Sathiyaseelan v Secretary Of State For Home Department

In assessing whether an asylum claimant faces persecution or treatment contrary to Article 3 on return, an appellate tribunal must consider the relevant evidence and reach a conclusion within the range reasonably open to it. The threshold for showing perversity or Wednesbury unreasonableness is high. A claimant’s previous detention may support a risk assessment, but an eventual release can materially reduce the inference that the authorities retain an adverse interest. Mental anguish may in principle engage Article 3, but the issue must ordinarily be raised before the tribunal and supported by evidence showing suffering of the required severity.

The applicant, a Tamil asylum seeker from Sri Lanka, challenged the dismissal of his asylum appeal by the Immigration Appeal Tribunal. The special adjudicator had accepted aspects of his account, including detention and ill-treatment by the Sri Lankan army and police, but concluded that his release and the country evidence did not establish a future risk of persecution or breaches of Articles 2, 3 or 5. Internal relocation to Colombo was also found safe and reasonable, and that conclusion was not challenged.

The renewed application alleged that the Tribunal’s conclusions were perverse and that it had failed to address the applicant’s subjective mental anguish arising from past sexual assaults. The central issues were whether the risk assessment was legally irrational and whether the Article 3 argument had been properly considered.

1. Application refused. There was no real prospect of successfully appealing the Immigration Appeal Tribunal’s decision.
2. The Tribunal was entitled to conclude that the applicant did not face a real risk of persecution on return. It had considered his Tamil ethnicity, detention history and the country material concerning returned asylum seekers. The applicant’s prior release after approximately seven months’ detention was a material factor. The evidence did not show that he had escaped, and the release could reasonably indicate that he was no longer of particular adverse interest to the authorities.
3. The contention that the Tribunal’s conclusion was perverse faced a high threshold. The question was whether the conclusion fell outside the range properly open to the decision-maker. It did not.
4. Mental anguish and suffering can in principle amount to treatment contrary to Article 3. However, the applicant had not raised this argument in his grounds of appeal to the Tribunal, and it was not so obvious that the Tribunal was required to raise it of its own motion. The principle illustrated by Robinson v Secretary of State for the Home Department did not assist him.
5. In any event, the evidence did not establish that the applicant would suffer humiliation or degradation on return because of the past sexual assaults, still less suffering reaching the Article 3 threshold. The psychiatrist’s report referred to anxiety about danger to life but did not support the specific case advanced.
6. Order: application for permission to appeal refused.

• Immigration Appeal Tribunal: appeal dismissed on 8 February 2002.
• Court of Appeal (Civil Division): Auld LJ refused permission on the papers. On renewal, Keene LJ gave the judgment, with Robert Walker LJ agreeing; the application for permission to appeal was refused.