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England and Wales High Court (Administrative Court) Decisions


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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Neutral Citation Number: [2015] EWHC 3574 (Admin)
Case No: CO/9902/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
14 December 2015

B e f o r e :

HIS HONOUR JUDGE BIDDER QC
Sitting as a Deputy Judge of the High Court

____________________

Between:
The Queen (on the application of
SANTHANAKRISHAN KANNATHASAN)
Claimant
- and -

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Defendant

____________________

David Chirico (instructed by Wilson Solicitors LLP) for the Claimant
Claire van Overdijk (instructed by Government Legal Department) for the Defendant
Hearing dates: 11 November 2015

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    His Honour Judge Bidder QC :

  1. This is an application for review, permission having been granted by John Howell QC sitting as a deputy High Court judge on 18 December 2012 at an oral permission hearing.
  2. The current grounds bear little relationship to those in the claim form, which was actually lodged on 18 September 2012. This case has been stayed a number of times, once by order and then by consent.
  3. The first decision letter, the subject of the claim, was dated 31 October 2013 and the second, which purports to amplify or explain the reasons set out in the original, which second letter followed the filing of amended grounds by the claimant, replacing the entire original grounds, was dated 24 March 2015. Between the filing of the amended grounds and the second decision letter, permission had been refused on paper by Ms Gill, sitting as a deputy High Court judge, an oral hearing had taken place at which the claimant had not attended, leading to further refusal and then, after permission was granted to reopen proceedings, permission was granted by Mr Howell QC.
  4. On 27 April 2015, by consent, the parties were both directed to serve and file amended grounds, which grounds are the basis for this hearing and the claim for review.
  5. In short, the claimant challenges the decisions by the defendant to refuse to grant him leave to remain and to refuse to treat his further representations as a fresh claim.
  6. Because Mr Howell granted limited permission, this case turns upon the Secretary of State's treatment of his representations that his article 3 ECHR rights would be breached if he were to be returned to Sri Lanka, of which country he is a national, although Mr Chirico on behalf of the Claimant maintains an article 8 argument.
  7. These facts, briefly, are these.
  8. The claimant is 50 years of age and is a Sri Lankan Tamil. On 18 August 1999 he entered the UK and on 26 August he claimed asylum on the basis of a fear of persecution because of his and his family's actual and perceived support for the LTTE.
  9. On 4 February 2002 his asylum claim was refused and he appealed. That appeal was dismissed by an adjudicator on 8 June 2004. There were adverse credibility findings. Those were made without hearing from the claimant who was not present and was not represented. The circumstances in which that took place appear to be very unsatisfactory and there is potential for criticism of his representation. However, as the defendant in these proceedings does not place weight on those credibility findings it is unnecessary for me to go into more detail about the appeal hearing.
  10. The claimant did not further appeal but he was not removed. His case entered the "legacy" programme. It is argued on the claimant's behalf that there was a good possibility that he would have been granted leave to remain under that programme. The defendant suggests that he was unresponsive to requests for information. The claimant does not suggest that his participation in the legacy scheme gave rise to a legitimate expectation of a grant of leave to remain. However, it is argued that in relation to the article 8 claim and when the weight to be attached to the maintenance of immigration control is considered, it should be taken into account that it is, at least, arguable that within the legacy policy the claimant would have received leave to remain.
  11. On 18 December 2011 the claimant attended the defendant's Asylum Support Unit to claim asylum. The defendant's records note that he said that he was "claiming asylum because he has mental problems and he can't remember anything". There is no explanation of why the defendant did not consider the matter again nor is there any indication that the claimant was given any advice.
  12. On about 16 June 2012 the claimant was arrested by the defendant, according to whom he was working illegally in Port Talbot in South Wales and he was detained. While in detention, on 22 June 2012, he was seen by a Dr. Renkeman, whose report is included in the bundle at E 69. Injuries were noted but it could not be said how they were caused. An early account by the claimant indicated that he had been subject to torture.
  13. The claimant was released on 9 August 2012 but on 10 September 2012 was re-detained with a view to his being removed. On 17 September 2012 the claimant made further representations through his current solicitors. This judicial review claim was issued. Those representations were refused but neither they, nor further representations of 18 September 2012 and 10 December 2012, nor the responses of the Defendant are now material.
  14. However, after receiving disclosure from the defendant and having obtained a psychiatric report from a Professor Katona (Trial Bundle ("TB") 288), further representations were made. In those further representations a summary was given of the "core elements" of the Claimant's case as presented to that date, namely, that he had been beaten and tortured by the Sri Lankan army, had worked for the LTTE in Vanni, that his father worked in the temple and used his position there to support the LTTE, that the claimant had left Sri Lanka with the help of an agent and that the army beat the claimant's father after the capture of Jaffna and his father subsequently died. The defendant accepts that the article 3 and 8 claims must be considered with that summary being taken "at its highest".
  15. The other material representations which must be considered are those contained in the letter of 28 August 2013 (TB 440). They summarised the previous representations. They specifically relied on the claimant's vulnerability to suicide and self harm if he were to be returned to Sri Lanka.
  16. There was a long and very detailed decision letter of 31 October 2013 (TB 459), which is one of the decision letters under review and to which I must return in due course. That letter refused asylum and refused to treat the further representations as a fresh claim.
  17. As I have previously indicated, after permission was granted for this review, the defendant served simultaneously her detailed grounds of defence and a letter of 24 March 2015 giving further reasons for refusing the human rights representations of the claimant and refusing to treat them as a fresh claim. It is agreed that I should treat that letter as a fresh decision. That is relevant in order to establish the version of the Immigration Rules applicable to the challenged decision.
  18. The report of Prof Katona is the centrally important evidence to be considered at this review. The defendant has not obtained any psychiatric evidence. The report is dated 19 December 2012. It might be expected that, should this matter go to a tribunal, Prof Katona would examine the claimant again. I refused leave, however, at the hearing of this review, for the claimant to rely on a further explanatory report from Prof Katona. That was because it was too late and also because that supplementary report would not have been before the decision maker.
  19. There is no doubt that Prof Katona was a highly qualified expert. He examined the claimant on 7 November 2012 for two hours. He narrates at the beginning of his report the documentation that was available to him. That included hospital medical notes and detention medical notes. It did not include GP notes but it was pointed out to me by Mr Chirico, counsel for the claimant, that as a failed asylum seeker, the claimant was not entitled to avail himself of secondary medical healthcare services and was probably not able to register with a GP.
  20. The claimant gave to Prof Katona a very fragmentary account of his background and experiences in Sri Lanka. It is of significance that Prof Katona noted that there were inconsistencies recognised in the adjudicator's findings. He also noted the report of Dr Renkeman, who, on his examination of the claimant in detention, and noted very severe memory loss. Prof Katona also noted that on 14 February 2011 the claimant had presented to a hospital emergency department complaining of hearing voices and feeling suicidal. He also noted that another GP who had examined the claimant in detention had noted a history of suicidal/self harm problems with the last attempt being some six months before. The same GP saw "self-inflicted and self harm wounds" on his forearms.
  21. At page 293 of the trial bundle are Prof Katona's findings of the claimant's current mental state. Of relevance are the following:
  22. "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."
  23. Professor Katona did not believe the Claimant was exaggerating his symptoms, indeed, precisely the opposite and he thought it would have been very difficult for him to feign memory difficulties both to Dr Renkeman and himself.
  24. He thought the Claimant would benefit from a trial of anti depressants and that he should be assessed with a view to cognitive rehabilitation.
  25. He assessed the possible effect of his forcible return to Sri Lanka and concluded that he would lose the support network he had developed in the UK and would then, because of his cognitive difficulties, be very vulnerable to exploitation and would not be able to work and support himself.
  26. While the Claimant denied current suicidal intent, he had thoughts that his life was not worth living and in Professor Katona's opinion there was a significant risk that he would harm himself, with potentially fatal consequences, if he were forced back to Sri Lanka. The risk would be significant in the UK once he lost all hope of remaining here and would remain so during the removal process and once he was back in Sri Lanka (there is a clear mistake in paragraph 12.2 of the Katona report where Iran is typed instead of Sri Lanka – nothing in the rest of the report suggests cutting and pasting, despite the Defendant's submission).
  27. As to the situation in Sri Lanka, at the time of both the decisions under scrutiny in this review, the applicable country guidance was that given by the Upper Tribunal in GJ and Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). The Deputy Judge, granting permission, did not find it arguable that the Claimant fell within one of the refugee risk categories identified in GJ. However, the section of GJ dealing with the risks to people returned to Sri Lanka with a risk of suicide was central to the grant of permission. The Tribunal's conclusions were that there were only 25 working psychiatrists in the whole of Sri Lanka and that money that was spent on mental health only really went to the large mental institutions in capital cities which were inaccessible and did not provide appropriate care for mentally ill people.
  28. The UT in GJ, having assessed the evidence about the Claimant in that case against the background of its findings about reception conditions in Sri Lanka concluded that his removal would give rise to a real risk of a breach of his Article 3 rights. The Claimant in this instant case does not suggest that his circumstances were the same as the Claimant's in GJ but does argue that the findings of fact made in GJ about Sri Lanka would form the necessary context of an assessment by a Tribunal of this Claimant's case.
  29. THE LAW

  30. Paragraph 353 of the Immigration Rules sets out the policy which the Secretary of State will adopt to further representations following a rejection of a previous asylum/human rights claim:
  31. "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."
  32. A two stage test must, therefore, be applied by the Secretary of State and, if she rejects the representations, she must step back from her own concluded view about the merits of the claim and consider the prospect that the representations might fare differently before a Tribunal.
  33. There is no real dispute that the representations based on the Claimant's mental health and suicide risk are significantly different from the material already considered. There is, on the settled law, a low threshold to be applied by the Secretary of State in determining whether a claim has a "realistic prospect of success". In WM (DRC) v SSHD [2006] EWCA Civ 1495 the Court of Appeal held that the test was "somewhat modest". When considering what the Tribunal might conclude, that Court also stated that the Tribunal did not have to achieve certainty (in relation to persecution on return, but the same "Soering" test would apply to the risk of an article 3 breach) but only to think that there was a "real risk". Moreover, all the decision makers had to apply anxious scrutiny to the material, i.e. to demonstrate by their reasoning that every factor which might tell in favour of an applicant had been properly taken into account (see R (YH (Iraq) v SSHD [2010] EWCA Civ 116, at 24).
  34. While the decision is that of the Secretary of State's and not for the court, judicial review of a fresh claim decision is on normal public law grounds, with the added element that anxious scrutiny will be needed and the Secretary of State's decision will not be set aside unless it is considered to be Wednesbury unreasonable.
  35. Article 3 of the ECHR contains the prohibition that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". The ill treatment must attain a minimum level of severity before it falls within the scope of Article 3 and where the feared harm may take place in another state, Article 3 will be violated "where substantial grounds have been shown for believing that the person concerned….faces a real risk of being subjected to treatment contrary to Article 3" (Soering v Germany (1989) 11 EHRR 439)
  36. Mr Chirico, for the Claimant, reviewed before me the authorities where the result of a deterioration in a mental health condition caused by expulsion or the threat of it includes the risk of self harm or suicide. In J v SSHD [2005] EWCA Civ 629 the Claimant was a Sri Lankan national who continued to pose a significant risk of committing suicide in the UK and would pose a high risk if he were returned to a part of Sri Lanka where there would be no one to support him. The case itself is distinguishable from this in that it was expressly conceded in J that medical treatment in Sri Lanka would be adequate. Moreover the Court of Appeal recorded the Tribunal's finding that the medical evidence did not demonstrate J was unable to take cognisance of the then reality in Sri Lanka so that, even though he might subjectively fear a repeat of previous ill treatment in Sri Lanka, those fears were not objectively justified and that was something that he could be expected to realise for himself. Thus, on that ground as well, the decision in J is distinguishable from this current case where the risk of self harm and suicide is independent of any belief by the Claimant that he might be persecuted or subjected to ill treatment in Sri Lanka.
  37. The Court of Appeal in J considered the threshold test to be applied. That test should relate to 3 stages, namely, a risk in the UK when a person is informed of a final decision to remove, the risk during removal and the risk following arrival in the destination country. In relation to the risk in the destination country, the Court held that the appropriate test would be the Soering test.
  38. While the treatment feared must attain a "minimum level of severity", it is clear that self harm carrying a risk of suicide (plainly established here on any rational view of the Katona report) meets that threshold.
  39. In J, the Court said that in deciding whether there was a real risk of a breach of Article 3 in a suicide case "a question of importance is whether the applicant's fear of ill treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded". If not, that would tend to weigh against there being a real risk that removal will be in breach of Article 3.
  40. However, the critical point established in J, for the purposes of this review, is that a further question of considerable relevance was that of whether the "receiving state has effective mechanisms to reduce the risk of suicide."
  41. As to the Claimant's article 8 claim, it is clear that, in considering it, the Secretary of State must make the step by step consideration set out in R. (Razgar) v SSHD [2004] 2 AC 368. All factors relating to private and family life must be considered cumulatively and "private life" includes the physical and psychological integrity of a person (Pretty v United Kingdom (2346/02: 29/04/2002)).
  42. The minimum level of interference with private or family life necessary to engage Article 8 is not an especially high one and where it is established, the burden shifts to the Secretary of State to justify such interference. Although section 117B of the Nationality Immigration and Asylum Act 2002 states that the maintenance of effective immigration controls is in the public interest, the weight to be attached to that factor is not a fixity and the Claimant argues that where, in this case, there was a reasonable possibility that the Claimant would have been eligible for a grant of discretionary leave to remain under the "legacy" policy, less weight than otherwise might be the case should be given to the maintenance of immigration control. I accept that submission.
  43. The Claimant correctly accepts that if his article 8 claim does not fall within the express provisions of the Immigration Rules, it must be viewed through the "lens" of those rules.
  44. At the time of the effective decision of the Secretary of State (that is, as at 24/3/2015, the date of the second letter under consideration in this review) the most recent incarnation of para. 276 ADE of the Rules applied. The full rule is set out in the Claimant's skeleton and need not be repeated but the critical sub paragraph in this case is 276 ADE (1) (vi) which, as relevant, states:
  45. "….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

  46. The Claimant's primary submission (upon which permission was granted) is that the Secretary of State failed to engage in her decision of 31 October 2013 with his Article 3 claim based on the risk that he would commit suicide if returned to Sri Lanka and he further submits that those errors are not only not remedied but are compounded by the supplementary letter of 24 March 2015.
  47. While the Secretary of State considers in some detail in the second letter the medical care available for people suffering from mental illness in Sri Lanka, conclusions about which have to be considered against the findings of the Upper Tribunal in GJ, the Deputy Judge, in granting permission, observed that the Secretary of State "nowhere explains why the facilities which were regarded by the Tribunal as inadequate would be adequate for the Claimant, or at any rate explains why an immigration judge might not maintain the same view as the Tribunal did in GJ on the basis of the same information."
  48. Mr. Chirico, for the Claimant, adopts these observations of the Deputy Judge. In the first decision letter of the 31 October 2013, the Secretary of State notes that Professor Katona was unable to make a firm diagnosis of any major mental illness and (see Trial Bundle ("TB") 480) then concludes that it is not accepted that the Claimant would be unable to avail himself of medical care and treatment should he be returned to Sri Lanka or that his illness reaches the threshold outlined in KH (Afghanistan) v SSHD [2009] EWCA Civ 1334 and Bensaid v UK.
  49. The first point Mr Chirico makes is that while it is correct that Prof. Katona cannot make a firm diagnosis of any major mental illness, that does not mean that the Claimant may not suffer from a major mental illness. Moreover, although the Claimant's memory is now poor in relation to his treatment in Sri Lanka, it would be open to a tribunal judge to consider his earlier accounts in order to make conclusions about the trauma he experienced in Sri Lanka. It is the lack of detailed evidence in the Claimant's account to Prof. Katona that prevented his making a diagnosis of PTSD and that lack of detail might be remedied at a tribunal hearing from earlier accounts.
  50. More significantly, when the very detailed letter of 31/10/13 is considered it is, submits Mr Chirico, clear that the Secretary of State was considering the wrong issue on the Article 3 claim, namely, whether, generally, the facilities in Sri Lanka for treating mental illness were adequate to avoid the Claimant suffering there ill treatment of a degree sufficient to engage article 3. KH is not a suicide case, nor was N v The UK, relied on in KH. Both those cases involved claimants with mental illness, which was not regarded in those cases as "very exceptional". Similarly, the court in Bensaid v UK reiterated that the threshold set for ill treatment under Article 3, particularly where the case did not concern the direct responsibility of the Contracting State for the infliction of harm, was a high one.
  51. Where, however, the case is one of the risk of suicide, that risk in itself, if established, must pass the threshold and the authorities clearly establish that different considerations arise in such a case from those which were involved in KH, N and Bensaid.
  52. It is, perhaps, worth looking at the conclusions of the Secretary of State in the 31/10/13 letter to see the problem. At TB 481, the Secretary of State states:
  53. "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."
  54. There is no mention in that passage of the risk of self harm with potentially fatal consequences which Professor Katona identifies. There is no doubt that the Secretary of State applies GJ because she refers to it on the same page of the letter but Mr Chirico maintains that the Secretary of State has, in this passage, missed the point.
  55. The same point (or missed point) is reiterated at page 484 after a review is made of the provision of psychiatrists and psychologists in Sri Lanka (again based on the conclusions of the Upper Tribunal in GJ). The Secretary of State says:
  56. "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."
  57. The Secretary of State does deal with the risk of suicide at page 485:
  58. "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"
  59. However, the Secretary of State's approach to that finding is to cite HE v SSHD [2004] UKIAT 00321, a case in which the issue of credibility and psychiatric reports was determined. That case really involved the use of a psychiatric report to bolster the credibility of a claimant, thus, effectively, an exercise in self corroboration. Here, however, contends Mr Chirico, the Secretary of State, without any reliance herself on expert psychiatric evidence, cannot simply reject Professor Katona's conclusion without explanation or, even if it were reasonable for her to do so, cannot rationally conclude that an Immigration Judge would necessarily not accept that conclusion.
  60. The passage after the long quotation from HE in the 31/10/13 letter (TB 485) contends that the Claimant will not be at risk of being a victim of abuse in Sri Lanka, a finding which, given the limited grant of permission, may not now be challenged by the Claimant. However, Professor Katona does not reach his conclusion as to the risk of suicide on the basis that that is caused by the Claimant's subjective belief that he will be the victim of abuse. Thus, again, it is not clear from that paragraph that the Secretary of State is applying anxious scrutiny to the real issue relied on by the Claimant. Indeed the conclusion of the passage suggests that the point has been missed again:
  61. "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."
  62. It is right to say that the Secretary of State does then specifically deal with the risk of suicide considering at length the decision of the Court of Appeal in J v SSHD [2005] EWCA Civ 629. While J is, indeed, a suicide case, a significant cause of his suicidal ideation was his fear of past trauma in Sri Lanka and of a repetition of that trauma should he be returned. As I have indicated above, J is clearly distinguishable from this case.
  63. On page 486 the Secretary of State deals with the risks of suicide in the UK and in transit. As to the risk in Sri Lanka the Secretary of State concludes:
  64. "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."
  65. In relation to the first conclusion, Mr Chirico, in my view, correctly submits that nowhere does the Secretary of State indicate why she concludes that the risk of suicide can be effectively managed by the medical authorities in Sri Lanka when the very opposite conclusion was reached in the then most recent country guidance case of GJ (in particular in the third appellant's appeal in that case). At the very least, this passage does not demonstrate that the Secretary of State has applied anxious scrutiny to the issue.
  66. As to the second conclusion, as indicated above, it ignores that Professor Katona does not link causally the risk of suicide to any fear of a repetition of abuse in Sri Lanka.
  67. Moreover, Mr Chirico in his skeleton, submits that the Secretary of State, while correctly observing that there is no diagnosis of a delusional or psychotic illness, appears to ignore that the Claimant is, in Katona's opinion, suffering from significant cognitive impairment. That cognitive impairment appears to be caused by brain damage and thus it would be wrong to assume that such a person would be able to "take stock by reference to objective realities". Mr Chirico submits that the Secretary of State does not grapple with that point in reaching her own primary decision and, additionally, does not explain why an immigration judge might not take a different view on the significance of cognitive impairment.
  68. It is upon those bases that the Secretary of State made her determination on the fresh representations at TB 487:
  69. "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."
  70. The Claimant submits that the supplementary decision letter of 24/3/15 does not remedy the errors in the 2013 letter. Paragraphs 5, 6 and 7 of that letter appear to me merely to repeat the arguments set out in more detail in the 2013 letter (see TB 502-3). The Secretary of State appears to distinguish the case of the 3rd appellant in GJ on the basis that there were in that case "clear plans to commit suicide and that he is mentally very ill, too ill to give reliable evidence." That, no doubt, does distinguish the level of suicide risk from that of the Claimant here but the Secretary of State does not give reasons for determining, contrary to the conclusion in GJ, that the facilities for treatment of mental health in Sri Lanka are sufficient to remove the risk of suicide.
  71. It seems from paragraphs 8 and 9 of the 2015 letter that, rather than grapple with the issue identified by the Deputy Judge, the Secretary of State is attempting to go behind the conclusions of Prof. Katona. It seems to me that Mr Chirico is entirely correct to point out that, in a case where the Secretary of State has no medical evidence to set against the Claimants it is arguably irrational for the Secretary of State to conclude, as she purports to do in paragraph 9 of the 2015 letter: " Further, apart from the admissions that he had "…sometimes banged his head against the wall in frustration" paragraph 3.11 of Prof. Katona's report) and that he had, along with other Tamil detainees "gone on hunger strike for 6 or 7 days" while previously in detention, no evidence has been provided to establish that your client poses a significant risk of suicide."
  72. Even if the Secretary of State was entitled (on what is in any event a partial account of the basis for the Katona suicide risk conclusion) herself to take that view of the Professor's assessment, Mr Chirico submits, in my judgment, persuasively, that any questions about the weight to be attached to Prof. Katona's evidence are plainly such as to fall within the exercise of judgment by the expert tribunal. He submits that it is plain that a tribunal might reach a different view in assessing the expert and that in reaching a contrary conclusion the Defendant has acted irrationally.
  73. Paragraphs 18 to 20 of the Defendant's Amended Detailed Grounds appear to me to follow the Secretary of State in missing the point that there is a distinction in the authorities between mental health cases simpliciter and suicide cases. At paragraph 44 of the Grounds, Ms van Overdijk for the Secretary of State properly distinguishes this appellant's factual situation from that of the third appellant in GJ but again fails to grapple with the conclusion in GJ that the mental health facilities in Sri Lanka were inadequate to deal with the risk of suicide. I have already dealt with the difficulty in the way of attacking the bases of Prof. Katona's conclusions about that risk and paragraph 44 (a) merely repeats the contents of the 2015 letter.
  74. Ms van Overdijk's submission in the Amended Grounds, therefore is that:
  75. "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."
  76. The first contention in that submission would be reasonable were this not a suicide case but misses the point as it is. The second contention fails to grapple with the conclusion in GJ that facilities in Sri Lanka were inadequate to deal with a suicide risk even if the Claimant's case is distinguishable from the third appellant's in GJ.
  77. In her skeleton argument, Ms van Overdijk contends that Professor Katona's conclusion that the Claimant is at risk of suicide is not dependent upon the diagnosis of any specific mental illness and, thus, there are serious reasons to doubt the veracity (her word) of his conclusions on suicide risk. First, in my judgment, that submission effectively ignores that the absence of a diagnosis of specific mental illness does not mean that such an illness does not exist and ignores the finding of significant cognitive impairment which prevents such a diagnosis. Moreover, it assumes that a suitably qualified psychiatrist is not able to conclude that there is a suicide risk without a diagnosis of a recognised mental illness. Analysed in that way it becomes clear that Ms van Overdijk is contending that the Secretary of State is entitled, without psychiatric evidence and with the sparsest of reasons, to depart from the conclusion of an experienced expert witness, something, it may be added, that the Secretary of State signally did not purport to do before permission was granted.
  78. Further, Ms van Overdijk submits that Professor Katona fails to explain the clinical nexus (if any) between the "non mental health related" cognitive impairment and the alleged risk of suicide. I am not clear of the significance of the cognitive impairment being alleged to be "non mental health related" but Professor Katona sets out at 4.4 and 4.6 a specific history which would, taken alone, justify his conclusion about the suicide risk and I do not understand why there is any necessity to specify a nexus between the cognitive impairment and the suicide risk. Paragraph 12 of the Defendant's skeleton argument appears to me to be second guessing an experienced psychiatrist. In any event, it seems to me to be very obvious that if a significantly cognitively impaired Claimant is returned to Sri Lanka where he has no support, the risk of his not seeking even those inadequate mental health facilities which are available is very obvious.
  79. I accept Ms van Overdijk's oral argument that, in respect of the depressive symptoms and anxiety noted by Prof. Katona, there are facilities to treat those conditions in Sri Lanka, as the Secretary of State outlined in detail in her first letter. But it is, in my judgment, a very different matter whether there are sufficient facilities to deal with the suicide risk found by Prof. Katona to exist in this Claimant.
  80. Ms van Overdijk posed, in oral argument, what she contended was the crucial question on this review, namely, "Was the Secretary of State reasonably entitled to conclude that if the Claimant was returned to Sri Lanka his medical condition cannot be reasonably managed?"
  81. In my judgment, that is the question which, in the first and second decision letters the Secretary of State posed for herself but it is not the real question, which is, rather, "Is there a realistic prospect that an immigration judge would conclude on the evidence presented in the fresh representations, including Professor Katona's report that if the Claimant was returned to Sri Lanka his risk of suicide could not be reasonably managed?"
  82. In my judgment, without her own medical evidence, while it might faintly be argued that the Secretary of State was not irrational in herself concluding that there was not a significant risk of suicide (and it is unnecessary for me to reach a conclusion on that), it is irrational for the Secretary of State, standing back from her own decision, to conclude that there was not a realistic prospect that an immigration judge would accept Prof. Katona's conclusion and feel bound by the country guidance in GJ and decide that the Claimant's risk of suicide could not be reasonably managed in Sri Lanka. In my judgment, the Secretary of State comprehensively missed the point of the Claimant's argument in her 2013 letter and that fact was recognised in the 2015 letter by a belated attempt to undermine the conclusions of Prof. Katona.
  83. I accept Mr Chirico's arguments on the Article 3 point and I conclude that the Secretary of State's conclusion that on that point, the Claimant had no realistic prospect of success before an immigration judge, was irrational and unlawful.
  84. SUBMISSIONS ON THE ARTICLE 8 GROUND

  85. In a sense, having regard to my finding on the article 3 ground, the article 8 argument is redundant, posited as it is on the basis that the article 8 ground has substance even if the article 3 ground is rejected. However, in deference to the arguments put before me I will deal with it as briefly as I can.
  86. The Deputy Judge summarised the position on article 8 in paragraphs 24 and 25 of his judgment. He considered it arguable that, while the Secretary of State had considered separately, various elements of private lime and mental health, she has not considered them cumulatively.
  87. Mr Chirico contends that in both decision letters, the Secretary of State has looked in detail at various factors, namely, length of residence, the legacy history, the claimant's mental health and his suicide risk, but has not looked cumulatively. I am unpersuaded by that argument.
  88. Mr Chirico then contends that the Secretary of State has erred in an implicit finding that the Claimant did not meet the requirement of 276 ADE (vi) that 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". It would, no doubt, have been clearer had the Secretary of State considered again at that point in the second decision letter the Claimant's mental health issues and his cognitive impairment which must surely feed into his capacity to integrate. Moreover, the reasoning that because the Claimant has been granted assisted accommodation on the ground that he is destitute it is likely that his assertion that he has a strong support network in the UK is wrong looks rather stretched. I am unable to conclude that the Secretary of State' conclusion that the article 8 claim, considered alone, did not have realistic prospects of success before an immigration judge, was irrational.
  89. However, I am, for the reasons I have given above, satisfied that the Secretary of State's conclusion that on the basis of the fresh representations relating to the Claimant's suicide risk if returned to Sri Lanka, he had no realistic prospect of successfully arguing before an immigration judge a breach of his article 3 rights was irrational and I quash the decisions contained in the letters of 31 October 2013 and 24 March 2015.
  90. As I have indicated to the parties at the hearing, if they can agree an order dealing with all ancillary matters, I shall excuse any attendance at the handing down of this judgment and I will make the order in the terms agreed by the parties. If agreement on the wording of the order cannot be achieved or if there is any ancillary matter which requires oral argument I shall simply hand down this judgment and order that a date be fixed for a short oral hearing.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3574.html