G v Secretary of State for the Home Department

LORD JUSTICE SEDLEY: The appellant is an Ethiopian who claims to have escaped from a guarded hospital bed in late 2003 after being severely beaten in custody because of his participation in opposition politics. His appeal against the Home Secretary’s refusal to grant him asylum or leave to remain on human rights grounds was dismissed initially by an adjudicator in June 2004. But an appeal succeeded to the extent of securing a remission, which took effect under the new system by way of reconsideration before an immigration judge, Mr D G Zucker in May 2005. Mr Zucker dismissed the claim under both heads.

The appeal against this decision comes before the court by permission of the Asylum and Immigration Tribunal acting by a senior immigration judge, Mr George Waugh. The grounds for seeking permission were summarised as follows:

“(a)

The immigration judge’s adverse credibility finding is marred by unfairness and/or procedural irregularity. That he failed properly or at all to consider and/or attach weight to the medical evidence before him;

(b)

The immigration judge’s adverse credibility finding is marred by errors of fact regarding the appellant’s evidence;

(c)

The immigration judge’s approach to the freestanding Article 3, ‘suicide risk’ claim was marred (i) by a failure to make proper findings, (ii) by a failure to apply the correct legal test; and (iii) by a failure properly or at all to consider and/or attach weight to the medical evidence before him.”

The senior immigration judge in granting permission to appeal, wrote (page 27 of the bundle):

“The majority of the grounds of appeal dispute the findings of the immigration judge but in my view raise no legal challenge. The immigration judge’s approach to the medical and other evidence and his findings of fact appear soundly based. The only point that may be faintly arguable is the question of the test to be applied in considering the risk of suicide, ground 35. The immigration judge did not have available the case of J (see paragraph 29 of the grounds). Counsel submits that the answer when the correct test is applied, the answer is not self-evident. While that may be so, it is not perhaps apparent that the immigration judge’s conclusion would have been different in the light of J. However, not without some hesitation, I have concluded that the point is arguable.”

The power of a lower court or tribunal to grant permission to appeal to this court, like this court’s own power to do so, is not to be lightly exercised. When it is exercised on an application containing multiple grounds, it must make clear on which of the grounds permission is being given. The present grant of permission properly carries out the latter function. It is explicitly confined to point C(2) of the appellant’s grounds. No application has been made to this court for permission to pursue any of the remaining grounds. In the first respect, it is unacceptable. It is based not on a real prospect of success but on the point being “faintly arguable”. Nobody is entitled to come to this court on such a basis, unless some other and overriding reason exists, and no party should be given permission to do so.

Because of a misunderstanding of the rules on the part of the appellant’s solicitor, no appellant’s notice was filed following the limited grant of permission to appeal as required by CPR 52.6. An enlargement of time is now accordingly sought. For my part, I would defer a decision on this until we have decided whether the appeal is properly arguable.

The appeal comes before this court on the footing that the appellant’s account of ill-treatment in Ethiopia has been disbelieved and rejected but that the medical evidence of his depressed state still stands. The Home Secretary, by a respondent’s notice, accepts that it would have been an error of law if, which is disputed, the immigration judge had confined himself to an imminent risk of suicide, but contends that any such error will have been immaterial, since the evidence could on no view reach the Article 3 threshold.

The appellant’s case is based upon the written evidence of two clinicians, Dr Matthews and Dr Mishra. Dr Matthews is a general practitioner of now over ten years standing. His training included over three years in psychiatry and more recently he has worked specifically with asylum seekers, in relation to whom he has received specialist training. Dr Mishra is a consultant psychiatrist working in the National Health Service. The reports which we have include only one from Dr Mishra, written in April 2005, but it evident that Dr Matthews had access to the notes of Dr Mishra’s clinic, to which the appellant was referred in April 2004, because he quotes opinions of Dr Mishra which pre-date the latter’s written report.

There can be no doubt in the light of these reports that the appellant is a seriously depressed individual and that his depression is exogenous. In his report of March 2005, Dr Matthews says this (pages 40 and 42 of the bundle):

“10.

In November 2004, Dr Mishra was very concerned that [the appellant] was expressing suicidal ideas and feelings of guilt and hopelessness. He felt that he was at a high risk of suicide and so referred him to the local crisis assessment and treatment team (the CAT team), who provide intense support and monitoring for patients under such circumstances. After [the appellant’s] condition stabilised, he was handed back to Dr Mishra’s care.

11.

Although it has been noted that [the appellant] has been depressed for most of last year, his mood does seem to be particularly vulnerable to adverse circumstances, and tends to deteriorate when he hears about the problems that his family are having in his home country.

Dr Matthews continued:

“15.

As stressful life events are well recognised as leading to a worsening of depression, it is likely that [the appellant’s] mental condition would deteriorate were he to be compelled to return to his home country, especially as [the appellant’s] mood has shown itself to be particularly vulnerable to deterioration related to external stresses. The risk of suicide would correspondingly increase under such circumstances.

16.

As his home country is where his original mistreatment is alleged to have taken place, his symptoms of Post Traumatic Stress Disorder would also be likely to deteriorate were he to be returned there.

17.

[The appellant’s] history of mental health problems increases the risk that he will attempt suicide if detained, as this has been noted to increase the risk of suicide in custody (see reference 1).

18.

I cannot comment on the state of health services in Ethiopia, or whether they are sophisticated enough to provide the mental health care that [the appellant] requires. However, were he to be returned there, this would be disruptive of the care he is currently receiving and of the therapeutic relationships he has established. It would also take him time to engage with such services, were they to be available, during which time he would be particularly vulnerable.

19.

Taking the above together, I would be extremely concerned that [the appellant] would attempt suicide were an attempt to be made to return him to Ethiopia.”

Turning to Dr Mishra’s report of April 2005, it says (at page 47 of the bundle):

“During my contact with [the appellant] his mood has continued to be low. He continues to be extremely anxious most of the time. He finds it difficult to sleep at night and will often sleep very late at night towards early morning and thus ends up waking up much later on in the day. His memory is poor and he needs to be reminded of his appointments. His appetite is low and he eats one meal a day. He feels quite isolated and although he has a few Ethiopian friends he finds it difficult to communicate with others in English. Unfortunately his family continue to be harassed in Ethiopia and he had heard that his brother had been imprisoned. His daughter who is about four years old has been physically unwell and [the appellant] has been understandably, extremely concerned about her. He is in telephonic contact with his family. In November 2004, he learned that the authorities had confiscated his family’s property and this caused him considerable distress. At that point in time his mood was very low and he was contemplating suicide. He was referred to the Crisis Assessment Service for psychological support and monitoring. He was in their care for over 2 weeks and was discharged from their service on 16 December 2004. He continues to feel extremely guilty about putting his family through problems in Ethiopia and feels angry, frustrated and helpless at being unable to do anything about this. He often goes to church to pray. He continues to feel very isolated where he is living and is unable to confide or share his problems with anyone. When last seen in March 2005 [the appellant] reported that he had learned that his father was in a coma. This has made him feel even more helpless about the situation. He continues to experience nightmares and low mood.”

Today Mr Southey, on the appellant’s behalf, has stressed a further paragraph in Dr Matthews’ report dated 14 March 2004:

“40: It is well recognised that stressful life events can affect the cause of depression. I therefore feel that the stress of being returned to Ethiopia would be very likely to lead to a deterioration in [the appellant’s] mental state. His risk of suicide would correspondingly increase under such circumstances.”

These passages include all those upon which the appellant’s skeleton argument relies. The background to them is his account of persecution of himself and his family which, however, was at least in the former respect disbelieved by the immigration judge. His undoubtedly real anxiety about his family’s continued suffering arises from his absence, which is not, upon the immigration judge’s findings, attributable to persecution. Nevertheless, it is submitted on his behalf that removal would violate his right under Article 3 of the European Convention on Human Rights not to be exposed to inhuman or degrading treatment by the loss of essential psychiatric support, without which he may well commit suicide.

The first criticism in counsel’s skeleton argument was that the immigration judge had failed even to set out the evidence on which his decision had to turn, contrary to what was clearly said by Ouseley J in MK [2005] UKIAT 075 para 30. Mr Southey, although not abandoning this argument, has not developed it. It may well be that the decision is indeed deficient in this respect, although not perhaps totally so. At paragraph 60 it summarises Dr Mishra’s evidence as being “that there would be an increased risk of suicide were the appellant to be removed.” The brevity, while open to criticism, is perhaps understandable since the case before the immigration judge was predicated, and in the event foundered, on the veracity of the appellant’s account of events in Ethiopia. What matters now, however, is whether there was in reality a medical case capable of reaching the Article 3 threshold.

Mr Southey submits that had the law as it is now known to be been correctly applied to the medical evidence, the decision of this court in J v Home Secretary [2005] IAR 409, which post-dates the immigration judge’s decision, would or could have called for a decision in the appellant’s favour. He contends that when the immigration judge wrote “the medical evidence further does not suggest an imminent risk of suicide”, he was setting a falsely high standard. I do not think this is right. The immigration judge was not purporting to set a legal standard. He was noting correctly that the evidence did not suggest that the suicide risk was imminent. The legal standard was the one accurately identified by him in the next sentence:

“I do not find that the circumstances of this case are ‘very exceptional’ as envisaged in the case of M.”

The decision of the House of Lords in M v Home Secretary [2005] UKHL 31 makes it clear that the threshold of Article 3 is reached only in truly exceptional cases. One such class is where an AIDS sufferer is in the terminal stages of illness; see D v United Kingdom [1997] 24 EHRR 423. Where the threat to life or wellbeing comes from a suicidal impulse, the same test applies; see J v Home Secretary [2005] EWCA Civ 629. For present purposes, the proper approach to the test is most helpfully expressed in the speech of Lord Brown in M, paragraph 80:

“[In cases where] the applicant’s removal would sufficiently exacerbate the suffering flowing from a naturally occurring illness … the court will assess whether the applicant’s removal is itself properly to be characterised as Article 3 ill-treatment in the light of the applicant’s present medical condition.”

Among the criteria set out in J for the adaptation of the M principles to suicide cases, Dyson LJ at paragraph 30 included this:

“… 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.”

This case is, however, quite unlike J, where the appellant’s account of torture and ill-treatment in Sri Lanka was accepted. It was found not to afford objective grounds for a continuing fear of persecution, but it gave substance to the risk that return would drive him to suicide. The difficulty which the appellant faces in this case is that, given the rejection of his account of the events precipitating his flight to this country, the principal source of his depression and suicidal ideation must on the evidence be taken to be his anxiety about what his family have been going through in consequence of his flight. Removal to Ethiopia, rather than exacerbating this, is likely to alleviate it.

Not only, therefore, can this not be regarded as an exceptional case; it is doubtful whether it could even be regarded as a “foreign” suicide case for Article 3 purposes. There is nothing in the medical evidence to suggest that an enforced return to life in Ethiopia would aggravate the appellant’s depression and possibly precipitate suicide. The real relevance of the medical evidence was the support that it gave to his case that he had been ill-treated and tortured; but that case, unfortunately, did not succeed. Insofar as it might be a “domestic” suicide case, there is nothing in the evidence to indicate that expert and humane attention cannot sufficiently cushion the blow of removal in this, as in other cases.

In spite, therefore, of Mr Southey’s careful and elegant submissions, this appeal appears to me on analysis unarguable. The single immigration judge, who pretty much shared this view, ought not to have given permission to appeal on the basis of it. For this reason, and not because of the solicitor’s oversight, I would decline to enlarge the time for lodging the appellant’s notice and, in consequence, would dismiss the appeal.

LORD JUSTICE BROOKE: I agree.

LORD JUSTICE WILSON: I also agree. The appeal is therefore dismissed.