RA (Sri Lanka) v Secretary of State for the Home Department

Scarring is a relevant but non-determinative risk factor in assessing a returning Sri Lankan Tamil’s protection claim. Its significance depends on the cumulative effect of all applicable factors, and scars alone do not establish an automatic risk of ill-treatment. A decision-maker may consider family support and medical care available on return, rather than only existing support in the United Kingdom. Difficulties in accessing psychiatric treatment must be more than speculative. For serious naturally occurring mental illness, including suicide risk, ECHR Article 3 is breached only in a very exceptional case where the humanitarian grounds against removal are compelling. The same reasoning may apply to Article 8 claims.

The appellant, a Sri Lankan Tamil, appealed against Senior Immigration Judge Gill’s remitted reconsideration decision, notified on 11 January 2008, dismissing his human-rights appeal. His earlier asylum claim had been rejected by an adjudicator, whose findings formed the starting point under Devaseelan. The appellant relied on ECHR Articles 3 and 8, alleging risk from scars said to indicate LTTE involvement, and from serious psychiatric illness and suicide risk on return. The grounds challenged the assessment of scarring under the guidance in LP, the availability of family support and psychiatric care in Sri Lanka, and the application of the Article 3 threshold.

Appeal dismissed. The Court of Appeal held that Senior Immigration Judge Gill’s decision disclosed no material error of law.

1. Scarring and cumulative risk. The judge properly used the earlier adjudicator’s decision as the starting point while deciding the new appeal on its own merits, consistently with Devaseelan [2002] UKIAT 00702 and Djebbar [2004] EWCA Civ 804. She had also considered the guidance in LP [2007] UKAIT 00076. That guidance treated scarring as relevant only with other factors capable of bringing a person to the authorities’ attention. The court accepted that risk factors had to be assessed cumulatively, as confirmed in NA v United Kingdom application no. 25904/07. The judge had considered the appellant’s lack of identity documents, illegal departure, asylum claim, scars, mental state and absence of prior adverse attention. Her conclusion was reasonably open to her.
2. Psychiatric condition and support. The relevant question was whether transfer to family support or available medical care on return would cause consequences reaching the Article 3 threshold. The judge was entitled to rely on the ability of the appellant’s mother and sister to travel to Colombo and support him. She was not required to assume that only his existing carers could provide effective support.
3. Psychiatric care and Article 3. The evidence showed patchy but available psychiatric provision, including private treatment. The judge was entitled to find that hospital admission and necessary treatment would be available, particularly given the appellant’s financial resources. Speculative difficulties were insufficient, consistent with Bensaid v United Kingdom (2001) 33 EHRR 10 and Paramsothy v Netherlands application no. 14492/03.
4. Threshold and review. The principles from D v United Kingdom (1997) 24 EHRR 425 and N v United Kingdom application no. 26565/05 applied equally to serious mental illness and suicide-risk cases. Inferior facilities or reduced life expectancy were insufficient without a very exceptional case involving compelling humanitarian grounds. The judge’s treatment of Article 8 and her findings were also reasonably open. The appeal was dismissed.

• Court of Appeal (Civil Division) — Dismissed the appeal and upheld the remitted reconsideration decision: [2008] EWCA Civ 1210.
• Asylum and Immigration Tribunal — Senior Immigration Judge Gill dismissed the appeal on reconsideration in a decision notified on 11 January 2008.
• Earlier proceedings — An adjudicator dismissed the asylum appeal in November 2000. A later human-rights application was refused in November 2004 and the appeal was dismissed. An earlier appeal to the Court of Appeal resulted in remittal for reconsideration.