E v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS,PRESIDENT |
| Judgment Date | 12 November 2002 |
| Neutral Citation | [2002] UKIAT 5237 |
| Docket Number | Appeal No: HX/ 17516/2001 CC/ 12439/2001 |
| Court | Immigration Appeals Tribunal |
| Date | 12 November 2002 |
[2002] UKIAT 5237
IMMIGRATION APPEAL TRIBUNAL
The President, The Hon. Mr Justice Collins
Mr. C.M.G. Ockelton
Mr. K. Drabu
Appeal No: HX/ 17516/2001 CC/ 12439/2001
For the Appellant: Ms Lisa Giovannetti
For the Respondents: Mr Raza Husain
STARRED AE FE (PTSD-Internal Relocation) Sri Lanka *
The respondents in this case are husband and wife, aged 51 and 41 respectively. They are Tamils from Sri Lanka. They arrived separately in the United Kingdom, the wife and their four children in early 1999 and the husband in July 1999. Each claimed asylum. The wife was interviewed on 20 February 2000 and her claim was refused on 29 March 2000, about a year after she had made it. Her husband made his claim on 6 July 1999 but failed albeit by only a few days to submit the required SEF. For some reason, it took until 15 September 2000 for his claim to be rejected on the grounds of non-compliance with his obligation to submit a SEF.
Each respondent appealed to an adjudicator. The two appeals were separate. However, they were heard together pursuant to Rule 42 of the Procedure Rules and the adjudicator (Richard McKee) gave determinations which were identical (save for the heading) for each. The appeals, which related only to the asylum claims since the refusals had in each case been made before 1 October 2000, were allowed. The adjudicator's determinations were promulgated on 26 June 2001. On 9 August 2001 the appellant was given leave to appeal. Unfortunately for various reasons including a change of representatives and illness which required an earlier hearing date to be vacated the appeals could not be heard until 10 July 2002. Further delay has resulted from the incidence of the long vacation and the President's involvement with SIAC hearings. It is regretted.
The adjudicator allowed the appeals on the basis that the husband had a well-founded fear of persecution in the north of Sri Lanka where the family had lived because of his involvement with the LTTE and evidence which the adjudicator accepted that when he left Sri Lanka the army was looking for him. He had been detained and tortured in 1998. He was released following the payment of a bribe but resumed his activities on behalf of the LTTE. These were at a low level involving provision of transport (he had a small transport business) but the army got to know what he was doing and came looking for him. The wife had no well-founded fear of persecution herself. The adjudicator allowed the appeals on the basis that it would be unduly harsh to expect the family to relocate to Colombo even though neither husband nor wife were reasonably likely to be persecuted there. This was because of psychiatric evidence that the wife was suffering from major depression and post traumatic stress disorder (PTSD) resulting from her experiences with the army in Sri Lanka. We shall in due course set out the relevant circumstances in greater detail.
In his grounds of appeal, the appellant sought to rely on a tribunal determination Antonipillai (16588: 12 July 1998) to support his contention that the wife's mental condition was not such as justified the adjudicator's conclusions. In granting leave to appeal, the President indicated that that determination needed reconsideration since it might be unduly restrictive. Accordingly, it was anticipated that this decision would be starred.
We must now set out the salient facts as found by the adjudicator. Since 1987 the husband had been assisting the LTTE on and off by the provision of transport and the wife had done some occasional cooking for them. In January 1998 he was arrested by the army and was kept in detention until June 1998 when he was released following the payment by his wife of a bribe of 50,000 rupees. Whilst in detention, he was severely ill-treated, being punched, kicked and beaten with plastic pipes. A medical report from a Dr Nandi recounted that the husband had said that his hands had been placed on a table and repeatedly struck with a sand-filled pipe and on one occasion his left hand had been cut by a bayonet. He had scars consistent with his account of the treatment he had suffered. Following his release, he was reluctant to assist the LTTE any further, but in September 1998 he resumed his activities because he feared that otherwise his eldest son, by now 16, would be recruited instead. In January 1999 the army came looking for him but he had gone into hiding. The army molested and assaulted his children and, according to his wife's answers in interview, ‘tried to be funny and had sexual harassment’ to her. She did not then allege that she had been raped. Fear of further visits by the army led to the decision to leave Sri Lanka. The family went to Colombo, managing to avoid road blocks, and with the help of agents, made their separate ways to the United Kingdom. The husband had to remain in Colombo after his wife and children had left. He stayed with and was assisted to find an agent by a cousin.
The adjudicator was considering the situation in Sri Lanka as at 31 May 2001. It has changed since then following the recent cease fire which seems still to be holding. The adjudicator's conclusion is set out in these words: —
“There is a serious possibility that the Security forces in the Jaffna area will remember him if he returns, even after a gap of more than 2 years. He has a current well-founded fear in the north of the island”.
That conclusion is now unlikely to be correct. However, the appellant did not seek to challenge it before us and the respondents' counsel was not required to consider it. In the circumstances, we are prepared to accept the adjudicator's conclusion and to approach this appeal on the basis that the husband has a well-founded fear of persecution in his home area, namely the north of Sri Lanka. But, as we have already noted, the adjudicator made no such finding in relation to the wife and decided that neither was reasonably likely to be persecuted in Colombo. The husband's scars, though visible, were not likely to be material since his age was such as not to put him at risk of being rounded up nor would he be likely to be interrogated on return. These findings have not been challenged and they are undoubtedly correct in the light of the present situation in Sri Lanka.
What led the adjudicator to allow the appeals was the psychiatric condition of the wife. He relied on a report by Dr. Stuart Turner dated 21 November 2000. This was based on an interview “which took place on 17 October 2000 and lasted for about an hour”. Dr. Turner had a copy of the wife's asylum interview and there was an interpreter present. He has considerable expertise in dealing with patients who have suffered reactions to traumatic stress, being a consultant in the Traumatic Stress Clinic which is a national referral centre in the NHS for traumatic stress reactions. He has an impressive curriculum vitae. The adjudicator's comment that he is an acknowledged expert in the field may well be correct.
However, his expertise and qualifications do not necessarily mean that his views must be accepted without question. The I.A.A. is accustomed to receiving reports from psychiatrists which indicate that the asylum seeker in question is suffering from depression or PTSD or both. That there should be a large incidence of PTSD in asylum seekers may not perhaps be altogether surprising, although we are bound to comment that what used to be considered a relatively rare condition seems to have become remarkably common. Asylum seekers may be found not to be refugees and in many cases accounts when tested before adjudicators are found to lack credibility. But many who try to come to this country have suffered at least deprivation and poverty and may well have suffered ill-treatment or discrimination which does not amount to persecution or persecution for a Convention reason. They are all desperately anxious not to have to return to their country of origin and may well have spent large sums of money they and their relations can ill afford to get here. It is hardly surprising that they should suffer at least depression so long as their situation is not settled and there is a real chance that they may be refused entry and returned. In this case, Dr. Turner notes that PTSD can be treated effectively but that such treatment may not be effective when the individual feels insecure and there is a risk of return. He suggests that the wife be given exceptional leave to remain so that she can have treatment, but that will not resolve the uncertainty or the risk of eventual return.
The adjudicator refers to Dr. Turner's ‘long and careful examination’. We are far from persuaded that that is an apt description of an examination which lasted for about an hour and which was not assisted or followed up by a sight of her General Practitioner's notes. Dr. Turner says: —
“She told me that she gets some tablets from her general practitioner but hadn't got these with her”.
He examined her in October 2000. The hearing before the adjudicator was in May 2001 and before us was in July 2002. No further medical evidence was forthcoming and in particular no indication was given that any treatment had been sought or provided. Dr. Turner does not seem to have been asked to pursue the matter any further.
Doctors generally accept the account given by a patient unless there are good reasons for rejecting it or any material part of it. That is not and is not intended to be a criticism. There is no reason why a doctor should necessarily probe the history or approach his patient's account in a spirit of scepticism. But this does mean that the doctor's conclusions will sometimes be seen to be flawed if it transpires that the account is not credible. That is not the position...
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