IN THE IMMIGRATION APPEAL TRIBUNAL

IK (Suicide/mental stability: legal requirements) Turkey [2005] UKIAT 00049 

Heard:  	07.02.2005
Signed:  17.02.2005
Sent out: 22 February 2005	

NATIONALITY, IMMIGRATION AND ASYLUM ACTS 1971-2002

Before:
John Freeman (a vice-president)
		Richard McKee and
		Paul Bompas 

Between:  
Secretary of State for the Home Department,
appellant 

and:

claimant

Mr J Gulvin for the Secretary of State 
Miss R Shah (counsel instructed by Mondair, Peterborough) for the claimant 

DECISION ON APPEAL

This is an appeal from a decision of an adjudicator (Mr PM Petherbridge), sitting at Taylor House on 20 November 2003, allowing an appeal by a Kurdish citizen of Turkey, on human rights grounds only. Permission to appeal was given on the basis that the adjudicator’s conclusions might not reflect the current state of the law on ill-health: the claimant’s problems are mental ones, which led him to threaten to kill himself.
2.	The adjudicator’s main findings were these (see his §§ 63-64):
a.	I am satisfied on the medical evidence before me that, at least, for the present time it would be unsafe for this Appellant to be returned to Turkey.
b.	I do not consider the Appellant’s medical condition and the effect upon him [of] being returned to Turkey sufficient to engage an Article 3 claim.
c.	However … I do consider that this is ‘one of those rare cases’ where removal would not be proportional to the interests of immigration control because of the threat to the Appellant’s physical and moral integrity … for the following reasons:
i.	
Two psychiatrists have said he is suicidal; and
ii.	He manifested signs of extreme anxiety at his Tribunal [sc. the adjudicator] hearing that satisfied me that he was mentally ill; and
iii.	… he has convinced himself of the truth of his asylum claim (although I do not accept it as true) and … perceives he will be tortured if returned to Turkey; and
iv.	I do not believe from the medical evidence available that he would, at present, have the ability to cope with social relationships and pursue normal activities if returned to Turkey; and
v.	Now that he is undergoing treatment in this country, which his Consultant Psychiatrist is cautiously optimistic will be successful within 3- 6 months, the risk of more potential damage being caused to him by an enforced return would be wholly disproportionate to the need to maintain immigration control.

3.	These conclusions were challenged by the Home Office in very general terms, relying on the decisions of the European Court of Human Rights in Bensaid v United Kingdom (2001) 33 EHRR 205 and the Court of Appeal in Ullah (now overtaken by Ullah [2004] UKHL 26, and, more significantly in this context, Razgar [2004] UKHL 27) and Djali [2003] EWCA Civ 1371. The position specifically on suicide had been dealt with by the Court of Appeal in Soumahoro [2003] EWCA  840, which was not appealed to the House of Lords. While what they said there has to be read in the light of the general statement of principle in Razgar, we think there must still be a need to consider the difference in any risk of suicide (and what there is to protect against it) in the destination country over and above here, since it is the consequences of removal which form the basis of any asylum and human rights appeal.
4.	Miss Shah tried, we thought quite artificially, to limit the ambit of the appeal in various ways. There was for example a specific challenge to the adjudicator for failing to have regard to “the availability of medical treatment in Turkey for the appellant”. Certainly the adjudicator did not deal in any way with the evidence about that in the CIPU report before him, or from any other source; but Miss Shah suggested that, since she had not relied before him on any difference between medical services in Turkey and here, he did not have to review the evidence on that point at all; and that, since there might have been a risk of the claimant’s killing himself, either on hearing the news that he was to be removed, or in the course of removal, the failure to review medical services in Turkey was in any case not material to the risk he found.
5.	This line of argument seemed to us to fly in the face of  what the adjudicator himself said (see i), ii) and iii) c-d above) specifically about the consequences of  return to Turkey. The adjudicator at least appreciated that this was what the appeal was about: particularly as at the date of the decision the right of appeal was against the removal directions, rather than the decision to remove itself, as now. He did not even suggest that the appeal fell to be allowed on the basis of anything the claimant might try to do to himself while still in this country, or in transit to Turkey. Given that even a suicidal person might not be expected to see all hope as lost before actually being taken away, and that any period in detention and transit would be undertaken under close observation, it would have been difficult for the adjudicator to do so. However neither can he be blamed for not trying, nor his decision be supported on a basis he never sought to give for it.
6.	The medical evidence before the adjudicator showed, as is usually the case, that its authors saw a risk of suicide for the claimant on the basis of their expert opinion as to his condition. Though one was a general practitioner, rather than a psychiatrist as the adjudicator suggested, there is no question but that he was entitled to rely on their evidence in this respect. However it was not, and could not be the whole story. For a suicide risk, as with any other risk for which the authorities of the country in question are not directly responsible, to raise an arguable breach of human rights, it must be a risk against which they are unable or unwilling to provide effective protection. 
7.	There is of course difficulty in guarding someone against his own propensity to self-destruction, even by regular watching round the clock, as the unfortunate number of suicides in custody, even in this country, makes clear. However, many people are protected against self-harm by medical or similar treatment, as this claimant has been here; and the question had to arise as to why that could not happen on his eventual return to Turkey. There was nothing in the medical evidence before the adjudicator to deal with that question, and he did not try to do so from any other source. 
8.	Given what was said in Razgar on this point, we do not think it is open to Miss Shah to defend the adjudicator’s decision on the basis that it was open to him on nothing more than a general assessment of the proportionality of return. To allow that would be to give adjudicators (and the appellate authorities generally) a subjective discretion in such cases not recognized in Razgar (and specifically excluded in DM (Croatia) CG* [2004] UKIAT 00024, the leading decision on this point, which required the claimant to show that no reasonable Home Secretary could have insisted on removal – though we do not base our decision on that case, as its correctness is currently under consideration by the Court of Appeal).
9.	There is the added difficulty for Miss Shah that the adjudicator specifically excluded any article 3 risk (see i) above). He gave no reason for that, but it implies that he saw no real risk on the evidence before him of the claimant killing himself on return to Turkey; otherwise it is hard to see why sending him back there would not have infringed both article 3 and article 2 of the Human Rights Convention. It leaves the adjudicator’s decision supportable only on the basis of some lesser risk, not reaching the minimum level of severity for article 3, and there is nothing before us to show why such a risk in this case should reach the exceptional level required for one of this kind to succeed, or for questions of proportionality to come into play: see 8.
10.	We had before us the decisions of the Tribunal in P (Yugoslavia) [2003] UKIAT 00017 and KK (Serbia and Montenegro) [2004] UKIAT 00228. In both those cases the Tribunal were dealing with decisions of adjudicators issued before § 101 of the 2002 Act came into force on 9 June 2003, so were entitled to, and did adopt the Subesh [2004] EWCA 56 approach and consider the facts for themselves. We commend the approach of the Tribunal in both those cases to adjudicators dealing with similar ones. However we have not been told of any similar case which has come before a Tribunal restricted by the authoritative interpretation of § 101 in CA [2004] EWCA Civ 1165 to considering whether there has been an error of law. 
11.	These are the questions which we think the law requires adjudicators considering such cases to ask themselves:
a)	On the individual medical evidence relating to the claimant, is there a real risk of him trying to kill himself on return to his country of origin, significantly over and above any such risk if allowed to remain in this country?
b)	On the background evidence relating to medical services in that country (and any other relevant evidence), would he be effectively protected against his own actions in that way (bearing in mind the obvious difficulties involved, also found in this country: see 7)?
Only if the answer to a) is ‘yes’, and b) ‘no’ will there be any scope for allowing the appeal under article 3 (or 2) of the Human Rights Convention; but, if those are the right answers, it is hard to see how such a case would not meet the minimum level of severity required for article 3. 
12.	On the other hand, if either question a) is to be answered ‘no’, or b) ‘yes’, then the claim can only succeed on the basis that return, while not putting the claimant at any real increased risk of killing herself, would nevertheless amount to what Lord Carswell described in Razgar (at § 72) as an exceptional engagement of article 8, on the basis that the claimant has shown “… a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights” in respect of preservation of his mental stability. This must be an exceptional case indeed, and in our view must inevitably involve consideration in depth of the available background evidence on medical services in the country in question, rather than mere reliance on assessments of an individual, made by practitioners in this country, who cannot normally be regarded as experts on conditions overseas.
13.	If this case is seen in terms of anything short of a suicide risk, then the only exceptional thing about it is the strong personal impression made by the claimant on the adjudicator: see his finding at c) ii), set out at 2. While the adjudicator certainly could not be regarded as any kind of expert on mental illness, he was entitled, given that there was some expert evidence before him, to record the personal impression made on him by the claimant in the course of the hearing, and, to an extent, to rely on it. 
14.	In this case, as we have already made clear, the adjudicator went wrong in law by failing to consider:
a)	any differential risk of suicide on return [at least in terms, though arguably his decision shows he did have this in mind];
b)	whether or not effective protection would be available against any such risk;   and
c)	whether any lesser risk to the claimant’s mental health on return would amount to a “flagrant or fundamental breach” of his right to private life. 
It follows that we should be entitled to try to reach our own view on the facts of the case, on these points (not restricted, even in  Subesh terms, on b) and c), since they were never considered at all by the adjudicator). 
15.	The difficulty with that, just as where an adjudicator has made a credibility finding on oral evidence, is that it is very hard for us to know what ought to be made of  Mr Petherbridge’s finding on the claimant’s mental state before him (see 2 c) ii)), without having seen the claimant give evidence for ourselves. The claimant ought not to be deprived of all benefit of such a finding; and a further adjudicator hearing seems inevitable. Miss Shah argued that the case should go back to Mr Petherbridge, so that he could rely on the findings he made in November 2003, without putting the claimant through the anguish of giving evidence again.
16.	To mention the date of the original hearing is in our view enough to show that this ought not to happen. It would be hard enough for Mr Petherbridge to disentangle the views he reached then from those required by whatever the current state of affairs turns out to be; and next to impossible if he had to balance with the current evidence a personal impression made well over a year ago. We have no doubt that the case ought to go back to another adjudicator. 
17.	While AB [2004] UKIAT 00323 makes it clear that we have no formal power under the Procedure Rules to limit the scope of remittal (though there is such a power under § 102.4a of the 2002 Act), it makes it equally clear that we can and should say, not only, as we have, why we have dealt with the case in that way; but, as we now do, what the fresh adjudicator needs to focus on. 
18.	
In our view, so long as there has been no significant change in the relevant circumstances, the further hearing we direct should be entirely concerned with consideration of the points set out at 11 and 12 above. If the claimant’s medical advisers consider him unfit to give evidence, then evidence from them must be filed and served in accordance with the standard directions, and will no doubt be taken fully into account in deciding his current mental state (rather than the one he presented in November 2003). Failing that, the adjudicator will be entitled to expect to hear from the claimant personally, and not to allow reliance to be placed on what by then may well be an out-of-date personal impression of Mr Petherbridge’s.
Home Office appeal  
Direction for new hearing (“remitted”, not to Mr Petherbridge)

John Freeman
(approved for electronic distribution)