Neutral Citation Number: [2006] EWCA Civ 368
Case No: C4/2004/1998/IATRF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
AS/31041/2003

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 4 April 2006
Before :

LORD JUSTICE BROOKE
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE MAURICE KAY
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Between :

	KAYDANYUK	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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Ms Nadine Finch (instructed by Messrs Fisher Jones Greenwood) for the Appellant
Mr Tim Eicke (instructed by The Treasury Solicitors) for the Respondent

Hearing date : 20.02.2006
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Judgment
Lord Justice Maurice Kay: 
1.	The appellant is a 27 year old man and a citizen of Ukraine.  He arrived in this country in July 2002 and claimed asylum.  His application was refused by the Secretary of State on 24 April 2003.  An appeal to an Adjudicator on asylum and human rights grounds was dismissed on 15 September 2003.  A further appeal to the Immigration Appeal Tribunal was dismissed on 11 June 2004.  However, on 22 October 2004 the appellant was granted permission to appeal to this Court.  
2.	The factual background as found by the Adjudicator is as follows.  The appellant was an orphan who, at the age of 10 or 11, had been put into the foster care of the Poda family in Zhytomyr.  In 1996 the foster parents sent the appellant to study at a university in Kiev.  After studying there for 2½ years the appellant was excluded from the university, seemingly because he had failed his examinations.  However, the appellant maintained that his exclusion resulted from the fact that his foster parents had been critical of the authorities.  Mrs Poda was publicly active in Zhytomyr and, indeed, had unsuccessfully stood as a candidate in the election for mayor in 1998.  Following his exclusion from the university, the appellant remained in Kiev and obtained a position with a business consultancy.  In 1999 he commenced studies at the State Linguistic University, also in Kiev, whilst continuing with his employment.  At some stage, he left the business consultancy and worked as a personal assistant to a wealthy businessman.  At the end of 2000 the appellant was excluded from the State Linguistic University for non-compliance with academic requirements and poor attendance.  The appellant maintained that this exclusion, too, was for ‘trumped-up’ reasons.  
3.	In or about 2001 the appellant commenced a homosexual relationship with a man called Anton.  The evidence given by the appellant to the Adjudicator referred to an occasion in June 2002 when he said that the police had entered his flat, abused him and his partner, stolen money from him and endeavoured to compel him to give evidence against his foster parents.  The Adjudicator did not accept that such an incident had occurred and his finding in that regard was not challenged in the Immigration Appeal Tribunal.  In 2002 Mrs Poda again contested the mayoral election in Zhytomyr and the appellant assisted her campaign but she was again unsuccessful.  In December 2002 the Poda family were forcibly evicted from their home and most of their possessions destroyed.  The appellant maintains that this attack was instigated by the authorities.  By that time, of course, the appellant was already in this country.  His case was and is that it would be unsafe for him to return to Ukraine where the police would persecute or even kill him.  Before the Adjudicator and the Immigration Appeal Tribunal he put the risk of persecution on the footing of his membership of a particular social group, namely the Poda family, or, alternatively, on the basis of an imputed political opinion.  His case failed because the Poda family do not constitute a particular social group and, in any event, the risk of persecution was not made out, not least because Mrs Poda continues to live and work in Zhytomyr and Kiev and is resorting to the judicial system in Ukraine with a view to resolving her disputes with the authorities.  For the same reasons the appeal by reference to Article 3 of the European Convention on Human Rights and Fundamental Freedoms was dismissed.  
4.	One of the documents which had been before the Immigration Appeal Tribunal was a report from Dr F E Winton, a consultant psychiatrist, dated 4 May 2004.  It was Dr Winton’s opinion that the appellant was suffering from a moderately severe depressive illness.  Under the heading ‘Prognosis’, Dr Winton stated:
“If Mr Kaydanyuk were to be forcibly deported without his consent this would certainly lead to a deterioration in his depression.  It is quite clear he fears harassment and possible death from the Ukrainian authorities.  Deportation would increase the risk of his making an attempt on his life.”
5.	There was a previous and recent history of suicidal ideation.  Dr Winton’s report played a relatively small part in the appeal to the Immigration Appeal Tribunal.  At paragraph 37 of its determination, the Tribunal stated:
“Ms Finch relied upon the recent medical report on the appellant, not to show that he would be at real risk of suicide if an attempt were made to return him (the evidence plainly falling well short of the standard required to establish this) but, rather, to show that he has a subjective fear of return.”
6.	The decision of the Immigration Appeal Tribunal was that any such fear was not objectively well founded.  
7.	Virtually as soon as the appellant learned that his appeal to the Immigration Appeal Tribunal had been dismissed, his health and state of mind declined markedly.  On 16 June 2004 he was referred to Dr Mohammed by the Mental Health Assessment Team.  The risk assessment of that date refers to “suicide risk: moderate to high at present time”.  The following day the appellant was admitted to St Clement’s Hospital in Ipswich.  A letter from a social worker dated 15 July 2004 stated: “It would be essential to assess and manage risk of suicide”.  By this time, the Immigration Appeal Tribunal had refused permission to appeal to the Court of Appeal.  
8.	Dr Winton provided a second report on 22 July 2004.  It contained these passages:
“Two days after hearing that his request for asylum had been turned down he became suicidally depressed and had to be admitted to St Clement’s Psychiatric Hospital and placed on observation.  The records suggest that it was a combination of antidepressants and hearing that he had another chance to appeal against the asylum decision which improved his mood.  He did not make a full recovery but was well enough to be discharged and was not actively suicidal at this time.  However he has begun to deteriorate again and has repeated his assertion that he would rather kill himself than be deported to Ukraine.  He has thought of the method and is fairly hopeless about his future and has requested that he make a will.”
9.	Dr Winton then referred to the previous history of the appellant and the occasions when he had become depressed when under stress.  He concluded:
“It is my opinion that should his appeal for asylum be rejected the risk of suicide would be genuinely high.”
10.	On 5 November 2004, some two weeks after permission to appeal to the Court of Appeal had been granted, the appellant’s mental well-being development worker wrote:
“We have seen Mr Kaydanyuk this week and our assessment suggests his mental health has deteriorated over the last three months.  He continues to present as ‘high suicide risk’.”
11.	Dr Winton reported again on 24 February 2005.  He referred to the appellant’s depression having continued to fluctuate since his previous report.  The prognosis was described in this way:
“If he were to be granted asylum it is my opinion that the sense of security this would generate would have a profound and positive effect on his depression and allow him to lead a productive life in the UK.  If he were to be refused asylum there is a very high risk he would kill himself given his attitudes and the depth of clinical depression that was clearly obvious during the interview.”
12.	The following day a volunteer case worker stated:
“I judge him to be a very high suicide risk in the event of his appeal failing.”
13.	On 1 September 2005 the appellant was apprehended by police officers on the Orwell Bridge on the outskirts of Ipswich.  The officers considered that he was on the point of a suicide attempt.  The appellant was again admitted to hospital.  Dr Winton produced his latest report on 30 December 2005.  He again referred to a likely recovery from the depressive illness in the event of a successful appeal.  However, he added:
“If he were detained pending removal to Ukraine it is my opinion that he would definitely make an attempt on his life … If he became aware that his arrest and detention were imminent it is my opinion that he would immediately make an attempt to kill himself.”
14.	The final paragraph of the report reads as follows:
“I have been a psychiatrist for 24 years and have seen 150 asylum seekers.  Of all the asylum seekers I have seen he is definitely the one who is most determined to end his life were his appeal for asylum unsuccessful.  He is a very high risk for suicide.  I do not make this comment lightly.”
15.	All this leads Ms Finch, on behalf of the appellant, to submit that his human rights case is much stronger than the evidence before the Adjudicator and the Immigration Appeal Tribunal suggested.  She relies on Articles 3 and 8 of the Convention.  She contends that, by reason of the high risk of suicide, there would be a breach of Article 3 in this country at the moment when it is sought to implement any removal directions by means of detention pending removal.  As to Article 8, the suggestion is that removal to Ukraine would lead to an impairment the appellant’s right to enjoy a private life.
16.	The first thing to note about this appeal is that the appellant accepts that the determination of the Immigration Appeal Tribunal contains, on the face of it, no legal error.  It was an unimpeachable decision on the material presented to the Tribunal.  An appeal from the Immigration Appeal Tribunal – and now from the Asylum and Immigration Tribunal – lies to the Court of Appeal only on a point of law.  The present appeal is governed by section 103(1) of the Nationality Immigration and Asylum Act 2002.  In these circumstances, upon what basis does the appellant seek to establish legal error on the part of the Immigration Appeal Tribunal?  In a nutshell, Ms Finch submits that the facts and matters concerning the health and state of mind of the appellant which were only truly appreciated after the determination of the Immigration Appeal Tribunal demonstrate that that determination was based on a mistake of fact such that the dismissal of his appeal was unfair and therefore legally erroneous.  She relies on E and R v Secretary of State for the Home Department [2004] QB 1044; [2004] EWCA Civ 49.  Giving the judgment of the Court of Appeal (which comprised Lord Phillips of Worth Matravers MR, Mantell LJ and himself) Carnwath LJ stated (at paragraph 66):
“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in cooperating to achieve the correct result.  Asylum law is undoubtedly such an area.  Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the … Criminal Injuries Compensation Board case.  First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.  Secondly, the factual evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable.  Thirdly, the appellant (or his advisers) must not have been responsible for the mistake.  Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.”
17.	The reference to the “Criminal Injuries Compensation Board case”, is a reference to R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330.  
18.	Since E and R the scope of “mistake of fact giving rise to unfairness [as] a separate head of challenge in an appeal on a point of law” has been considered in a number of asylum cases, including Cabo Verde v Secretary of State for the Home Department [2004] EWCA Civ 1726, R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 and Shaheen v Secretary of State for the Home Department [2005] EWCA Civ 1294.  
19.	It is instructive to keep in mind the circumstances of these cases.  In E and R there was new objective material dealing with conditions in, respectively, Egypt and Afghanistan at times preceding the hearings in the Immigration Appeal Tribunal.  In Cabo Verde, the mistake of fact was a mistake as to the existence of evidence which put in issue the asylum seeker’s claim to have been in Angola at the relevant time.  In Shaheen, the mistake of fact relied upon related to whether Mrs Shaheen had been in the United Kingdom or in Pakistan at a particular time.  However, in her case, the attempt to rely on E and R failed because the new evidence was contentious and not objectively verifiable.  In R (Iran) Brooke LJ referred again to eight examples of mistake of fact which Carnwath LJ had extracted from the previous case law in E and R itself.  They are collected in paragraph 29 of the judgment in R (Iran).  Suffice it to say, that they were plainly matters of historical fact.  
20.	Do the principles expounded in E and R avail the appellant in the present case?  In my judgment they do not.  I do not consider that the appellant can establish the first requirement, namely that “there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter”.  The Immigration Appeal Tribunal had before it the recent opinion of Dr Winton dated 4 May 2004.  It was undisputed at the time.  It was considered by the Tribunal and a correct view was taken of it.  I do not accept that it contained or gave rise to a mistake of fact on the part of the Tribunal.  It referred to the risk of suicide.  The fact that the risk increased after and as a result of the determination of the Tribunal does not mean that the Tribunal had been labouring under a mistake of fact.  
21.	Take, for example, a case in which, at the time of the hearing before the Tribunal, the appellant is known to be suffering from a serious illness which may later develop into a catastrophic one.  Let us say that there is an existing diagnosis of HIV but not of Aids.  The Tribunal then reaches a conclusion adverse to the appellant by reference to Article 3 and Article 8.  Soon after the promulgation of the decision, there is a diagnosis of Aids in a highly virulent form with a prognosis so poor that the appellant is considered unfit to travel to his home country.  In my judgment, such an appellant could not establish an error of law on the part of the Tribunal.  All that he could do would be to make a fresh application to the Secretary of State.  The same would apply if, for example, the evidence about political and social conditions in the home country painted a poor but not disastrous picture, albeit with a potential for deterioration, at the time of the Tribunal hearing and, following the dismissal of an appeal, the potential for deterioration materialised more quickly and more profoundly than anyone had had reason to predict.  Once again, I do not consider that it could be said that there had been an error of law in the form of a mistake as to existing fact at the time of the determination.  The remedy of the appellant would be to make a fresh application to the Secretary of State.  If the Secretary of State rejects a fresh application then his decision is susceptible to judicial review on public law grounds.  I appreciate that those advising unsuccessful appellants on the making of fresh applications report a history of unfavourable responses when the Secretary of State considers the applications under paragraph 353 of the Immigration Rules.  However, it seems to me that by restricting the remedial route of an appellant both within the Asylum and Immigration Tribunal and to the Court of Appeal to legal error, Parliament has increased the burden on the Secretary of State to give the most careful consideration to fresh applications.  
22.	Thus far, I have explained my view that the appellant faces an insuperable obstacle in the current appeal simply by reference to the first of the criteria set out in E and R.  However, Mr Eicke also submits that the attempt to rely on E and R runs aground when the other three criteria are considered.  Thus, he submits that this is not a case of “established” facts which are uncontentious and objectively verifiable.  What is in issue is the appellant’s state of mind and a prognosis as to future risk.  In this regard, it is relevant that Dr Winton’s opinions have been conditioned by the account given to him by the appellant of events in Ukraine, part of which account has been rejected by the Adjudicator, which rejection remains unchallenged.  Next, Mr Eicke submits that, to the extent that Dr Winton may be said to have been mistaken in his opinion of May 2004 (as Miss Finch was constrained to submit at one point), that would amount to a mistake on the part of the appellant’s advisers and would fall foul of the third criterion in E and R.  Further, he submits that, even if there was a mistake existing at the time of the Tribunal hearing, it did not play a material part in the reasoning of the Tribunal, which dealt appropriately with Dr Winton’s report.
23.	I say at once that, in my judgment, this final submission is not correct.  If, contrary to my view, the material which has come to light since the hearing in the Tribunal could be said to establish a mistake of fact, it seems to me that one would have to say that the mistake had played a material part in the Tribunal’s reasoning which, but for the mistake, would have approached the question of suicide risk differently.  As to the third criterion, I do not consider that it is correct to treat Dr Winton’s opinion of May 2004 as “mistaken”.  I can understand why Miss Finch felt constrained to characterise it as such, but, in my view, she was not correct to do so.  Moreover, I do consider that there is some force in Mr Eicke’s point about the second criterion, namely that the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable.  However, I prefer to base my conclusion on the first criterion which, as I have said, I consider to place an insuperable obstacle in the way of the appellant.  I would therefore dismiss the appeal, in the expectation that the appellant will continue to press his case with the Secretary of State.  I, of course, express no view on the likely outcome.
Lord Justice Jonathan Parker:
24.	I agree.
Lord Justice Brooke:
25.	I also agree.