England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AS/57476/2003]

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th December 2007

Lady Justice Hallett DBE:

1. The applicants ST and CT are brother and sister. They are both Sri Lankan nationals born in 1979 and 1972. They came to the United Kingdom in October 2003, using their own passports and valid visas. They claimed asylum the same day. Their claims were refused, and removal directions issued for October 2003.
2. Since that time, they have been challenging the decision of     the     Secretary   of      State before immigration judges, the Immigration Appeal Tribunal and the Asylum and Immigration Tribunal. This is an application for permission to appeal the latest decision of the Asylum and Immigration Tribunal, dated 20 August 2007, by which Senior Immigration Judge Lane refused them permission to appeal the determination of Designated Immigration Judge Manuell, who was responsible for reconsidering their claim. The application has been put before this constitution by Sir Henry Brooke, who adjourned it to be heard without notice by two Lord Justices. We have heard from Mr Alasdair McKenzie, who appeared on behalf of both applicants.
3. The applicants' case, in a nutshell, is that their removal to Sri Lanka would be in breach of the 1951 Refugee Convention because they are at risk of ill treatment by both the Sri Lankan government and the LTTE, that it would be in breach of Article 3 of the European Convention because of (inter alia) there being a real suicide risk if they were returned, and it would be in breach of their Article 8 rights because of their claimed unusually close relationship with their aunt in this country.
4. For my part, I have to say that I find the last ground something of a makeweight, if I may be forgiven for using that expression. CT and ST are educated adults, and the second applicant has been married. They were self-supporting and working until they left Sri Lanka. They never lived with their aunt in Sri Lanka, and she came here many years before they did. In this country she works long hours away from them.
5. The designated immigration judge found as a fact that their dependency on their aunt was based on economic necessity rather than emotional dependence, and in my view, nothing put before us can gainsay that conclusion. Indeed, Mr McKenzie frankly accepted that it was not the most persuasive of his grounds. In my view, it was for the immigration judge to decide the point about the applicants' dependency on the aunt and the effect on their Article 8 rights. It was not for the experts, who suggested there was an emotional dependency, to decide the point. In the deputy immigration judge's view, they exaggerated the position. This was a perfectly proper conclusion for him to draw, and it was open to him. I would therefore refuse permission to appeal on that ground.
6. I turn to the other two grounds, to deal with them in more detail. Although they attended at the hearing below with the services of an interpreter, neither applicant gave evidence before the deputy immigration judge, citing ill-health. He was forced to base his decision, therefore, on their lengthy written submissions, and lengthy reports from a number of experts, both medical and in relation to the situation in Sri Lanka.
7. Attempting to summarise the designated immigration judge's finding of fact as shortly as I can, the applicants are Hindu Tamils from eastern Sri Lanka, an area over which LTTE have disputed control with the authorities. They are closely related to the late Mrs Annai Poopathy -- as the immigration judge put it: "whom the LTTE have appropriated as a martyr". They are more distantly related to an LTTE faction leader. They have suffered what the designated immigration judge described as "brutal interrogation at the hands of the authorities", which has left them scarred physically and mentally. On their accounts, before being released without charge they were forced by the authorities to sign confessions. CT said she later tried to kill herself by taking poison.
8. However, after their release, for some two years they were left untroubled by the authorities. They left the country through normal immigration controls with proper passports. This was, however, (as Mr McKenzie was anxious to remind us) at the time of a cease-fire. Since they left Sri Lanka, they have suffered from depression and either post-traumatic stress disorder or a condition very similar to it. Some of their mental health problems, the designated immigration judge accepted, were attributable to their period in detention.
9. The judge found significant the fact that the applicants were unharmed after their release for some time and left the country in a normal fashion. In his view, it indicated that they were no longer treated as LTTE suspects by the authorities, and given the tribunal's experience of how failed asylum seekers were treated on their return to Sri Lanka, he found their fears of persecution on return were exaggerated. Further, he rejected their claims that they were also at risk from the LTTE themselves. He described their claims as implausible, and Mr McKenzie has not pursued that ground.
10. The designated immigration judge also decided that certain aspects of the applicants' accounts show they had planed an untruthful or at least exaggerated account of being at risk of persecution, before they left Sri Lanka. He found that they had produced staged photographic evidence to prove their claim. In any event, even if he was wrong about the current risk of persecution, he had no doubt that the applicants could relocate internally to Colombo, where there would be afforded to them substantial Tamil protection.
11. As for their threats that they would commit suicide if returned to Sri Lanka, the immigration judge noted that they had made threats in the past, but there was no evidence of any attempt by the first applicant and none by either applicant for the last three years, during which time they had received some treatment and medication. He also noted at paragraph 57:

"Despite Dr Patterson's continuing reservations concerning [ST], Dr Eberstein…repeatedly stated that the appellants had no suicidal ideation, plans or intent. Dr Eberstein is stating facts, based on her direct knowledge of the Appellants, and in accordance with her responsibility for and to them."

He went on to say that even if he were mistaken in saying that they were not at real risk of suicide:

"…all proper care would be taken by the Respondent to prevent any suicide attempts when removing the Appellants to Sri Lanka. It was submitted that the Appellants would not have access to adequate psychiatric care in Sri Lanka and that, among other problems such as limited facilities, their treatment would be in Sinhalese [since their psychiatric care in the UK has been in English, I see nothing in the language point]….It is also the case that serious therapy has not commenced in the United Kingdom because the Appellants' lack of settled status plays so heavily on their minds. I follow J v SSHD [2005] EWCA Civ 629 in finding that N (FC) v SSHD [2005] UKHL 31 applies and that the appellants would have access to a minimal but adequate standard of care in Sri Lanka."

12. Mr McKenzie takes exception to those findings in relation to both the risk of suicide and the adequacy of psychiatric care in Sri Lanka. He has put before us potential fresh evidence from Dr Eberstein, to the effect that the designated immigration judge misunderstood her reports. Even without the fresh evidence, Mr McKenzie argues that it is clear from what she said that she did not mean that the applicants had not reported suicidal thoughts, and she did not mean that there would be no real risk of suicide or self-harm if the applicants were returned. On the contrary, those were her views, and she supported the views of Dr Patterson, who had also reported upon them. Mr McKenzie accepted the doctor meant that there was no suicidal ideation at the times when she examined the applicants.
13. He seeks permission to appeal to this court on the following basis: one, that the immigration judge reached an irrational finding as to the significance of the confessions, which he found the applicants had been made to sign under torture. Mr McKenzie criticised him for saying they were released without charge because there was no evidence against them, when he accepted that they were forced to sign confessions. Mr McKenzie suggests the immigration judge has failed to understand the significance of the existence of a forced confession for future persecution, according to the experts.
14. Further, Mr McKenzie argued that the judge placed far too great reliance on the fact that they had left Sri Lanka without hindrance and that they had lived in Sri Lanka for some time after their release from custody without any bother. He argued that the judge, in so finding, has failed to have regard to the evidence that shows the human rights situation in Sri Lanka has deteriorated sharply since their time there, and he has also put before us passages from the expert evidence that, he argues, suggests they would currently be at risk.
15. He submits that the judge did not grapple sufficiently with that expert evidence, and if he was going to disagree with it, he has failed to give sufficient reasons. He also argued that, having accepted that on their return the first applicant's scarring might be noticed, this meant they might then be investigated by the authorities, and that the judge should have gone on to assess the risk of ill treatment or torture during any investigation.
16. Fourthly, Mr McKenzie argues that the judge misdirected himself as to the test relating to the risk of suicide or self-harm set out in J v SSHD [2005] EWCA Civ 629, [2005] All ER (D) 359. He said that the judge failed to make any findings as to whether there were effective mechanisms in Sri Lanka to prevent the applicants committing suicide or self-harm. When I asked him what the distinction should be drawn in reality between the judge's finding that there would be "minimal but adequate mechanisms" to prevent suicide, and "effective" mechanisms, he preferred to place greater reliance on the second aspect to his submissions namely that "the judge failed to engage with or even to understand the experts' psychiatric evidence", of which there was an abundance which confirmed that both applicants would be at risk of suicide or self-harm if they were returned to Sri Lanka. He argued that given the wealth of expert opinion, the judge in this case should not have come to contrary conclusions as to the risk of self-harm or suicide, and if he was intending to do so, he should have given far greater reasons.
17. In his written submissions, Mr McKenzie also referred to the judge's reliance on the Court of Appeal's decision in Huang v SSHD [2007] UKHL 11, and appears to have applied, at least in part, the truly exceptional test which we all now know is the wrong test in law, as explained to us by the House of Lords in Huang.
18. I hope I have done justice in the time available to Mr McKenzie's arguments. Sir Henry Brooke put the case before the court for an oral hearing because, as he put it, of the "appalling treatment that these applicants had suffered in the hands of the Sri Lankan authorities".
19. For my part, I was not persuaded that Mr McKenzie's first second third and fifth grounds of appeal have any reasonable prospect of success. Essentially, to my mind, his complaints are complaints about the findings of fact made by the immigration judge which went against the applicants. It was for the immigration judge to decide whether or not the applicants would face persecution on their return to Sri Lanka and despite his finding that they had been badly treated in the past, he found on the facts that it would be safe for them to return. He was plainly very conscious of the situation in Sri Lanka, and in my view the findings that he made on this aspect of the case were open to him to make, and he gave adequate reasons for them. He needed no reminding, as I read his determination, of how some Tamils have been treated in Sri Lanka. In any event, he found that the applicant's could relocate safely to Colombo, a finding that Mr McKenzie was unable to challenge.
20. As far as the risk of suicide is concerned, I accept that the judge may not have quoted accurately the effect of what Dr Eberstein was saying. I was not entirely persuaded that this ground has a reasonable prospect of success, but I have had the advantage of discussing the ground with Toulson LJ, and I am aware of his views. Accordingly, I am persuaded it would be appropriate for this matter to be put before the full court and for permission to appeal to be granted on this ground alone. The reason for that is that the judge, as Mr McKenzie has pointed out, has not dealt in any great detail with why he has rejected the opinions of Dr Eberstein, Dr Patterson and the clinical psychologist. He has not explained in any detail at all why he finds the care in Sri Lanka would be adequate or, as it has been described elsewhere, effective.
21. For those reasons, therefore, I am persuaded that permission to appeal should be granted on the fourth ground alone.

Lord Justice Toulson:

22. I agree. On the first, second, third and fifth grounds advanced by Mr McKenzie, I agree with Hallett LJ, and I have nothing to add. I should add a word about the fourth ground on which we are agreed that leave to appeal should be given. This was dealt with in the determination at paragraphs 56 to 58, from which Hallett LJ has quoted, and there is no need for me to repeat those extracts.
23. Essentially, as I read it, the immigration judge's reasoning proceeded in three steps. First, he detected a difference of view between the treating clinician, Dr Eberstein, and other medical experts. He said that the treating clinician had repeatedly stated that the first and second appellant had no suicidal ideation, and that in that regard she was stating facts based on her direct knowledge of the appellants and in accordance with her responsibility for and to them. He accordingly preferred her evidence to other medical views. The second stage in his reasoning was that if there were suicidal ideation, all proper care would be taken by the respondent to prevent any suicide attempts when removing the appellants to Sri Lanka.
24. His third stage was that in Sri Lanka the appellants would have access to minimal but adequate standard of care. I have no difficulty in relation to the second of his findings. There is no reason to doubt that if the appeal fails, the authorities will exercise the utmost care and supervision to make sure that there is no successful suicide attempt between that determination being notified to the appellants and their removal.
25. My concerns relate to the first and third stages in the argument. As to the first stage, Mr McKenzie says that the judge misunderstood the nature of Dr Eberstein's evidence. It was an incorrect summary to say that she had repeatedly stated that the appellants had no suicidal ideation. In relation to the second appellant, she had said in a report of 1 March 2006:

"Though she is not acutely suicidal, a risk of self-harm is very great if she were to be returned to Sri Lanka."

26. In relation to the first appellant, her latest letter referred to by the immigration judge in paragraph 57 was a letter dated 11 October 2006, in which she recorded that he had, according to his history, suicidal ideation about once a week, but was not showing suicidal ideation on the day of his examination. It seems to me that that first criticism advanced by Mr McKenzie may be vaild. As to the third point, in considering whether the appellants would have access to adequate care in Sri Lanka, the stating point has to be an appreciation of their actual potential condition. One cannot determine adequacy of standards of care in the abstract. In any event Mr McKenzie says that that there simply was not material to found the conclusion of fact to which the tribunal came. I have very considerable sympathy with the immigration judge who was faced with a morass of material and attempted to deal with it as concisely as he could.
27. Nevertheless, I think that there is possible merit in the points advanced on this part of the case and that the appellants should have the opportunity of presenting argument to the full court.

Order: Application granted