Neutral Citation Number: [2005] EWCA Civ 1328
Case No: 2005/0526
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
HX21676/2003
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10 November 2005
Before :

LORD JUSTICE AULD
LORD JUSTICE MOORE-BICK
and
SIR PETER GIBSON
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Between :

	R (RODRIGUEZ-TORRES)	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr. Peter Jorro (instructed by Birnberg Peirce and Partners) for the appellant
Mr. Parishil Patel  (instructed by the Treasury Solicitor) for the respondent

Hearing dates: 11th October 2005
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Judgment
Lord Justice Moore-Bick: 
1.	This is an appeal by Marco Rodriguez-Torres against an order made by the Immigration Appeal Tribunal on 5th November 2004. By its order the Tribunal allowed the appeal of the Secretary of State against the order of the adjudicator who on 22nd July 2003 had allowed the appellant’s appeal on human rights grounds against the refusal of the Secretary of State to allow him to remain in this country.
2.	The appellant is a Peruvian national who was born in 1956. His father died in 1974 and he was affected deeply by his death. However, his mother is still alive and lives in Peru. He has four brothers and five sisters. One of his brothers, Ciro, and one of his sisters, Flor, currently reside in this country; his other brothers and sisters live in Peru. He has three children of his own by a woman with whom he was in a long-term relationship. They are also in Peru.
3.	The appellant arrived in the United Kingdom on 6th June 1997 in the company of his brother, Gilmer, on a visitor’s visa. At that time Ciro and Flor were already living here. Gilmer came here for medical treatment and has since returned to Peru. The appellant took no steps to apply for asylum until March 2001, that is, almost four years after his arrival in this country. When he was interviewed he explained that he had been a teacher and actively involved in left wing politics in Peru, particularly in connection with trade union rights. In that capacity he had attended demonstrations which had brought him into conflict with the authorities. He felt himself to be in physical danger, but he was never arrested or held in custody. The reason he gave for coming to this country was that he had become tired of continuing confrontation and wanted to live in peace. 
4.	On 26th April 2001 the appellant was seen by a consultant psychiatrist, Dr. Philip Steadman, in company with an interpreter. He described various physical ailments, including long-standing stomach pains, but his main complaint was of depression from which he had begun to suffer shortly after his arrival in this country. He suffered from continuing serious problems with sleeping for which he had been prescribed a form of sleeping pills which also have the effect of inhibiting anxiety. Dr. Steadman considered that his depression and sleep problems were consistent with what one would expect in someone missing his country and feeling anxious about the future. He did not consider that the appellant had developed either a syndrome of full-blown post traumatic stress disorder or long term pervasive depression, but he expressed the view that returning him to his country would place him at serious risk of developing one or both of those syndromes.
5.	On 10th December 2001 the Secretary of State refused the appellant’s application for asylum on the grounds that he had not been persecuted by the authorities in Peru and was not of any interest to them. On 19th December the appellant appealed to an adjudicator.
6.	Almost 18 months later, on 24th May 2003, the appellant was seen by another psychiatrist, Dr. David Bell. By that time his depression had clearly worsened. Dr. Bell found him to be suffering from a serious psychiatric disorder in the form of severe depressive disorder and to be displaying symptoms typical of persistent depressed mood. He also suffered from chronic anxiety state. Dr. Bell considered that the appellant’s condition had been deteriorating since his arrival in this country and that the effect of returning him to a country in which he believed that he would become an object of persecution would be very likely to cause a very significant deterioration in his mental state. He thought that it would substantially increase the risk of his attempting to commit suicide.
7.	The hearing before the adjudicator was held on 30th June 2003. The appellant filed a further lengthy statement in support of his appeal and also statements from Ciro and Flor in which they supported the account he had given of his activities in Peru and of his circumstances since his arrival in this country. They both also gave oral evidence on his behalf. In addition the adjudicator had before him the reports of Dr. Steadman and Dr. Bell.
8.	In his decision which was promulgated on 28th July 2003 the adjudicator accepted that the appellant had been engaged in trade union activity over a prolonged period in the course of which he had attended demonstrations and rallies as part of what he described as “very lively political activity in which the appellant and his colleagues would have given as good as they got”. He noted, however, that there was no evidence that the appellant had ever been arrested or held in custody and that all the evidence of possible assassination attempts was extremely vague. He did not accept that the appellant had been persecuted for any reason falling within the Refugee Convention, or indeed at all, or that he was likely to be persecuted on his return to Peru. He therefore rejected the submission that the appellant was entitled to obtain asylum in this country. However, in the light of the evidence contained in Dr. Bell’s report, which quite understandably he found impressive, he allowed the appeal on human rights grounds. In the light of the findings he had made on the asylum issue, he did not consider that there was any real likelihood that the appellant would be subjected on his return to Peru to the kind of ill-treatment contemplated by articles 2 and 3 of the European Convention on Human Rights (“ECHR”) in the sense that he would be at risk of any targeted ill-treatment on his return, but he did consider that to return him would constitute a breach of articles 3 and 8 because of the effect that returning him to Peru would be likely to have on his mental health. He found that, although there was no evidence that appropriate psychiatric help was not available in Peru, because the appellant believed, however wrongly, that he would be persecuted if he were to go back, the very fact of returning him would cause his mental condition to deteriorate. Moreover, to return him would interfere with his family life in this country and with his physical and moral integrity to an extent that would be disproportionate to the legitimate aim of implementing a lawful immigration policy.
9.	The appellant and the Secretary of State both appealed to the Immigration Appeal Tribunal, but before the appeal was heard the appellant was seen for a second time by Dr. Bell on 5th March 2004. He produced a report dated 11th March 2004 in which he noted that the appellant had the appearance of a person who was severely depressed and that his mood was much more dominated by despair. He considered that the appellant’s psychiatric condition had markedly deteriorated since he had last examined him in that the severity of his depression had increased. Dr. Bell was struck by the degree of hopelessness that dominated the clinical picture and expressed the view that, although the appellant was not actively suicidal at that time, he could become so. He said that return to Peru would result in further deterioration in the appellant’s mental state with an increased risk of suicide. Return would also break important family attachments that provided real support that was helping to prevent further deterioration.
10.	The hearing took place on 1st October 2004 and among the material before the Tribunal was Dr. Bell’s second report. In its decision dated 5th November the Tribunal pointed out that there was no evidence before the adjudicator to suggest that the appellant could not receive adequate medical treatment in Peru and that there was some evidence that he had not been taking advantage of the treatment available to him in this country. In paragraph 71 of its reasons the Tribunal held that the adjudicator had erred in law in failing to analyse the medical evidence properly and as a result had concluded that there would be a breach of the appellant’s rights under articles 3 and 8 of the ECHR purely on the basis that there might be a deterioration in his mental health if removed to Peru. It therefore allowed the Secretary of State’s appeal.
11.	The Tribunal dismissed the appellant’s appeal on asylum grounds on the basis of the facts found by the adjudicator and since there is no appeal against that part of its decision, it is unnecessary to say anything more about it. 
12.	It was common ground that, because the hearing before the adjudicator had taken place in July 2003, the Tribunal had jurisdiction to interfere with the decision of the adjudicator only on the grounds of an error of law. However, if the Tribunal was right in holding that the adjudicator made an error of law, it was entitled to consider the case as a whole on the merits: see R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraphs 59-75.
The grounds of appeal
13.	In the present case there are three grounds of appeal which are to some extent interrelated. The first is that the Tribunal was wrong to hold that the adjudicator had made an error of law in reaching the conclusion that to return the appellant to Peru would infringe his rights under articles 3 and 8 of the ECHR. The second is that the Tribunal had no jurisdiction to hear an appeal on the ground that the adjudicator had erred in law in holding that there had been breaches of articles 3 and 8 of the ECHR because the Secretary of State had not raised that issue in his grounds of appeal. The third is that the Tribunal was wrong in the circumstances of this case to hold that the adjudicator had made an error in his application of the law to the facts as he found them in view of the fact that the Secretary of State had disavowed any allegation of perversity on his part. 
14.	It is convenient to deal with the issues of jurisdiction first before coming to the substance of the appeal.
Jurisdiction
15.	The grounds on which the Secretary of State sought permission to appeal included the following:
“2. The adjudicator has erred (Para. 11.9) in his consideration of the appellant’s health constituting a breach of Article 3.
It is submitted that the adjudicator has not considered the high threshold according to Bensaid where the court held that the risk of damage to the appellant’s health on return to his country were based on largely hypothetical factors. It is submitted that since the adjudicator has found there is no evidence that psychiatric care is not available in Peru (Para 11.8) it therefore follows that any risk to his health on return is purely speculative.
3. It is submitted that by wrongly allowing the appeal on Article 3 medical grounds the adjudicator has also wrongly allowed the appeal on Article 8 grounds under physical and moral integrity. The Secretary of State relies on Ullah & Do (CA) [2002] EWCA Civ 1856.”
16.	Mr. Jorro submitted that in formulating the grounds of appeal in that way the Secretary of State had not purported to identify any error of law in the adjudicator’s determination and had indeed failed to do so. He had made no application to amend those grounds and accordingly, he submitted, the Tribunal had no jurisdiction to entertain the appeal which it should have dismissed out of hand. In support of that submission he relied on the recent decision of this court in Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481.
17.	Although the words “error of law” are not used in either of these paragraphs, I think that the substance of the complaint being made is quite clear in each case. The ground of appeal being put forward in paragraph 2 was that the adjudicator had failed properly to apply the principles stated in Bensaid v UK 33 E.H.R.R. 205. In other words, it was being said that although the adjudicator had directed himself that a high threshold applied in cases of this kind, he did not apply the law as set out in Bensaid and set the threshold too low. Similarly, it is clear that the point being raised in paragraph 3 was that the adjudicator’s decision in relation to the appellant’s rights under article 3 infected his decision in relation to his rights under article 8, which was therefore also flawed. Another way of putting the same argument might be to say that the evidence was incapable as a matter of law of supporting the adjudicator’s decision. In my view, therefore, the grounds of appeal do identify the errors of law which the Tribunal was being asked to consider. I would only add that for my own part I would strongly deprecate any attempt to construe grounds of appeal in these cases in a narrow and formalistic way. What is important is to ensure that the question of law which the applicant seeks to raise is identified with sufficient clarity to enable both the respondent and the Tribunal to understand what it is. 
Perversity
18.	The submission that the Tribunal ought not to have allowed the Secretary of State to pursue his case once he had disavowed any suggestion of perversity was not pressed in argument and is one that I am quite unable to accept. It was based on a passage in paragraph 50 of the Tribunal’s reasons in which it summarised what had been said in reply on behalf of the Secretary of State. That paragraph reads as follows:
“In reply Ms Sigley [for the Secretary of State] submitted that, with regard to Articles 3 and 8, the subject matter of the respondent’s appeal, the respondent actually relied upon the Adjudicator’s failure to consider relevant factors, rather than there being any suggestion of perversity on his part. She submitted that had the Adjudicator considered the factors to which she had earlier referred,  then he would have reached a different conclusion and that it was upon that basis that she argued that there had been an error of law.”
19.	It may well be that Ms Sigley was reluctant to accuse the adjudicator of perversity because she was aware that in ordinary speech it carries connotations of deliberate disregard of matters known to be relevant to the decision under consideration, but in the public law context it is usually equated with irrationality or unreasonableness in the Wednesbury sense without necessarily carrying pejorative overtones of that kind: see the comments of Keene and Maurice Kay LJJ in Miftari at paragraphs 36 and 38 respectively.  It is for this reason that where a tribunal has reached a decision that is not open to it on the evidence it is sometimes described as having been perverse. In the present case no one was suggesting that the adjudicator had deliberately disregarded material that he knew he should have taken into account, but it is quite clear that it was being said that he had inadvertently failed to consider relevant factors, or had given them insufficient weight, as a result of applying the wrong legal test. Accordingly, I can see no basis on which it could be said that the Tribunal was wrong to consider the substance of the arguments which the Secretary of State sought to raise.
Article 3 and Article 8
20.	The adjudicator expressed his decision in the following terms:
“11.5	It was never suggested to me by Mr. Jorro [counsel for the appellant] that appropriate psychiatric help could not be given to the appellant in Peru; the only point being made was that as he did not want to go back, and indeed would be very upset if that happened, that it would by definition worsen his state of health and make successful treatment less likely.
11.6 	This issue of course arises not infrequently; I have been referred in particular to the cases of RATKOCERI 2002 IAT 08358 and ISLAMI 2002 IAT 06303.  They are both very recent decisions and although of course cases can doubtless be found each side of a borderline they are directly in point.
11.7 	There is always of course in particular a balancing exercise between the extent to which appropriate treatment is available in the home country and such issues as a measurable increase in the risk of suicide or other serious harm coming to an individual who believes that return to his home country will have a significant adverse effect.
11.8 	As I previously indicated, it has not been suggested to me that psychiatric treatment is not available in Peru but considerable emphasis is laid upon the appellant’s perspective of being sent back and the affect it would have on his health.
11.9 	It is therefore a finally balanced case, but bearing in mind that the appellant only has to satisfy me that there is a reasonable likelihood of a breach of article 3 if he were to be returned (and the fact that I am impressed by the quality of  the report of Dr. Bell) I find in the appellant’s favour; I bear in mind the high threshold in this respect.
11.10 	The appellant has a private life in the United Kingdom and an extended family life that I believe to be very relevant to him.  To return him to Peru would constitute an infringement of this and interfere with his physical and moral integrity.  To return him would be in accordance with the law and would pursue a legitimate aim.  However on all the evidence I find that it would not be proportionate.”
21.	In its decision the Tribunal drew attention to the decision in Bensaid and also to the case of R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 A.C. 368 in which the House of Lords emphasised that only in the most exceptional cases is the return of a person to his country of origin likely to infringe article 3 or article 8 of the ECHR on health grounds. Having drawn attention to the fact that there was no evidence that the appellant would be unable to obtain adequate medical treatment in Peru it said in paragraph 71 of its reasons:
“The errors of law which we find are as follows. First, the Adjudicator did not fully analyse the medical evidence before him, in terms of what would happen to the claimant with respect to his mental health, if returned to Peru. Whilst it may be that the claimant holds a subjective fear of such return, the Adjudicator’s findings were that he would not suffer persecution in the event of his return. There was no indication from the evidence before the Adjudicator that necessary and appropriate medical treatment would not be available to the claimant in Peru. There was no indication in Dr. Bell’s evidence that the claimant held any serious suicidal intent, or any such intent which was likely to be triggered in the event of removal. The Adjudicator appears simply to have reached a conclusion that the claimant’s removal would breach Articles 3 and 8 purely on the basis that there might be a deterioration in his mental health if removed to Peru. The Adjudicator’s consideration of the risk was, indeed, based upon hypothetical factors and we find that he did not clearly analyse the consequences of removal. . . . . .”
22.	Mr. Jorro submitted that the criticism of the adjudicator was misplaced since he had correctly directed himself that the threshold that the appellant had to cross in order to establish a violation of his rights under article 3 and article 8 was a high one and that it was for him to decide whether it had been crossed in this case. However, the adjudicator did not have the benefit of the guidance that is now available from the decision in Razgar and it is not clear that the decision in Bensaid was specifically drawn to his attention, although he must have been aware of it. As one can see from paragraph 11.6 of his determination, he was applying the law in accordance with the earlier decisions of the Immigration Appeal Tribunal in Islami v Secretary of State for the Home Department [2002] UKIAT 06303 and Ratkoceri v Secretary of State for the Home Department [2002] UKIAT 08358, but the approach taken in those cases must be reconsidered in the light of the later decision in Razgar. 
23.	In Razgar their Lordships confirmed that in principle it is possible for a person’s rights under article 8 of the ECHR to be violated by returning him to his country of origin because of the effect that would have on his mental health, even where removal would not violate article 3, but that the threshold is a high one and will only be met in an exceptional cases. They also accepted that in principle the threat to mental health might come from the person’s own perception of the risk of ill-treatment, however irrational that might be. The main importance of the case, however, lies in the emphasis placed by all their Lordships on the balance to be struck between the interests of the individual and the interests of the community, even where the threat to health is said to engage article 3, and in particular in their recognition that decisions taken in pursuance of a lawful immigration policy will be proportionate in all but a small minority of cases: see per Lord Bingham in paragraph 20. Commenting on the relationship between article 3 and article 8 in the context of health care cases Baroness Hale said in paragraph 59
“Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under article 3 but succeed under article 8.  There clearly must be a strong case before the article is even engaged and then a fair balance must be struck under article 8(2).  In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control or public safety.”
24.	In my view it is clear that, although the adjudicator directed himself that the threshold in cases of this kind is a high one, he did not for whatever reason have in mind quite how high that threshold really is. In particular, he failed to direct himself that it is only in the most exceptional cases that the removal of a person from this country in the ordinary operation of immigration control will involve a violation of his rights under articles 3 or 8 because of the effect that is likely to have on his physical or mental health. The Tribunal was right to hold that the evidence before the adjudicator in this case fell some way short of what would be required to meet that test and that he erred in law in holding otherwise.
25.	In those circumstances the Tribunal was entitled to consider the matter for itself in the light of all the material before it, which included Dr. Bell’s second report. It concluded that despite the deterioration in the appellant’s mental health in the period since Dr. Bell had first examined him and his fear of persecution on being returned to Peru, this was not a case in which his rights under article 3 or article 8 would be violated if he were sent back. It therefore allowed the Secretary of State’s appeal.
26.	In my view that was a conclusion which the Tribunal was clearly entitled to reach on the evidence before it and in those circumstances I would dismiss the appeal.
Sir Peter Gibson
27.	I agree
Lord Justice Auld:
28.	I also agree that the appeal should be dismissed for the reasons given by Lord Justice Moore-Bick.