The decision

Appeal Number :HX31973-2001
MZ (Rape – Stigma – UNHCR Advice) Kosovo CG [2002] UKIAT 03012


Heard at : Field House
Determination Promulgated:
on : 17 May 2002

Dictated : 21 May 2002
25 July 2002


Mr H J E Latter - Chairman
Mr A A Lloyd JP
Mrs E Hurst JP

Secretary of State for the Home Department


Milihate ZYMERI



For the Appellant: Mr R Holmes, Home Office Presenting Officer
For the Respondent: Miss C Record of Counsel instructed by Chambers, Solicitors.

1. This is an appeal by the Secretary of State against the determination of an Adjudicator (Mr K F Walters) who allowed the Respondent's appeal on human rights grounds against the decision made on 19 June 2001 giving directions for her removal following the refusal of her claim to asylum. In this determination the Tribunal will refer to the Respondent as the Applicant.

2. The Applicant arrived in the United Kingdom clandestinely on 12 January 2000 claiming asylum on arrival. She married on 10 February 2000 and her daughter was born on 19 February 2001.

3. The Applicant’s claim for asylum was refused and she appealed on both asylum and human rights grounds to an Adjudicator and her appeal was heard at Hatton Cross on 31 January 2002. Before the Adjudicator she gave evidence of what the Adjudicator describes in his determination as a horrific incident which he does not describe but has recorded in his Record of Proceedings. The incident was a rape by a Serbian soldier. This had not been raised before the hearing and judging from the Record of Proceedings it was raised at a late stage when at the beginning of submissions the Appellant interrupted and said that there was something else that she wanted to say. The evidence must have been compelling. The Presenting Officer at the hearing conceded the credibility of the account and the Adjudicator made it clear that he accepted her account in its entirety.

4. The Adjudicator, for reasons which are not challenged, came to the view that the Applicant’s claim could not succeed under the Refugee Convention but allowed the appeal under Article 8 on the basis that to return the Applicant to Kosovo would be in breach of her right to respect for her physical and moral integrity and removal would not be proportionate to a legitimate aim.

5. The Secretary of State applied for leave to appeal on the basis that the Adjudicator had failed properly to consider the extent of the Applicant’s claimed medical conditions. The case of M [2001] (01/TH/03623) was properly distinguishable. The Applicant would be able to access appropriate treatment in Kosovo. Leave to appeal was granted by the Tribunal (Mr M W Rapinet, Vice-President) in a determination notified on 28 March 2002 on the basis that the grounds raised arguable issues in particular as to whether this case could be distinguished from that of M.

6. Mr Holmes submitted that the Adjudicator had not given adequate reasons why there would be a breach of Article 8. There was insufficient medical evidence to justify his findings. He referred to the Kosovo Information Project Report showing that there were facilities available for those with mental or psychiatric problems. A pilot project was being carried out in the Applicant’s home area. There were facilities to provide treatment for anxiety and depression. It was wrong to say that there was a breach of the Applicant’s physical and moral integrity. Insofar as her fear related to her husband finding out about what had happened, if she sought treatment in the United Kingdom he was likely to discover the position. There was no reason why if the Applicant returns to Kosovo she would disclose anything to him there.

7. Miss Record submitted that the Applicant had been the victim of a violent and traumatic rape. There was a real risk because of the cultural norms in Kosovo that if her husband found out about it, he would leave her. She referred to a report from the BBC Homepage dated 17 April 2000 dealing with social taboos and the fact that women who have been identified as rape victims in the community can find themselves abandoned by family and friends. The Adjudicator had been right to look at all the factors. He had come to a conclusion which was properly open to him.

8. The Adjudicator accepted that to remove the Applicant would be an interference with her private life. He adopted the definition from Blake and Fransman’s Immigration, Nationality and Asylum under the Human Rights Act 1998 that private life includes a right to personal development and to establish relationships....[and] includes a right to respect for one’s physical and moral integrity. The physical and moral integrity limb is a protection against a lesser level of harm than is required under Article 3 and so is easier to establish. However, interference with it may be justifiable under Article 8(2). In M, the Tribunal cited the following passage from the judgment in Bensaid (2002) INLR 325. “Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development and the right to establish and develop relationships with other human beings in the outside world. Preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”

9. In the view of the Tribunal the Adjudicator was entitled to come to the view that there would be an interference with the Applicant’s right to physical and moral integrity. He took into account the fact that she was a young woman with one young child born in the United Kingdom and that she was pregnant. He also had before him a letter from Dr Kumar dated 29 January 2002 that the Applicant was seeing a counsellor for anxiety and depression which may be a result of trauma experienced in Kosovo. The situation confronting the Adjudicator was an Applicant whose evidence he believed disclosing for effectively the first time the rape. He was entitled to come to the view that this was behind the anxiety and depression and to accept the doctor’s comments that they may be the result of a trauma experienced in Kosovo. For the Appellant to be returned at that stage to the place where the rape had taken place was clearly a factor to be taken into account. The evidence before the Tribunal confirms that there is a risk that rape victims are effectively abandoned by their husbands and ostracised by their local community. This is an emotional and harsh response generating more pain and suffering for the victim but there is no doubt that there is a risk of such a reaction.

10. It is conceded that removal would have been in accordance with the law and would pursue a legitimate aim. The issue is whether removal would be proportionate to that legitimate aim. The Adjudicator was satisfied that removal would not be proportionate. He cited from the UNHCR Position Paper 2001 where states are urged to continue to provide international protection for Kosovans who have suffered particularly serious and traumatising experiences. The paper specifically identifies victims of sexual violence and comments that survivors of this crime will remain traumatised, including those who because of the sexual violence will be stigmatised and ostracised by the community to which they would be expected to return.

11. Mr Holmes submitted that there were facilities in Kosovo where rape victims could receive help. He referred to the Tribunal determination in Qomile Gashi [2002] UKIAT 01053 where the Tribunal held on the facts of that particular case that removal would be proportionate and referred to the availability of a centre for the rehabilitation of torture victims and for the protection of women and children. Both these centres are in Pristina and one has a self-help group for rape survivors. In that case the Tribunal commented that there was no evidence to support any contention that the Applicant would in fact be ostracised by her husband or family.

12. In general terms the Tribunal are satisfied that adequate facilities are available in Kosovo and we accept that the Kosovo Information Project Report accurately describes the mental health programmes available in Kosovo. To this extent Mr Holmes’ submissions are correct but it is the Applicant’s personal circumstances which must be considered in the light of all the evidence. She is a relatively young woman. She married in February 2000 and had a daughter in February 2001. Another child is on the way. She is married to a Kosovan Albanian and the Tribunal accepts that she is genuinely fearful that, if her husband becomes aware of what happened to her in Kosovo, he will leave her. She clearly fears being abandoned and possibly her children taken away from her were this to come to light after she returns to Kosovo. It could be argued that her husband might react in this way even if he discovers the facts while the family are in the United Kingdom. If the Applicant continues to seek counselling and help, it may be that at some stage this does come to light but nonetheless it does seem to the Tribunal that it is far less likely that the Applicant’s husband will ostracise her if he is living in the United Kingdom as opposed to being in Kosovo, within a society where the cultural norms may be very different.

13. Be that as it may, although the facts in B were arguably stronger as there were extensive medical and psychological reports, in our view it is clear that the Adjudicator took the view that there was a real risk of this Applicant being deeply traumatised and being in need of further counselling or treatment. This factor must be taken with the Adjudicator’s concerns about the stigma attaching to rape victims. He referred to paragraph 19 dealing with this issue in M, and the possible effect on this young family of a return to Kosovo. The Tribunal are satisfied that his finding that removal would not be proportionate to a legitimate aim was properly open to him. The assessment of this issue is essentially one of fact, which the Adjudicator is in the best position to assess as he has had the advantage of hearing oral evidence and evaluating it in the light of all the evidence before him. The Tribunal is not satisfied that there is any proper basis for disturbing his findings in this respect.

14. In these circumstances the Secretary of State's appeal is dismissed.