Case No: C5/2006/1173 AJ

Neutral Citation Number: [2006] EWCA Civ 1736
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATIUON TRIBUNAL 

ASO/2869/2004
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 15th December 2006
Before :

THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE HUGHES
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Between :

	AJ (Liberia)	Appellant	
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	Secretary of State for the Home Department	Respondent	
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Mr P Jorro (instructed by Brighton Housing Trust, Immigration Legal Services) 
for the Appellant
Mr R Palmer (instructed by Treasury Solicitor)
for the Respondent

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Judgment
Lord Justice Hughes : 
1.	In this appeal from the Asylum and Immigration Tribunal, the Appellant challenges the decision that his return to Liberia will not put this country in breach of its obligations under Articles 3 and 8 of the European Convention on Human Rights.  His contention is that he is at such risk of suicide if returned that a breach of both Articles would ensue.  
2.	The Appellant arrived in this country by plane on 18 November 2003 and claimed asylum immediately.  He does not reliably know his exact age, and it has never been possible to determine it, but he has been treated as having been about 16 or 17 at time of arrival.  The ultimate conclusions of the fact-finding exercises which have been carried out are that he had a traumatic time as a child in Liberia at the time of rebellion and subsequent civil war.  Not all the dates can be made to add up perfectly, which is unsurprising, but the broad historical shape of the history is as follows.  When he was something like 9 years old his parents were killed and he was taken by the rebel band responsible and made to lead the life of a child soldier.  That involved fighting and looting, and being witness to atrocity.  For some of the time he was under the influence of drugs forcibly administered to the children who were used as soldiers.  The band which had taken him was supportive of Charles Taylor, who was later to come to power as President between 1997 and 2003.  The period of existence as a child soldier lasted for something like eighteen months until Taylor achieved power.  Some two or three years after the fighting had halted, he got away from the band and went to the capital, Monrovia.  That was in or about 2000, and he was then about 13 or 14.  He had two uncles living there, and had limited contact with them, but he lived rough on the streets for approximately three years until he arranged to come to the UK in 2003.  
3.	The Appellant’s account of his experiences was challenged at a number of points during the immigration hearings.  In the end, the outline history set out above was accepted.  The appellant was, however, disbelieved when he asserted that after the fall of President Taylor in August 2003 he was recognised on the streets of Monrovia as a former child soldier and assaulted and harassed as such.  By then it was several years since he had fought, elsewhere, as a child soldier.  It was not plausible that he would be recognised for something done in a different place many years beforehand;  moreover he would have altered in appearance considerably over those years.  He had, if assaulted, been the victim of random act or acts of violence or aggression.
4.	President Taylor was forced out of office by local resistance and international agreement forged at Accra.  There has followed a multi-national force supervising the establishment of some form of democracy;  elections were held in October 2005.  The force remains present;  the country remains in a very rudimentary state.  
5.	The appellant’s case has had a comparatively lengthy history in the immigration adjudication system.  It first came before an adjudicator for hearing in March 2004.  The claim then was for asylum on the basis of an asserted fear of persecution as a former child soldier, founded on the allegation of targeted assault as such.  A claim that his return would entail a breach of Article 3 was advanced in parallel, on the basis of a real risk of ill-treatment by others in Liberia, but that did not at that stage raise any issue distinct from the asylum claim.  At that stage there was a long medical report from a doctor who had examined the appellant.  He identified old lesions consistent with the administration of drugs.  He added that the appellant had many of the symptoms of PTSD and was in need of counselling.  In that passage, the doctor referred to the appellant having some thoughts of killing himself.  But the case was not presented as one in which a suicide risk provided an Article 3 or 8 imperative against return to Liberia. 
6.	The first adjudicator disbelieved the appellant’s evidence generally.  He accepted that he had been exposed to conflict somewhere in Africa, but not necessarily in Liberia.  That conclusion was quashed by the Immigration and Asylum Tribunal in January 2005 on the grounds that the adjudicator had gone wrong in deducing a general lack of veracity from discrepancies between the appellant’s evidence and what he had said in interview in what was not his first language. The IAT remitted the case to a fresh adjudicator.  
7.	The re-hearing took place in March 2005, before an adjudicator duly re-styled an immigration judge by the time the decision was released.  The principal claim remained for asylum on the grounds of feared persecution as a former child soldier.  But by now the appellant had been referred to a clinical psychologist, Dr Dodgson, who has experience of counselling, and reporting upon, the victims of trauma, including violence and torture.  On the basis of his report, the appellant’s claim was now also advanced on the distinct ground that there was such a risk of suicide in the event of return to Liberia that irrespective of whether there was or was not a risk of persecution, such return would constitute a breach by this country of its international obligations under Article 3 and/or Article 8 of the European Convention on Human Rights.  
8.	The asylum claim failed before the second immigration judge as a consequence of the appellant being disbelieved in the assertion that he had been targeted for assault as a former child soldier, and because, particularly in the changed conditions in Liberia, there was found to exist no real risk that he might be recognised or suffer persecution as such.  The asylum claim, and the associated ECHR claim based upon risk of treatment by third parties is no longer pursued.  
9.	The second immigration judge also rejected the Article 3 and Article 8 claims based on risk of suicide, describing the risk as speculative.  There was a second “appeal”, now correctly an application for re-consideration under the transitional provisions introduced following the passage of the Asylum and Immigration (Treatment of Claimants etc ) Act 2004.  After a first-stage hearing, the Asylum and Immigration Tribunal ordered a full re-consideration hearing.  That took place before a senior immigration judge and two other judges.  The claims under Article 3 and Article 8 were evaluated afresh.  The AIT did not hear the appellant since it accepted the findings of fact made by the second immigration judge.  It did receive the oral evidence of Dr Dodgson in amplification of his four reports.  The claims were rejected.  It is from that decision that this appeal is brought. 
10.	The medical and psychological evidence was to this effect:
i)	The appellant had been referred by his general practitioner to a consultant psychiatrist and on by the latter to Dr Dodgson for therapy.  That was in Summer 2004, viz after the failure in front of the first adjudicator in March of that year.  Since July 2004, Dr Dodgson has seen the appellant regularly, some 38 consultations by January 2006.  He is thus a treating psychologist with a close knowledge of his patient, and not a consultant preparing a report solely for legal purposes.  
ii)	Dr Dodgson had found the appellant to be suffering from post traumatic stress disorder and an adjustment disorder.  Flashbacks to violent incidents witnessed had been successfully treated and he had responded well to therapy, plus (in the early stages) medication.  The stressor was regarded as a fear of return to Liberia and of suffering violence if that were to occur.  As therapy had proceeded, he had identified also in the appellant a sense of shame and guilt at what he had done or witnessed.  He was currently attending college and the prognosis was good if he remained in the UK with ongoing counselling.  He had not needed medication for some time; indeed Dr Dodgson as a psychologist was not in a position to prescribe it. If he were to be returned to Liberia there was a significant risk of deterioration.  He would lack counselling.  There were likely to be external cues which triggered painful memories.  He might develop psychosis and there was a significant risk of suicide.  The level of that risk was described in different terms at different stages of the reporting.  By the time Dr Dodgson was giving oral evidence before the AIT, he described it as a “very high risk”.  
iii)	There had been no sign of suicidal ideas in the three year period when the appellant was actually living in Monrovia.  Dr Dodgson suggested that that might be because at that time he would have had hope, whereas now the prospect of return loomed.  
iv)	There had been no attempt at suicide.  There had however been an increase in anxiety since the likelihood of return increased.  At some stage, the appellant had cut himself deliberately; it was not clear exactly when this had been.  
v)	The assessment of suicide risk was not wholly dependent on the appellant’s (rejected) account of being targeted as a former child soldier in Monrovia.  Dr Dodgson had in the past proceeded in part on the basis that that was true, but his opinion was that even if the appellant’s subjective fears were ill-founded, as they had been found to be, they were nevertheless real to him and, with his sense of shame and guilt, created the risk of suicide which he described.  
vi)	If the appellant were to deteriorate in the manner Dr Dodgson anticipated, he would need either therapy or medication; without either there would be serious deterioration.  

The law
11.	It is not necessary to conduct an extensive review, which can be found elsewhere, including, recently, in J v SSHD [2005] EWCA Civ 629 and Tozlukaya v SSHD [2006] EWCA 379.  The principal strands are as follows.
12.	Although its terms do not readily suggest it, Article 3 is in principle capable of extending to cases in which an order for return carries a risk of deterioration in mental health, including a risk of suicide, even where that risk does not arise from any harm that may be done to him by either the sending or the destination state:  Bensaid v UK (2001) 33 EHRR 10 at paragraphs 34 & 37.  As Laws and Dyson LJJ have pointed out (in N v SSHD in this court [2003] EWCA Civ 1369; [2004] 1 WLR 1182 at paragraphs 37 and 46) this represents an extension upon an extension of Article 3.  First, Article 3 is extended to carry the capacity to fix responsibility upon a contracting (sending) State, when exercising its immigration policy, for the foreseeable actions of a foreign and non-contracting State over which it has no control.  Such cases are conveniently referred to as “foreign” cases.  Second, Article 3 has the capacity to fix the sending State with responsibility even where whatever may happen to the returned person is not the responsibility of the destination State either, but arises because of a factor internal to him and because of the contrast between circumstances in the two countries.  
13.	The European Court of Human Rights clearly recognised this. Bensaid decided only that Article 3 is capable of extending to such cases and of carrying these consequences.  But it held that the threshold under Article 3, always high, is particularly so where the case does not concern the direct responsibility of the contracting (sending) State for the infliction of harm, viz in foreign cases. The Court held that the risk of deterioration into psychosis involving self harm and harm to others did not in that case meet that particularly high threshold.  The terms in which the conclusion in Bensaid was reached are important.  At paragraph 40, the court said that the case
“…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.”
14.	That is a reference to D v UK (1997) 24 EHRR 423.  That case was explained by the House of Lords in N v SSHD [2005] UKHL 31;  2 AC 296 as depending on the exceptional circumstance that the claimant’s terminal illness had reached such a critical stage that it would be inhuman treatment to deprive him of the care which was in place and which he needed whilst dying.  By contrast are the painful facts of N.  The Claimant had AIDS but with anti-retroviral treatment in the UK could be expected to survive for decades.  If returned to Uganda, where such drugs were highly unlikely to be available to her, she was likely to die within a year or so.  Strong though the humanitarian case for mercy was, there was no breach of Article 3.
15.	As Dyson LJ pointed out in J v SSHD, a suicide case is not precisely analogous to a fatal illness case.  The evidential factors may differ, and in a suicide case the decision to remove has a direct impact on the claimant’s health. In the present case, and no doubt in other similar ones, the risk of suicide is grounded in part in the presence in the destination State of triggers which may exacerbate the mental condition of the claimant.  But as Richards LJ observed in Tozlukaya, at para 62, the similarities are more important than the differences.  True it may be that in a fatal illness case the claimant seeks not only not to be removed but also to continue to enjoy the treatment available here, but the reality is that deprivation of treatment goes with and is the consequence of removal;  without removal, treatment would continue.  The painful fact is that it is not exceptional for the implication of proper immigration control to be that the claimant will on return be deprived of medical care and counselling which is available to him in the developed sending State and will not be available in the under-developed receiving State, nor for the consequence of that to be foreseeable, and sometimes certain, relapse – sometimes fatal relapse.  The approach in fatal illness cases and in suicide cases must, as it seems to me, bear proper relation one to the other.  And this was recognised by the court in Bensaid in treating D v UK, as it did, as an exemplar of the kind of exceptional circumstance which is necessary in a mental health or suicide case to cross the Article 3 threshold.  In J v SSHD at paragraph 25, this court expressly rejected the submission that a different test of the threshold exists in suicide or self harm cases.  
16.	In J at paragraphs 26-31, this Court went on to set out six factors which are of importance to any immigration Judge who has to assess a suicide case. They are not, it is plain, intended to be exhaustive.  Attention has focussed in the present case on factors 5 and 6, namely whether or not the claimant’s fears are objectively well grounded and what mechanisms the destination State has which are effective to reduce the risk of suicide. Those last two factors are clearly of particular importance when assessing the extent of the risk of suicide.  That, however, is only part of the exercise which the immigration Judge must carry out. He has still to decide whether the particularly high Article 3 threshold has been crossed. As this court went on to hold, at paragraph 40, an increased risk of suicide does not ipso facto create a breach of Article 3;  it is, however, in certain circumstances capable of being such.  This court said the same in Tozlukaya at paragraph 67.  What must be shown, it follows, are exceptional circumstances comparable in impact to those of the terminal patient in D v UK.  
17.	Bensaid also holds (at paragraph 47) that if, removal has sufficiently adverse effects upon mental health, that is capable of engaging Article 8;  a person’s mental health is part of his physical and moral integrity.  Treatment which is not sufficiently severe to constitute a breach of Article 3 may be capable of amounting to a breach of Article 8.
18.	Once again, the decision in Bensaid is limited to holding that such a claim is capable of being made.  Once again, the claim in Bensaid failed, both because there was no sufficiently adverse effect on mental health to engage Article 8 and because if there were, it would be justified under Article 8(2).   Article 8, unlike Article 3, creates a qualified right.  It may be interfered with legitimately in the circumstances set out in Article 8(2).  Legitimate immigration control will ordinarily meet the test of necessity under Article 8(2) and decisions taken bona fide in the exercise of such control will be proportionate in all but a small minority of truly exceptional cases, in which the imperative of proportionality demands an outcome in the claimant’s favour:  see Razgar v SSHD [2004] UKHL 27; 2 AC 368 at paragraphs 17-20 and Huang v SSHD [2005] EWCA Civ 105 at paragraphs 59-60.
19.	The only reported cases in which Article 3 or Article 8 has been held by either the ECHR or an English appellate court to be infringed on grounds of risk to health by a return under legitimate immigration control are D v UK and one before the Commission: BB v France, which was also a case of terminal illness at an advanced stage.  A number of suicide cases have reached the ECHR, but in no case has the argument been held admissible:  see J at para 32.  As I have observed, Bensaid was itself a case where no breach of either article was found, although it is right to observe that that was a case where there was a finding that the claimant would have access to some mental health services on return.  Nor have the researches of counsel uncovered any reported English case where either an Article 3 or an Article 8 claim has succeeded in a suicide or mental health case.

The AIT decision
20.	The judgment of the AIT is generally careful and thorough.  It accepted the factual background as found by the second immigration judge.  It rehearsed, and concluded that it should accept, the evidence of Dr Dodgson. It accepted the submission made to it for the appellant that it should direct itself in accordance with J v SSHD.  Dyson LJ’s six factors were set out.  
21.	The Tribunal held, correctly, that notwithstanding the evidence of the psychologist, the question whether the appellant’s return would create a breach of Article 3 was for it, and not for the expert.  
22.	The Tribunal concluded that since the appellant had successfully lived on the streets of Monrovia for three years in the past, when under 17, and without suicidal ideation, he would be able to do so again.  Moreover, his fears of being recognised and targeted as a former child soldier were unfounded, and he would realise that.  Liberia was no longer in a state of civil war.  He had no history of suicide attempts, did not have symptoms of psychosis, and had responded well to therapy.  The Tribunal expressed its conclusion as to Article 3 in these words:
“Taking all the appellant’s circumstances into account, we do not think that the severity of the treatment he would suffer on return would attain a minimum level so as to reach the high threshold set by Article 3.”
23.	As to Article 8, the Tribunal held that, for similar reasons, the appellant’s circumstances were not truly exceptional such that return would amount to a disproportionate interference with his right to respect for private life. 
24.	The Tribunal went on to say that in reaching those conclusions it had paid particular attention to Dyson LJ’s sixth factor, which Mr Jorro explained to us had formed a large part of his argument on the appellant’s behalf.  It examined the objective material about Liberia.  That showed that although the civil war was over and reconstruction and reconciliation under way, the country’s infrastructure remained in a parlous condition. Medical services depended largely on international aid projects.  The Tribunal concluded that the appellant was not likely to have access to mental health services, at least unless he were to become severely ill. It found that that might well mean that he would be unable to continue any form of therapy or counselling.  It added this:
“But it is not suggested that the medication the appellant would need would be unavailable for purchase on the private market in Monrovia and in any event, so far as we are aware, there is nothing to stop the appellant, or those acting on his behalf, for [sic] arranging for him to take supplies of medication with him. We consider it reasonably likely, once back in Monrovia, that he could obtain the necessary medication there.”
  It went on to say that whilst it accepted that the appellant would experience   intrusive flashbacks and suicidal thoughts, which would be triggered by his return to his country of origin, it did not think that these would result in his being at real risk of committing suicide or of undergoing severe psychological deterioration or severe mental illness.
	
This appeal
25.	Mr Jorro complains that in holding that the severity of treatment would not reach the high threshold of Article 3 (see the passage quoted at paragraph 22 above) the Tribunal was undermining the psychologist’s evidence whilst professing to accept it.  Dr Dodgson’s professional opinion was that the appellant was at real risk of suicide;  there can be no more severe event than death.  But there is no possibility that the Tribunal failed to appreciate that it was dealing with a case of risk of death.  The whole case revolved around that and nothing else. What the Tribunal was doing in the passage quoted was addressing the threshold set in a foreign mental health case by Article 3, as explained by Bensaid, N v SSHD, J v SSHD and Tozlukaya v SSHD.  That was its correct function.   
26.	Mr Jorro submits also that the Tribunal wrongly elided the questions arising under Article 3 with those arising under Article 8.  He is right that the tests are different.  Adverse treatment which might not amount to inhuman or degrading treatment for the purposes of Article 3 might, plainly, amount to an interference with private life and thus engage Article 8.  The tests of justification and proportionality which must be considered under Article 8(2) do not arise under Article 3.  But that does not mean that in a particular case the same evidence may not be relevant to the decision under each article.  This was just such a case.  The Tribunal did not confuse or conflate the issues under the two articles.  It correctly addressed, in the case of Article 8, the Huang test of truly exceptional circumstances creating a disproportionate interference with private life, notwithstanding the legitimacy of immigration control.  It held, as it was entitled to do, that for similar reasons to those which caused the case to fail to pass the Article 3 high threshold, that different Article 8 test was not satisfied.  That was the correct approach.  For my part, I suspect that it will ordinarily be very difficult for a suicide or mental health case which fails under Article 3 to succeed on suicide or mental health grounds under Article 8, as Richards LJ thought on the facts of Tozlukaya (at paragraph 75), 
27.	Mr Jorro’s principal submissions focussed upon the Tribunal’s approach to conditions in Liberia.  He argued that the Tribunal gave insufficient consideration to Dyson LJ’s sixth factor, namely the extent to which the destination State has in place mechanisms for reducing the risk of suicide.  He contended that it was crucial on the facts of this case. Whilst it was very clearly a factor of real significance, it is important not to treat it as determinative.  The question in any of these cases is not concluded by whether the destination State has adequate mental health facilities, relevant though that issue is.  The question is whether, given whatever the risk of suicide or mental deterioration is found to be, the case is sufficiently exceptional to pass the particularly high threshold which necessarily obtains in a foreign case.
28.	I regard it as quite plain that the Tribunal focussed heavily on this sixth question.  It is clear that it formed the principal basis of argument addressed to it, and in paragraphs 45 to 48 it specifically confronted it.  I do not think that there is anything in the contention that the Tribunal failed to give weight to the absence of family support for the appellant in Liberia.  It had specifically recorded that absence in its summary of the facts.  A Tribunal is not to be criticised because a part of its findings appears in its recital of the facts rather than separately in its assessment of the Article 3 threshold.  Nor do I think that the Tribunal can be criticised for making its own examination of the objective material, which was not in dispute.  I am quite clear that the Tribunal did proceed on the basis that the appellant would not have access to therapy or counselling in Liberia.  I see no basis for saying that it did not appreciate that as well as the appellant’s objectively unfounded fears of violence he would be affected to some extent by feelings of guilt or shame which would not necessarily evaporate in Monrovia as the fears of violence could be expected to do; the reference to flashbacks and suicidal thoughts being triggered by being back in Liberia makes it clear that it understood and took account of that consideration.
29.	Mr Jorro submitted to us that the horrendous experiences which the appellant had endured in his childhood went to the issue of the passage of the Article 3 threshold.  To the extent that they bear on the impact of local triggers which might cause the appellant’s mental health to deteriorate, they were relevant and were properly considered.  Otherwise, much as they tug at the heartstrings of any Judge safely based in this country, they are not germane to the issue.  Baroness Hale explained the point in N v SSHD, where the claimant’s experiences had been similarly dreadful.  She said at paragraph 59:
“However, the strength of her claim under article 3 does not depend upon the history, no matter how deserving or undeserving of our compassion, but upon her present situation and her immediate or very near future. ”
30.	Where, however, Mr Jorro’s challenge succeeds, as it seems to me, is in relation to the finding that the appellant would, by one means or another, have access to medication in Liberia.  There is certainly authority for saying that the mere fact that medical attention or medication will have to be paid for in the destination State, whereas it would be free in the sending State, does not mean that there is a breach of either Article 3 or Article 8 in ordering return to the former.   Bensaid itself made that clear, as do other decisions of the European Court of Human Rights.  Indeed the contrary could scarcely be argued;  it is only in a minority of countries that free medicine is available.  But that does not mean that a Tribunal which is considering the sixth factor in J v SSHD does not have to consider the availability to the claimant of whatever mechanisms or facilities exist in the destination country.  For my part I accept the Secretary of State’s argument that it is not to be assumed that the appellant would remain destitute indefinitely on the streets of Monrovia.  But initially at any rate he will have no money, no home and no support, and the medical infrastructure is exiguous at best.  I am unable to see where lay the evidence to support the conclusion reached by the Tribunal that he would obtain the necessary medication in Liberia on return.  The difficulty is compounded by the Tribunal’s finding that the appellant could take a supply of medication with him.  That was a finding which appears to be supported by no evidence at all.  It was not, we understand, a possibility ventilated in the course of the hearing at all.  It seems to be a consideration which occurred to the Tribunal in formulating its reasons, but the result of that is that no party had the opportunity to deal with it.  The proposition stated may or may not be correct, but it begs the question whether the appellant could be prescribed here a supply of medication for use into the future, and if so for how long into the future, as well as the length of time for which he might need it, as to which there was also no evidence.   
31.	Since it seems from a reading of the Tribunal’s decision that these last two findings may have contributed to the conclusion that the appellant would not have been at real risk of committing suicide or undergoing severe psychological deterioration or severe mental illness, it may be that they also contributed to the conclusion that the Article 3 threshold of exceptional circumstance comparable to D v UK and/or the Article 8 test of truly exceptional circumstance had not been passed.  The assessment of those latter questions is particularly for the AIT and not for this court.  It follows that it seems to me that the Tribunal’s reasoning in relation to the availability of medicine was not properly based upon evidence and was thus flawed in law, and that that means that the order made must be set aside.  The proper order is that the case be remitted to the AIT to continue its reconsideration in accordance with the judgment of this court.  Whether the Tribunal considers that it should hear further evidence must be for it to decide.  And whether on all the evidence which it has the proper conclusion is that either the Article 3 threshold is passed or the Article 8 test is met are matters on which this court should express no opinion.  
Lord Justice Maurice Kay:  I agree
Sir Mark Potter P.  I also agree.