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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaydanyuk v Secretary of State for the Home Department [2006] EWCA Civ 368 (04 April 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/368.html Cite as: [2006] EWCA Civ 368 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
AS/31041/2003
Strand, London, WC2A 2LL |
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B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE MAURICE KAY
____________________
KAYDANYUK |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Mr Tim Eicke (instructed by The Treasury Solicitors) for the Respondent
Hearing date : 20.02.2006
____________________
Crown Copyright ©
Lord Justice Maurice Kay:
"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."
"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."
"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."
"It is my opinion that should his appeal for asylum be rejected the risk of suicide would be genuinely high."
"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'."
"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."
"I judge him to be a very high suicide risk in the event of his appeal failing."
"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."
"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."
"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."
Lord Justice Jonathan Parker:
Lord Justice Brooke: