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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kannathasan, R (on the application of) v The Secretary of State for the Home Department [2015] EWHC 3574 (Admin) (14 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3574.html Cite as: [2015] EWHC 3574 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a Deputy Judge of the High Court
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The Queen (on the application of SANTHANAKRISHAN KANNATHASAN) |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Claire van Overdijk (instructed by Government Legal Department) for the Defendant
Hearing dates: 11 November 2015
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Crown Copyright ©
His Honour Judge Bidder QC :
"5.7 Mr Kannathasan admitted to occasional thoughts that life was not worth living but denied current active suicidal intent. He could not recall any past acts of self harm…..
7.2 I rated the severity of Mr Kannathasan's depressive symptoms… his score indicates (in keeping with my clinical impression) that he has moderate depressive symptoms.
7.3 In view of Mr Kannathasan's difficulty in giving a full and coherent account of his past experiences, I assessed his cognitive function using a well validated screening test….This has a range of scores between 0 and 30, with scores below 24 being strongly suggestive of significant cognitive impairment. Mr Kannathasan engaged well with the testing process and showed pride in his correct responses. He scored 19/30…..
7.5 Mr Kannathasan's level and pattern of scores suggest that he does have significant cognitive impairment. His relatively good literacy suggests that his impairment was acquired in adult life. The pattern of memory difficulties…strongly suggests that it is the result of brain damage.
7.6 Mr Kannathasan has a documented history of long term alcohol abuse/dependence. …
8.1 … I base my diagnostic conclusions on my objective clinical observations of Mr Kannathasan's speech, demeanour and behaviour and not merely on the symptoms he described to me.
8.2 Mr Kannathasan is in my opinion significantly cognitively impaired. This impairment limits his ability both to give an account of his past life and present circumstances and to describe his mental symptoms in full detail.
8.3 Because of this impairment I was unable to make a firm diagnosis of any major mental illness. I should add however that Mr Kannathasan does have significant and disabling depressive and anxiety symptoms. It is also possible that he has post traumatic stress syndrome (PTSD) but his inability to give a clear account of his trauma precludes such a diagnosis. The symptoms noted by Dr Renkeman are strongly suggestive of PTSD."
THE LAW
"When a human rights or asylum claim has been refused….. and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
"….is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK"
SUBMISSIONS ON THE ARTICLE 3 GROUND
"Furthermore, although it is acknowledged that the medical facilities in Sri Lank may not be as well developed as those in the United Kingdom or other European Union countries, the caselaw of N [2005] UKHL 31 states that with regard to such differences:
'This is because a comparison between the health benefits and other forms of assistance which are available in the expelling state with those in the receiving country does not in itself give rise to an entitlement to remain in the territory of the expelling state.'
"It has been considered that your client is able to return to Sri Lanka and receive sufficient medical provision for his mental health condition. On the basis of the information in the context of this letter it has been concluded that suitable medical treatment is available in Sri Lanka. It is therefore not accepted that your client's removal from the United Kingdom reaches the high threshold of severity to breach article 3 of the ECHR on the basis of your client's medical condition. This would not be disproportionate when weighted against the need to maintain effective immigration control."
"As the information above shows, there is medical treatment available in Sri Lanka for mental health conditions. Furthermore, your client's medical condition is not considered exceptional. Therefore your client does not qualify for Discretionary Leave on medical grounds."
"The medical report by Professor Katona states your client is at a significant risk that he will commit suicide if returned to Sri Lanka, either in the UK (upon being told that his removal is imminent), in transit or on return"
"Moreover, depression, anxiety and PTSD are internationally recognised conditions for which treatment is available in Sri Lanka. The Secretary of State is aware that Sri Lanka has medical care available similar to that in the UK and such treatment would be available to your client on arrival there."
"Finally, the risk can be effectively managed on return to Sri Lanka by the medical authorities there………
Moreover, your client's fear that he would be subject to a repeat of negative experiences in Sri Lanka is not objectively justified. In J v UK the Court of Appeal found that in the absence of a delusional illness, or an inability to distinguish between reality and fantasy, 'We do not think it can be assumed that, once the A realised that he is required to return and that there is no prospect of a further appeal, he will not take stock by reference to objective realities.' It is considered that the same reasoning applies to your client's case."
"Having carefully considered all the evidence available to her, the Secretary of State is of the view that the removal of your client to Sri Lanka would not impact on his medical and mental health to the extent necessary to engage Article 3 or 8 of the ECHR.
Consequently, your client's removal from the UK will not breach your client's rights under Article 3 and 8 ECHR. Therefore your client does not qualify for Discretionary Leave.
For all the reasons given above, the submissions you have made in relation to your client's mental health problems have no realistic prospect of success before an Immigration Judge. It is considered that there is treatment for the conditions your client may suffer from available in Sri Lanka and you have submitted no reasons why your client would not be able to avail himself of these services should he be returned there. Therefore your client does not qualify for Discretionary Leave on the basis of his medical problems.
It is considered that this submission does not have a realistic prospect of success before an Immigration Judge."
"it is submitted that the SSHD was reasonably entitled to conclude that C's mental health is such that he fails to meet the high threshold set by Article 3 and that his case is not on a par with that of the appellant referred to in CG such that the relative lack of mental health facilities would place him at risk."
SUBMISSIONS ON THE ARTICLE 8 GROUND