Secretary of State for the Home Department v AE & Anor Sri Lanka [2002] UKIAT 05237
APPEAL No. HX/17516/2001; CC/12439/2001
(STARRED)
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 10 July 2002
Date Determination notified: 12 November 2002
Before
The President, The Hon. Mr Justice Collins
Mr. C.M.G. Ockelton
Mr. K. Drabu
Between
SECRETARY OF STATE FOR THE HOME
DEPARTMENT
|
APPELLANT |
and
|
|
| A.E. and F.E. |
RESPONDENT |
For the Appellant: Ms Lisa Giovannetti
For the Respondents: Mr Raza Husain
DETERMINATION AND REASONS
- The respondents in this case are husband and wife,
aged 51 and 41 respectively. They are Tamils from Sri Lanka. They arrived
separately in the United Kingdom, the wife and their four children in early
1999 and the husband in July 1999. Each claimed asylum. The wife was
interviewed on 20 February 2000 and her claim was refused on 29 March 2000,
about a year after she had made it. Her husband made his claim on 6 July 1999
but failed albeit by only a few days to submit the required SEF. For some
reason, it took until 15 September 2000 for his claim to be rejected on the
grounds of non-compliance with his obligation to submit a SEF.
- Each respondent appealed to an adjudicator. The two
appeals were separate. However, they were heard together pursuant to Rule 42
of the Procedure Rules and the adjudicator (Richard McKee) gave determinations
which were identical (save for the heading) for each. The appeals, which
related only to the asylum claims since the refusals had in each case been
made before 1 October 2000, were allowed. The adjudicator's determinations
were promulgated on 26 June 2001. On 9 August 2001 the appellant was given
leave to appeal. Unfortunately for various reasons including a change of
representatives and illness which required an earlier hearing date to be
vacated the appeals could not be heard until 10 July 2002. Further delay has
resulted from the incidence of the long vacation and the President's
involvement with SIAC hearings. It is regretted.
- The adjudicator allowed the appeals on the basis
that the husband had a well-founded fear of persecution in the north of Sri
Lanka where the family had lived because of his involvement with the LTTE and
evidence which the adjudicator accepted that when he left Sri Lanka the army
was looking for him. He had been detained and tortured in 1998. He was
released following the payment of a bribe but resumed his activities on behalf
of the LTTE. These were at a low level involving provision of transport (he
had a small transport business) but the army got to know what he was doing and
came looking for him. The wife had no well-founded fear of persecution
herself. The adjudicator allowed the appeals on the basis that it would be
unduly harsh to expect the family to relocate to Colombo even though neither
husband nor wife were reasonably likely to be persecuted there. This was
because of psychiatric evidence that the wife was suffering from major
depression and post traumatic stress disorder (PTSD) resulting from her
experiences with the army in Sri Lanka. We shall in due course set out the
relevant circumstances in greater detail.
- In his grounds of appeal, the appellant sought to
rely on a tribunal determination Antonipillai (16588: 12 July 1998) to
support his contention that the wife's mental condition was not such as
justified the adjudicator's conclusions. In granting leave to appeal, the
President indicated that that determination needed reconsideration since it
might be unduly restrictive. Accordingly, it was anticipated that this
decision would be starred.
- We must now set out the salient facts as found by
the adjudicator. Since 1987 the husband had been assisting the LTTE on and off
by the provision of transport and the wife had done some occasional cooking
for them. In January 1998 he was arrested by the army and was kept in
detention until June 1998 when he was released following the payment by his
wife of a bribe of 50,000 rupees. Whilst in detention, he was severely
ill-treated, being punched, kicked and beaten with plastic pipes. A medical
report from a Dr Nandi recounted that the husband had said that his hands had
been placed on a table and repeatedly struck with a sand-filled pipe and on
one occasion his left hand had been cut by a bayonet. He had scars consistent
with his account of the treatment he had suffered. Following his release, he
was reluctant to assist the LTTE any further, but in September 1998 he resumed
his activities because he feared that otherwise his eldest son, by now 16,
would be recruited instead. In January 1999 the army came looking for him but
he had gone into hiding. The army molested and assaulted his children and,
according to his wife's answers in interview, 'tried to be funny and had
sexual harassment' to her. She did not then allege that she had been raped.
Fear of further visits by the army led to the decision to leave Sri Lanka. The
family went to Colombo, managing to avoid road blocks, and with the help of
agents, made their separate ways to the United Kingdom. The husband had to
remain in Colombo after his wife and children had left. He stayed with and was
assisted to find an agent by a cousin.
- The adjudicator was considering the situation in Sri
Lanka as at 31 May 2001. It has changed since then following the recent cease
fire which seems still to be holding. The adjudicator's conclusion is set out
in these words: -
"There is a serious possibility that the Security forces in the
Jaffna area will remember him if he returns, even after a gap of more than 2
years. He has a current well-founded fear in the north of the
island".
That conclusion is now unlikely to be correct. However, the appellant did
not seek to challenge it before us and the respondents' counsel was not
required to consider it. In the circumstances, we are prepared to accept the
adjudicator's conclusion and to approach this appeal on the basis that the
husband has a well-founded fear of persecution in his home area, namely the
north of Sri Lanka. But, as we have already noted, the adjudicator made no
such finding in relation to the wife and decided that neither was reasonably
likely to be persecuted in Colombo. The husband's scars, though visible, were
not likely to be material since his age was such as not to put him at risk of
being rounded up nor would he be likely to be interrogated on return. These
findings have not been challenged and they are undoubtedly correct in the
light of the present situation in Sri Lanka.
- What led the adjudicator to allow the appeals was
the psychiatric condition of the wife. He relied on a report by Dr. Stuart
Turner dated 21 November 2000. This was based on an interview "which took
place on 17 October 2000 and lasted for about an hour". Dr. Turner had a copy
of the wife's asylum interview and there was an interpreter present. He has
considerable expertise in dealing with patients who have suffered reactions to
traumatic stress, being a consultant in the Traumatic Stress Clinic which is a
national referral centre in the NHS for traumatic stress reactions. He has an
impressive curriculum vitae. The adjudicator's comment that he is an
acknowledged expert in the field may well be correct.
- However, his expertise and qualifications do not
necessarily mean that his views must be accepted without question. The I.A.A.
is accustomed to receiving reports from psychiatrists which indicate that the
asylum seeker in question is suffering from depression or PTSD or both. That
there should be a large incidence of PTSD in asylum seekers may not perhaps be
altogether surprising, although we are bound to comment that what used to be
considered a relatively rare condition seems to have become remarkably common.
Asylum seekers may be found not to be refugees and in many cases accounts when
tested before adjudicators are found to lack credibility. But many who try to
come to this country have suffered at least deprivation and poverty and may
well have suffered ill-treatment or discrimination which does not amount to
persecution or persecution for a Convention reason. They are all desperately
anxious not to have to return to their country of origin and may well have
spent large sums of money they and their relations can ill afford to get here.
It is hardly surprising that they should suffer at least depression so long as
their situation is not settled and there is a real chance that they may be
refused entry and returned. In this case, Dr. Turner notes that PTSD can be
treated effectively but that such treatment may not be effective when the
individual feels insecure and there is a risk of return. He suggests that the
wife be given exceptional leave to remain so that she can have treatment, but
that will not resolve the uncertainty or the risk of eventual return.
- The adjudicator refers to Dr. Turner's 'long and
careful examination'. We are far from persuaded that that is an apt
description of an examination which lasted for about an hour and which was not
assisted or followed up by a sight of her General Practitioner's notes. Dr.
Turner says: -
"She told me that she gets some tablets from her general
practitioner but hadn't got these with her".
He examined her in October 2000. The hearing before the adjudicator was in
May 2001 and before us was in July 2002. No further medical evidence was
forthcoming and in particular no indication was given that any treatment had
been sought or provided. Dr. Turner does not seem to have been asked to pursue
the matter any further.
- Doctors generally accept the account given by a
patient unless there are good reasons for rejecting it or any material part of
it. That is not and is not intended to be a criticism. There is no reason why
a doctor should necessarily probe the history or approach his patient's
account in a spirit of scepticism. But this does mean that the doctor's
conclusions will sometimes be seen to be flawed if it transpires that the
account is not credible. That is not the position here, but it illustrates the
danger of uncritical reliance on in particular psychiatric reports. In this
case, Dr. Turner records that he did ask why she had not disclosed the rape in
interview. Her explanation that there was an interpreter present was hardly
persuasive since there was an interpreter present when she was being seen by
Dr. Turner. Nor does her explanation that her solicitor had told her to tell
the truth carry great weight: she must have appreciated the need to tell the
truth at all stages. Dr. Turner comments that her mental state was such that
it was entirely understandable that she should not have mentioned the rape and
added to this were the cultural inhibitions. This reasoning has not been
tested. However, she did, it seems, break down when the issue was raised
before the adjudicator (see Paragraph 8 of his determination). The adjudicator
accepted that she had been raped and in all the circumstances we do not
believe that we should do other than accept that finding.
- Dr. Turner recommended that she should undergo
treatment. He says: -
"She seems to be on some form of medication, although this was
not available to me. It may be that much more could be done to improve her
drug treatment regime".
There is no evidence that anything has been done to follow up this
recommendation or the alternative psychiatric treatment. It is true that Dr.
Turner thinks that there is a need for security in this country, but the
refusal of asylum meant that that was not the position and exceptional leave
to remain would not provide security since it would only last for a limited
period. We are bound to say that we are not impressed by Dr. Turner's report.
It is based on a relatively short interview and there has been no attempt to
discover what treatment she was receiving. We are not ourselves experts and it
might be said that we are not in a position to reject the opinions of those
who are. But we are accustomed to seeing a large number of psychiatric reports
in these cases and the same conclusions are reached in very many of them. We
know that PTSD is something which needs careful diagnosis and detailed
consideration of individual cases. We know too that the process of seeking to
make a new life in the United Kingdom and the circumstances which triggered
that process may well lead to depression or worse if obstacles seem to be
arising.
- The adjudicator's reasons for allowing the appeals
are set out in Paragraph 13 of his determination. He says: -
"However, I find it unduly harsh to expect this family to
relocate to Colombo. Two of the sons are now 18 and 17 years old, certainly
of an age when they could be rounded up. This will add to the distress which
the wife will undoubtedly suffer if she has to go back to Sri Lanka. Dr.
Turner's prognosis is that psychotherapy and counselling will be of no avail
to her as long as she remains in fear and uncertainty about returning to Sri
Lanka. The consequences of actually going back while she remains in an
acutely traumatised state are too serious to make a reasonable outcome in
this case. The appeals are therefore allowed".
Nowhere does the adjudicator consider whether the wife could receive the
necessary treatment in Colombo in the light of his positive finding that
neither of the appellants is reasonably likely to be persecuted in Colombo.
The possibility of the sons being rounded up is in the light of the current
state of affairs remote. Nor is it clear to us what are the consequences of
going back which make it unreasonable to expect the appellants to do so and
thus to justify a conclusion that they are refugees.
- It seems to us that the adjudicator has not
properly analysed the cases before him. There were two separate appeals which
for good reason were heard together. The adjudicator has given two separate
decisions, albeit each is in identical terms. The wife has no well-founded
fear of persecution and is not a refugee from any part of Sri Lanka. Her
mental condition and any hardship involved in return cannot make her a
refugee. It may be relevant in a human rights claim, but that does not arise
in the present case. Thus her appeal could not properly be allowed.
- As well as having a claim in her own right, she is
a dependent of her husband. He does have a well-founded fear of persecution in
his home area. Thus in his case the question whether there exists a safe area,
which we shall call internal relocation (IR) is relevant. There is no
suggestion that it would be unduly harsh to expect him or his children to
remain in Colombo. The adjudicator has decided that it would not be reasonable
to expect her to return to Colombo and so, it would be unreasonable to expect
the family to return. This conclusion could only properly have been reached if
the adjudicator was persuaded that it would be unduly harsh to require the
husband to return to Colombo because his wife should not be required to go
there. The 'unduly harsh' test is established by the Court of Appeal in R v
Secretary of State for the Home Department ex p. Robinson [1998] QB 929
which is binding on us.
- The adjudicator has accepted that the wife's
condition is such that it would not be reasonable to expect her to return to
Sri Lanka. That we suppose reflects the language of Paragraph 91 of the UNHCR
Handbook which, in dealing with a fear of persecution in a part of the country
of nationality, provides:-
"In such circumstances, a person will not be excluded from
refugee status merely because he could have sought refuge in another part of
the same country, if under all the circumstances it would not have been
reasonable to expect him to do so".
If his wife cannot be expected to return, it is not reasonable to expect
him to return since the family should remain together. That we must assume
reflects the adjudicator's reasoning.
- The concept of IR is based on the recognition that
surrogate protection is only required if there is no part of the country of
nationality which can be regarded as safe in that no well-founded fear of
persecution exists there and to which it would not be unreasonable to expect
the claimant to relocate. At p.935F in Robinson, Lord Woolf M.R. said,
after citing La Forest J in A.G. of Canada v Ward (1993) 103 D.L.R.
(4th) 1, as follows:-
."It follows that if the home state can afford what has
variously been described as 'a safe haven', 'relocation', 'internal
protection' or 'an internal flight alternative' where the claimant could not
have a well-founded fear of persecution for a Convention reason, then
international protection is not necessary. But it must be reasonable to
expect him to go to and stay in that safe haven…".
In determining whether it would not be reasonable to expect the
claimant to relocate internally, a decision-maker will have to consider all
the circumstances of the case, against the backcloth that the issue is
whether the claimant is entitled to the status of refugee".
It must be borne in mind that he will only be entitled to that status if he
shows that he has a well-founded fear of persecution for a Convention reason.
Lord Woolf summarises the correct approach at p.943B in these words:-
"In our judgment, the Secretary of State and the appellate
authorities would do well in future to adopt the approach which is so
conveniently set out in Paragraph 8 of the European Union's Joint Position.
Where it appears that persecution is confined to a specific part of a
country's territory the decision-maker should ask: can the claimant find
effective protection in another part of his own territory to which he or she
may reasonably be expected to move? We have set out, ante, pp.939H-940B,
appropriate factors to be taken into account in deciding what is reasonable
in this context. We consider the test suggested by Linden J.A. in the
Thirunavukkarasu case, 109 D.L.R. (4th) 682, 687, "would
it be unduly harsh to expect this person … to move to another less hostile
part of the country?" to be a particularly helpful one. The use of the words
"unduly harsh" fairly reflects that what is in issue is whether a person
claiming asylum can reasonably be expected to move to a particular part of
the country".
- It is important to note what factors the Court
considered to be of relevance in deciding whether it would be unduly harsh to
require IR. These are set out at p.940B where Lord Woolf says: -
. "Various tests have been suggested. For example, (a) if as a
practical matter (whether for financial, logistical or other good reason)
the "safe" part of the country is not reasonably accessible; (b) if the
claimant is required to encounter great physical danger in travelling there
or staying there; (c) if he or she is required to undergo undue hardship in
travelling there or staying there; (d) if the quality of the internal
protection fails to meet basic norms of civil, political and socio-economic
human rights. So far as the last of these considerations is concerned, the
preamble to the Convention shows that the contracting parties were concerned
to uphold the principle that human beings should enjoy fundamental rights
and freedoms without discrimination. In the Thirunavukkarasu case, 109
D.L.R. (4th) 682, 687, Linden J.A., giving judgment of the
Federal Court of Canada, said:
"Stated another way for clarity … would it be unduly harsh to
expect this person, who is being persecuted in one part of his country, to
move to another less hostile part of the country before seeking refugee
status abroad?"
He went on to observe that while claimants should not be
compelled to cross battle lines or hide out in an isolated region of their
country, like a cave in the mountains, a desert or jungle, it will not be
enough for them to say that they do not like the weather in a safe area, or
that they have no friends or relatives there, or that they may not be able
to find suitable work there".
Lord Woolf there lays emphasis on the preamble to the Convention. The first
paragraph of this reads: -
"Considering that the Charter of the United nations and the
Universal Declaration of Human Rights approved on 10 December 1948 by the
General Assembly have affirmed the principle that human being shall enjoy
fundamental rights and freedoms without discrimination".
The Universal Declaration of Human Rights is proclaimed as a common
standard of achievement for all people and all nations. The rights set out in
it are similar to those contained in the European Convention on Human Rights
and in the International Covenant on Civil and Political Rights (ICCPR).
- If an individual is not afforded basic human
rights, he may often be properly said to be persecuted. If he is subjected to
discrimination for a Convention reason, he may be entitled to be regarded as a
refugee. But if he is not within the Convention, the fact (if it be the case)
that the country of his nationality does not maintain the standards of the
Universal Declaration will not make him a refugee. The Refugee Convention does
not apply merely because persons have to exist in miserable conditions or
there is economic deprivation. And the conditions on return cannot create a
person a refugee unless he has a well-founded fear of persecution. Equally,
the absence of medical or welfare facilities cannot of themselves make someone
a refugee even though his health or his life would be in danger.
- It follows that logic might suggest that, however
wretched the conditions in what we shall call the safe area if IR is
applicable, they cannot in the absence of a real risk of persecution for a
Convention reason prevent return. But in the light of Robinson and the
conclusion that a failure to meet the basic norms of human rights is a
relevant factor, that cannot be a correct approach for us to adopt. It is in
our view important to remember at all times that what is in issue is the need
for surrogate protection. If the circumstances in the so-called safe area are
such as Lord Woolf has referred to, there may be a real risk that the claimant
will be compelled to return to his home area where he faces persecution. There
is an analogy with refoulement. Thus if, persecution apart, the conditions are
worse than those in the home area, it may be easier to conclude that it was
unduly harsh to expect IR. In addition, if there is in the safe area a real
risk that the conditions would expose the claimant to a serious breach of
basic human rights, he should not be expected to go there. It may be said that
there is a degree of illogicality in this if the risk of breaches of basic
human rights are no worse than in his home area. It is perhaps possible to
criticise the Robinson approach on the basis that the preamble to the
Refugee Convention emphasises, as might be expected, the need for fundamental
rights and freedoms to be enjoyed without discrimination. It is discrimination
which will engage the Refugee Convention. However, it is not open to us to
limit the issue of unreasonableness or undue harshness in this way since we
are bound by Robinson. However it is in our view right that for IR to
be regarded as unduly harsh any breach of fundamental rights must be
established to be serious.
- In Karanakaran v Secretary of State for the
Home Department [2000] 3 All ER 449, the Court of Appeal considered
further the correct approach to IR. At p.456F Brooke LJ said this: -
"The argument turns on the correct interpretation of a few words
contained in the definition of 'refugee' in Article 1A(2) of the Convention,
being any person who:
"… owing to well-founded fear of being persecuted [for a
Convention reason] is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country" (My emphasis).
The words I have italicised have not been interpreted literally.
In theory it might be possible for someone to return to a desert region of
his former country, populated only but camels and nomads, but the rigidity
of the words 'is unable to avail himself of the protection of that country'
has been tempered by a small amount of humanity. In the leading case of
Ex p. Robinson this court followed an earlier decision of the Federal
Court of Canada and suggested that a person should be regarded as unable to
avail himself of the protection of his home country if it would be unduly
harsh to expect him to live there. Although this is not the language of
'inability', with its connotation of impossibility, it is still a very
rigorous test. It is not sufficient for the applicant to show that it would
be unpleasant for him to live there, or indeed harsh to expect him to live
there. He must show that it would be unduly harsh".
This shows that the threshold is a high one but the 'small amount of
humanity' will apply to enable regard to be had to the situation in the safe
area and if it will not afford basic human rights IR will not be reasonable.
Nonetheless, the risk of compulsion to go to his home area is likely to be in
many cases a helpful test. And the height of the threshold is illustrated by
the decision of the EctHR in Bensaid v United Kingdom. In reality, the
application of the preamble will mean that where IR is in issue the Refugee
Convention and the European Convention on Human Rights will march together.
That in our view is justified because the individual in question has shown
that he does have a well-founded fear of persecution in his home area and may
well have left the country of his nationality because of that fear. To send
him back to suffer treatment that fails to afford him his basic human rights
can properly be regarded as unduly harsh and unreasonable.
- The absence of proper medical facilities to deal
with a particular individual's problems will not normally be determinative
unless his right to life is thereby put in jeopardy. If proper facilities are
available, a person's medical condition however serious cannot make him a
refugee. In Antonipillai at pp.32-33 of the determination the Tribunal
said this: -
"This is the first occasion where we have had to consider
whether or not a medical or mental condition is an aspect which has to be
considered when considering whether it would be unduly harsh for a person to
seek internal flight. It is our view, and one to which we have given
considerable thought, that within the context of that expression "unduly
harsh" it would be unduly harsh to insist on internal flight or return to
Colombo, as in the instant cases, where the option being exercised is a case
where a person is suffering from an terminal illness or suffering from a
physical or mental disability of such a nature as to render constant or
almost constant attention of a medical or nursing nature, or whether, in the
long term, such mental or physical condition is such as to preclude the
person from obtaining employment, accommodation and generally acclimatising
to the social conditions of the area to which internal flight is
sought".
Far from being unduly restrictive, we think that what is there said is too
wide. It is only if adequate facilities are not available that IR may be said
to be unduly harsh. There may be compassionate reasons for not returning but
not on the basis that the individual is a refugee.
- We have already recited the facts of this case.
There is no evidence that treatment for depression or PTSD is unavailable in
Sri Lanka. There is no real risk of persecution or indeed that the sons will
be rounded up. We do not regard Dr. Turner's report as supporting the
adjudicator's conclusion that the distress of the wife at the prospect of
return will make it unduly harsh for the husband to be returned since there is
no real impediment to his wife and family returning with him.
- It follows that these appeals must be allowed.
MR JUSTICE COLLINS
PRESIDENT
