J v Secretary of State for the Home Department

In removal cases founded on a risk of suicide, the governing question remains whether there are strong grounds for believing that removal will expose the person to a real risk of treatment contrary to European Convention on Human Rights, article 3. The risk must satisfy the minimum severity threshold and be causally linked to removal.

The threshold is particularly high where the alleged harm will occur abroad and arises from mental illness rather than acts for which the receiving state is responsible. An objectively unfounded fear of harm on return, and effective measures by the removing or receiving state to reduce self-harm, weigh heavily against a breach. A significantly increased suicide risk is not a separate legal test; it may be relevant where it establishes the necessary causal link.

The appellant, a Sri Lankan Tamil who had suffered torture and ill-treatment before leaving Sri Lanka, appealed against the Immigration Appeal Tribunal’s dismissal of his human-rights appeal. The adjudicator had rejected his asylum claim and his appeal under section 65(1) of the Immigration and Asylum Act 1999.

He suffered from post-traumatic stress disorder and depression. His psychiatrists considered that a final removal decision, transit, or return could create a substantial suicide risk. The Tribunal accepted that he had previously attempted suicide, but held that family and medical support in the United Kingdom, arrangements for transit, and family support and adequate treatment in Sri Lanka meant that no real risk contrary to articles 3 or 8 arose.

The central issue was the correct article 3 approach to suicide risk at the stages of notification, transit and return, and whether the Tribunal’s risk findings were perverse.

1. Appeal dismissed. The Tribunal applied the correct test and was entitled to conclude that removal would not breach articles 3 or 8 of the European Convention on Human Rights.

2. A removal case requires strong grounds for believing that the person faces a real risk of torture or inhuman or degrading treatment. The treatment must attain the minimum level of severity, and there must be a causal link between removal and the alleged ill-treatment. In a foreign case, the article 3 threshold is particularly high, especially where the feared harm results from a naturally occurring physical or mental illness rather than conduct for which the receiving state is responsible.

3. Suicide risk can in principle engage article 3. The assessment must consider whether the person’s fear of harm in the receiving state is objectively well-founded and whether effective safeguards can reduce the risk. Domestic stages, including notification of removal and transit, do not engage the additional extra-territorial concern present after arrival abroad, but protective mechanisms remain highly significant.

4. Soumahoro v Secretary of State for the Home Department did not create a distinct test of a significantly increased suicide risk. That formulation reflected the evidence in that case, where pre-existing suicide risk in both countries made an increase relevant to causation.

5. The Tribunal rationally found that support from the appellant’s uncle and treating clinicians could manage any suicide risk in the United Kingdom. It could also infer that the Secretary of State would take reasonable protective measures during transit in discharge of the duty under section 6 of the Human Rights Act 1998. The appellant’s fears of ill-treatment in Sri Lanka were objectively unfounded, while family support and adequate medical treatment would be available there. The high foreign-case threshold was therefore not met.

6. The alternative contention that removal would seriously worsen the appellant’s mental health, even without suicide, had not been advanced as a discrete ground before the Tribunal. In any event, continuing treatment in the United Kingdom and adequate facilities in Sri Lanka meant that it could not have changed the result. The fresh evidence did not establish an error of law and was inadmissible, although the court expressed concern about the appellant’s family after the tsunami and stated that the Home Office should assist in finding out what had happened to them.

• Court of Appeal (Civil Division): dismissed the appeal from the Immigration Appeal Tribunal: [2005] EWCA Civ 629.
• Immigration Appeal Tribunal: on 22 September 2004, dismissed the appellant’s appeal against the adjudicator’s rejection of his asylum and human-rights appeals.
• Adjudicator: in a determination promulgated on 13 August 2003, dismissed the asylum appeal and the appeal on human-rights grounds.