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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Secretary of State for the Home Department v H (Serbia and Montenegro) [2004] UKIAT 00058 (29 March 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00058.html Cite as: [2004] UKIAT 58, [2004] UKIAT 00058 |
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APPEAL No. [2004] UKIAT 00058 H (Serbia and Montenegro)
Date of hearing: 10 April and 9 September 2003
Date Determination notified: 29 March 2004
Secretary of State for the Home Department |
APPELLANT |
and |
|
RESPONDENT |
Presenting Officer role in Art 8 appeals – not a "decision-updater"
Evaluation of medical evidence asserting serious deterioration of claimant's psychological condition on return
"The appellant and his wife had been subjected to treatment of such severity that the appellant currently suffers from post-traumatic stress disorder and depression and his wife suffers from chronic depression requiring a high level of medication. There is clear medical evidence that the return of the appellant and his wife will adversely affect their mental health. Removal will be clinically regressive. There is no realistic prospect of either receiving appropriate medical treatment in Kosovo. The appellant and his wife fall into the categories identified by the UNHCR as requiring continued international protection on humanitarian grounds".
The issue of whether this was a "mixed case"
"18. …Where the claim is that an expulsion will interfere with a person's family life in the deporting state, there is no problem. Art 8 is in principle capable of being engaged: see Ullah, para 46. But where the claim is based on an alleged breach of the right to private life in the broader sense referred to, for example, in Bensaid para 47, the position is more difficult. The preservation of mental stability is "an indispensable precondition to effective enjoyment of the right to respect for private life". Let us consider two paradigm cases. In case A, the person is in good health in the UK, but he says that, if he is deported to a "safe" third country, there is a real risk that he will suffer a serious decline in his mental health, because he has a fear (admittedly irrational) that he will be returned to face persecution in his country of origin. In case B, the person is already suffering from mental ill health for which he is receiving treatment in the deporting country. His case is that, if he is deported, his mental condition will become significantly worse because in the receiving state he will not be given the treatment that he has previously enjoyed.19. It is clear that case A is not capable of engaging article 8: the territoriality principle is decisive. But what about case B? The allegation is that the expulsion will cause a significant deterioration in the claimant's mental health. But will it be as a result of the cessation of treatment in the deporting country, or will it be because the treatment previously enjoyed will not be replicated in the receiving country? On an application of the "but for" test, both will be effective causes. The deterioration in the claimant's mental health will not occur if the deporting state does not disrupt the treatment being given by it. But equally it will not occur if the receiving state continues the treatment previously enjoyed. So how should the territoriality principle be applied in a "mixed case" where the allegation of interference with private life contains two elements, one relating to the deporting country, and the other to the receiving country?
...
22.….We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged…"
The due deference issue
"40. We note that both Moses J and Simon Brown LJ were careful to limit what they said to cases where there is "no issue of fact" (Moses J) and "the essential facts are not in doubt or dispute" (Simon Brown LJ). We recognise that, if the adjudicator finds the facts to be essentially the same as those which formed the basis of the Secretary of State's decision, there will be no difficulty in adopting the approach enunciated by Moses J and Simon Brown LJ. But what if the adjudicator finds the facts to be materially different? In such a case, the adjudicator will have concluded that the Secretary of State carried out the balancing exercise on a materially incorrect and/or incomplete factual basis. There is no power in the adjudicator to remit the case to the Secretary of State for a reconsideration of the balancing exercise on the facts as found by the adjudicator. There will, therefore, be cases where it is not meaningful to ask whether the decision of the Secretary of State was within the range of reasonable responses open to him, because his determination was based on an accurate analysis of the facts. But even if the adjudicator were to conclude that the Secretary of State's analysis was wrong, it would not necessarily follow that the Secretary of State would remain open to the adjudicator to decide that the conclusion reached by the Secretary of State was lawful (and did not breach the claimant's human rights) because it was in fact a proportionate response even on the facts as determined by the adjudicator.41. Where the essential facts found by the adjudicator are so fundamentally different from those determined by the Secretary of State as substantially to undermine the factual basis of the balancing exercise performed by him, it may by impossible for the adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself…"
"The starting-point should be that, if in the circumstances the removal could reasonably by regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful".
The Art 8 issue
The Adjudicator's assessment of the medical evidence and its implications
"The lengthy and well-reasoned report by Dr Turner concludes that the appellant is suffering from shame-based Post-Traumatic Stress Disorder and Depression. There is a significant psychiatric disturbance and the appellant is clearly traumatised. His presentation and his reaction to making the disclosure is entirely consistent with the history that he gives".
"…the appellant and his wife have suffered serious trauma as a result of rape…[and]…to recover the appellant and his wife require appropriate and sustained treatment, available in Britain…"
"The appellant and his wife had been subjected to treatment of such severity that the appellant currently suffers from post-traumatic stress disorder and depression and his wife suffers from chronic depression requiring a high level of medication. There is clear medical evidence that the return of the appellant and his wife will adversely affect their mental health. Removal will be clinically regressive. There is no realistic prospect of either receiving appropriate medical treatment in Kosovo. The appellant and his wife fall into the categories identified by the UNHCR as requiring continued international protection on humanitarian grounds".
The medical evidence
"Although I would be mainly concerned here about the depressive illness and a risk of suicide as a consequence, I would have to draw attention to the significance of shame as an important additional risk factor in relation to such an outcome. In other words if Mr Hasani found himself confronted with worsening depression, worthlessness and a marked feeling of shame, then a suicidal response would become very understandable. In my opinion, in such a scenario he would present a serious risk of suicide".
"The appellant's wife's psychiatric history has been documented since at least June 2000. The appellant's wife is currently prescribed the maximum dose of an antidepressant. She is suffering from a depressive illness. In the report of 11 March 2002, this is stated to be chronic as it has persisted for more than three months. In the report of 12 April 2002 Doctor Ananthanarayanan; Consultant Psychiatrist at Chase Farm, Enfield expresses the view that it is quite likely that the appellant's wife would rapidly deteriorate further if returned to Kosovo. This is because it seems this was the precipitant for her depression and there is also the issue of her having been raped in Kosovo."
"The approach of the appellate authorities
The grounds in this case are not unique in complaining that the Adjudicator failed to attach proper weight to (significant parts of) the medical evidence. The appellate authorities are frequently called upon to evaluate medical reports which deal with the risk facing asylum seekers if returned in the light of their medical history. How should they go about this task? Drawing on past cases such as Ademaj [2002] 00979 and Cinar [2002] UKIAT 06624 and in particular on the starred determination of the Tribunal in AE and FE [2002] UKIAT 05237, it is possible to identify the following principles.
a) It is not the job of an Adjudicator to make clinical judgments. This is the job of medical experts to evaluate conditions in an appellant's country of origin. Except in very rare cases they have no expertise about such matters.
b) Albeit not medical experts, adjudicators are perfectly entitled, when evaluating a medical report, to consider to what extent it is based on established medical methodology and criteria. Adjudicators should obviously be cautious about criticising medical reports unnecessarily, particularly given that they do not have the benefit of a medical report from the respondent so as to enable a comparison to be made. But by virtue of the frequency with which the immigration appellate authorities have to examine and assess medical reports in asylum-related case, a fund of experience and knowledge has been built up, making it possible to identify what is expect from a "good report", and to discern which medical experts among, the many whose reports they see, produce reports based squarely on established medical methodologies and criteria. If confronted, therefore, with a diagnosis (or prognosis) which departs for no good reason from methodology and criteria established within the medical profession, they cannot be expected to overlook that kind of deficiency. And to the extent that a medical report fails to base itself on established medical methodologies and criteria, an Adjudicator may be justified in attaching lesser weight to it as a consequence. A medical report purporting to give an in-depth diagnosis of PTSD based on one superficial interview is an obvious example. As the Tribunal highlighted in AE and FE, an Adjudicator is also entitled to assess to what extent a medical report is based on examination which has been conducted as soon as possible after the time of the injury or event which is said to have caused the physical or psychological disorder.
c) Irrespective of the quality of the medical report, the assessment of risk upon return that has to be made by an Adjudicator must be based on the notion of real risk as established by refugee law and human rights law. That will not necessarily be the same concept of real risk applied by medical experts.
d) Since an Adjudicator must be his assessment on a consideration of all the evidence viewed in the round, it is always ultimately a matter for an Adjudicator what weight if any to attach to medical evidence. In order to assess whether there is a real risk, the medical evidence has to be placed alongside all the other evidence. Where a doctor's report has based some of its key findings on the truth of what has patient has told him about past experiences and/or current fears, it may well be that an Adjudicator who having made a global assessment finds the appellant's account not credible, will reject that report's principal findings. Depending on the particular circumstances, the medical evidence stating that a person's injuries or condition is "consistent with" his account of what happened to him in his country of origin may or may not add credence to his claim".
"I also place considerable weight upon the UNMIK Reports, the most up to date being April 2001. Under health care it is recommended that those suffering from severe or chronic mental illness and psycho-social disorders cannot be satisfactorily treated in Kosovo. In paragraph 46 he noted that: "Kosovo does not have adequate psychiatric facilities to deal with the family's problems and drug therapy is unlikely to be available". In paragraph 49 he found that: "There is no realistic prospect of either [the claimant or his wife] receiving appropriate medical treatment in Kosovo. The appellant and his wife fall into the categorised identified by the UNCHR as requiring continued international protection on humanitarian grounds".
DR H H STOREY
VICE-PRESIDENT