Y & Anor (Sri Lanka) v Secretary of State for the Home Department

In an Article 3 suicide-risk case, the absence of an objectively well-founded fear of ill-treatment does not determine the claim. A genuine and overwhelming subjective fear may independently create a real risk of suicide, particularly where it results from torture or sexual violence previously inflicted in the receiving state.

A tribunal may reject uncontradicted expert evidence only for acceptable and objective reasons. It must distinguish a person’s present stability from the prognosis following enforced return. The practical ability to obtain treatment matters more than its theoretical availability. Where credible psychiatric evidence establishes an immediate and acute risk of suicide, and trauma and lack of support make access to treatment realistically remote, removal may attain the high threshold of inhuman treatment prohibited by Article 3.

The appellants were a brother and sister who were Sri Lankan Tamils. It was accepted that the Sri Lankan security forces had tortured and raped both of them and that they suffered from post-traumatic stress disorder and depression. Earlier decisions nevertheless established that neither had a well-founded fear of future persecution or ill-treatment.

Following earlier reconsiderations, the Court of Appeal remitted the cases for a fresh determination of whether removal would create a risk of suicide or self-harm. The Asylum and Immigration Tribunal again dismissed both appeals. It discounted the appellants’ psychiatric evidence, found the suicide risk low or fabricated, and considered that adequate treatment and family support would be available in Sri Lanka.

The appeals concerned whether the tribunal had lawfully evaluated the expert evidence and whether an overwhelming subjective fear, despite lacking an objective foundation, could create a sufficiently serious suicide risk to make removal contrary to Article 3 of the European Convention on Human Rights.

1. Both appeals allowed. Sedley LJ, with whom Arden and Moses LJJ agreed, held that enforced return would attain the high threshold of inhuman treatment prohibited by Article 3 of the European Convention on Human Rights.

2. The fifth principle in J v Home Secretary [2005] EWCA Civ 629 left room for cases where fear of ill-treatment was objectively unfounded but subjectively real and overwhelming. Past torture and rape by the receiving state could provide an independent basis for such fear. The relevant question was whether the genuine subjective fear created a risk of suicide upon enforced return.

3. A tribunal was not bound to accept uncontradicted expert evidence, but it required acceptable reasons for rejecting it. Apparent differences between experts did not entitle the tribunal to treat their evidence as cancelling itself out. Nor could it disregard an expert’s assessment of whether reported psychiatric symptoms were genuine without good and objective reasons.

4. The immigration judge had confused the appellants’ current mental state with their prognosis upon return, improperly inferred calculation or exaggeration, and selectively relied on parts of the evidence. The uncontroverted psychiatric evidence established that both appellants were severely traumatised, seriously depressed by the prospect of return and likely to commit suicide if returned.

5. The existence of psychiatric facilities in Sri Lanka did not resolve whether these appellants could realistically obtain treatment. Their trauma, fear of officialdom, lack of a known home or supporting family and inability to seek help made access to effective care remote. An objectively unfounded fear did not mean that the subjective fear would disappear upon return.

6. The exceptionally high threshold described in N v United Kingdom and applied to suicide cases in RA (Sri Lanka) v Home Secretary [2008] EWCA Civ 1210 remained applicable. The present cases were materially different because the anticipated self-harm flowed from accepted state-inflicted torture and rape, the psychiatric prognosis rested on accepted facts, and the appellants lacked the resources and support needed to obtain treatment. Their suicide risk was subjective, immediate and acute.

1. Court of Appeal (Civil Division): Allowed both appeals from the Asylum and Immigration Tribunal and held that removal would violate Article 3 of the European Convention on Human Rights.

2. Asylum and Immigration Tribunal: DIJ Woodcraft dismissed both appeals following a fresh reconsideration of the risk of suicide or self-harm.

3. Earlier Court of Appeal proceedings: An appeal from DIJ Manuell’s decision was compromised by an agreed order remitting both cases for fresh reconsideration because the tests in J v Home Secretary [2005] EWCA Civ 629 had been applied incorrectly.

4. Earlier immigration proceedings: DIJ Manuell dismissed both appeals in February 2007 after earlier determinations by IJ Craig and adjudicator Mr Elvidge.