Friday, July 27, 2012

Best interests of the child considered – UK Court of Appeal

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

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