KK v Secretary of State for the Home Department

In a removal case involving alleged suicide risk, medical opinion is important but not determinative. The tribunal must assess it carefully and holistically, considering the extent to which it rests on the applicant’s account, the objective conditions on return, available medical facilities, and family or community support in the receiving state. A fear of ill-treatment that is not objectively well-founded weighs against a real risk of an Article 3 breach.

Protection under Articles 3 or 8 against removal to the applicant’s own country requires very exceptional circumstances. Relative disadvantage in medical or welfare provision is insufficient. The applicant must show a critical medical condition and compelling humanitarian grounds for non-removal to a place lacking services needed to prevent acute suffering. Adequately reasoned findings may sustain dismissal even if the tribunal does not separately spell out every Convention consideration.

KK, a Roma citizen of Serbia and Montenegro, claimed asylum after entering the United Kingdom, alleging persecution and contending that the Serbian authorities could not provide sufficient protection. The Secretary of State refused the claim and issued removal directions. An adjudicator dismissed the asylum and human-rights appeal on 5 February 2003.

The Immigration Appeal Tribunal dismissed a further appeal, having permitted an enlarged ground concerning depression and the risk of suicide on return. It considered medical reports, country evidence, family and community support, and medical facilities in Serbia. The central issue before the Court of Appeal was whether the Tribunal had lawfully evaluated that evidence and whether removal would breach Articles 3 or 8, or required remittal for a separate proportionality assessment.

Appeal dismissed. Lord Justice Pill delivered the judgment, with Sir Peter Gibson and Mr Justice Rimer agreeing.

1. Medical evidence. The Tribunal was entitled to take great care in evaluating the psychiatric evidence and was not bound by the doctor’s assessment of suicide risk. It could consider the extent to which the opinion derived from the appellant’s account, distinguish clinical risk from the holistic assessment required on return, and evaluate the effect of family, social and community support. The comments that the appellant had not pursued occupational or psychological therapy, and that the doctor lacked experience of patients who had subsequently committed suicide, were permissible, although the latter was somewhat harsh.
2. Conditions on return. The Tribunal was entitled to assess the objective situation in Serbia, including southern Serbia, rather than accept the appellant’s comparison with Kosovo. It could take account of his mother, the wider network of assistance, the sizeable Roma community, and the availability of at least some mental-health facilities. The receiving state was not required to provide facilities equivalent to those in the United Kingdom.
3. Convention threshold. The Court applied the principle in J [2005] EWCA Civ 629 that an Article 3 claim can in principle succeed in a suicide case, and that the objective foundation of the applicant’s fear is material to the real-risk assessment. The high threshold discussed in Razgar v Secretary of State for the Home Department [2004] 2 AC 368, D v United Kingdom (1997) 24 EHRR 423 and N v Secretary of State for the Home Department [2005] 2 WLR 1124 required very exceptional circumstances. The evidence did not show a critical medical condition or compelling humanitarian grounds sufficient to prevent removal.
4. The Tribunal’s reasoning would have been clearer had it related its findings expressly to Articles 3 and 8. That deficiency did not invalidate its conclusion, which was sufficiently reasoned. No evidence before the Tribunal or the Court could justify relief on remittal. The appeal was dismissed with costs, with any liability for Mr Beal’s costs to be assessed by the costs judge, and with detailed assessment of the appellant’s Community Legal Services funding assessment.

1. Court of Appeal (Civil Division): Appeal dismissed with costs.
2. Immigration Appeal Tribunal: Appeal dismissed on 31 May 2004.
3. Adjudicator: Appeal dismissed on asylum and human-rights grounds on 5 February 2003.