IM (Medical Facilities, Bensaid) Kosovo [2002] UKIAT 02727 (17 July 2002)

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    IM (Medical Facilities - Bensaid) Kosovo [2002] UKIAT 02727
    HX-08374-2001

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 12 June 2002

    Date Determination notified: 17 July 2002

    Before

    Mr C M G Ockelton,Deputy President
    Mr M L James

    Between

     

    IM APPELLANT
    and
    Secretary of State for the Home Department RESPONDENT

    DETERMINATION AND REASONS

    1. The Appellant is a citizen of the Federal Republic of Yugoslavia. He comes from Kosovo. He appeals, with leave, against the determination of an Adjudicator, Mr Anthony Hughes, dismissing his appeal on asylum and human rights grounds against the decision of the Respondent on 13th January 2001 to give directions for his removal as an illegal entrant. Before us today his is represented by Mr Blum, instructed by Lawrence Lupin and the Respondent is represented by Mr D Buckley. We have heard extensive, and very helpful, submissions from Mr Blum but have not needed to call on Mr Buckley.

    2. The Appellant's appeal before us is limited to Article 8. Broadly speaking, the Appellant's claim is that his medical condition is such that his removal to his home country would be a breach of Article 8 in that it would be an interference with his private life, which cannot be justified as proportionate in the circumstances. We remind ourselves of the terms of s 77(4) of the 1999 Act. That is to say that, in making his case under Article 8, the Appellant needs to show that his removal was inhibited by that Article at the date of the decision, now some 18 months ago.

    3. The Appellant's history is as follows. He arrived in the United Kingdom from Kosovo on 1st April 1999. He claimed asylum on arrival. His uncle was, and so far as we know still is, in this country and the Appellant has said that the decision to come here was made because he was told that other members of his family were here already. On arrival, it appears that the Appellant made some efforts to discover where the other family members were but, as he says in his statement, as time went on without him discovering where they were, he became suspicious. About a year had passed before the Appellant discovered that in fact his mother and other members of his family had been murdered before he left Kosovo. As a result of discovering this, the Appellant had a row with his uncle and they are, and have been ever since, estranged. He felt that his uncle had let him down and indeed betrayed him. That was as we have said when he had been here about a year. In his statement, the Appellant says that it was in February 2000.

    4. The paragraph of the Appellant's statement recording what happened after that is by no means easy to understand. The paragraph reads as follows:

    "After receiving this information [that is to say, the details of what had happened to his family] I was very upset. I stopped going to college and lost interest in eating. I was on medication for nightmares and depression. I was then moved to alternative accommodation and I was not able to go to my doctor. My uncle was given exceptional leave to remain in the UK and for some reason the Social Services decided to split us up. I was 17 at this time."

    That last sentence appears to indicate a date after November 1999, for the Appellant became 17 on the 11th of that month.

    5. However, the other statements are difficult to reconcile with what the Appellant told Dr Stuart Turner earlier this year and also with other documents which are before us. Dr Turner's report on this issue is as follows:

    "I asked about any treatment. He told me that when he first came here, he went to the doctor five or six times. He was given some medication, but doesn't remember the name. He still sees a doctor. He is taking mirtazapine (this is an anti-depressant drug)."

    6. There is a letter relating to his referral to a doctor dated a few days after he had arrived. That letter says that the Appellant has a stomach problem which was being treated in Kosovo, but has not been treated since the family left the country.

    7. Further, there is a letter dated 22nd November 2000, that is many months after the Appellant discovered about his family's fate, and that letter appears to be written in the context of the Appellant's first attempts to enter college. There appears to be no evidence other than the Appellant's rather confused paragraph in his statement relating to medication for nightmares and depression at the relevant time or at any stage immediately after the Appellant discovered about his family.

    8. The phrase "I stopped going to college" related to February 2000 is very difficult indeed to understand. "I lost interest in eating" is easy to understand, but it is difficult to know at this stage what that meant.

    9. Following the refusal of the Appellant's claim, he was served with a One-Stop Notice in which he was invited to say whether there were, apart from his asylum claim, any matters that he relied upon in making his appeal. The One-Stop Notice was issued on the Appellant's behalf by his present solicitors. We would not criticise it for its brevity, but it is notable that it does not mention Article 8. Further, although the Appellant's knowledge of his uncle's treachery and his family's fate had by then occurred some months ago, it is not mentioned in the Notice, even though it was subsequent to the Appellant's original claim and was exactly the sort of thing which might have been thought to add weight both to the asylum claim and to any human rights claim. The position is not that we regard the solicitors who put in that Notice as in any way negligent, but, so far as we are concerned, the documents served by the Appellant at around the date of the decision do not suggest that the Appellant was at that date so ill that his return would have been a breach of the Convention.

    10. Soon after the date of the decision, the Appellant was referred by his solicitors to Dr Seear, whose report is before us. Dr Seear concluded, having examined the Appellant, that he was suffering from post-traumatic stress disorder. He writes as follows:

    "In summary, may I with great respect conclude that the Appellant has been severely traumatised and shows a severe form of anguished PTSD."

    11. Amongst other factors in the report, we draw attention to the following. The doctor particularly noted the feeling of betrayal by the Appellant's uncle. He attributed the Appellant' condition at the time he saw him at the end of March 2001 to the way in which the Appellant felt he had been treated by his uncle. He records that the Appellant found that it was "Very, very hard for him to survive here". Nevertheless, the doctor, having made his diagnosis, concluded that the Appellant's mental state would inevitably deteriorate, probably disastrously, if he were to be returned to the former domicile. As we pointed out to Mr Blum, although we have a great respect for the doctor's conclusions, it is by no means easy to see how that conclusion ties in with what the doctor had said about the Appellant's current state.

    12. Some months later, indeed on 23rd November 2001, the Appellant was referred to Dr Stuart Turner. Dr Stuart Turner is, as we are aware in this Tribunal, an expert on post-traumatic stress disorder. His conclusion was that the Appellant was not suffering from post-traumatic stress disorder at that date. He was instead suffering from major depressive disorder, severe, as he put it, without psychotic features. Dr Turner based his report and his diagnosis on a number of factors. He noted that there were pre-migration and post-migration factors. The pre-migration factors were, as he put it, a beating followed by failure to return to his family home. The post-migration factors were learning about the killing of his mother and other members of his family. The doctor's conclusion on the history was this:

    "In my opinion, the history that he gives is entirely consistent with his psychiatric state."

    Like the Adjudicator, we must have some reservations about the report in those terms because the Adjudicator found (and this has not been contested) that the Appellant had not been beaten as he claimed. The doctor's advice was treatment with drugs and counselling. On the effect of return, Dr Turner wrote as follows:

    "He has a relatively severe depression and, in my opinion, this could easily get worse in such a situation. He also has fairly frequent suicidal thoughts. In my opinion, his suicide risk would also increase. At the moment, my opinion is that there is a need to sort out his treatment regime and try to improve his mental state. Forcible return would, in my opinion, lead to deterioration."

    13. That is the medical evidence. We have to emphasise that that evidence all post-dates the date of the decision. Mr Blum points out that the Appellant's own account is that he was very upset when he discovered about his uncle's treatment of him and his having hidden the fate of his relatives. But it is right to say that there is no diagnosis relating either to that date or to the date of the decision specifically. Dr Seear's report is the earlier, but Dr Seear discovered in the Appellant a mental disorder which Dr Turner found was not present when he examined him some months later. Whether that is because the Appellant's condition has changed and that he no longer is subject to post-traumatic stress disorder but was, or whether it is because Dr Seear's diagnosis was one which, although open to him, was not in fact correct, we do not know.

    14. Mr Blum argues that, at the date of the decision, it was disproportionate to return the Appellant to Kosovo because he would not be able to obtain proper medical treatment for his condition. In support of that, Mr Blum has produced not only the municipal profile on Prizren (which is the Appellant's home area)-that report is dated September 2001-but also a specific report, produced for the benefit of this Appellant, by James Korovilas, who has some experience of working in Kosovo. Although he gives a great deal of information about the situation in Kosovo generally, it is surprising that he does not say that he has examined either or both of the diagnoses of the Appellant. He refers specifically to the difficulty of getting treatment for post-traumatic stress disorder in Kosovo, which might suggest that he had looked at Dr Seear's report, but it may merely mean that he was asked what the position would be in respect of a person who had that condition. Nevertheless, the author of this report specifically states "There is almost no possibility of the Appellant finding appropriate medical services in Prizren". We do not know what the author of the report thought would be appropriate medical services for the Appellant.

    15. Nobody doubts that the Appellant has a medical condition which requires treatment. At the moment, as we understand it, and certainly at the date of the determination, it was being treated by drugs. As we have said, at the date of the decision itself there is no credible evidence that it was being treated, or required treatment. If we were to look at the matter at its best, the Appellant has a condition which has a varied diagnosis and has treatment by drugs. If he is returned to Kosovo, he may have to travel to get treatment. He may have to pay for his drugs. The question is then whether those factors render his return disproportionate to the aim of immigration control.

    16. We have been, in reaching a conclusion on that, shown two precedents. One is the case of M (01/TH/03623), heard by the Tribunal in December 2001. That is a case which, in our view, does not assist this Appellant at all and indeed it does not assist us in any way to make a conclusion about this Appellant. The Appellant in M had herself been very badly treated and the Tribunal regarded the facts of that case as wholly exceptional.

    17. Of more relevance is the decision of the European Court of Human Rights in Bensaid. That decision was notified on 6th February 2001. Bensaid was a schizophrenic. He had a diagnosis which, we have to say, was very much more serious than that of the Appellant before us. He had suicidal thoughts. There was medical evidence indicating that, if he were returned to Algeria and particularly if he was not able to follow his then current treatment regime, there would be significant and lasting adverse affect on him. Nevertheless, the European Court of Human Rights held that his return to Algeria, despite those factors, was not a breach of either Article 3 or Article 8. In paragraph 48, the Court noted as follows:

    "Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the Application by removal from the United Kingdom, where he has lived for the last 11 years, was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure in accordance with the law."

    That demonstrates that not only under the medical aspects of the case, but under other aspects too, Bensaid's situation was rather stronger than the present Appellant's. In looking at the medical matters, the Court noted that the parties had argued firstly, that the Appellant's removal would deprive him of medical treatment, and that the Government had argued that his removal was nevertheless proportionate. The Court thought that the evidence on medical matters did not establish that the Appellant's removal would breach the Convention. It seems to us that the facts in this case are sufficiently similar for us simply to say that we follow Bensaid. The fact that the Appellant may have difficulty in getting treatment, may have to travel for it, may have to pay for it and the fact that if he does not have the treatment his condition may conceivably deteriorate, are not matters which show that his removal would be disproportionate.

    18. As we have said, we are grateful to Mr Blum for taking us in some detail through the complex material in this case. Our conclusion is, however, that on the basis of the evidence before us, taken as a whole, the Appellant has failed to show that the Appellant's human rights would be breached by his removal to his own country. His appeal is dismissed.

    C M G OCKELTON

    Crown Copyright


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