![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Asylum and Immigration Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AM (Really serious consequences) Serbia and Montenegro) [2004] UKIAT 00135 (26 May 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00135.html Cite as: [2004] UKIAT 00135, [2004] UKIAT 135 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
APPEAL No. AM (Really serious consequences) Serbia
and Montenegro) [2004] UKIAT 00135
Date of hearing: 23 April 2004
Date Determination notified: 26 May 2004
Secretary Of State For The Home Department | APPELLANT |
and | |
AM | RESPONDENT |
"I fully accepted that the Appellant had serious medical needs when I made the recommendation in my previous determination that the Appellant be allowed to receive the recommended psychiatric support before returning toSerbia
. The medical evidence before me at this hearing confirms that this is still the case. He is now receiving cognitive behavioural therapy and I have no reason to doubt the opinion of his therapist that a return to
Serbia
at the present time would be highly detrimental to his mental health. At the same time, I accept that the background material shows that there are serious difficulties in the Roma accessing medical care in
Serbia
. This is partly due to Roma not having "green cards" but it is also to do with active discrimination on the part of some doctors who refuse to treat Roma people."
"we consider, however, that in the light of the authorities to which we have referred that where a decision on proportionality has not been taken by the Secretary of State as here, the Adjudicator is obliged to reach his own conclusion on whether removal would be disproportionate. The first approach has to be followed. The Tribunal, if dealing with an appeal on a point of law, is only entitled to interfere with that decision if it is unreasonable, or fails to follow the guidance of the Tribunal or higher authority. The ability to reach an independent conclusion does not belong to each appellate body in turn."
"the starting point should be that if in the circumstances the removal could reasonably be 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 Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, e.g. through a consistent decision making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality. We cannot think of one at present; it is simply that we cannot rule it out. This decision is starred for what we have to say about proportionality."
"is very likely to be extremely anxious during the process [of presenting his appeal] with exaggeration of his PTSD symptoms. I think this has to be taken into consideration as it will lead to a deterioration in his mental health."
Appended to Dr Ramy's report there is a letter from a general medical practitioner dated 16 September 2003 saying that the Appellant has medication and it concludes:
"I have no doubt that removal from the UK would be detrimental to Mr Mullai's physical and mental health. He appears to benefit from the current therapy and is unlikely that a new country would be able to provide the same medication and therapy particularly if he were relocated toSerbia."
We have seen the report of Dr Sally Braithwaite dated 9th August 2002. This too was before the Adjudicator. Dr Braithwaite concludes:
"I feel it is advisable that Mr Mullai continues to receive outpatient psychiatric support for his Post Traumatic Stress Disorder and for him to receive medication as detailed above with psychological input."
There is also an optimistic but qualified report dated 20th October 2003 from Mr Jim Willis who is an appropriately qualified accredited cognitive behavioural psychotherapist. He concludes
"subject to continuation of therapy, applied consistently, with mood management and with ongoing interpreting services, Mr Mullai is likely to experience a significant improvement in his current distress. He is likely to require a further minimum of twelve to fifteen sessions to evaluate therapy outcome." Mr Willis concluded "I also believe a return to his place of origin at present would be highly detrimental to his mental health and his ability to "process" the traumatic event."
There is also an expert's report from James Korovilas is a Senior Lecturer in Economics and Faculty Research Fellow at the University of the West of England at Bristol. He talks about the high degree of discrimination that the Appellant is likely to experience in the Serbian healthcare system. This is a point the Adjudicator has accepted. However the same report goes on to say that anti-depressant drugs are generally available in the Presheva region but they are invariably imported and very expensive.
"Razgar establishes that, in cases of this sort, an Article 8(1) claim is capable of being engaged only if there are "substantial grounds for believing that the Claimant would face a real risk" of "serious harm to [her] mental health caused or materially contributed to by the difference between the treatment and support that she is enjoying in the deporting country and that which would be available to her in the receiving country" (Razgar, paragraph 22), that harm constituting "a sufficiently adverse effect on physical and moral integrity, and not merely on health" as to engage Article 8 (Razgar, paragraph 23)".
The court then decided at paragraph 17 that in the case of Djali it would be:
"quite impossible to characterise the effect of that upon her as constituting "serious harm to her mental health" such as to damage her "physical and mental integrity so as to engage Article 8. At most it would amount to this: return to Kosovo would imperil her prospects of a better recovery."
At paragraph 30 of its judgment the Court of Appeal referred to the decision of "N v SSHD [2003] EWCA Civ.1369 where at paragraph 42 Laws LJ expressed some concern about the decision in Razgar. He emphasised that the decision in N was not inconsistent with it. N made it plain that a high test has to be satisfied before Article 3 prevents a person's removal on the grounds of ill-health.
Jonathan Perkins
Vice President