NCN, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 3378 (Admin)

[2014] EWHC 3378 (Admin)Case No CO/12667/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 October 2014
Before
HIS HONOUR JUDGE CLIVE HEATON QC(Sitting as a Judge of the High Court)
Between
THE QUEENClaimant(on the application of NCN)ClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Sonali Naik (instructed by Messrs Duncan Lewis, Solicitors) for ClaimantThomas Roe QC (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 24 July 2014JudgmentHHJ Heaton QC :
[1]This is a substantive hearing in Judicial Review proceedings. The Claimant is to be known in this judgement as NCN (represented by Ms Naik). She challenges three decisions of the Secretary of State for the Home Department (SSHD) (represented by Mr Roe QC) as follows: i) The SSHD’s decision of 26th November 2012: a) to refuse to accept that the Claimant’s representations of 21st November 2012 amounted to a fresh asylum/human rights claim per para 353 of the Immigration Rules and/or b) not to exercise her discretion under paragraph 353B to treat the Claimant’s case on an exceptional basis ii) The SSHD’s decision of 22nd November 2012 to set removal directions in respect of the Claimant for 27th November 2012 and to maintain those prior (it is alleged) to any or any proper and lawful consideration of the 21st November 2012 representations. (The Claimant recognises that the order granting permission does not grant permission to challenge the decision to set removal directions in themselves. In addition the decision to set removal directions has long since passed and is now academic. If the claim fails then the SSHD will set new removal directions; if the claim succeeds the SSHD will not seek to remove pending the appeal.) iii) The SSHD’s decision of 5th December 2013 a) to refuse to accept the Claimant’s representations dated 13th September 2013 and 19th September 2013 amounted to a fresh asylum/human rights claim, and b) the failure of the SSHD to exercise her discretion under paragraph 353B to treat the Claimant’s case on an exceptional basis.

The issues

[2]In her skeleton argument the Claimant frames the issues for the Court in this way:(i) Whether the SSHD properly directed herself as to the correct test in law in concluding that notwithstanding the Claimant’s representations and all the supporting evidence now available there was not a reasonable prospect of success before an independent First-Tier Tribunal (“FTT”) given the earlier rejection of the Appellant’s case(ii) Whether the SSHD properly examined all the evidence as to the relevant factors going to whether there were, notwithstanding the rejection of the fresh claim, exceptional circumstances per paragraph 353B such that removal was no longer appropriate.[3]During the course of her submissions Ms Naik explained that the Claimant’s aspiration was to return to the Immigration Judge so that he could consider: i) Why does the Claimant feel as she does? ii) Is her suicidal ideation made out? iii) Will the fact of removal render the Claimant reasonably likely to commit suicide?

The salient background

[4]The Claimant is a 29 year old woman from Uganda. She says that while in Uganda she suffered significant abuse. Her account is that from the age of 17 she was sexually abused by her father, that abuse progressing to full sexual intercourse. She says that in 2003, when she was 19 years old, she had a child by her father.[5]The Claimant’s father is said to have died in February 2011. The circumstances behind that are said by the Claimant to be that when her half-brothers discovered that her father was intending to give her some small plots of land they poisoned him. It was said that her half-siblings were intent on killing her too as a result of this.[6]In June 2011 the Claimant left Uganda in the company of an agent. On 22nd June 2011 she entered the UK using a false passport. On 23rd June 2011 she claimed asylum or humanitarian protection in Glasgow. On 15th September 2011 the SSHD refused the Claimant’s asylum claim.[7]The Claimant appealed and on the 8th November 2011 her appeal against that decision was dismissed by an Immigration Judge. The findings as to fact of the Judge are important here. He accepted the allegation that she had been coerced into sexual relations with the agent who accompanied her to the UK. However the Judge rejected the Claimant's account as to events in Uganda. The Judge said:
“I was satisfied that [the Claimant’s] story was a bogus story; and rejected it utterly. I found in fact that [the Claimant]is Ugandan, had travelled under a false passport to the United Kingdom, gained entry here thereby and had claimed falsely for asylum. Everything else of materiality I rejected with regard to her given history”
[8]The Claimant did not seek to challenge the decision of the Immigration Judge.[9]By a letter of the 27th April 2012 the Claimant sought to make a fresh asylum and human rights claim but on 25th May 2012 the SSHD refused to accept that the letter constituted a fresh claim.[10]On the 6th July 2012 the Claimant was seen in clinic at Yarl’s Wood IRC (YWIRC) for food refusal.[11]In September 2012 the Claimant was put on constant watch at YWIRC due to the risk of self-harm. On the 4th October 2102 the Claimant was treated at Hillingdon Hospital following an attempted medication overdose around a (failed) attempt at removal. A week later a clinician at YWIRC recorded that the Claimant “has a strong mindset on ending her life rather than removal”.[12]On 12th October 2012 the SSHD set removal directions for 15th October 2012.[13]Further representations were made by the Claimant’s solicitors on the grounds of the Claimant’s mental health problems on the 12th October. The SSHD refused to accept those representations as a fresh claim.[14]On 15th October 2012 there was an incident at YWIRC where the Claimant was physically restrained by officers. Removal was deferred.[15]On 24th October 2012 removal directions were set for 6th November. Those removal directions were later deferred as there were problems with the flight.[16]On the 21st November 2012 the Claimant’s solicitors submitted further representations to the SSHD.[17]On the 22nd November 2012 the SSHD re-set the removal directions for 27th November 2012. The Claimant’s application for temporary release was refused.[18]On the 26th November 2102 the SSHD refused the representations of the 21st November 2012 and proposed removal. The Claimant's solicitors issued this claim, and in response the SSHD deferred removal.[19]On the 6th December 2012 the Claimant’s solicitors wrote to the SSHD seeking temporary admission to the UK.[20]On the 21st February 2013 permission to proceed with the claim was refused on paper by Upper Tribunal Judge (UTJ) Warr. An application for an oral renewal was lodged.[21]On the 6th March 2013 the SSHD re-set the removal directions for 29th March 2013.[22]On 14th March 2013 the Claimant’s solicitors again applied for temporary admission to the UK.[23]On 26th March 2013 the Claimant’s solicitors made an urgent application for interim relief which was granted by UTJ Spencer the following day.[24]In seeking interim relief to show her continuing vulnerability and suicide risk following her initial claim the Claimant submitted: i) (i) An assessment from Central and North West London Mental Health Assessment dated 29th January 2013 ii) A letter from the British Red Cross dated 7 March 2013 iii) A further letter from Dr Trevor Turner dated 19th March 2013 iv) A letter from Black Women’s Rape Project dated 25th May 2013[25]On the 13th May the Upper Tribunal transferred this case back to the Administrative Court on the basis that it was just and convenient to do so.[26]A permission hearing took place on 12th September 2013, and was adjourned by Mr Andrew Grubb sitting as a Deputy High Court Judge, as I understand it by agreement. The reason for the adjournment was to give the Claimant the opportunity to put further representations before the SSHD.[27]On the following day, 13th September 2013, further representations were submitted by the Claimant’s solicitors. The further evidence which was submitted to the SSHD with the representations of 13th and then later on 19th September 2013 was: i) A letter from Refugee Council dated 27th August 2013 ii) A letter from the Minster Centre dated 12th June 2013 iii) A witness statement from the Claimant dated 20th August 2013 iv) A letter from the British Red Cross dated 27th August 2013 v) A letter from Black Women’s Rape Action Project dated 17th September 2013[28]On 5th December 2013 the SSHD determined not to treat the September 2013 representations as a fresh claim.[29]On 8th January 2014 the Claimant submitted amended grounds of challenge and on 24th March 2014 permission to proceed in part as I have outlined above was granted by Mr Robert Francis QC sitting as a Deputy High Court Judge[30]In April 2014 the Claimant made a further suicide attempt.[31]Following the most recent decision from the SSHD of 5th December 2013 in support of her application for permission for judicial review before the Deputy Judge the Claimant has adduced: i) A witness statement of the Claimant dated 30th December 2013 ii) A further psychiatric report from Dr Trevor Turner dated 3rd January 2014[32]Shortly before this hearing knowing that I was to hear this matter I granted permission for the Claimant to adduce the following evidence on the basis that I would weigh its significance at this hearing: i) A letter from Martin Naylor, Senior Community Practitioner, containing a care plan dated 2nd June 2014 ii) A third witness statement of the Claimant dated 8th July 2014

The Article 3 claim

[33]The Claimant begins her written argument by addressing the issue of whether the Immigration Judge’s factual findings that the Claimant lacks credibility in respect of a significant part of her account of the abuse she says she has suffered are binding.[34]The Claimant’s case is that these findings are not binding. She says that the principles in Devaseelan apply here and points to the discussion of those principles in AA(Somalia)-v-SSHD [2007] EWCA Civ 1040.[35]Thus the Claimant’s case is that the factual findings of the Immigration Judge bringing into question the Claimant’s credibility are not necessarily binding on the SSHD and that the SSHD ought to have had regard to all the evidence that the Claimant was in a position to put before a new Tribunal. That new evidence could, the Claimant argues, lead the Tribunal to come to a different decision about the credibility of the Claimant’s allegations as to the abuse she has suffered.[36]I say now that I accept the Claimant’s contention that findings made by one Immigration Judge are not necessarily binding on a Judge sitting subsequently.[37]What then does the Claimant say is that new evidence? Essentially the evidence falls into two categories: i) Medical evidence in particular a series of reports from Dr Turner. It is argued that the professional opinion of Dr Turner as to the Claimant’s fragile mental state is entirely consistent with a person who has undergone the life experiences described by the Claimant, and ii) A series of letters from support organisations such as Rape Crisis and Women Against Rape which suggest that the Claimant’s presentation is entirely consistent with a person who has undergone the life experiences described by the Claimant[38]Going on then to look at the implications of the totality of the evidence available the Claimant frames her case in this way at paragraph 15 of her skeleton argument:15. In light of the evidence available in this case … the SSHD cannot properly conclude that the new material and in particular the expert psychiatric report does not raise a more than merely fanciful prospect of success when independently assessed that the Claimant is at real risk of suicide and removal would amount to breach of articles 3 and/or 8.16. This evidence goes to show that the Claimant is continuing to manifest symptoms which are consistent with the account she gave to Dr Turner and consistent with that aspect of her history not rejected by the IJ. Moreover Dr Turner’s evidence now suggests that her past account that was rejected may not have been unreliable but rather justifies re-assessment in light of her difficulties in concentration and focus arising from her past experiences.17. The fresh evidence in totality demonstrates that the Claimant has ongoing mental health and support needs which are currently being addressed in the UK, which would not be in place for her on removal and that the consequences are that her life would be at risk and her mental health would be severely adversely affected by forcible removal in breach of article 8.[39]Later the Claimant says: At this stage the Claimant need not establish that her Article 3 claim would be bound to succeed before an immigration judge. She need only demonstrate that it has more than a merely fanciful prospect of success. It is submitted that the evidence is sufficient to demonstrate that, per the principles set out in Y and Z (Sri Lanka), the Claimant would have more than a merely fanciful prospect of succeeding in an Article 3 claim before an immigration judge on the basis of her risk of suicide and self-harm on return to Uganda.

The Article 8 claim

[40]Here the Claimant’s case is that even if her mental health state is not sufficient to ground an Article 3 claim it is sufficient to ground an alternative claim in Article 8. Here the Claimant relies on R(on the application of Razgar)-v-SSHD [2004] 2 AC 368. The principle the Claimant derives from that authority is that where the evidence is sufficiently strong the medical consequences of removal may engage Article 8 even where they do not engage Article 3.[41]In summarising her case on this head at paragraph 31 of her skeleton argument she says: The Claimant’s evidence underlines the importance of her community ties in the UK, having regard to her mental illness and social isolation, and the harm she would suffer if returned to Uganda. However, the SSHD fails to properly address the relevance of this evidence which illustrates the extent of the Claimant’s community ties and social activities in the UK and the importance of these for the Claimant’s mental health, wellbeing and recovery from trauma.[42]The Claimant asserts that the post-decision evidence provides further support for the conclusion that the Claimant requires extensive medical and therapeutic care in order to recover from her depression and Post-Traumatic Stress Disorder. It emphasises it is argued that the services she is receiving in this country and her community ties in the UK are important to her mental well-being.[43]In conclusion the Claimant makes the point before me, that as with her Article 3 claim, she does not have to establish that her Article 8 claim will succeed merely that it has more than a fanciful prospect of success.

The rule in paragraph 353B

[44]The Claimant goes on to argue her case in relation to paragraph 353B of the Immigration Rules.[45]I begin by reminding myself of that provision. Paragraph 353B says as follows:
“Exceptional Circumstances 353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's: (i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted; (ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable; (iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate. This paragraph does not apply to submissions made overseas. This paragraph does not apply where the person is liable to deportation.” (i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted; (ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable; (iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; This paragraph does not apply where the person is liable to deportation.”
[46]The Claimant draws the Court’s attention to the judgments of Underhill LJ and Sir Stanley Burnton in Qoogwane & Others-v-SSHD [2014] EWCA Civ 957 where firstly Underhill LJ says: Para. 353B is not very well drafted, but it seems to me clear, reading it as a whole, that its essential purpose is indeed to identify specific points which will weigh in the balance against the exercise of the discretion not to remove a migrant, or to qualify the effect of factors that might otherwise weigh in its favour. Thus the point of heads (i) and (ii) is to make clear that (in short) bad character/conduct and non-compliance with conditions must always count against the exercise of the discretion. As for head (iii), the point surely being made is that time spent in the UK after the adverse immigration decision ought (at least generally) only to count in the migrant’s favour if his or her reasons for not leaving were beyond their control.[47]The first judgment here was given by Sir Stanley Burnton. That judgment contains a series of helpful passages here: 24. Secondly, on any basis the scope for the exercise by the Secretary of State of the discretion envisaged (to use, for the present, a neutral expression) by paragraph 353B is narrow… Paragraph 353B can be of relevance only to those who have no right to remain in this country and whose claims have been finally determined (because their appeal rights are exhausted and there are no unanswered submissions). The discretion is a safety valve, pursuant to which the Secretary of State may refrain from removing but only in such circumstances, which will necessarily be rare….27. … The discretion not to remove a migrant with no rights to be here is not one that is subject to any Immigration Rule; it is a discretion exercised outside those Rules. I entirely agree with the Upper Tribunal on this point.28. I also reject the submission that paragraph 353B of itself creates an obligation on the Secretary of State to carry out a review in the circumstances to which it refers…29. In my judgment, the basis for the creation of a duty, if there is one, is to be found in the Enforcement Instructions and Guidance issued by the Secretary of State, which in section 53.1 states: “Exceptional circumstances should be considered in cases where an asylum or human rights claim has been refused, appeal rights have been exhausted and no further submissions exist, as part of the process of asylum case owners keeping their cases under review. In these cases paragraph 353B is to be applied.”… 32. Furthermore, if a decision is lawfully made to remove at the same time as a decision to refuse leave claimed on Article 8 grounds, there is likely to be no sensible reason for a review to be carried out separately from the consideration of the claim for leave. In such circumstances, paragraph 353B will not apply. In any event, the factors referred to in that paragraph are likely to have been considered in the rejection of the Article 8 claim. It would be unnecessary for the decision maker to refer to those factors again, other than the statement that there are no exceptional circumstances justifying a decision that removal is not appropriate. “Exceptional circumstances should be considered in cases where an asylum or human rights claim has been refused, appeal rights have been exhausted and no further submissions exist, as part of the process of asylum case owners keeping their cases under review. In these cases paragraph 353B is to be applied.”…[48]The Claimant submits that the SSHD has failed to address the provisions of paragraph 353B with its intended and stated purpose in accordance with the above authority.

The case of the SSHD

[49]Mr Roe QC took me initially to the authority he submitted set out the test for the SSHD and hence this Court. He referred the court to paragraph 11 of WM (DRC)-v-SSHD [2006] EWCA Civ 1495. The questions the Court must ask are: i) Has the SSHD asked herself the correct question, is there a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, finding that the Claimant will be exposed to a real risk of persecution on return and secondly ii) In addressing that question both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts has the SSHD satisfied the requirement of anxious scrutiny?[50]Mr Roe then took me to the relevant rule. Rule 353 says: “The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:(i) Had not already been considered and(ii) Taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection (i) Had not already been considered and (ii) Taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection[51]Mr Roe then took me to the authorities in relation to the Article 3 claim. Here he relied on Y & Z(Sri Lanka)-v-SSHD [2009] EWCA Civ 362. That authority refers to the test in N-v-SSHD [2005] UKHL 31 and I divert from Mr Roe’s argument for a moment to remind myself of the key points in that authority. In the opinion of Lord Hope of Craighead he says “The conclusion that I would draw from this line of authority is that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. It makes no difference however criminal his acts may have been or however great a risk he may present to the public if he were to remain in the expelling state's territory. On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional. In May 2000 Mr Lorezen, a judge of the Strasbourg court, observed at a colloquy in Strasbourg that it was difficult to determine what was meant by "very exceptional circumstances". But subsequent cases have shown that D v United Kingdom is taken as the paradigm case as to what is meant by this formula. The question on which the court has to concentrate is whether the present state of the applicant's health is such that, on humanitarian grounds, he ought not to be expelled unless it can shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state. The only cases where this test has been found to be satisfied are D v United Kingdom, where the fatal illness had reached a critical stage, and BB v France where the infection had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. I respectfully agree with Laws LJ's observation in the Court of Appeal, para 39, that the Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D v United Kingdom represents.”[52]Later Baroness Hale says:69. In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case.70. There may, of course, be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling. The law must be sufficiently flexible to accommodate them. The European Court of Human Rights took very seriously the claim of the schizophrenic patient in Bensaid v United Kingdom (2001) 33 EHRR 205 who risked relapse into hallucinations and psychotic delusions involving self harm and harm to others if deprived of appropriate medication. But it nevertheless concluded at para 40:
"Having regard however to the high threshold set by article 3, particularly when the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of article 3. It does not disclose the exceptional circumstances of the D case . . . where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts." "
Having regard however to the high threshold set by article 3, particularly when the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of article 3. It does not disclose the exceptional circumstances of the D case . . . where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."[53]It is self-evident from those passages that the test, as Mr Roe submitted, is a high one. Might a risk of suicide reach that high threshold? The short answer to that question is in principle “yes”. In considering whether that threshold is crossed Mr Roe took me to the tests set out in J-v-Home Secretary [2005] EWCA Civ 629:25. In our judgment, there is no doubt that in foreign cases the relevant test is, as Lord Bingham said in Ullah, whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment. Mr Middleton submits that a different test is required in cases where the article 3 breach relied on is a risk of suicide or other self-harm. But this submission is at odds with the Strasbourg jurisprudence: see, for example, para [40] in Bensaid and the suicide cases to which we refer at para 30 below. Mr Middleton makes two complaints about the real risk test. First, he says that it leaves out of account the need for a causal link between the act of removal and the ill-treatment relied on. Secondly, the test is too vague to be of any practical utility. But as we explain at para 27 below, a causal link is inherent in the real risk test. As regards the second complaint, it is possible to see what it entails from the way in which the test has been applied by the ECtHR in different circumstances. It should be stated at the outset that the phrase "real risk" imposes a more stringent test than merely that the risk must be more than "not fanciful". The cases show that it is possible to amplify the test at least to the following extent.26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para [91], the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."
(emphasis added). See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…" 28. Thirdly, in the context of a foreign case, 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. This is made clear in para [49] of D and para [40] of Bensaid. 29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid). 30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3. 31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights. "In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added). See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"[54]Those tests are developed in Y&Z in this way:15. There is no necessary tension between the two things. The corollary of the final sentence of §30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the appellant in (or, as here, by) the receiving state: 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.16. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.[55]Turning to Article 8 Mr Roe referred me to Razgar. His contention was that the Claimant’s case here did not on its facts as presented reach the high threshold required and the SSHD was fully entitled to approach this head of the claim as she had.[56]Finally Mr Roe submitted that the SSHD was perfectly entitled to approach the paragraph 353B claim as she had and no error on her part or law of otherwise had been identified.[57]Addressing the representations made by the Claimant Mr Roe took me to the Claimant’s first set of representations. It is to be noted Mr Roe says that in these letters the Claimant roots her claim firmly in Article 3 and there is no Article 8 claim. Mr Roe’s submission is that the decision letter in respect of those representations outlines the representations accurately, sets out the law accurately and come to a decision entirely open to the SSHD on the facts.[58]In respect of the submissions under cover of the letter of 13th September 2013 Mr Roe submitted that the medical evidence was old and the other material did not establish the Claimant’s claim to the required high standard and so once again the SSHD was entitled to come to the decision she did.

Discussion and conclusions

[59]At the conclusion of this judgment I shall dismiss this claim in its entirety. These are my reasons.

The November 2012 representations

[60]I begin by considering the effect of the findings of the Immigration Tribunal Judge as to the circumstances in which the Claimant left Uganda. It will be recalled that the Immigration Judge determined that the Claimant’s account was bogus and rejected “everything else of materiality”. I accept as I have described above that these findings would not necessarily be binding on an Immigration Judge charged with looking at this case afresh.[61]Careful reading of the Claimant’s representations in the letter of 21st November 2012 does not disclose any fresh material which in my judgment would lead to a realistic prospect that the core findings of the Immigration Judge, that the Claimant’s story was in its key aspects a bogus one, would be undermined. The material at p331-338 is of a generalised nature relating to the conditions pertaining in Uganda rather than casting specific doubt upon the findings of fact made by the Immigration Judge who had heard evidence.[62]The Claimant has argued before me that the medical evidence undermines the findings of the Immigration Judge as it discloses that the Claimant should have been treated as a vulnerable witness at that hearing, and she was not. I reject that argument. In my judgement Mr Roe is right when he submits that before such a submission can reach even the relatively low threshold of “realistic possibility” it is incumbent upon the Claimant to point to specific areas of the hearing where the Claimant at least may have been prejudiced in consequence of her vulnerability. The Claimant was unable to point to any such potential deficiencies in the hearing before me.[63]In my judgment therefore the SSHD was fully entitled to determine that there was no fresh evidence here which discloses a real possibility that the findings of the Immigration Judge might be undermined before a new Immigration Judge.[64]Turning then to the evidence as to the Claimant’s mental health condition. Where opposition to removal turns, as here, on a risk of suicide arising from the state of a claimant’s mental health it is self-evident that the mental health information put before the decision maker is of key importance. The psychiatric report here is from Dr Trevor Turner and is dated 2nd November 2012. It was submitted with the representations of 21st November 2012. That report diagnoses the Claimant with an:
“at least moderate Depressive Disorder, probably more severe, and this in the context of residual symptoms of PTSD, related to her social withdrawal, her relative emotional numbness and her constantly ruminating over aspects of her life”
[65]The doctor later says:
“The prognosis for [the Claimant] will very much depend on the treatment she receives for her depressive condition (see above) and what social support can be obtained whether in the UK or Uganda. As advised above I think that she is at high risk of self harm\or suicide, given the limited social support that is likely to be available and the threats that might pertain particularly in Uganda”
[66]The decision letter deals with the report at paragraph 4 onward. It sets out law and explains why in the SSHD’s view the high threshold required here in respect of Article 3 claims is not reached.[67]I remind myself that the threshold is on all the authorities a high one here. Even were I to disregard the argument that the strength of this medical evidence is significantly weakened by the author’s acceptance of the mother’s account of her life in Uganda in the face of the Immigration Judge’s findings I do not find that the information here has a realistic prospect of persuading a new Immigration Judge that it reaches the high standard required.[68]By way of a second check I step back and look at the totality of the material provided and ask myself whether cumulatively it reaches the necessary standard of realistic possibility as I have described above. In my judgment it does not for the same reasons I have given in respect of the individual elements of that material.[69]I find no public law error here on the part of the SSHD, in my judgement the SSHD was perfectly entitled on the material provided to reject the representations as a fresh claim.[70]Accordingly I dismiss the challenge to the decision in respect of the 21st November 2012 representations as disclosing no public law error.

The 13th September representations

[71]I turn now to the 13th September representations. Here the Claimant submitted a letter from Dr Turner of 19th March 2013 and other documents particularised at the outset of the letter under the heading “enclosures”. Regard has also to be had, of course, to the previous information submitted.[72]The letter of Dr Turner does not appear to be based on a further examination of the Claimant. The letter reports in similar but not identical terms the diagnosis given in his November 2012 report. Having been referred to them Dr Turner does not engage with the Immigration Judge’s findings save to say that “Clearly in such cases it is always difficult to obtain corroborative evidence”.[73]The balance of the evidence is from medical bodies or support organisations. Some of them accept the Claimant’s account as to her history and her mental health (see for example paragraph 3 of the letter from the Red Cross). Elsewhere the information is somewhat mixed. While a Mental Health assessment in January 2013 speaks of the Claimant experiencing suicidal thoughts a letter of 11th March 2013 from Central and North West London NHS indicates that the Claimant was not at this time displaying suicidal ideation or plan. This is in fact the latest medical evidence submitted save for the Claimant’s own statement of August 2013 that she remains subject to medication and often contemplates suicide, and her reference to attending counselling supported by other documentation.[74]A number of the support organisations express the opinion that the Claimant’s mental health condition is consistent with the history she gives to them and which the Immigration Judge rejected.[75]The SSHD’s decision letter of 5th December 2013 engages carefully with the evidence provided as to the Claimant’s mental health. The SSHD reminds herself in the heading to section 2 that the test is a realistic prospect of success.[76]The SSHD [page 9 of the decision letter] carefully goes through the documents provided and summarises them. Effectively the SSHD reaches two conclusions in respect of that evidence: i) That the information provided is out of date and would be insufficient to make a finding in respect of the Claimant’s mental health needs ii) That such information as there was did not indicate that the Claimant’s condition reached the high thresholds set by Article 3 or Article 8[77]The SSHD goes on to consider the suicide risk claim in relation to both Article 3 and Article 8. In undertaking that analysis the SSHD correctly identified the relevant law.[78]The medical information, taking it at its broadest, in my judgment does not begin to reach the high threshold required either in respect of Article 3 or Article 8. The psychiatric report is based upon an examination about 10 months before September 2013. The letter of March 2013 from Dr Turner was written without an examination and is 6 months old. The other information as to the Claimant’s medical condition is either old, or from a non-medical source, or in some cases both.[79]As I said above and repeat here where opposition to removal turns, as here, on a risk of suicide the medical information before the decision maker to support that claim is of key importance. In my judgment the SSHD was not only not wrong to come the view that the inadequacy of the medical evidence meant that the claim as presented had no realistic prospect of success before a new Immigration Judge, she was quite right.[80]Once again as a second check I step back from that analysis of each element to ask myself whether notwithstanding my conclusions in relation to each element taking all the elements I have identified together an arguable claim might emerge. For the reasons I have already described it seems to me not to do so.[81]In summary the SSHD engaged with the information put before her, applied the correct tests in law, and came to conclusions that were entirely open to her. I find no public law error in her decision either in relation to the Article 3 or Article 8 claim.[82]Finally in respect of paragraph 353B the SSHD set out the paragraph 353B and gave reasons why she was not prepared to find that the Claimant should be given exceptional leave to remain. Again I can detect no public law error there.[83]I have considered the information that the Claimant has put before the court post decision. It seems to me that the insurmountable difficulty here for the Claimant is that such information was not before the SSHD when she made her decision, and so cannot found a suggestion that she made a public law error.[84]By those conclusions for the sake of completeness the challenge to the setting of removal directions (which was not given permission and which is now academic I any event) fails.[85]Thus, I dismiss the Claim.