Kannathasan, R (on the application of) v The Secretary of State for the Home Department

For the purposes of Paragraph 353 of the Immigration Rules, the Secretary of State must apply the two-stage fresh-claim test and then assess whether the representations have a realistic prospect of success before a tribunal. In a suicide-risk case under Article 3, the relevant question is whether removal, including return to the receiving state, creates a real risk which cannot reasonably be managed there. The decision-maker must engage with the expert evidence and relevant country guidance, applying anxious scrutiny. It is insufficient to assess only the general availability of mental-health treatment or to treat the absence of a firm psychiatric diagnosis as decisive. A judicial review court does not substitute its own merits assessment, but may quash a decision which irrationally concludes that the claim has no realistic prospect of success.

The claimant, a Sri Lankan Tamil, challenged decisions refusing leave to remain and refusing to treat further representations as a fresh claim. The representations relied principally on significant cognitive impairment, depression, anxiety and a substantial risk of suicide on return to Sri Lanka, supported by a psychiatric report. The Secretary of State relied on the availability of treatment in Sri Lanka and concluded that the representations had no realistic prospect of success before an immigration judge.

The claim also raised Article 8 and private-life matters, including the claimant’s residence, mental health and alleged support network. The central issue was whether the Secretary of State had lawfully assessed the Article 3 suicide risk and the prospect that a tribunal might reach a different conclusion.

1. Article 3 and fresh claims. Under paragraph 353 of the Immigration Rules, the Secretary of State must first determine whether the further representations are significantly different and then whether, taken with the earlier material, they create a realistic prospect of success. The threshold is modest. The decision-maker must stand back from her own view of the merits and consider the prospect of a different tribunal outcome, applying anxious scrutiny as explained in WM (DRC) v SSHD [2006] EWCA Civ 1495 and R (YH (Iraq)) v SSHD [2010] EWCA Civ 116.
2. Article 3 is engaged where substantial grounds establish a real risk of treatment contrary to that provision, applying Soering v Germany (1989) 11 EHRR 439. In a suicide case, the assessment must address the risk in the United Kingdom when removal is communicated, the risk during removal, and the risk after arrival. The receiving state’s effective mechanisms for reducing suicide risk are highly relevant: J v SSHD [2005] EWCA Civ 629.
3. The Secretary of State considered the general availability of mental-health treatment but failed to confront the distinct issue of whether the claimant’s established suicide risk could be managed in Sri Lanka, particularly in light of the country findings in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). She also failed adequately to explain why an immigration judge could not accept the uncontradicted psychiatric evidence. The absence of a firm diagnosis did not rationally dispose of the suicide-risk evidence, especially given the claimant’s cognitive impairment.
4. The Article 8 challenge, considered separately, failed. The Secretary of State was not shown irrationally to have concluded that paragraph 276 ADE (1)(vi) was not met. However, the Article 3 fresh-claim decision was irrational and unlawful. The decisions dated 31 October 2013 and 24 March 2015 were quashed.

First-instance judicial review. No prior appellate decision is stated in the judgment.