APPEAL No. [2003] UKIAT 00172

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 3 October 2003

Date Determination notified: 30 December 2003

Before

Mr J Barnes (Chairman)
Mr M E A Innes

Between

	APPELLANT	
and	 	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	RESPONDENT	

For the appellant:	Mr G Davidson of Counsel instructed by M K Sri & Co.
For the respondent:  Mr A Hutton, a Home Office Presenting Officer.

DETERMINATION AND REASONS

1.	The appellant is a citizen of Sri Lanka of Tamil ethnicity born on 30 March 1975.  She arrived in the United Kingdom on 22 April 2000 and claimed asylum immediately on arrival.  Following submission of a statement and an interview her application was refused by the Secretary of State for the reasons set out in a letter dated 8 March 2001.  On 8 May 2001 the Secretary of State issued directions for her removal to Sri Lanka following refusal of leave to enter after refusal of her asylum application.  She appealed against that decision on both asylum and human rights grounds.  Her appeal was heard on 7 March 2003 by an Adjudicator, Mr R J Haynes, who dismissed her appeal.  She now appeals with leave to us against that decision on grounds limited to the availability of medical treatment, particularly psychiatric treatment, for the appellant if she were now returned to Sri Lanka.

2.	The Adjudicator had accepted that the appellant had been detained on two occasions in Sri Lanka by the army on suspicion of LTTE connection.  She was subsequently released without charge in each case.  She claimed that she was raped by two soldiers on the occasion of her first detention and indecently assaulted by another soldier on the occasion of her second detention.  The Adjudicator reached no final conclusion on whether he accepted the accounts of the rape and indecent assault but does say at paragraph 9.4 of his determination that "the traumatic experiences which the appellant has suffered are described in the doctor's report" and that such treatment might occur is constant with the known country background evidence.  What he did find was that he gave the benefit of the doubt to the appellant in respect of those matters, nevertheless they were gratuitous acts by the men involved and did not form part of a consistent course of conduct by the authorities amounting to torture.  It was not challenged before us on behalf of the Secretary of State that the appellant had been treated as she claimed and we have therefore proceeded to consider this appeal on the basis that those factual allegations have been accepted.  The psychiatric report, to which we shall refer below in more detail, was not challenged by the Presenting Officer.

3.	The Adjudicator concluded that whatever ill-treatment had been suffered in the past, there was no reasonable likelihood that it would occur again in the future if the appellant were now returned, and it was on that basis that the asylum and Article 3 claims were dismissed.  There is no appeal against that part of the decision.

4.	In dealing with Article 8, the Adjudicator says this at paragraph 10.1 of his determination:

"Article 8 – the right to family and private life.  The appellant gave evidence that some of her family members are in the United Kingdom.  They have either arrived before or after the appellant.  There was no evidence given to me as to their status.  The burden of proving human rights claims is on the appellant.  I am not satisfied that any of her relatives in the United Kingdom have been granted leave to remain of any sort.  No passports were produced and I therefore find that she has no right to family life in the United Kingdom.  Moreover, her father remains in Sri Lanka and although she said that she did not know where he was at present, I am not satisfied on that ground that there are sufficient "exceptional circumstances" (Mahmood) to justify the appellant's remaining in the United Kingdom.  To remove her to Sri Lanka in my judgment, would not be disproportionate given the government policy and within an immigration context.

It was submitted that because of her medication and psychotherapy treatment requirements, her claim under the definition of "private life" could ground a claim.  I am not satisfied that they could.  It is clear from the objective evidence that there is treatment available for persons suffering from conditions of which this appellant does.  There is evidence to say that some medication is available at reasonable costs and there are specialists and others who are experienced in psychotherapy.  In reaching this decision I have applied the ratio in Bensaid."

5.	The thrust of Mr Davison's submissions to us was that the Adjudicator had erred in his approach to the claim that removal would, because of her mental condition, be in breach either of her Article 3 or Article 8 rights.  In this respect he relied upon the psychiatric report by Dr Gunam Kanagaratnam dated 26 February 2003.  He records the clinical symptoms of psychiatric illness at the beginning of his report in the following terms:

"The appellant purported that for nearly two years she had been in a state of extreme mental and emotional distress, suffering from anxiety and depression.  Her mood remains low with feelings of sadness as if her life is empty.  She is unable to take an interest in almost all of the daily activities with loss of enjoyment and loss of appetite.  Her sleep is affected, being unable to sleep with early morning awakening.  She would experience recurrent nightmares in which she would dream of being attacked by soldiers and would wake up in a state of distress.  Thereafter she is unable to return to sleep.  Frequently she would experience palpitations and dizziness and then would become agitated.  She feels worthless and is unable to think or concentrate, with current thoughts of pessimism and pointlessness amounting to suicidal ideations."

6.	A little later in dealing with the mental state examination he says that during the assessment and examination the appellant was in a state of extreme distress and found it difficult to report the rape and talk about it.  The diagnosis made is that the appellant has the clinical features of post traumatic stress disorder (PTSD) and depressive illness.  He summarises her symptoms as follows:

"The appellant is a victim of incarceration, torture, rape and had been displaced as a refugee.  She had witnessed bombardment of civilians with death and injury of loved ones.  The stressors she had experienced were extreme.  They involved actual death threat of physical integrity.  The stressors caused powerful subjective response and she experienced intense fear, helplessness and horror.  She re-experiences the traumatic events because of intrusive distressing recollections of the events, flashbacks, nightmares, exaggerated emotional and physical reactions.  She has features of avoidant and emotional numbing.  Arousal is increased because she has difficulties in sleeping with hyper-vigilance, impairment of concentration and exaggerated startled response.  The depressive symptoms are evidence because of impaired confidence, tearful low mood state, loss of enjoyment, impairment of attention and concentration, tearfulness, loss of appetite, pointlessness, pessimistic ideation and psycho-motor agitation.

7.	The doctor recommends treatment by medication being anti-depressants both for her depressive illness and PTSD combined with psychotherapy to include anxiety management, cognitive therapy, exposure therapy and psycho-education.  As to the availability of such treatment in Sri Lanka he says that drug treatment is not readily available or affordable there and that psycho-therapy is restricted and resources are inadequate.  He adds that an essential aspect of the therapy includes therapeutic alliance which is extremely difficult for a victim of ethnic conflict to develop within a context of social instability.  He is of the view that she does not have the required emotional support of her family or community in Sri Lanka and that her home area is occupied by the armed forces so that, should she be returned, her mental illness is extremely likely to deteriorate with consequent likelihood of dangerousness to herself or others.

8.	As we have noted above, the Adjudicator accepted that the appellant did require the treatment recommended for her diagnosed conditions but was of the view that adequate provision for treatment existed in Sri Lanka.

9.	The availability of such treatment as is recommended in Sri Lanka formed the major part of the submissions made to us cogently by Mr Davison.  It is not necessary for us to go into the evidence in this respect in any detail because Mr Hutton conceded for the Secretary of State that the psychiatric treatment required by the appellant might not be available in Sri Lanka although he was of the view that the appropriate medication would be available.  He said that he could not point to any evidence indicating the existence of secondary psychiatric treatment of the kind needed by the appellant as being available in her home country.  Nevertheless, it was his submission, having regard to the very high threshold set in D v UK [1997] 24 HER 423 that the appellant could not meet the threshold required to engage Article 3 because she would not be subjected to inhuman or degrading treatment if now returned.  As to Article 8 considerations it was his submission that there was some treatment available in Sri Lanka and that for this reason removal would not be in breach of her Article 8 rights to the private life which she had established in the United Kingdom and in respect of which she was in the course of receiving treatment for her diagnosed condition, albeit that the secondary psychiatric treatment had not yet commenced partly because it could not commence until her confidence was sufficiently engaged to make that possible and partly because she was currently on a waiting list having reached that stage in the treatment to date.

10.	As to the Article 3 claim, we accept Mr Hutton's submission that the feared harm is not so extreme as to be capable of engaging Article 3.  There is no past history of self harm and no adequate explanation of why such should occur on return beyond what we regard as the essentially speculative nature of what the psychiatrist says as to this in his report.  This approach is wholly in line with the approach of the European Court in Bensaid v UK [2001] INLR 325 where the speculative nature of arguably more positive medical opinions were considered. Although we are prepared to accept that it is reasonably likely that the effect of return will be some deterioration in the mental state of the appellant, nevertheless, there is no valid basis in our view for concluding that it will be of such extreme seriousness as to engage Article 3 of the European Convention.

11.	The claim as to the engagement of Article 8 of the European Convention is far more difficult.  We are guided initially by the judgments in the Court of Appeal in Soumahoro, Nadarajah and Razgar [2003] EWCA Civ 840. What is said at paragraph 22 of the judgment by Dyson LJ is this:

"… We suggest that, in order to determine whether the Article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way.  First, the claimant's case in relation to his private life in the deporting state should be examined.  In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he said about his mental health in the deporting country, the treatment he receives and any relevant support he says that he enjoys there.  Secondly, it will be necessary to look at what he says will be likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy.  The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support he is enjoying in the deporting country and that which will be available to him in the receiving country.  If so, then the territoriality principle is not infringed, and the claim is capable of being engaged."

12	Approaching this appeal on that basis, we observe firstly that the appellant is accepted to have lost touch with her father who remains in Sri Lanka and that the known family she has there consists of an aunt and remoter family connections.  She has two sisters and one younger brother living in the United Kingdom as well as her mother.  We are told they have all entered on visas and have apparently had their entry clearance extended by six months permission at a time, over a period of up to three or four years in the case of those who have been here longest. The precise basis under immigration law on which this prolonged lawful stay has been given was not explained, but it is clear that none of them has a settled right to remain here. They all live in London and the appellant does not see them very often but she lives in Wembley and so is not physically far removed from them.  We note that one of her sisters accompanied her to Court at the hearing before us and that we were told other members of her family here were outside Court.  It would, therefore, appear that there is a degree of family support available to her as and when it may be necessary although not of the close nature which would appear were they all living together.  We have already noted that the appellant is receiving medical treatment here and that her psychiatric state has been assessed although no secondary psychiatric intervention of the kind envisaged in the report has yet commenced.  Nevertheless she has now reached the stage where it has been felt appropriate for her to be referred for counselling and this occurred on 26 September 2003.

13.	Turning to the second consideration we have already noted that Mr Hutton has conceded that there is no evidence indicating that treatment of the kind which she is said to require, other than by way of medication prescriptions, is available to her in Sri Lanka.  At paragraph 5.39 of the current CIPU Assessment it says:

"Hospitals specifically dedicated to mental health exist in Angoda and Mulleriyawa where there is also treatment of PTSD.  It is reported in the Sunday Times (of Sri Lanka) in 1996, that psychiatric treatment was available at all teaching hospitals and the main Government district hospitals throughout the country, and at Ward 59 of the Colombo General Hospital."

	That does not accord with the remaining evidence which has been produced to us. In June 1999 the Harvard Medical School, Department of Social Medicine, produced a newsletter giving an update on global mental and social health.  In relation to Sri Lanka it said that the usual medical approach to trauma typical of a country which has been the subject of considerable violence would be individual or group counselling sessions conducted by mental health professionals and it notes that such a process can take a considerable amount of time and involve the build up of a trusting relationship between the counsellor and the client.  It continues as follows:

"In the Sri Lanka context this approach is not a feasible option.  For a population of over seventeen million, there are only six psychiatrists, most of whom live and work in the capital, Colombo. There are many 'counsellors' but as yet no standardised training or registration.  Many NGOs have sprung up to counsel the tortured and the war widows, some may well be doing more damage than good."

In the letter of 30 March 2001 from the British High Commission in Colombo the Immigration and Nationality Directorate acknowledges that "the only speciality in short supply is psychiatrists".  The report from the World Health Organisation of July 2001 on mental health and substance abuse, including alcohol in the south east Asia region of WHO is hardly encouraging.  It records the approximate number of psychiatrists per million population in Sri Lanka in 2000 as being 0.53.  Other studies have suggested a figure of perhaps up to twenty clinically trained psychiatrists in Sri Lanka but, as Mr Davison fairly submitted, it would be unrealistic to think that all were of Tamil ethnicity and there is a difficulty in cultural terms in the engagement of the degree of trust necessary between patient and counsellor where there are ethnic differences which have been the subject of so much recent polarisation in the society in question.  In the light of that background evidence, we have no doubt that Mr Hutton's concession was sensibly and properly made and that the prospect of the appellant being able to receive the treatment recommended by the report must be regarded as remote.  

14.	This then leaves the third issue of whether the difference in available treatment and support is likely to result in serious detriment (see Bensaid) to the appellant's mental health.  

15.	By reason of our findings as to the likely availability of appropriate treatment in Sri Lanka, it follows that we are satisfied that the Adjudicator's findings in this respect are unsustainable on the evidence.  It is therefore for us to reconsider those issues in the light of the findings which we have made above.  

16.	It is quite clear from the decision in Bensaid v United Kingdom that it is the risk of damage to health by removal which is the pivotal factor to consider.  That damage must be more than speculative in the sense in which that was considered in Bensaid.  The psychiatric opinions submitted in evidence in Bensaid are referred to at paragraphs 16 and 21 of the judgment where it was said that return, in that case to Algeria, were put in stark terms in the final medical report saying that it was,

"…highly likely that stressful life events such as deportation together with more stressful environment he will be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria. …his fearfulness when unwell and also the motivation difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell.  …if he were unable to obtain appropriate help, if he began to relapse I think there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience of hallucinations telling himself to harm himself or others…  Thus I do think there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect."

17.	When, therefore, the European Court speaks of the risk on return being speculative it is against that sort of medical opinion submitted on behalf of the claimant.  If anything, it seems to us to be somewhat stronger than applies in the present case.  The appellant has, according to the psychiatric report, being living here for nearly two years in a state of extreme mental and emotional distress so that, as in Bensaid, we are concerned with a condition which is long term.  There is no indication in the medical report as to whether or not the treatment advised will be effective in curing the depression and post traumatic stress disorder from which the appellant suffers.  Insofar as it is treatable by medication, there is no evidence basis that appropriate medication will not continue to be available to the appellant in Sri Lanka and it is therefore only the question of the psychotherapy and its availability that has to be weighed in this connection.  Although there may now be some such treatment in the future if the appellant remains here, although its timing cannot be stated with any accuracy, there is no evidence as to whether it will be successful or not.  What is certain is that the United Kingdom bears no responsibility for the condition from which the appellant suffers because it must in the nature of the diagnostic requirements for PTSD have existed prior to her arrival in the United Kingdom.  Moreover, we are well aware from the number of Sri Lankan appeals with which we deal in the Tribunal that allegations of rape such as have been made in this case are not uncommon so that there can be no question but that there will be many people in Sri Lanka in a situation similar to that which applies to this appellant by reason of similar experiences in detention, as well as considerable numbers who have been subjected to torture in the past in detention.  Inevitably, given the history of the conflict in Sri Lanka prior to the ceasefire in February 2002, there will be considerable number of traumatised individuals there.  

18.	Although we can well understand that the appellant might currently subjectively fear a repetition of what has happened in the past, it is clear from the current country background evidence that such a fear would not be objectively well-founded, as is indeed demonstrated in this appeal by the lack of any challenge to that part of the Adjudicator's findings. She would, therefore, see for herself on return that there was no longer any reason to fear a repetition of what had happened in the past.  There is no medical evidence before us that she would not have such cognitive ability by reason of her diagnosed condition. Finally, we know that she does have extended family in Sri Lanka because she has in the past been assisted by her aunt and the fact that she may currently not be in touch with her father does not mean that through her family connections it would not be reasonably likely that she could re-establish contact with him comparatively quickly in the post-conflict situation.  Even if her immediate family here, whose immigration status remains uncertain and temporary, were not returned to Sri Lanka, she would not be left without some family and connection in her home area, where it has been found it would be safe for her to return.

19.	It seems to us, for the reasons which we have given,  that the risk of deterioration on return for this appellant is rightly, as in the case of Bensaid to be regarded as speculative in nature.  Although the same standard of treatment as is available here is unlikely to be available in Sri Lanka that is not to say no treatment facilities exist. 

20.	In order to show that removal would demonstrate a lack of respect for the appellant’s right to family and private life under Article 8(1), the Strasbourg jurisprudence, and Bensaid in particular, makes it clear that the threshold to be reached before interference occurs is a high one. It must amount to a demonstrably significant denial of the Article 8 right. It is reasonably likely that familial support similar to that currently enjoyed by the appellant here will exist in Sri Lanka from the extended family, even if her father cannot be easily traced. On the facts of this appeal that is of relevance to private life rather than to family life. The appellant is 28 years old and living apart from her mother and siblings currently here. It was not urged upon us that removal would interfere with family life as enjoyed here, and had that submission been made we would have rejected it. We are satisfied that removal would not engage the right to family life under Article 8(1). Such support as exists is in our view clearly directed to private rather than family life but the evidence does not show that removal would be of such significance as to interfere with it in breach of Article 8(1). For these reasons we have come to the conclusion that the appellant has not, on the totality of the evidence before us, discharged the evidential burden upon her to show that to the lower standard applicable in human rights appeals her removal would be in breach of her Article 8 right to private life and the physical and moral integrity which is a part of that right. It follows that on our findings the appellant does not succeed in the application of the third step recommended in Razgar.

21.      Had we, however, reached the conclusion that removal would on the facts have constituted an interference with Article 8 rights, such interference would clearly have been in pursuit of a legitimate purpose, and lawful. The issue would then have been whether removal was proportionate to the pursuit of the public interest in the regular enforcement of immigration law and policy which is recognised as being a legitimate aim of the state within the derogation provisions of Article 8(2). It is clear from the Strasbourg jurisprudence that a wide margin of appreciation is to be accorded to decisions of the state. We refer to the review of such jurisprudence by the Master of the Rolls in Ullah & Do [2002] EWCA Civ. 1856, where he concludes that the public interest will often outweigh or trump the private rights of the individual claimant. Taking into account the factors as to foreseeable harm to the appellant’s mental condition, and giving due weight to the fact that her condition is not one which is the direct responsibility of the United Kingdom on any view (see Bensaid), we would have concluded that removal would in any event be proportionate to the public interest.

22.    This appeal was heard and the determination prepared before transcripts of the important judgments in N [2003] EWCA Civ. 1369 and Djali [2003] EWCA Civ. 1371 were available. In view of the conclusions which we had already reached, we did not consider it necessary to invite further submissions in the light of those judgments. The judgment of Simon Brown LJ in Djali, particularly at paragraphs 16 to 20, clearly supports the reasoning in our primary finding that removal would not engage Article 8 rights at all. Similarly, at paragraphs 25 to 30 there is nothing which is contrary to our approach to our secondary and alternative finding on the proportionality of removal.

23.	Whilst, therefore, we do have sympathy with the appellant as we would have for anyone in such a position, we find that removal would not engage Article 8 of the European Convention and this appeal is dismissed.

J Barnes 
Vice President