SS (Sri Lanka) v Secretary of State for the Home Department

This is an appeal by SS against the determination dated 7 January 2011 of Senior Immigration Judge Spencer, sitting in the Upper Tribunal (Immigration and Asylum Chamber) dismissing her appeal against the determination of Immigration Judge Roopnarine-Davis, which in turn dismissed her appeal against the decision of the Secretary of State refusing her claim to asylum and to humanitarian protection.

The only ground of appeal relates to the Senior Immigration Judge’s consideration of the medical evidence adduced on behalf of the appellant.

Having heard the submissions of Ms Bayati on behalf of the appellant, the Court announced its decision to dismiss the appeal, and stated that our reasons would be given in writing. My reasons for dismissing the appeal are set out in this judgment.

The appellant is a citizen of Sri Lanka, of Tamil ethnicity, born in November 1982. Her son, born in 2001, is present in the UK as her dependent. She came to this country on a false passport and claimed asylum. She claimed that she feared to return to Sri Lanka, by reason of her ethnicity, her origin in Vanni, from which she had been displaced in the hostilities between the LTTE and the Government, and in part because her husband had fought in the LTTE between 1996 and 1998, before their marriage, and had subsequently disappeared, presumably having been detained by government forces; and she had been a LTTE supporter. She claimed that she had two brothers and a sister in this country who were British citizens.

As mentioned above, the Secretary of State rejected the appellant’s claim. She appealed to the Asylum and Immigration Tribunal. Her appeal was heard by Immigration Judge Roopnarine-Davis on 2 November 2009.

The appellant gave evidence orally before the Immigration Judge. She said that she feared torture if returned to Sri Lanka, because all those from Vanni were considered by the Sri Lankan army to be Tigers and were arrested for that reason; in addition, those in the camps would tell the army that her husband had been a Tiger, and the army would torture her and take her son away to prevent him growing up to be a Tiger.

There was no independent evidence that the appellant had brothers or a sister in this country who were British citizens, and the Immigration Judge did not accept that they were. He accepted that the appellant was a Tamil from Vanni. He did not accept that her husband had been a member of the LTTE or that he had ever come to the attention of the authorities as such. He did not accept that people in the camps would tell the authorities that her husband had been a member of the LTTE. The Immigration Judge’s findings of fact are set out in paragraphs 16 to 18 of his determination:

“16.

Looking at the evidence in the round and with anxious scrutiny I find as a fact that the appellant’s husband was not a member of LTTE nor known as such and the crux of her claim falls away. The appellant has not suffered persecution in the past in Sri Lanka. I find that there are not substantial grounds for believing that she faces a real risk of persecution if she is returned there today. There are not, on the facts as found, ‘serious reasons for believing that the appellant would be of sufficient risk interest to the authorities in their efforts to combat the LTTE’ – referred to as the first test in Aruliraivan above.

17.

The appellant’s husband is not a wanted man. There is no reason why she and her son would be arrested at Colombo airport. The scars she has are explicable. She has been in the UK barely 2 months. She has not taken any part in activities for the LTTE in the UK or in fact in Sri Lanka. There is little evidence that she actually left Sri Lanka illegally or that this by itself or simply being a failed asylum seeker … will put her at risk. She can truthfully assert that she has not volunteered support for the LTTE and I have rejected her claim that her husband was a member. She does not have relatives in the LTTE and can demonstrate that her family has been living in the government controlled area of Mannar since 1997 without interest to the authorities. The objective evidence does not show serious grounds for believing that the appellant will be at risk simply on account of her Tamil ethnicity though I accept that having come from the North of the country she is likely to undergo more questioning as to her background at Colombo airport (UNHCR and respondents Report of Information Gathering Visit to Colombo Sri Lanka 23-29 August 2009) The evidence does not show that simply being from the North and without an ID card will put a failed asylum seeker at risk of persecution. There are procedures for obtaining a replacement and this appellant has a network of family and friends and the financial wherewithal to apply for a replacement.

18.

In so far as humanitarian protection is concerned and for reasons which I have set out above and applying the criteria under paragraph 339C of the Immigration Rules, I find there are not substantial grounds for believing that the appellant faces a real risk of serious harm in Sri Lanka. I find also that there are not substantial grounds for believing that the appellant faces a real risk of death or inhumane and degrading treatment in Sri Lanka under articles 2 and 3 of the ECHR. I have not come to this finding lightly. I have been cognizant of the UNHCR’s advice as set out in the 2009 Sri Lanka Guidelines and its Note dated July 2009. Although it is stated that the ‘current protection and humanitarian environment in Sri Lanka remains extremely challenging in the North’ there is no reason why this appellant should have to return to the poor conditions in the camps in the North. She comes from a relatively wealthy family. She does not have a profile that will put her at ‘relatively higher risk’ as described in the UNHCR note. The appellant can return to Mannar or to Vavuniya although it is accepted that there are problems with freedom of movement. In this event she could settle in Colombo until conditions in the north stabilize or become more favourable. She can enlist the assistance of her relatives in the north. I do not consider this to be in her circumstances a harsh relocation alternative. She is an intelligent young woman with close family and means as referred to previously. It has not been shown to the lower standard that there is a real risk of a breach of her rights under Article 3 as submitted in paragraph 28 of Miss Physass’s skeleton argument.”

In December 2009, Senior Immigration Judge Goldstein ordered reconsideration of the Immigration Judge’s determination. On the reconsideration, on 19 March 2010 Senior Immigration Judge Jordan rejected the appellant’s challenges to the Immigration Judge’s findings of fact as to the appellant’s account of past events in Sri Lanka, but said that the Immigration Judge had failed to address the logistics of family members coming to meet her at the airport in Colombo and of her travelling to Mannar, where she has family, and the prospects of her having to spend time in a camp, with attendant risks, given that she had some scarring. He therefore gave permission to appeal.

Ultimately, the appeal came before Senior Immigration Judge Spencer on 29 November 2010. The appellant’s sister gave evidence, and medical reports on the appellant from Dr Gunam Kanagaratnam, a psychiatrist, dated 30 June 2010 and 27 September 2010, were submitted on her behalf. The appellant did not give evidence. The Secretary of State did not put in any medical evidence.

In Dr Kanagaratnam’s first report, he stated that it had been prepared in response to instructions from the appellant’s solicitors in relation to her immigration. He said:

“I wish to state that [the appellant] was in an extremely disturbed state of mind on both occasions when she attended the assessment. I had great difficulties in being able to obtain a comprehensive and coherent account of her trauma related history and torture experiences.

She found it extremely painful to disclose her trauma related history and her torture experiences. Despite empathy and sensitivity during the assessment I was not able to obtain her complete history despite having spent six hours. Nevertheless my report includes the essential components of her trauma related experiences.”

He set out the history given by the appellant, which went beyond what she had told Immigration Judge Roopnarine-Davis, and which included the following:

“[The appellant] got married in 1999. Her husband had been a combatant with LTTE since 1996. She met her husband when he was attached to the LTTE camp in Mulankavil. The LTTE allowed him to get married on condition that he would return whenever they recalled him. Her son was born in 2001. Her husband continued to retain his involvement with LTTE and had participated in their battles.

Her husband had to return to the LTTE and was an active combatant.”

Dr Kanagaratnam stated:

“Her psychological presentation was that of a person experiencing intense distress, which was reflected by her evident anguish. She stated that due to her traumatic experiences, the fear of imminent death whilst being a refugee with her son, she had undergone an irreversible change in her personality with damage to her self-concept.

Frequently she would experience intense suicidal ideations believing that her life is pointless. She reports of a sense of foreshortened future without hope for a normal life, family or employment and that she had frequently contemplated suicide. She believes that death would be an acceptable alternative if not for her concerns regarding her son.

She stated that it is difficult to find any meaning in life for her. In her current mental state compounded by her sense of desperation if she were to be returned to Sri Lanka her intense suicidal ideations would remain a matter of considerable concern.

During further enquiries she states that she would find it extremely unsafe for her to live anywhere in Sri Lanka. Due to her disturbed mental state in her present state of mind she would not have the ability to live with her son and obtain treatment that is necessary for her. She repeatedly stated that she fears for her life if she were to be returned to Sri Lanka and that she will never be able to endure any form of trauma related experiences or interrogation. ”

In the section headed “Discussion”, the first report stated:

“She had experienced intense military hostilities, which had directly affected her and her family.

She had been taken held at gunpoint by the soldiers, threatened with death and had faced imminent death.

It is of significance that these stressors have been extreme and not merely severe.

[The appellant] continues to experience intense fear, helplessness and horror and presents with features of clinical depression that occurred as a direct result of these extreme stressors, which continue to evoke in her powerful subjective responses.”

Furthermore:

“On account of her disturbed mental state she has become dysfunctional.

On account of her disturbed mental state [the appellant] had difficulty in being able to provide and account of experiences her history and with extreme difficulty was able to engage and participate with the assessment process. Her history could be completed only in therapy where psychological support could be continued.

Ms Naveenchandran (sic) had undergone an irreversible change in her personality due to her traumatic experiences. She reported of recurrent thoughts of suicide, damaged self-concept and worthlessness, which remain quite profound.”

Dr Kanagaratnam’s diagnosis was that the appellant suffered from “complex post traumatic stress disorder and major depressive disorder”. Under the heading “Treatment Plan and recommendations”, he said:

“[The appellant] had been to her General Practitioner. She had been treated for her physical complaints. However on account of her disturbed mental state compounded by her sense of grief, [the appellant] should be referred to specialist psychiatric services.

She requires appropriate treatment for her depressive illness. Treatment with antidepressants should be evaluated due to her suicidal ideations. If her depressive illness continues to remain unresolved the risk of suicide is high and the medications would have to be reviewed. The antidepressant medication would include any of the following:

Venlafaxine X.L., Duloxetine or Escitalopram.

She will require continued supervision by the psychiatric services.

[The appellant] will require psychological intervention and support to enable her to come to terms with trauma related experiences in which she and her son faced imminent death.”

Dr Kanagaratnam also commented on the availability of medical care in Sri Lanka. It is far from clear that this was within his expertise. In the course of doing so, he stated:

“Due to the extreme stressors, which were of life-threatening nature that she had experienced [the appellant] believes that if she were to be returned to Sri Lanka she would be at risk. She states that this is particularly so on account of the fact that her husband had been a member of the LTTE. She became very distressed and stated that rather than face torture and certain death suicide would be an acceptable alternative.”

Dr Kanagaratnam’s second report confirmed the diagnosis made in his first report. He stated that the appellant had not been referred to specialist psychiatric services and that the treatment plan remained what had been set out in his first report. He said:

“Due to the severe and enduring nature of her psychological dysfunction caused by her life-threatening and traumatic experiences, she will find giving evidence at her hearing re-traumatising and will become distressed due to severe anxiety. Consequently her mental state will become affected.

She is fit to attend but on account of her disturbed mental state will experience difficulty in being ale to understand the nature of the proceedings. She is very likely to become extremely dissociated and perplexed during the proceedings, which will then affect her ability to follow and respond to questions.

I believe that she will become unable to understand the nature of the question she would be expected to answer. Due to her disturbed state she is very likely to become unable to instruct or follow the proceedings. She is likely to become perplexed and in her disturbed mental state become unable to provide a coherent account in Court.”

Senior Immigration Judge Spencer rejected the evidence of the appellant’s sister, and there is no challenge to that part of his determination. Given that the appeal relates to his treatment of the reports of Dr Kanagaratnam, I shall set out the relevant parts of the determination:

“28.

In evaluating the weight that I should attach to the reports of Dr Kanagaratnam there are a number of factors that I have to take into account. The first is there is no evidence to show that his assessment was based on the facts as found by the immigration judge in her determination of the appeal, which are unaffected by any error of law. In paragraph 14 of her determination she said that neither the appellant nor her husband or father had been arrested or detained or suffered direct harm from the Sri Lanka authorities as a result of their claimed connection with the LTTE, nor had any of her family in the government controlled Mannar region, which was in close proximity to Mullativibil, where the appellant lived. In paragraph 15 she said that the appellant’s evidence, that her father was released from the camp in Vavuniya because of his age and upon her sister’s request, was consistent with the background evidence. She was satisfied that if he were suspected of any connection with the LTTE either on his own or by association with the appellants husband he would not have been released. She said the fact that the appellant and her son were able to remain without interest to the authorities in Vavuniya for six months after her husbands claimed disappearance further undermined her claim that her husband was a member of the LTTE or known as such. In paragraph 16 she said that looking at the evidence in the round with anxious scrutiny she found as a fact that the appellant’s husband was not a member of LTTE or known as such and the crux of the appellants claim fell away. In paragraph 17 she said the appellant did not have relatives in the LTTE and could demonstrate that her family had been living in the government controlled area of Mannar since 1997 without interest to the authorities.

29.

The second factor which I find of significance is that there is no indication in either report by Dr Kanagaratnam to support the claim that the appellant was dependent upon her sister, Ms Balasingam. In paragraph 5 of her witness statement Ms Balasingam said that the appellant initially stayed with their brother Thanigasalanathan and she had been living with her most of the time after that. It is apparent from the determination of the immigration judge that the appellant arrived in the United Kingdom on 15^th August 2009. In his first report Dr Kanagaratnam said that on her arrival in the United Kingdom the appellant had been staying with her brother Mr Thanigasalanathan and his family. Moreover, Dr Kanagaratnam did not report that the appellant was accompanied by anybody else on the three occasions upon which he assessed her. It is apparent from the appellant’s screening interview, which took place on 17^th August 2009, that she then said she was living with Thanigasalanathan Balsingam at an address in Hayes in Middlesex, She gave the name of her sister Thevarani, spelled Devarani, Balsingam, but indicated she did not know her address or telephone number.

30.

A further important factor is that, according to Dr Kanagaratnam, the appellant had been to see her general practitioner, Dr Ananthi Karunalingam, on account of chest pain, breathlessness and menstrual irregularities but there was no mention of her seeing him for any psychiatric problems.

31 Moreover, there was no indication whatsoever in the determination of the immigration judge of any difficulty which the appellant had in giving evidence and of her evidence. The psychiatric problems of which the appellant now complains did not arise at the date of the letter of refusal and apparently only manifested themselves after her appeal was dismissed by the immigration judge.

32.

When the appellant was interviewed on 28^th August 2009 she said she was fit, well and content with the interview that day and at the end of the interview she indicated that she was still feeling fit and well. During the course of that interview she described how the family, comprising her father, her husband, her son and her mother’s sister were displaced from Mulankavil on account of the war between the LTTE and SLA. She said they were displaced with the whole village and due to constant shell attacks they were going from place to place. She described going to Jeyapuram, on to Kanthapuram, on to Murippu and then to Visvamadu. She said it was there that her son got diarrhoea and was suffering from stomach ache. There was nothing to eat so they were sent by ship to the hospital in Trincomalee, where they were taken by ambulance to Vavuniya Hospital. She boarded the ship in February 2009 and left Sri Lanka on 15^th August 2009 and in between those dates she lived in Vavuniya at her father’s friend’s house.

33.

In question 69 the appellant was asked “Did you have any problems from the LTTE or the authorities when you left Mulankavil?” Her answer was “When the army was approaching Mulankanvil we were going ahead of them so we escaped from any problems.” During the course of the interview the appellant said nothing about having been captured by the Sri Lankan army, detained for two hours and questioned by the soldiers. Although she did mention the fact that there were constant shell attacks she gave no indication that they caused her any problems whatsoever

34.

A further factor which in my view is of significance is that although Dr Kanagaratnam was employed in a private capacity to provide his reports, nothing has been done to obtain any treatment for the appellant. Although her sister in evidence said that she was taking medication she was not able to say what it was and said that the appellant did not have it with her. That did not seem to be consistent with the statement by Dr Kanagaratnam, in his report dated 27^th September 2010, when he said she required appropriate treatment for her depressive illness. Her treatment with anti-depressants should be evaluated due to her suicidal ideation. The impression I have therefore is that the report of Dr Kanagaratnam was obtained to assist the appellant in her appeal rather than to lead toward proper treatment of her symptoms.”

The Senior Immigration Judge referred to the tests, set out in the judgment of Dyson LJ (as he then was) in J v Secretary of State for the Home Department [2005] EWCA Civ 629, to be applied in a case in which it is said that there is a risk of suicide on or following removal and continued:

“38.

Applying these principles to the present case I am not satisfied that the appellant has truthfully presented symptoms of post-traumatic stress disorder to Dr Kanagaratnam. I accept that his opinion has been reached in good faith. Nevertheless, for the reason which I have mentioned, I am not satisfied that the appellant’s fears are objectively justified nor indeed subjectively well founded. So far as the risk of suicide is concerned, there is no evidence from any source that the appellant has made any attempt to harm herself nor indeed does it appear that she has required any medical intervention. In these circumstances I am not satisfied that if the appellant were to be returned to Sri Lanka there would be a real risk of suicide.”

The Senior Immigration Judge then considered the risk of the appellant being detained, questioned and ill-treated on return to Sri Lanka, and found that there was no such risk. He found that she and her son could be met safely with members of her family in Colombo and return to live with them in Mannar. He also found:

“65.

I take the view, that if contrary to the conclusion which I have already expressed, the appellant were at risk of suicide, the arrangements could be made by the members of her family for her reception and care on return to Sri Lanka which would obviate the risk. Paragraph 26.16 of the COIR on Sri Lanka, dated 18^th February 2010, indicated that the World Health Organisation Report entitled ‘The New Mental Health Policy for Sri Lanka’ undated but accessed on 25^th January 2010, notes that it has been estimated that nearly 400,000 Sri Lankans suffered from serious mental illness. The estimated prevalence of depression among the general public varied from 9% to 25%. Paragraph 26.17 makes it plain that in Colombo there are facilities at the Institute for Mental Health that hold up to 1,400 patients. There was a long stay unit at Hendala for men and a similar unit in Mulleriyawa that catered for up to 850 female patients with nine other hospitals having places for between 20 to 30 in Sri Lanka. There was only one private hospital in Colombo providing psychiatric treatment although private consultations with psychiatrists working at public facilities were available. There were also a number of NGOs providing some mental health care.

66.

Paragraph 26.22 refers to a British High Commission letter of 19^th August 2008 noting that the Sri Lanka government provided free drugs and care to patients with mental health problems. In these circumstances it cannot be said that if the appellant were to be suffering from mental health problems there would be a lack of facilities for her treatment in Sri Lanka”

Accordingly, Senior Immigration Judge Spencer dismissed the appeal.

For the appellant, Ms Bayati accepted that the appellant was bound by the findings of fact made by Immigration Judge Roopnarine-Davis. However, she submitted that the Senior Immigration Judge had erred in his treatment of the medical evidence. Although he was not obliged to accept Dr Kanagaratnam’s diagnosis and prognosis, Senior Immigration Judge Spencer was required to exercise caution when considering it, and had not done so, and had not given good or adequate reasons for rejecting them. The Senior Immigration Judge’s assessment of the appellant’s claims under Articles 3 and 8, and the risk of her suicide, were based on his error in his assessment of the medical evidence, and therefore could not stand. In addition, he failed to assess the impact of return on the appellant’s son.

We did not find it necessary to call on Ms Chan, who had submitted a detailed skeleton argument in which she submitted that the Senior Immigration Judge had been entitled to scrutinise and to assess the medical evidence as he did and that he gave adequate reasons for his decision.

Generally speaking, the weight, if any, to be given to expert (or indeed any) evidence is a matter for the trial judge (here Senior Immigration Judge Spencer). A judge’s decision not to accept expert evidence does not involve an error of law on his part, provided he approaches that evidence with appropriate care and gives good reasons for his decision. Ultimately, therefore, there are only two issues as to the Senior Immigration Judge’s treatment of the medical evidence: did he address that evidence with appropriate care and did he give good reasons for his conclusion? Those two questions are interrelated. It is difficult to conceive of a case in which a judge gives adequate reasons for his conclusions on expert evidence yet he is held to have exercised insufficient care. His reasons demonstrate his care.

In my judgment the Senior Immigration Judge gave not merely acceptable, but full and cogent, reasons for his conclusions as to Dr Kanagaratnam’s evidence. Indeed, the facts were striking. The appellant had previously had no difficulty in giving her account of what she said had happened to her in Sri Lanka. Before seeing Dr Kanagaratnam, she had not consulted her general practitioner for help with what he had found were extreme and disabling symptoms of PTSD. He having made his diagnosis and prescribed a treatment plan in his first report, including suggested medication, when she came to see him nearly 3 months later, there was no evidence that she had consulted her general practitioner, and Dr Kanagaratnam stated in terms that she had not been referred to specialist psychiatric services. The Senior Immigration Judge referred to this at paragraph 34 of his determination and was entitled to take it into account.

Ms Bayati cited and relied upon the judgment of Sedley LJ in Y and another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362:

“11.

While no tribunal is bound simply to accept everything that such experts say because they have gone uncontradicted, it is well established that the tribunal must have, and must give, acceptable reasons for rejecting such evidence. …

12.

… where the factual basis of the psychiatric findings is sought to be undermined by suggesting that the appellants have been exaggerating their symptoms, care is required. The factuality of an appellant's account of his or her history may be so controverted by the tribunal's own findings as to undermine the psychiatric evidence. This happens from time to time, but it did not happen here. What happened here was that the designated immigration judge himself formed the view that the appellants (who had not given oral evidence before him) had been calculatedly exaggerating the symptoms they recounted to the expert witnesses. That is in the first instance a matter for the experts themselves, a fundamental aspect of whose expertise is the evaluation of patients' accounts of their symptoms: see R (M) v IAT [2004] EWHC (Admin) 582 per Moses J. It is only if the tribunal has good and objective reason for discounting that evaluation that it can be modified or – even more radically - disregarded.”

As to the acceptability of the Senior Immigration Judge’s reasons, Ms Bayati’s only criticism of the facts to which he referred in paragraphs 28 to 35 of his determination related to paragraph 28. She suggested that, contrary to the finding in paragraph 28, there was no material difference between the history given by the appellant to Dr Kanagaratnam and the facts as found by the Tribunal. I disagree. There were fundamental differences, sufficient of which were referred to in paragraphs 28 and 33 of the determination. If I refer to paragraph 12 of Sedley LJ’s judgment cited above, this is a case in which the appellant’s account of her history to the doctor is controverted by the tribunal’s own findings such as to undermine the psychiatric evidence.

In my judgment, in the circumstances of this case, in which there had been what amounted to an adverse finding on credibility, no hint of psychiatric illness until after the rejection of the appellant’s appeal by Immigration Judge Roopnarine-Davis, and a failure by the appellant to act on Dr Kanagaratnam’s clear recommendations, Senior Immigration Judge Spencer was particularly entitled to examine the medical evidence critically. I see no error of law on his part.

Ms Bayati suggested that the Senior Immigration Judge failed to consider the impact of removal on the appellant’s son. However, no evidence of relevance to this was adduced before him, and no relevant argument addressed to him. His determination cannot be faulted on this ground.

Finally, I see no basis for interfering with the alternative finding made by the Senior Immigration Judge in paragraphs 65 and 66 of his determination, and indeed none was suggested.

The essential question for the Senior Immigration Judge was whether if returned there was such a high risk of suicide on the part of the appellant that it would be a breach of Article 3 to return her to Sri Lanka, or a breach of her rights under Article 8. Senior Immigration Judge Spencer gave more than adequate reasons for his determination, which discloses no error of law. I would dismiss the appeal.

I would add that I criticise the appellant’s solicitors for their failure to provide Dr Kanagaratnam with relevant documents. These included Immigration Judge Roopnarine-Davis’ determination, the Secretary of State’s decision letter, and the record of her initial interview by UKBA on 28 August 2009. He would then have been alerted to the fact that her account to him differed from her previous account; that her credibility was in issue; and that, if her presentation to him was genuine, there had been an enormous deterioration in her mental health since, at the earliest, 2 November 2009, yet she had not consulted any doctor in relation to it and had never sought medical treatment, but only his report for forensic purposes. As it was, he had no reason to question the account he was given by the appellant or her presentation to him.

It is essential that those who are asked to provide expert reports, be they medical or otherwise, are provided with the documents relevant to the matters they are asked to consider. Failure to do so is bound to lead to the critical scrutiny of the expert’s report, and may lead to the rejection of the opinions expressed in that report, as it did in this case.

Lastly, we would caution against appellants seeking to present arguments as to the weight given to particular evidence by the Tribunal as raising issues of law. This appeal was about the weight given by the Senior Immigration Judge to the evidence of Dr Kanagaratnam. It is because the weight to be given to that evidence was a matter for the Judge that on analysis this was a reasons challenge; and, as I have said, the reasons given by Senior Immigration Judge Spencer were manifestly adequate.

I agree.

I also agree.