QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SIVASORUBA RATNAM||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS K STERN (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT
Thursday, 30 January 2002.
Crown Copyright ©
Part 1: The Facts
"She was seen by a psychiatrist in her native country, Sri Lanka, and has been on monthly intramuscular injections of Depixol 20 milligrams. She does not seem to remember anything of the past. When she was ill she would not go out on her own.
"She described visual trouble which she found difficult to describe, clearly saying that she was 'concentrating on black spots'. This happens only occasionally. She has no insight into her illness and has relapsed due to non-compliance with the depot injection which she does not like to have. She sometimes did not want to come to the outpatient clinic . . .
"She came from Sri Lanka to the United Kingdom in 1998. She studied bio-science in Tamil and in English in Sri Lanka where she achieved a degree. In the United Kingdom, she went to Southall college to do a course in English and computing. She finished the second level. She has been working full-time in accounts for a cosmetics company which she is happy with. She is single. She has no current relationship and has no children. She lives with her brother.
"She does not smoke or use illicit drugs. She drinks alcohol occasionally. She has never had alcohol problems. She has no forensic history.
"Conclusion: Miss Ratnam presented with a longstanding history of a paranoid schizophrenic illness precipitated by the trauma she experienced in Sri Lanka. Currently she is stable and free from psychotic symptoms.
"In my opinion, this lady should remain in the United Kingdom where she is safe. If she is sent back to Sri Lanka there is no guarantee that she would survive in view of her suffering from a major mental disorder with no support network. I am concerned that her safety would be at risk if she was sent back home. She needs to continue with anti-psychotic medication, Depixol 20mg intramuscular, monthly, and also have regular outpatient follow up."
"She was last seen by myself in the outpatient clinic (as an emergency) on 5 February 2002 due to deterioration in her mental state and her brother was concerned about her. She has been feeling suicidal, her life is not worth living and she would be better off dead. She is constantly thinking about killing herself and ending her life. Fears of going back to Sri Lanka and facing harassment and torture. She feels that her life is at risk and it is unsafe to go back to Sri Lanka as she will be arrested and killed by the Tamil regime.
"She has been feeling sad and miserable since September 2001 due to the immigration situation and sending her back to Sri Lanka. She has not been eating or sleeping properly, experiencing nightmares and bad dreams about killing, blood, et cetera. She has been waking up in the middle of the night due to that and has not been able to go back to sleep again. She has been feeling anxious and irritable all the time. She has lost her motivation and interest in doing things and could not cope or concentrate in her job. Then she lost it. She became socially isolated and uncommunicative. She has no family or close relatives in Sri Lanka. She lost her parents years ago and all her siblings left the country (Sri Lanka) due to problems with the Tamil authorities.
"She came to the United Kingdom looking for peace and support from her brother who is a permanent resident in the UK. She has been living with this brother since she came to the UK and she is happy there. He is the main carer for her and supervises her with taking her prescribed medication and attending her outpatient appointments with me.
"I believe that Miss Ratnam is a high suicide risk due to her serious mental illness, bad experience and trauma in her native country, lack of support/social network in Sri Lanka and removal decision which is the main concern at the moment. She has made her plans to kill herself (overdose) if the Immigration Services attempted to remove her. I am very concerned about her current condition and mental state if she is removed.
"In my opinion, Miss Ratnam is vulnerable and a high suicide risk. She needs a peaceful way of life, away from stress, and must continue with her prescribed medication, regular follow-up to monitor her mental state, and her brother's support and input."
Part Two: The Present Proceedings
Part 3: The Law
"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which (1) is not significant or (2) is not credible or (3) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
"In my opinion, in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed. A useful analogy to consider is a cause of action. In order to establish a cause of action, a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action . . .
"In my view, it is only if the applicant asserts that one or more of these essential ingredients is different from his earlier claim, that it can be said to be a fresh claim."
"The acid test must always be whether comparing the new claim with that earlier rejected and excluding material on which the claimant would reasonably have been expected to reply in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."
"He [that is the Secretary of State], wrongly regarded it to be a condition of a fresh claim that the source of the alleged persecution relied upon in connection with the later claim should be different from that relied upon in support of the earlier one. Contrary to his view, an intensification in the degree of persecution from the same source is capable of giving rise to a fresh claim."
I regard these passages as providing to me helpful guidance as to how I should approach the fresh claim issue in the present case. I also, as previously indicated, regard as helpful guidance the provisions of paragraph 346 of the Immigration Rules. In relation to paragraph 346 of the Immigration Rules it should be noted that none of the three sub-paragraphs at the end of that paragraph assist the Secretary of State. Dr Barakat's second report plainly is significant, it plainly is credible, and it plainly was not available to the applicant at the time when the Adjudicator reached his original decision in July 2001. On the contrary, that medical report is based upon events and developments since July 2001.
Part 4: Conclusion