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||Neutral Citation Number:  EWCA Civ 1082
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
||Royal Courts of Justice
||15th July 2005
B e f o r e :
LORD JUSTICE PILL
SIR PETER GIBSON
MR JUSTICE RIMER
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Computer-Aided Transcript of the Palantype Notes of
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MR CHRISTOPHER JACOBS (instructed by Messrs Miles Hutchinson & Lithgow, Saltburn by the Sea TS12 1DJ) appeared on behalf of the Appellant
MR KIERON BEAL (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
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- LORD JUSTICE PILL: This is an appeal against a decision of the Immigration Appeal Tribunal notified on 31st May 2004. They dismissed an appeal from an adjudicator made on 5th February 2003. The date of that decision was such that the Tribunal retained the fact-finding function which subsequently was removed from it.
- The appellant, Mr K K, is Roma and a citizen of Serbia and Montenegro. He is now 25 years old. He claimed that he had entered the United Kingdom on 16th January 2002. He claimed asylum on 18th January 2002. His claim was refused in a decision of the Secretary of State of 23rd July 2002, and directions for the appellant's removal to Serbia were issued. The appellant then exercised his right of appeal to the adjudicator.
- The grounds of appeal to the adjudicator were that the appellant's claim was credible and he had a well-founded fear of persecution by non-state agents under the Refugee Convention. It was claimed that the state did not offer him a sufficiency of protection and there was no real option of internal flight, which in any event would not be reasonable. It was also submitted that the facts engaged Articles 3 and 8 of the European Convention on Human Rights. The adjudicator dismissed the appeal, both on asylum grounds and on human rights grounds.
- When the appeal came before the Tribunal, first on 17th March 2004, application was made to enlarge the grounds of appeal on the basis that the appellant's mental health was such that there was a risk of suicide were he to be returned to Serbia. This application had to some extent been anticipated in an application earlier made to the adjudicator in which medical treatment was referred to, and an adjournment was requested of the adjudicator to obtain a medical report. That application was refused by the adjudicator, but the Tribunal permitted the point to be argued and there was before the Tribunal a series of medical reports from Dr Laudin dealing with the appellant's health. The Tribunal summarised them in some detail. They also set out in considerable detail, running over five pages, a country report of April 2004 (that is a very up-to-date one) prepared by the CIPU, and which included consideration of the position of Roma in Serbia.
- The appeal to this court is based on the submission that the Tribunal had insufficient regard for the medical opinions of Dr Laudin and erred in law in reaching the conclusions they did. It is submitted that the appeal should be allowed, at least to the extent of remitting issues to the Tribunal. The medical evidence is before this court and we refer to extracts from it. Dr KJ Laudin is a consultant psychiatrist.
- In a report of 2nd September 2003, under the heading "Comment upon the impact which return to Serbia would have upon the client's mental health":
"With depression there is a risk of suicide. In this man, the risk of suicide is elevated. There is a real risk that he would complete suicide if he was returned to Serbia. Should his depression not be adequately treated he may develop chronic depression which would cause ongoing suffering."
- The doctor's conclusion was a diagnosis of moderate depressive disorder:
"Threatening experiences in his life have probably led to the development of a depressive disorder which may well have been made worse by post migratory stress. This man's depression has not yet responded to treatment and he is at risk of suicide. He would benefit from ongoing treatment in a mental health service."
- In a report of 17th December 2003, Dr Laudin said of the appellant:
"He complained of nightmares which are followed by suicidal ideas. He said he would attempt suicide if he was sent back to Serbia; he was frightened to go back there. His depression appears to be improving. There was no suicidal thought or intent when assessed."
Reference is made to the medicine which had been prescribed for him.
- Paragraph 7 is entitled "What is the current risk of suicide?":
"At his recent review he had no suicidal thoughts or intent. He has experienced suicidal ideas following nightmares. He would contemplate suicide if forced to return to Serbia. Suicide is a risk in depression and it is difficult to predict. The mortality risk for suicide in major depression is twenty times that expected. Hopelessness or negative anticipation is most widely accepted as the best predictor of suicide."
- In a further report of 17th February 2004 Dr Laudin stated:
"Mr [K] would be at high risk of suicide if he was detained and/or deported. He is clearly terrified of being returned to Yugoslavia and the probability is high that he would kill himself before or on return to Yugoslavia."
- Following a further consultation, a report was prepared and is dated 29th April 2004. The current symptoms were described. He enjoyed certain activities. His appetite had improved:
"He has been disturbed by the news of the recent unrest in Kosova. He described it as 'things being stirred up.' He found it hard to look at the news and said 'It could be me, it could be my family.' He had felt increased sadness, felt anxiety and was fearful that this could happen to him if he was sent back. He was unable to think about his future because of uncertainty. He did not see a future in Kosova. He was still experiencing thoughts of ending his life; when under stress, he would think 'what is the point.' He would kill himself rather than go back. He had appeared to be anxious and low in mood."
- And under the heading "My impression":
"As he still has depression and suicidal ideas, the risk of suicide would be high if he was detained and/or deported."
- The reference to Kosova was clearly taken up by the appellant's solicitor because the appellant lived not in Kosovo but in Serbia, to which country it was intended to return him. In a letter of 17th May 2004 the doctor wrote:
"With reference to my report dated the 29 April 2004, I apologise for the error. Mr [K] comes from Serbia, not Kosovo.
I am unable to comment as to why the recent events in Kosovo were disturbing to Mr [K]."
- The second comment was clearly a fair one, but I see no need for the doctor to apologise. It is clear that appellant's reference was to Kosovo when giving his account to the doctor.
- It is clear from the contents of their decision that the Tribunal had Dr Laudin's opinion well in mind, though their quotations may be somewhat different from mine. They stated at paragraph 22:
"On the basis of this material, we come to consider whether the appellant's return to Serbia will involve a violation of his Article 3 or 8 rights. There are two separate enquiries. First, the evidence that, if confronted with an adverse decision by the Tribunal, the risk that the appellant will commit suicide in the United Kingdom. The second aspect of the claim is whether, either during the journey to Serbia or on arrival in Serbia, the appellant is reasonably likely to commit suicide."
- The Tribunal then considered the risk in the United Kingdom and permission to appeal against their findings in that respect has not been given. They went on to consider the risk on removal, and they noted at paragraph 27:
"Dr Laudin has also given her opinion that the probability of suicide is very high should the appellant return to Serbia. Once again this appears from the report of 17 February 2004 and once again this appears to be the doctor's opinion resulting from what the appellant has told her. It is within this context that we consider great care must be taken in evaluating the medical evidence."
- The Tribunal then set out in paragraphs 28 to 30 their approach to the medical evidence:
"28. In our judgment the function of a doctor when interviewing his patient is very different from the function of an adjudicator seeking to evaluate the evidence. It is not for a doctor, in most circumstances, to reject the account given by his patient. Indeed, it is normally necessary, particularly in cases of mental illness, for the doctor to build up a relationship of trust that will be undermined if he rejects his patient's history. There may, of course, be cases where a doctor is required to confront his patient with the untruths of that patient's account. In the context of the present case, however, we see no reason why Dr Laudin was required to contradict what the appellant himself was telling her. In the present case, we can see that inaction, as it were, in the appellant telling the doctor about the recent problems in Kosovo when those had very little bearing on difficulties that the appellant might face in Serbia. They were significant enough for the doctor to record them in her report as being a foundation for the appellant's fears. The difficulty that emerges is that the medical opinion is based to some extent on what the doctor has been told as well as upon his or her own professional judgment. If Dr Laudin has had the experience of interviewing patients who subsequently committed suicide, she might well have been able to say from her own experience that the appellant exhibited the classic signs of a genuine suicide. Unfortunately, the report does not make it clear the extent to which the doctor's opinion is derived from what the appellant is telling her.
There is another difficulty. The doctor is concerned with the clinical risk of suicide by a person suffering from depression. The adjudicator is required to take a holistic approach and to consider the conditions that the appellant will face on return. We note that the appellant's mother continues to live in Serbia and is likely to provide him with family support. We do not know what other relatives or friends or community members will also provide him with support and help. In our judgment. a network of friends and neighbours is a valuable tool in offering support and reducing the risk of suicide. We do not consider that it should be assumed that he will be returned in isolation. At the very least, the burden is upon the appellant to establish that there will be no one in Serbia to whom he can turn. The network of help in Serbia might properly be compared with the support offered in the United Kingdom. There is no therapeutic assistance provided and clinical assistance is confined to periodic reviews of the medication supplied. Ms Wood told us that, although the wife of a cousin has a claim for asylum in the United Kingdom, she did not know where the cousin's wife was living and, as far as she was aware, the appellant was not living with her. We were told of no other family members in the United Kingdom who were able to offer assistance.
30. Furthermore, the doctor is comparing the known with the unknown. The known is probably an NHS clinic, whose personnel and services are familiar to the doctor. Contrast this with what the doctor knows of the medical facilities in the receiving state. He may well know that the facilities are not likely to be as good or are definitely worse. Inevitably that colours his assessment of risk. Yes, the adjudicator is often in a much better position to obtain information about the availability of facilities and will know that he is not searching for standards that equate with those in the United Kingdom."
- The Tribunal went on to consider the appellant's links in Serbia. They mention (that is in paragraph 29) the fact that the appellant's mother continues to live in Serbia and is likely to provide him with family support. At paragraph 35 they refer to:
"... care and supervision provided by relatives and friends available to support the appellant in the receiving country. In our judgment, there is a network of assistance in Serbia for the benefit of the appellant that reduces the risk he faces to below the high threshold of Article 3."
- For the appellant, Mr Jacobs submits that the Tribunal were not entitled to reject the opinion of Dr Laudin as to the likelihood of suicide on return to Serbia. On the basis of her evidence, they were obliged to find that the risk was such that a case under Article 3 or, alternatively, Article 8 was made out.
- I refer at this stage to the two Articles, which are not set out in the decision of the Tribunal. Article 3:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
- And Article 8(1):
"Everyone has the right to respect for his private and family life, his home and his correspondence."
- It is clear, in my judgment, that the Tribunal were considering both Article 3 and Article 8 in the conclusions they reached. I have referred to the reference at paragraph 22 to both Articles. There is an earlier reference in paragraph 6 to where the grounds of appeal being enlarged to cover both Articles 3 and 8 of the Convention was mentioned.
- The first criticism of Mr Jacobs relates to an earlier reference at paragraph 8 of the decision to Dr Laudin's evidence, as the Tribunal had summarised it, that the condition as of September 2003:
"... would require ongoing monitoring of his mental health. It is noted that the appellant would benefit from occupational therapy and/or psychological therapy to address his depression and to stimulate his rehabilitation."
- The Tribunal comment:
"Although it is said that the appellant's depression would benefit from ongoing treatment in a mental health service, it is apparent that the appellant has not taken up this opportunity."
- Mr Jacobs submits that the comment is unjustified. There had been ongoing attendances upon Dr Laudin and the medication prescribed had been taken. In my judgment, the comment of the Tribunal was a fair one. Certainly there was ongoing monitoring, shown in the series of medical reports to which I have referred, and the examinations which led to those reports have a therapeutic value. But there had been specific reference by Dr Laudin to "occupational therapy and/or psychological therapy", and it was a fair and relevant point that the appellant had not taken up the opportunity to pursue treatment of that kind.
- The second submission is in relation to the reference in paragraph 28 to Kosovo and Serbia, and I refer to the relevant sentence in that paragraph:
"... the appellant telling the doctor about the recent problems in Kosovo when those had very little bearing on difficulties that the appellant might face in Serbia."
The Tribunal commented that that is an example of the doctor having to rely upon information given by the patient which in that respect was inaccurate. Mr Jacobs submits that the comment was unfair because, while the appellant did live in Serbia and not in Kosovo, he lived in a part of southern Serbia which had an ethnic Albanian majority. A comparison made by the appellant with Kosovo was a relevant one, including as to possible events there.
- We accept that there is material to establish that the relevant area is a majority ethnic Albanian area but the comment is nevertheless a fair one. That part of Serbia, like other parts of Serbia, has a Serbian government and conditions can be expected to be different there from those in Kosovo. The risks which might exist in Kosovo -- and the Tribunal was not concerned with those -- could well not exist in Serbia itself, even in parts of it where the ethnic Albanians were in a majority. No explanation was forthcoming from the appellant as to why he told the doctor what he did, and there is no further explanation of its significance.
- The third submission relates to the general point in paragraph 27 which I have cited. We accept the approach of the Tribunal that great care must be taken in evaluating medical evidence and, for reasons which they give in those paragraphs, they are not obliged to accept the say-so of the doctor with respect to risk. That does not involve a criticism of the doctor.
- The fourth submission is that the reference near the end of paragraph 28 to Dr Laudin not having had the experience of people who committed suicide was an unfair one. I would accept that it is somewhat harsh upon the doctor. It may be that her successful treatment is the reason why she has not had patients who have committed suicide. Nevertheless, the point is not without significance and the Tribunal were entitled to make it. A doctor with broader experience in this respect, unfortunate though that experience may be, could be in a stronger position to assess risk in an existing case and the comment was one the Tribunal were entitled to make.
- The fifth criticism arises out of the reference by the Tribunal to the appellant's mother and to the network to which they referred in the paragraphs I have cited. It is not submitted that this involved a perverse finding of fact. The submission is that the medical evidence being what it was and the lack of availability of medical facilities in Serbia, to which I will turn, was such that the presence of the mother and the network should not have been given the significance it was.
- In relation to medical facilities in Serbia, the Tribunal stated at paragraph 30 that "the adjudicator is often in a much better position to obtain information about the availability of such facilities" than would a doctor. That of course is correct, and the Tribunal had before it substantial evidence as to the availability or otherwise of relevant facilities in Serbia.
- Submissions have been made by reference to that material both by Mr Jacobs and by Mr Beal for the respondent. Mr Jacobs submits that that the facilities are extremely limited. Secondly, he submits there is discrimination against Roma, so that the prospect of the appellant receiving appropriate medical treatment in Serbia is very low. Mr Jacobs has referred to a report of Dr Hudson, which was before the Tribunal, and to the report of the Helsinki Committee dated October 2003. It is right that there are references in those reports to the extremely limited nature of medical facilities and also to the discrimination against Roma in the provision of services.
- Mr Beal refers to other parts of the material to which the Tribunal were entitled to refer, and for example to paragraph S.5.49 of the CIPU country report of April 2004:
"The mental health of the population has also deteriorated. Massive consumption of Bensadine, Dromazepam and Diazepam, suggests that one in every two people in Serbia are reliant on sedatives. Treatment for mental health disorders is available, though numbers of psychiatric staff and bed spaces are limited."
- While in effect accepting the inferiority of medical facilities in Serbia to those in the United Kingdom, Mr Beal submits, first, that the test is not to compare the one with the other and, second, that having regard to the findings of the Tribunal, there were some facilities available. Moreover, the social network to which the Tribunal referred was another factor to be considered.
- Paragraph 30 of the Tribunal's decision includes the statement that the adjudicator "will know that he is not searching for standards that equate with those in the United Kingdom." I interpose at this stage that both there and at paragraph 32 the Tribunal refer to assessment by the adjudicator. That was inappropriate because the assessment in this case was made by the Tribunal itself, no medical evidence having been admitted before the adjudicator. I do not know why that language has been used, but neither counsel submit it has any bearing upon the conclusion reached by the Tribunal which clearly is a conclusion of the Tribunal itself.
- The general point made in paragraph 30 is a valid one, in that the Tribunal, with its experience, with the material available to it, is in a better position than the doctor to assess, not only medical facilities in Serbia, something which the doctor rightly did not attempt to state, but the state of affairs in Serbia, including southern Serbia. (It is clear from paragraph 33 of their decision that the Tribunal had in mind that the appellant would be returning to "an Albanian area".) That the point is relevant as demonstrated by the decision of this court in J  EWCA Civ 629, a case where risk of self-harm was in issue. Giving the judgment of the court, Dyson LJ stated at paragraph 29:
"29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para  of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3."
- It is clear that the appellant's worry, as expressed to the doctor, is based on one view of the current situation in Serbia. The Tribunal plainly did not find that situation to be the one which in fact exists, and they were entitled to take that view of it.
- Mr Beal has referred to the interview of the appellant. He was asked:
"35. What to you think would happen to you if you returned to Serbia?
A. The persecution will continue as it has done until now. They will kill me."
That is not the view of the situation which the adjudicator and the Tribunal took and were entitled to take.
- Mr Beal also refers to other answers which say something about the manner of life of the appellant in Serbia, including in answer to the question "What jobs did you have in Serbia?":
"I have always been a worker on the land. I used to grow potatoes, we always used to work on the land, I used to work for two others."
- He submits that the fears expressed to the doctor by the appellant must be considered in the light of material as to the state of affairs in Serbia, and have regard to the community and way of life of the appellant.
- The submission made by Mr Jacobs is that the Tribunal have not spelt out Articles 3 and 8, and have not related their findings to either of the Articles. He questions whether Article 8 was considered by them at all.
- I do not accept that submission, and have already referred to the mentions in the Tribunal's decision of Article 8 as well as Article 3. The decision would certainly have been better had it been, with respect, related more clearly to the mischiefs identified in Article 3 and Article 8, but in my judgment that does not in itself invalidate the conclusion reached. That conclusion is expressed in the last paragraph of their decision, paragraph 36:
"For these reasons, we consider the adjudicator reached the correct conclusion in dismissing the appeal. We are not satisfied that it is necessary for there to be any additional findings of fact requiring the matter to be remitted for hearing before another adjudicator. Whilst we do not seek to under-estimate the level of harassment and discrimination experienced by the Roma community in Serbia, there remains a sizeable Roma community into which the appellant is able to place himself with adequate security and with appropriate safeguards to prevent his depression causing his suicide."
- The reference to remittal has been emphasised by Mr Jacobs by reference to Article 8(2). It is submitted that, if for no other reason, the court should remit the matter for the Tribunal. Article 8(2) provides:
"There shall be no interference by a public authority with the exercise of this right [that is the Article 8 right] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- The case should be remitted, submits Mr Jacobs, so that the proportionality of what is proposed can be considered. Mr Beal's submission is that the high threshold which must be attained before Article 8(2) comes into operation is far from attained in this case upon the evidence, as that evidence should be viewed in the light of the authorities.
- I turn to the statement of Lord Bingham in Razgar v Secretary of State for the Home Department  2 AC 368. The House of Lords were considering, amongst other things, the decision of the European Court of Human Rights in Bensaid (2001) 33 EHRR 205 in relation to Article 3 and Article 8. I will not set out the relevant paragraphs in that judgment which are paragraphs 46 and 47. The case of D in the European Court of Human Rights, on which applicants for protection under the Human Rights Act were relying, involved the return by the United Kingdom government of a terminally-ill person to St Kitts. Lord Bingham stated at paragraph 10:
"It would seem plain that, as with medical treatment so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state."
- Lord Nicholls stated at paragraph 11:
"The difficulty derives from the decision in D v United Kingdom (1997) 24 EHRR 423, concerning the expulsion of an AIDS sufferer to St Kitts, and the basis on which the Strasbourg court has subsequently sought to distinguish that case."
- The question of the circumstances in which the protection of the Convention can successfully be sought were also considered by the House of Lords in N v Secretary of State for the Home Department  2 WLR 1124. Lord Nicholls referred to what he described as the post-D Strasbourg case law. At paragraph 87 Lord Brown referred to the high threshold which an applicant had to achieve:
"D represented, as Laws LJ in the Court of Appeal observed  1 WLR 1182, para 37, 'an "extension of an extension" to the article 3 obligation'. The court in Bensaid (para 40) spoke of 'the high threshold set by article 3, particularly where the case does not concern the direct responsibility of the contracting state for the infliction of harm'. The threshold must if anything be higher still where the contracting state not only has no direct responsibility for the infliction of harm but rather is contemplating a decision falling at the very opposite end of the spectrum from those article 3 cases which involve state-sponsored violence."
- Paragraph 94 Lord Brown stated:
"What then must be established to bring a case of this nature within the category of very exceptional cases represented by D? I am content to adopt the test stated by my noble and learned friend, Lord Hope of Craighead: it must be shown that the applicant's medical condition has reached such a critical state, that there are compelling humanitarian grounds for not removing him or her to a place which lacks the medical and social services which he or she would need to prevent acute suffering."
- Applying those tests and that standard to the present evidence, the Tribunal were, in my judgment, fully entitled to reach the conclusion they did and their findings were sufficiently reasoned. However the evidence is viewed, and having considered the Tribunal's approach to it and the criticisms of that approach, it cannot successfully be argued that the case comes within the very exceptional circumstances which have to exist, in a situation such as the present, before Article 3 protection or Article 8 protection can render unlawful a decision to return an applicant to his own country. I acknowledge the lack of spelling out of Article 3 and Article 8 considerations in the judgment of the Tribunal. However, their findings are such that they were entitled to reach the general conclusion they did. There is no evidence before the Tribunal or before this court which could, either in this court or upon a remission, entitle the applicant to the relief sought.
- For those reasons, I would dismiss this appeal.
- SIR PETER GIBSON: I agree.
- MR JUSTICE RIMER: I also agree.
ORDER: Appeal dismissed with costs; any liability for costs of the Mr Beal to be assessed by the costs judge; detailed assessment of the Appellant's Community Legal Services Funding assessment.
(Order not part of approved judgment)
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