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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> S v Secretary of State for the Home Department (Sri Lanka) [2003] UKIAT 00172 (30 December 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00172.html Cite as: [2003] UKIAT 00172, [2003] UKIAT 172 |
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APPEAL No. [2003] UKIAT 00172
Date of hearing: 3 October 2003
Date Determination notified: 30 December 2003
APPELLANT | |
and | |
SECRETARY OF STATE FOR THE HOME DEPARTMENT | RESPONDENT |
"Article 8 – the right to family and private life. The appellant gave evidence that some of her family members are in the United Kingdom. They have either arrived before or after the appellant. There was no evidence given to me as to their status. The burden of proving human rights claims is on the appellant. I am not satisfied that any of her relatives in the United Kingdom have been granted leave to remain of any sort. No passports were produced and I therefore find that she has no right to family life in the United Kingdom. Moreover, her father remains inSri Lanka
and although she said that she did not know where he was at present, I am not satisfied on that ground that there are sufficient "exceptional circumstances" (Mahmood) to justify the appellant's remaining in the United Kingdom. To remove her to
Sri Lanka
in my judgment, would not be disproportionate given the government policy and within an immigration context.
It was submitted that because of her medication and psychotherapy treatment requirements, her claim under the definition of "private life" could ground a claim. I am not satisfied that they could. It is clear from the objective evidence that there is treatment available for persons suffering from conditions of which this appellant does. There is evidence to say that some medication is available at reasonable costs and there are specialists and others who are experienced in psychotherapy. In reaching this decision I have applied the ratio in Bensaid."
"The appellant purported that for nearly two years she had been in a state of extreme mental and emotional distress, suffering from anxiety and depression. Her mood remains low with feelings of sadness as if her life is empty. She is unable to take an interest in almost all of the daily activities with loss of enjoyment and loss of appetite. Her sleep is affected, being unable to sleep with early morning awakening. She would experience recurrent nightmares in which she would dream of being attacked by soldiers and would wake up in a state of distress. Thereafter she is unable to return to sleep. Frequently she would experience palpitations and dizziness and then would become agitated. She feels worthless and is unable to think or concentrate, with current thoughts of pessimism and pointlessness amounting to suicidal ideations."
"The appellant is a victim of incarceration, torture, rape and had been displaced as a refugee. She had witnessed bombardment of civilians with death and injury of loved ones. The stressors she had experienced were extreme. They involved actual death threat of physical integrity. The stressors caused powerful subjective response and she experienced intense fear, helplessness and horror. She re-experiences the traumatic events because of intrusive distressing recollections of the events, flashbacks, nightmares, exaggerated emotional and physical reactions. She has features of avoidant and emotional numbing. Arousal is increased because she has difficulties in sleeping with hyper-vigilance, impairment of concentration and exaggerated startled response. The depressive symptoms are evidence because of impaired confidence, tearful low mood state, loss of enjoyment, impairment of attention and concentration, tearfulness, loss of appetite, pointlessness, pessimistic ideation and psycho-motor agitation.
"… We suggest that, in order to determine whether the Article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he said about his mental health in the deporting country, the treatment he receives and any relevant support he says that he enjoys there. Secondly, it will be necessary to look at what he says will be likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged."
"Hospitals specifically dedicated to mental health exist in Angoda and Mulleriyawa where there is also treatment of PTSD. It is reported in the Sunday Times (ofSri Lanka
) in 1996, that psychiatric treatment was available at all teaching hospitals and the main Government district hospitals throughout the country, and at Ward 59 of the Colombo General Hospital."
That does not accord with the remaining evidence which has been produced to us. In June 1999 the Harvard Medical School, Department of Social Medicine, produced a newsletter giving an update on global mental and social health. In relation to Sri Lanka
it said that the usual medical approach to trauma typical of a country which has been the subject of considerable violence would be individual or group counselling sessions conducted by mental health professionals and it notes that such a process can take a considerable amount of time and involve the build up of a trusting relationship between the counsellor and the client. It continues as follows:
"In theSri Lanka
context this approach is not a feasible option. For a population of over seventeen million, there are only six psychiatrists, most of whom live and work in the capital, Colombo. There are many 'counsellors' but as yet no standardised training or registration. Many NGOs have sprung up to counsel the tortured and the war widows, some may well be doing more damage than good."
In the letter of 30 March 2001 from the British High Commission in Colombo the Immigration and Nationality Directorate acknowledges that "the only speciality in short supply is psychiatrists". The report from the World Health Organisation of July 2001 on mental health and substance abuse, including alcohol in the south east Asia region of WHO is hardly encouraging. It records the approximate number of psychiatrists per million population in Sri Lanka
in 2000 as being 0.53. Other studies have suggested a figure of perhaps up to twenty clinically trained psychiatrists in
Sri Lanka
but, as Mr Davison fairly submitted, it would be unrealistic to think that all were of Tamil ethnicity and there is a difficulty in cultural terms in the engagement of the degree of trust necessary between patient and counsellor where there are ethnic differences which have been the subject of so much recent polarisation in the society in question. In the light of that background evidence, we have no doubt that Mr Hutton's concession was sensibly and properly made and that the prospect of the appellant being able to receive the treatment recommended by the report must be regarded as remote.
"…highly likely that stressful life events such as deportation together with more stressful environment he will be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria. …his fearfulness when unwell and also the motivation difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell. …if he were unable to obtain appropriate help, if he began to relapse I think there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience of hallucinations telling himself to harm himself or others… Thus I do think there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect."
J Barnes
Vice President