J v. Secretary of State for the Home Department

The appellant, J, is an ethnically Tamil citizen of Sri Lanka. While living in Sri Lanka, J was captured by, and forced to work for, a militant group called the Liberation Tigers of Tamil Eelam (“LTTE”) between 1991 and 1993. The LTTE released him in 1993. In 1995, J was detained, interrogated, and tortured by the Sri Lankan Army (“Army”). He was released 2 years later, when he was once again captured and held prisoner by the LTTE. He was able to escape from the LTTE in 1998. He left Sri Lanka and arrived in the United Kingdom (“UK”) in 2000 using forged travel documents. J was residing in the UK when he applied for asylum to the Secretary of State for the Home Department (“Secretary of State”). J’s application was rejected and the Secretary of State issued an order to deport him back to Sri Lanka. 

J appealed the Secretary of State’s asylum refusal to an adjudicator, alleging that he would commit suicide if he was deported to Sri Lanka; as such, J argued that the deportation order violated articles 3 and 8 of the European Convention of Human Rights (“ECHR”). Article 3 guarantees the right to be free from torture and inhuman or degrading treatment or punishment. Article 8 guarantees the right to respect for his private and family life, his home and his correspondence; it prohibits a public authority from interfering with this right unless it 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.”

The adjudicator accepted as evidence that J suffered from PTSD and depression and that his uncle in the UK had been assisting him with accessing medical treatment. Despite the fact that the adjudicator accepted that J had been previously hospitalized for psychiatric care, he did not accept that this hospitalization was the result of J attempting suicide after he was initially refused asylum. The adjudicator also found that there were appropriate mental health facilities in Sri Lanka that J could access, if deported. Additionally, the adjudicator found no evidence to demonstrate that J had a well-founded belief of persecution from either the Army or the LTTE. The adjudicator consequently rejected J’s appeal.

The adjudicator’s decision was appealed to the Immigration Appeal Tribunal (“IAT”) where it was also dismissed. The IAT held that there was no real risk of breaching articles 3 or 8 because it was unlikely that J would commit suicide before deportation while in the UK, en route to Sri Lanka, or upon arriving in Sri Lanka.  

J appealed the IAT’s decision to the ECHR on 4 grounds: (1) The IAT applied the wrong test to decide whether deportation would breach article 3 due to a risk of suicide; (2) Alternatively, if the IAT applied the correct test, the finding that there was no real risk that J would commit suicide in the UK was perverse; (3) The IAT did not consider that J’s mental state was deteriorating under threat of being deported to Sri Lanka; and (4) The IAT’s decision that there was no real risk of suicide en route or in Sri Lanka was perverse.

The Court dismissed all four grounds of appeal and held that J's deportation to Sri Lanka would not breach his article 3 rights.

In its assessment, the Court considered J's case as “foreign” in some respects and “domestic” in others. Foreign cases are those where the allegation is not that a state will violate the applicant’s ECHR rights within its own territory, but that the state’s conduct in removing the applicant from its territory will cause the applicant’s ECHR rights to be violated in the receiving territory. Domestic cases refer to those cases where a state’s conduct is alleged to have infringed the applicant's ECHR rights within its own territory. The Court stated that in the present case, the risk of a violation of article 3 must be considered at three stages: (1) upon J’s notification that he will be deported to Sri Lanka; (2) once J has been physically removed by airplane to Sri Lanka; and (3) after J has arrived in Sri Lanka. The Court found that, at the first and second stages, the case is domestic, while at the third stage, the case is foreign.

On the first ground of appeal, the Court held that the IAT applied the correct test to a removal or expulsion case. The adjudicative body must assess whether the individual’s deportation would breach their article 3 rights by creating a “real risk” that the individual will be subjected to ill-treatment in the receiving country that would itself breach their article 3 rights. The correct test asks whether “substantial grounds have been shown for believing in the existence of a real risk of treatment contrary to article 3”, specifically, “torture, inhuman or degrading treatment or punishment.” In exceptional cases, the adjudicative body must ask whether deportation would breach the individual’s article 3 rights by “exacerbat[ing] the suffering flowing from a naturally occurring illness”, whether physical or mental, to the point where there is a real risk the individual will commit suicide. Thus, the assessment must be made in light of the individual's current medical condition. In the case at issue, the question was whether J’s deportation to Sri Lanka would increase the risk that he would commit suicide out of fear that he would be subjected to torture, inhuman treatment, and punishment upon his return to Sri Lanka.

The Court held that the correct test takes into consideration the following six key factors: 

• The severity of the ill-treatment the applicant alleges they are likely to suffer in the receiving country must be assessed. There is no fixed requirement for the severity of the ill-treatment; instead, the threshold is determined by assessing all the circumstances of the case. However, the severity of the ill-treatment must "necessarily be serious" such that the individual's deportation to the receiving country is "an affront to fundamental humanitarian principles”.
• There must be a causal link between deportation and the alleged ill-treatment that the individual will suffer, such that the extraditing country’s decision to deport the individual can be said to have the direct and foreseeable consequence of exposing them to the alleged ill-treatment.
• The country in which the alleged ill-treatment is likely to occur must be assessed. Foreign cases have a higher threshold for article 3 breach claims succeeding than domestic cases. The threshold is even higher when the ill-treatment stems from the applicant’s naturally occurring physical or mental illness instead of the direct or indirect actions of the receiving state’s authorities.
• It is nevertheless possible for article 3 claims to succeed in suicide cases.
• In a suicide case, whether the applicant’s fear of ill-treatment is objectively well-founded must be assessed in determining whether there is a real risk of a breach of article 3. However, the well-roundedness of the applicant’s fear is not solely determinative.
• The state’s mechanisms to reduce the risk of suicide must be assessed. In foreign cases, the receiving states' mechanisms are considered. In domestic cases, the removing states' mechanisms are considered. Claims are less likely to succeed if effective mechanisms exist. In domestic cases, the sixth factor is of particular significance, and is often the decisive factor in determining whether there is a real risk that the decision to deport an individual is a breach of their article 3 rights.

The Court held that the IAT properly applied this test at all three stages: upon J being informed that he would be deported to Sri Lanka; when J was to be en route to Sri Lanka; and when J was to arrive in Sri Lanka.

The Court reviewed the second and fourth grounds of appeal cumulatively. In dismissing both grounds, the Court placed considerable weight on the adjudicator’s finding (with which the IAT agreed) that J’s subjective belief that he would face ill-treatment upon returning to Sri Lanka was not objectively reasonable, as the Army and the LTTE had no further interest in detaining him.

On the second ground of appeal, the Court held that the IAT’s finding that there was no real risk J’s notification of his impending deportation to Sri Lanka would increase the risk he would commit suicide while in the UK, was not perverse. The IAT accepted as fact that J’s first suicide attempt only occurred one month after the initial issuance of removal directions against him, and 2 weeks after his notice of appeal was submitted. J did not attempt suicide upon learning of the adjudicator's decision to dismiss his appeal, nor after the IAT’s subsequent dismissal. Furthermore, J remained in close contact with his treating clinicians, including his psychiatrist, who could re-admit him to the hospital if he presented an imminent risk of suicide. J was also being closely supervised by his uncle, who was cooperating with UK medical authorities. Thus, there were ample mechanisms to reduce any risk that J would commit suicide while in the UK,  bringing it below the threshold for an article 3 breach.

On the fourth ground of appeal, the Court held that the IAT’s findings that there was no real risk of J committing suicide en route to, or once in, Sri Lanka, were not perverse. The IAT was warranted to conclude, on the basis of J's uncle’s support and cooperation with UK medical and immigration authorities, that he would help J make appropriate arrangements for his return to Sri Lanka. The IAT indicated that UK authorities would participate in making these arrangements. Furthermore, the IAT was permitted to conclude that the Secretary of State would “take all reasonable steps to discharge his obligations under section 6 of the Human Rights Act 1998”, as the IAT was entitled to take judicial notice of the arrangements previously made for vulnerable deportees as well as the official “Home Office policy for dealing with claimants who threaten suicide.” Finally, the Court held that the IAT was entitled to agree with the adjudicators’ finding that there were appropriate mental health facilities in Sri Lanka where J could continue receiving care. Additionally, J would have access to palliative care and support from his mother who resided in Sri Lanka.

On the third ground of appeal, the Court held that, although the IAT did not consider whether the deterioration of J’s mental state as a result of being notified of his deportation constituted a "discrete ground of appeal … based on ill- treatment falling short of suicide”, this ground would have been properly dismissed. The IAT was only directed to consider grounds of appeal relating to “the risk of inhuman treatment arising from the risk of suicide." Still, J’s allegation that he would commit suicide under threat of being deported was submitted as evidence that his mental state had sharply deteriorated, worsening his PTSD and depression. The Court held that the mechanisms available in the UK to mitigate the risk that J would commit suicide would very likely also include treatment for his PTSD and depression. There is no reason to assume the treatment he has received for years would not continue until it became unnecessary. Since J’s treatment was composed primarily of antidepressant medication, the Court held that he could continue the medication regime in Sri Lanka. Furthermore, J had been admitted twice to an institutional setting in the UK, and the Court held that there was no indication to suggest that he wouldn’t be able to access this treatment in Sri Lanka. 

Thus, the Court held that J's deportation order remained in effect.

“In cases such as the present case the risk of a violation of article 3 or 8 must be considered in relation to three stages. By reference to the claim made in this case, these are: (i) when the appellant is informed that a final decision has been made to remove him to Sri Lanka; (ii) when he is physically removed by airplane to Sri Lanka; and (iii) after he has arrived in Sri Lanka. In relation to stage (i), the case is plainly a domestic case. In relation to stage (iii), it is equally clearly a foreign case. The classification of the case in relation to stage (ii) is less easy. Since in practice arrangements are made by the Secretary of State in suicide cases for an escort it is safer to treat this as a domestic case.” (Para 17)

“The IAT were right to consider separately the risk of treatment contrary to article 3 in the UK, in transit and in Sri Lanka. As earlier stated, the article 3 threshold is higher in relation to the risk in Sri Lanka than in relation to the risk in the UK.” (Para 57)

“Having regard to the very high threshold for article 3 in foreign cases of this kind, the IAT’s decision cannot be characterized as perverse. In particular: (i) the adjudicator had found that any subjective fears which the appellant might have on return were not objectively justified; (ii) he would have family support on his return; and (iii) he would have access to medical treatment in Sri Lanka which it was conceded was adequate…” (Para 63)