Upper Tribunal (Immigration and asylum chamber), 2018-10-05, PA/04637/2017
| Jurisdiction | UK Non-devolved |
| Date | 05 October 2018 |
| Published date | 26 October 2018 |
| Hearing Date | 20 September 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/04637/2017 |
Appeal Number: PA/04637/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04637/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20th September 2018 |
On 05th October 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE GRIMES
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
mr cRV
(ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Ms S Iqbal, instructed by Marsh & Partners Solicitors
DECISION AND REASONS
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Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
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The Appellant, a national of Sri Lanka, appealed to the First-tier Tribunal against a decision of the Secretary of State of 27th April 2017to refuse his application for asylum or humanitarian protection in the UK. In a decision promulgated on 25th June 2018, First-tier Tribunal Judge Keith dismissed the appeal on asylum and humanitarian protection grounds but allowed the appeal under Articles 3 and 8 of the ECHR. The Secretary of State now appeals to this Tribunal against the findings under Articles 3 and 8 with permission granted by First-tier Tribunal Judge Shimmin on 23rd July 2018.
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The background to this appeal is that the Appellant claimed asylum on 27th August 2008, that application was refused on 19th March 2011 and his appeal was dismissed on 14th June 2011 by Immigration Judge Moore. The Appellant was granted permission to appeal against that decision but the appeal to the Upper Tribunal was dismissed on 13th October 2011. The Appellant made further submissions in November 2011 which the Respondent lost but the Appellant resubmitted submissions on 19th May 2014 and the Respondent accepted that these amounted to a fresh claim. These were considered and the application was refused in the decision subject to this appeal dated 27th April 2017.
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The First-tier Tribunal Judge cited most of the decision of Immigration Judge Moore and used that as his starting point under Devaseelan [2002] UKIAT 00702. The judge considered that the Appellant had not established his claim on asylum grounds. That decision has not been challenged.
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The judge went on to consider the up-to-date medical evidence in particular the psychiatric evidence in relation to the Appellant’s diagnosed PTSD. The judge set out in detail the contents of the medical evidence. The judge considered that it was open to him to consider whether the Appellant’s fears and concerns may present sufficient mental health risks so as to engage Articles 3 and 8 of the European Convention on Human Rights [57].
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The judge noted that Dr Lawrence concludes that the Appellant was not delusional; and took into account that the Appellant’s brother has been granted asylum on the basis of his own fears (noting that the circumstances are different) and took into account that this is one of the factors informing the Appellant’s own fears. The judge went on to say; “even if misguided therefore I considered whether the Appellant had genuine fears that the lower evidential standard” [57].
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The judge considered that crucial to this was the finding that the Appellant was suffering from PTSD and the looked at whether this would be exacerbated by the Appellant’s return to Sri Lanka. The judge set out his findings in relation to this issue at paragraph 58 where he said;
“Dr Lawrence makes a generalised comment that assessing risk of suicide is impossible with any degree of accuracy. However I must assess this to the lower evidential standard. The Appellant was assessed as currently being at some risk but this was in the absence of any removal itself. Dr Lawrence was clear that the risk would be “greatly increased’, if any attempts were made to remove the Appellant to Sri Lanka. For the purposes of the authority in I I was conscious that the fact that the Appellant’s fears were not well-founded would weigh against this risk but nevertheless the assessment is that the risk was high. The question was whether, considering the binding authority of N, the risk of the Appellant’s death was imminent. I concluded that it could not be said on the basis of Dr Lawrence’s report that the Appellant’s death was imminent. The assessment of the suicide risk, while high, was not to that extent. However there was a second question that even if not at imminent risk of dying, he would be at real risk of rapidly experiencing intense suffering in Sri Lanka because of his illness, or a real risk of death within a short time fearing for the same reasons. I concluded that he was at such a real risk namely of experiencing intense suffering. In reaching this conclusion I have considered whether he would be able to access psychiatric treatment available in Sri Lanka. Bearing in mind that his fears are inextricably linked to a fear of return, I do not find that he would access any such facilities available. Dr Lawrence had considered the Respondent’s Country of Origin Information Response of 11 May 2015 but concluded that the Appellant’s symptoms would undoubtedly be made worse by his return to Sri Lanka and any such treatment would be rendered useless, with the Appellant in suffering something analogous to shell-shock.”
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The judge went on to conclude at paragraph 59 that, whilst a high burden, the Appellant’s symptoms “do meet the requirement such that his removal would be in breach of his rights under Article 3 of the ECHR. It follows that there would be very significant obstacles to his reintegration for the purposes of Article 8”.
Grounds of Appeal and submissions
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As indicated by Mr Clarke at the hearing the Grounds of Appeal can be distilled into one issue. In essence this is that the First-tier Tribunal Judge failed to consider the family support available to the Appellant in Sri Lanka.
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The Grounds of Appeal assert that the judge made a material misdirection of law. It is asserted that the judge failed to apply the case law to his analysis of the facts of the case. Reliance is placed on the case of N v UK [2005] UKHL 31. The grounds contend that the First-tier Tribunal Judge raises the instant case into the category of exceptionality on the basis that the Appellant would be unable to access facilities that are available in Sri Lanka whereas it is contended that in the case of N exceptionality arose because of the imminence of death, the lack of any medical care and the absence of any family willing to care for or support the Appellant. It is contended that these points of exceptionality are incorporated into the guidance of J which is endorsed at paragraph 6 of Y (Sri Lanka) [2009] EWCA Civ 362. The grounds of appeal contend that the judge failed to consider at all the family support available in Sri Lanka and the foundation this will offer to the Appellant to seek the help required. Reliance was placed on paragraph 61 of Y where the Court of Appeal said
“The upshot of the material findings and of the expert evidence which (for reasons I have given) stood unshaken, is that, although some psychiatric care is available in Sri Lanka, these two Appellants are so traumatised by their experiences, and so subjectively terrified at the prospect of return to the scene of their torment, that they will not be capable of seeking the treatment they need. Assuming (what cannot be certain) that they come unscathed through interrogation at the airport, with no known family left in Sri Lanka and no home to travel to, the chances of their finding a secure base from which to seek the palliative and therapeutic care that will keep them from taking their own lives or any admissible view of the evidence remote.”
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The grounds contend that at paragraph 43 of the decision it is clear that family members are present in Sri Lanka and the Appellant’s mother has assisted the Appellant in his claim for asylum in the UK.
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At the hearing Mr Clarke referred to the case of AM (Zimbabwe) and Another v Secretary of State for the Home Department [2018] EWCA Civ 64. There the Court of Appeal considered the decision of the European Court of Human rights (ECtHR) in Paposhvili v Belgium [2014] ECHR 431. Mr Clarke argued that there are three factors highlighted in the case of AM (Zimbabwe); those are whether the condition is sufficiently serious, whether care is available and whether there is someone there to provide support. He submitted that in the case of AM (Zimbabwe) there was no family in Sri Lanka and the Appellant there had no home to go to and on that basis the threshold had been met. In his submission in this case we know that the Appellant’s mother assisted the Appellant by providing correspondence in relation to the asylum claim. In his submission the judge failed to take that factor into account in deciding whether the Appellant could access care in Sri Lanka. He submitted that the failure to make a finding on this matter is a material error. He submitted that the Article 8 findings are predicated on those in Article 3 and are infected by the...
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