E v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Phillips MR : |
| Judgment Date | 16 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1032 |
| Docket Number | Case No: C1/2003/0047 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2003 |
[2003] EWCA Civ 1032
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Lord Phillips Of Worth Matravers, Mr Lord Justice Simon Brown And
Lord Justice Ward
Case No: C1/2003/0047
Mr Raza Husain (instructed by Van-Arkadie & Co) for the Appellants
Mr Steven Kovats and Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
This is the judgment of the Court.
Introduction
This is an appeal from a decision of the Immigration Appeal Tribunal ('the Tribunal'), Collins J (President), Mr Ockelton and Mr Drabu, notified on 12 November 2002. Collins J gave permission to appeal because it raises the question of the correct approach to internal relocation, which is an issue of considerable importance. A number of authorities have considered the correct approach to this issue, and the leading case, R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, requires to be reconsidered in the light of the Human Rights Act 1998.
The facts
The Appellants, who are husband and wife, are nationals of Sri Lanka. They are Tamils. They lived, with their four children, in the Jaffna area in the north of Sri Lanka. In January 1998 the husband was arrested by the army because he had been assisting the LTTE, more commonly known as the Tamil Tigers. He was kept in detention until June, when his wife bought his release by paying a bribe. While in detention he was seriously ill-treated, being punched, kicked, beaten with sand-filled plastic pipes and cut by a bayonet. In September 1998 he reluctantly resumed assisting the LTTE because he feared that otherwise his eldest son, who was by now 16, would be recruited instead. In January 1999 he went into hiding. The army came looking for him on a number of occasions. On one of these they raped his wife.
The family decided to leave Sri Lanka. They went first to Colombo. From there the wife and four children set off for England. They were discovered, trying to make a clandestine entry into the country at Dover on 20 March 1999. They claimed asylum. The husband remained in Colombo for a while until, with the aid of his cousin, he found an agent who made arrangements for him to travel to England. Having arrived here he made a claim for asylum on 6 July 1999.
Both claims for asylum were refused by the Secretary of State. Husband and wife appealed to an adjudicator. On 26 June 2001 his determinations were promulgated. They were in identical terms. He found that the husband had a current well-founded fear of persecution in the north of Sri Lanka. He made no similar finding in relation to the wife. He found that neither the husband nor the wife were reasonably likely to be persecuted if they were removed to Colombo. He found, on the basis of a medical report prepared by Dr Stuart Turner, that the wife was suffering from post-traumatic stress disorder, as a result of her rape.
The adjudicator allowed both appeals for the following reason:
"I find it unduly harsh to expect this family to relocate to Colombo. Two of the sons are now 18 and 17 years old, certainly of an age when they could be rounded up. This will add to the distress which the wife will undoubtedly suffer if she has to go back to Sri Lanka. Dr Turner's prognosis is that psychotherapy and counselling will be of no avail to her as long she remains in fear and uncertainty about returning to Sri Lanka. The consequences of actually going back while she remains in an acutely traumatized state are too serious to make return a reasonable outcome in this case. The appeals are therefore allowed."
The Tribunal's approach to the facts
The Tribunal proceeded on the basis that the adjudicator had found that the husband had a well-founded fear of persecution in the north of Sri Lanka but that the wife had no well-founded fear of persecution in any part of Sri Lanka and was not a refugee. While Mr Husain for the appellants indicated that he would wish to challenge that last finding, no such challenge was intimated in his Grounds of Appeal. Furthermore, we could see no basis upon which that finding could possibly be challenged.
The Tribunal had this to say about Dr Turner's report:
"Dr Turner recommended that she should undergo treatment. He says:-
'She seems to be on some form of medication, although this was not available to me. It may be that much more could be done to improve her drug treatment regime'.
There is no evidence that anything had been done to follow up this recommendation or the alternative psychiatric treatment. It is true that Dr Turner thinks that there is a need for security in this country, but the refusal of asylum meant that that was not the position and exceptional leave to remain would not provide security since it would only last for a limited period. We are bound to say that we are not impressed by Dr. Turner's report. It is based on a relatively short interview and there has been no attempt to discover what treatment she was receiving. We are not ourselves experts and it might be said that we are not in a position to reject the opinions of those who are. But we are accustomed to seeing a large number of psychiatric reports in these cases and the same conclusions are reached in very many of them. We know that PTSD is something which needs careful diagnosis and detailed consideration of individual cases. We know too that the process of seeking to make a new life in the United Kingdom and the circumstances which triggered that process may well lead to depression or worse if obstacles seem to be arising."
As to the Adjudicator's reasons for allowing the appeals, the Tribunal commented:
"Nowhere does the adjudicator consider whether the wife could receive the necessary treatment in Colombo in the light of his positive finding that neither of the appellants is reasonably likely to be persecuted in Colombo. The possibility of the sons being rounded up is in the light of the current state of affairs remote. Nor is it clear to us what are the consequence of going back which make it unreasonable to expect the appellants to do so and thus to justify a conclusion that they are refugees."
The application to adduce fresh evidence
Mr Husain applied to place before us additional evidence, obtained after the Tribunal's determination. This fell into two categories. There were two supplementary psychiatric reports, prepared by Dr Turner. The second was prepared in support of an application that, in order not to exacerbate her psychiatric condition by publication of the fact that she had been raped, we should order that she and her husband should be referred to by their initials. We acceded to this application. The first report was, however, designed to answer the shortcomings identified by the Tribunal. It dealt largely with the wife's current mental condition. As this appeal is on law alone, we could see no basis upon which this evidence could properly be admitted. The only issue before us is whether the Tribunal erred in law in finding that the appellants were not entitled to asylum as refugees. That issue falls to be determined on the evidence before the Tribunal. The additional evidence of the wife's current mental condition might found an application that her removal would be contrary to the Human Rights Act, or that she should be granted exceptional leave to remain, but these matters are not before us. Accordingly, we did not admit the additional medical evidence.
The other additional evidence consisted of a report of Dr Anthony Good. This sought to refute the comment of the Tribunal that the possibility of the sons being rounded up if they were removed to Colombo was remote. In adverting to that possibility the adjudicator had been expressing an opinion based upon his own experience. That this possibility would add to the wife's distress was his own conclusion. It was not based on any evidence.
No challenge was made of this part to the adjudicator's determination, and there is force in Mr Husain's contention that the Tribunal should not have differed from it without notice that they were minded to do so to those representing the appellants. In the circumstances, we think it right to approach the Tribunal's determination on the premise that the wife was suffering from post-traumatic stress disorder which was likely to be aggravated, should the family be removed to Colombo, by apprehension that her sons might be rounded up.
The issue
Article 1 of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol (the 'Refugee Convention') provides:
"(A) For the purpose of the present Convention, the term 'refugee' shall apply to any person who:
(2) Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
The issue is the manner in which this definition falls to be applied where an asylum seeker has a well-founded fear of persecution in the part of his country where he habitually resides, but where there is another part of the country where he would not have such fear. This is an issue which arises quite frequently in the case of Tamils who...
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