COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE DYSON
LORD JUSTICE LLOYD
|- and -
|Secretary of State for the Home Department
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Kieron Beal (instructed by the Treasury Solicitor) for the Respondent
Crown Copyright ©
LORD JUSTICE DYSON : this is the judgment of the Court.
"His prognosis is presently extremely uncertain. It is a matter of concern that he had attempted suicide. Though the shock of being refused asylum had been a precipitant, the significant predisposing factors relate to his traumatic experiences. These had then led to his depressive illness the onset of which could be established to the period when he was detained by the Sri Lankan army.
He was admitted to inpatient psychiatric care on the 3 October 2002 and discharged from hospital on the 7 November 2002.
He continues to present with a risk of suicide. This could be aggravated if he had to return to Sri Lanka. Such risk would be high as a result of his knowing that the Home Office would return him to Sri Lanka."
"if [J] is sent back to Sri Lanka the risk of exacerbating his existing suicidal ideation is greatly increased because he is likely to have lost all hope. Hopelessness has a serious, significant association with completed suicide.
In my opinion, if he does not manage to kill himself in the UK there is a high risk that he would try to commit suicide en route and may therefore pose a threat to other passengers in his desperation to kill himself.
If he is prevented from killing himself either in the UK or while being returned I think it is likely that he would commit suicide upon his arrival in Sri Lanka to avoid falling into the hands of the authorities from whom he perceives he is in mortal danger".
"In my opinion there is a very significant risk of completed suicide in the United Kingdom if [J] knows for certain that he is to be removed to Sri Lanka. He has as mentioned already made one serious attempt at suicide here.
He has found support and sympathy from his relatives in the United Kingdom which to a large extent has provided him with a sense of stability".
"….Although suicide is a form of self-harm and is to be distinguished from harm inflicted by others, if the real risk of it is a foreseeable consequence of a removal decision, then that may well be enough to establish serious harm under both Conventions. Under the Human Rights Convention we would accept in principle that if the evidence in a case establishes that a removal decision will expose a person to a real risk upon return of committing suicide, then a decision requiring him to return could give rise to a violation of Article 3 and Article 8. So much we understand to be established by cases such as D v UK (1997) 24 EHRR 423 and Bensaid v UK  INLR 325. In Bensaid at paragraphs 36 and 37 it was accepted that in principle deterioration in mental condition causing the risk of self-harm resulting from difficulties in obtaining medication, could fall within the scope of Art 3."
The grounds of appeal
i) the IAT applied the wrong test for deciding whether the removal of an immigrant is in breach of article 3 because of a risk of suicide. The correct test is whether the removal gives rise to a real risk of an increased risk of suicide, and not whether there is a real risk that suicide will be the foreseeable consequence of the removal;
ii) if the IAT applied the correct test, the decision that there was no real risk that the appellant would commit suicide in the UK was perverse;
iii) the IAT failed to consider the risk of deterioration of his mental state under threat of his being removed to Sri Lanka; and
iv) their decision that there was no real risk of suicide en route or in Sri Lanka was perverse.
The first ground of appeal: the correct test for article 3 in a suicide case
"In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment."
"Deterioration in the applicant's already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (eg withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of article 3."
"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D case (cited above) where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts."
"….Aside from these situations and given the fundamental importance of Article 3 in the convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant's personal situation in the expelling State.
50. Against this background the Court will determine whether there is a real risk that the applicant's removal would be contrary to the standards of Article 3 in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health."
"1). Article 3 enshrines one of the fundamental values of democratic societies and constitutes an absolute prohibition on article 3 ill-treatment irrespective of how reprehensibly the applicant may have behaved.
2). Notwithstanding that ordinarily a state is entitled to extradite, expel or deport aliens, whether to honour extradition treaties, combat crime, safeguard its own population, or more generally in the interests of immigration control, the exercise of such a power may itself in certain circumstances constitute article 3 ill-treatment. This will be so if the applicant would be at substantial risk of article 3 ill-treatment in the receiving country (a proposition previously established by the Court in cases such as Soering v United Kingdom (1989) 11 EHRR 439 and Chahal v United Kingdom (1997) 23 EHRR 413) or even exceptionally (as on the facts of D itself) if the applicant's removal would sufficiently exacerbate the suffering flowing from a naturally occurring illness (see for this formulation of the nature of the violation, Pretty at para 52).
3) In this latter exceptional class of case the Court will assess whether the applicant's removal is itself properly to be characterised as article 3 ill-treatment in the light of the applicant's present medical condition. The mere fact that the applicant is fit to travel, however, is not of itself sufficient to preclude his removal being characterised as article 3 ill-treatment.
4) An alien otherwise subject to removal cannot in principle claim any entitlement to remain in order to benefit from continuing medical, social or other assistance available in the contracting state."
"The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."
"….The threshold must if anything be higher still where the Contracting State not only has no direct responsibility for the infliction of harm but rather is contemplating a decision falling at the very opposite end of the spectrum from those article 3 cases which involve State-sponsored violence. It was in Limbuela v Secretary of State  QB 1440 (a case involving the refusal of asylum support) that Laws LJ suggested the metaphor of a spectrum and he later carried the analysis further in Gezer v Secretary of State for the Home Department  EWCA Civ 1730 (where an asylum seeker was challenging his dispersal to Glasgow). Gezer, particularly at paras 24-29, usefully explores the categories and sub-categories of article 3 cases falling within the spectrum and also the kind of action required in any given case to exonerate the State from liability under article 3, action which reflects but is not identical with the distinction between the different categories."
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added).
See also para  of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"
"We agree with the judge that the issue was the degree of risk that there would be an increased likelihood of suicide. If it was arguable on the evidence that there was a real risk of a significantly increased risk that, if she were removed to France, the appellant would commit suicide, then in our view her claim based on article 3 could not be certified as manifestly unfounded."
"42. Putting that analysis into ECHR terms, nothing involves treatment by the United Kingdom which itself breaches Article 3. The treatment involved in informing the Appellant of the decision, detaining and then actually removing him does not involve such a breach. Merely increasing the risk of suicide through those actions, against which suitable protection is then available, involves no breach of Article 3. In Algeria, the degree of risk or of increase, weighing the reduction in risk factors against the fact of return and short term detention with the possibility of some low level physical ill treatment, can be described as speculative. But a better answer is that there has not been shown to be a real increased risk of suicide in those circumstances compared to the risk he would face on release in the United Kingdom. We do not therefore see any basis for a breach of Article 3."
"Although this case involves a mental illness and risk of suicide, that does not bring in any different test for the purposes of Article 3. The extremity of circumstances to engage Article 3 does not vary. The nature of suicide from mental illness, with the associated despair or anguish, may more readily excite humanitarian considerations than a physical illness, but the answers are unlikely to be much clearer in an individual case by attributing any preconceived differential weight to the different forms of illness which may face judges."
The reasoning of the IAT
"15. In relation to the risk of suicide in the UK, we do not consider that the medical evidence, even taken at its highest, demonstrates a real risk that the appellant would commit suicide in the UK. We say this because it is clear that there has been and continues to be excellent cooperation between the appellant's uncle, who supervised him closely, and the medical authorities in the UK. In particular, the events of August 2003 demonstrated that precautionary steps had been successfully taken in the past to ensure he was not at immediate risk of suicide – by re-admitting him to hospital – and there was no reason to suppose that similar steps could not be taken in the future. (In order to further ensure that precautionary measures could be taken, we agreed to Mr Cox's request that the appellant's copy of our determination be relayed through his representatives)."
"23. Mr Cox's response to this finding is to argue that it does not matter what the objective reality will be for the appellant on return to Sri Lanka: it does not matter because the medical evidence is that, irrespective of objective reality, he believes he will be subjected (again) to serious harm. However, even though the medical evidence does state that he is at risk of suicide, it does not demonstrate that this appellant is delusional or unable to distinguish between reality and fantasy. In the absence of medical evidence of this kind, we do not think it can be assumed that, once the appellant realises he is required to return and that there is no prospect of further appeal, he will not take stock by reference to objective realities.
24. This is an important point in this appeal because in large part the appellant has overtly put his case on the following footing: "If you (the appellate authorities) refuse me, I will harm myself. I did it once before when I learnt of a refusal, and I will do it again".
25. In concluding that the appellant could be expected to come to terms with the fact of removal and to take cognisance of changed circumstances in Sri Lanka, we would re-emphasise the significance in our view of the fact that throughout the time he continues to remain in the UK, it is reasonably likely he will be in receipt of family and medical supervision, and that, upon arrival in Sri Lanka he will have family support, and medical support if needed."
"26. As regards the concerns raised about the appellant's conduct en route by aeroplane to Sri Lanka, we do not accept that these could not be allayed by action on the part of the appellant's uncle in the UK, in cooperation if necessary with medical and immigration authorities. If there was any continuing concern on the part of his uncle, the latter could if need be purchase a ticket and accompany him. It is quite absurd, in our view, to voice concerns of this kind without at the same time being practical about what could be done to allay them."
"27. In reaching our conclusions we have to take careful account of Mr Cox's submissions based on Kurtoli and Soumahoro. However, not only were these cases concerned essentially with the arguability of a claim as opposed to its merits, but both decisions are fact-specific and fact-sensitive. We are not persuaded that they establish that the Adjudicator's conclusions in this case were erroneous. Nor have we found that the further medical evidence adduced in this case demonstrates that return of this appellant would cause a breach of his fundamental human rights.
28. Even though the Adjudicator did not address Article 3 separately, we consider that his conclusion as to the lack of serious threat to the appellant's physical and moral integrity under Article 8 were sufficient in themselves to establish that the decision did not violate his Article 3 rights either.
29. For the above reasons this appeal is dismissed."
The second and fourth grounds of appeal
"Third stage-transit: there are no reasons to suppose that the Secretary of State would not provide appropriately qualified escorts. This is known to be done. Other measures in other cases may include accompanying family members."
The third ground of appeal
Postscript: fresh evidence