Abstract
Elizabeth Pygott is well known to many of you. She is a double graduate of London University. In 1977 she was admitted as a solicitor in private practice. For three years she was an in-house solicitor at the Royal Borough of Kensington and Chelsea. For six years she was with Hempsons and was Honorary Legal Secretary of this Society from 1984 to 1997. She is now a Deputy Coroner and an Immigration Judge. She will tell you what she is going to talk about and I will now put this small millstone round her neck so that she is properly adorned. Will you welcome our new lady President. (Applause.)
I was immensely flattered to be asked if I would agree to stand as President, but then my immediate thought was, what on earth was I going to say in this address to such an esteemed audience? Well, I'll come to that.
Over the years of my involvement I have questioned what the Society is about and other council members will know that I am not alone since it has been a recurrent topic of discussion at council meetings. The Society was established very early in the 20th century (1901 to be precise) and I would guess that it was not a coincidence that that was about the time when the medical defence associations had been or were being created by doctors (and dentists) for their own protection and there was good reason to promote contact and understanding between the medical and legal professions, although membership of this Society was (and is) not limited to membership of either profession.
I'm not suggesting or saying that there is no longer any good reason to promote contact and understanding between the professions; on the contrary, but I believe I am right in saying that it was towards the end of the 19th and beginning of the 20th centuries that disputes between doctors and claims against them were beginning to be of some significance, and that involved lawyers. One can see the logic of the development of claims following the creation of bodies such as the Law Society and the General Medical Council in the early to mid-19th century for the regulation of solicitors and doctors, respectively, for the benefit of the public.
Of course, this Society is a charity with an educational object. This is expressed with commendable brevity in the Society's Rules (which are its constitution) as the promotion of medico-legal knowledge in all its aspects. But it is how the Society should go about this aim which has exercised my mind and given rise to discussion by the Council over the years. Traditionally, it has been through an annual series of talks and although the membership is, I think, something in the region of 500–550 members strong, attendance at meetings is relatively modest and tends to comprise those of more mature years.
One way or another in my time the Society is best described, or so I like to think, as a learned body whose members enjoy learning for its own sake.
Firstly, I suggest, we hope to gain insight into matters we would not normally come across in our day to day working lives and which are not the subject of courses or activities that are pursued for the particular purpose of getting points for continuing professional development (CPD), although of course these meetings do count for CPD points for some of us.
Secondly, we have the opportunity of hearing from those whom we would not normally expect to encounter in our working lives and this is generally by means of a conventional lecture, although occasionally we branch out into two-handed debates such as we will be having next month.
In my time we have had a consistently interesting programme year on year; people still come and listen, even if sometimes they are a select few and this is the context in which I have decided to speak on the topic of Asylum, Human Rights and Medicine, drawn from my experience and thoughts sitting as an Immigration Judge as well as by reference to some case law.
Although I am unlikely to see many of you where I sit from time to time at Hatton Cross, I nonetheless hope that my topic will be of interest. When, 10 years ago, I was appointed what is now designated an Immigration Judge but was then an Adjudicator, as a solicitor in private practice I had had no experience at all of asylum and immigration law and precious little knowledge of what it was about. So I am assuming that some basic information may be not come amiss and hope I might be forgiven by those for whom this territory is familiar.
I propose to say something about the system in which I operate; something about asylum law; followed by human rights; humanitarian protection (which, believe it or not, is slightly different); then to come on to describe some examples showing how medicine can be relevant, before concluding with a few general comments.
Please note that any views I express are my own and I don't purport to speak for a wider group, be it colleagues or anyone else.
The system
The legislative framework has been the subject of a large number of changes over the years. When I started 10 years ago the basic legislation comprised the Immigration Act 1971, the Immigration Act 1988, the Immigration and Asylum Act 1993, and the Asylum and Immigration Act 1996, under which I operated as an Adjudicator in the two-tier structure of the Immigration Appellate Authority.
There then followed the Immigration and Asylum Act 1999 affecting appeals and decisions made after 1 October 2000. That came into force alongside the Human Rights Act 1998 which incorporated the provisions of the European Convention on Human Rights (otherwise known as the Human Rights Convention) and brought that into domestic law, of which more later.
Then there followed the Nationality, Immigration and Asylum Act 2002, the appeal provisions of which came into effect on 1 April 2003.
Then there was the interestingly entitled Asylum and Immigration (Treatment of Claimants, etc) Act 2004, which replaced the Immigration Appellate Authority with the Asylum and Immigration Tribunal (AIT), the object of which was to introduce a single tier of appeals, and Adjudicators became Immigration Judges.
There was then the Immigration, Asylum and Nationality Act 2006 followed by the UK Borders Act 2007, which amended earlier legislation and brought into effect new provisions at various commencement dates.
More recently there has been the Tribunals, Courts and Enforcement Act 2007 – and I say recently because although it was passed three years ago and gave rise to the demise of the AIT and the transfer of its functions to the new Immigration and Asylum Chamber of the integrated Tribunals Service, that only happened on 15 February 2010.
So it can be seen that there have been substantial changes in the procedural and structural legislative framework in a very short space of time.
In 10 years I have metamorphosed from being an Adjudicator in the Immigration Appellate Authority to an Immigration Judge of the AIT. I am now a Judge of the First-tier Tribunal assigned to the Immigration and Asylum Chamber within the new integrated Tribunals Service, and I think I am probably allowed to say that that may be subsumed within the Court Service in the not too distant future.
I have seen six editions of the Immigration Law Handbook (a sort of Bible on asylum and immigration law) published between 2003 and 2009. The last edition was out of date almost as soon as it went to press and, rather like a number of other Bibles in legal practice, they don't get thinner; on the contrary.
All this aside, it remains the case that an appeal which comes before the likes of me arises out of either a decision made in this country by an Immigration Officer or the Secretary of State for the Home Department; or a decision made abroad by an Entry Clearance Officer. Invariably therefore the appellant is the individual concerned and the appeal is de novo so the facts are looked at entirely afresh.
I propose to talk only about appeals against decisions made by the Secretary of State, arising from asylum, humanitarian protection or human rights claims; in other words, where the individual concerned is already in this country. He or she is appealing on asylum, humanitarian protection or human rights grounds against what is called an immigration decision, which will be refusal of leave to enter or remain, or a decision that he or she should be removed to his or her country of origin or former habitual residence; I have excluded appeals in relation to the application of the immigration rules, which is another vast area.
I will not go into any detail about the process of appeals against decisions by Immigration Judges. That has varied over the years. Suffice it to say that, essentially, there is scope for appeals on the basis of a material error of law from the First-tier within the Immigration and Asylum Chamber to the Upper Tribunal of the Chamber and thereafter to the Court of Appeal and thence to the Supreme Court. In addition, in common with other administrative and judicial process, there is the possibility of judicial review by the Administrative Court of the Queen's Bench Division of the High Court.
I should also mention briefly the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights in Strasbourg – not to be confused with each other. The European Court of Justice is the European Union's highest court. Its jurisdiction arises in relation to European Union (EU) law and its function is to ensure that EU law is properly applied. For practical purposes in relation to asylum and immigration appeals this means the applicable Council Directives of the EU and court decisions of the ECJ. A national court can refer to it for a preliminary ruling and I would hazard a guess that that is how most cases come before it.
The jurisdiction of the European Court of Human Rights arises out of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, otherwise known as the European Convention on Human Rights (or the Human Rights Convention). Its task is to uphold the principles of the Human Rights Convention. It is not an EU entity but is a pan-European body overseen by the Council of Europe. It is open to individuals to bring a case before it but only when all other avenues and remedies have been pursued and exhausted under domestic law.
One way or another, the UK courts must have regard to the decisions of the ECJ, and this is against the background that where there is a conflict between EU law and national law, EU law takes precedence. The UK must also have regard to decisions of the European Court of Human Rights.
Asylum law
What is an asylum claim in law? Its basis is found in the 1951 Convention Relating to the Status of Refugees (entry into force in 1954) and the 1967 Protocol. The 1951 Convention is sometimes called the Geneva Convention or the Refugee Convention.
Then there is what might be regarded as interpretative guidance from a 2004 EU Council Directive. This has a descriptive lengthy title of on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
In relation to refugees, that Council Directive has been implemented in the UK through the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. In one of its recitals it affirms that the Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees, and in defining the term refugee the Council Directive pretty much adopts the wording of the Geneva Convention and 1967 Protocol. So a refugee means:
“… a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country…”
It also includes a stateless person who has the same fear as a third country national.
There are provisions for exclusion but I don't need to go into those.
Essentially, a person making an asylum claim has to show that he has a well-founded fear of being persecuted for one or more of five reasons; in other words, race, religion, nationality, membership of a particular social group or political opinion, and is outside his country of nationality, and because of that well-founded fear is unable or unwilling to return. The well-founded fear is assessed objectively rather than subjectively.
The burden of proof is on the person making the claim but it is to a lower standard than the balance of probabilities – that may not be terribly well known – and is generally described as a real risk or reasonable likelihood; somewhere between more than minimal but less than 50%. That is substantially less than the civil burden of proof, which is the balance of probabilities, and in effect that means the person making the asylum claim gets the benefit of the doubt, and one can understand why given the nature of the claim.
It is pertinent to note that on appeal the date at which the situation is assessed is the date of the appeal hearing. It is not historical but current.
Human rights law
As already mentioned, the Human Rights Act 1998 came into force on 2 October 2000 and brought into domestic law the provisions of the Human Rights Convention.
When the Human Rights Act came into force, at first I rather naively wondered what all the fuss was about given that the UK had long been a signatory to the Human Rights Convention. I think that was partly because of, and partly in spite of, my involvement in a case that I started during my articles in the mid-1970s and subsequently went to the European Court of Human Rights. It was about three employees of British Rail who were dismissed because they refused to join one of the three trade unions which all British Rail employees were obliged to join, in accordance with what was called a “closed shop” agreement between British Rail and the trade unions concerned. The claims ultimately succeeded under Article 11 of the Human Rights Convention relating to the right to freedom of association. That was on the basis that having regard to their particular circumstances and objections to being a member of a trade union, the requirement to join a trade union on pain of dismissal was an unjustifiable restriction on the exercise of that freedom.
Looking back, I think I must have started on that case between late 1974 and mid-1976. Getting to the stage of exhausting all domestic remedies, which I have already mentioned is a prerequisite to making an application to the European Court of Human Rights, if I remember rightly, was quite a straightforward matter and, having looked up the case only the other day, I see that the applications were lodged with the European Commission of Human Rights in 1976 and 1978. However, it wasn't until March 1981 that the hearings took place before the Court. It was an extremely cumbersome and long drawn-out procedure. Then it took another year, until October 1982, for the consequential claims for damages to be decided by the Court (which was without a hearing). What it demonstrates to me is that while access to justice under the Human Rights Convention was possible, it was not very accessible, and what the Human Rights Act did was to make access much more immediate. So I am not surprised that it has had very far-reaching consequences in the 10 years it has been on the statute book, not least in my jurisdiction.
The three articles of the Human Rights Convention which are of particular relevance and importance in the context of asylum and immigration law are Articles 2, 3 and 8.
Just by way of reminder, Article 2 states that everyone's right to life shall be protected by law, and although it does admit of capital punishment and lawful killing in circumstances where it results from the use of force which is no more than absolutely necessary in certain circumstances, I don't really need to trouble with that. So that is right to life, Article 2.
Article 3 states that no one shall be subjected to torture, or to inhuman or degrading treatment.
Both Articles 2 and 3 are absolute rights.
Article 8, however, states that everyone has the right to respect for his private and family life, his home and his correspondence. In contrast to Articles 2 and 3, this is not an absolute right and requires balancing the public interests of the state (which includes immigration control) and the private interests of the individual.
The right to respect for private life includes “physical and moral integrity” or “‘physical and psychological integrity”. So any interference with that has to be taken into account in the balancing exercise.
Humanitarian protection
This is a bit of a gloss really on human rights, but just a brief word about that.
I have already mentioned that the 2004 EU Council Directive with the very long title might be regarded as interpretive guidance to the Geneva Convention and the 1967 Protocol, which are the cornerstone of the international regime for the protection of refugees. In its long title, which I read out earlier, that Council Directive also includes reference to persons who otherwise need international protection.
The term “international protection” means subsidiary protection as well as refugee protection. So a person eligible for subsidiary protection means:
“…a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm … and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.…”
As with asylum, there are provisions for exclusion, but I don't propose to go into those now. The important thing to note is that the person has to show he is facing a real risk of suffering serious harm, but not for any particular reason. Refugee protection applies where a person is being persecuted for one of five reasons. What is called subsidiary protection here is where there is a real risk of serious harm but for no particular reason.
So a person has to show that there are substantial grounds for believing that if returned to his own country or the country of former habitual residence he would face a real risk of serious harm. Serious harm is defined as consisting of
“(a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an applicant in his country of origin [my emphasis]; (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal conflict.”
The provisions of the Council Directive in relation to this subsidiary protection have been implemented in the UK in amendments to the Immigration Rules, not by way of regulation but by the Rules, in contrast to the provisions for refugee protection. For reasons best known to the powers that be, the term adopted in the Immigration Rules in place of subsidiary protection is humanitarian protection, which is why I use that term now, because that is the term used in domestic law.
As can be seen, there is considerable overlap between serious harm in relation to humanitarian protection and Articles 2 and 3 of the Human Rights Convention. However, the particular difference to which I draw your attention is the reference to torture, inhuman or degrading treatment, which in the definition of serious harm under humanitarian protection is limited to the country of origin, whereas Article 3 is not so limited. That has potential relevance to cases involving suicide risk, for example, where the risk is attempted suicide prior to removal to the country of origin rather than on return to that country. In such circumstances a person may pursue a claim under Article 2 or 3 of the Human Rights Convention because that will extend to serious harm within the UK. So if, for example, there is credible evidence that an applicant is liable to attempt to commit suicide before he even gets on the plane to be sent home, the claim would come within Article 3 of the Human Rights Convention rather than humanitarian protection.
Some examples of where medicine features in asylum, human rights and humanitarian protection cases
Having said something about the framework of asylum and human rights claims along with humanitarian protection, I come to explain how medicine features or can feature in appeals.
Asylum
The essence of asylum is that a person claims he has been persecuted in some way in the past, has left his or her country and fears persecution on return for one of the five reasons I have mentioned. Therefore, it may be relevant to produce medical evidence of the ill-treatment and its psychological sequelae.
Some of you will have heard of the Medical Foundation for the Care of Victims of Torture. This organisation was set up in 1985 by a truly remarkable woman called Helen Bamber, who is now in her mid-80s. In 2005, only five years ago, after 20 years with the Medical Foundation, she set up a foundation which bears her own name.
The Medical Foundation is dedicated solely to the treatment of torture survivors and is a well-respected organisation. It accepts referrals from a diverse number of sources and among other things obtains medicolegal reports for asylum seekers. On its website (I looked at this recently) it is stated that since its inception almost 50,000 people have been referred for help, although constraints on resources limit its involvement to between 1000 and 1200 asylum cases a year. Essentially it will only assist with a medical report if it is considered to have the potential to make a material difference to the outcome of the asylum claim. It draws on volunteer doctors most of whom are general practitioners by training along with specialists in psychiatry, paediatrics, gynaecology, ear, nose and throat, general surgery and ophthalmology.
In 10 years I have seen very few reports from the Medical Foundation and little reference to them elsewhere. Why? It may be that the reporting doctor is not identified as having prepared the report through the auspices of the Foundation, but perhaps it is more likely to be due to the quality of reports and applications being allowed or appeals being conceded on the strength of them. However, I simply don't know.
It is the case though that I have seen many medical reports whose quality leaves a great deal to be desired.
Sri Lankan cases
When I started as an adjudicator there were large numbers of Sri Lankan cases, mostly Tamils from the north of the country. The civil war had been going on for many years and only came to an end last year – one hopes. The basis of the claim might be that the person had been arrested on suspicion of helping or being a member of the LTTE (the Tamil Tigers), had been detained and tortured by the Sri Lankan army, perhaps escaped or got out of detention having taken part in the identification of suspects, and feared that the authorities retained an adverse interest in him. So he would be liable to detention and further ill-treatment on return. He might also fear retribution from the LTTE as a suspected informer. That would be the nature of the case.
Reliance would often be placed on scars as evidence of torture. There would be concern that on return to Sri Lanka the individual would be detained to be searched and questioned, during which process the scars would become evident and indicate to the authorities that the person had been detained previously as someone suspected of involvement in the LTTE, or had been involved in fighting, and once again his claim would be that he would be at risk of torture on return.
In such cases all I can say is that my experience has been that there might be a report from a GP (possibly the person's own GP) or other doctor with no evident or apparent expertise in dealing with the victims of war or torture and their associated injuries or the forensic examination of such injuries, including physical scarring or mental health. Or I might be presented with a report from a psychiatrist who would purport to deal with scars, although the report would be limited to a description of them without analysing the possible cause or even the cause of any psychological difficulties and would merely conclude that they were all consistent with the appellant's account of events. Essentially, the sole value of those reports very often would be the identification of the scars which, within reason (arms and legs), one might be able to see for oneself. I recall the CV of one doctor in which he said he did so many reports that I was left to wonder how he had any time for any clinical work. Needless to say, such poor quality reports are not helpful.
Iranian case and “Dr” Barian Baluchi
Worse even than poor quality reports is a report from someone who isn't a doctor at all, and, believe it or not, that has happened.
In 2002 I heard an asylum claim by a young Iranian woman. The basis of her claim was that she had been involved in a group who had tried to find students who had disappeared following student unrest at Tehran University in 1999. She said she feared persecution by right-wing groups were she to return. In the course of her evidence-in-chief, it turned out that unknown to her representative she had been treated by a Dr Baluchi. While she referred to him as a psychologist I took it that he was probably a psychiatrist since he had prescribed medication. But one way or another I felt it appropriate for the hearing to be adjourned so that a report could be obtained from him. This was duly produced and in it, among other things, he said the appellant was suffering post-traumatic stress disorder (PTSD). What was curious to me was that the report was on the letterhead of what was called The Kimia Institute, which was said to be an NHS provider. Dr Baluchi was said to be the co-founder and medical director, but while his report stated he was a consultant neuro-psychiatrist and had the honorary position of professor, he didn't say where. He didn't even state what his basic medical qualifications were. Nor was he stated to be a Member or Fellow of the Royal College of Psychiatrists. There were other aspects of the report which I thought were odd and one way or another I attached little weight to it.
Nevertheless, I was somewhat surprised when I learned subsequently from a newspaper that he was no doctor at all. I didn't keep the relevant newspaper cutting but I have looked on the Internet and found both a BBC News report and an item from The Independent in January 2005 and I would just like to read to you a bit from the BBC News report of 26 January 2005. It is headed “Bogus doctor jailed for 10 years”:
“A bogus doctor who made £1.5m helping hundreds of asylum seekers remain in Britain has been jailed for 10 years. Barian Baluchi claimed to be a consultant psychiatrist at the Kimia Clinic in central London. He admitted 30 charges, at Middlesex Crown Court, of preparing psychiatric reports on hundreds of asylum seekers. The former mini-cab driver, from Hampton, south west London, convinced authorities he was an eminent psychiatrist and a professor.”
The offences were committed between 1998 and 2003 and included 12 of obtaining money by deception, perjury, causing actual bodily harm and two of procuring a registration by making false declarations. I think that was probably a reference to getting registered with the General Medical Council (GMC).
“He came under investigation in November 2003 when the NHS wrote to more than 2000 patients warning them they could have been examined by a bogus doctor.”
The court heard apparently that he claimed to have trained at Harvard, Colombia, Newcastle and Sussex Universities.
“He also claimed to have attended Leeds Medical School and said he had lectured on both sides of the Atlantic. In reality the Iran-born fraudster and asylum seeker, who began his life in Britain waiting tables and taking fares, had neither any qualifications nor experience.”
But he had
“…set about reinventing himself in the late 90s when he bought a PhD from America and assumed the identity of Abdul Doshoki, a former trainee doctor who had let his provisional registration lapse.”
A GMC spokeswoman said Baluchi had operated a “very well researched and sophisticated system of fraud” but went on to say that changes had been made in the practice of the GMC which enabled them to identify individuals attempting to commit an identity fraud. So that was truly quite a remarkable episode.
Psychiatric cases – suicide risk
Other medical reports have been of a very different order, but they don't necessarily help determine the issues, and I recall a rather more recent case of a Sri Lankan woman which illustrates quite well some of the difficulties in dealing with asylum appeals and when medical reports can have an important role. This case relates to a young woman who arrived in the UK on her own passport but with a forged visa, which was detected at immigration control, after which she claimed asylum.
When she was interviewed three and a half months later she said she had been involved in the LTTE and had been detained by the Sri Lankan army for a couple of weeks during which time she had been questioned and beaten. She had been released through the intervention of an “uncle” (which is a term often used to denote a male relative or friend of the family) and the payment of a bribe, after which arrangements were made for her to get to the UK. She said she feared return because of her perceived political opinion on account of her previous association with the LTTE. She also feared retribution by the LTTE for being a suspected informer.
The Home Office rejected the asylum claim in less than a couple of weeks after her interview and her appeal was heard two and half months later – not before me; this was the first appeal – and shortly before the hearing the appellant submitted a statement in which she said she had been sexually assaulted when detained by the army. She hadn't mentioned that earlier. She also submitted a recently obtained report from a respected clinical psychologist and psychoanalyst who concluded that she showed features characteristic of someone who had been sexually abused; she had symptoms of PTSD and was depressed. It was a very serious report. The psychologist also stated unequivocally that given what had happened to the appellant, within her own culture the possibility of marrying and having children was entirely ruled out. Further, the appellant was at high risk of suicide back in Sri Lanka.
What the appellant didn't tell the psychologist was that by the time she saw the psychologist she had already developed a relationship with the brother of a Sri Lankan family friend with whose family both he and she were living; they had become engaged, had had a church blessing (they were, as it happens, Christians) and she was pregnant, although she said later she was not aware of that at the time; i.e. the time when she was speaking to the psychologist. Nor was all that information revealed in the appellant's evidence at the hearing of the appeal, which was, as it happens, dismissed on adverse findings of credibility.
The appellant then applied for a review, which was granted, and one way or another it fell to me to reconsider the appeal afresh, by which time the appellant had been in the UK for almost 20 months. Three months before the hearing before me, the appellant had had her baby and two months prior to that she had obtained another medical report, this time from a consultant psychiatrist with clearly appropriate experience from a well-known psychiatric hospital; in other words a respected doctor from a respected institution. By the time she was seen by the doctor the appellant was well advanced in her pregnancy, but it is doubtful whether she told the psychiatrist that she was in a sexual relationship and that she was pregnant, as the doctor only seems to have found out through the GP records. It wasn't altogether clear from the report exactly what the doctor knew at the time she saw the appellant but she certainly did find out from the GP records that the woman was heavily pregnant, she was in a sexual relationship, and it wasn't a pregnancy as a result of sexual abuse. The psychiatrist concluded that the appellant fulfilled the criteria for severe PTSD and she was moderately depressed but there was no current risk of suicide or self-harm.
Finally, in the way of medical or similar evidence, the appellant had seemingly been accepted by the Helen Bamber Foundation for counselling but hadn't actually attended an appointment.
As can be seen, the basis of the appellant's case shifted over time as more information emerged. After starting as a straightforward asylum claim – fear of persecution on the grounds of perceived political opinion – there was an added humanitarian and human rights claim on the basis of torture, inhuman or degrading treatment, meaning risk of suicide before and on return. That is what was argued.
What I was left with was a lot of unanswered questions because neither medical report was up to date or dealt with the appellant's personal circumstances and relationships in the UK, which had a clear potential bearing on the clinicians’ interpretation of the appellant's account of past events, the assessment of her mental state and the risk of suicide.
In the event, while I had serious concerns about the appellant's mental wellbeing, I was left with very considerable uncertainty about causation and prognosis. However, she had a husband who was also originally from Sri Lanka. He had made an asylum claim. He had been here for some years and had been granted indefinite leave to remain but was not and had not been recognised as a refugee. He could therefore return to Sri Lanka with the appellant and there was no basis for saying that she would be returning to Sri Lanka as a vulnerable young woman on her own, leaving aside whether she had been sexually abused or not, and for various other reasons I rejected the appeal.
Two more Sri Lankan cases I'd like to mention came before the Court of Appeal in April last year; the cases were not mine and concerned a brother and sister. Their asylum claims were rejected because although it was accepted they had suffered serious violations in the past (and that meant torture and rape of each of them) by the Sri Lankan army as suspected LTTE members or sympathisers, it had been decided that there was no real risk of repetition, and that was not in dispute by the time it came to the Court of Appeal. The real issue was whether they were at risk of suicide if they were returned, and in this case there were medical reports from two psychiatrists; one was a treating psychiatrist and the other was independent. In the judgement of Lord Justice Sedley the expert evidence was all one way, although a different view had been taken by at least one Immigration Judge. Both appellants, he said, were severely traumatised by what had happened to them as prisoners of the security forces; they were frightened and seriously depressed at the prospect of return to Sri Lanka and were likely to commit suicide if returned. It is interesting to read the last couple of paragraphs of Lord Justice Sedley's judgement, in which he says:
“The upshot of the material findings and of the expert evidence, which for reasons I have given stood unshaken, is that although some psychiatric care is available in Sri Lanka, these two appellants are so traumatised by their experiences and so subjectively terrified of the prospect of return to the scene of their torment that they will not be capable of seeking the treatment they need. Assuming (what cannot be certain) that they come unscathed through interrogation at the airport, with no known family left in Sri Lanka and no home to travel to, the chances of their finding a secure base from which to seek the palliative and therapeutic care that will keep them from taking their own lives are, on any admissible view of the evidence, remote.”
Then, perhaps not surprisingly, he goes on to say:
“None of this reasoning represents a licence for emotional blackmail by asylum seekers. Officials and immigration judges will be right to continue to scrutinise the authenticity of such claims as these with care. In some cases the Home Office may want to seek its own or a joint report. But there comes a point at which an undisturbed finding that an appellant has been tortured and raped in captivity has to be conscientiously related to credible and uncontradicted expert evidence that the likely effect of the psychological trauma (aggravated in the present cases by the devastation of home and family by the tsunami), if return is enforced will be suicide.”
And he goes on to say:
“On the present evidence, including where material the AIT's evaluation of it, the clear likelihood is that the appellants' only perceived means of escape from the isolation and fear in which return would place them would be to take their own lives.”
In that situation return would, in his judgment, “reach the high threshold of inhuman treatment unconditionally prohibited by Article 3 of the ECHR”.
HIV/AIDS cases
Finally, I would like to say something about AIDS/HIV cases which arise typically where an individual has come to the UK, been diagnosed as HIV positive with an AIDS defining illness and has received treatment here.
One such case was N which came before the House of Lords in May 2005. The appellant came from Uganda. Her asylum claim had failed and the sole issue was whether her case was exceptional enough to cross the threshold of Article 3, torture, inhuman or degrading treatment. The medical evidence was not in dispute. The case proceeded on the basis that having received a prolonged course of systematic chemotherapy the appellant's condition was stable and if she continued to have access to the drugs and medical facilities available here she could remain well for decades. But if deprived of the antiretroviral medication she was currently receiving she would die a painful death in Uganda within a year or two. That case went to the European Court of Human Rights. Just pausing there, of course the Human Rights Convention had already been introduced as part of domestic law in 2000. Nevertheless, it is still possible for an appeal from the Supreme Court to go to the European Court of Human Rights and that is what actually happened in this case. In May 2008 the European Court of Human Rights gave a judgement agreeing (albeit not unanimously – and it was quite a significant disagreement) with the House of Lords that the case was not so exceptional as to cross the threshold of Article 3, and the appeal still failed. What has happened to her I don't know.
In December 2008 the Court of Appeal (Lord Justice Sedley again) remitted an appeal for rehearing by the AIT. The case was about a woman from the Ivory Coast who had come here as a student – unlike N she had come here initially legitimately – having left a partner and child in the Ivory Coast. She became ill and was diagnosed as being HIV positive and initially she used her own funds for treatment. Her partner severed all contact and she lost contact with her daughter and parents in the Ivory Coast. There was arguably a real risk that if returned the appellant would have no family or friends to look after her and a near certainty she would lose the little that remained of her eyesight. The Court of Appeal remitted the case for reconsideration by the AIT because it considered that its special facts were capable of reaching the high threshold recognised in N (the House of Lords case approved by the European Court of Human Rights). It was one thing, and harsh enough, to return an HIV-positive individual to a country where medical facilities were markedly poorer than here, with the result that he or she was likely to die an earlier and more wretched death. It was arguably another to return an HIV-positive individual in an unusually needy medical state to a country where there was not only a real risk that she would have no family or friends to look after her, but a near certainty she would lose the little that remained of her eyesight, and what mattered was the prospect of being blind, terminally ill, unmedicated and alone. So the Court of Appeal decided it was for the AIT to judge how exceptional the appellant's case was, taking into account all the relevant information. I regret to say that I don't know the outcome of that case, assuming it has been decided.
There is a further gloss on HIV and AIDS cases, and that relates to the issue of whether or not the UK has assumed responsibility for the appellant's treatment. This arises where, as in the case I have just described and as has happened in a substantial number of cases, in contrast to N, the appellant has come here legitimately, perhaps as a student or a visitor, has subsequently remained to obtain treatment and has in fact been granted leave to remain, exceptionally, on compassionate grounds in various stages – one year, maybe three years, or more. The grant of such leave was discretionary pursuant to a Home Office policy which was based on a mistaken reading of an earlier case decided by the European Court of Human Rights in 1997 (D v UK). After N was decided, the policy was changed to granting leave to remain only in cases that met the criteria set out in N; in other words, there had to be truly exceptional circumstances.
This issue arose in another case that came before the Court of Appeal (again Lord Justice Sedley) in December last year. That too was remitted to the AIT, but not in relation to Article 3, the issue of torture, inhuman or degrading treatment, but Article 8, the right to respect for private life, which includes physical and psychological integrity. The question was (bearing in mind that Article 8 is not an absolute right, in contrast to Articles 2 and 3) how far the proportionality of removal was affected by the history of the grant of compassionate leave and renewal of such leave to remain for treatment, having regard to the impact on the individual's private life both of the history of the grant of compassionate leave and of the proposed discontinuance of treatment. In other words, the AIT was invited to conduct a balancing exercise between the state's right to control immigration and the private interests of the particular individual. Again, I regret to say I can't tell you the outcome of that case, but I mention these cases to illustrate the dynamic nature of case law in this area.
Finally, just a few general comments. What has struck me in preparing this talk is the relatively small number of appeals, whether asylum, humanitarian protection or human rights, in which medical evidence is adduced where the fear is a repetition on return of the ill-treatment suffered in the past. There are many possible reasons for this quite apart from funding difficulties, which I am sure features, with all that that entails including issues of the quality of both medical and legal advice, which is very variable. After all, medical evidence is only one part of the evidence as a whole. There is a great deal of background evidence and information available on countries where asylum seekers come from and there is access to experts on different countries. This is quite apart from the evidence of the individual asylum seeker. Countries from which they come may well be known to have an appalling human rights record of abuses being committed with impunity by those in authority or other groups without any effective protection or recourse. So, if an appellant's account is credible, inherently consistent and consistent with the background evidence, he or she may be home and dry without the need for any medical evidence, and it is for the tribunal to make that assessment of credibility. If he or she is found not to be credible and the medical report is based on that account which is found not to be credible, then the medical report itself is, in the nature of things, not likely to be given much weight.
It is notable to me that medical reports seem to assume greater significance (and I think that is apparent from the examples I have given) and they are generally of better quality in the HIV/AIDS cases and those of suicide risk. In both cases the individual is here, is likely to have been treated by people of appropriate expertise, and so they have ready access to reports from treating doctors in a specialised area. In addition, if a claim of suicide risk is made the evidence will have to be compelling, particularly where Article 3 is relied on, since the threshold is so very high.
The Home Office is not known for commissioning its own expert reports and, as I mentioned, that was commented on by Lord Justice Sedley in the cases of the brother and sister from Sri Lanka which I described earlier. I have never known it happen.
Finally, what is perhaps more surprising is that medical experts don't attend hearings; they rarely get called to give evidence. I have never had an expert brought in front of me. I don't know whether anybody ever has. I have never heard of it and I have not seen reference to medical experts in the various case reports. I don't know why. Country experts do give evidence, particularly at the higher stage of appeal from the Immigration Judges. But the net result is that, in truth, there is not the degree of forensic examination that you would expect to find in a criminal court or in a civil court where there are medical issues involved.
In conclusion, I hope what I have had to say has been of some interest and has provided a degree of enlightenment on what I dare to say is a complex and changing area of law. Reading judgements of those in much higher places may lead one to think that it is all quite obvious really, but I suggest it is as well to remember that by the time cases get there they may well and truly have gone through the mill already. So I invite you to spare a thought for the hard pressed Home Office employee who is very often faced with making the decision in the first place on what may well be inadequate and incomplete evidence, and that might even apply to jobbing Immigration Judges like me.
So there I draw my address to a close. Given that I have talked for quite long enough, I have decided to exercise the President's prerogative of not taking questions, and suggest that we adjourn to the atrium and enjoy a bit of sustenance before we wend our way home.
Thank you very much. (Applause.)
Elizabeth Pygott has been HM Deputy Coroner, West London and an Immigration Judge since 2001 and 2000, respectively. Having graduated in Russian Regional Studies in 1972 and later obtaining an MA in Soviet Studies (comparative East European family law) from the University of London (the School of Slavonic and East European Studies) she was admitted as a solicitor in 1977. After spending three years as an in-house solicitor with the Royal Borough of Kensington and Chelsea, she reverted to private practice and spent the majority of her time engaged in medical defence work (six years with Hempsons) and the solicitors' professional indemnity field (13 years with Barlow, Lyde & Gilbert) with a subspecialty in claims involving medical negligence and the occasional foray into acting for claimants. She was Honorary Legal Secretary to the Medico-Legal Society from 1984 to 1997 and for the last 14 years she has been an active member of the Council.