Upper Tribunal (Immigration and asylum chamber), 2016-08-12, AA/13183/2015
| Jurisdiction | UK Non-devolved |
| Date | 12 August 2016 |
| Published date | 20 December 2017 |
| Hearing Date | 08 August 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/13183/2015 |
Appeal Number: AA/13183/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13183/2015
THE IMMIGRATION ACTS
Heard at Field House, London Decision & Reasons Promulgated
On the 8th August 2016 On the 12th August 2016
Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MRS P
(Anonymity Direction made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Wilford (Counsel)
For the Respondent: Mrs Ahmad (Senior Home Office Presenting Officer)
DECISION AND REASONS
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This is the Appellant’s appeal against the decision of First-tier Tribunal Judge J. McDonald promulgated on the 21st April 2016, in which he dismissed the Appellant’s appeal against the Respondent’s refusal of her protection and Human Rights claim.
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The Appellant is a citizen of Sri Lanka who says that she fears persecution were she to be returned to Sri Lanka, due her to imputed political opinion. The Appellant, in an application for permission to appeal to the Upper Tribunal, summarised her case as being that she feared ill treatment upon return by or on behalf of General Fonseka, his former son-in-law Danuna Tillakaratne and Rohan Gunuratna, due to her husband’s suspected knowledge of their corrupt activities. It is also said that within the permission to appeal application that she fears ill treatment from the Sri Lankan police due to this association having been detained, beating and raped by them in 2011.
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First-tier Tribunal Judge J. McDonald, in his decision, accepted that the Appellant was a credible witness and that she had been arrested by the Sri Lankan police in November 2011 and that she had been beaten and raped as claimed and that the Appellant had been diagnosed as suffering from PTSD, the most likely explanation for which Judge McDonald found, was the treatment that she suffered in November 2011. However, the Judge found that the Appellant had consistently said that her fear was of General Fonseka and his son-in-law Tillakaratne, and that she had not at any point stated that her fear was of the Sri Lankan police, despite the ordeal that she suffered at their hands. He found that there was no evidence that General Fonseka or his associates had at any time taken action against the Appellant or her husband apart from oral threats [116]. The Judge went on to find that “Given the rehabilitation on Fonseka and his associations, I do not find, applying the lower standard of proof, that there are substantial grounds for believing that if the Appellant were returned to Sri Lanka she would face a real risk of suffering serious harm.“ In this regard, the Judge noted that although General Fonseka had served a prison sentence for corruption in relation to arms dealings, he had been pardoned and indeed promoted to the range of Field Marshall.
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The First-tier Tribunal Judge went on to find that there had been no submissions put forward that the Appellant’s mental health and PTSD engaged Article 3 and noted that it was an extremely high threshold.
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In respect of the Appellant’s claim under Article 8, the Judge noted the Appellant had a child who was born in the UK on the 28th April 2015 who was at that stage 11 months old, but that she and her husband did not meet the eligibility requirements of Appendix FM as partners, given that neither were British citizens and were in the UK with refugee leave or as persons with humanitarian protection. In respect of the Appellant’s private life under Paragraph 276ADE(1)(vi) when considering whether or not there would be very significant obstacles to the Appellant’s integration into the country to which she would be returned, namely Sri Lanka, the Judge considered that although the psychiatrist Dr Obuaya had said that the risk of suicide or serious self-inflicted harm may increase if the Appellant returned to Sri Lanka, and that her mental state may significantly worsen if she was forcibly returned, he found that there was no evidence that the type of treatment that Dr Obuaya envisaged would not be available in Sri Lanka. He found that the Appellant previously had employment in Sri Lanka and had always expressed a wish that she could return to Sri Lanka and continue with her employment. He found that the risks expressed by Dr Obuaya did not amount to very significant obstacles to return and that the Appellant’s claim therefore failed on Human Rights grounds. The Judge therefore dismissed the appeal on asylum grounds, on humanitarian protection grounds and on Human Rights grounds.
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The Appellant has now sought to appeal against that decision for the reasons set out within the application for permission to appeal to the Upper Tribunal. This is a matter of record and is therefore not repeated in full here, but I have fully taken account of the same, in reaching my decision. In summary, it is argued that the Judge materially erred in his consideration of the Appellant’s mental health and its implications for her ability to meet Paragraph 276ADE(1)(vi) and that the Judge failed to have regard to the findings at paragraphs 447 to 547 of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) regarding the availability and suitability of mental health treatment in Sri Lanka for those suffering PTSD following torture and that there were only 25 working psychiatrists in Sri Lanka and that such mental health institutions as do exist they are “inaccessible and do not provide appropriate care for mentally ill people”. It was further stated that in Y and Another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362, that the Court of Appeal had acknowledged that where PTSD arises from torture by the State, there may be a consequent unwillingness to seek treatment in the country concerned and thereby disclose the torture. It was argued that the Appellant would be unable to access psychiatric treatment in Sri Lanka and that any treatment she did experience would be ineffective, given her reluctance to recount her experiences to those in authority and that the arguable consequence would be a significant deterioration in her mental state, which may inhibit her ability to work and readjust to Sri Lankan society and create very significant obstacles to reintegration. It was argued that the Judge failed to take these factors into account when considering Paragraph 276ADE(1)(vi).
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In the second ground of appeal it was argued that the Judge had failed to make findings as to the Appellant’s claimed fear of Rohan Gunuratna who had been identified as involved in the Korean meetings and having threatened her and her husband in the past and that the Judge had also failed to make findings as to the Appellant’s claimed future risk from the Sri Lankan police, whom she had said had repeatedly visited her family in search of her and it is said that the Judge erroneously stated that the Appellant had not asserted a fear of the police, but she had mentioned such a fear, which was recorded at paragraph 43 of the determination.
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Permission to appeal was initially refused by First-tier Tribunal Judge Robertson on the 25th May 2016, but permission to appeal was then granted by Upper Tribunal Judge Allen on the 28th June 2016, in which he found that:
“It is on balance arguable in light of what was very recently decided by the Supreme Court in MP (Sri Lanka) [2016] UKSC 32, that this case is sufficiently akin to that for the conclusions there to be applicable here also. The matters raised in the grounds are of less immediate concern but are nonetheless arguable.”
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Within the Respondent’s Rule 24 Reply, it is argued that the First-tier Tribunal Judge directed himself appropriately, and that when considering Paragraph 276ADE(1)(vi), the Judge gave reasons at paragraph 127 as to why the Judge did not find the Appellant’s mental health amounted to a significant obstacle and that the Judge actively considered the risk on return to Sri Lanka as set out in paragraph 123.
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It was on this basis that the case came before me in the Upper Tribunal.
Oral Submissions
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In his oral submissions to me, Mr Wilford on behalf of the Appellant noted that the Supreme Court in the case of MP had not in fact made any specific findings of fact, but had referred a question to the Court of Justice of the European Union, namely, “Does Article 2(c) read with Article 15(b) of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the Applicant, if retuned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?”. However, Mr Wilford agreed that at paragraph 8 of the decision of the Supreme Court, it was said that the Upper Tribunal had in the case evidence from a psychiatrist which had showed that the Appellant in that case was suffering from severe post-traumatic stress disorder, severe depression and that that Appellant had showed a high degree of suicidality and he appeared to have...
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