COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ASYLUM AND IMMIGRATION TRIBUNAL
(Appeal Number HR/01258/2004)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE LAWRENCE COLLINS
| RA (Sri Lanka)
|- and -
|Secretary of State for the Home Department
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Rory Dunlop (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 8 October 2008
Crown Copyright ©
Lord Justice Richards :
The appellant's scars
The appellant's psychiatric condition
"Psychotropic medication would not be expected to make a big difference in this case. This is because so many features of his mental state are overwhelmingly determined by his current context of insecurity and terror (I refer particularly to the fear of being returned). Further, it is important that psychotropic medication be administered where there is a context of enduring trusting relationship with mental health personnel. Clearly this cannot be the case when he is under threat of removal ….
Psychological help is likely to be helpful in the longer term. However it would be hazardous at the present time to embark on any in-depth psychotherapy or counselling, as this again requires a context of an enduring trusting relationship with a therapist ….
The most important feature of his treatment currently is the care that is being provided by his cousin and Mr N [a friend]. If it were not for this care, it is my view that his condition would deteriorate very substantially to a state in which he would be likely to need admission to hospital …."
"The syndrome of severe depressive disorder is associated with an elevated risk of acts of self-harm/suicide. There is already a history of three suicide attempts and currently there is evidence of suicidal thinking. There is therefore a significant risk of suicide or self-harm currently, and I would regard that risk as moderate …."
"I have been specifically asked if the care and support that [the appellant] receives from his cousin … and his friend … could be provided by someone else. I believe I have already dealt with this matter above, namely I have made it clear that [the appellant] has formed very secure attachments to those immediately around him and these attachments are not of a promiscuous nature, and the figures supporting him could not be easily replaced.
I would also like to point out that apart from the fact that appropriate psychiatric resources are not likely to be available in Sri Lanka, it is my view that [the appellant] would be most unlikely to be able to make use of them. This is because he is likely to view psychiatric personnel as agents of the state and therefore is likely to be distrustful of them.
I have commented above on the risk of suicide, however another outcome needs to be borne in mind. Given the degree of profound apathy and self-neglect that is a feature of his psychiatric state, it is also possible that in Sri Lanka his situation would deteriorate to a severe state of self-neglect and inanition and that he would die of some intercurrent infection (i.e. a less manifest suicide).
I have also been specifically asked if [the appellant] were returned to Sri Lanka whether he would be able to explain himself to the Sri Lankan authorities if he were questioned by them. It is clear to me that [the appellant] would be in such a deteriorated psychiatric state that he would be quite unable to explain himself and would also be likely to be extremely fearful of such authorities, indeed to be frankly paranoid. He would be likely to respond to questioning, however straightforward this is in reality, in an acutely paranoid way."
Ground 1: risk arising from scarring
"The risk which may arise as a result of an individual's scarring has now reverted to the position prior to the cease-fire. The Special Adjudicator assessed the risk on account of the Appellant's scarring prior to the cease-fire. The guidance then as to the risk which might be posed on account of an individual's scarring is to [sic] essentially the same as it is now. The Special Adjudicator had the advantage of seeing the Appellant's scars for himself. Whilst I have the benefit of Dr Seear's report (which I stress I have taken into account), I do not have the benefit of any photographs. I find that it is not reasonably likely that the Appellant's scars would expose him to treatment in breach of Article 3. I adopt the reasons given by the Special Adjudicator."
"The background evidence on the issue of scarring has fluctuated. Up until the time of the ceasefire it was generally accepted as something which the Sri Lankan authorities noted and took into account both at the airport and on detention and in strip searches of suspected Tamil LTTE supporters. Their perception that it may indicate training by the LTTE or participation in active warfare, was self-evident, and simply was 'good' policing, as appeared to be suggested by the Inspector General of Police in his discussions with Dr Smith. On the same logic it was also valid to conclude that the impact of scarring was of far less interest during the period 2002-late 2005 while the ceasefire agreement was having some effective impact. The evidence that was provided in this case, including that from Dr Smith following his discussions with the Inspector General of Police …, the BHC letter of 24 August 2006, and the COIR all indicate that scarring may again be relevant. We agree with the comments in Dr Smith's report, that the issue of scarring was considered by the police to be a very serious indicator of whether a Tamil might have been involved in the LTTE. However, on the evidence now before us we consider that the scarring issue should be one that only has significance when there are other factors that would bring an applicant to the attention of the authorities, either at the airport or subsequently in Colombo, such as being wanted on an outstanding arrest warrant or a lack of identity. We therefore agree with the COIR remarks that it may be a relevant, but not an overriding, factor. Thus, whilst the presence of scarring may promote an interest in a young Tamil under investigation by the Sri Lankan authorities, we do not consider that, merely because a young Tamil has scars, he will automatically be ill-treated in detention" (para 217, emphasis added).
"142. In assessing the risk to the applicant from the Sri Lankan authorities, the Court will examine the strength of the applicant's claim to be at real risk as a result of an accumulation of the risk factors identified in LP …. However, it will do so in light of its own observations set out in paragraphs 130-136 above. In particular, the Court underlines first, the need to have due regard for the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security; and second, the need to take a cumulative approach to all possible risk factors identified by the applicant as applicable to his case ….
144. The Court also accepts the assessment of the AIT that scarring will have significance only when there are other factors that will bring the applicant to the attention of the authorities such as being wanted on an outstanding arrest warrant or a lack of means of identification …. However, where there is a sufficient risk that an applicant will be detained, interrogated and searched, the presence of scarring, with all the significance the Sri Lankan authorities are then likely to attach to it, must be taken as greatly increasing the cumulative risk of ill-treatment to that applicant."
"It is said that the Appellant's mental condition is such that he would behave irrationally when questioned on arrival and that he would not be able to answer questions as to what he has been doing in the United Kingdom. The Appellant is clearly mentally ill. I do not find that it is reasonably likely that his irrational or paranoid behaviour on arrival would give cause for any suspicion on the part of the Sri Lankan security forces. I did not find that his behaviour would be seen as being due to any reason other than the fact that he is mentally ill."
Ground 2: risk arising from psychiatric condition
"88. Dr Bell also says that the Appellant believes that he would be under the threat of immediate detention, torture and possibly of being murdered, that he believes this with conviction, that it is his belief which is material to the deterioration in his state if he is immediately under threat of return, that the Appellant suffers from a great deal of paranoid ideation, and that it would be very difficult for him to distinguish paranoid imaginings from actual threats. I take this into account in the Appellant's favour. The Appellant has taken an overdose of medication on three occasions in the United Kingdom. I place weight on that. On the other hand, the risk of suicide in the United Kingdom and en route to Sri Lanka can be adequately addressed (see the judgment in the J case). On my findings, there is no reason why the Appellant's mother and sister should not be able to assist him after his arrival in [Sri Lanka]. In his statement, Mr R [the appellant's cousin who had been caring for him] said that he would not be able to return to Sri Lanka with the Appellant because he fears he would be targeted by the Sri Lankan authorities or the LTTE or Tamil militant groups that work with the LTTE. However, he is a Dutch national now, and not a refugee. Furthermore, I was not told whether Mr R would be able to accompany the Appellant to Sri Lanka for the temporary purpose of handing him over to his mother and sister.
89. Dr Bell states that the Appellant cannot be expected to transfer from the care of Mr R and his friend to others. However, the question is not whether the Appellant can be expected to transfer to the care of persons other than those who are currently looking after him. The question is whether, if he is removed and is transferred to the care of others (for example, his own mother and sister and/or other medical professionals if he needs to be hospitalised on return), he would suffer such consequences as amount to a breach of his protected rights under Article 3 …" (original emphasis).
"92. Whether or not any deterioration in the Appellant's mental condition on arrival in Sri Lanka is such that he requires hospitalisation, I do not accept that he would not have the assistance, care and support of his mother and sister. I do not accept that, if the Appellant is transferred from the care of his cousin and good friend in the United Kingdom, to the care of his own mother and sister, his health would deteriorate or that it would deteriorate to such an extent that it would amount to a breach of his protected rights under Article 3."
"95. For all the above reasons, I do not find that the increase in the risk of suicide is such that it is reasonably likely to result in completed suicide or lead to his mental health being sufficiently adversely affected so as to reach the Article 3 threshold. I bear in mind the availability of hospitalisation if his condition warrants it, the availability of private treatment if his condition does not warrant hospitalisation, and, in either case, the availability of support from his mother and sister. I do not find that his mental health would deteriorate to the extent that his physical and moral integrity is compromised sufficiently to reach the Article 3 threshold. I do not find that there are exceptional circumstances comparable in impact to those of the terminal patient in D v UK."
"Since this is not a family which has come to the adverse attention of the Sri Lankan forces for any reason, there is no reason why the Appellant's mother and sister would not be able to undertake the journey from the north to Colombo safely, albeit that I accept that such journeys are now more risky than they were previously. Tamils in Sri Lanka do experience problems, not least of which are difficulties in travelling around. Life for Tamils in Colombo is also very difficult, as is clear from the LP case. However, the Appellant's situation would be no different from other Tamils from the north."
Ground 3: availability of psychiatric care in Sri Lanka
"89. … Paragraph 26.18 of the COI report states that all treatments for acute psychological/psychiatric disorders can be provided in the public sector at Angoda and Mulleriawa mental hospitals in addition to the University Unit in the Colombo National Hospital at no cost. Dr Kanagaratnam states that these hospitals are all in Sinhalese areas of Colombo. He states that a Tamil asylum seeker who is mentally ill would have to cope with social hostility and antagonism from many in the Sinhalese community. I am prepared to determine this appeal on this basis.
90. If the Appellant's state on arrival in Colombo is such that he does not require hospitalisation on arrival, then he is in a better position than many failed asylum seekers. This is because he has a successful business in the United Kingdom. I was not given any credible reason why that business could not be sold and the proceeds used to purchase private treatment for the Appellant which, according to the background evidence, is available, especially in Colombo ….
91. If, on arrival, the Appellant's condition deteriorates to the extent that he requires hospitalisation, I am satisfied he would be admitted into hospital. Whilst I acknowledge that there is a great pressure on available psychiatric care in Sri Lanka, I do not consider that the evidence shows that it is reasonably likely that a mentally ill patient who is at very high risk of suicide (see the opinion of Dr Bell), especially one who behaves in a paranoid fashion on arrival on account of his mental illness, would be denied hospital admission if this is needed. I acknowledge that Dr Kanagaratnam states that the awareness of the diagnostic criteria for PTSD is unsatisfactory. However, it is reasonably likely that the Appellant would at least receive the medication he currently receives (or suitable alternatives). Currently, he only receives occasional counselling, although I appreciate that it is said that, if his status in the United Kingdom is resolved, better treatment could commence. That is equivalent to saying that, if returned, the Appellant would lose the opportunity for his health to improve. I am not persuaded that this argument helps the Appellant establish his Article 3 claim, having regard to the judgment of the House of Lords in N v SSHD  UKHL 31. I take into account the fact that the Appellant has overdosed himself on three occasions. Dr Bell states that removal or the threat of removal would increase the risk of suicide from moderate to very high. If, on arrival, the risk of suicide remains very high, I am satisfied that he would be hospitalised, especially given that the evidence is that he would behave in a paranoid way. Once in hospital, it is reasonably likely that the risk of suicide would be adequately contained."
"29. According to the Court's constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 …. 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 …."
"42. In summary, the Court observes that since D v United Kingdom it has consistently applied the following principles.
Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling ….
45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment, which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost."
Lord Justice Lawrence Collins :
Lord Justice Rix :