had no close family members to return to.
However, the adjudicator was not persuaded that the appellant's return would place him at real risk of treatment contrary to Art 3 or Art 8. She accepted that at 17 he was still a minor who had Post Traumatic Stress Syndrome (PTSD) and unresolved bereavement with guilt about survival and self-blame. But she did not accept he would be at high risk of taking his own life if returned. She gave several reasons. Firstly she considered that in the principal medical report relied on, that by Consultant Psychiatrist Annette Goulden, no basis for this assessment had been given and in the guide attached to the addendum from Dr Goulden no mention was made of the general likelihood of the suicide option. Secondly she noted that there was no evidence of a history of self-mutilation. Thirdly she considered that the appellant's journey to the UK demonstrated a “certain independence of spirit” and that in the UK he was considered in a Social Services report to be physically well. She concluded that he had shown he could cope by undertaking studies and trainee employment as a chef and displaying a generally respectful attitude towards others and for the law. She noted that unilaterally he had requested a move from a YMCA establishment to his own accommodation within a house where facilities were shared and he appeared to be independent both financially and socially, albeit with important social services back up. Fourthly she noted the objective evidence indicating that there existed secondary schools in the appellant's home area and that there were a number of specialist departments including in psychiatry and paediatrics at the main University hospital in Pristina together with 6 health centres operating within the municipality and one specialist psychiatric institution with 6 state-owned pharmacies and 23 private pharmacies operating in the Pristina municipality.
The principal contentions raised in the grounds and before us were that the adjudicator had wrongly rejected the medical evaluation that the appellant was a high suicide risk and had wrongly concluded that the objective country materials showed that persons in a vulnerable state requiring medical care for mental health problems would receive adequate care there. They stated that the adjudicator had erred in taking into account irrelevant factors such as the appellant's character and progress in the UK and had effectively sought to give a medical opinion different from that of the medical expert.
We would accept that the first two of the adjudicator's reasons cannot withstand closer examination.
It is now clear from Dr Goulden's additional reports that there was a medical basis for her assessment. She referred in particular to recognised criteria for assessing depressive disorders: the Composite International Diagnostic Interview system as set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV diagnoses) and the ICD10 which we understand to be a fully standardised and modified version of the Composite International Diagnostic Interview. She also referred to three other research studies. One said that regarding specific diagnoses, multivariate co morbidity analyses indicated the highest risk for suicide attempt in those suffering from anxiety disorder, particularly PTSD. Another dated 2001 stated that an emerging literature suggests that PTSD patients are at an increased risk for suicide and that “in assessing suicide risk among persons with PTSD, careful attention should be paid to levels of impulsivity, which may increase suicide risk, and to social support, which may reduce the risk”. Another study, a 1996 study by Ferrada-Noli designed to assess the prevalence of suicidal behaviour among asylum applicants diagnosed as having PTSD and the impact of cultural bias factors (such as religion and nationality), stated that:
“Another noteworthy finding in the present study was that suicidal behaviour did not differ significantly between asylum applicants and refugees granted residence permits. Thus the notion that asylum applicants might manifest a higher frequency of suicidal behaviour, possibly due to the threat of imminent expulsion from the country, derived no support from our findings”.
Albeit the medical evidence is not entirely consistent, it does appear that the adjudicator was wrong to say there was no history of attempted self-harm. There was, albeit as we shall see it was limited. We have disregarded the failure of Dr Goulden and other reports to mention this consistently because we believe it can be put down to the medical and social services persons involved having to produce reports in some haste within the constraints of their difficult work responsibilities.
However, in our view these two flaws do not seriously undermine the adjudicator's conclusion that return of the appellant would not in fact breach Art 3 or Art 8. Why we take that view will become clearer when we deal with the other grounds of appeal.
The grounds of appeal take issue with the adjudicator's treatment of the medical evidence, arguing that, having accepted much of it, she should have been slow to reject that part of it indicating a breach of fundamental human rights. In order to address these grounds in more detail, we consider it is useful to summarise the main principles underlying the approach of the appellate authorities to cases involving evaluation of medical evidence.
The grounds in this case are not unique in complaining that the adjudicator failed to attach proper weight to (significant parts of) the medical evidence. The appellate authorities are frequently called upon to evaluate medical reports which deal with the...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2005-03-23, [2005] UKIAT 72 (RG (Suicide, Risk, Razgar Considered))
...of the evidence before him. 67. The issue of potential suicide has been considered by the Tribunal on a number of occasions. First in [2003] UKIAT 00017 P (Yugoslavia) where it was accepted that it could, as now universally acknowledged, potentially engage Articles 3 and 8 by reference to t......
-
J v Secretary of State for the Home Department
...[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 distingu......
-
Upper Tribunal (Immigration and asylum chamber), 2005-04-11, [2005] UKIAT 83 (JS (Suicide risks, Articles 3 and 8))
...in a case in which the same factors underlay the alleged breaches. Reliance was also placed on the Tribunal decisions in P (Yugoslavia) [2003] UKIAT 00017, in which at paragraph 43, it was pointed out that return to the country of origin did not mean return necessarily to any place where tr......
-
Upper Tribunal (Immigration and asylum chamber), 2004-05-25, [2004] UKIAT 113 (LA (Section 83(2) appeals, Human Rights))
...Article 3 because she did not have jurisdiction to consider human rights issues. Reliance is placed on the Tribunal's Determination in [2003] UKIAT 00017 P 5. At paragraphs 13 to 17 of the Determination, the Adjudicator gave her reasons for concluding that she had jurisdiction to consider h......