Case Study: SS (Sri
Lanka) v Secretary of State for the Home Department (Court of Appeal UK)
The Applicant is a Sri Lankan woman of Tamil
ethnicity. Her husband worked as a counsellor for Tamil victims of rape and
abuse perpetrated by the Sri Lankan
authorities. The Applicant claimed that
her home was raided by the army on 17th December 2010. She was raped during the raid and her husband
was abducted. After receiving hospital
treatment, she fled to the United Kingdom with her two children, and they
claimed asylum in January 2011.
The Applicant’s initial claim for asylum was refused,
and was unsuccessful on appeal. Since the attack she suffered post traumatic
stress disorder and depression, as well as increased anxiety, inability to
concentrate, and flashbacks of the incident. She was also discovered to be
suffering from advanced breast cancer.
Where
the first Tribunal has made an error in law, the judge can in certain
cases allow a second appeal which was permitted in this case. Firstly, the
judge held that the original appeals trial judge had hastily dismissed the medical
evidence presented in respect of the Applicant’s
poor mental and physical health. Secondly,
the Tribunal failed to consider the best
interests of the children, as was necessary following the judgement in the case
ZH
(Tanzania v Secretary of State for the Home Department) [2011] UKSC 4,
[2011] 2 A.C. 166.
The Court in this case needed to balance the interests
of the children in allowing the Applicant to remain in the State with the
evidence pointing towards her removal. They allowed that the previous Tribunal’s
failure to consider the interests of the children constituted an error of law,
but that had the previous tribunal considered the interests of the children,
the outcome would have remained the same.
The Court considered whether the
Applicant’s removal from the State would
violate her rights under Article 8 of the European Convention of Human Rights. It
was held that there would be no violation of Article 8, because the children
would leave the State and travel back to Sri Lanka with their mother, hence preserving
their family unit.
The Court also found that the interests of the
children would not be harmed upon their removal to Sri Lanka. They had not
established roots in the State nor had they formed any semblance of a stable
private life and so their social circumstances would not be affected. Their
mother was in poor health, which could pose problems, but there is no evidence
that the Applicant could not receive equivalent medical treatment upon her
return to Sri Lanka. Although the Tribunal was held to have unfairly discounted
medical evidence, the Court held that a more careful consideration of the
medical evidence would not have changed the ultimate decision of the Court.
The safety of the Applicant is ultimately
linked to that of her children. After
the attack, her husband was abducted by the army, and she has had no further
contact with him. Since her husband’s activities were the catalyst for the
attack, the Court concluded that she and
her children were in no further danger
if they return to Sri Lanka.
The appeal was ultimately dismissed because the
core of the previous opinion had not changed. If the Applicant was removed to
Sri Lanka, she and her children would face no significant danger. Since the
violence she encountered was a direct result of the activities of her husband,
and he is no longer an active member of her life, upon her return to Sri Lanka,
she would be able to maintain her family life and obtain adequate medical
treatment.
Brophy Solicitors
