UK - Court of Appeal, 24 May 2005, J v Secretary of State for the Home Department [2005] EWCA Civ 629

Facts:

The applicant had been the victim of horrific torture by the Sri Lankan army and mistreatment by the Liberation Tigers of Tamil Eelam (LTTE). His account was believed by an adjudicator (now known as an Immigration Judge) who heard his appeal against the administrative decision to refuse him asylum.

He had been diagnosed as suffering from Post Traumatic Stress Disorder (PTSD) and depression and had made one attempt to kill himself. It was found that he was not at risk of further persecution or harm from either the Sri Lankan state or the LTTE on return to Sri Lanka. He had also claimed that his Art 3 and 8 rights of the European Convention on Human Rights would be breached if he were to be returned.

A division of the Immigration Appeal Tribunal (IAT) heard the second appeal and again dismissed it.  He appealed to the Court of Appeal, principally on the ground that the IAT had applied the wrong test in the situation where it was claimed that removal would be a breach of Art 3 of the ECHR because of the risk of suicide.

Decision & reasoning:

On the legal question of the correct test, the Court first considered “foreign cases” where the risk of ill-treatment would be at the hands of the receiving state. Having reviewed the authorities, the court reaffirmed that the relevant test was ‘whether there are strong grounds for believing that the person, if returned , faces  a real risk of torture, inhuman or degrading treatment or punishment.’ The court rejected the submission that a different test was required in cases involving suicide. They found that this would be at odds with the Strasbourg jurisprudence. The court drew six points from its reading of the cases as set out below (§26-31):

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 paras [38-39].

27.Secondly,a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para [91], the court said:
"In so far as any liability under the Convention is or 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 para [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 para [49] of D and para [40] of Bensaid.

29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para [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 the removal will be in breach of article 3.

30. 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.‘

The first five points are relevant to domestic cases. The court reiterated that there was only one test, the one approved and applied in the Strasbourg decisions and expressed in Ullah (see above). The court expressly rejected the submission that suicide or cases involving mental health required a different approach from cases of physical illness.

Outcome:

Appeal dismissed both on law and facts.

Observations/comments:

The court noted that that the Immigration Appeal Tribunal had identified five stages of removal when risk would need to be assessed “(i) when the appellant is told of any adverse decision; (ii) during pre-removal detention; (iii) during transit to the receiving country; (iv) upon arrival; and (v) upon release in the receiving country.’§39

The court also commented without elaboration that in its view cases concerning the risk of suicide were not “precisely analogous”  with those concerned with the risk of death or suffering resulting from the lack of medical treatment in the country of origin.§54