COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE SMITH
| KR (IRAQ)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Ms J Collier (instructed by Treasury Solicitors) for the Respondent
Hearing date: Wednesday 18 April 2007
Crown Copyright ©
Lord Justice Sedley :
"We are prepared to approach our evaluation of the appellant's claim on the basis that the appellant did receive news of his wife's death, whether murdered by IMIK or not, in March 2002 and that on 13 January 2004 he learned that his brother had been killed."
The medical evidence
7. The report of Dr Omotayo states that the appellant had a diagnosis of Post-Traumatic Stress Disorder. He initially started to experience symptoms whilst in Iraq as long as 1987 following his first period of imprisonment. Dr Omotayo reported that the appellant's torture took a number of forms including flogging, the application of electric shock to his genitalia, being suspended from the ceiling for long periods of time from handcuffs and starvation. He also had various objects introduced into his anal and rectal canal. In dealing with the appellant's past psychiatric history Dr Omotayo said that he was seen by a psychiatrist in Baghdad in 1987 who commenced him on Amitriptylin and Thioridazine (anti-depressant and anti-psychotic). He made progress but seemed to have major relapses when he was re-imprisoned in 1994 and 1997. The appellant's first contact with the Mersey Care NHS Trust was in February 2001 when he was seen by a consultant psychiatrist. He then reported symptoms including early morning awakening, poor appetite, tearfulness, periods of intense anger, flashbacks and nightmares. He described being in a state of constant autonomic hyper arousal with hyper vigilance. He suffered from insomnia, anxiety and depression. Suicidal ideation was not infrequent and he occasionally drank excessive amounts of alcohol. His symptoms were then found to be consistent with the diagnosis of Post-Traumatic Stress Disorder. He was then commenced on medication and follow-up at the Out-Patient Department. His symptoms had, however, proven largely resistant to treatment despite regular reviews of medication. A clear maintaining factor in his illness would appear to be the uncertainty of his future. The appellant was turned down for psychotherapy because it was felt that the uncertainty about his immigration status would interfere with his progress and treatment. Dr Omotayo made mention of the event in March 2002 to which we have referred and stated that March 2003 was a particularly difficult time as well while the Iraq war was on. A more recent blow was when he visited relatives in London, only to learn that his brother was murdered in Iraq over a year ago. His current medication at the date of the report consisted of Amitriptylin and Chlorpromazine (anti-psychotic and calming agent). He had a PPS counsellor and attended the Umbrella Centre for anxiety management. He also received out-patient support on an average of once every three months from Dr Omotayo.
8. The opinion reached by Dr Omotayo was that the appellant suffered from a form of mental disorder, namely Post-Traumatic Stress Disorder. He required treatment in the form of out-patient care, medication, psychotherapy. His response had been generally poor. The illness was precipitated initially in 1987 by extreme ill-treatment when he was a captive in Iraq. Despite that he had made a concerted effort to settle in the country learning English and IT skills to improve himself. He was quite fearful of being sent back to Iraq and impressed on Dr Omotayo that his life might be in danger. There was a small but significant risk of precipitous reactions such as severe self-harm or suicide if the appellant was turned down on this occasion. Dr Omotayo thought that the disappointment at this time would only reinforce his chronic sense of hopelessness and helplessness which were major risk indicators for suicide.
9. In her report dated 24th July 2006 Dr Craig stated that the major symptoms that the appellant experienced were anxiety and heightened arousal, instability of mood including periods of depression, avoidance of reminders of his traumatic experiences and intense flashbacks of his past trauma. His avoidance was severe, for example he was unable to watch Kurdish TV and avoided any references in the media to Iraq as these triggered severe anxiety and flashbacks. In addition he isolated himself socially, was irritable and low in mood and had difficulty concentrating. He had recurrent thoughts of self-harm which at times were intense. They had seen no significant improvement in his mental state in the years that he had been under the care of the mental health services in Liverpool. At the time Dr Omoytayo had prepared his report the appellant was engaged in some English classes and computer classes but since then had become more withdrawn and although he did have friends locally he saw little of them. He spent a great deal of time alone in his flat and as a result his symptoms had worsened somewhat. On a positive note his grasp of English had improved a great deal. He continued to be prescribed a high dose of anti-depressant medication and anti-psychotic medication of the type mentioned by Dr Omotayo but there had been no recent change in his medication which did bring about some improvement of his symptoms, although they persisted. Dr Craig expressed the view that they would see a significant improvement in his mental state if he were granted asylum but a complete resolution of his symptoms was not anticipated and he would require ongoing support from mental health services whatever the outcome. In a paragraph numbered 3 in the report Dr Craig expressed the view that were the appellant to be forced to return to Iraq and in the process was unable to continue with his medication he would anticipate a severe deterioration in his mental state with very high levels of anxiety, depressed mood and a very high risk of self-harm or suicide. In the paragraph numbered 5 Dr Craig stated that it was conceivable that the appellant might be able to access the medications that he was currently prescribed as both of these had been available worldwide for many years. Dr Craig thought it was very unlikely that the appellant would be able to access a psychiatrist and thought it all but impossible that he would be able to access the kind of psychological work that their psychotherapy service in Liverpool would be able to offer him. The respondent has not taken issue with the opinions expressed in either of these reports save that Mr Blundell did suggest that the appellant's account of his symptoms as time went on was exaggerated.
10. In the addendum to Dr Craig's report dated 1st August 2006, Dr Craig painted a much bleaker picture than had been evident in the report dated 24th July 2006, which had suggested that it was only if the appellant were unable to continue with his medication that there would be a severe deterioration in his mental state. The addendum suggested that if the appellant were forced to return to Iraq he would be exposed to a great number of triggers for his distress, so that the effect of a return to Iraq would be a very predictable and severe deterioration in his mental state. It is difficult to see why if the effect of a return to Iraq would be a very predictable and severe deterioration in his mental state, Dr Craig had not expressed that view in the report dated 24th July 2006. It is clear from the introduction to that report that Dr Craig knew that the report was to be used in connection with the appellant's claim for asylum in respect of which there was to be a hearing on 13.05.2004 and the issue was the effect of a return to Iraq on his mental condition. In the addendum Dr Craig went on to say that he was not sure that the appellant could cope with the severity of distress and would consider him a very high risk of self-harm or suicide.
"Even if we were obliged to consider the question of proportionality, we are satisfied that the appellant's circumstances for the reasons which we have given do not amount to the most compelling humanitarian considerations which should prevail over the legitimate aims of immigration control."
15. It is significant in our view that at the time in March 2002 that the appellant became severely depressed and suicidal he was admitted to hospital for a period of two weeks under close observation. It is significant in our view that when he learned that his brother was murdered he did not require admission to hospital. It is also significant in our view that despite the opinion of Dr Omotayo that there was a small but significant risk of the precipitous reactions such as severe self-harm or suicide if the appellant were turned down on the occasion of his appeal to the Adjudicator, there is no evidence that he attempted any form of self harm following the dismissal of his appeal. It is also significant in our view that although the appellant has received bad news in relation to his claim for asylum on a number of occasions there has been no incident of self-harm of any sort or any attempt at suicide. In any event we are satisfied that there are in place effective measures that would effectively prevent a successful attempt at suicide both stage (i) and stage (ii).
16. The question remains therefore whether there is a real risk that the appellant would kill himself in Iraq. In this connection, notwithstanding that Mr Blundell conceded that there was a risk of suicide, it is necessary to evaluate the degree of risk. It is significant in our view that Dr Omotayo, being one of the consultant psychiatrist involved in the care of the appellant since December 2000 and therefore could be expected to have an intimate knowledge of his circumstances, expressed the view in his report that there was only a small, albeit significant, risk of a precipitous reaction if the appellant's appeal failed at that time. Dr Omottayo found no evidence of psychotic symptomatology, neither did the appellant harbour thoughts of self harm or suicide when he saw him. He found no abnormalities of perception in the appellant. Cognitively he was oriented in time, place and person. He displayed normal attention and concentration. In relation to return to Iraq he merely commented in paragraph 5 of his opinion that he had his doubts if he would be able to access good quality psychiatric care as was available in the UK. In paragraph 4 of his opinion he stated that the appellant was quite fearful of being sent back to Iraq and impressed on him that his life might be in danger. It is clear, however, that the Adjudicator rejected the appellant's claim to fear serious harm at the hands of Ansar al Islam (ex IMIK) and that finding has not been challenged. In these circumstances, insofar as the risk of suicide may be based upon the appellant's fear of ill-treatment in the receiving state, it cannot be said to be objectively well-founded in accordance with the fifth factor identified in the case of J.
17. It is also significant in our view in this connection that, as indicated above, although in March 2002 the appellant became suicidal and required hospital admission for a period of two weeks under close observation, he has not actually made any attempt at self-harm or suicide, particularly on those occasions when he received bad news about his asylum claim. Dr Craig relates that the appellant has recurrent thoughts of self harm which at times were intense, but she does not refer to any specific occasion on which she appellant has gone so far as to attempt self harm of any kind. It is also the case that the appellant exhibited similar symptoms if not identical ones to those that he exhibits now when he was in Iraq. No attempt at suicide in Iraq has been reported. According to Dr Omotayo he was seen by a psychiatrist in Baghdad when he was prescribed the same anti-depressant drug that he is now receiving. Dr Craig made the point in the report dated 24th July 2006 that both of the medications that the appellant was currently prescribed had been available worldwide for many years. In these circumstances we are not satisfied that despite her view about "triggers" the risk of suicide upon return to Iraq is as high as stated by Dr Craig in the addendum report.
18. Mr Blundell on behalf of the Secretary of State accepted that mental health services were consistently reported as poor as set out in the IAS research analysis dated 31st July 2006. That analysis reported a press release from Kurdistan Development Corporation dated May 2004, which is a little out of date, reporting that the picture in Kurdistan was no different to the rest of Iraq with drugs and equipment shortages. It states that a March 2005 report on psychiatric care in Iraq does nothing to dispel the grim view of Iraqi healthcare generally and paints a frightening picture of limited mental healthcare drugs, treatment and expertise and a society that is not tolerant of mental illness. Although it may be the case that mental healthcare drugs are limited, given that those that the appellant needs have been available worldwide for many years we are not satisfied that those drugs which the appellant does need would not be available to him in Iraq to treat his condition.
19. Mr Nicholson relied upon a passage in the judgment of Buxton LJ in paragraph  of the report of the decision of the Court of Appeal in ZT v Secretary of State for the Home Department  EWCA Civ 1421 in which he said he could envisage a case where humiliation, ostracism and deprivation of basic rights, on top of the burden of being HIV positive, created a situation of exceptionality under the jurisprudence of N v SSHD. Mr Nicholson suggested that the stigma of mental illness would be an additional burden which would make the appellant's case exceptional. He relied upon a passage in the IAS research analysis which stated that people with psychiatric illnesses such as depression or acute anxieties would often be told to read the Qur'an or pray more, or would be threatened by a husband, father or family members. The position, however, in the appellant's case is that he does not come from a strict Muslim family and there is no evidence that he was rejected by his family on the previous occasions when he exhibited symptoms of mental illness, and indeed when he sought treatment from a psychiatrist in Baghdad. As indicated above we accept the evidence which demonstrates that the provision of mental healthcare in Iraq is extremely poor as indicated not only in the IAS research analysis document but also in the documents placed before us by Mr Blundell. It is significant, however, in our view that since the appellant has been in the UK he has managed to live without any medical treatment other than the mediation that he is currently receiving, leaving aside the relatively brief period spent as an in-patient. Dr Craig's opinion as indicated above in paragraph 2 of the report dated 24th July 2006 was that his medication did bring about some improvement in his symptoms.
20. A further important factor which relates to the question of risk is that we are satisfied that the appellant's parents are alive and well in Iraq. Dr Omotayo stated that the appellant presumed that that was the case. Although Mr Nicholson suggested that this might not be the case, given that the appellant claimed to know about the death of his wife and the death of his brother as a result of being supplied with their death certificates through relations, if it were the case that his parents had died, then we are satisfied that the appellant would have learned about it, particularly since before the Adjudicator the appellant claimed that he had been in touch with an aunt in Holland who had been in touch with his parents. We are not satisfied that they would refuse to provide the appellant with such support and assistance as he needed. As well as the matters mentioned above it is significant in our view that Dr Omotayo that after the appellant's first episode of imprisonment in 1987 he had developed difficulties controlling his temper, resulting in explosive outbursts towards family members. To calm him down he would express considerable remorse and regret and would admit that his behaviour had been inappropriate. There is no evidence that his family rejected him as a result of his behaviour. There is every reason to believe, therefore, that they would co-operate in any measures deemed necessary by the respondent under the IDI mentioned above, in relation to ensuring that adequate reception arrangements were made to obviate any risk that there might be after removal.
"We are not satisfied, having regard to the factors mentioned above, that in relation to the appellant's psychiatric condition generally or in relation to any risk of suicide specifically that the appellant's return to Iraq would amount to a flagrant or fundamental breach of article 8. We are not satisfied that the evidence demonstrates a real risk that the appellant would commit suicide either in the UK, en route to Iraq or in Iraq."
Dr Craig's report
"Mr [KR] has a diagnosis of the post-traumatic stress disorder. He initially started to experience symptoms whilst in Iraq as long ago as 1987 following his first period of imprisonment. The majority of symptoms that [KR] experiences are anxiety and heightened arousal, instability of mood including periods of depression, avoidance of reminders of his traumatic experiences and intense flashbacks of his past trauma. His avoidance is severe In addition he isolates himself socially, is irritable and low in mood and has difficulty concentrating. He has recurrent thoughts of self-harm which at times are intense.
Unfortunately [his] mental health problems are severe and so far appear intractable.
[He] continues to be prescribed a high dose of anti-depressant medication (Amitriptyline 200 mg nocte) and an anti-psychotic medication to help reduce his agitation (Chloropromazine 50 mg three times a day. There has been no recent change to his medication which in my view does bring about some improvement in his symptoms although of course they persist.
With regard to the question of the impact on [KR's] mental state if the above treatment were to be stopped, of course this entirely depends on the other circumstances prevailing at the time. Were [KR] to be forced to return to Iraq and in the process was unable to continue with his medication, I would anticipate a severe deterioration in his mental state with very high levels of anxiety, depressed mood and a very high risk of self-harm or suicide."
Lady Justice Smith:
Lord Justice Auld:
"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under Article 8(2). ..."
The Committee then set out a series of Article 8(2) factors by way of illustration of that general proposition, and, in paragraphs 18 and 19, of proportionality, citing from Razg0ar, at para 20, that:
"the severity and consequences of the interference will call for careful assessment at this stage"
They continued in the same vein in paragraph 20:
"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
"We are not satisfied, having regard to the factors mentioned above, that in relation to the appellant's psychiatric condition generally and or in relation to any risk of suicide specifically that the appellant's return to Iraq would amount to a flagrant or fundamental breach of article 8. We are not satisfied that the evidence demonstrates a real risk that the appellant would commit suicide either in the UK, en route to Iraq or in Iraq."
"Although it may be the case that mental healthcare drugs are limited, given that those that the appellant needs have been available worldwide for many years we are not satisfied that those drugs which the appellant does need would not be available to him in Iraq to treat his condition."