The decision

Heard at Field House

AM (Really serious consequences) Serbia and Montenegro) [2004] UKIAT 00135
On 23rd April 2004


Date Determination notified:

26th May 2004


Mr R Chalkley (Vice President)
Mr J Perkins (Vice President)





1. Before us the Appellant, hereinafter “the Secretary of State” was represented by Mr M Davidson, a senior Home Office Presenting Officer, and the Respondent, hereinafter “the Claimant”, was represented by Mr W McGivern of counsel instructed by White Ryland, solicitors.
2. The Claimant is a citizen of the Federal Republic of Yugoslavia. He was born on 5th July 1975 and so is now 28 years old. He comes from Serbia and is a member of the Roma community. In a determination promulgated in October 2002 the Adjudicator, Ms M Colvin, dismissed his appeal against the decision of the Secretary of State that he was not entitled to refugee status and that removing him from the United Kingdom was not contrary to his rights under the European Convention on Human Rights. That determination was criticised because the Adjudicator had not considered the implications of Article 8 of the European Convention on Human Rights. The appeal was remitted to Ms Colvin for her to consider Article 8. She did that in a determination promulgated on 13th November 2003 and allowed the Claimant’s appeal. It is against that decision that the Secretary of State now appeals.
3. The Secretary of State has not considered Article 8. It follows that the Adjudicator was the primary decision maker concerning that aspect of the case.
4. The Adjudicator made clear and important findings of fact in paragraphs 12, 13 and 14 of her determination. At paragraph 12 she said:-
“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 to Serbia. 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.”
5. The Adjudicator considered herself bound by the decision of the Court of Appeal in the case of Razgar v SSHD [2003] EWCA Civ 840 and explained that she understood Razgar to mean “that Article 8 can be relied upon where the degree of harm in the receiving country is sufficiently serious to the physical and moral integrity of the person.” The Adjudicator said that this is not a case “where the principle in Blessing Edore and SSHD [2003] EWCA Civ.716 applied.” We take this to mean that the Adjudicator had to make up her own mind on the question of proportionality because the Secretary of State had not considered the point. The Adjudicator decided that removing the Claimant would be an interference with his rights under Article 8(1) and that it would be disproportionate to the proper purpose of maintaining immigration control.
6. Mr McGivern asked us to adjourn the appeal. He wanted to serve an up-to-date medical report on the Claimant’s condition. We refused that application. The Appellant’s solicitors were told by a letter dated 6th February 2004 that permission to appeal had been granted. Mr McGivern could not explain why medical evidence had not been sought as soon as that notice was received. Further, Mr McGivern could not show any reason to suspect that the Claimant was in a significantly worse condition than when he appeared before the Adjudicator who had already made quite favourable findings of fact about his condition. The Claimant suffers from an ongoing medical condition. Short of having the doctor examine the patient immediately before a hearing and give oral evidence about his findings there would always be some point in waiting for further medical evidence but that did not mean that an adjournment would always be necessary for the appeal to be justly determined. Bearing in mind all these things and the fact that it was for the Secretary of State to show that the determination was unsound we saw no merit in adjourning the hearing.
7. We have before us, and accept as truthful, a letter dated 13 February 2004 from D N A Baloach, a consultant psychiatrist, who described the claimant as a “pleasant but deeply troubled young man” who had been attending an out patient’s clinic run by Mr Jim Wills.
8. A further difficulty arose because Mr Davidson thought he had been granted permission to appeal on grounds 7 and 8 of the Grounds of Appeal but Mr McGivern did not know of these grounds until shortly before the hearing and we did not know of them until Mr Davidson informed us. After reading them carefully this did not cause any problem. Ground 8 is purely formal and adds nothing of substance. Ground 7, properly understood, complained in effect, if not in its language, that the Adjudicator had not followed M (Croatia)*. Mr McGivern, properly and sensibly, accepted that M (Croatia)* set out the approach the Adjudicator should have adopted when considering proportionality. He was prepared to deal with that point. Although he was taken by surprise there was nothing unfair in allowing Mr Davidson to argue the Grounds of Appeal without adjourning the hearing.
9. Unlike the adjudicator we have the assistance of the case known as 00024 M (Croatia)* [2004] UKIAT 00024, which had not been promulgated when the adjudicator decided the appeal. There the Tribunal considered the proper approach of Adjudicators and indeed the Tribunal itself when dealing with Article 8 cases. At paragraph 25 the Tribunal explained the approach to be taken by an Adjudicator where the Secretary of State had not made a decision. Ouseley J said:
“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.”
10. This paragraph has to be read with paragraph 28 which says:
“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.”
11. Of course the Adjudicator is not to be criticised for not following M (Croatia)*. As stated above M (Croatia)* had not been reported when the Adjudicator decided the case that is the subject of this appeal. Nevertheless, the Adjudicator’s approach should have been to have asked herself if the consequences of removal were so disproportionate to the proper purpose of immigration control “that no reasonable Secretary of State could remove in those circumstances”. If the Adjudicator did ask herself that question and then decide, reasonably, that it was disproportionate the Tribunal cannot interfere. If the Adjudicator did not ask herself that question, or if she did ask the question but reached an answer that no reasonable Adjudicator could have reached, then the decision is unsound and the Tribunal must correct it.
12. We consider now the Grounds of Appeal. Ground 1 complains that the Adjudicator did not decide the case in the light of the circumstances that existed when she made her decision. This ground is supported by reference to the case of S and K* [2002] UKIAT 05613. We agree that the Adjudicator should have decided the case on the basis of the facts that existed at the date of decision.
13. Ground 2 complains that the Adjudicator considered herself bound by the decision in Razgar and SSHD [2003] EWCA Civ. 840 but failed to provide any supporting reasons why she preferred the approach in Razgar to the approach set out by the Court of Appeal in Ullah v SSHD [2002] EWCA Civ. 1856. It is the Secretary of State’s contention that Ullah permitted removal unless a person could show that the consequences of removal were so severe that it was contrary to Article 3 to require him to leave the United Kingdom. When the Adjudicator first decided the case she was not persuaded that it would be contrary to Article 3 to remove the claimant.
14. Mr Davidson and Mr McGivern made submissions on the law.
15. Before the decision of the Master of the Rolls in Ullah and Do v Secretary of State for the Home Department [2002] EWCA Civ.1856, decided on 16th December 2003, there was uncertainty about the circumstances, if any, in which a person could rely on the provisions of the European Convention on Human Rights to support an argument that he could not be removed from the United Kingdom to a territory where he risked treatment that would be contrary to the European Convention on Human Rights, if it applied. At risk of demeaning the judgment of the Master of the Rolls by over-simplifying it, Ullah and Do decided that it was not contrary to the European Convention on Human Rights to return a person to a country where his rights were at risk unless he faced ill-treatment so severe that removal resulted in a real risk to his rights under Article 3 of the European Convention.
16. It is against this background of concern about the extent to which a person’s rights cross national borders that the Court of Appeal decided the case of Razgar on 19th June 2003. There, Dyson LJ drew attention to a distinction between a person’s rights under Article 8 (if any) being at risk by reason of conditions in the country to which he is returned and to his rights being at risk by reason of his removal. In the case of a risk existing by reason of his return then, unless it was so severe that it engaged Article 3, it would not be an impediment to his removal. Except in the case of Article 3 the European Convention does not oblige the United Kingdom to protect people outside its jurisdiction from conduct that would be an interference with Article 8 if it took place within the United Kingdom.
17. In Razgar the Court of Appeal recognised the position could be more complicated where a sick person was being treated in the United Kingdom. His removal to a country where treatment would be much less effective or possibly not available at all could cause a medical problem that was being treated in the United Kingdom to be exacerbated so that once the treatment stopped and the person was outside the United Kingdom his health declined to the point that there was an interference with his private and family life. Circumstances supporting such an argument are by no means unusual in the case of people receiving treatment for mental ill-health in the United Kingdom which would not be available to them in the event of their removal although, as the Court of Appeal noted in Djali v IAT [2003] EWCA Civ. 1371 there is no obvious reason why the principle identified in Razgar should be limited to cases of mental ill-health. The point of distinction is that it is the removal of the person from the United Kingdom, and therefore from the treatment that he was enjoying, rather than conditions in the country to which he was returned, that caused the interference with Article 8 rights.
18. However it is important to realise that Razgar recognised that a mere decline in health was not sufficient to engage the protection of Article 8. This would only occur where there was a sufficiently adverse effect on physical and mental integrity (paragraph 23). It is also important to note that Razgar also recognised that it is not sufficient for an Appellant to show that his rights under Article 8(1) are at risk. There is Article 8(2) to consider (paragraph 25). The proper approach to proportionality has already been considered.
19. It was Mr McGivern’s core point that the Adjudicator had to consider Article 8 because the Secretary of State had not and, in the light of the medical evidence, the Adjudicator was entitled to find that a reasonable Secretary of State could have found it disproportionate to the proper purpose of immigration control to remove the Appellant. The Adjudicator’s conclusion that the Appellant’s “return to Serbia at the present time would be highly detrimental to his mental health” was supported by proper expert evidence before her and has not been the subject of any challenge before us. However we must make some effort to understand what the Adjudicator meant when she said that returning the claimant would be “highly detrimental to his mental health”. There was before the Adjudicator a report from Dr Hisham Ramy dated 15 September 2003. Dr Ramey is a consultant psychiatrist who practises from the Pagoda Community Mental Health Centre in Maidstone. Dr Ramy recorded the Appellant complaining of “flashback phenomena and hypervigilance symptoms but not depressive or suicidal features.” He concluded that the Appellant has Post Traumatic Stress Disorder and
“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 to Serbia.”
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.
20. It is the foregoing medical evidence that the Adjudicator had in mind when she accepted the therapist’s opinion that removing the Appellant would be “highly detrimental to his mental health”.
21. The case of Razgar was considered at length by the Court of Appeal in the case of Djali v Immigration Appeal Tribunal [2003] RWCA Civ.1371. This decision expressly recognised that Razgar had to be followed. However the Court of Appeal in Djali emphasised that a high test had to be satisfied before Article 8(1) was engaged. Simon Brown LJ summarised the position thus at paragraph 16:
“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.
22. It is plain to us that, properly understood, Razgar requires removal to have serious consequences on a person’s health before removal is contrary to Article 8 and “serious consequences” in this context should be understood not as a medical practitioner might use the phrase but as the courts understand it in the jurisprudence concerning removal of sick people and the European Convention on Human Rights. Whilst we entirely understand the Adjudicator’s description of the consequences of removing the Appellant as being “highly detrimental to his mental health” in the sense that the therapist used the phrase we do not accept that it was open to the Adjudicator to find that there was a real risk of removal being seriously detrimental within the meaning of Razgar. To that extent, and with respect to the Adjudicator who is doing her best in a very difficult area of law where the Secretary of State had not bothered to send anybody to help her, she fell into error.
23. It is our first finding that the Adjudicator ought not to have concluded that there was an interference with the Appellant’s protected private and family life. Although a cognitive behavioural psychotherapist referred to the claimant’s removal being “highly detrimental to his mental health” in fact the medical evidence did not support a finding that removal from treatment in the United Kingdom would cause “a sufficiently adverse effect on physical and moral integrity, and not merely on health” as to engage Article 8.
24. However, even if there was it is quite plain to us that this is a case where the Secretary of State could have found removal proportionate. Following the case of M (Croatia)* considered above it must follow from this that the Adjudicator ought to have dismissed the appeal.
25. In the circumstances we allow the appeal of the Secretary of State.

Jonathan Perkins
Vice President
12 May 2004