HA v The Secretary of State for the Home Department

In a human rights appeal involving mental ill-health and suicide risk, psychiatric expert evidence must be independent, balanced and properly engaged with the available medical records. A report which recites expert duties but omits significant adverse material, exaggerates the records or adopts an advocacy role may be given little or no weight.

The Paposhvili v Belgium threshold, as explained in Savran v Denmark and AM (Zimbabwe) v SSHD, applies to mental as well as physical illness. The appellant must show substantial grounds for believing that removal would create a real risk of a serious, rapid and irreversible decline causing intense suffering, or a substantial reduction in life expectancy. Mental ill-health and suicide risk which fall below that threshold cannot, without additional factors, establish a breach of Article 8.

The appellant, a Sri Lankan national, challenged refusal of his human rights claim. The First-tier Tribunal allowed the appeal on Article 3 grounds, but the Upper Tribunal set that decision aside for inadequate reasoning and failure to apply the correct legal test. The Upper Tribunal then remade the decision.

The appeal concerned the weight to be given to competing psychiatric reports, the appellant’s mental health and suicide risk on return, access to treatment and support in Sri Lanka, very significant obstacles to integration under paragraph 276ADE(vi) of the Immigration Rules, and the proportionality of removal under Article 8.

1. Expert evidence. Mental-health experts remain subject to the ordinary duties of independence, objectivity, balance and candour. Because mental illness depends particularly heavily on clinical opinion, the Tribunal must scrutinise compliance in substance. GP records may provide a broader longitudinal picture and experts should address any apparent inconsistency between those records and their opinions. A report which merely brushes aside adverse records is unlikely to attract substantial weight.
2. Dr Persaud’s reports were misleading and advocacy-based. They omitted his GMC suspension for dishonesty while presenting an enhanced professional profile, misstated or overstated the medical records, treated self-report questionnaires as diagnostically significant, and attributed information to Professor Greenberg which the latter had not received. The Tribunal therefore placed no material weight on his evidence except where it coincided with Professor Greenberg’s evidence.
3. Article 3. The relevant suicide-risk analysis includes the point at which removal is finally communicated, physical removal and the period after arrival. The decisive issue was the post-return risk. Applying the threshold in Paposhvili v Belgium, as explained in AM (Zimbabwe) v SSHD and confirmed for mental illness in Savran v Denmark, the appellant had to establish substantial grounds for believing that removal would expose him to a real risk of a serious, rapid and irreversible decline causing intense suffering, or a substantial reduction in life expectancy.
4. The appellant’s depressive disorder and moderate, rather than high or imminent, suicide risk did not meet that demanding threshold. The evidence supported access to medication, accommodation, family or financial assistance, social support and employment in Sri Lanka. The initial period would be daunting, but it was not shown to create the required real risk.
5. Article 8 and the Immigration Rules. Mental ill-health and suicide risk below the Article 3 threshold could not alone establish an Article 8 violation. They could contribute cumulatively with other Article 8 factors, but the appellant did not face very significant obstacles to integration under paragraph 276ADE(vi), and removal was proportionate.
6. The appeal was dismissed. The representatives were asked to explain the decision to the appellant with protective factors in place.

• Upper Tribunal (Immigration and Asylum Chamber): the First-tier Tribunal decision allowing the appeal on Article 3 grounds was set aside for error of law on 28 August 2020. The decision was remade and the appeal dismissed in the present judgment.
• First-tier Tribunal: First-tier Tribunal Judge Grimmett allowed the appellant’s human rights appeal on 21 January 2020.