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

At the permission stage, an appeal should proceed where the proposed grounds have a realistic prospect of success. In an asylum removal case, it is arguable that an immigration judge must make a finding about whether proposed escort and handover arrangements will actually be available, rather than simply directing that they be made. It is also arguable that a conclusion that effective mechanisms will reduce a returnee’s suicide risk requires adequate evidential explanation, particularly where the only medical evidence indicates limited psychiatric treatment and no access to relevant services in the proposed return regions.

The appellant challenged an Asylum and Immigration Tribunal determination concerning his proposed return to Sri Lanka. The immigration judge had directed that he be returned to Colombo with an escort to hand him over to a responsible agency, and had found that effective mechanisms would be available to reduce any possible risk of suicide.

The appellant argued that the judge had made no finding about the availability of the proposed arrangements. He also relied on medical evidence that psychiatric services were limited, unavailable in the regions to which he would return, and insufficiently developed for post-traumatic stress disorder. The appeal came before the Court of Appeal on an application for permission to appeal.

1. Permission granted. The court considered that two principal grounds had prospects of success.
2. In light of J v SSHD [2005] EWCA Civ 629, it was arguable that the immigration judge should have made a finding on whether arrangements would in fact be available for an escort to hand the appellant over to a responsible agency in Colombo. The direction to make arrangements did not itself resolve their availability.
3. The finding that effective mechanisms would be available to reduce the possible risk of suicide called for explanation. The only evidence concerning medical facilities was from Dr Kanagaratnam. His evidence was that only limited treatment was available for mental illness, that the appellant would not have access to the limited psychiatric services available in the regions to which he would return, and that treatment services for post-traumatic stress disorder were undeveloped.
4. A further ground was also given permission, although counsel accepted that it would not be relied on alone. The court made no final determination of the substantive appeal and ordered that permission be granted before a court comprising three judges, one of whom could be a High Court judge.

• Court of Appeal (Civil Division): permission to appeal from the Asylum and Immigration Tribunal was granted. The Tribunal determination is identified as AIT No. IA/06784/2006.