TM v The Secretary of State for the Home Department [2017] CSOH 19

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 19

P411/16

OPINION OF LADY STACEY

In the petition

TM

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner: Campbell QC, Winter; Drummond Miller LLP
Respondent: Gill; Office of the Advocate General

3 February 2017

[1] The petitioner is TM, a national of the Democratic Republic of Congo (“DRC”). Her date of birth is 1 March 1962. She arrived in the UK on 4 May 2011 and applied for asylum, which was refused. The petitioner appealed unsuccessfully. Her appeal rights were exhausted on 1 September 2011. The petitioner made further submissions on 8 October 2013 which were refused on 16 June 2015. Further submissions were made on her behalf on 4 January 2016, but the Secretary of State (the respondent) by letter dated 10 February 2016 stated that those submissions did not amount to a fresh claim. The petitioner seeks reduction of that decision and of a further letter from the respondent dated 11 March 2016 which confirms the decision made in the earlier letter and about which I say no more in this opinion.

Background

[2] In the submissions made in January 2016 the petitioner’s claim for asylum on the basis of her political opinion or imputed political opinion was repeated. Those submissions were not accepted and no issue was taken with that in the case before me. The petitioner did assert in her submissions of January 2016 that her rights under Articles 3 and 8 of the European Convention of Human Rights (ECHR) would be breached by her enforced return to DRC. It was argued on her behalf that her medical condition was such that if she did not continue to receive the support for mental health, her health would deteriorate significantly. While it is not entirely clearly written, it is tolerably clear that the submission on behalf of the petitioner was that her mental health was such that she was at risk of committing suicide, which risk would be increased by her removal to DRC. It was argued that such removal was thereby a breach of her rights under Article 3. It was further argued that her Article 8 rights would be breached by such a removal as her mental health was part of the concept of “private life” contained in that article. Separately it was noted that the petitioner has a daughter, now over the age of 18 years. It was appreciated that she therefore required to make her own submissions but a request was made that the applications be considered together as the circumstances are identical as are the effects of the removal. It was also submitted that the two women were emotionally reliant upon each other. It was said that they were both extremely vulnerable and it would not be reasonable to separate them. Various medical reports and a report on the medical situation in DRC were submitted.

[3] The reports were broadly to the effect that the petitioner had been on anti-depressant medication due to low mood and hyper arousal symptoms for a three year period from the date of writing, being towards the end of 2015. It was said that the petitioner suffered from depression and Post Traumatic Stress Disorder symptoms which were exacerbated by the potential for removal from the UK. She had a long history of these conditions and had had regular secondary and tertiary mental health treatment in the UK since July 2011. She had presented in the past with increased PTSD symptoms in the form of re-experiencing intrusive memories, nightmares and disrupted sleep because she had been concerned about removal. There had been several episodes where her low mood and suicidal ideation dominated as she became fearful that she and her daughter would be in danger if returned to DRC.

[4] The petitioner had required intervention to stabilise her depressive and PTSD symptoms and to monitor the risk of suicide. She had presented in several crisis states which required intervention to reduce the risk of suicide. Her art psychotherapist, Miss McMillan, found that she was “vulnerable to crisis of her mental state and at worst a suicide completion if she were faced with removal.” Miss McMillan found “if actually removed then in my opinion and based upon her history and mental health difficulties, she will be at high risk of suicide and almost definitely have acute mental health problems.” She felt worthless and often had self-harm and suicidal thoughts. She was afraid to return to the DRC because she thought that she would be in danger there. She lived in this country with her adult daughter who would return with her and she also feared for her safety. Were she to be returned to the DRC, her mental health could not be dealt with in the appropriate manner because the DRC does not have a system of healthcare which allows referral to secondary or tertiary mental health care. Miss McMillan went on to state that while she did not have accurate information about mental health provision in DRC she did know that referral to secondary or tertiary mental health care did not exist. In her opinion the petitioner required that level of care, which was provided to her in the UK. Were she to be removed from the secondary and tertiary health care that she needs, then she is at high risk of completing suicide and almost certain to have a major deterioration in her symptoms of depression and PTSD.

[5] The petitioner’s GP, Dr Pettigrew, stated that the petitioner had been referred to psychological services by a previous GP due to severe distress with flashbacks to her son’s murder in DRC, which she had witnessed. She had also to watch her daughter struggle with having witnessed these events and she herself was documented as a victim of torture. Her most recent contact with psychiatric services had been in June 2015 due to suicidal thoughts following rejection of her asylum claim. The doctor’s opinion was that “deportation would have a profoundly negative affect on her mental state.”

[6] Miss Jedh, an independent sexual violence advocate working at Rape Crisis, reported that she had found the petitioner to have sleep difficulties, fear, avoidance and anxiety. She had been visited by the mental health crisis team on a daily basis because of concern about her ability to keep safe. Ms Jedh would have great concerns for her well-being were she to be returned to DRC.

[7] Ms Broadbent, a community psychiatric nurse, stated that the petitioner initially presented with low mood, anxiety and residual trauma, allied to thoughts of deliberate self harm and suicide. The symptoms persisted. In her opinion the petitioner needs both nursing and medical support and were she not receiving that then she would become significantly depressed and would struggle to find reasons to live.

[8] The information concerning provision within DRC was from a country of origin information service dated March 2012 which stated that in DRC there is a mental health policy, program, and legislation but that no budget was allocated specifically to mental health. There was a lack of facilities to treat stress-related depression. While there was some primary health provision there was no tertiary or secondary provision.

The Decision Letter

[9] The letter from the respondent began by setting out submissions already considered. The decision made by the First-tier Tribunal judge is referred to, showing that she did not accept the petitioner as a credible witness when she claimed that she would be of interest to the authorities if she returned to DRC because of her political opinions or because her husband’s opinions would be imputed to her. The decision maker noted that the petitioner still sought asylum on the basis of her opinion or imputed opinion, and also that she would be at risk as a returner. The decision maker found that the petitioner had produced no evidence that she would be at risk and therefore there was no prospect of a new immigration judge finding in her favour.

[10] The decision maker then considered the case under the heading “Non –protection based Submissions: Other ECHR Articles. Article 3 – Medical.” He noted that letters had been provided as noted above. He did not take issue with the letters, which included claims that the petitioner had a long history of depression and PTSD for which she received regular secondary and tertiary mental health treatment from services in Glasgow, and that she was often troubled by thoughts of feeling worthless and suicidal. The decision –maker referred to the case of N(FC) v SSHD [2005] UKHL 31 for the proposition that the test in the claimant’s case is:

“the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which is currently receiving and sending home to an early death unless there is care available there to enable him to meet that fate with dignity”.

He noted that the case of N was subsequently reviewed in the European Court of Human Rights (N v The United Kingdom 26565/05 [2008] ECt HR 453) and the high threshold set out in D v United Kingdom (1997) 24 EHRR 423 maintained. The decision maker continued by stating that the standard was followed in the case of GS and EO (Article 3 – health cases) India [2012] UK UT 397 (IAC) where the Upper Tribunal held that a dramatic shortening of life expectancy by the withdrawal of medical treatment as a result of removal could not amount to the highly exceptional case that will engage the duty under Article 3. He noted that the Upper Tribunal accepted that there are recognised departures from the high threshold approach in cases concerning children, discriminatory denial of treatment, the absence of resources through civil war or similar human agency. He stated that there is no reason to believe that the petitioner is in the final stages of terminal illness or that her life expectancy would be reduced in circumstances where she would be subjected to acute mental and physical suffering on her return to DRC and that therefore she failed to show that there were exceptional circumstances preventing her return. In support of that opinion, the decision maker referred to a Country of Origin Information request dated 14 May 2014 which he quoted as stating the following:

“… In response to a query about a patient suffering from psychotic symptoms with hallucinations and danger to life from suicide, that the following treatment is available in the DRC: –

regular monthly outpatient medical treatment and follow-up by a psychiatrist

inpatient medical treatment (also with psychiatric emergencies) by a psychiatrist

regular weekly outpatient medical treatment and follow-up by a psychologist

inpatient medical treatment by a psychologist”

[11] The decision maker then referred to the case of E or AE (PTSD – Internal Relocation) Sri Lanka, Starred [2002] UK IAT 5237, quoting paragraph 8 which notes that PTSD seems to have become remarkably common amongst asylum seekers. He then referred to the case of Bensaid v UK (2001) 33 EHRR 10 commenting that that case noted the potential difficulties accessing medical treatment in the home country but also noted that treatment was available in principle. He made reference to the following quotation from that case:

“[the court] accepts the seriousness of the applicant’s medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the contracting state for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant’s removal and the circumstances would be contrary to the standards of Article 3.”

The decision maker sums up his decision under Article 3 by stating that the submissions have been subjected to anxious scrutiny but it is not accepted that there would be a realistic prospect of success before an immigration judge in light of the law as set out in the cases referred to.

[12] The rest of the letter is concerned with Article 8, that is submissions based on family and private life. It is stated that the application has been considered under Appendix FM2 and/or paragraphs 276 ADE(1)–DH of the Immigration Rules and outside the rules on the basis of exceptional circumstances. The decision maker notes that the petitioner has no dependent children and therefore does not meet the requirements of R–LTRP1.1 (a) or (d) or R–LTRPT1.1 (a) or (d) of Appendix FM of the rules. He then states that consideration has been given to the requirements for limited leave to remain on the basis of private life in the UK under paragraph 276 ADE(1) of Appendix FM and then purports to quote that appendix. The quotation is very hard to understand because the various paragraphs are numbered twice, using different numbers. Counsel for the respondent accepted that this part of the letter was on its face baffling. Having printed the paragraph numbers wrongly, however, the decision maker notes that the petitioner has made a valid application for leave to remain; that she has not lived in the UK for at least 20 years; and that she is 53 years of age. It is stated that it is not accepted that there would be very significant obstacles to the petitioner’s integration into the country to which she would have to go if required to leave the UK, which is a reference to paragraph (vi) of the appendix. Reasons for that decision are given to the effect of that she has spent the majority of her life in DRC. It is considered that she would be able to re-establish relationships with past friends or make new ones. She speaks the language of that country and is accustomed to the society there. She has a mother, two brothers and two sisters in DRC and could therefore continue her family life there. Thus it is stated that the petitioner fails to meet the requirements of the immigration rules.

[13] The decision maker then turns to consideration of exceptional circumstances which might warrant a grant of leave to remain in the United Kingdom outside the requirements of the rules. He noted that while the petitioner has a daughter, aged 19, he did not find it to be an exceptional circumstance that each was said to be “emotionally reliable (sic) on each other”. He stated that there was no evidence that the petitioner’s daughter was financially reliant on her nor any evidence to show that they were dependent on each other. The decision maker then turns once again to the petitioner’s medical condition noting that the petitioner claimed to suffer from depression and PTSD. He repeated that the medical condition was not considered to be so serious as to reach the threshold required by the case of N. He referred to the case of GS (India) & Others (Article 3 & Article 8) [2015] EWCA Civ 3 40 in which he said that the court again emphasised the high test for engagement of Article 3 (as noted in the case of MM (Zimbabwe) [2012] EWCA Civ 279 ) as follows:

“…it is common ground that in cases where the claimant resists removal to another state on health grounds, failure under article 3 does not necessarily entail failure under article 8.

If the article 3 claim fails (as I would hold it does here), Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses LJ (with whom McFarlane LJ and the Master of the Rolls agreed) in MM (Zimbabwe).”

[14] The decision maker notes that the court found that even the absence of life preserving treatment in the country of return cannot be relied on as a factor engaging Article 8: if that is all, then the claim must fail. Secondly when Article 8 is engaged by other factors, the fact that the claimant is receiving medical treatment in this country which may not be available in the country of return may be a factor in the proportionality exercise; but that factor cannot be treated by itself as giving rise to a breach since that would contravene the “no obligation to treat” principle. He then made reference to the case of Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC) for the principle that the correct approach is not to leave out of account difficulty in obtaining health treatment, but rather to recognise that the countervailing public interest in removal will outweigh the consequences for the health of the claimant because of a disparity of healthcare facilities in all but a few rare cases.

The decision maker found that there were no exceptional circumstances in the petitioner’s case and that her application consequently should not be granted outside the rules.

[15] Finally, the decision maker considers paragraph 353 B of the Immigration Rules which requires him to consider the petitioner’s character, conduct and associations, compliance with any conditions imposed and the length of time spent in the UK. He did so and found that while she was of good character and had complied with conditions there was nothing sufficiently compelling about that to require a grant of leave. The length of residence was fairly short at four years nine months. He considered all circumstances in the round and found that the submissions had no prospects of success on any basis and were therefore not a fresh claim.

Submissions for the Petitioner

[16] Counsel for the petitioner began by referring to Rule 353 set out in the case of ABC Petitioner, [2013] CSOH 32 in which Lord Bannatyne at paragraph 11 stated that the correct approach in such a case is as follows:

“1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3. The court must ask itself two questions:

1. Has the Secretary of State asked himself the correct question? – that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7).”

[17] The approach to the issue of anxious scrutiny is that the Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny which means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence, but anxious scrutiny does not mean that the Secretary of State must show undue credulity to the petitioner’s account.

[18] Counsel also submitted that the threshold which the petitioner required to meet was that set out in the case of AK Sri Lanka v Secretary of State for the Home Department [2010] 1 WLR 855; the prospect of success for the petitioner had to be such as to amount to more than a fanciful prospect of success, but that the test was no higher than that.

[19] Counsel for the respondent did not take issue with those submissions, adding that while the law sets a modest test in deciding if submissions amount to a new claim, that does not mean that there is no need for full analytical rigour. Further, the refusal letter has to be read fairly and as a whole; and he added that as always in judicial review, the test is one of whether or not there is Wednesbury unreasonableness. Counsel agreed that the decision maker is required to exercise anxious scrutiny, meaning that any matter that could be favourable to the petitioner should be taken into account, while the decision-maker did not require to be unduly credulous. Further, the decision maker had to decide on the basis of the material put before him or her and did not require to go fishing for further material.

[20] Thus counsel for the petitioner and counsel for the respondent were agreed on the approach to be taken, and agreed that the petitioner’s medical state was set out in the reports. The main dispute between them was on the correct approach to a case involving a risk of suicide.

[21] Counsel for the petitioner submitted that in relation to Article 3 of ECHR, the case of J v Secretary of State for the Home Department [2005] Imm AR 409 was relevant. He argued that the decision maker had erred in law because the case was not mentioned in the decision letter, and it was not clear that, despite that omission, the ratio of the case had been applied. Counsel argued suicide cases had to be considered as such, and that they were not the same as cases where medical treatment which was being given in the UK would not be available in the country to which the petitioner would return. He argued that the correct test in a suicide case was whether there were strong grounds for believing in the existence of a real risk of treatment contrary to Article 3.

[22] Counsel then submitted that in the case of AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1736 the court confirmed at paragraph 15 that a suicide case is not precisely analogous to a fatal illness case. At paragraph 16 the court stated: “an increased risk of suicide does not ipso facto create a breach of Article 3; it is, however, in certain circumstances capable of being such.” The court pointed out in that case that Article 8 may be engaged even if the Article 3 threshold is not met. Counsel then referred to the case of CN (Burundi) v Secretary of State for the Home Department [2007] EWCA Civ 587 which begins with the assertion that it is well established that there may be circumstances in which it would be not possible for the Secretary of State to remove a foreign national to his home country where she would be at a high and increased risk of committing suicide without contravening that person’s rights under Articles 3 and 8 of ECHR. The court then states that the proposition was recognised by the Strasbourg court in the case of Bensaid and by the Court of Appeal in England in the case of J. The court narrated the circumstances of the case, in which the applicant had a long history of serious mental ill-health. At paragraph 25, the court said that the considerations that arise when addressing the issue of a breach of Article 3 in the context of suicide risk on return are very similar to those which arise in the cases of grave physical illness, of which N is the leading domestic example. While the court agreed that the circumstances in the two types of cases not precisely analogous, it also agreed that the similarities are more important than the differences. The case of N illustrates how difficult it is for the claimant to surmount that the high threshold. The court went on to say this:

“26…nevertheless, it remains the case that a suicide risk case can in principle succeed. That means that in any particular case with the issue is raised, it is incumbent upon the AIT to apply the basic test and amplified factors as set out in J, above. The claimant will have to establish a causal link between return to his home country and the enhanced risk of suicide. And when considering that enhanced risk, the I I T will have to consider Dyson LJ’s sixth actor, namely the presence or absence of effective mechanisms to reduce the risk.

27. …

28. I do not underestimate the magnitude of the task that faces the appellant in the pursuit of his article 3 claim. However he is entitled to have it properly considered and a determination that is free from material legal error. Some cases which raise the issue of suicide risk are readily identifiable as hopeless. However, this appellant has been in receipt of expert medical and other professional care over a significant period of time and the material he is able to produce (not all of which I have referred to) puts him in a different category from some whose claims are vague and supported only by cursory expert opinions. I tend to agree with Mr Toal’s submission that the predicament of this appellant is significantly more serious than that in Bensaid (whose case failed in Strasbourg) and his current diagnosis and prognosis seem worse than that of A J (Liberia) whose case was remitted to the AIT by reason of the failure properly to have considered the sixth of Dyson LJ’s factors.”

While the court regarded the appellant as having an onerous task in pursuit of his article 3 claim it did take the view that he was entitled to have the original decision made in a determination free from material legal error.

[23] Counsel made reference to the case of MM Zimbabwe in which the court stated at paragraph 17:

“The essential principle is that the ECHR does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their ‘home countries’. This principle applies even where the consequence will be that the deportee’s life will be significantly shortened (see Lord Nicholls in N v Home Secretary [2005] 2 AC 296, 304 [15] and N v UK [2008] 47 EHRR 885.”

Counsel accepted what was stated by the court in paragraph 18 as follows:

“Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a ‘medical care’ obligation in relation to Article 3, but to acknowledge it in relation to Article 8. In N v UK, the ECHR took the view that no separate issue under Article 8 arose.”

Counsel acknowledged that the court stated at paragraphs 22 and 23:

“22. Thus the courts have declined to close the door on the possibility of establishing a breach of Article 8 but they have never found such a breach and have not been able to postulate circumstances in which such a breach is likely to be established……

23. The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.”

Thus, counsel for the petitioner recognised that there was a high standard to be met in respect of a claim under either Article 3 or Article 8 for a “lack of treatment” case. While he argued that “suicide risk” cases are not precisely analogous to lack of treatment cases, he accepted that a high threshold also applies to them.

[24] Turning to the material available in this case, counsel noted that the reports showed that the therapist, Miss McMillan, had worked with the petitioner since 2011. She found that her mental health was poor and that the removal procedure had made her PTSD worse. She had required crisis intervention and she had an ongoing need for treatment. According to her GP, Dr Pettigrew, the petitioner was often suicidal and required medication. Deportation would have a profoundly negative effect on her mental state.

[25] The decision letter, No 6/3 of process, had in it no reference to the case of J v Secretary of State. Nor did it refer to the case of AJ (Liberia). The focus rather was on physical illness as in a person suffering from a terminal illness. This petitioner is not terminally ill but she has serious mental health problems and repeated thoughts of suicide. While counsel accepted that the respondent did not require to refer to every authority in such a letter he argued that there should have been reference to the broad strands set out in the case of J. Without that the court could not be satisfied that the decision maker had taken the correct approach. In this letter there was no recognition that the approach is not the same as in a terminal illness case. There was no engagement in the letter with the claimed risk of self-harm.

[26] Counsel referred to the case of Y and Z (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362. In that case, the court found that one 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 will tend to weigh against there being a real risk that removal will breach Article 3 but what may be of equal importance in deciding the question is whether a genuine subjective fear, albeit one without an objective foundation, is such as to create a risk of suicide if due to an enforced return. In the current case, the asylum claim having failed, it cannot be said that the petitioner has an objectively justified fear of return but it does not appear to be in dispute that she has such a subjective fear. Counsel accepted that the case of N v UK referred to above is authority for the proposition that save in exceptional compelling cases, the humanitarian consequences of returning a person to their country of origin where his or her health is likely to deteriorate terminally does not place the returning state in breach of Article 3. Nevertheless, the court in the case of Y and Z is an example of a case in which the court did find that the high threshold of inhuman treatment unconditionally prohibited by Article 3 was reached. At paragraph 62 of the judgment, Sedley LJ stated:

“None of this reasoning represents a licence for emotional blackmail by asylum-seekers. Officials and immigration judges will be right to continue to scrutinise the authenticity of such claims as these with care. In some cases the Home Office may want to seek its own or a joint report. But there comes a point at which an undisturbed finding that an appellant has been tortured and raped in captivity has to be conscientiously related to credible and uncontradicted expert evidence that the likely effect of the psychological trauma (aggravated in the present cases by the devastation of home and family by the tsunami), if return is enforced, will be suicide.”

[27] Counsel appreciated from the answers lodged on behalf of the respondent that the respondent would seek to argue that even if there was an error by the respondent in not referring explicitly to the case of J the decision would have been the same in any event. Counsel for the petitioner argued that the case of Absalom v Governor of Kilmarnock Prison [2010] CSOH 109 was authority for the proposition that such “after the event reasoning” should be ignored. Counsel for the respondent argued that even if there was an error of law, which he did not concede, then it was not a material error because the decision would have been exactly the same if the decision maker had gone through the exercise of setting out the stages referred to in the case of J. He argued that he was not seeking to insert “after the event reasoning” as in the case of Absalom, but rather was arguing that any error in law was not material. I accept the submissions of counsel for the respondent to the extent that I find that the respondent is not seeking to provide reasons later, but is arguing about materiality, which I find he is entitled to do.

[28] Counsel for the petitioner argued that the use of the Country of Origin Information showed that the appropriate level of anxious scrutiny was not applied to considering the availability of treatment if returned to the DRC. Miss McMillan had concerns about the availability of secondary/tertiary level care, which was vouched by material given to the Secretary of State. In the Country of Origin Information it was stated that any medical treatment of that sort had to be paid for. If this matter was brought before the immigration judge he or she would have to consider it. Counsel therefore argued that as regards to Article 3 there was more than a fanciful prospect of the immigration judge reaching a different view.

[29] Separately counsel argued that the respondent had referred to information about facilities in DRC apparently received in response to an enquiry made, dated 2014. That information had not been produced. Counsel for the respondent argued that such information was available to the decision maker and would be properly considered by him as information he could put before a new immigration judge. I accept counsel for the respondent’s argument on this point.

[30] Counsel for the petitioner argued that as regards the Immigration Rules, under paragraph ADE no consideration was given by the decision maker to the existence of the mental illness and the treatment. The decision maker noted that the petitioner has a daughter and from the medical report could be seen that the petitioner and her daughter were emotionally reliant on each other. The decision maker did not take that into account. As regards financial reliance on each other, both the petitioner and her daughter, if neither has leave to remain, will be on minimum benefits. In the case of Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 IAC it was held that the claimant might invoke the protection of Article 8 when an aspect of her claim is a difficulty or an inability to access healthcare. While it was accepted that the proper control of immigration has to be weighed against the difficulty caused by the inability to access healthcare in the receiving country, in the present case the petitioner has serious mental health problems and persistent suicidal ideation. Therefore the decision maker required to balance the competing considerations and the letter did not show that that exercise had been undertaken properly.

Submissions for the Respondent

[31] Counsel for the respondent argued that in this case the letter from Ms McMillan said that there was “a high risk of completing suicide”; Dr Pettigrew did not mention suicide and neither did Ms Jedh. The community psychiatric nurse said that the petitioner would become depressed. Therefore they were saying that without the care supplied in this country, the likelihood was that the petitioner would become ill. Thus this case is best categorised as a “non-availability of treatment case” and as a “foreign case”. Looking more carefully at the case of J, and of AJ (Liberia), these cases are simply amplifications of existing cases which set out the correct way to approach the petitioner’s claims.

[32] Counsel referred to the case of N (FC) v Secretary of State for the Home Department [2005] 2 AC 296 and to paragraph 79. That case related to a woman who was seriously ill and admitted to hospital where she was diagnosed as HIV positive, while in the UK unsuccessfully claiming asylum. It was argued that if she was returned to Uganda the treatment that she needed would not be available and she would die within a matter of months, whereas if she stayed in the UK she could get treatment which would enable her to live for decades. Her appeal to the House of Lords was dismissed on the basis that while the case evoked much sympathy, it was not exceptional because the appellant was capable of travel and was therefore not in the exceptional circumstances that would apply where a person was so ill that it would be argued that compelling humanitarian grounds existed not to expel her. That case set a high threshold for Article 3 claims.

[33] Counsel argued that while there was no reference in the decision maker’s letter to the case of J there did not require to be so long as the principles set out in that case were observed. He argued that they had been observed. Counsel argued that the logic in the argument for the petitioner was flawed. The Secretary of State knew the material that was before her and she appreciated that her task was to assess the prospects before a hypothetical immigration judge. The material which she had would be put before a new immigration judge if it was found to amount to a fresh claim. The immigration judge would know that while there was not the best treatment for mental illness in the DRC, there was some treatment available. There was no suggestion that availability of such medical care to this particular petitioner would be more limited than to anybody else. There was no suggestion in this case that there would be self-harm in transit. Thus there is no failure to exercise anxious scrutiny when considering the submissions made.

[34] Turning to Article 8, counsel argued that the issue is whether Article 8 is engaged. Counsel referred to the case of GS India in which Underhill J found that inadequate medical treatment must fail as a reason under Article 8. Counsel argued that there was nothing in the application to show that there was any particular dependency between the adult daughter of the petitioner and the petitioner herself. The mere fact of mother and daughter living together was not enough. Therefore the respondent was entitled to say that there was no evidence of any particular dependency. He argued that the consideration given under paragraph ADE was sufficient because Article 8 was not engaged. He argued that there was no error in law shown.

Decision

[35] In my opinion the case of J is authority for the proposition that suicide cases are not to be treated as analogous to cases concerning the risk of death resulting from the non-availability of treatment. That case concerned a suicide risk, the applicant being an ethnic Tamil who said that he would commit suicide if he were returned to Sri Lanka. The court found that as a matter of fact there were sufficient facilities for treatment within the country of origin and the appeal was rejected. The court took the opportunity nevertheless to give guidance. It found it necessary when considering suicide cases to make a distinction between foreign cases which are cases in which the conduct of the state in removing a person from its own territory to another territory will, it is alleged, result in violation of the person’s ECHR rights in that other territory. In foreign cases, the test relating to suicide cases is whether the effect of the applicant’s removal will expose the person to consequences of such an extreme kind as to amount to a contravention of Article 3. This is vouched by the case of Bensaid v UK (2002) 33 EHRR 10, where the court found

“Deterioration in the applicant’s already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self- harm and harm to others, as well as restrictions in social functioning ( e.g. withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle fall within the scope of article 3.”

Therefore deterioration in mental health may found a claim under Article 3. Thus it is not necessary that the receiving state carry out some positive action. The court in J recognised that, when discussing the case of D v UK (1997) 24 EHRR 423 in which the court recognised that only cases involving positive acts by the receiving state had succeeded, the court found that it must reserve to itself the flexibility to address other situations. It found in that case that

“…Aside from these situations and given the fundamental importance of article 3 in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article in context which might arise. It is not therefore prevented from scrutinising an applicant’s s claim under article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country , or which taken alone do not in themselves infringe the standards of that article.”

[36] In the case of J, the court went on to look at the consideration in the House of Lords of the case of D in the case of N (FC) v Secretary of State for the Home Department [2005] UKHL 31. Lord Brown found that the case of D supported the propositions that notwithstanding that ordinarily a state is entitled to expel aliens in the interests of immigration control, in certain circumstances doing so may constitute Article 3 ill-treatment. He found that this could be so if the removal would sufficiently exacerbate suffering flowing from a naturally occurring illness. In such a case the court would have to assess whether, in light of the applicant’s medical condition, removal would be a breach of Article 3 rights. He stated that

“An alien otherwise subject to removal cannot in principle claim any entitlement to remain in order to benefit from continuing medical, social, or other assistance available in the contracting state.”

The court noted that Lord Brown said that D represented an extension to an extension of the Article 3 obligation.

[37] Having considered that speech, the court in J confirmed that the test in foreign cases is whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment. Counsel in that case submitted that a different test is needed for cases of suicide or self-harm. He argued that the test omits the need for a causal link between the act of removal and the ill–treatment relied on; further, it is too vague to be useful. The court accepted neither criticism. It found that a causal link was necessary, and was inherent in the test. It noted that a test that there is a real risk of harm is more stringent than a test which involved finding that the risk must be more than “not fanciful”. As regards the criticism that it was vague, the court found that it is possible to see what the test entails from examining the cases decided by ECtHR. The court then went on to set out six principles, which it is necessary to quote in full. I do so using the case of J‘s paragraph numbers.

“[26] First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must ‘necessarily be serious’ such that it is ‘an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment’: see Ullah, paragraphs [38 – 39].

[27] Secondly, a causal link must be shown to exist between the act or threatened act of removal of expulsion and the inhuman treatment relied on as violating the applicant’s article 3 rights. Thus in Soering at paragraph (91), the court said:

‘insofar as any liability under the convention is may be incurred, it is liability incurred by the extraditing contracting state by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment. (emphasis added).’

See also paragraph [108] of Vilvarajah where the court said that the examination of the article 3 issue ‘must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka …’

[28] Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in paragraph [49] of D and paragraph [40] of Bensaid.

[29] Fourthly, an article 3 claim can in principle succeed in a suicide case (paragraph [37] of Bensaid).

[30] Fifthly, 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 in the receiving state 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 removal will be in breach of article 3.

[31] Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state 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 his or her article 3 rights.”

[38] The court found in considering domestic cases that a different approach was needed since the concern to avoid or minimise the extra-territorial effect of the ECHR is absent. The other factors are present however. The court went on to consider a submission made by counsel that the correct test in a domestic case was whether the communication and implementation of a final removal decision would give rise to a real risk of a significantly increased risk of suicide. It rejected that submission. It made reference to cases in the Immigration Appeal tribunal in 2005 which explained that taking the action of communicating a final decision which has been made may increase the risk of suicide, but if there is suitable protection in the shape of medical treatment available in the UK then there is no breach of Article 3.

Decision

[39] The issue before me is whether the decision letter, which does not mention the case of J on any other suicide case, shows that there was a material error in law made in decision-making. I have not found that easy to determine. At the hearing I was impressed by counsel for the respondent’s argument that any error in law was not material. On mature reflection I am not so sure. The threshold is high in cases of illness such as D and N and I have no reason to hold that it is any lower in suicide cases. There is no obligation on the UK to provide medical treatment for the petitioner who has been refused leave to remain and in any event some medical treatment is available in DRC. Therefore I find that in this case, like the case of CN (Burundi), there is an onerous task in front of the petitioner in pursuing an Article 3 claim. Nevertheless, I am concerned that the letter has been written in terms which suggest that the writer gave no thought to suicide claims as being in any way different from illness claims. I am not persuaded that the letter can stand as the type of decision-making, with anxious scrutiny, that is required in this situation. The decision maker states that the petitioner is not terminally ill; given that she has never claimed to be terminally ill that must make the reader of the letter pause and wonder if the decision maker had in mind the situation as presented in the submissions.

[40] I have made my decision on the basis that the petitioner is entitled to a decision and reasons for that decision which show that the decision maker has considered all relevant material and has applied the law correctly. I accept in principle counsel for the respondent’s argument that an error in law which is not material may result in a decision which should be left standing. In this case, I do not accept that the lack of reference to the fact of suicide or the cases dealing with suicide is not material.

[41] I respectfully agree with the opinion in the case of Y and Z insofar as it requires detailed consideration of the claim that the result of enforced return will be suicide. While each case is fact sensitive, I find that case helpful in deciding that the petitioner is entitled to a decision which is clearly made following consideration of her claim to be at increased risk of suicide if she has to return to DRC. The cases which counsel referred to show that cases about illnesses such as AIDS are discussed in the cases which are about mental illness and the risk of suicide; but they are not to be seen as completely analogous.

[42] For these reasons I will uphold the petitioner’s plea for judicial review in order that the Secretary of State may reconsider the submissions as a suicide risk case. I can therefore deal with the other grounds, regarding Article 8, briefly. Had I not upheld the petitioner’s position on the letter, I would not have upheld it over the Article 8 claims. I accept counsel for the respondent’s argument that, on the hypothesis that there is no error of law of any materiality in the consideration of Article 3, then Article 8 is not engaged by the submissions regarding suicide. I find nothing in this case to put it in to the compelling category which would be required for such a claim. Separately, I find no error in law in the consideration given to the article 8 claims based on family life. The Secretary of State is, in my opinion, entitled to find that there would be no insurmountable obstacles to the petitioner returning to DRC. Further, she is entitled to find that there are no compelling reasons to allow leave to remain outside the rules.

[43] Therefore, I uphold the plea in law for the petitioner and repel those for the respondent.

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