When does the risk of suicide on removal trigger the article 3 threshold? Tragically, the question surfaces more often than it should. Cases of this kind are notoriously difficult to win, but certainly not impossible. This post will offer practical tips to practitioners handling such a case.  

The case law

Readers will no doubt be familiar with the Supreme Court’s decision in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. Applying the Grand Chamber case of Paposhvili v. Belgium [GC] 41738/10, the decision significantly lowered the threshold for seriously ill migrants resisting removal under article 3 of the European Convention on Human Rights.  

The appellant in AM had been diagnosed with HIV but since that ruling two reported cases have applied the decision to appellants with severe psychological conditions. They are MY (suicide after Paposhvili) UKUT 2021 and HA (expert evidence, mental health) Sri Lanka 2022 UKUT.

Both decisions adopted the principles identified at [26] – [31]of J v Secretary of State for the Home Department [2005] EWCA Civ 629, the original precedent in suicide risk cases.

MY won his appeal whereas HA lost. Nevertheless, both decisions are worth a careful read.

Establishing the risk of suicide

The initial burden is on the claimant to demonstrate that they face a real risk of harm because the receiving state lacks accessible and appropriate treatment. They need to show either (i) a serious, rapid, and irreversible decline in their health that causes intense suffering, or (ii) a substantial reduction in life expectancy.

The threshold is a high one.  In J, the Court of Appeal held:

…in the context of foreign cases, the Article 3 threshold is particularly high simply because it is a foreign case.  And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental.

The appellant in HA posed a “moderate risk” of suicide on return to Sri Lanka and his case failed as a result.  

Consequently, suicide risk cases will fail without robust medical evidence, such as a medico-legal report. The solicitors in MY instructed a clinical psychologist and a forensic psychiatrist to assist the tribunal. The independent reports were accompanied by detailed letters from the appellant’s treating clinicians.

GP records on their own are unlikely to get the case off the ground. That said, they are extremely important, as emphasized by the tribunal in HA:

Notwithstanding their limitations, the GP records concerning the individual detail a specific record of presentation and may paint a broader picture of his or her mental health than is available to the expert psychiatrist, particularly where the individual and the GP (and any associated health care professionals) have interacted over a significant period of time, during some of which the individual may not have perceived themselves as being at risk of removal.

Obtaining records from GPs, psychiatric hospitals, and social services, will play a vital role in documenting the risk of suicide, particularly while your client’s immigration status is insecure, and the threat of removal looms large. Any attempts at suicide or self-harm and any indication of suicidal ideation should be carefully documented.  Letters from support workers who know your client well and have worked with them over a long period also help to build a picture of your client’s psychological state and likely triggers.

Consider whether your client capable of making and retaining friends. The tribunal in HA observed that the appellant had a group of supportive friends and even a girlfriend (until a few weeks before the hearing). From this, Justice Lane – perhaps unfairly – speculated that he would likely form a similarly supportive community in Sri Lanka.

MY had no family in Morocco, whereas HA’s mother lived in Sri Lanka and was deemed capable of providing support. If your client’s health permits, draft a detailed witness statement that specifies the location of each family member and describes the nature of the relationship with them.

In MY, Judge McWilliam placed weight on three factors worth highlighting if parallels can be drawn between your client’s case. First, that the appellant heard voices. Second, there was a clear connection between past trauma/mistreatment and his mental health. Finally, he was a child when he witnessed traumatic events.

It may be the case that your client is being threatened with removal to a country where they were once persecuted. Although the actual threat of persecution might no longer be present, your client’s fear could be so intense that it increases the risk of suicide.

In J, the Court of Appeal held:  

15. … someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone.

Availability of treatment in returning state  

The next step is to establish whether the available treatment in the hosting state is sufficient to reduce the high risk of suicide. The burden here continues to lie with the applicant/appellant.    

It may well be that a lack of available treatment is established in reports found online. If this isn’t the case, the starting point is to write directly to hospitals and health departments in the returning state with specific questions about the accessibility and cost of the required treatment.

The Supreme Court in AM (Zimbabwe) emphasised that the most useful expert evidence is likely to come from clinicians directly involved in providing relevant treatment and services in the country of return, with knowledge of treatment options in the public and private sectors.

If treatment is available but expensive, can your client fund it themselves or via the support of their family? If not, is there a public-funded scheme in the returning state that would enable access? Would they have to travel a long distance to access the treatment?  If it is accessible generally, is there a reason why it might not be accessible to your client specifically? Do they have a subjective fear or distrust of the state?  

Consider whether poverty and destitution might play a part in preventing your client from accessing treatment. If they have struggled to access treatment in the UK for this reason, this should be carefully evidence. The tribunal in MY remarked:

We take into account that destitution and poverty are factors that have exacerbated the Appellant’s mental health problems in the past and have also hindered his ability to access medical help in the United Kingdom. His engagement with health services here has been haphazard. It is reasonably likely that he will face destitution and poverty in Morocco. At present the Appellant has accommodation here and there is some engagement with health services.    Without any kind of support network, family or accommodation, it is unlikely that he will be able to access any kind of health care, state provision or private.

Take note of the psychiatric medication that your client has been prescribed. Is this available in the returning state? If the exact medication is not available, but an alternative option is, determine whether this would work as a substitute. Has your client struggled with side effects or allergic reactions to this medication in the past?

The Home Secretary steps in  

Once your client has established a prima facie case, the burden shifts. The Home Secretary now has the opportunity to dispel any serious doubts about whether the individual can be safely removed from the UK with an article 3 breach.  In practice, this will involve civil servant conducting their own country research.

If serious doubts persist, the Home Office is required to obtain individual assurance from the receiving state that appropriate treatment will be available and accessible to the individual.

See paragraph 33 of AM (Zimbabwe):

The premise behind the guidance, surely reasonable, is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state. What will most surprise the first-time reader of the Grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence. But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 187 means any serious doubts. For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

Is there an asylum claim?

Article 3 and the Refugee Convention being the long-wedded partners that they are, it’s important to assess whether there is an asylum claim as well. It has previously been established that a “person living with disability or mental ill-health” may qualify as a member of a particular social group.

Practitioners should consider whether the available ‘treatment’ in the receiving state is sufficiently terrible so as to engage article 1(A) – i.e. where physical and emotional abuse is prevalent in psychiatric facilities. It could also be that the discrimination your client would face as a result of their condition would be so severe and repetitive that it meets the persecution threshold.

Don’t forget article 8

Lastly, if the risk of suicide exists but is not a high one, consider how it might form part of the client’s broader article 8 case. The Upper Tribunal in HA held: “Mental ill-health and suicide risk may, however, be combined with other article 8 factors, so as to create a cumulative case, which enables an appellant to succeed on article 8(2) proportionality grounds.”

As can be seen from the above, although far from straightforward, there are likely to be a number of different options that can be pursued in these cases, either in isolation or together.