Mental health issues impact on right to asylum

An asylum seeker can argue that removal would seriously harm their mental health. Ed Mitchell looks at these “exceptional cases”

Many who migrate to the UK have a distressing story to tell and some will suffer mental illness as a result of their experiences. Human rights law recognises that in some cases it is wrong to require such a person to leave the UK. However, the case law states that only in “exceptional cases” will poor mental health prevent removal. Here are two cases that help illustrate what amounts to an “exceptional case”.

RA (Sri Lanka) v the Home Secretary (November 2008)

RA, a Tamil, came to the UK in 1999. Immigration officials wanted to deport him to Sri Lanka. In response, RA claimed that deportation would violate his rights under article three of the European Convention on Human Rights, the right not to be subjected to inhuman or degrading treatment. This claim was based on the contention that to return him to Sri Lanka would result in his suicide.

RA’s claim was rejected by an immigration judge, despite a psychiatrist’s evidence that he had a “severe depressive disorder” and faced a very high risk of suicide if returned to Sri Lanka. The judge said that if RA’s condition deteriorated in Sri Lanka his family there would be able to help him and also pay for private hospital treatment if necessary. The Court of Appeal upheld the judge’s decision. This was not a case where removal would be an “affront to fundamental humanitarian principles” and so the judge was entitled to conclude that the article three threshold was not reached.

Y & Z (Sri Lanka) v the Home Secretary (April 2009)

Y & Z were a Tamil brother and sister who arrived in the UK in 2003. Their asylum claim was rejected despite an acceptance that both had been tortured and raped by Sri Lankan security personnel. Y & Z also argued that to return them to Sri Lanka would violate their article three rights because it would probably lead to suicide.

Y & Z’s claim came before an immigration judge. Two psychiatrists gave evidence that they had been severely traumatised and were likely to commit suicide if returned to Sri Lanka. The judge held that Y & Z were exaggerating their symptoms and so dismissed their claim.

The Court of Appeal overturned the immigration judge’s decision. The medical evidence had to be accepted because it was unchallenged and so the key issue became whether Y & Z would, if removed to Sri Lanka, have access to care and treatment which would keep the risk of self-harm under control. The Court of Appeal found that Y & Z would not because they were “so traumatised by their experiences, and so subjectively terrified at the prospect of return to the scene of their torment, that they will not be capable of seeking the treatment they need”. The Court declared that article three prevented their removal to Sri Lanka.

Article Three Threshold

The question of whether a mental health deportation case is exceptional is not determined statistically, as a proportion of the total number of cases, but by reference to whether the facts of the case are exceptionally severe so as to reach the article three threshold. Those administering the immigration system should remember that, judged by this standard, it is possible for there to be several exceptional cases.

Ed Mitchell is a solicitor and editor of Social Care Law Today

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This article is published in the 30 July 2009 edition of Community Care magazine under the headline Severe mental health issues impact on the right to asylum