Upper Tribunal (Immigration and asylum chamber), 2022-03-25, [2022] UKUT 00111 (IAC) (HA (expert evidence, mental health))
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Rimington |
| Status | Reported |
| Published date | 21 April 2022 |
| Date | 25 March 2022 |
| Hearing Date | 04 March 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | expert evidence, mental health |
| Appeal Number | [2022] UKUT 00111 (IAC) |
Neutral Citation: [2022] UKUT 00111 (IAC)
HA (expert evidence; mental health) Sri Lanka
Upper Tribunal
(Immigration and Asylum Chamber)
At Field House via Microsoft Teams
THE IMMIGRATION ACTS
Heard on 3 and 4 March 2022
Promulgated on 25 March 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE RIMINGTON
Between
H A
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Ms C. Bayati and Mr N. Paramjorthy (Direct Access, both appearing pro bono)
For the respondent: Mr R. Dunlop QC, instructed by the Government Legal Department
(1) Where an expert report concerns the mental health of an individual, the Tribunal will be particularly reliant upon the author fully complying with their obligations as an expert, as well as upon their adherence to the standards and principles of the expert’s professional regulator. When doctors are acting as witnesses in legal proceedings they should adhere to the relevant GMC Guidance.
(2) Although the duties of an expert giving evidence about an individual’s mental health will be the same as those of an expert giving evidence about any other matter, the former must at all times be aware of the particular position they hold, in giving evidence about a condition which cannot be seen by the naked eye, X-rayed, scanned or measured in a test tube; and which therefore relies particularly heavily on the individual clinician’s opinion.
(3) It is trite that a psychiatrist possesses expertise that a general practitioner may not have. A psychiatrist may well be in a position to diagnose a variety of mental illnesses, including PTSD, following face-to-face consultation with the individual concerned. In the case of human rights and protection appeals, however, it would be naïve to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental illness, in order to defeat the respondent’s attempts at removal. A meeting between a psychiatrist, who is to be an expert witness, and the individual who is appealing an adverse decision of the respondent in the immigration field will necessarily be directly concerned with the individual’s attempt to remain in the United Kingdom on human rights grounds.
(4) Notwithstanding their limitations, the GP records concerning the individual detail a specific record of presentation and may paint a broader picture of his or her mental health than is available to the expert psychiatrist, particularly where the individual and the GP (and any associated health care professionals) have interacted over a significant period of time, during some of which the individual may not have perceived themselves as being at risk of removal.
(5) Accordingly, as a general matter, GP records are likely to be regarded by the Tribunal as directly relevant to the assessment of the individual’s mental health and should be engaged with by the expert in their report. Where the expert’s opinion differs from (or might appear, to a layperson, to differ from) the GP records, the expert will be expected to say so in the report, as part of their obligations as an expert witness. The Tribunal is unlikely to be satisfied by a report which merely attempts to brush aside the GP records.
(6) In all cases in which expert evidence is adduced, the Tribunal should be scrupulous in ensuring that the expert has not merely recited their obligations, at the beginning or end of their report, but has actually complied with them in substance. Where there has been significant non-compliance, the Tribunal should say so in terms, in its decision. Furthermore, those giving expert evidence should be aware that the Tribunal is likely to pursue the matter with the relevant regulatory body, in the absence of a satisfactory explanation for the failure.
(7) Leaving aside the possibility of the parties jointly instructing an expert witness, the filing of an expert report by the appellant in good time before a hearing means that the Secretary of State will be expected to decide, in each case, whether the contents of the report are agreed. This will require the respondent to examine the report in detail, making any investigation that she may think necessary concerning the author of the report, such as by interrogating the GMC’s website for matters pertaining to registration.
DECISION AND REASONS
A. INTRODUCTION
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This is the decision of the Upper Tribunal, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, following the setting aside by the Upper Tribunal (Upper Tribunal Judge Plimmer; 28 August 2020) of the decision of the First-tier Tribunal (First Tribunal Judge Grimmett; 21 January 2020) to allow the appellant’s appeal against the decision of the respondent on 29 April 2019 to refuse the appellant’s human rights claim.
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Upper Tribunal Judge Plimmer made an anonymity direction, on the grounds that the appeal concerns sensitive medical evidence pertaining to the appellant’s mental health. Neither party urged us to revisit that direction.
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The hearing in respect of the re-making decision took place at Field House, via Microsoft Teams, on 3 and 4 March 2022. We heard oral evidence from Dr Persaud and Professor Greenberg, both of whom appeared as expert witnesses. The appellant was present remotely but did not give oral evidence. Neither did the appellant’s cousin, who is frequently referred to by him and others as his sister. We shall refer to her as the appellant’s cousin/sister.
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At the hearing, Mr Dunlop QC rightly paid tribute to Ms Bayati and Mr Paramjorthy, both of whom appeared pro bono. The Upper Tribunal is extremely grateful to both of them for the significant amount of work involved in preparing for and appearing at the hearing. Both of them have acted in the very best traditions of the Bar.
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Upper Tribunal Judge Plimmer’s “set aside” decision is annexed to the present decision.
B. THE NATURE OF THE APPEAL
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This appeal concerns the correct approach to be adopted in a human rights appeal in which it is argued that removing an individual from, or requiring them to leave, the United Kingdom would be a breach of section 6 of the Human Rights Act 1998, on the basis that such removal or requirement would be contrary to Article 3 of the ECHR, having regard to the individual’s mental ill-health and/or risk of suicide. Determining the correct approach now requires an analysis of the judgment of the Grand Chamber of the European Court of Human Rights in Savran v Denmark (Application no. 57467/15; 7 December 2021).
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This appeal provides an opportunity for the Upper Tribunal to give guidance in respect of expert reports; in particular, psychiatric reports.
C. THE APPELLANT’S HISTORY AND HIS HUMAN RIGHTS CASE
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The appellant is a citizen of Sri Lanka, born in 1988. In January 2010, when he was then aged 21, the appellant entered the United Kingdom with entry clearance as a student. His leave in that capacity was, in effect, extended on a number of occasions thereafter, with the result that the appellant’s student leave came to an end on 5 February 2016.
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On 4 February 2016, the appellant applied for a residence card under the EEA Regulations (as then in force), as the family member of an EEA resident. On 28 July 2016, the respondent refused that application, with no right of appeal. The appellant made further applications for a residence card on the same basis on 18 August 2016 and 15 March 2017. Both were refused without a right of appeal.
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On 12 September 2018, the appellant applied for leave to remain on the basis of his private life; in particular, that he was suffering from depression, for which medication had been prescribed by his GP.
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As we have already recorded, the respondent refused that application (which she treated as a human rights claim) on 29 April 2019. The respondent found that the appellant did not meet the requirements of paragraph 276ADE of the Immigration Rules because he had not lived in the United Kingdom for the required period; and because there would be no very significant obstacles to the appellant’s reintegration into Sri Lanka. The respondent also concluded that there were no exceptional circumstances which would render a refusal of leave a violation of Article 8 of the ECHR. Finally, the respondent found that the appellant’s removal would not violate Article 3 of the ECHR, on the basis that his case did not meet the high threshold for succeeding by reference to Article 3 on medical grounds, as identified by the House of Lords in N v SSHD [2005] UKHL 31; [2005] Imm AR 353. In this regard, the respondent noted that the appellant had been prescribed citalopram tablets, which were available in Sri Lanka.
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In a witness statement signed on 20 August 2021, the appellant says that “I cannot return to Sri Lanka as I have established considerable family and private life here in the UK where I have resided for over the last decade”. He states that he has “built relationships and friendships here in the UK which have allowed me to prosper and thrive and to turn into the person I am today”. According to the appellant, removing him from the UK, “would not only deprive me of...
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