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

On 19^th December 2011 Carnwath L.J. heard a renewed application in this matter for permission to appeal against the order of the Upper Tribunal dismissing the applicant’s claim for asylum. The application was subject to the Appeals from the Upper Tribunal to the Court of Appeal Order 2008, by virtue of which the applicant must satisfy the court that the proposed appeal would raise an important point of principle or practice or that there are other compelling reasons why this court should hear a second appeal.

Carnwath L.J. refused permission in relation to most of the proposed grounds of appeal, but thought that certain grounds might satisfy the second appeal test. He therefore adjourned the application in relation to those grounds to be listed before three Lords Justices on notice to the respondent, with the appeal to follow if permission were granted. The adjourned application was listed before us pursuant to that order and we decided to hear full argument on the merits without prejudice to our decision whether permission to appeal should be granted.

The applicant is a national of Sri Lanka who came to this country with her two children, then aged ten and four, on a visitor’s visa in December 2009. On 8^th January 2010 she claimed asylum, but her claim was rejected by the respondent, as was her appeal to the First-tier Tribunal. However, she obtained permission to appeal to the Upper Tribunal. On 9^th November 2011 Deputy Upper Tribunal Judge Sommerville held that the First-tier Tribunal had made an error of law and gave directions for the resumed hearing before him, which took place on 12^th May 2011.

The applicant’s case is that she is a Sri Lankan Tamil whose husband acted as a counsellor to Tamil women who had been raped or subjected to other atrocities by the Sri Lankan armed forces. He reported the incidents which came to his notice to a Member of the Sri Lankan Parliament, who in turn publicised them by issuing press releases. Those press releases, she said, caused embarrassment to the government. She said that on 17^th December 2010 their house had been raided by the army who punched and kicked them both and other members of the family who were present. They raped her in front of her husband who was then taken away and has not been seen since. On 23^rd December 2009, after treatment in hospital, the applicant left Sri Lanka with her two children and came to the United Kingdom where she claimed asylum. Since arriving in this country she has been told by her mother that armed men have returned to the house looking for her. She said that she feared further violence or worse if she were to return to Sri Lanka by reason of her husband’s previous activities and what would be viewed as her complicity in them.

The respondent’s case, which reflected the position taken in the refusal letter, was that, in the light of various discrepancies in the applicant’s account of her husband’s activities and of her own experiences in Sri Lanka, she was not credible and had not established that she had a well-founded fear of persecution or ill-treatment more generally if she were returned to Sri Lanka.

In support of her case the applicant relied on reports from her General Practitioner, Dr. Khan, and the Senior Practice Therapist linked to that practice, Ms. Jan Moore, a report from Professor Sundara Lingam, who dealt with scarring on various parts of her body, and a report from a psychiatrist, Dr. Krishnapillai Balasubramaniam on her mental condition.

Dr. Khan examined the applicant in January 2011. He found her to be suffering from advanced breast cancer and serious mental problems, including depression and post traumatic stress disorder. He described her as presenting with “very low mood, increased anxiety, inability to concentrate, total self-neglect to the extent that she is neglecting her young son, social withdrawal and crying and suicidal thoughts.” He stated that the applicant displayed all the signs and symptoms of post traumatic stress disorder, including flashbacks of the incident which she had described to him.

When Dr. Balasubramaniam examined the applicant he also diagnosed depressive disorder and post traumatic stress disorder. He noted that she was suffering from breast cancer. He described her as having flashback experiences of the trauma she had suffered in Sri Lanka. Prof. Lingam said that the scars on her arms were consistent with the history she had given.

Judge Sommerville was not impressed by the medical evidence. He found Prof. Lingam’s report to be “entirely unsatisfactory” because he had failed to identify the injuries sufficiently, had failed to differentiate between the injuries said to have been caused by the reported incident and other incidents, had failed to describe what information he had been given about the applicant’s history and had failed to consider other possible causes of the injuries. He therefore gave the report no weight.

He also found that he could place little reliance on Dr. Balasubramaniam’s report, because, he said:

“ . . . it entirely fails to consider other reasons for her mental condition, for example, that she has been suffering from breast cancer; that she is out of her home country; that her husband has disappeared and his whereabouts are said to be unknown and the protracted determination of her asylum claim. All the foregoing might reasonably be [sic] wholly or partly contribute to her mental condition, but these possibilities have been overlooked.”

In the end the judge held that the applicant had failed to establish that as a result of her husband’s activities she had been sexually assaulted and he had been abducted. However, he went on to find that, even if he had been prepared to accept her account as entirely true, she would be at no risk of harm on her return to Sri Lanka, because, her husband having been silenced, she was no longer of any interest to the authorities. The judge was not invited by either side to give separate consideration to the best interests of the applicant’s children and did not do so, beyond saying that their family life would be preserved if they were to be removed with her to Sri Lanka.

The grounds of appeal in respect of which Carnwath L.J. adjourned the application for permission were (in summary):

Miss Jegarajah submitted that this case satisfies the second appeal test for three reasons: first, because it raises an important point of principle concerning the tribunal’s duty to consider, if necessary of its own motion, the best interests of any children likely to be affected by the removal of the relevant adult; second, because the potentially serious effect on the applicant’s children of her removal was sufficient in this case to provide compelling reasons for this court to hear a second appeal; and third, because whenever a child is liable to be adversely affected by an applicant’s removal there is, for that reason alone, a compelling reason for this court to hear a further appeal.

The importance of giving proper consideration to what is in the best interests of any child likely to be affected by the tribunal’s decision has been emphasised in ZH (Tanzania), in which Baroness Hale pointed out that the United Kingdom has certain international obligations in this respect under the United Nations Convention on the Rights of the Child. In paragraph 23 of her judgment Lady Hale noted that the United Kingdom has a binding obligation in international law to ensure that the best interests of the child are a primary consideration in all actions concerning children, including actions undertaken by public institutions, an obligation which is reflected in section 11 of the Children Act 1989. It therefore follows that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8(2) of the European Convention on Human Rights (“ECHR”).

Despite that, I am unable to accept that Miss Jegarajah’s third submission is well-founded. Now that attention has been drawn by the decision in ZH (Tanzania) to the need to consider the best interests of any child liable to be affected by the removal of an appellant, it is to be hoped and expected that tribunals at both levels will deal fully and fairly with the question. If that is the case, I do not think that the mere fact that a child’s interests are involved is sufficient to provide compelling reasons for this court to hear a further appeal. There must at least be a strong argument that the tribunal made an error of law which led it to reach a decision that is not in the child’s best interests. I would not accept, therefore, that the test is satisfied on this ground.

On the other hand, I would accept that the fact that the decision of the Upper Tribunal is arguably not in the child’s best interests may constitute an important factor in the application of the flexible test described in JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327. In the present case the applicant says that the tribunal erred in its approach to the medical evidence. As a result it rejected both the applicant’s account of her experiences and the doctors’ assessment of the likely consequences of returning her to Sri Lanka and so reached a decision that is likely adversely to affect the children’s welfare. In my judgment that is sufficient to amount to a compelling reason in the context of this case, given the fact that in the course of these proceedings neither the First-tier nor the Upper Tribunal gave any explicit consideration to the best interests of the applicant’s children.

In this case, however, I think that the first of Miss Jegarajah’s submissions carries most weight. In DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305 Lloyd L.J. observed in paragraph 71 that once section 55 of the Borders, Citizenship and Immigration Act 2009 had been brought into force the tribunal (at that time the Asylum and Immigration Tribunal) as a decision-maker ought to have borne the obligation in mind when deciding the appeal and it is worth bearing in mind also the observation of Baroness Hale in ZH (Tanzania) that both the Secretary of State and the tribunal would in future have to address the question of the children’s best interests in their decisions. Proceedings in both the First-tier and the Upper Tribunal remain part of the decision-making process and for that reason alone the tribunals are required to observe the requirements of section 55 of the Act. Moreover, the importance attached to the consideration of children’s best interests in ZH (Tanzania), underpinned by the international obligations of the United Kingdom, make it at least arguable that both the First-tier and Upper Tribunal have a duty to consider of their own motion, if necessary, the best interests of any children likely to be affected by their decisions. In my view it is arguable that the duty is now so well established as to give rise to a question that obviously requires consideration, whether or not raised by the appellant (see R v Secretary of State for The Home Department, ex parte Robinson [1998] Q.B. 929 at pages 945-946) and that a failure to do so amounts to an error of law. This question, which does not appear to have been authoritatively determined as yet, does, in my view, represent an important point of principle which justifies giving permission for a second appeal in this case.

I would therefore grant the applicant permission to appeal on the two grounds identified by Carnwath L.J. In the circumstances of this case I would not limit the appeal to the second ground alone.

It is convenient to consider first what is in truth the primary ground of appeal, namely, that the tribunal failed to consider whether the best interests of the appellant’s children lay in allowing her to remain in this country and if so, whether their interests were outweighed by other factors which pointed towards her removal. Having regard to the way in which the appeal was conducted, I have some sympathy with the position of the tribunal. As the judge noted in paragraph 39 of the decision, the appellant’s counsel made no specific submissions with regard to her rights under Article 8 of the ECHR and neither he nor the representative of the respondent appears to have made any submissions about the position of the children, other than to submit that their right to enjoy family life would not be infringed if, as was inevitable, they were returned to Sri Lanka with the appellant. Despite the absence of any specific submissions the tribunal did consider whether the appellant’s rights under Article 8 would be infringed by her removal and, perhaps not surprisingly, found that they would not. It did not, however, consider the best interests of the children.

In my view the failure to do so did involve a serious error of law on the part of the tribunal, but in the light of its findings of fact it cannot have affected the outcome of the appeal. There was no evidence before the tribunal to suggest that the children had put down roots of any sort in this country or established any significant private life that would be disrupted by their return to Sri Lanka. In those circumstances their best interests would be served by living with their mother, provided that her health enables her to give them the care and protection they require. The medical evidence, which in my view deserved to be given much greater weight than the tribunal was prepared to give it in support of her account, did at least demonstrate that, for whatever reasons, she was in poor health, both physically and mentally. In order to care properly for the children she needed suitable treatment, but it was not suggested that either her physical or mental condition could not be treated in Sri Lanka. Indeed, the tribunal found by implication that both could be adequately treated there. In those circumstances it is difficult to see how from that perspective the children’s best interests would be adversely affected by their removal together with the appellant to Sri Lanka.

Of course, the appellant’s safety on return to Sri Lanka is also a matter of vital importance to the children’s welfare, but the tribunal found in paragraph 34 of its decision that even if her account of her experiences were entirely true, she was no longer at risk of persecution or ill-treatment there. The appellant did not obtain permission to challenge that finding and there is, therefore, no basis for saying that she will be unable to care for her children because her own safety will be in danger. For these reasons, even if the tribunal had considered what was in the best interests of the children, there was no basis on which it could have concluded that those interests would be so much better served by allowing the appellant to remain in this country that they outweighed all other considerations.

The appellant has not sought to appeal against the tribunal’s conclusion that removal would not involve a disproportionate interference with her rights under Article 8 of the Convention. We have considered whether her removal would involve undue interference with the rights of the children to family life, but are satisfied that it would not, because their family life will be preserved if, as is inevitable, they are returned to Sri Lanka with their mother.

The other ground of appeal is that the tribunal wrongly discounted the medical evidence that the appellant was suffering post traumatic stress disorder associated with rape when reaching its conclusion that she was not a credible witness. Both Dr. Khan and Dr. Balasubramaniam were of the opinion that the appellant displayed symptoms of post traumatic stress disorder and both reported that she experienced flashbacks to the events surrounding the rape. Although inevitably those opinions were ultimately based on what they had been told by the appellant herself, there is no reason to think that the doctors believed that she was giving them anything other than a reliable description of her symptoms. In those circumstances their reports do provide support for her account. Unless her accounts of flashbacks were fabricated (something that the doctors could have been expected to detect, or at any rate suspect), they inevitably supported her evidence. The judge was equally dismissive of Prof. Lingam’s report. No doubt the defects he identified detracted from its worth, but the scarring which he described was at least consistent with the appellant’s story. I am left feeling that the judge was too ready to take an adverse view of the medical evidence and as a result did not give it the consideration it deserved.

A more receptive approach to the medical evidence might have caused the judge to draw a different conclusion about the appellant’s credibility, but it is apparent from paragraph 34 of his decision that that would not have affected the outcome of the appeal. His finding that the appellant was not at risk of persecution or other ill-treatment on being returned to Sri Lanka, even if her account was entirely true, cannot be challenged on this appeal and is fatal to her case.

For these reasons I would dismiss the appeal.

I agree.

I also agree.