KR (Iraq) v Secretary of State for the Home Department

The appellant is an Iraqi Kurd, now in his early forties. He was a lieutenant in the state police under Saddam Hussein’s regime but acted as an informer for the separatist PUK movement. In 1987 his clandestine activity was suspected. He was detained and tortured but the following year was released and resumed work as a police officer. In 1991 he defected to the Kurdish Autonomous Authority and continued to work as police officer in Irbil until, in 1994, the KDP (PUK’s rival) seized and tortured him. He was released after about three months and resumed work, but in 1996 fled to Sulaymania, where he married a woman from an orthodox Muslim family which disapproved of the liaison.

Although the fact-finder did not accept that she had been murdered, it was accepted that in 2002 news of his wife’s death reached the appellant. Two years or so later news reached him that his brother too had been killed. The appellant was by then in the UK awaiting a final decision on his asylum claim. He had fled here October 2001 and claimed asylum on arrival. The Home Secretary refused his application, but his initial appeal succeeded. The adjudicator’s decision was, however, overset by the IAT on the Home Secretary’s appeal. On remission, an immigration judge in June 2004 dismissed the appeal, but on appeal the AIT found errors in the determination and adjourned the case for reconsideration on the factual basis which I have summarised.

The relevance of this assumed state of fact is that the case before us turns on the appellant’s psychiatric state. The medical report on which he relied cited the news of his wife’s death as the factor which precipitated a suicidal depression requiring in-patient treatment. The second-stage tribunal said:

They nevertheless dismissed his appeal, holding that the claim had to succeed under ECHR art.8 or not at all, and that the facts did not reach the threshold of exceptionality required to engage art.8. Alternatively, they held that if art.8 were engaged it would be proportionate to remove the appellant in the interests of immigration control.

The psychiatric evidence before the AIT came solely from the appellant’s side. Its substance was carefully distilled by them in the following passage:

Since the AIT’s determination, the House of Lords has delivered judgment in Huang [2007] UKHL 11. Although Edward Nicholson for the appellant submits that the AIT might well have reached a different view had they had their Lordships’ restatement of principle before them, he has not been able to show with any specificity how this might have come about. What seems more relevant is to use Huang as an additional touchstone for deciding issues which we would previously have answered, as the AIT did, by reference principally to Razgar [2004] UKHL 27, but nothing in this appeal turns upon it. I agree nevertheless with Auld LJ that the essential change in our approach following Huang will be that, rather than take the threshold of entry into art. 8(1) to be some exceptionally grave interference with private or family life, tribunals and courts will take the language of the article at face value and, wherever an interference of the kind the article envisages is established, consider whether it is justified under art. 8(2). In the great majority of cases it will be, because immigration controls are established by law and their operation ordinarily meets the criteria of proportionality which, in the Strasbourg jurisprudence, measure what is necessary in a democratic society for such prescribed purposes as the economic wellbeing of the country. While therefore there is no need to apply a formal test of exceptionality, it will be only rarely in practice that an otherwise lawful removal which disrupts family or private life cannot be shown to be compliant with art. 8.

The IAT, concluded its otherwise carefully reasoned determination with a contingent alternative finding:

It is necessary to say that, if art 8(2) were to be in issue, this perfunctory reasoning would be unacceptable. The courts have said more than once, and evidently we need to say again, that proportionality calls for a structured examination starting from the fact (actual or assumed) that the potential impact of removal on the applicant is so serious as to have engaged art. 8(1). It cannot be dealt with in a throwaway line. As Lord Bingham said in Razgar §20, the severity and consequences of an established interference with the primary art. 8 right, despite the strong imperative of immigration control, “call for careful assessment” case by case. As Mr Nicholson observes, there is as yet no case which holds that if a person were to commit suicide as a result of removal, this would be proportionate to the interests of immigration control.

In the event, Jane Collier for the Home Secretary does not seek to hold this limb of the decision. She does not accept that it is intrinsically deficient (though I venture to doubt whether the Home Office would be quite so sanguine about a comparably laconic finding that removal was disproportionate) but submits that, if the appeal were to succeed on art 8(1), it would call for reconsideration in the light of Huang.

For the reasons I have given, if the case on analysis reaches the art 8(1) threshold, I would have no hesitation in requiring a proper – meaning a full - consideration of the question of proportionality under art. 8(2). The single substantial question for this court is accordingly whether the IAT was entitled to conclude that the case did not reach the threshold of real risk in the first place.

As to this, the IAT set out their reasons with great care. Having reminded themselves of the law as it then stood they accepted Mr Nicholson’s submission that the risk to the appellant stood at its highest, on the evidence, not on the receipt of an adverse decision or on removal but following return. As to this, their findings need to be set out in full:

The IAT summarised their conclusion in these words:

Mr Nicholson’s case, as developed in argument, is that the effect of the AIT’s reasoning was unfairly to devalue Dr Craig’s written evidence of the risk of the appellant’s taking his own life if he is returned to Iraq. One aspect of this complaint was the tribunal’s failure to give Dr Craig an opportunity to respond to its critique by asking for her to be called. For my part I do not think Dr Craig’s evidence was mishandled. The remark made by the AIT in §10 about the starker picture painted in her follow-up report, while perhaps not a just criticism, does not the form the basis of any dismissal or devaluation of her evidence.

For the rest, nothing in the AIT’s appraisal of Dr Craig’s evidence was such as to require her to have an opportunity to respond orally to it. The real issue, as it emerged in argument, was not the nature or degree of risk of self-harm described by Dr Craig but the AIT’s findings in §17-18 as to the likelihood of the risk eventuating in the present situation in Iraq, where mental health services and supplies are rudimentary or non-existent. The AIT did not cast doubt on the psychiatric evidence that, without medication and support, there was a high risk that the appellant would take his own life: but they were not satisfied that he would find himself without these.

Ms Collier’s case on this critical issue is that it was for the appellant to show on the balance of probabilities that the want of medication for him in Iraq was such as to engage art 8. The AIT had not been satisfied that this would be the case, and there was sufficient evidence for them legitimately to reach that conclusion. There was also, she accepted, sufficient evidence for them to have reached the opposite conclusion.

The passages which I have cited from the AIT determination set out or reflect much of the material medical evidence. But it is appropriate to set out verbatim these passages from Dr Craig’s principal report, written on 24 July 2006:

No doubt is cast by the AIT on the soundness of Dr Craig’s opinion in this report. But the report required them to evaluate the likelihood that the risks she described would eventuate. This led them, in §17, to note that there had apparently been no attempt, even while in Iraq, at actual self-harm; to note, however, that he had throughout been medicated; but to regard as overstated the passage in Dr Craig’s addendum of 1 August 2006. As can be seen, the prognosis in that addendum that return would provoke “a very predictable and severe deterioration” in the appellant’s mental state, carrying “a very high risk of self-harm and suicide” reproduced almost verbatim the principal report, which had attracted no criticism at all from the AIT. This is puzzling, although it does not form a distinct ground of appeal.

I have set out in full the material passages of the AIT’s considered determination on the issue of risk. The primary question of law was whether return would violate the appellant’s right under art 8(1) to the protection of his mental stability, this being in law an aspect of his right to respect for his private life. Although there is a significant body of case-law on this question, it does not in my judgment affect the issue we have to decide. If there is an error in the AIT’s determination, it is in the way they (a) asked and (b) answered the question I have identified.

One sees at the end of §18 that the question the AIT asked themselves was whether they were satisfied “that those drugs which the appellant does need would not be available to him in Iraq to treat his condition”. Mr Nicholson submits that to approach the issue in this way is to place a burden of proof on the appellant which is both too onerous and too specific.

It is too onerous, in his submission, because it seemingly requires the lack of medication to be demonstrated at least on a balance of probability, whereas all an appellant has axiomatically to show is a real risk: see in relation to art 3 R (Bagdanavicius) v Home Secretary [2005] UKHL 38; in relation to art 8, Razgar (above) the same standard is connoted by “foreseeability”. Ms Collier has helpfully drawn our attention to the judgment of Hughes LJ in AJ (Liberia) v Home Secretary [2006] EWCA Civ 1736, which derives from Bensaid v UK (2001) 33 EHRR 10 a risk test in relation to reactive suicide which, albeit related there to art 3, cannot logically be different for art 8 cases.

The AIT’s test, secondly, is said to be too specific because, instead of making a rounded appraisal of the appellant’s actual and prospective situation, it singles out one element of it and demands proof that it represents a specific risk. I accept that it is not right for tribunals to subject each element of a case to discrete appraisal: that was made clear by this court in Karankaran v Home Secretary [2000] 3 All ER 449. The task is to give each element of evidence the weight it merits in coming to a single rounded appraisal of risk, whether in relation to asylum or to human rights protection.

Dr Craig’s evidence made it necessary for the tribunal to determine whether there was a real risk that the appellant, if returned to Iraq, would find himself without medication or support. Their finding in §20 that there was likely to be familial support is not contested but equally is only a partial answer. In the course of reaching a rounded conclusion they had also to address the evidence about the availability of named psychotropic drugs in Iraq. I do not think therefore that they can be properly criticised for over-specificity.

But I do not consider, with respect, that they have got the standard of proof right. Nobody could possibly be satisfied on the evidence described by the AIT that the needed drugs are likely to be available in Iraq, and the AIT do not make any such finding. Instead they find that they “are not satisfied that those drugs … would not be available” to the appellant. In my judgment it was not necessary for the AIT, if they were to find for the appellant, to be satisfied that drugs would be unavailable. The question for them was whether a lack of available medication, in the context of their other findings, would raise to a level which engaged art 8 the risk that the appellant would be driven to kill himself. The factual element of this question – access to medication – had to be appraised as an aspect of that risk: it did not have to be negatived in order to count. The right question, in my view, albeit not the only one, was simply the degree of likelihood that the appellant, if returned, would find himself without the medication needed to control his self-destructive impulses. This question was not answered by the AIT’s delphic finding.

Let me assume, however, that the AIT’s approach was a legally proper one. Could they reasonably have arrived at the answer they reached on the evidence before them? In my respectful judgment they could not. The data assembled in §18 demonstrate an overwhelming unlikelihood of obtaining any, let alone a regular supply of, amitriptyline or chlorpromazine, whether in the Kurdish area or any other part of Iraq.

Ms Collier, however, draws attention to the citation at the end of §17 of Dr Craig’s evidence that both drugs “had been available worldwide for many years”. This is not evidence that they were continuously available everywhere, and the summary which follows in §18 makes it clear that in war-torn Iraq, at least up to 2005, they were not. We have been shown by Ms Collier a number of passages in the IAS and CIPU reports which were before the tribunal, although not quoted by them. Most of these add to the bleak picture of mental healthcare in collapse (hospitals looted, no psychiatric beds, critical staff shortages, no drugs or even food), but two cite a WHO report of 31 July 2005 which recorded that a number of mental healthcare units were being constructed or rehabilitated, at least one in the Kurdish region.

It is not this court’s task, however, to marshal for the AIT the evidence which it could have but has not relied on. Moreover, we cannot say what the AIT would have made of the material. They would have needed to acknowledge, for example, that there was no way of knowing how many, if any, of the building projects had got off the ground since 2005. And they would have noted that much of the further material reinforces the bleak picture painted in §18.

The AIT has in my respectful view erred in law (a) in its evaluation of the availability in Kurdish Iraq of the psychotropic drugs needed by the appellant to control his depressive and suicidal impulses and (b) in its contingent finding that return would be consistent with art 8(2). It does not follow that a correctly made determination cannot reach the same conclusion, but neither does it follow that it will necessarily do so. Although we have been addressed on the content of the threshold test for art 8(1), the present appeal does not depend on it or therefore require a ruling on it.

For my part I would allow the appeal to the extent of remitting the case to the AIT.

I have had the advantage of reading the judgments of Auld and Sedley LJ in draft. For reasons which I shall explain, I agree with the judgment of Auld LJ. However, I agree with and gratefully adopt Sedley LJ’s exposition of the background, the AIT’s decision, the medical evidence and the submissions advanced before us.

At paragraph 21 of its determination, the AIT directed itself that, based on the House of Lords Decision in Razgar, it would only be in exceptional circumstances, amounting to a flagrant or fundamental breach (in effect a complete denial of his rights), that article 8 would be engaged. Auld LJ has raised the interesting question of whether, in the light of Huang, this is the right approach to article 8(1). I agree with his observations. However, it was not suggested to this court that the AIT had misdirected itself by setting the threshold for engagement of article 8(1) too high. The question which the AIT posed for itself, as the test for engagement of article 8(1), was whether, if he were refused permission to remain in the UK, there was a real risk that the appellant would commit suicide either in the UK, en route to Iraq or in Iraq. No one has suggested that that was too high a threshold. Accordingly, the only question for this court is whether, on the facts of this case, the AIT’s conclusion could be justified, that there was no such real risk. Sedley LJ found that it could not be; Auld LJ said that it could.

As Sedley LJ has acknowledged, the AIT approached its assessment of the evidence with great care. There were three strands of evidence which it regarded as important and relevant to the threshold question. The first of these was the appellant’s psychiatric history as it related to the history of his misfortunes and the setbacks to his claim for asylum. The AIT noted in particular the absence of any past attempt at self harm, notwithstanding the tragedies that had befallen him. Of course much of this history related to times when the appellant was being treated with appropriate medication. It is clear that the AIT was of the view that, while on medication in the UK or en route to Iraq (at which time he would in any event be under supervision), there was no real risk that he would commit suicide. However, it seems to me that the AIT was entitled to take this history into account, as it did, when assessing the magnitude of the risk of suicide if and when the appellant was returned to Iraq.

The second strand of relevant evidence was consideration of the degree of family support which the appellant would receive on his return to Iraq. Although his wife and one brother had been killed, his parents were still alive and well. They had supported and assisted him in the past when he had had psychiatric problems following his imprisonment and torture. There was no reason to think that they would not do so now if he returned.

The third strand of evidence related to the availability of psychiatric treatment and medication. It was accepted by the Secretary of State that mental health services in Iraq were poor. The material before the AIT showed that there was a shortage of drugs and equipment. However, the only psychiatric treatment the appellant had in fact received in this country was medication and it was the availability of that in Iraq which was the AIT’s main concern. After noting that there was a shortage of drugs in Iraq but observing that the drugs which the appellant needed had been available worldwide for many years, the AIT declared that ‘it was not satisfied that’ those drugs would not be available. It is this finding that founds the main challenge to the AIT’s decision. Plainly this was an important issue because Dr Craig had said that, without drugs, the appellant would be at high risk of suicide.

As Sedley LJ observed, Mr Nicholson submitted that the way in which the AIT dealt with this issue showed that it had imposed a burden of proof on the appellant to show on the balance of probabilities that the drugs would not be available. Sedley LJ rejects that submission, pointing out that the AIT was saying only that it was not satisfied that the drugs would not be available.

Sedley LJ’s criticism of the AIT’s determination is that its finding in respect of the likely availability of the needed drugs is ‘delphic’. It does not assess the risk of non-availability sufficiently explicitly. However, I cannot agree. It is plain from the in-country material that it would not be possible to hold that the drugs probably would be available. But that does not mean that they definitely would not be. Where a civil court makes a finding of fact on the balance of probabilities, that fact is taken as established for the purposes of that action. In a civil action in which the availability of drugs in Iraq were an essential finding, a holding that the court was ‘not satisfied that they would not be available’ would be taken as a finding that they would probably not be available and would equate to a finding that there were not in fact available. However, where the court’s task is to make a rounded assessment of risk, based on consideration of several different elements, each of which may depend upon uncertain facts, it is entirely legitimate to provide a more nuanced (or delphic) assessment of the chance or possibility or probability or near certainty of the relevant facts. I think that, by saying that it was not satisfied that the drugs would not be available, the AIT was saying that they might be available. It could not sensibly be expected to put a percentage chance upon that possibility. But the chance that they might be available is relevant to the rounded assessment of the risk that, if returned to Iraq, this appellant will be driven to commit suicide.

Thus, the final assessment of risk brings together the various factors or evidential strands previously discussed. The AIT took together the absence of any actual attempt at suicide in the past, the (highly probable) availability of parental support and the possible availability of drugs. In my view, in doing so, it properly took a rounded view of the question of risk. I would hold that, notwithstanding its ‘less than probable’ holding in relation to the important issue of the availability of drugs, it was entitled to conclude that there was no real risk of suicide on return to Iraq. This process of assessment is essentially a matter for the AIT, which is an expert tribunal and, in my view, this court should be slow to interfere with such an assessment. Although I myself might have reached a different conclusion, I do not think that it can be said that the AIT’s conclusion was irrational or clearly wrong or insufficiently founded in evidence. That being so, I would hold that the AIT was entitled to conclude that the appellant had failed to demonstrate an interference with his personal and private life as protected by article 8.

I would agree with both Auld LJ and Sedley LJ that, if the threshold of article 8(1) were reached in this case, the AIT’s treatment of the question arising under article 8(2) would have to be rejected as inadequate and the case would have to be remitted. However, as, in my view, the AIT’s decision on article 8(1) cannot be impugned, I would dismiss the appeal.

An interesting question, underlying the AIT’s reasoning and the submissions on both sides on this appeal is how and where in Article 8, the notion of “exceptionality” derived from R (Razgar) v SSHD [2004] AC 368, HL, operates in its application to cases of this sort where the Article 8(1) interference relied upon by a claimant is a feature or consequence of removal to another country. In the end it was a side issue in the appeal, but, if left unresolved, could lead to a misunderstanding of the state of the law as I believe it now to be.

In SSHD v Huang [2007] UKHL 11 the Appellate Committee have made clear that the notion is not a threshold or criterion for the engagement of Article 8(1) in asylum or extradition cases; it is an “expectation” that it will be exceptional for recourse to Article 8, read as a whole, to overcome the otherwise lawful removal of a claimant from the jurisdiction. It is plain from the Committee’s reasoning that such expectation turns on the relative weight of Article 8(1) interference against that of relevant factors that go to justification under Article 8(2), including, in particular, the public interest in maintaining an effective system of immigration control.

The Appeal Committee in Huang, began their discussion of exceptionality in this context by saying, at paragraph 16:

Such an approach, and explanation of it, is, with respect, entirely logical, given the structure of Article 8 in, and the relationship of, its two parts. First, Article 8(1) describes, albeit loosely, the right protected, the right to respect for … private and family life …”. Why the threshold for interference with such a sensitive right should rise to exceptional heights simply because it is engendered by a threat of removal of the claimant from the jurisdiction as distinct from a less draconian interference – but interference nonetheless - solely within the jurisdiction, it is hard to see. On any set of facts Article 8 is engaged or it is not.

Exceptionality, to the extent that it survives as an expectation, comes in at the Article 8(2) stage in drawing the balance between, on the one hand the severity in the nature and consequences of the facts constituting the Article 8(1) interference, and on the other the importance in the circumstances of the countervailing Article 8(2) factors present going to justification. If the interference so exceeds the Article 8(1) threshold as, say, to justify the description “flagrant and fundamental breach”, it is more likely - depending, of course, always on the circumstances - to prevail over the Article 8(2) justification in play.

Reading the AIT’s determination as a whole, it seems to me that it did not, in determining whether there was an Article 8(1) interference, set a higher than normal threshold, whether of exceptionality or otherwise. However, there remains the question whether it adopted the correct approach in law to determining whether Article 8(1) was engaged on the facts before it. This was for KR to establish.

The AIT clearly regarded as the critical question whether returning KR to Iraq would put him at a real risk of committing suicide, and, as an important, but not determinative, contributor to answering that question, the likelihood of the availability there of suitable medication to treat his psychiatric condition. Looking at its conclusion in paragraph 21 of determination, in which it stated that it was not satisfied that there was a real risk of suicide, it appears to have equated such a risk, if it had existed, with “a flagrant or fundamental breach of Article 8”. Nevertheless, regardless of the recent clarification by the Appellate Committee in Huang as to the role of “exceptionality” in this context, the AIT appears to have applied the correct real risk test. This is how it put it:

It is in the context of the availability of the medication that the AIT made the more focused observations at the end of paragraph 18 of its determination, to which Mr Nicholson took exception and on which Sedley LJ, in paragraph 23 of his judgment, has focused criticism, as an improper reversal of the burden of proof:

However, the AIT’s consideration of that matter, though important, was part of a wider exercise it had to undertake, namely a single rounded appraisal of risk of the sort indicated by this Court in Karankaran v SSHD [2000] 3 All ER 449, in particular by Sedley LJ at 479b-e. It is plain from its appraisal that it consisted of three main components. The first, which it regarded as “significant”, was, as it recorded in paragraphs 15 and 17 of the determination, the absence of any attempt at suicide or other self-harm over a period of many years in the course of which he had undergone periods of high stress. The second was its acknowledgement, in paragraphs 17 and 18, of the possibility that he might not be able to obtain on return to Iraq the medication he is presently taking, medication that was at one time prescribed for him in Iraq and which is available world-wide. The third, which the AIT described in paragraph 20 as “[a] further important factor”, was the presence of KR’s parents in Iraq and the likely support they could give “to obviate any risk that there might be after removal”.

Thus, as the AIT made plain in expressing its conclusion, it relied on a number of factors, not just the likelihood or otherwise of the availability of medication to KR in Iraq, to which it referred in paragraph 18 of its determination. Looking at the evidence and the AIT’s analysis of it as a whole, I am of the view that it was fairly capable of supporting its finding that KR had not established a real risk of committing suicide if returned to Iraq, and that he had not, therefore, established the claimed interference with his Article 8(1) right to respect for his private life. I would, accordingly, dismiss the appeal on that basis.

If I am right in that view, Article 8(2) does not arise for consideration. If I am wrong, I respectfully agree with Sedley LJ’s strictures in paragraphs 8 – 10 of his judgment as to the inadequacy of the reasoning of the AIT in reaching its contingent alternative finding as to justification under Article 8(2). On that view of the case, it would have to be remitted to the AIT under for reconsideration of that issue.