The decision

SM (Persecution - Minors) Yugoslavia [2003] UKIAT 00004


Date heard: 25 February 2003
Date notified 29.05.03








1. The appellant, a national of Federal Republic of Yugoslavia (FRY), has appealed with leave of the Tribunal against a determination of Adjudicator, Mr M Rush, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum. Mr S Nigae of Counsel instructed by Brain Sinnot & Co Solicitors represented the appellant. Mr M Davidson appeared for the respondent.

2. The Tribunal has decided to dismiss this appeal.

3. The basis of the appellant’s claim was that as an ethnic Albanian from Presevo whose family had been attacked by Serbian soldiers and police he feared he would remain at risk of persecution upon return to southern Serbia. His father and brother had been shot and killed by the Serbian police. He had been come under fire from Serbs following a football match. His brother had been killed giving assistance to the UPCMB.

4. The adjudicator rejected this claim. He did not find the appellant had given a credible account of his past experiences. Although this is not entirely clear from the somewhat cryptic wording of paragraph 28, it also appears he considered that changes in the government of FRY and in the administration of southern Serbia meant that there was no longer any risk of persecution to ethnic Albanian citizens from the Serb authorities. He did not consider that the psychiatric report supported the appellant’s claim.

5. The grounds of appeal are essentially threefold. Firstly, it is submitted that the adjudicator’s adverse credibility findings evinced a failure to pay due regard to the fact that, when the appellant applied for asylum, he was still an unaccompanied minor and should have had his evidence assessed by reference to different criteria than were in fact applied. Secondly, it is submitted that given his young age and the fact that he would be known to have a brother who had assisted the UPCMB, he would be in a continuing risk category. Thirdly, it is submitted that, in view of the medical evidence showing the appellant was a vulnerable adolescent suffering from PTSD, return to Kosovo would re-expose him to his original trauma.

6. As regards the first ground, we are prepared to accept that on the adjudicator’s findings the appellant had arrived in the UK when he was almost 17 years. That being so, he should have been considered in accordance with relevant provisions of the Immigration Rules (paragraphs 350-352) and Home Office instructions relating to the assessment of claims from minors and his evidence should also have been evaluated by reference to UNHCR guidelines set out in the 1979 UNHCR Handbook and elsewhere. However, we dot find it demonstrated that these procedural errors resulted in the appellant being prevented as a result from giving an adequate account of his asylum and human rights claims.

7. We are also prepared to accept that the adjudicator`s adverse credibility findings are not clearly reasoned. Given his status as a minor, we do not see that the appellant’s three months delay in claiming asylum necessarily demonstrated his claim was not credible. Nor do we see why, given that the adjudicator seemed prepared to accept that the appellant ran into trouble with Serbs in February 2001, he should doubt that the appellant and others were jeered at and fired at. There was, as the adjudicator noted elsewhere, medical evidence of pellet wounds. Given the adjudicator’s apparent awareness of the medical evidence that the appellant suffered from Post Traumatic Stress Disorder one of whose symptoms is emotional numbness, we do not think the adjudicator was justified in counting against the appellant at paragraph 26 his failure at the hearing to “show emotional distress when the traumatic events were raised…” His comment at paragraph 27 about “stress, poor recollection and other features and similar phraseology [being] invariably associated with malingering” suggested that he effectively chose to ignore its findings about this particular individual. That was an error. For one thing his generalised comments seem to us no more instructive satisfactory than the generalised phraseology they castigate. For another the report made particular findings about the appellant’s psychological state which needed to be properly weighed.

8. This brings us to the only clear-cut adverse finding at paragraph 28 where the adjudicator says he believed the appellant’s story of going out and finding his brother and father in a nearby alleyway when they were coming home from work to be “concocted”. He appears to have reached that view because it was difficult to reconcile this story with the appellant’s claim elsewhere that he had been severely mistreated earlier that same day. However, the appellant was never asked at interview to comment on this apparent discrepancy nor did the Secretary of State make any mention of it in his Reasons for Refusal letter. Nor can we find any evidence that the adjudicator asked the appellant to comment on this matter. Given the appellant’s age at the time these events occurred, we consider that once the adjudicator decided there was an apparent discrepancy, he should have given the appellant, who was 18 by the time of the hearing, an opportunity to explain this apparent discrepancy. Certainly we are not persuaded in the absence of more careful reasoning to place any reliance upon this discrepancy.

9. Thus we are prepared to approach this case on the basis that the appellant had given a credible account.

10. Can we conclude that the adjudicator should therefore have allowed the appellant’s appeal? We think not. Even accepting his account as credible we can see no proper basis for concluding that the appellant would face a continuing risk of persecution or ill treatment upon return to Southern Serbia. Plainly on his own account he and his family had been targeted at the time by Serbian police and soldiers in the context of the continuing troubles in southern Serbia occurring at that time. However, as the adjudicator correctly noted, there were very significant changes put in place in this region shortly after.

11. The ground of appeal contend that notwithstanding these general improvements the appellant would remain at risk because it would be known that his brother had helped the UPCMB. However, the objective country materials do not demonstrate that the Serb authorities, who in May 2001 declared an amnesty covering UCPMB members and put in place a multi-ethnic police force, would any longer have an interest in viewing adversely someone whose brother had been a UPCMB member.

12. This brings us to the third main ground of appeal which related to the appellant’s medical condition. The grounds noted that the report of the Consultant stated that the appellant had had to cope with the loss of his family and to adapt culturally to a new country. “In my opinion his recovery from his symptoms will be helped by his perception of physical safety and social support that he is now receiving. The importance of social support in improving mood in asylum seekers has been confirmed by research findings”. Mr Nigae very properly drew our attention to the very gloomy picture painted in the latest CIPU Assessment of the state of medical services in Serbia. Mr Nigae further argued that return of the appellant would make him vulnerable to a risk of self-harm, of symptom reactivation and a lack of medical assistance or treatment. Thereby the appellant would face a real risk of serious harm contrary to Art 3 or significant detriment to his physical and moral integrity contrary to his right to respect for private life.

13. The task of assessing medical evidence which refers in part to risk upon return to another country is never an easy one for the appellate authority. On the one hand an adjudicator is not a medical expert. By the same token a medical expert is not normally a country expert and cannot expect his personal evaluation of the conditions a patient would face on return to another country to carry the same weight as his clinical assessment of the patient’s physical and mental well-being. Thus it must ultimately fall to the adjudicator, considering all the evidence, including of course the medical evidence, to assess whether in fact there is a real risk upon return.

14. We have already noted that the adjudicator did not properly consider the medical evidence before him. Thus it falls to us to decide whether a proper consideration of it would have made a difference to the outcome of the appeal.

15. We are not satisfied that the medical evidence establishes that there would be a real risk upon return to this appellant either of serious harm or significant detriment to his physical and moral integrity.

14. In the first place, whatever the Consultant may have presumed about the conditions the appellant would face in FRY (he noted that the appellant believed that his life would be in serious danger from the Serb authorities), the evidence viewed as a whole did not demonstrate that there would be any danger from the Serb authorities.

15. In the second place we are not persuaded that the appellant would in fact be without social support in Serbia. We accept the Consultant’s opinion that a continuation of social support was and is important to the appellant’s psychological well-being. But the evidence viewed as a whole did not demonstrate that social support would be lacking in the Presevo Valley among fellow-members of the Albanian community. Since he would be returning to his own country and culture, there would be no call for him to have to adapt all over again. The social support there may not be of the same type as in the UK but it would not be radically different from it, and in cultural terms would be superior.

16. In the third place the Consultant did not find the appellant to be suffering any symptoms or signs suggestive of a psychotic illness and he noted that the appellant was oriented in time, place and person. And whilst he recommended that the appellant undertake therapy with an antidepressant medication and a psychotherapeutic approach to his problems, he did not specify that denial of such treatment to the appellant would cause him serious harm or significant detriment. In terms of his medical history, the appellant had no history of mental illness and since arrival in the UK, apart from taking analgesics for headaches, was not undergoing any course of medical treatment. Against this background it was not decisive that medical facilities in Serbia were lacking.

17. In the light of these considerations, we consider that Mr Nigae`s assertions that return would cause the appellant a real risk of self-harm and symptom reactivation went well beyond the parameters of the Consultant’s report and were unduly speculative. Insofar as his argument depended on the view that return would re-expose the appellant to his original trauma, we do not see that this was entailed by return to Serbia. Whether the appellant revisited the actual physical site of his earlier traumatic experiences was a matter for him; no one would compel him to do this.

For the above reasons the appeal is dismissed.