BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Asylum and Immigration Tribunal


You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AA (Algeria, Mental health) Algeria [2005] UKIAT 00084 (20 April 2005)
URL: http://www.bailii.org/uk/cases/UKIAT/2005/00084.html
Cite as: [2005] UKAIT 00084, [2005] UKIAT 84, [2005] UKIAT 00084

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


    AA (Algeria - Mental health) Algeria [2005] UKIAT 00084

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 15 December 2004

    Date Determination notified: 20 April 2005

    Before

    The Honourable Mr Justice Ouseley (President)
    Dr H H Storey (Vice President)
    Mr G Warr (Vice President)

    Between

     

    AA APPELLANT
    and  
    Secretary of State for the Home Department RESPONDENT

    For the Appellant: Mr L Jackson, instructed by Elder Rahimi Solicitors
    For the Respondent: Miss T Hart, Home Office Presenting Officer

    DETERMINATION AND REASONS

  1. This is an appeal against the determination of an Adjudicator, Mrs C A S O'Garro, promulgated on 7 January 2004. She dismissed the appeal of the Appellant. He is a citizen of Algeria, born in 1973, who had appealed against the decision of the Secretary of State dated 18 April 2001, refusing leave to enter or remain and refusing asylum. The Appellant had claimed asylum on arrival in the United Kingdom in July 1997.
  2. The original basis of his claim had been a fear of persecution by terrorist groups who, it was said, had killed his brother, a police officer, in 1994, had killed his mother and father and had threatened him even after he had gone to live with his sister and her husband in a more secure part of Algiers.
  3. Some long time after the refusal decision in which this claim was rejected, the Appellant accepted, in a statement dated 16 December 2003, that that claim was a fabricated account. He said that he had relied on the advice of people with whom he had been detained. He had been convicted of violent disorder at Yarlswood and sentenced to three year's imprisonment. He did not serve it separately because he had been in immigration detention for thirty months. (He was released on immigration bail in March 2004).
  4. Now he said that his parents had not been killed by terrorists. He mother was alive aged 85 and living in Algiers, but he had lost contact with her. He had four brothers and six sisters. His parents had paid for him to leave Algeria because of sibling infighting over his father's estate and because of the general level of violence in Algeria. He was afraid of the ongoing violence and terrorism, he had lost family contact, he had no accommodation and could not readily obtain employment. He would be mistreated on arrival. His mental health was poor and he could not cope with the stress without support.
  5. We turn to the material before the Adjudicator. She had a report of 4 July 2001 from Dr Labinjo, a senior medical officer at HMP Rochester Health Care Centre, where the Appellant had been admitted in May 2001. He referred to the history of drug abuse, emotional instability and suicide attempts and concluded that the Appellant had never improved over a considerable period in custody. He had not coped with incarceration and his reaction had exacerbated his anxiety, his depressive state and his propensity to harm himself. He suffered from acute anxiety/depression, he was suicidal and harmed himself from time to time. At the height of his illness he was a moderately high suicide risk and he continued to be a significant suicide risk; release could only benefit him because he had an exaggerated reaction to incarceration. Remaining in detention would lead to quite a high risk of a recurrence of the illness with attendant suicidal ideation.
  6. Dr Gamble produced a report of 24 November 2003 and a supplementary report of 3 December 2003. He is a specialist registrar in forensic psychology and psychotherapy at the Portman Clinic. His November report recounts the claims originally made by the Appellant, now accepted by the Appellant to be a fabrication. Dr Gamble rehearses the significant events from the medical records which include a number of attempted hangings, and other incidents of attempted self harm, disruptive and destructive behaviour, attacks on staff, recoveries from depression and a conversation, to which Mr Jackson said little weight should be attached, in which he was overhead to say that he would not be deported if he kept putting ligatures over his neck.
  7. Dr Gamble concluded that the Appellant was not suffering from a depressive or psychotic disorder nor from PTSD. His symptoms of anxiety and insomnia were a normal psychological response to uncertainty over the possibility of return. Dr Gamble took the Appellant's story largely at face value but did not see a severe psychiatric disorder. The behavioural problems and emotional instability could be understood as "an interaction of situational factors, chiefly his imprisonment and the uncertainty about his return to Algeria, with a personality which shows some dysfunctional traits. In my view, his emotional unstable personality and impulsivity predisposes him to respond to stressful situations in a violent and self-destructive way. There is also some evidence of anti social traits."
  8. His reasoning included the Appellant's behavioural disturbance in childhood, his hard drug misuse in the United Kingdom, the stress of detention, the high risk of self harm or suicide due to impulsivity (these moods normalised rather than persisted after a few hours or days); he evidenced anti-social personality traits through his deceptive and manipulative behaviour which included some fabricated symptoms, some degree of untruth in his story and controlling his self harm so as to have a particular effect on the staff.
  9. His manipulative behaviour had created problems for his treatment and management in prison. No long term improvement would be possible while he remained there, uncertain about his future. His current history would continue with a high risk of suicide on impulse. On release in the United Kingdom, his misuse of illegal drugs would increase the risk of self harm and of harm to others. If attempts were made to return him, he would become more distressed, unstable and at a greater risk of self-harm or suicide, including more calculated acts to prevent his return. His medication might improve some symptoms, but not his longstanding personality difficulties. Effective treatment for his complex psychiatric difficulties would be difficult in any setting and the more so in prison. He would be likely to require prolonged psychological therapy and rehabilitation.
  10. In his supplementary report of December 2003, Dr Gamble said "he would be at greatest risk of self harm or suicide shortly after he became aware of the failure of his appeal". The Appellant was desperate not to return to Algeria. If he could not avoid that, he could respond with particularly violent acts of self-harm which could lead to his death. (We were not provided with any updating material, nor with any evidence of any reaction to the Adjudicator's dismissal of his appeal).
  11. Dr Gamble understood that the Appellant was likely to be detained on return to Algeria, during which time physical mistreatment was not unusual. The Appellant would find this difficult to cope with and would be at a significant risk of responding with further attempts at self-harm. The Appellant's actions could lead to his death and the more frequently and seriously he tried, the more likely it was to occur. Dr Gamble was concerned about the risk of relapse in the Appellant's substance misuse, treatment for which would be in at least as short supply in Algeria as in the United Kingdom.
  12. The Adjudicator also had evidence from a Miss Seelig of Luton Amnesty International who had visited the Appellant weekly in prison and had a maternal interest in him. He had decided to stay in detention rather than return voluntarily to Algeria. She feared that if he lost his appeal he would react badly and might attempt suicide. She feared that return would result in self harm because of his mental state.
  13. The Adjudicator found that his fear of being a victim of indiscriminate violence did not make him a refugee. Then she said (paragraph 11):
  14. "With regard to the appellant's return as a failed asylum seeker, the objective evidence states that if an unsuccessful asylum seeker is neither known to the authorities, he or she faces no threat to their life or freedom [sic]. I also noted that although the asylum seeker who returns to Algeria will be detained and interrogated to determine their identity and to check whether there are any outstanding criminal proceedings in Algeria or unfulfilled military service, such persons are not maltreated or tortured upon their return.

    As the appellant is not known to the authorities or was involved in any armed groups, I find that there is no real risk that he will be exposed to the sort of physical harm that engages either the Refugee or Human Rights Convention, even taking into account the appellant's mental state and his reaction to detention. The appellant has now been in detention for more than 30 months and although he has been violent on occasions in the past I have no evidence that he has exhibited violent behaviour recently."

  15. She then turned to the medical evidence about his mental health. Dr Gamble concluded that the Appellant did not suffer from depression or psychotic disorder but showed (paragraph 15):
  16. " many of the features of a person with a personality disorder. Dr Gamble said that effective treatment for the appellant's complex psychological difficulties would be difficult in any setting and that although his current medication may improve some of his symptoms; it is unlikely to improve his long standing personality difficulties without therapy."

  17. She also said (paragraph 11):
  18. "Dr Gamble has said that the appellant may find it particularly difficult to cope should he be held in detention in Algeria on his arrival and there is a significant risk that of his responding to the stress and frustration of a period in detention in Algeria with further self harm or suicide. In my view there is no reason why the appellant should attempt to commit suicide should he be returned to Algeria as he is likely to be detained for a short period only while enquiries are made about him. As the appellant is not a person with a high profile or criminal record in Algeria, it is highly unlikely that he will be subjected to punitive measures by the authorities on return. In my view Dr Gamble is only speculating as to how the appellant is likely to react in a particular situation. There is no certainty that the appellant will behave in the way Dr Gamble suggests. In any event I find that the appellant can control how he behaves in a given situation and need not revert to self-destructive acts."

    There was some criticism of those last two sentences.

  19. Dr Gamble also was recorded as saying that the Appellant:
  20. " is deceptive and manipulative and that he may be fabricating some of his symptoms. [The Adjudicator then commented:] This of course has borne itself out in the appellant's most recent evidence where he has admitted to fabricating part of his claim for asylum. The fact that the appellant can manipulate a situation to suit indicate to me that the appellant can avoid his violent and destructive actions if he wanted."

  21. The Adjudicator's analysis of Dr Gamble's evidence and the standard she appeared to be setting for the proof of harm were also criticised. The Adjudicator made those comments in the course of rejecting the claim under the Refugee Convention.
  22. She then turned to the ECHR. It is her conclusions in relation to human rights which are challenged in this appeal, because the Adjudicator was told that the appeal under the Refugee Convention was being withdrawn. There is necessarily however much common ground in the analysis of psychiatric evidence under both Conventions. The claim made was that the Appellant would not be able to access appropriate treatment for his mental illness and would suffer degrading treatment on return.
  23. The Adjudicator concluded:
  24. "The objective evidence therefore does indicate that Algeria do have adequate health care for persons suffering from mental/psychological illness so it is highly possible that the appellant would be able to receive treatment for his condition if he is returned to Algeria. At the moment the appellant is only receiving medication with no therapeutic treatment. Further, Dr Gamble has said that treatment of the appellant's complex psychological difficulties would be difficult in any setting. Bearing in mind this evidence, I find that as medical treatment is available to the appellant in Algeria, then there would in my view be no breach of Article 3 of the ECHR."

  25. The case was different from that of D.
  26. The Adjudicator then turned to Article 8, applying Razgar in the Court of Appeal. She asked:
  27. " whether serious harm to the appellant's mental state will be caused or materially contributed to by the difference between the treatment that he is receiving in the United Kingdom and that which will be available to him in Algeria."

  28. She concluded:
  29. "Applying these guiding principles to the appellant's case, I do not find that the appellant's private life will be affected. The appellant's behavioural difficulties have been ongoing for some time, possibly even before he came to the United Kingdom according to Dr Gamble's report. Further, I noted that Dr Gamble says that if the appellant was released from prison and went into the community he would be concerned about his return to the misuse of illegal drugs. His risk of self-harm and harm to others would be increased by the damaging effect of substances on his mental health. If he bought drugs he would be in contact with criminals and he would be at risk of exploitation. Bearing this in mind, I find that the appellant would be in no better position if he remained in the United Kingdom. His private life would mostly likely deteriorate."

  30. If returned to Algeria, where violence was abating, the Appellant would have the support of siblings, his aged mother and uncle, he could locate his brother in law and therefore the rest of his family; medication would be available to the Appellant, his mental state would be improved. He could control his self destructive propensity if he chose to do so. He would be no more likely to attempt to commit suicide or self harm if he were returned, than if he remained in the United Kingdom. Removal would be proportionate.
  31. Mr Jackson for the Appellant submitted that the Adjudicator's determination did not appreciate the true significance of the psychiatric evidence. This showed that, once in detention starting in May 2001, the attempts at self-harm began, some manipulative and some because of his personality disorder. Dr Gamble's evidence, in his supplementary report, said that many of the acts of self harm, ie attempted hanging and swallowing razor blades, could have been fatal and demonstrated his desperation and disturbed mental state; the more he tried the more likely he was to succeed.
  32. Dr Gamble's evidence showed that at each stage of the removal process there would be risks to the Appellant when told of the appeal result, in transit, on arrival in Algeria, during questioning there, and the more so were he ill treated, and finally after release. He would be detained at various stages and would be at particular risk of impulsive self-harm on being told of any adverse decision.
  33. Mr Jackson submitted that it was for the Secretary of State to show what protective measures were available both in Algeria and here in the United Kingdom, following Kurtolli v SSHD [2003] EWHC2744 Admin paras 62-65. Soumahoro [2003] EWCH Civ 840 remained good law after N [2003] EWCA Civ 1369, [2004] INLR 10, for the reasons given by Silber J in Kurtolli.
  34. The Adjudicator had applied the tests of the cases of D and N but Soumahoro and Kurtolli showed the right test for Article 3 and the suicide risk. The question was not was adequate treatment available, but would removal lead to a real risk or a significantly increased risk of suicide. For Article 3 purposes, behaviour and risks in the United Kingdom were irrelevant; those might be relevant to Article 8 but that had a lower threshold of risk. The Adjudicator had also wrongly required certainty about the way in which the Appellant would behave. She had also failed to consider the various stages of risk which the Appellant would face on removal against those tests. She had ignored the role of the Appellant's personality disorder in reaching the conclusion that the Appellant could avoid his self destructive actions. Dr Gamble was not properly described as speculating about the risk in view of the frequency of the Appellant's attempts at self harm, and his being monitored closely while still being able to make serious attempts at suicide. She had asked the wrong questions and that had led to unsustainable findings of fact.
  35. Ms Hart for the Secretary of State submitted that the Adjudicator was entitled to conclude as she had done. Dr Gamble had accepted the Appellant's false history in large measure, although he was aware that the claim about the mother being dead might be false. So the Appellant was a liar and there was evidence that he manipulated staff to try to persuade them that he was attempting suicide, when clearly on some occasions he was not. There was no reason to suppose that he would not be monitored if detained pre-removal; a decision would remove uncertainty. He had a large family in Algeria, he had been in detention for a long time before these problems emerged and he faced the possibility of only a short period in detention before gaining permanent freedom. The outcomes applying Articles 3 and 8 were likely to be very similar. The Adjudicator had in reality applied the Soumahoro test if not in its precise terms. It was for the IAT to decide whether Soumahoro remained good law.
  36. Shortly after submissions concluded, Mr Jackson submitted to us the Tribunal's decision in M (Djebari) (Decision Evidence) (Algeria CG) [2003] UKIAT 00089 which had been before the Adjudicator. He said that it bore out Dr Gamble's concern that the Appellant would be ill treated whilst detained upon arrival at Algiers. There was no Home Office Presenting Officer's response.
  37. The decision in M concerned how Algeria treated failed asylum seekers on return. After dealing with a previous Tribunal decision and various elements of background evidence, the Tribunal had said:
  38. "15. First, what is likely to happen to him immediately upon his return? It seems to us the answer to this is clear; he will be detained at the airport and he will be interrogated. That may be the end of the matter. On a balance of probabilities we would hold it likely that it would be the end of the matter. Even Mr Joffe states that it is only where suspicion is excited that a person is likely to be detained for any greater period of time than that required for his identity and other particulars to be clarified. However, in this Tribunal we are not concerned with balance of probability but with real risk or real likelihood and we consider in light of what is said in the CIPU report and the report of Professor Seddon that there must be a real likelihood that Mr Mokhtari's detention may be for a longer period than that and that he may be detained incommunicado for a period of some days whilst enquires are made into him.
    He is not a person with a political or Islamist past. We must therefore consider what risks of physical ill treatment he would run. It seems to us that the evidence of Professor Seddon is that he might encounter a beating, he might encounter other forms of physical ill treatment, but he will not be likely to be severely tortured or to be seriously physically ill treated. At least that is how we view his report.
    16. It may therefore be that even if one takes Professor Seddon's report at its highest, he will not be at real risk of harm so severe as to contravene the relevant Articles of the Refugee Convention or the Human Rights Convention. But we do not feel it appropriate to leave the matter there. We should consider what likelihood there is in reality that he will suffer any sort of physical maltreatment that this Tribunal should recognise? Evidently the possibility of such maltreatment exists. Professor Seddon is aware of two cases where it has occurred. But as against that, we must also pay heed to the widespread experience of many western countries who have been returning failed asylum seekers to Algeria over a long period of time. We consider it inconceivable that if there was any real risk of ill treatment on a more than isolated basis of returned failed asylum seekers that word would not have got out by now.
    17. Persons have been returning to Algeria in substantial numbers, not only of their own free will but as failed asylum seekers from many western countries for many years now. In the CIPU report hundreds are specified. We would venture to suggest from our experience that the number must be thousands by now, from all the countries that are returning persons to that country. It would be astonishing, if there were any real risk of serious physical ill treatment of these people that no word of it has reached any of these Embassies. And yet it appears that none has."

    Conclusions

  39. First, the material can properly be appraised on a somewhat different basis from Dr Gamble's as to what the Appellant had actually experienced, and therefore as to the degree to which he was being manipulative; that characteristic was clearly present. A different view about the degree of manipulative behaviour, leading to a different view about the extent to which the Appellant could control his attempts at self harm, is not of itself unreasonable in the light of the acceptance by the Appellant that almost everything that he had said about his experiences in Algeria was untrue and a lie that he had manufactured. It is not just the complete and long maintained fabrication of the story itself which is important; it is also that the very experiences which underlay Dr Gamble's conclusions did not occur. There is no report from Dr Gamble which addresses this true basis upon which the Appellant came to be in the United Kingdom. Nonetheless, we accept that the Adjudicator may have overstated the prospect of self-control in the light of the careful reports of Dr Gamble, misplaced in part though they were. It would not be right to see the Appellant as simply a controlled manipulative man.
  40. Second, the Appellant suffered from personality difficulties and not from mental illness. These led to impulsive behaviour for which treatment (largely therapy) would be difficult anywhere. Medication played but a limited role. Third, a good part of his difficulties related to the fact of detention in prison and uncertainty over his future. Fourth, there would be risks of self-harm or suicide in the United Kingdom were he to re-engage in substance misuse, on release. Fifth, there were some facilities for mental health treatment in Algeria where the Adjudicator found legitimately on the evidence, he would also receive support from the family.
  41. Sixth, the Adjudicator's conclusions that the Appellant would not be at a real risk of physical ill treatment on return was one open to her on the evidence. We do not read M (Algeria) as being of the assistance to the Appellant which Mr Jackson contended for. The Adjudicator recognised that the Appellant was likely to be detained and interrogated, a conclusion which tallies with paragraph 16 of M (Algeria). The Appellant is not in a political risk category eg as one with a political or Islamist past or one who has been of interest to the police. There was no real risk of physical ill treatment during that short period of detention, as the Adjudicator found in line with paragraphs 16 and 17 of M (Algeria). There might only be a possibility of some lesser form of physical ill treatment during that short period. This is all consistent with the IND 2/2004 Bulletin which refers to returned failed asylum seekers often being interrogated to establish their identity, any outstanding criminal proceedings or unfulfilled military service. Sometimes people are held for several days but there have been no known maltreatment or torture cases in the last two years of such people.
  42. The Adjudicator was right that, viewed as an ordinary returned asylum seeker, the Appellant would not face a real risk of a breach of Article 3 on his return. This was not a case either in which the difference between the medical treatment which the Appellant would receive in the United Kingdom compared to that which he would receive in Algeria, or the circumstances of his life could possibly engage Article 3 or, if engaging Article 8 could fall into the exceptional and rare cases envisaged in Razgar in the House of Lords as making return disproportionate. There is nothing to show that, once at liberty in Algeria, there would be a real risk of suicide: this is not a want of treatment case. The Appellant's problems relate in very large measure to the fact of incarceration, lack of certainty and a personal desperation not to return. The latter was not engendered by any particular associations of past ill treatment or experiences in Algeria. Release from immigration detention was seen as important for his mental well-being. Those issues would be resolved through being at liberty in Algeria. There is a risk of suicide through personality disorder which could be greater in the United Kingdom, through drug abuse, or greater in Algeria, or the same in either place. There is no real evidence of any increased risk once those other factors of incarceration and uncertainty have been eliminated.
  43. Mr Jackson's strongest point related to the way in which the various stages of removal have been considered against various degrees of risk. These are not clearly dealt with and the Adjudicator has failed to consider certain material factors to which they give rise. This is an error of law. However, we have the material which she had and are able to make our own assessment of it.
  44. The first stage of risk could arise when the Appellant is told of any adverse decision. As we have said, we have not been told of how the Appellant reacted when told of the Adjudicator's determination; Dr Gamble regarded that as the riskiest moment for impulsive suicidal or self-harm reaction. But three points should be made. It is for the Claimant not the Secretary of State to show before the Adjudicator that there would be inadequate protection against such a reaction. It is different if the Secretary of State asserts that the case is manifestly unfounded without producing any compelling material to show that there is adequate protection; but that is not the position on a full appeal. Second, it is unrealistic to suppose that, whether in custody or not, the State would not take steps to provide an appropriate degree of protection against suicide or self harm in the way in which it would for anyone whose risk in that respect it was aware of. It cannot be expected to do more. Third, and related, the Courts or Tribunals are entitled to reach and inform the parties of adverse decisions even though that may increase, even significantly, the risk of suicide or self harm. This is a not uncommonly asserted risk for those facing imprisonment for criminal offences. It would be wholly contrary to the public interest for Courts or Tribunals to have to weigh against what would otherwise be the proper decision, the threat that someone would in consequence commit suicide. Even more so does that apply where there is no mental illness involved and there is on the other hand evidence of a manipulative personality disorder. The answer is that if such an increased risk exists, steps can be taken to guard against it.
  45. Here, this decision (which will dismiss the appeal) will be formally promulgated after the solicitors have been notified of the result. They can forewarn NASS at his address, who can decide what to do. This could involve a return into detention before removal.
  46. The second stage - pre-removal detention: the Appellant had been in custody for some time without committing suicide or serious acts of self-harm. The pre-removal detention, during which the Appellant would know that he would be returned, might see more desperate attempts but there would be greater certainty over his departure. Those in charge of his custody would be able to continue the watchful measures taken before, although no guarantees are possible for someone who is determined to commit suicide or to harm himself seriously. The Appellant's desperation to stay, engendering the risk of suicide, does not to our mind require that leave to remain be given to avoid a breach of Articles 3 or 8. The Adjudicator was also right to point out that Dr Gamble's assessment of manipulative behaviour and control proceeds on a history which is almost wholly untrue, rather than untrue in one not very large aspect. Manipulative attempts at self harm or suicide attempts by someone desperate not to return to his own country need to be guarded against, but would be removed by the fact of removal.
  47. Third stage - transit: there are no reasons to suppose that the Secretary of State would not provide appropriately qualified escorts. This is known to be done. Other measures in other cases may include accompanying family members.
  48. Fourth stage - arrival: we have discussed this in general above. There is no real risk of a breach of Article 3; there is a possibility of some lesser ill-treatment during a short period of detention. There is a risk of impulsive suicide or self-harm and we are prepared to assume that the Algerian authorities may be less watchful than those in the United Kingdom. However, manipulative or controlling self harm or attempted suicidal behaviour will be less likely because its objective will already have failed. Insofar as desperation not to return promotes such attempts, that too may well have diminished through the fact of return and the reality of experience.
  49. Fifth stage release: as we have said, we see nothing about the circumstances in Algeria to add to the risks. This is not a case involving a significant difference in treatment. He could reasonably be expected to contact his large family. He does not face ill treatment of a nature falling below Article 3. He would not be separated from a family in the United Kingdom. The risk factors of incarceration, uncertainty and of manipulative self-harm would have been eliminated, even the fact of desperation not to return would have been diminished. He would be at some risk anywhere, even if in part those risks arose from different reasons depending on where he was. There is some mental health treatment available to him in Algeria but the Appellant suffers from a personality disorder with varied causes, not all as Dr Gamble thought because the alleged personal experiences were untrue, leading to a perhaps less severe disorder. Some of these causes would have been eliminated by the fact of return as well.
  50. Putting that analysis into ECHR terms, nothing involves treatment by the United Kingdom which itself breaches Article 3. The treatment involved in informing the Appellant of the decision, detaining and then actually removing him does not involve such a breach. Merely increasing the risk of suicide through those actions, against which suitable protection is then available, involves no breach of Article 3. In Algeria, the degree of risk or of increase, weighing the reduction in risk factors against the fact of return and short term detention with the possibility of some low level physical ill treatment, can be described as speculative. But a better answer is that there has not been shown to be a real increased risk of suicide in those circumstances compared to the risk he would face on release in the United Kingdom. We do not therefore see any basis for a breach of Article 3.
  51. Turning to Article 8, the only relevant aspect of private life is personal integrity through its mental health aspect. Whilst Mr Jackson is right that a lower threshold of circumstances, than is required for a breach of Article 3, suffices to engage Article 8(1) and to show interference with the Article 8 rights, the effect of Article 8(2) means that the circumstances in which a case does not satisfy Article 3 but can nonetheless satisfy Article 8(1) and (2) on the same factors, will be very rare, as was said in Razgar in the House of Lords, paragraph 20. We see no factor of difference here.
  52. Even if there were to be a deterioration in the Appellant's moral and physical integrity, we regard the material as showing removal was proportionate in the light of the legitimate interests of effective immigration control, as did the Adjudicator. The Appellant has no claim to be here other than his desire not to return to Algeria. He made a false asylum claim. He has no mental illness. He has a pre-existing personality disorder. He has in part manipulated his symptoms to prolong or to try to ensure his stay. He would return to a family and to some scope for mental care for what is a condition difficult to treat anywhere. There is likely to be a reasonable degree of protection against any increased risk of suicide prior to removal. If any increased risks persist, rather than being reduced by departure, that degree of increased risk does not make his return disproportionate.
  53. We make a few closing observations about Soumahoro in the light of N and of Razgar in the House of Lords. It is important to remember that Soumahoro and Kurtolli involved certificates of manifest unfoundedness. They do not purport to decide more than what are possible thresholds for a breach of Article 3 and do not set out definitive thresholds for a breach of Article 3. The real risk or a significantly increased risk of suicide (Soumahoro paragraph 85) does not purport to constitute a test for the breach of Article 3. It represented circumstances in which a breach of Article 3 could not be regarded as unarguable. Bensaid v UK [2001] INLR 325 ECtHR does not suggest that an increased risk of suicide of itself is a breach of Article 3; in certain circumstances it is capable of being a breach; nor would that necessarily engage or constitute an interference with Article 8 rights let alone constitute a disproportionate one having regard to the legitimate interests of immigration control.
  54. Second, although Soumahoro was not expressly considered in Razgar in the House of Lords because that was an Article 8 case, no conclusion one way or the other can be drawn from that. But what is important though for Article 8 is that the questions in paragraph 17-20 of Razgar be asked. No conclusion was expressed about the final answer in that case beyond that it was a possibility that the return of Razgar might breach Article 8. But the answer under Article 8 as a whole will rarely be different from what it would be under Article 3 if the same factors are relied on. Bensaid reflects that same approach while considering Articles 3 and 8 separately.
  55. Third, N illustrates the extremity of condition which still does not satisfy Article 3 and how high the test has to be for a case to satisfy Article 3; that in turn affects the way in which a breach of Article 8 overall has to be approached; the violation has to be a flagrant one amounting to an effective denial of the rights in Article 8. It is difficult to see that risks of self-harm or suicide for mental illness or personality disorder should be approached very differently from other illnesses which may lead to a painful death in an awareness that such a death is increasingly imminent. This point was made in Djali [2003] EWCA Civ 1371 (paragraph 30), post Razgar and N in the Court of Appeal.
  56. It is also worth noting here two other decisions of the IAT: N (Kenya) [2004] UKIAT 00053, in which the tests in relation to the seriousness of harm required in respect of mental illness and suicide risk where treated as essentially similar under both Articles 3 and 8, and KK (Serbia and Montenegro) [2004] UKIAT 00228, in which it was correctly pointed out that Kurtolli was a case concerning a certificate of manifest unfoundedness, and which considered separately the effect of an adverse decision in the United Kingdom on risk in the United Kingdom and risk on return after removal. It recognised the problems of acceding to any claim that an adverse decision could lead to suicide in the United Kingdom, with the protective measures available, and considered the relevance of the Adjudicator's role in assessing circumstances in the country of return against the relevant thresholds, as opposed to medical evidence which considered the best clinical outcome for the client.
  57. This appeal is dismissed. It is reported for what we say about Article 3 and Article 8 in this context.
  58. MR JUSTICE OUSELEY

    PRESIDENT


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKIAT/2005/00084.html