Region: Europe
Year: 2007
Court: Court of Appeal, Civil Division
Health Topics: Controlled substances, Health care and health services, Medicines, Mental health
Human Rights: Right to family life
Tags: Access to drugs, Access to health care, Access to treatment, Asylum, Depression, Immigration, Mental disability, Mental disorder, Mental illness, Mental institution, Migrants, Psychotropic drugs, Refugees, Suicide
KR was an Iraqi Kurd. He was a lieutenant in the state police under Saddam Hussein’s regime but acted as an informer for the separatist PUK movement. In 1987 his clandestine activity was suspected. He was detained and tortured but the following year was released and resumed work as a police officer. In 1991 he defected to the Kurdish Autonomous Authority and continued to work as police officer until, in 1994, the KDP (PUK’s rival) seized and tortured him. He was released after about three months and resumed work, but in 1996 fled to Sulaymania, where he married a woman from an orthodox Muslim family which disapproved of the liaison.
In 2001 KR fled to the UK and claimed asylum on arrival. In 2002 KR learnt of his wife’s death and in the following year he heard that his brother had also been killed. The Home Secretary refused KR’s asylum application, but his initial appeal succeeded. The adjudicator’s decision was, however, overset by the Asylum and Immigration Tribunal (AIT) on the Home Secretary’s appeal. On remission, an immigration judge in June 2004 dismissed the appeal holding that the claim had to succeed under Article 8 of the European Convention on Human Rights (ECHR)* or not at all, and that the facts did not reach the threshold of exceptionality required to engage Article 8. Alternatively, they held that if Article 8 were engaged it would be proportionate to remove the appellant in the interests of immigration control.
On appeal the AIT found errors in the determination and adjourned the case for reconsideration on the facts of KR’s psychiatric state and medical report which was of the opinion that KR suffered from post-traumatic stress syndrome and was dependent on psychotropic medication.
[Adapted from the INTERIGHTS summary, with permission]
In dismissing the appeal (Sedley LJ dissenting), it was held that
(1) The question which the AIT posed for itself, as the test for engagement of Article 8(1), was whether, if KR were refused permission to remain in the UK, there was a real risk that KR would commit suicide either in the UK, en route to Iraq or in Iraq.
(2) Accordingly, the only question is whether, on the facts of this case, the AIT's conclusion could be justified, that there was no such real risk.
(3) The AIT was entitled to conclude that there was no real risk of suicide on return to Iraq and to conclude that KR had failed to demonstrate an interference with his personal and private life as protected by Article 8.
(4) This process of assessment is essentially a matter for the AIT, which is an expert tribunal and this Court should be slow to interfere with such an assessment.
Per Sedley LJ (dissenting):
(1) The AIT has erred in law (a) in its evaluation of the availability in Kurdish Iraq of the psychotropic drugs needed by KR to control his depressive and suicidal impulses and (b) in its contingent finding that return would be consistent with Article 8(2) of the ECHR.
(2) The appeal should be allowed to the extent of remitting the case to the AIT.
*Article 8 of the ECHR provides: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence; and (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
[Adapted from the INTERIGHTS summary, with permission]