In MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232 (IAC) (23 August 2021), the Upper Tribunal made it clear from the outset that the appellant’s appeal was allowed on Article 3 health grounds, which was the determinative issue in the appeal.

The Headnote in MY states:

“Where an individual asserts that he would be at real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State and  meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2020] Imm AR 1167, when undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply.

MY concerned an Appellant who claimed to be a citizen of the Occupied Palestinian Authority (OPA)(although the Secretary of State’s position was that he was Moroccan).  On 10 July 2014, he was convicted of robbery and ABH and was sentenced to 22 months’ imprisonment. He therefore became the subject of deportation proceedings and sought to resit deportation raising several claims, including that his deportation would breach his rights under Article 3 ECHR on the grounds of his mental illness.

Physical health condition cases and mental health condition cases:

In contrast to:

• N v United Kingdom 2008 ECHR 26565/05; [2008] Imm AR 657)
• Paposhvili v Belgium 2016 ECHR 41738/10; [2017] Imm AR 867
• AM (Zimbabwe) v SSHD [2020] UKSC 17; [2020] Imm AR 1167

which involved physical health condition cases, MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232 (IAC) (23 August 2021) concerned a mental health psychiatric condition case.

As a question of law, issues concerning the application of Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 and J v SSHD [2005] EWCA Civ 629; [2005] Imm AR 409 following Paposhvili  and AM (Zimbabwe) were relevant for consideration.

J v SSHD  and  Y (Sri Lanka)  relate to psychiatric health cases.

The issue in MY before the Upper Tribunal was whether after AM (Zimbabwe), the N test continued to apply in cases involving the expulsion of a criminal with a psychiatric condition or whether the Paposhvili test applied.

What was the very high threshold test in N?

In N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 the Court clarified  what was meant by “exceptional circumstances”:

“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle 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 and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

Following N claimants were required to demonstrate circumstances so exceptionally appalling that they reached the high threshold set in D: where the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

The ‘deathbed’ scenario has now been held to set too high a threshold to properly reflect the values that Article 3 is designed to protect.

What is the Paposhvili test?

The Grand Chamber in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876, recast the test to be applied in Article 3 health cases.  It expressed the view in paragraph 182 that the approach to health cases should be clarified.  The court then stated as follows:-

“183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”

The Supreme Court decision in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, [2020] Imm AR 1167, sets out at paragraph 34:  ‘…..in the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should depart today’.

The Supreme Court in AM(Zimbabwe) further clarified:

“31. It remains, however, to consider what the Grand Chamber did mean by its reference to a “significant” reduction in life expectancy in para 183 of its judgment in the Paposhvili case. Like the skin of a chameleon, the adjective takes a different colour so as to suit a different context. Here the general context is inhuman treatment; and the particular context is that the alternative to “a significant reduction in life expectancy” is “a serious, rapid and irreversible decline in … health resulting in intense suffering”. From these contexts the adjective takes its colour. The word “significant” often means something less than the word “substantial”. In context, however, it must in my view mean substantial. Indeed, were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires. Surely the Court of Appeal was correct to suggest, albeit in words too extreme, that a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction. But even a reduction to death in the near future might be significant for one person but not for another. Take a person aged 74, with an expectancy of life normal for that age. Were that person’s expectancy be reduced to, say, two years, the reduction might well – in this context – not be significant. But compare that person with one aged 24 with an expectancy of life normal for that age. Were his or her expectancy to be reduced to two years, the reduction might well be significant.

32.The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal”.

Insofar as the judgment in AXB v SSHD [2019] UKUT 397 relates to the procedural aspects arising from Paposhvili, what is stated at [112] (replicated at paragraph 3 of the headnote) was endorsed by the Supreme Court in AM(Zimbabwe) :-

“The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply.  If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence.  Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.”

In respect of the obligations on the Secretary of State following Paposhvili, the Supreme Court  in AM(Zimbabwe) stated at [33] as follows:-

“In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarised at para 23(b) to (e) above. 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”.

The six-point guidance in J v SSHD – suicide cases:

The J guidance, as formulated at paragraphs 26 to 32 states:

“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.

32.We were shown a number of cases which were declared inadmissible at Strasbourg: A.G v Sweden Appl No 27776/95; Kharsa v Sweden Appl No 28419/95; Nikovic v Sweden Appl No 28285/95; Ammari v Sweden Appl No 60959/00; Nasimi v Sweden Appl No 38865/02. The sixth factor which we have identified above was considered to be relevant in each of these cases. The fifth factor was considered to be an additional relevant factor in Kharsa, Ammari and Nasimi”.

The fifth point in J v SSHD was reformulated in  Y (Sri Lanka) where  the Court of Appeal stated: –

“15. … 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.”

Sir Duncan Ouseley in R (Carlos) v SSHD [2021] EWHC 986 (Admin) stated at [159]:

“Article 3 and suicide risk: this is another facet to which Paposhvili and AM (Zimbabwe) apply.  It is for EC to establish the real risk of a completed act of suicide.  Of course, the risk must stem, not from a voluntary act, but from impulses which he is not able to control because of his mental state”.

Secretary of State attempts to persuade the Upper Tribunal in MY to apply the N test to psychiatric/mental health cases:

Whilst the appellant relied on AM (Afghanistan) v SSHD [2017] EWCA Civ 1123; [2017] Imm AR 6, in relation to the Secretary of State’s submissions the following was noted:

• that Paposhviliand AM(Zimbabwe) do not apply to mental health cases and that the N test applied.
• while Y, Jand Bensaid v United Kingdom 2001 ECHR 44599/98 relied on the application of the N threshold as opposed to the now modestly extended protection of AM(Zimbabwe), nonetheless in psychiatric cases the focus has always been on the treatment or lack of it in the receiving country and the impact that would have on the person.
• The obligation is on the applicant to raise a “prima facie case” of potential infringement of Article 3.  The burden being on them to prove that there are substantial grounds for considering, that theirs is a very exceptional case because of a real risk of subjection to treatment, resulting from the foreseeable consequences of the removal [AM at [32]; [108] of Vilvarajah and Others v United Kingdom 1991 ECHR 13163/87].
• The obligation on the authorities of a returning state dealing with a health case is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence [AXBat [123]].
• There is no freestanding obligation on a returning state to make enquiries to the receiving state concerning treatment or obtain assurances in that regard [AXBat [124]].  Once a prima facie case is established that in accordance with AM at [33] the Secretary of State is not obliged to dispel “any doubts” raised by the applicant’s evidence

On behalf of the Appellant it was argued as follows:

• The Appellant suffers from severe depression, PTSD, generalised anxiety disorder and paranoid schizophrenia.  The Consultant forensic psychiatrist Dr Galappathie had confirmed that these conditions would have an impact on the Appellant’s memory and ability to recall past events, especially traumatic ones.  Careful and specific attention should be paid to every aspect of such medical report
• In Savran v Denmark 2019 ECHR 57467/15, the majority decided that the decision in Paposhvili applies to mental health cases and nothing in AM(Zimbabwe) would suggest otherwise.
• The appellant also relied on the case of R (Carlos) v SSHD.
• There was no evidence that the Appellant is feigning illness, he was at a high risk of suicide and the test in AM(Zimbabwe) is met.  He relied on the evidence of Professor Joffe about the state of mental health services in OPA.  The Appellant’s current treatment in the UK is medication, he has follow-up appointments with his general practitioner. The test is as set out in Paposhvili and confirmed by the Supreme Court in AM(Zimbabwe).
• The Tribunal must ask itself whether the appellant would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a significant, meaning substantial, reduction in life expectancy.  That this judgment applies to cases involving mental illness and risk of suicide has been confirmed by Sir Duncan Ouseley in R (Carlos) v SSHD.It is for the appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to “dispel any doubts raised by it”
• Professor Joffé had described mental health treatment in the OPA as “dire” and pointed to “a desperate shortage of mental health specialists”.  Professor Joffé also described the availability of public health facilities for individuals with the appellant’s serious mental health disabilities to be “inadequate” and private facilities would not be affordable.
• The correct test for mental health/suicide cases is now as set out in Paposhviliand confirmed by the Supreme Court in AM(Zimbabwe). This test, adapted to this particular context is whether there are substantial grounds for believing that the appellant would face a real risk on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to: (i) a serious, rapid and irreversible decline in his state of his mental health resulting in intense suffering, or (ii)a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide.
• It is conceded by the Secretary of State that return to OPA would breach the UK’s obligations under Article 3.  Even the Secretary of State ’s own evidence entitled Report of the Home Office Fact-Finding Mission Occupied Palestinian Territories: Freedom of movement, security and human rights situation, described mental health in OPA as “a big concern” and as having “severe capacity gaps”

Upper Tribunal agrees the correct test is set out in Paposhvili as confirmed in AM(Zimbabwe):  J and Y subjective fear on return guidance is still valid:

The Upper Tribunal considered and concluded as follows as regards the applicable test:

• The test to be applied in Article 3 health cases is that found at [183] in Paposhvili as explained by the Supreme Court in AM(Zimbabwe at [29] -31]; namely, whether the Appellant would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a significant, meaning substantial, reduction in life expectancy.
• There is nothing in European or domestic case law to support any contention that Paposhvili does not apply to suicide cases. The Secretary of State accepts it applies.  That Paposhovili applies to cases involving mental illness and risk of suicide, was confirmed in Savran v Denmark and again recently by Sir Duncan Ouseley in Carlos.
• Insofar as J and Y concern subjective fear on return, the guidance is still valid. There is nothing controversial about points 1-4  in J. What is stated therein has not been overtaken by AM(Zimbabwe).
• There is no threshold test in either J or Y.  The 6 points made are not a test.
• They amplify the test set under Article 3 in the light of N (‘the Ntest’). Furthermore, the Secretary of State now accepts that the correct test is that in Paposhvili and AM(Zimbabwe).   The reformulation of point 6 by the Secretary of State is an attempt to create a threshold test which has no basis in law.
• Points 5 and 6 in J give guidance on how to deal with subjective fear.  While the guidance specifically refers to suicide cases, this simply reflects the N  In order to reflect properly the applicable Paposhvili test, the guidance should now apply to mental health cases generally where fear is unfounded.
• Moreover, the final sentence of point 5 in J is not an attempt to create any extra burden on the Appellant in a suicide (or mental health) case. The point made by the Court of Appeal in J must be considered in context. The Appellant in that case did not have psychosis or schizophrenia. He had PTSD from what had happened to him in Sri Lanka. There was treatment available in Sri Lanka to which the Appellant would have access because he had the support of family members.  Moreover, in Y, the Court of Appeal added to point 5 something of particular relevance to this appeal, namely that what may 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.
• The six points in J apply to mental health cases post Paposhvili. They do not impose a test or a burden on an appellant. They are guidance on how to deal with subjective fear.
• The Appellant must adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 will be violated. This can be explained as raising a prima facie case which means a case which in the absence of challenge would establish infringement.  It is a demanding threshold.  It is for the Appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to dispel any serious doubts raised by it (AM[33].)  While the Supreme Court rejected the submission that there is an obligation to dispel any doubts, they interpreted the decision of the Grand Chamber as intending to oblige the Secretary of State to dispel serious doubts.  The test is set out in Paposhvili and AM(Zimbabwe).

Upper Tribunal finds Appellant’s return to Morocco would breach the UK’s obligations under Article 3:

In allowing the Appellant’s appeal, the Upper Tribunal’s reasoning was as follows:

• There was no meaningful challenge to the medical evidence before the Upper Tribunal. The Appellant had a history of significant mental illness. In 2015 he was assessed by Dr Clark as presenting a significant risk of suicide and as having a subjective belief that others wanted to kill him. A year later the Appellant was assessed by Dr Anderson, a Registered Consultant Clinical Psychologist, who assessed him to be at high risk of violence to himself. He said that his symptoms would diminish rapidly if managed appropriately.  The most recent medical evidence confirmed diagnoses of severe depressive episode, generalised anxiety disorder, PTSD and paranoid schizophrenia/psychosis and stated that he was at high risk of self-harm.  His symptoms were chronic.  He had a history of self-harm and took medication.  In the most recent medical evidence, Dr Galappthie, a consultant forensic psychiatrist, expressed a more pessimistic outlook than Dr Anderson about the Appellant’s prognosis even if he was allowed to remain in the UK (prospects for improvement were limited by the severity and long- standing nature of his mental health problems and underlying psychotic illness)
• The Upper Tribunal attached weight to all the medical evidence.
• It was accepted that the Appellant’s memory was impaired for the reasons identified in the medical evidence.
• What the evidence before the Upper Tribunal clearly established was that the Appellant had been deeply traumatised by an event/events in his lifetime. He has always been consistent about having witnessed the murder of his family. The Upper Tribunal accepted this aspect of his evidence. The medical evidence established a clear link between past trauma/mistreatment and his mental illness.
• Taking into account the evidence as a whole, including the Sprakab report, properly applying the lower standard of proof there was insufficient evidence that he was from OPA.  The Upper Tribunal found that the Appellant was Moroccan.
• The Appellant did not have family who are in a position to help him in Morocco or anywhere.  The evidence pointed to the Appellant being very much alone in the world
• The Appellant had a subjective fear that those who were responsible for killing his family pursued him to Turkey and continue to pursue him.
• The Appellant was assessed as presenting a high risk of self-harm and suicide and that should he be forcibly removed to OPA or Morocco this was likely to lead to a worsening of his mental health and increased risk of self-harm and suicide. The medical evidence was that detention would lead to an acute psychotic relapse.  On return to OPA or Morocco the Appellant was likely to suffer from worsening psychotic symptoms and present with an immediate and high risk of self-harm and suicide.   It was significant that the medical evidence made no distinction between risk on return to OPA or Morocco.
• The evidence was that the Appellant struggled to engage with health services when he was homeless. It was accepted that the Appellant as a result of trauma and psychosis/schizophrenia, hears voices telling him to kill himself.
• The Appellant was at high risk of suicide. Moreover, he would not be able to engage with the limited health care available in Morocco to allay his fears.
• His condition could not be described as medically stable. He was at high risk of self – harm and his condition was chronic.  His condition would deteriorate on removal to Morocco because the Appellant had a subjective fear that he was being pursued by the people responsible for his family’s death and heard voices telling him to kill himself.   He would arrive in Morocco alone, without support. He was likely to be destitute. He believed he was being pursued.  This must be considered in the context of him already presenting a high risk of self-harm.
• The medication he received in the UK and visits to his GP had no doubt prevented the Appellant from making any recent attempts on his own life. Having accommodation was a feature that had helped him engage with mental health services. In respect of availability of medical treatment in Morocco, the Upper Tribunal attached weight to Professor Joffé’s clarification of the background evidence relied on by the Secretary State. There was no meaningful challenge to this. While the Upper Tribunal accepted that there are some medical facilities in Morocco which if accessed are capable of offering some treatment, the Tribunal attached weight to the evidence of Professor Joffé that mental health facilities are likely to be inadequate.
• The Tribunal found that found that private facilities would not be affordable to the Appellant. The medical evidence established that the Appellant was at risk of self-harm or suicide which would materialise as soon as he arrived in Morocco because there would be no support to enable him to access the limited facilities available (though there was no requirement for imminent death properly applying the Paposhvilitest).
• The evidence did not establish that medical facilities and treatment in Morocco would alleviate the immediate and high risk of self-harm or suicide that the Appellant presented. To the extent that treatment might be available, it would certainly not be accessible to the Appellant.
• Destitution and poverty were factors that had exacerbated the Appellant’s mental health problems in the past and had also hindered his ability to access medical help in the United Kingdom. His engagement with health services in the UK had been haphazard. It was reasonably likely that he would face destitution and poverty in Morocco. At present the Appellant had accommodation in the and there was some engagement with health services.    Without any kind of support network, family or accommodation, it was unlikely that he would be able to access any kind of health care, state provision or private.
• The Upper Tribunal took into account the high risk of suicide, daily suicidal thoughts and attempts on his life as documented by Dr Galappthie. The Upper Tribunal attached weight to the fact that the Appellant heard voices.   The Appellant had established that he had a genuine fear, albeit without an objective foundation. That fear was such as to create a risk of suicide if there was an enforced return to Morocco.
• The evidence before the Tribunal raised a prima facie case of potential infringement of Article 3. Properly applying Paposhvili, the Secretary of State’s background evidence relating to Morocco and health care provision did not dispel serious doubts raised by the Appellant.  The Appellant had established that there were substantial grounds for considering that this was an exceptional case because of a real risk of subjection to inhuman treatment resulting from the foreseeable consequences of his removal.  He would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering and a significant, meaning substantial, reduction in life expectancy.

Conclusion

It will be noted that expert evidence from a psychiatrist, a psychologist as well as a country expert was presented for consideration before the Tribunal in MY’s Article 3 claim. In addition to that, background evidence was considered and was also key to the issues raised in the appeal.

A GP report and representations prepared without further independent research is unlikely to assist a claimant in an Article 3 mental health claim.