Case of HA: Expert evidence and Mental Health, Sri Lanka 2022

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
27 June 2024

The recent case of HA deals with expert evidence and mental health.

This case is particularly important to those who deal with human rights appeals, as this deals with the evidence that needs to be provided to an expert when he or she prepares a report concerning the mental health of an individual.

The Court stated in this case that it would be naive to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental health, in order to defeat the respondent’s attempts at removal. Therefore, GP records, notwithstanding their limitations, must be provided to the experts because they can paint a broader picture of the patient’s mental health to the expert psychiatrist, particularly where the individual and the GP and any associated healthcare professionals have interacted over a significant period of time, during some of which the individual may not have perceived themself as being at risk of removal. GP records are relevant to the assessment of an individual’s mental health and should be engaged with by the expert in their report. Where an expert opinion differs from GP records the expert would be expected to say so in the report as part of their obligations as an expert witness.

The appellant in this case was a citizen of Sri Lanka who entered the UK in 2010 on a student visa, when he was 21 years old. His student leave came to an end in February 2016 and then he applied for a residence card under the EEA Regulations as a family member of an EEA resident. The respondent refused the application with no right of appeal. He made a further application for a residence card on the same basis on 18 August 2016 and 15 March 2017 and both were refused without a right of appeal. On 12 September 2018, he applied for leave to remain on the basis of his private life, specifically on the basis that he was suffering from depression for which medication had been prescribed by his GP. This application was refused, which was treated as a human rights claim. The Home Office found that the appellant did not meet the requirements of paragraph 276ADE of the Immigration Rules. The respondent also concluded that there were no exceptional circumstances which would render the refusal a violation of Article 8 of the ECHR, and that his removal would not violate Article 3 of ECHR on the basis that it did not meet the high threshold by succeeding by reference to Article 3 on medical grounds.

This case let to the Practice Direction that all human rights solicitors assisting in appeals or in applications to the Home Office should ensure that they give the expert all the documentation he or she requires to form an opinion. The Practice Direction provides that experts should be provided with all relevant information concerning the nature of the appellant’s case, including the appellant’s immigration history, the reasons for appellant’s claim or application has been refused by the respondent and copies of any relevant previous reports prepared in respect of the appellant. It is particularly important that medical experts, particularly psychiatrists, whose assessment will be in part dependent on the appellant’s account of the symptoms are provided with all the relevant documents; failure to do is bound to lead to critical scrutiny of the expert’s report and may lead to rejection of the opinions expressed in that report.