Philip Mott QC:
- The Claimant, a Sri Lankan Tamil refugee with a right of residence in the UK, seeks to prevent the Defendant removing her brother to Germany as a safe third country which has accepted the responsibility of dealing with his asylum claim under the provisions of the Dublin II Regulation. She does so on the basis that his removal will breach her rights as a refugee because of the likely effect on her mental health.
- For reasons which appear in this judgment I conclude that her claim must fail.
Factual Background
- The Claimant is a Sri Lankan of Tamil ethnicity born on [a date in] 1976, now aged 38. Her brother JT was born on [a date in] 1980, and is now aged 32.
- The Claimant arrived in the UK in September 2008 and claimed asylum on the basis that she feared persecution in Sri Lanka from the LTTE and the Sri Lankan authorities. Her asylum statement dated 15 November 2008 catalogues the loss of a number of members of her family and the horrific treatment she herself received in Sri Lanka. She escaped Sri Lanka and arrived in the UK believing herself to be the only surviving member of her immediate family.
- She was given leave to remain as a refugee by letter dated 5 February 2010, effective from 18 January 2010, following a successful appeal to the Asylum and Immigration Tribunal. The Immigration Judge set out his findings at length. Wherever the Claimant's credibility was challenged, in at least eight respects, he found in her favour (see paragraphs 5.2, 5.5, 5.7, 5.8, 5.10, 5.11, 5.12 and 5.17).
- The Claimant's brother JT arrived in the UK on 2 August 2010. This followed contact with the Claimant by an uncle who lives in Canada. JT claimed asylum on 4 August 2010. Investigations by the UKBA disclosed that he had previously claimed asylum in Germany in 2006. He asserted that he had left Germany the same year, had gone to Korea, and had been returned from there to Sri Lanka. If true, he would not have been liable to return to Germany under the terms of the Dublin II Regulation. His assertions were rejected both by the UK and (it would appear) by Germany, which accepted Dublin II responsibility on 18 August 2010. Accordingly Removal Directions were set following a refusal of JT's asylum application on safe third country grounds.
- JT sought to challenge this decision. The basis of challenge was initially limited to the assertion that he had been away from Germany for such a period that its obligations had ceased by virtue of Article 16(3) of the Dublin II Regulation. Permission was refused on consideration of the papers.
- At a renewed oral hearing, on 15 July 2011, there was added a late challenge to the Secretary of State's decision to reject JT's Article 3 claim, based on his own mental state and the effect of removal on him. Permission was refused.
- JT then changed his counsel and was represented by Ms Jegarajah, who has appeared for this Claimant before me. She drafted an application to the Court of Appeal for permission to appeal. Permission was refused by Pill LJ on paper, and renewed to an oral hearing before Toulson LJ on 21 November 2011. The application was again refused.
- On the same day, 21 November 2011, the Claimant wrote a letter to the Secretary of State begging her to consider JT's asylum claim in the UK. The letter painted a picture of the Claimant as the necessary carer of a vulnerable younger brother in poor physical and mental condition. Nothing was said in that letter about her own mental state or the likely effect on her of her brother's removal to Germany. That plea was rejected. Further Removal Directions were issued on 25 November 2011 for JT to be returned to Germany on 5 December 2011.
- The next step was that the Claimant issued these proceedings on 1 December 2011. They were supported by a witness statement from her dated 28 November 2011 and a psychiatric report from Dr Raj Persaud of the same date, written after an examination of the Claimant that day. I shall deal with the medical evidence later in this judgment. It was sufficient to persuade Mitting J on 2 December 2011 to stay JT's Removal Directions on an application for urgent consideration on paper. He said this:
"This may be one of the very rare cases in which the removal of an adult sibling will infringe the right of the other adult sibling to respect for her private and family life under Article 8. The claimant's mental state is clearly fragile. It results, at least in part, from horrifying experiences in Sri Lanka, about which her evidence was accepted to be true by an immigration judge. Dr Persaud's opinion that she urgently requires treatment and poses a serious risk of suicide if her brother is removed cannot lightly be dismissed. Although this is a last ditch attempt to prevent the removal of an adult to an obviously safe country, Germany, it is not obviously an abuse of the process of the court."
- The Defendant responded to the claim, both in a letter dated 20 January 2012 and in an Acknowledgement of Service and Summary Grounds dated 23 January 2012. I deal later with the basis of challenge. It was considered on paper by HHJ Behrens on 30 March 2012 when he granted permission and ordered this hearing.
The Nature of the Claim
- The Claimant's Grounds asserted that the removal of her brother "amounts to inhuman and degrading treatment" of her. Those words of course are taken from Article 3 of the ECHR. The basis for that assertion was the risk that his removal would cause her to commit suicide.
- In Amended Grounds and a skeleton argument for this hearing it was asserted that "The removal of the Claimant's brother places the UKBA in breach of the Article 3 and 8 rights of a recognised refugee".
- At the hearing before me, Ms Jegarajah initially put her case very much more broadly, and boldly. She submitted that the claim could and should be decided on the basis of obligations imposed on the UK by the EU Council Directive 2004/83/EC on minimum standards for the qualification and status of third-country nationals as refugees ("the Qualification Directive"). For that reason, she submitted, the established tests for Article 3 challenges on the basis of suicide risk were not applicable, either directly or by analogy. The obligation to protect a refugee from harm, she said, overrode the public duty to effect proper immigration control by returning JT to Germany.
- After further consideration she accepted that this was in effect an ECHR claim, but maintained that it was not merely a suicide risk case. The threshold for Article 3, she submitted, is a flexible one and the anxiety and stress caused by JT's removal to Germany would be enough to trigger it in the case of a refugee like the Claimant who has already suffered so much. She pointed out that the Defendant has a discretion under the Dublin II Regulation to determine JT's asylum claim here.
The Defendant's Case
- In a letter dated 20 January 2012 the Defendant raised two grounds of defence. First, it was not believed that the Claimant's claims about her mental condition were genuine, as they had only arisen after JT's own challenge to removal had failed. Secondly, and in any event, the letter asserted that there would be no disproportionate interference with the Claimant's Article 8 rights for JT to be removed to Germany.
- In essence, the same points were raised in both the Summary and the Detailed Grounds of Defence. In the first place, the claim was said to be not genuine, and an abuse of process. But in any event, it was asserted that the matters relied upon by the Claimant failed to meet the high threshold set by the law for Article 3 claims based on suicide risk, or for a disproportionate interference with Article 8 rights.
- There was a further letter from the Defendant of 20 March 2013, which again rejected any claims under Articles 3 or 8 by the Claimant.
- Before me, Mr Sanders raised a preliminary point as to the nature of the claim and the court's role in determining it. He submitted that this is not a challenge to a decision directly affecting the Claimant, and thus not an attack on the rationality or lawfulness of any decision letter directed to her. The decision under attack is the setting of Removal Directions for JT dated 25 November 2011, but the basis of attack is that it amounts to a collateral breach of her human rights. The letter of 20 January 2012 was not a decision letter, nor was the more recent one of 20 March 2013.
- As a result, he submits, the court is not considering whether a decision was the product of a defective process, as traditionally arises in judicial review proceedings. The court must adopt a more intensive review and make a value judgment on the alleged breach of human rights. Mr Sanders cited R (SB) v Governors of Denbigh High School [2007] 1 AC 100, at paragraphs [29] to [31], and Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420, at paragraph [31]. Ms Jegarajah did not dissent from this analysis, but reminded me of the power to transfer proceedings for disputed evidence to be heard if appropriate.
- Mr Sanders also submitted that this application was an abuse of process. It is well established that the ECHR rights of extended family members can and should be raised in the challenge of the person to be removed, not in separate proceedings which will only cause further delay. He cited Beoku-Betts v SSHD [2009] 1 AC 115. This is of course correct. Ms Jegarajah's response was that the likely effect on the Claimant's mental health only became known after the decision of Toulson LJ put an end to JT's challenge.
The Qualification Directive
- The EU Council Directive 2004/83/EC of 29 April 2004 has as its main objective, according to paragraph (6) of the Preamble, "to ensure that member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for those persons in all Member States".
- Ms Jegarajah relies on Article 7 as imposing on the UK a duty to protect the Claimant to such an extent that it overrides the duty to enforce immigration control in relation to her brother. She submits that it is an absolute duty which provides a complete justification for the present claim.
- Article 7 provides as follows:
"Actors of protection
1. Protection can be provided by:
(a) the State; or
(b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.
2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.
3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts."
- The wording of Article 7 does not at first sight appear apt to cover an overriding duty on the relevant Member State to provide protection for someone to whom it accords refugee status. That instinctive reaction is, in my judgment, borne out by a closer examination of the Directive.
i) In the Preamble, paragraph (6) states that "The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for those persons in all Member States". Article 7 is part of Chapter II headed "Assessment of Applications for International Protection", and is directed at the criteria for identifying refugees, not at their treatment after such identification. The second objective of the Regulation is dealt with in Chapter VII, from Article 20.
ii) Paragraph (17) of the Preamble states that "It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention". Paragraph (18) continues, "In particular, it is necessary to introduce common concepts of protection needs arising sur place [which is dealt with in Article 5]; sources of harm [Article 6] and protection [Article 7]; internal protection [Article 8]; and persecution [Article 9], including the reasons for persecution [Article 10]".
iii) Article 2 defines a refugee as "a third country national who, owing to a well- founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country ...". It follows that "protection" in Article 7 refers to protection of the country of nationality, not protection of the Member State after recognition of refugee status.
- In any event, the Qualification Directive is not directly applicable in domestic law. Parts have been brought into effect by regulations, and other parts by changes to the Immigration Rules. Article 7 is reflected in regulation 4 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Regulation 1(2) provides that they apply to any application for asylum which has not been decided. That fits in with the structure of the Directive, that the definitions in Article 7 relate to the process of assessing an asylum claim, and shows that the provisions impose no special or additional duty of protection on the UK after refugee status has been granted.
- I therefore reject Mr Jegarajah's primary submission that Article 7 of the Qualification Directive is sufficient in itself to make out the Claimant's case. I turn now to consider the law in relation to Article 3 of the ECHR and suicide risk.
Article 3 and suicide risk
- It is well established that a risk of suicide by reason of removal from the UK can give rise to a breach of Article 3 if the removal goes ahead. The leading authority is J v SSHD [2005] EWCA Civ 629. Paragraphs [26] to [31] set out six tests to be applied.
- I am willing to assume, without deciding, that the same principles can apply with appropriate modifications in a case such as this, where the risk is not to the person being removed but to his sister. In such a case, where the potential victim will remain in the UK, it must be a "domestic case", so that the specially high threshold set out in the third test does not apply.
- The key tests here would be the fifth and sixth, adapted as follows to the facts of this case:
i) In deciding whether there is 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 [of her brother] in the receiving state [Germany] upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of Article 3.
ii) A further question of considerable relevance is whether the [UK] has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate her Article 3 rights.
- To the fifth principle (sub-paragraph (i) above) may be added what Sedley LJ said in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362, at paragraph [16], "that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return".
- In assessing the claim against these tests, it is well established that I am both entitled to and should presume that the UK will provide proper mental health treatment and facilities for the Claimant (see, for instance, J at paragraphs [57] and [67]).
Article 8
- In the absence of a valid Article 3 claim, it would be surprising to find that any Article 8 claim could succeed. I note that a concession to that effect was made by leading counsel for the Claimant in Tozlukaya v SSHD [2006] EWCA Civ 379, at [75].
- In the present case it would be particularly surprising, as the relevant interference would only be for a limited period whilst Germany assesses and decides on JT's asylum application. Any longer term interference with the Claimant's human rights must be a matter for Germany to consider as part of JT's claim. During that limited period the Claimant will be able to maintain her family or private life with her brother by visiting Germany.
- Ms Jegarajah wisely accepted that this is so, and did not seek to argue any freestanding Article 8 challenge. I therefore do not need to consider whether it would amount to an abuse of process for this to be raised in separate proceedings, rather than as part of her brother's judicial review challenge. My preliminary view is that any such claim, relying entirely on matters known prior to 21 November 2011, would have been an abuse of process.
The Claimant's Evidence
- There is no doubt that the Claimant suffered serious abuse and torture whilst in Sri Lanka, and that her mental health has been affected by this. But there was no hint that these problems might be relevant to the removal of her brother to Germany until after the final rejection of his own challenge on 21 November 2011.
- There are three relevant documents from the Claimant:
i) On 12 July 2011 she signed a witness statement for use in her brother's proceedings. It says that he has been living with her since August 2010, that he cannot cope on his own and is dependent on her, that he has tried to take his own life on two occasions, and that she is concerned that he will commit suicide if returned to Germany. There is nothing in the statement to say that she has felt suicidal at the prospect of his return.
ii) On 21 November 2011 she signed a letter to the Defendant appealing for her brother not to be sent back to Germany. It sets out her fear that this will lead to him taking his own life, that he will not be cared for, and that his mental and physical condition will deteriorate. There is no suggestion that her mental state would be affected.
iii) On 28 November 2011 she signed a statement for the purpose of her own judicial review application. It sets out her experiences in Sri Lanka, with the anxiety and suicidal ideation those caused her then. It describes the poor mental state of her brother, her fears that he would attempt to take his own life, and his attempt at self-harm after arrest in November 2011. Paragraph 28 asserts that during her brother's period in detention (between August and December 2010) she was prescribed strong medication for anxiety and panic attacks. I am told that this is not borne out by any medical evidence. There is no assertion that she has felt suicidal, either then or since his further arrest on 16 November 2011.
- There is no further direct evidence from her, and in particular no evidence that she currently has suicidal ideas or feelings. Mr Sanders relies on this in support of the Defendant's case, especially as the genuineness of the Claimant's assertions has been in issue since at least January 2012.
The Medical Evidence
- It is appropriate at this stage to examine the medical evidence. It all comes from the Claimant. The Defendant has not sought to have her examined separately.
- Dr Persaud's first report of 28 November 2011 sets out the abuse and torture which the Claimant had been subjected to before her arrival in the UK. It diagnoses a serious psychiatric disorder, likely to involve a combination of anxiety, depression, bereavement and PTSD. That already carries with it heightened suicide risks, but these will be exacerbated by the removal of her brother.
- The report appears to have been produced on a misunderstanding that her brother was at risk of being forcibly removed to Sri Lanka. This must be what is meant by "country of origin" on page 2 of the report, and in one place there is express reference to removal to Sri Lanka.
- It is also clear that Dr Persaud encountered difficulties in his assessment. His first report contains the following relevant passages:
i) "I would have liked to continue the assessment but my determination was the client was finding the interview too stressful and I had to terminate at that point."
ii) "She was unable, due to extreme emotional upset during the interview, to discuss these various incidents in any more great detail, but these traumatic events, from the details of which we do have, would contribute to PTSD, depression, anxiety and suicidality." [This must refer to what happened to her in Sri Lanka]
iii) "The patient becomes upset when trying to recall this past and this doesn't assist in an attempt to grasp what she suffered. She also at times demonstrates a kind of passivity, withdrawn and ambivalent attitude to discussion of past and current events. This kind of temporary detachment is a symptom seen in sufferers from Post Traumatic Stress Disorder and could be a kind of coping response to extreme trauma in the past."
iv) "In my opinion given the caveats of the limited time I have had to make an assessment of this woman combined with her getting very upset and being unable to properly answer some questions as well as the lack of many informants to corroborate her testimony as to events that befell her, it is possible to form an opinion to the extent of the following."
- Nevertheless, the following passages are particularly relevant to the question of suicide risk:
i) "... the realisation that he is in all likelihood to be forcibly removed means that her mental health has suffered another blow. The likelihood is that she would not recover from this very upsetting event. It would in all probability have catastrophic consequences on her mental health in terms of making it impossible for her to recover or it could precipitate a serious suicide attempt in her."
ii) "... her mental state improved when she heard that her brother had been found and indeed had arrived in the UK. Her mental state improved to the extent that she managed to get a job and was doing well at this. She works as a supervisor of hotel housekeeping. But since the news that her brother might now be forcibly returned to Sri Lanka her mental state has deteriorated dramatically and she is in danger of losing this job. She cannot concentrate, is frequently tearful and bursts into tears spontaneously and unpredictably which makes work difficult."
iii) "She is convinced that if her brother was removed from the UK his safety would be in serious question. This arises out of her personal experience and that of what has happened to the rest of her family. The authorities appear to have been convinced she was a collaborator with the LTTE and other anti- government organisations. Her torture at their hands also leads her to believe that her brother is likely to experience a similar fate should he be returned." [presumably to Sri Lanka]
iv) "During the time that she has learned that her brother may be forcibly returned her suicidality has been strongest, and she contemplated doing away with herself. This is because she cannot bear the prospect of him being removed from her care."
v) "She was adamant that a removal of her brother from her care was not something she could face and suicide would be a prospect. She felt that killing herself was a better outcome than having to cope without him, or to endure further bad things happening to him, which she feels would happen if he was returned."
vi) "She is adamant that should she discover her brother is going to be forcibly deported she will kill herself rather than face the prospect of losing her brother again. She is preoccupied with this eventuality."
vii) "My assessment is that suicide is very possible in this patient as a result of a combination of factors. She is extremely fearful of fatal consequences that could befall her brother should he be forcibly removed from the UK, and she has had extended contact with those who have viewed suicide as a solution to problems, due to the widespread nature of how suicide is embedded in the culture of Sri Lanka."
viii) "A key factor in her suicidality is despair over the prospect of her brother's forced removal from the UK. She is preoccupied that should he be removed he would suffer isolation, threats and assaults and also would be unable to look after himself. She feels her previous experience is of random and casual maltreatment at the hands of the authorities and this underlines her low expectation for his survival."
ix) "It follows ... that there is a real question about her psychiatric fitness to survive should her brother be forcibly removed from the UK. I understand she has never had specialist NHS psychiatric treatment for the depression and PTSD. I believe the shock of the outcome of what fate may have befallen close relatives and friends is also affecting her ability to confront her current predicament."
x) "She has suicidal thoughts of a serious nature in terms of intent and plans. She has been exposed to extreme methods of suicide in the past. Sri Lanka is a country where various anti-government groups deployed suicide bombing more than practically anywhere else in the world and the population already had the reputation outside of the war as suffering one of the highest suicide rates in the world."
xi) "... it follows that she would be regarded as a candidate for urgent psychiatric and psychological treatment by most health services and that she should receive such treatment and a re-assessment made about her suicide risk. It is unlikely in my opinion that anything could be done to save her mental health should her brother be forcibly deported however."
xii) "Given how hopeless this client is about her and his [her brother's] prospects should he be removed from the UK I believe there is a very high risk of suicidal behaviour or an actual suicide. For clients with this level of psychiatric disorder to recover from suicidality, they have to gain some hope for the future. It's not clear what hope for the future this client could have should her brother be removed from the UK, given her current level of conviction about the catastrophic nature of the consequences."
- In the light of the strong recommendation for urgent psychiatric and psychological intervention, it is surprising that there appears to have been no contact with the mental health services until 23 April 2012, some five months later. The suggestion that it took that time to obtain a first appointment is also surprising, given the findings of Dr Persaud, and there is no evidence to support it.
- She was assessed as to her suitability for cognitive behavioural therapy, but at the end of May 2012 was found to be unsuitable because of the complexity of her issues. She was then referred to the local Assessment Team and started treatment on 2 July 2012. There is a report from Dr Adefope dated 19 July 2012. It details depressed mood, intermittent suicidal thoughts, poor sleep, nightmares, flashbacks, anxiety, irritability and palpitations. These "have been exacerbated by her fear that her brother might be deported to Germany because he does not have the right to remain in the UK". The report continues:
"It is very obvious that the deportation of her brother, were it to happen, would have a very severe and detrimental impact on her mental health. I would be concerned that [T]'s feelings of loss, hopelessness and helplessness would be intensified and the risk of her becoming actively suicidal would dramatically increase."
- Dr Adefope notes that she is currently being treated with psychotropic medication, and will continue to be regularly reviewed in the outpatient clinic. It is not clear from the report whether he had ever seen the Claimant personally, when or for how long.
- Dr Persaud saw the Claimant again on 3 September 2012. His second report bears the same date, and it is clearly heavily based on his first report. Indeed, the majority of it is a repetition of the first report, with only a few minor changes to make it consistent with the brother being returned to Germany rather than to Sri Lanka. Mr Sanders provided a useful schedule comparing the altered passages, which I need not reproduce here.
- As a result, some of Dr Persaud's comments become difficult to follow. For example, the quotation set out in paragraph 44(iv) above has become:
"During the time that she has learned that her brother may be forcibly returned her suicidality has been strongest, and she contemplated doing away with herself. This is because she cannot bear the prospect of him returning to Germany and being harassed or tortured again - which she is convinced will happen."
- It may well be that Dr Persaud was unaware, even in September 2012, that the Claimant's brother was only to be removed to Germany for his asylum claim to be determined. He may have understood that the removal to Germany was only the first step in an inevitable return to Sri Lanka. The proposition that JT would be harassed or tortured again, if it is intended to apply to his time in Germany, is irrational, especially as he had lived safely in Germany for about four years prior to August 2010.
- It would therefore have been useful if Dr Persaud had investigated whether this conviction that JT would be harassed or tortured again represented a misunderstanding of the position by the Claimant or a fixed irrational view arising from her mental state. It would also have been helpful to have some assessment of the prospect of moderating any such view by therapy.
- In addition, in his second report Dr Persaud recounts an alleged suicide attempt "two months ago with an overdose of medication but she had not confided this in the professionals who have been seeing her so they seem to be unaware. This suicide attempt lead [sic] to a visit to the local accident and emergency department of the local hospital". It is accepted by the Claimant that there is no record of this visit in her medical notes. Two months prior to Dr Persaud's second report would have been early July 2012, just prior to Dr Adefope's report.
- Dr Persaud's opinion now includes the following additional comment:
"(12) The treatment she continues to require should involve specialist intervention - in particular treatment which is based on expertise on the aftermath of complex bereavement, the severe trauma of now knowing fully or being in denial over what has happened to her relatives. She has also had contact with others who are suicidal, given the high number of suicide bombings prevalent in this war. This in my opinion permanently elevates her suicide risk given the embedded nature of suicide in her culture, no matter what intervention is subsequently tried."
Discussion
- It is not surprising that the Defendant is sceptical about the value of the medical evidence. There is ample material for cross-examination, and room for another expert to take a different view. But there has been no Tribunal or other hearing with cross- examination, nor has the Defendant sought a further expert opinion. In these circumstances there is in my judgment no proper basis for rejecting the opinion, or for challenging the genuineness of the Claimant's account at this stage.
- As to the adverse inference sought to be drawn from the timing of her complaints, the answer may be found in the words of Sedley LJ in Y (Sri Lanka) v SSHD, at paragraph [29]: "Hope, however slender, can well alleviate what would otherwise be intolerable stress. Take away the hope and the stress may become unbearable."
- If these issues of credit and credibility might have been determinative of the result, I would have had to consider how they should be resolved. As it is, I can decide the claim on the basis of the evidence taken at its most favourable to the Claimant. In summary, this is that a heightened risk of suicide is a feature of PTSD in general, and her cocktail of mental health problems in particular. This risk was present before her brother's arrival in the UK, and would persist even if there were no question of his removal. However, the stress and anxiety that the prospect of his imminent removal would cause her is likely to provide an enhanced trigger for suicide.
- On the assumption that the realisation of this enhanced trigger has arisen since 21 November 2011, no question of abuse of process arises.
- In the present case the Defendant, in the letter of 20 March 2013 to the Claimant's solicitors, relied on two relevant factors in rejecting the Claimant's human rights claim:
i) "As a refugee in the UK with permission to remain until 26 January 2015, there is no reason why your client should not continue to avail herself of the high standard of health care available in this country in order to treat the diagnosed mental illness she suffers from. Your client has access to the full range of treatment and support available to those with mental health problems in the UK which includes crisis support should your client consider this to be necessary upon the return of her brother to Germany."
ii) "Your client's concerns for her brother's welfare as expressed in the psychiatric reports are also noted. However these concerns are misplaced as Germany is obliged to consider your client's brother's asylum claim under EU law. Moreover the UKBA is satisfied that the German authorities will provide your client's brother with the care, attention and medication that he requires. Your client's concern that her brother will not eat, or receive or take appropriate medication or even self-harm if he were returned to Germany do not amount to a breach of her rights under Article 8 or 3 of the ECHR."
- These passages address the fifth and sixth tests in J, and address them appropriately. The effect of the rejection of JT's challenge also means that this claim must be approached on the assumption that he lived safely in Germany for about four years.
- The effect of any return to Sri Lanka, both on the Claimant and her brother, are matters for the German authorities to consider in accordance with EU law. The common standards imposed by the Qualification Directive will apply. Germany is a safe country which the Claimant's brother knows well. The Claimant will be able to travel to Germany to visit him whilst his asylum claim is being assessed, as is pointed out by the Defendant in the letter of 20 January 2012.
- It follows that any fears she has about her brother's removal to Germany (and I approach this on the assumption most favourable to her, that she does have such fears which are not merely caused by a misunderstanding) are irrational and not well- founded. That means that the fifth test in J must be resolved against the Claimant. Of course I must bear in mind the rider introduced by Sedley LJ, but any genuine though unfounded fear should be capable of being allayed by the Claimant visiting her brother in Germany.
- As to the sixth test in J, the points made by the Defendant are sound. The Claimant is receiving appropriate treatment and is known to her local mental health services. She will not be removed from these by her brother's removal from the UK. They will consist of both GP and psychiatric services. The psychiatric services will include crisis support in the form of an aggressive outreach team of some sort. Further medication can be prescribed if appropriate (she currently takes a standard anti depressant and sleeping tablets). If an emergency arises, she could be admitted to hospital, either as a voluntary patient or if absolutely necessary using the compulsory powers under sections 2 and 3 of the Mental Health Act 1983.
- In my judgment the Claimant fails to reach the high threshold for a valid Article 3 claim. Removal of her brother to a safe country for a limited period pending the proper determination of his asylum claim may well increase her anxiety, and this in turn may require heightened vigilance to monitor the ever-present suicide risk, but it is insufficient to amount to inhuman or degrading treatment.
Increased Anxiety
- In reply, Ms Jegarajah sought to argue that the requirements of Article 3 could be met by the increase in anxiety and stress for someone who has already suffered as much as this Claimant has.
- She drew my attention to a number of recent decisions of the ECtHR, but none seem to me to assist. They relate to cases where the State has acted improperly (Celik v Turkey); or has failed to act when it should have (Salakhov v Ukraine; Valiuliene v Lithuania); or where there was insufficient assurance of the treatment by the receiving state (Aswat v UK). These are very different from the present case, where both the UK and Germany may be presumed to act appropriately and provide appropriate treatment both for the Claimant and her brother. They do nothing to undermine or change the established tests in J.
- Ms Jegarajah also pointed to the fact that the UK has a discretion under Article 3(2) of the Dublin II Regulation to determine the brother's asylum claim here. Of course that is right. But it would be wrong for this court to direct or indicate how that discretion should be exercised. As was made clear in EW v SSHD [2010] EWCA Civ 508 at [16], there are very sound reasons why the discretion should not be exercised too readily, and in any event it is a discretion for the Secretary of State to decide, not for the court.
Conclusion
- For these reasons I reject the Claimant's submissions that the removal of her brother to Germany would amount to a breach of her rights under the ECHR. Whilst I have concluded that the Defendant's rejection of that claim on the ground that the Claimant's mental health complaints were not genuine cannot be supported, the result is the same and the Claimant's challenge must fail.
- Having read a great deal about the atrocities to which this Claimant has been subjected, and the family tragedies which have befallen her, it is impossible not to have considerable sympathy for her, and to wish that the additional strain of having to wait for her brother's asylum claim to be determined in Germany could be taken from her. But the discretion to effect that by determining his application here is that of the Secretary of State, and not a matter for this court.
