The decision

Heard at Field House

AD (Psychiatic Illness - Articles 3 and 8) Macedonia [2003] UKIAT 00171
On 11 November 2003
Prepared 12 November 2003


Date Determination notified:

17 December 2003


Mr H J E Latter (Chairman)
Miss B Mensah
Mr D Froome







For the appellant: Mr L Parker, Home Office Presenting Officer
For the respondent: Ms V Easty of Counsel, instructed by
Bates, Wells and Braithwaite


1. The Secretary of State appeals against the determination of an Adjudicator, Mr J Bailey, who allowed the respondent’s appeal on human rights grounds against the decision made on 10 May 2002 refusing him leave to enter following the refusal of his claim for asylum. In this determination the Tribunal will refer to the respondent to this appeal as the applicant.

2. The applicant left Macedonia with his wife on 17 August 2001. They travelled to the United Kingdom in the back of a lorry. The journey was arranged by an agent. They arrived on 21 August 2001 making a claim for asylum the following day. The claim was refused for the reasons set out in the Secretary of State’s decision letter dated 1 May 2002. The Adjudicator heard the appeal against this decision on 2 April 2003. For the reasons which he gave he was not satisfied that the applicant would be at risk of persecution for a Convention reason on return to Macedonia. His reasons are set out in paragraph 10.1-5 of his determination. The applicant has not sought to appeal against this decision.

3. The Adjudicator went on to consider the claim on human rights grounds. The Adjudicator accepted the applicant’s accounts of events in Macedonia. The applicant had been detained by soldiers of the Macedonian army in April 2001. About a month later he was assaulted by members of the UCK and accused of being a spy and a traitor. In July 2001 soldiers from the Macedonian army forced their way into his home. The applicant was assaulted. Both he and his wife were taken to separate army camps. His wife was detained for 2 days and during that period she was raped by 3 soldiers. They were released on the basis that they left Macedonia. When they returned home they found that their house had been burnt to the ground and their son Afrim had been killed in the fire.

4. The Adjudicator heard oral evidence not only from the applicant but also from Mrs J Avigad, Principal Family Therapist at the Medical Foundation, who had submitted a detailed report at A8-20 of the bundle before the Adjudicator. This describes the general state of both the applicant and his wife when they were first referred to the Family Therapy Team at the Medical Foundation. There were major concerns as to the applicant’s wife both as to her physical and mental state. Her gait was unstable and she was having blackouts. Her mood was extremely low. She was not able to take care of herself and their three year old daughter Enida without constant supervision from the applicant. There were concerns about the parenting of Enida who had been born in the United Kingdom on 12 October 2001.

5. The applicant and his wife were taken on as clients in the light of the severity and potential danger arising from their health, child care and psychological problems. Initially, the applicant’s wife was withdrawn and unable to make eye contact. She only occasionally gave monosyllabic whispered answers to questions. She suffered from flashbacks, nightmares and her sleep was continually interrupted. The applicant felt unable to leave his wife on her own with the baby at any time. There was no bonding between her and the baby. The applicant’s wife was referred to Dr Rundle a consultant neurologist as Mrs Avigad was concerned that she was displaying psychotic symptoms. In the event there were no findings to that effect but the need for on-going therapy was confirmed.

6. At the hearing before the Adjudicator Mrs Avigad was asked to forecast as best she could, the effect that a decision requiring the applicant and his wife to return to Macedonia would have on them. It was her opinion that the applicant’s wife would pull back into herself psychologically or would be reduced to a distressed state. She would have difficulties in walking without being physically propped up. She would see herself as “going crazy”. The applicant may well be able to sustain his role as a supporter for a short period but he would then fracture. There was a very real likelihood that both or either would become suicidal and a likelihood that their daughter would be neglected due to the inability of both to cope emotionally with the trauma of return.

7. Mrs Avigad was not able to comment from her own personal knowledge about the facilities available in Macedonia. The general thrust of the background information was that Macedonia had traditional hospital based mental health services, which were not efficient and largely depended on centralised organisation. There was a reference to community healthcare facilities for patients with mental disorders which were branches of the secondary and tertiary mental healthcare institutions. She had grave concerns as to whether the applicant and his wife would or could receive the complex therapeutic treatment they both needed. She feared that the applicant’s wife would simply be admitted to an institution and placed on medication which would destroy the prospect of any outcome for her and lead almost to a vegetable like existence.

8. On the basis of this evidence the Adjudicator found that the removal of the applicant would breach both Article 3 and Article 8. He said that, notwithstanding the treatment which may or may not be available on return, he accepted the evidence that the threat of and the actual return could in themselves amount to inhuman or degrading treatment sufficient to satisfy Article 3. It would reduce the applicant and his wife to a mental state that could be so acute as to present a real risk of suicide. He went on to consider Article 8. The family would be returned together but the return would destroy family life with its impact on the fragile mental health of both the applicant and his wife. There was a real risk that return could lead to their daughter being cared for outside the family. Such a deterioration if it occurred in the United Kingdom could lead to a situation where the caring agencies would contemplate taking their daughter into care.

9. In the grounds of appeal it is argued that the Adjudicator erred in his approach to Article 3. The Adjudicator should have focused on what would happen to the applicant when he returned. He appeared to have disregarded the availability of any treatment in reaching his conclusions. He had failed properly to take into account the guidelines in Bensaid [2002] INLR 325. He had failed to focus on the correct issues and this materially affected his assessment of Article 3. There were facilities available and psycho-social services which would prevent a breach of Article 3. It was also argued that the Adjudicator erred in his approach to Article 8. Having accepted that the act of removal would not interfere with the family, the claim under Article 8 fell away. In the absence of evidence that there was a lack of family support in Macedonia and taking account of the fact that the wife’s parents were there, his conclusion that there would be a breach of Article 8 was not reasonable. It was also asserted that the Adjudicator failed to consider the issue of proportionality.

10. At the hearing before the Tribunal Mr Parker argued that the applicant failed to show exceptional circumstances which could be described as extreme as envisaged by the Court of Appeal in N [2003] EWCA Civ 1369. If the family returned to Macedonia the applicant’s wife would have access to treatment there and the applicant himself would continue to provide moral support. They had family in Macedonia. When analysed the medical evidence tended to show that if anything there had been an improvement in his wife’s mental health. The claim did not come within an exceptional category because it was not shown that the condition of the applicant’s wife was sufficiently severe. The medical reports had been very carefully worded. The treatment centred around counselling rather than any drug therapy.

11. Looking at the three stage test in Razgar [2002] Imm AR 269 although the applicant might be receiving better support and treatment in the United Kingdom, this was not a case where there would be no treatment in Macedonia. Once her location and status was settled the likelihood was that the condition of the applicant’s wife would improve. The background evidence showed that there was support for the most vulnerable: see the CIPU report April 2003 paragraphs 5.28-33. The Adjudicator had failed to give proper weight to the medical treatment available in Macedonia. He had not spelt out in his determination what the proper standard was to show a breach of either Articles 3 or 8.

12. At the beginning of her submissions Ms Easty applied for an adjournment so that oral evidence could be called. This would be further evidence from Mrs Avigad dealing with the current situation. The Tribunal noted that no draft witness statement as such had been prepared but there was a further report in the Tribunal bundle. In our view this appeal can properly be determined without the need for further oral evidence. As already indicated, the Tribunal have a further report from Mrs Avigad.

13. Ms Easty submitted that this was not a case where post traumatic stress disorder was being relied on. It was clear from the Adjudicator’s summary of Mrs Avigad’s evidence in paragraph 11 of his determination and in particular paragraphs 11.1, 2 and 4 that the applicant’s wife was suffering from a severe condition. The Adjudicator had accepted Mrs Avigad’s evidence of the risk that a removal would have: see paragraph 11.8. The consequences of the removal itself could lead to a breach of Article 3. In the light of those findings the Adjudicator was entitled to conclude that there would be a breach of both Article 3 and 8. Ms Easty argued that a proper distinction could be drawn between Article 3 and 8. Even if the high threshold for Article 3 was not reached there was clear evidence of a breach of physical and moral integrity relating to the applicant’s wife if she were to be removed. It would lead to a severe reaction which would directly interfere with her private life. In the light of the severity of her reaction to a removal, it would not be proportionate to a need to maintain effective immigration control.

14. The Tribunal will deal firstly with the claim under Article 3. This provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. This is an absolute right. Because the rights it enshrines are so fundamental to human dignity there can be no derogation. The article has extra territorial effect: a contracting state must not subject an individual to such treatment nor can it return anyone to a state where there is a real risk of receiving such treatment. When granting permission to appeal, the Vice President commented that it was arguable that the Adjudicator may have erred in finding that the fact of removal of itself would lead to a breach of Article 3.

15. It depends on the facts of each individual case whether it is possible to draw any real distinction between the act of removal and the consequences of removal but in our judgment it would be wrong to place a gloss or restriction on the plain words of Article 3 to exclude as a matter of principle any consequences flowing directly from the act of removal in so far as they can be distinguished from those arising from events or conditions in the country of proposed removal.

16. Because of the absolute nature of the obligation under Article 3 a high threshold must be passed before it is established that there is a breach. When considering inhuman or degrading treatment the European Court has confirmed that such treatment must reach a minimum level of severity. When considering a claim based on Article 3 where the complaint in essence was a want of medical resources in the applicant’s home country, the Court of Appeal in N [2003] EWCA Civ 1369 held that Article 3 cases must be based on facts which were not only exceptional and extreme but extreme when judged in the context of cases all or many of which may demand sympathy on pressing grounds. The Court held that the case of D (1997) 24 EHRR 423 should be strictly confined. In that case the European Court held that Article 3 would be violated if someone in the last stages of Aids were returned to St Kitts even though the conditions he would face in St Kitts would not by themselves amount to a breach of Article 3 standards on the part of the St Kitts’ government. As the Court of Appeal point out in N, this decision is a further extension to the extra territorial extension to Article 3. This case even if strictly confined supports the Tribunal’s view that it would be wrong to place any restriction on the wording of Article 3. All the facts must be looked at to assess whether removal would lead to a breach of Article 3.

17. The facts of D and N illustrate how difficult it can be in individual cases to achieve the balance between the general interest of the community and the need to protect an individual’s fundamental rights. As Laws LJ says in paragraph 40 of N there are no sharp legal tests in this area. The difficulty is to set in context the facts of an individual case which may arouse feelings of sympathy and compassion with the broader purposes of the convention which was never intended to impose impossible legal obligations on contracting states nor to undermine the government’s power to control and regulate the conditions of lawful immigration. Set against this there may be cases where the humanitarian appeal of a case is so powerful that it cannot in reason be resisted.

18. The Adjudicator accepted that the applicant and his wife have been caught up and were innocent victims in the conflict which developed between ethnic Albanians and the Macedonian authorities in Macedonia. It is now argued that to return the applicant and his family to Macedonia would amount to inhuman or degrading treatment. Both the applicant and his wife have been receiving therapeutic counselling in the United Kingdom. On the basis of the medical evidence there can be no doubt about the need for this treatment to continue at least for the time being. Mrs Avigad gave her opinion about the effect of removal on the applicant’s wife and its possible consequences. It was her view that neither would be able to cope emotionally with the trauma of return and there was a real risk of the family disintegrating.

19. But return is not to a country where there are no effective medical services. The World Health Organisation working with the Macedonian Ministry of Health has developed a strategy to support access to healthcare facilities in under-served areas affected by the conflict. Existing psycho-social services have been expanded to deal with the consequences of the conflict and related stress and trauma. The Adjudicator accepted that there would be a severe reaction to a removal but in our judgment that reaction cannot be categorised as so extreme as to engage the United Kingdom’s obligations under Article 3. The risk of suicide is very speculative. The family would return together. The applicant would no doubt attempt to support his wife and family as best he could. This taken with the availability of medical services and support in Macedonia, even if not to be the extent of those being provided in the United Kingdom, are factors properly to be taken into account in assessing whether there would be a risk of Article 3.

20. In summary, the Tribunal accept that the Adjudicator failed to give adequate weight to the medical services available in Macedonia and gave undue weight to the compassionate circumstances in the light of the high threshold required to establish a breach of Article 3. The facts are not so extreme as to engage the United Kingdom’s obligations under article 3.

21. The Tribunal must now turn to the question of Article 8. Article 3 and Article 8 do not necessarily stand or fall together although in many cases they do. The human rights being protected in Article 8 are of a very different kind from the fundamental rights covered by Article 3. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. The Court of Appeal has confirmed in Ullah and Do [2003] EWCA Civ 1856 that Article 8 does not have extra territorial effect. In so far as the claimant seeks to rely on article 8 in respect of events or conditions in the proposed country of removal he must show a breach of sufficient gravity to engage Article 3 before the United Kingdom’s obligations are engaged.

22. In so far as the applicant argues that there would be a breach of private and family life relating both to himself and his wife because of a lack of medical facilities in Macedonia, Article 8 is not engaged. But this does not preclude a claim based on Article 8 when the interference with the Article 8(1) right arises as a result of the removal rather than from conditions or events in the country to which the claimant is removed. The distinction implicit in Ullah and Do is between the consequences of interference to private and family life enjoyed in the United Kingdom as opposed to those which follow from events or conditions in the country to which an applicant is returned.

23. The guidance given in Razgar as to how claims of this nature should be assessed should not be treated as limiting the ambit of Article 8 but as illustrating the basic principle that all relevant facts relating to the particular applicant must be taken into account. It is important to emphasise that a successful claim under Article 8 does not necessarily depend upon a comparison of the health facilities available in this country and the country to which removal is proposed although those factors may be relevant when assessing whether there is a breach of an existing family or private life in the United Kingdom.

24. In this appeal the Adjudicator found that there would be a breach of family life as a return would destroy the family because of the impact of removal upon the fragile mental state of both the applicant and his wife. In the grounds the Secretary of State argues that, having accepted that the act of removal would not interfere with the family in the sense that all the family were being removed together, the claim under Article 8 fell away. The Tribunal do not agree. The need of both the applicant and his wife for further support and treatment is clear from the medical evidence. If a removal to Macedonia would lead to a disintegration of the family, there is clearly a breach of Article 8, whether it is regarded as an interference with family life or with the physical or moral integrity of one or more family members of such severity to engage Article 8.

25. The Adjudicator found that this would be the case. He found that there would be a breakdown of the family because of the effect of removal on the fragile mental state of both the applicant and his wife. In our view the Adjudicator was entitled to conclude that on the particular facts of this appeal, the applicant’s rights within Article 8(1) were engaged. The Adjudicator did not refer to the issue of proportionality. In paragraph 19 of the Secretary of State’s decision letter, proportionality is considered but in a different context.

26. In these circumstances it is for the Tribunal to assess whether removal would be proportionate to a legitimate aim. In most cases the need for effective immigration control will justify the interference with Article 8 rights. However, there will be exceptional cases where humanitarian considerations are so compelling that removal would not be proportionate. The effect of removal on all the family members must be taken into account. The Tribunal must consider not just the effect on the applicant and his wife but also on their young daughter.

27. The onus is on the Secretary of State to show that removal would be proportionate. The Adjudicator accepted the evidence of Mrs Avigad. This is a particularly vulnerable family where the consequences of removal would be exceptionally severe regardless of the availability of support in Macedonia. Even giving due weight to the need to have proper immigration control, the Tribunal have come to the view that removal at the present time would be disproportionate. It may be that with time and treatment the consequences of a return to Macedonia would diminish and would not have such a severe impact on this family but the Tribunal must deal with the situation as it is now.

28. Accordingly, for these reasons the appeal by the Secretary of State is allowed on Article 3 grounds but dismissed on Article 8 grounds.

H J E Latter
Vice President