The decision

VK (Professional Handwritten Grounds not Acceptable) Serbia and Montenegro [2003] UKIAT 00176

Heard: 24.11.2003
Signed: 25.07.2013
Sent out: 02.12.2003


John Freeman (chairman)
George Warr (vice-president) and
Mr A Smith


Secretary of State for the Home Department,


Mr T Vanhegan (counsel instructed by Gulbenkian Harris Andonian) for the appellant
Mr G Phillips for the respondent

This is an appeal from a decision of an adjudicator (Ms Sarvanjan Kaler), sitting at Barnet on 10 April, dismissing an asylum and human rights appeal by a citizen of Kosovo. Leave was given on the basis that the adjudicator had needed to consider, under article 8 of the Human Rights Convention, the situation of the appellant and her family in this country, as well as what awaited them on return. We were astounded to see that the grounds of appeal, though clearly drafted by the appellant’s solicitors (a well-known firm with two very experienced part-time adjudicators in the partnership) appeared in handwritten form. This is not acceptable in the 21st century from anyone providing a professional service: any repetition is likely to be reported, through the Immigration Services Commissioner, to the Office for the Supervision of Solicitors.

2. The unusual features of the case were, starting with the less so:
a) The family had been here ever since 1999, at first by dint of an asylum claim by this appellant’s husband, finally dismissed on appeal on 22 November 2001; now he is named as a dependant on her claim. They have two children, Stiven, born in Kosovo in March 1997, and Kelly, born here in January 2001.
b) The appellant was raped, as the adjudicator accepted, by Serb soldiers in Kosovo in April 1999; but her husband does not know about that, and she is afraid of the consequences if he were to find out.
3. The adjudicator dealt with the article 8 issues arising as follows:
17. Mr Merrylee questioned the Appellant in detail about how it was that her husband did not know about the rape, since he would have asked to have sexual intercourse after his return from the mountains. The Appellant's explanation was that she told him she was in pain after the attack on her. The Appellant places great importance on how her husband would react if he knew about the rape, and it would appear that she has managed to hide this from her. The Appellant's mother-in-­law knew, and I asked her why the mother-in-law did not shun her. The Appellant's explanation was that she felt sympathy since she had witnessed the incident. The actions of the mother-in-law do not indicate to me that she would tell other people about this incident, bearing in mind the shame that is attached to this. I do not find it credible that the mother-in-law, who was the only witness to these events, would have spread the story of the rape of her daughter-in-law. It follows that I do not find it likely the husband would be told about these events on the family's return to Kosovo. I do not accept the story about the brief telephone Convention, in which the rape was not mentioned.
23. [bis] The Article 8 argument has been raised at the first time at the hearing. The Respondent has had no notice of this, but I have nevertheless given consideration to the arguments put forward by Mr Merrylee. The Appellant's husband would leave her with the children, and she would be ostracised and ill-treated by the civilian population.

24. Lord Phillips in Ahsan Ullah and Thi Lien Do (2002 EWCA Civ 1856) in the Court of Appeal at paragraph 64:
Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage Article 3, the English court is not required to recognise that any other Article of the Convention is, or may be engaged. Where such treatment falls outside Article 3, there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds.
25. Even if the Appellant is right, and her husband would discover that she had been raped, I would have to be persuaded that he would act in a hostile manner towards her, leave her and take away the children. She has not said that she fears physical violence. When she described her behaviour, the only hint of violence was his hitting the doors. This in itself does not show a tendency to violence.
26. If he did leave his wife and take away the children, this is not treatment that the Appellant would be subjected to by the receiving state. There are too many imponderables. What I have to consider is what is reasonably likely to happen, and if the state has any obligations to prevent this. Firstly, I do not think it likely that the husband will discover his wife has been raped. Secondly, there is a possibility that he would leave her, just as there is a possibility that he would not. The report of Dr Steer states that the husband shows features of but is not a diagnosis of Post­-Traumatic Stress Disorder. He suffers from mild depression. He is not undergoing any treatment that would be interrupted. He would no doubt be upset, and in his state would still want the support of his wife. Even if the husband did leave the Appellant, that is not a matter that would place the UK authorities in breach of their obligations under Article 8.
27. As to the Appellant's treatment from third parties, the evidence does not support her assertion that she would face persecution because of her ethnic origin. If she is shunned because she has been raped, and her husband did know about this, then she could move to another area, either with or without her husband. This may be harsh, but that is not the test that I have to consider. The UK government would remove the whole family. It is not their act that would result in a separation of the family. Nor would it be because of any action or inaction by the receiving state. To return her would not be in breach of her Article 8 rights since neither state is responsible for the predicament she would find herself in.
4. The grant of leave no doubt referred to the recent decision in Razgar [2003] EWCA Civ 840, making it clear that the main issue in an article 8 appeal was likely to be on the difference between whatever treatment someone was getting here and in their receiving country. There is no evidence that the appellant is getting any treatment here; Mr Vanhegan told us that it was under discussion, following the recommendations of Mr D Hughes, who describes himself as a “Psychoanalytic and Intercultural Psychotherapist”, apparently aiming to take up some middle ground between psychologists and “country experts”. He mentions a number of qualifications, including an MSc in Intercultural Psychotherapy: although he says he has lived and worked “in a variety of contexts in Europe, the Middle East and Africa”, there is no suggestion that he has ever visited Kosovo. However there is no question of removal depriving the appellant of anything she is currently getting by way of treatment.
5. On point a) (see 2), the family’s length of residence here has resulted in their settling in to the typical existence described in the appellant’s current statement:
8. As I stated above, my life mainly revolves around my family. Apart from my husband I have two children. My son is now 6.5 years old and in Year Three at Hither Green Primary School. He is well settled there and doing excellently. His friends are English and he regards himself as English. He speaks English fluently with a London accent and prefers to speak English at home rather than Albanian. His social life centres around his school friends, going to Birthday parties and playing in the park after school and at weekends. He is just like any other English kid, he likes Beckham and regards this country as his home. After 4.5 years here it would be almost impossible for him to go to Kosovo.
9. My daughter was born here and is nearly 3 years old. She is due to start school next January and for her too it would be almost impossible to return now.
6. While we certainly need to consider the situation of the family as a whole, it is by no means irrelevant that it has been brought about by the use – we will not say exploitation – of the appeals system, following illegal entry by the appellant and her husband, with Stiven. Mr Phillips did not challenge the passage we have quoted as a picture of their current family life, nor do we have any reason to doubt it, so far as the facts are concerned. When it comes to the conclusions, however, it is otherwise. While Stiven has no doubt settled well into school, he is only in his second year, and it is absurd to suggest that he could not also settle down into another system: as we pointed out to Mr Vanhegan, few in eastern Europe start as early as five. It is clear from what is expressed as his preference that neither he nor Kelly has been brought up unable to speak Albanian: words begin to fail us when it is suggested that a three-year old child, not yet at school, could not possibly adapt to conditions in the land of her mother tongue.
7. If there is any feature of this case that could justify overturning the adjudicator’s very thorough and well-argued decision, it must be the effect of point b), the results of the appellant’s history becoming known. Mr Vanhegan’s main point against her on that was that she had not taken account of the conclusions of Mr Hughes, and the evidence to which he refers. Of course he did not blame her as such for not doing so, because this was something which (to use Henry Read’s famous line) in her case she did not have. Nevertheless he said we should look at it all, and exercize the well-known advantages of hindsight.
8. We queried with Mr Vanhegan whether the decision of the Court of Appeal in Oleed [2002] EWCA Civ 1906 allowed us to do that, unless first satisfied that the adjudicator was clearly wrong on the evidence before her; but we made it clear that we should consider his submissions on their merits, whatever view we took on that. In the end, a further decision of the Court of Appeal became available shortly after, which clarifies the approach to be taken by the Tribunal to adjudicators’ decisions. It is Indrakumar [2003] EWCA Civ 1677: while it is a decision of only two judges (Hale and Carnwath LJJ), the subsequent elevation of Hale LJ may be thought to add to its authority. We regard it as now clear that, when it comes to drawing inferences, the Tribunal is free to do so, if there is any error by the adjudicator, on the basis of all the evidence put before us.
9. So we turn to the adjudicator’s primary reason for rejecting point b), which is to be found in her § 17. She may arguably have been wrong to take the view (in her §§ 26 - 27, set out above), on the basis of Ullah, that the result of the appellant’s husband finding out about the rape would not engage article 8, as not being the fault of either the sending or receiving state. The passage from Ullah she cited at § 24 deals with things that are said to be the fault of the receiving state; but in any case, if the appellant were likely to be in a serious predicament as a result of her husband finding out, then any lack of protection from the consequences by the receiving state might have to be considered under article 8. However, if the adjudicator was right in her findings of fact at § 17, then she did not need to go on to consider this question; nor do we need to express a decided view on it. She was of course quite right to deal with the case on all arguable bases; but she made it quite clear at § 25 that the rest were all alternatives (“even if”) to the main reason for her decision.
10. The piece of evidence with which the adjudicator was dealing at § 17 is set out by her at § 8: in April 1999, while the appellant’s husband was away, seven Serb soldiers came to their house and four of them raped both her and her mother-in-law:
Her mother-in-law told her not to tell her husband since this was very shameful and he may divorce her. She had not told her husband about this event to this day. She had briefly spoken to a friend in Kosovo over the telephone who knew about the rape, and she assumed that her mother-in-law had told her. Her husband would be bound to find out if she were to return to Kosovo, and would leave her taking the children. He would react even more severely now because she had hidden matters from him.
11. Mr Vanhegan criticized, as meaningless in context, the last sentence of the adjudicator’s § 17 (“I do not accept the story about the brief telephone Convention, in which the rape was not mentioned.) However, one only has to look back, as we pointed out, at her § 8, to see that she was perfectly well aware that the appellant was claiming that the rape was mentioned in the telephone conversation, which indeed was the whole point of anything being said about it in evidence. Looking at the last sentence of § 17 as a whole, it is clear from “Convention” for “conversation” that it has not been properly proof-read: no doubt the typist by now was more used to dealing with the former than the latter. The adjudicator however had just given a perfectly logical reason for not accepting the evidence that the friend had mentioned the rape. She may well be accused of being rather careless in checking her typescript; but not of misunderstanding the case before her.
12. Mr Vanhegan’s other criticism of the adjudicator’s findings at § 17 was that they were reached without the background evidence referred to by Mr Hughes, or his own views on it. The reason the adjudicator had given however was this:
The actions of the mother-in-law do not indicate to me that she would tell other people about this incident, bearing in mind the shame that is attached to this. I do not find it credible that the mother-in-law, who was the only witness to these events, would have spread the story of the rape of her daughter-in-law.
Quite obviously the adjudicator was only too well aware of the general cultural background to which we have been referred. It was precisely because of the shame attached to the rape that she reached the finding she did. Further discussion of the details of that traditional background adds nothing to its rightness or wrongness. The more shameful it is for a woman to be raped, the less likely it will be for her to reveal it to anyone. While she might be more likely to tell another woman about it than a man, there is nothing to show any particularly close connection between the appellant’s mother-in-law and her friend. It must also be remembered that the mother-in-law had herself been raped.
13. It was for the adjudicator to make up her mind whether the telephone conversation had ever taken place: this was a primary finding of fact on oral evidence, tested by the adjudicator, with which we should be very slow to interfere, even if we were inclined (which we are not) to take a different view. There is nothing else in the background evidence or elsewhere to show that the adjudicator was wrong on this part of her findings. There is nothing without the telephone conversation to show that either the mother-in-law or the appellant had ever revealed their rapes to anyone else in Kosovo, or why the mother-in-law should do so, or the appellant find any need to do so there in future. Although what happened has played a large part in the appellant’s case in this country, she never mentioned it from the time she arrived here in 1999 till she completed her own statement of evidence form on 30 April 2002. Her husband was not present before the adjudicator or us, and in any case is said to speak very little English: at her request, no copy of this decision will be sent to their house.
14. We see no reasonable challenge to the adjudicator’s conclusion that there was no real risk (assuming in the appellant’s favour that this is also the test in article 8 appeals of this kind) of her husband ever finding out that she (or his own mother) had been raped. It follows that no article 3 case can succeed. Returning to article 8, we have already seen (at 6), that the point a) factors are favourable; but they cannot be regarded as so exceptional as on their own to overturn the adjudicator’s decision on. Even in Shala [2003] EWCA Civ 233, a case of similar length of residence, as it happens by persons from the same territory, this required the very special feature that the Home Office had failed to deal with the original claim in reasonable time, which would have ensured its success under the policy then in force. That is not the case here, where the present claim was not made till over two years after the appellant arrived here, at a time when her husband’s appeal had already been dismissed. We see no reason to interfere with the adjudicator’s decision on article 8 either.

John Freeman (chairman)