Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01118/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination and Reasons Promulgated
On Monday 4 July 2016
On Wednesday 3 August 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MS SANELA OSMANOVIC
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Chirico, Counsel
For the Respondent: Mr Jarvis, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. I find that no particular issues arise on the facts of this case that give rise to the need for a direction. For this reason no anonymity direction is made.

DECISION AND REASONS

Background

1. This matter comes before me for the re-making of a decision on the Appellant's appeal in relation to certain specified issues (which I set out below). This follows the decision of the Tribunal (UTJ Storey and Smith) setting aside in part the decision of First-tier Tribunal Judges Vaudin D'Imecourt and SJ Clarke promulgated on 18 May 2015. That decision is preserved save in relation to the discrete issues in relation to which an error of law was found to exist (see [11] below). Before turning to the issues which remain to be determined I set out briefly the factual background to this case so far as necessary for the determination of those issues.
2. The Appellant is of Roma ethnicity. Her country of origin and nationality are unclear and, in respect of nationality at least, that is one of the issues which I will have to consider. She came to the UK with her sister, Barbara, in January 2000, the remainder of her family (father, mother and seven siblings) having arrived some months earlier. The family claimed asylum in the UK but the Appellant did not remain part of that asylum application because her parents disapproved of her lifestyle and choice of partners (who were non Roma).
3. The Appellant is (or was) a drug user of heroin and crack cocaine. It is unclear whether she remains a user. She speaks in her most recent statement (unsigned and undated but made in about November 2015) of having taken drugs "in the past" but there is no direct evidence that she has ceased to use drugs and even if she is not using Class A drugs, she is almost certainly still addicted and receiving methadone. I say that because on previous occasions when she has ceased to use drugs, for example during her imprisonment, she has been undergoing rehabilitation involving a methadone programme.
4. One of the difficulties in this case is establishing the current factual position as the Appellant has all but disengaged from the appeal. Mr Chirico who appeared before me explained that his solicitors have encountered difficulties in obtaining instructions from the Appellant since the beginning of this year. She has however contacted them on a few occasions by telephone and from the exchanges on those occasions they are satisfied that they and Mr Chirico are still instructed to pursue this appeal.
5. Some of the other relevant facts appear from the previous decisions of the Tribunal(s) and from earlier statements of the Appellant and what she has told medical professionals on the few occasions she has been examined for the purposes of reports before the Tribunal.
6. The Appellant has been in a number of relationships in the past. It appears that she was contracted into an arranged marriage at a very young age and bore a child before she came to the UK. There is mention of that and of the child being in Germany. She no longer has contact with that partner or child. She then became involved with an older man of Serbian origin who it seems first introduced her to drugs. She had a daughter from that relationship. The daughter is now adopted. The Appellant has very limited contact which is not on a face to face basis. She then entered into a relationship with another man who it appears may have used her as a way of obtaining a right to remain in the UK. They too have a child. The child lives with his father. It does not appear that the Appellant has contact with that child. Finally, the Appellant has another child by a partner who also did not have the right to remain in the UK and has returned or been returned to his home country. That child too is adopted. It does not appear that the Appellant has contact with that child; any contact in that case is also likely to be very limited indirect contact (if any) in light of the adoption. That background is relevant to the issue of how the Appellant copes with traumatic events in her past and also to the question of what support (if any) she has in the UK presently.
7. The Appellant has also experienced other traumatic episodes namely the death of one brother before she came to the UK. It appears that he died or was killed during the war in Kosovo. Another brother was killed in the UK in a car crash.
8. The Appellant has committed multiple offences since being in the UK which have led to deportation action. On 23 April 2004, the Appellant was convicted of four counts of theft and sentenced to two years' in prison for each to run concurrently. Following the conviction, the Appellant was issued with notice of liability to deportation. Her appeal was dismissed by the Tribunal in 2007 and a deportation order was signed on 12 March 2008.
9. Submissions were then made that the deportation order should be revoked. Those were rejected on 13 January 2011 leading to a further appeal. This appeal was allowed to a limited extent on the basis that the Respondent should consider section 55 Borders, Citizenship and Immigration Act 2009 because of her contact at that time with at least one of her children. That led to the decision which is challenged in this appeal. That appeal was dismissed as I have already noted in a decision promulgated on 18 May 2015.
10. It is noted in that decision that the Appellant received twenty-five convictions for fifty-one offences resulting in twelve custodial sentences, the first conviction being on 1 February 2001. Although the Appellant did contest some of the details of the offending, that finding (which is not contested) shows a continuing pattern of offending. According to the Respondent, she has committed further offences since her release from immigration detention. I do not need to deal with those. Suffice it to say, and it is not disputed, she is a long term offender who continues to offend. Mr Chirico submitted and I accept that most if not all of her offences are connected with her substance abuse and the need for money. That though does not excuse them.

Issues to be determined

11. The issues in relation to which an error of law was found in the First-tier Tribunal's decision were set out in the Tribunal's error of law decision as follows:-

"[15] Mr Chirico indicated that the respondent was prepared to concede that there was an error of law in relation to grounds 3 and 4 concerning the approach to the appellant's mental health and risk to the appellant in this regard on the basis of discriminatory exclusion from medical care (if returned to Kosovo). These grounds are also linked to ground 5 which challenges the approach to risk of discrimination if the appellant is returned to Serbia. Mr Chirico indicated that the respondent also conceded that this element of the alleged risk in Serbia needed to be revisited if grounds 3 and 4 were also made out.
[16] Mr Jarvis indicated that the respondent made this concession on the basis that the Tribunal stopped short of considering the entirety of the risk on return by hypothesising that the risks would arise at the point of return and not later and on this basis could be avoided by the fact that the appellant would be handed over to the authorities in whichever country she would be returned to so that she would have immediate access to the medical services and would not have to seek help on her own. The appellant's case is that she would be destitute and therefore unable to access services and that this, coupled with the risk of discriminatory access to services would mean that her mental health issues would remain untreated. Mr Jarvis accepted therefore that the error of law which was conceded was also material.
[17] Having considered the parties' submissions, we agree that there is an error of law in relation to grounds 3, 4 and 5 (to the extent that the latter relates to risk of discrimination in access to services in Serbia). We do not consider that there is an error of law in the Tribunal's findings in relation to risk of violence on return to Serbia.
??..
[22] We are satisfied therefore that the Decision involved the making of errors of law in the consideration of the effect on the appellant's mental health, risk of suicide and self-harm in consequence of her deportation. We set aside the Decision in relation to that issue. That issue will be reconsidered at a resumed hearing before this Tribunal. That issue will entail a consideration of the appellant's human rights and there will therefore be a rehearing of the appellant's human rights claims. The issue of to where the appellant is returned and the risks in that destination in relation to access to medical services will also need to be reconsidered."

12. As a result of efforts, particularly on the part of the Respondent (to which I refer below), it has been possible to confine the country of destination to Serbia. As was accepted by both parties, that is now the hypothetical destination of removal. However, I still need to deal with the evidence of nationality as that is relevant to what is likely to happen to the Appellant following removal.
13. Mr Chirico indicated during the hearing that a number of issues raised in his skeleton argument were no longer pursued. He firstly conceded that he could not say anything about Article 8 ECHR. The lack of evidence from the Appellant would, I accept, make this very difficult to argue. There is no evidence that she is in contact with any of her children other than on a very limited basis which is not face to face in any event. Nor is she currently in a relationship. Although she has apparently made some contact with her family members in the UK, there is no evidence of any resumed relationship with them. I will also need to deal with the position of some of those family members in what follows. I note also that given the Appellant's past offending and current risk of reoffending there would be a significant public interest to be weighed in the balance.
14. There is a suggestion in Mr Chirico's skeleton argument that the Appellant was seeking to reopen the question of whether she would be at risk of violence on return, particularly in light of a further letter from Professor Acton, a specialist in Roma groups, who says that the Appellant is in fact of Chergashe Roma ethnicity and therefore in effect a minority of a minority. However, Mr Chirico accepted that the Tribunal's error of law decision of 29 July 2015 had found there to be no error of law in relation to the First-tier Tribunal's findings about the risk of violence in Serbia (see [9] of the Upper Tribunal's decision). He did not seek to reopen the Tribunal's finding.
15. Mr Chirico's skeleton argument also raised an issue concerning the risk of trafficking which is raised as a possibility by Professor Acton in his letter. However, Mr Chirico accepted that Professor Acton is an expert in relation to Roma groups and not in relation to trafficking. He also accepted that the Appellant has not claimed nor has it been claimed on her behalf that she will be at risk of being forced into prostitution as a result of her position if returned to Serbia. She has, as Mr Jarvis put it, lived on the fringes of society in the UK and it is not suggested that she has been forced into prostitution here. Indeed, I note that Dr Maloney on whose report reliance is placed expressly asked her about this and was told by the Appellant that although she had friends who had turned to prostitution to fund their drug habit she had never done so.
16. I turn then to consider the issues which arise for determination.

Nationality

17. Although it appeared from Mr Chirico's and Mr Jarvis' skeleton arguments that there was a dispute surrounding the burden and standard of proof in relation to this issue, that dispute fell away in the course of the hearing. Mr Chirico accepted that the standard of proof in relation to whether the Appellant is of a particular nationality is balance of probabilities. He also accepted that the Respondent's evidence as to the Appellant's nationality, whilst suffering from a number of defects, does meet the evidential burden of showing that the Appellant is a national of Serbia. He also accepted that the burden then shifts to the Appellant if she asserts that she would not be recognised as a national of Serbia following return to show that to the standard of a real risk. That was accepted by Mr Jarvis.
18. There are therefore two distinct issues to be considered. The first concerns whether, on a balance of probabilities, the Appellant is Serbian or at least that the authorities would accept her as such for the purposes of return. The second is whether, if she were returned there, there is a real risk that the authorities in Serbia would not accept her as such, or that there would be a time delay in her obtaining the appropriate recognition. Mr Chirico submits that it is this inability to show that she is Serbian which is the foundation of the Appellant's claim that she would be unable to access services and/or support for her mental health problems and any self-harm/suicide risk which might be caused by removal and would therefore lead to an Article 3 breach.
19. The Respondent's evidence that the Appellant or her family is from Serbia derives from enquiries which the Respondent was directed to make of the Appellant's family to attempt to narrow the number of destination countries at issue. The Appellant's family with the exception of the Appellant had apparently all been granted indefinite leave, it appears as part of the Family ILR exercise. However, as a result of those enquiries, it appears that a number of the Appellant's siblings are now facing deportation as a result of criminal convictions in the UK and the Respondent is considering action to deprive the Appellant's father of his ILR as a result of criminal convictions abroad. That in turn has led to further information coming to light about what nationality authorities of various countries consider the Appellant's father to be and what has been said by family members in their deportation proceedings.
20. That evidence is set out in two statements from Andy Tyrer who is a team leader at the Criminal Casework Investigations Team in Liverpool. I do not need to set his evidence out in full. In short summary, the Appellant's father's fingerprints have been matched by the Croatian authorities as belonging to an individual with a different name who was deported from Croatia to Serbia in 1978. He was also convicted by the Italian authorities and in Belgium as a Serb, it appears in that same identity. Mr Tyrer also noted that the Appellant's family members in their various appeals have not disputed that they are Serbian.
21. Mr Chirico made clear that he did not challenge the veracity of Mr Tyrer's statements. He pointed however to the limitation of that evidence. It was first said that since, in 1978, Serbia was part of the Federal People's Republic of Yugoslavia ("FRY") removal from Croatia to Serbia did not make any sense. He accepted though in light of what was said in Mr Tyrer's second statement and the statement of Mr Serrao (also of Criminal Casework Investigations) based on information from staff at the Croatian embassy that deportation between republics might well have taken place. He submitted though that this did not show that the Appellant's father was deported from Croatia to Serbia based on an acceptance by either republic that he is a national of that republic. Deportation is a loose term. I pointed out also that it is sometimes wrongly used to denote what is in fact extradition so that the Appellant's father might have been removed to Serbia on the basis of a crime committed there rather than nationality. Mr Chirico also submitted that little weight can be placed on conviction in other European states who are unlikely to have investigated nationality unless they were seeking to remove. There is no evidence that this was the case.
22. I also accept, as does Mr Tyrer, in his second statement that what the Appellant's family members and even her father say about their nationality is not conclusive. They may see themselves as nationals of a particular place having lived there or come to the UK from there but that does not mean that they would be recognised as nationals. I note however that, albeit giving a different identity and place of birth, the Appellant's father has always contended that he is Serbian. It is not simply a statement that he is Serbian but a specific statement that he was born in Goricki Venac, Smederevo. The Croatian authorities informed the Respondent not simply that they had deported the Appellant's father to Serbia but that they had his name and date of birth and, more importantly, his place of birth being Malo Crnice, Pozarevac. The Appellant has not disputed that both Smederevo and Pozarevac are in Serbia.
23. I therefore find that, on the basis of the Respondent's evidence, and on the balance of probabilities, the Appellant's father is from Serbia. The Respondent's decision dated 6 June 2014 considered the position in relation to the Appellant's nationality if her father was born in Serbia (see [60] of that letter). The Respondent noted that citizenship would be acquired by descent if the child was born in Serbia and one of the child's parents is Serbian. Her father's nationality is therefore not necessarily conclusive of the issue. I note also that efforts by the Respondent to document one of the Appellant's sisters for deportation to Serbia have so far failed. However, since the Appellant has not been able to offer any evidence which contradicts that produced by the Respondent (on the basis that she says she does not know where she was born and did not live in one place during her childhood), I accept that the Respondent has established on the balance of probabilities that she can be deported to Serbia.
24. The second issue is the more contentious. That is whether there is a real risk that the Serbian authorities will not accept the Appellant as Serbian following return and whether, as a result, she will be denied access to services. That requires me to consider how services are accessed and what documents are required to prove eligibility for those services.
25. As a prior issue, though, there was some discussion about the process which would lead up to deportation. Mr Chirico accepted that, since the Appellant does not have a passport or other travel document, she would be deported on an emergency travel document ("ETD"). He accepted that this would be prima facie evidence that the Serbian authorities accept that the Appellant is Serbian or at the very least is entitled to live in Serbia. As Mr Jarvis submitted and I accept, it would make little sense for the Serbian authorities to permit a person to return to that country in the expectation that after arrival, the person would have to go underground due to a lack of entitlement to live openly as a citizen of that country. That is the more so where the background evidence shows that the Serbian authorities are seeking to resolve problems caused by the lack of documentation and not exacerbate them.
26. True it is that the Respondent has not made any efforts as yet to document the Appellant as Serbian or obtain an ETD for her. Mr Chirico made some limited criticism of her failure to do so. However, in circumstances where the Appellant has been involved in an appellate process and given the time limited nature of ETDs, I do not criticise the Respondent for not starting that process. I also observe that the Appellant herself could make efforts to establish her entitlement. Given her lack of engagement with other authorities, as well as her unwillingness to return, her failure to do so is perhaps unsurprising.
27. I note that the Appellant's solicitor, Ms Al-Ghabra, has made some enquiries of an informal nature of the Serbian embassy. Her enquiry and the response of the official to whom she spoke is set out in her statement dated 13 April 2015 as follows:-
"[4] I enquired how we could go about confirming whether Ms Osmanovic is a Serbian national.
[5] I was informed that the embassy does not hold any registers and that the embassy would need to speak to the Interior Ministry. She explained that there are no central registers.
[6] She further informed me that to evidence citizenship a person will need to show their birth certificate or at least to be able to state clearly where they were born so that the municipality in Serbia would be contacted and issue a birth certificate.
[7] She explained that if this information is not available then they would not be able to help and the person will not be able to apply for a passport as a Serbian national."
28. It is not entirely clear what status the official had (she is said to be a person in the Consular Section). The response is also very general and it is not clear whether the same process would apply to the obtaining of an ETD as opposed to a passport. If the Appellant is required to give her place and date of birth in order to obtain an ETD, the Respondent may well face an uphill struggle to have the Appellant documented as the Appellant says she does not know those things. However, if that is the process for the obtaining of an ETD, then if the Appellant were able to persuade the Serbian authorities that she is Serbian it would be only on the basis that the authorities, prior to removal, accept that she was born there and the relevant municipality would provide a birth certificate. On that basis, the Appellant would not be undocumented on arrival and would be able to access services following her return. In case the process is not the same for an ETD though, I also consider the position on the basis that she would return without a birth certificate in the section below dealing with access to services and discrimination in access.

The Appellant's mental health, risk of suicide and self harm

29. I turn then to consider the Appellant's mental health and the impact on that of deportation as well as on the risk of suicide and self-harm. As noted at [11] above, this is the crux of the issue in relation to which the error of law was found. Before turning to the facts of the Appellant's case in this regard, I deal with a dispute in relation to the law applicable to this sort of case.
30. It was common ground between Mr Chirico and Mr Jarvis that the considerations relevant to the risk of suicide are those laid down in J v Secretary of State for the Home Department [2005] EWCA Civ 629. That case laid out the test by reference to six considerations. Ultimately, though, the question to be resolved is that set out in Soering namely whether the removal will give rise to a real risk of a breach of Article 3 ECHR, here a real risk that the Appellant will commit suicide.
31. In relation to the impact on the Appellant's mental health more generally, Mr Jarvis contended that the now well-known case law culminating in the case of GS and others v Secretary of State for the Home Department [2015] EWCA Civ 40 applies. In that context, the availability and potential cost of treatment in the receiving country is of limited relevance, the threshold for impact on the medical condition is extremely high and it is only in extreme cases such as D v UK that a breach will likely be found.
32. Mr Chirico contends that the case of EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12 is the relevant one where the harm feared is a combination of lack of adequate reception mechanisms in the reception country combined with personal vulnerability. Mr Jarvis says that this is not applicable. EM (Eritrea) and the cases leading up to that judgment are concerned with returns under the Dublin Regulation and also have as part of their context the Reception Directive which has no relevance to a non EU country.
33. The divergence between the case law of "pure" medical cases and cases such as Sufi and Elmi v United Kingdom 54 EHRR 209 and MSS v Belgium and Greece 53 EHRR 28 is dealt with by Laws LJ in GS at [53] to [61] and explained at [62]. He described those latter cases as a departure from the paradigm case which is justified by some exceptional factor. He went on to say that:-
"The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant's plight."
The distinction between the two lines of case law is also considered by Burnett LJ in Secretary of State for the Home Department v Said [2016] EWCA Civ 442 who, having considered MSS and Sufi and Elmi said at [18]:-
"These cases demonstrate that to succeed in resisting removal on article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases."
[my emphasis]
34. Applying that to the instant case, Mr Chirico may be right in his submission that, if the Appellant's inability to access the treatment she needs is due to action of the receiving state (here Serbia), then the EM (Eritrea) line of case law applies so that it is not necessary for the Appellant to evidence the very high threshold in D and N. That submission though has to be considered in the context of the facts of the case. I therefore turn to consider the evidence as to the Appellant's current mental health condition and the impact of deportation both on that and as a trigger for a risk of suicide and self-harm.
35. Both Mr Chirico and Mr Jarvis submitted that the relevant report for me to consider is that of Dr Maloney dated 17 March 2015. As Mr Chirico noted, it had been hoped that an updated medical report would be produced for this hearing. However, due to the lack of engagement by the Appellant this was not possible. He accepted therefore that the report of Dr Maloney is somewhat dated. Mr Jarvis also submitted that it is somewhat limited as it appears to be based on one interview. However, both parties accepted that this report provides a balanced view of the Appellant's mental health condition. I do not need to set out the content of that report in detail as the main elements are set out at [48] to [53] of the First-tier Tribunal's decision. I do though need to set out some of the conclusions which Dr Maloney reaches in order to consider what the impact of deportation is likely to be on the Appellant.
36. Dr Maloney notes that the Appellant is clearly drug-addicted. At the time of his report, he noted that she was on a methadone programme. He noted the Appellant's concern at [5.9] that if returned to another country she would not be able to access methadone and would have to carry out a robbery in order to buy it.
37. Dr Maloney does not consider that the Appellant suffers from depression. He considers that she has a personality disorder rather than a mood disorder. He categorises it as an "Emotionally Unstable Personality Disorder" or "Borderline Personality Disorder". He also offers an alternative way of describing her difficulties as "complex PTSD" which he assesses has been present since she was a teenager. He considers it possible that intellectual impairment may be playing a significant part in her difficulties but says that this would require more investigation and that there was no evidence that it was impacting on her mental capacity at that time [11.22].
38. In terms of treatment, this is not a typical case of prescription of medication. Indeed, Dr Maloney does not advocate drug treatment in light of the Appellant's drug dependency. He also notes that in order to benefit from treatment she will need to address her substance dependence and that she was not motivated to abstain from drug use. He noted that she will tend to relapse into substance use at "times of stress and adversity". In terms of treatment, Dr Maloney notes that treatment of those with the Appellant's condition is "demanding and problematic" for health services and would require team working. He does not consider that the Appellant would benefit from individual counselling sessions as she would be unable to cope with her feelings between sessions. He notes that the Appellant does not appear to have had contact with such services. I note that there is no evidence that she has had such treatment since.
39. Dr Maloney advocates the need during treatment of a "safe, secure social support network with supportive intimate relationships" and says that in the absence of that support network a person would be more vulnerable to their own emotional instability.
40. Dr Maloney notes the scarring from what he describes as long term self-cutting (see also [8.20-8.24] of the report). He also notes that the Appellant "reports past and on-going suicidal ideation". That appears to be based on what is said at [5.5-5.6] of the report as follows:-
"[5.5] Asked if she ever wanted to die she said: 'Sometimes, it depends what mood I'm in'. She acknowledged that her mood changes rapidly: 'Sometimes happy, sometimes sad?'. She gets angry or upset easily.
[5.6] Asked if she had ever actually tried to kill herself, she said: 'Outside by a train, my boyfriend took me away?here when I caught the TB I cut my hand, they used to see me every five minutes' [presumably referring to an ACDT-type observation regime]. She complained matter-of-factly about not being allowed to have sharp things, so she could not cut herself deeply. She then said 'I wish I was dead. I wish I didn't have this pain. I have a really horrible time. My child is gone. They keep me in a cage like an animal'. She complained again about having been told that she had not family in the UK, although she had a lot of family, and her children were here, and she would like the chance to see them, which she would not have if she were removed. She said: 'This is a slow death. Maybe I deserve this, I don't know'"
41. I note also from the report of Dr Pourgourides which I have read but to which I do not need to have regard in light of the submissions, that there is reference to an overdose in the past. However, although this followed the loss of her daughter who is adopted, this is described as "accidental" and arising from her use of heroin to deal with her distress. There is also reference to the Appellant refusing food and fluid during one period of imprisonment but there is some doubt expressed about whether the Appellant was in fact eating secretly.
42. Dr Maloney deals with the risk of suicide in more detail at [12] of his report. As Mr Jarvis observed, the report is cautious and contains a number of caveats about the inability to precisely assess risk. At Appendix 4 of the report, Dr Maloney lists twenty-eight factors which are risk factors. He also lists four "protective" factors and eight "precipitating factors". At [12.7] he considers that the Appellant has the following risk factors:-
Previous suicide attempts/threats
Consideration of an immediately lethal method - jumping under a train
Anxiety/agitation
Anger
Impulsivity
Rigid thinking
Poor problem skills
Substance misuse
Loss and separations
Social isolation and lack of support
History of physical abuse
Chronic medical illness (chronic back pain, severe obesity and its complications)
Age 15-35
Unemployment"
43. Dr Maloney goes on to consider the protection factor present at the time of his report namely concern for her children. At the time of his report, the Appellant was seeking to prevent the adoption of her youngest child. He notes though that if her youngest child were nonetheless to be adopted "this might equally provide a potent precipitating factor for self-harm or suicide attempts, rather than the existence of the child being in any way protective".
44. Having noted again the Appellant's long history of self-harm and noting that those who self-harm are fifty to one hundred times more likely to die by suicide in the twelve month period after an episode than those who do not self-harm, Dr Maloney concludes as follows:
"[12.11]Ms Osmanovic thus has many cumulative risk factors for suicide. She continues to report some suicidal ideation and also a wish to cut herself. She complains that she does not have the opportunity to do this whilst in prison. Her risk is thus chronically moderate to high, in the absence of any specific precipitation factors. Should precipitating factors come into play, her risk will be high.
[12.12] Thus, if removal to one of the countries of the FDRY was to appear inevitable and/or processes of removal began, her risk will be high, and she would need close supervision and monitoring."
45. At [13] of his report, Dr Maloney considers the possible effects of enforced return. Mr Jarvis accepted that, although suicide and self-harm are not mentioned in that section separately, those risks are incorporated at [13.1] by reference back to [12.12] (cited above). Dr Maloney goes on however to note that if left unsupported in the country of return without "considerable specialist support" she would be likely to relapse into drug addiction and criminal behaviour. He suggests that she would manage her feelings but in "well-established dysfunctional ways, using drugs, stealing, and being dangerously self-destructive". He points to the lack of ability to reunite with her family who would be in the UK and inability to maintain contact with her children. However, the Appellant does not have contact with her children now and only intermittent contact with her family (who might also be deported at some stage from the UK; although I accept Mr Chirico's submission that the position presently is too speculative to be taken into account and in any event her family are unlikely to assist given previous history).
46. Dr Maloney concludes at [13.6]:-
"She is likely to react to distress with habitual dysfunctional disturbed and self- destructive behaviours: it is highly unlikely that she would have the presence of mind and stability of circumstances to make her way effectively. She is unlikely to be able to form non-abusive and supportive relationships with others. She is unlikely to find or keep gainful employment and thus be able to support and care for herself. She is unlikely to be able to proactively access treatment of the required level of expertise, even should it be available."
47. I asked Mr Chirico during the hearing what relevance the Appellant's reluctance to access treatment and support in the UK should have on my consideration of the impact on return. He submitted that there is limited evidence whether the Appellant does or does not access treatment. For example, apparently following her release from immigration detention on bail, she was supported by the Red Cross and Healthcare services. She has also had some support certainly in relation to her deportation matter from her solicitors who appear to have worked tirelessly on her behalf notwithstanding her own lack of interest.
48. However, Mr Chirico did accept that the evidence I have is that the Appellant is surviving, that there is no evidence of self-harm in the last six months and no evidence that the Appellant has received support in the last six months. He frankly accepted that if the Appellant's position were equivalent in Serbia to that in the UK, he could not show that there would be a real risk sufficient to breach Article 3. However, he submitted that I have to consider whether the risk is increased by deportation both in the context of need for support which on her case she would be unable to access and the impact of the deportation itself, particularly in the context of the increased risk of suicide.
49. I give weight to Dr Maloney's report. It is fair and balanced. Although he had limited dealings with the Appellant and appears not to have had access to all her medical records, it is a very full report.
50. Dr Maloney's prognosis for what would happen to the Appellant if she remains in the UK, though, is not optimistic. In terms of treatment, he notes that until her substance dependence is addressed, treatment for her personality disorder "will be difficult, if not impossible". As he notes, treatment for substance dependence requires motivation of the Appellant to abstain from drug use. He notes that, at least at the time of her report, she does not appear to have that motivation. It appears from the Appellant's latest statement that she may still be on a methadone programme but there is no updated medical evidence to show that she has recovered sufficiently from her drug habit to engage with treatment for her mental health condition. As such, it appears likely from what Dr Maloney says, that if she were permitted to remain in the UK, she would not be able to be treated for her disorder.
51. Even if she were free of her addiction, Dr Maloney makes clear that treatment depends on the Appellant having a "safe, secure social support network" and engagement on the part of the Appellant with a continuous therapy programme. He says that her best chance of success would be with support from her family. However, the Appellant's record on engagement is not good, as shown by her withdrawal from participation in this appeal. Furthermore, there appears to be an unwillingness on both sides by the Appellant and her family to resume contact. She is therefore very unlikely to get the support she needs to engage with treatment.
52. I turn then to the risk of suicide. Although it is the case that Dr Maloney sets the risk of suicide to be high if the Appellant is threatened with return to Serbia, that opinion is, as Mr Jarvis submitted, "cautious". Dr Maloney makes the point that it is very difficult to assess risk of suicide and the most that can be done is to consider the risk by the application of various factors which is what he does. There are however two points to be made about his assessment of risk.
53. The first is that Dr Maloney considers that the risk of suicide may increase with precipitative factors which included at that stage the possibility that the Appellant would be deprived of contact with her youngest child. That has now occurred. However, there is no evidence that this led to any attempt at suicide. Furthermore, the evidence is that on previous occasions when the Appellant has had to deal with traumatic events, her more usual response is to resort to drugs. This occurred for example after the 2011 hearing of her appeal (see [3] of her statement for the hearing in 2015). That is not inconsistent with Dr Maloney's evidence at [13.3] that the more likely outcome if the Appellant is returned to Serbia is that she will return to coping by "using drugs, stealing and being dangerously self-destructive. That is no different to the way in which she has reacted to traumatic events whilst in the UK. As Mr Jarvis points out, the Appellant has had more than her fair share of traumatic events in her life, including the death of two of her siblings and the taking away of all her children. There is no evidence that she has attempted suicide on any of those occasions. There is evidence that she copes by returning to her drug addiction and may also self-harm. Whilst there is evidence that the Appellant self-harms by cutting herself, the evidence is that this has left her with scarring but there is no evidence that the problem has been dealt with by medical intervention whilst she has been in the UK.
54. The second point to consider is what Dr Maloney actually says about the risk of suicide and when that might occur. Although at [13.1] he incorporates what is said previously about the risk of suicide into his analysis of the possible effects of enforced return, he does so by reference to the risk on the "prospect" of that return. That is consistent with what is said at [12.12] that it is at the stage when removal appeared inevitable or the processes of removal began that the risk would be high. That is also consistent both with his comment about the need for close supervision and monitoring and with what is said at [13.2] onwards about the more likely outcome of the removal itself and post removal consequences being a return to the Appellant's past (and possibly also current) lifestyle of taking drugs and offending.
55. Return to Serbia therefore would not place the Appellant into any different position than she is now in relation to treatment for her mental health problems. Unless and until she ceases to be addicted to drugs and engages with a continuous course of therapy which it appears is not widely available even in the UK, her prognosis is poor.
56. The Appellant's position on return to Serbia in terms of treatment for her mental health issues is therefore largely equivalent to that in the UK unless it can be said that removal will deprive her of the opportunity for treatment in Serbia which I therefore now turn to consider.

Access to services in Serbia

57. In my consideration of the availability of treatment in Serbia and the Appellant's access to that, I have regard to all of the background material contained in the Appellant's and Respondent's bundles and in particular to that to which I was referred in the skeleton arguments and in the course of the hearing.
58. I start by considering the position of the Appellant as a Roma in Serbia but also as a woman with her additional vulnerabilities as evidenced by the medical report to which I have referred above. There is one additional point to which I also need to make reference and that is the evidence that the Appellant is in fact from a minority ethnicity within Roma, known as the Serbaya Kalderasha or Chergashe Roma. This evidence is contained in the report of Professor Acton dated 27 April 2011 and his recent "report" dated 14 June 2016. Professor Acton is a retired Emeritus Professor of Romani Studies at the University of Greenwich. He formed the opinion that the Appellant is from this group in his 2011 report. At that time, he was asked to consider a Sprakab report relied upon by the Respondent which was said to show that the Appellant is from Bosnia. As such, that earlier report dealt with the risk to the Appellant on that account if she were to be returned to Bosnia. That report is now therefore largely irrelevant except in relation to Professor Acton's reasoning that the Appellant belongs to this particular "minority within a minority".
59. Mr Jarvis criticised the more recent report which is in the form of a letter on the basis that the Professor has not recognised or recorded his obligations as an expert witness. However, I note that Professor Acton has referred back to his report from 2011 and it is there noted that he recognises his obligations to the Tribunal. Mr Chirico also makes the point that Professor Acton prepared the report on a pro-bono basis and should not therefore be criticised for the fact that it is short and unsourced. I have regard to Professor Acton's report and more recent letter and give those documents the weight due to them given Professor Acton's obvious expertise.
60. Professor Acton recognises in the 2016 document that the Appellant will be safer in Serbia than in Bosnia. He accepts that Serbia is not a country of mass Roma emigration and that it has one of the better records of Balkan countries on Roma rights. His concern appears to be that the Appellant as a Chergashe Roma would not be accepted as a Serbian Roma and would be unwelcome within that community. However, I bear in mind that the Appellant does not appear to associate with the Roma community or be supported by them in the UK - indeed part of the reason why her family appear to have ostracised her is due to her relationships with non Roma men. As such, the fact that the Appellant is from this sub-group (if indeed she is) does not add to the risk to her on return as a Romani woman. I do not understand Professor Acton to be saying that the Chergashe Roma are recognised as a distinct group other than by the Roma community and certainly the other background evidence which is before me does not single them out as being a separate group.
61. Mr Chirico did not seek to rely on what Professor Acton says about the risk of trafficking to the Appellant as I have already noted at [15] above. I also cannot give weight to what Professor Acton says at [6] of the latest report about the reputation of the Appellant's family. That is said to be based on "rumours" and is unsourced. Furthermore, the same point arises. Professor Acton's view is based on the Appellant being recognised as a member of this particular family by the Roma community itself and not by those outside that community.
62. I have noted at [28] above, that the likelihood is that the Appellant will have some form of documentation if the Serbian authorities are prepared to issue her with an ETD. As such, she will not fall into the category of undocumented Roma who find it difficult for that reason to access services. In case I am wrong about that though, I deal with the evidence about obtaining documentation and the efforts made by the Serbian authorities to deal with the problems of a lack of documentation.
63. A report dated December 2015 prepared by Praxis (a NGO based in Belgrade) in conjunction with UNHCR points to continuing difficulties in access to services for those without documents in Serbia but also notes improvements in the system for obtaining documents. Although there continue to be delays and inconsistent implementation of the applicable legislation, I note that Praxis is able to assist those seeking to register their birth, acquire citizenship and/or register permanent residence. It does so on a non-paying basis. I note also that the report suggests that the procedures can be begun whilst the person concerned is outside Serbia and there appears to be no reason in principle why the Appellant could not approach Praxis from the UK prior to removal. I note also that it is possible for a person to register permanent or temporary residence in Serbia including by using the address of a social welfare centre. The background information in relation to the efforts of the Serbian authorities to document those who were previously "legally invisible" overall shows that the efforts have been largely successful.
64. A report of the World Health Organisation Regional Office for Europe published in September 2014 points to changes in the administrative and legislative hurdles introduced by the Serbian authorities in order that Roma could obtain health insurance to ensure their rights to healthcare. It is noted also in the European Roma Rights Centre ("ERRC") Serbia Country Profile 2011-12 that amendments to the regulations allowing Roma without registered residence and "legally invisible" persons to obtain health cards had been effective although it is also noted by reference to a Praxis report that the problem recurred in 2012. It is noted in the same report that in 2011 and 2012 seventy-five Roma Health Mediators coordinated by the Ministry of Health continued to work within local health institutions in fifty-nine cities and towns throughout Serbia.
65. Even if the Appellant does not have the necessary documents to access medical services immediately as a result of being documented by the Serbian authorities in the course of arranging her return, therefore, there is evidence to support the likelihood that she will be able to access healthcare via other mechanisms, if necessary with the assistance of NGOs such as Praxis. As I have also noted at [63] above, there is no reason in principle why she could not make contact with those groups before she is returned to attempt to regularise her status in advance if that is necessary.
66. I deal finally with the Appellant's case that she would be discriminated against in access to services as a Roma and doubly disadvantaged in that access as a Romani woman.
67. Roma in Serbia are officially recognised as a national minority. The protection of ethnic minority rights is described as a key principle in the Serbian Constitution. Serbia has also ratified the Council of Europe Framework Convention for the Protection of National Minorities and adopted laws to protect the rights of national minorities and to prohibit discrimination. It has specific laws on gender equality and prevention of discrimination as well as anti-discrimination provisions in education, labour, health and social security laws [ERRC Country Profile 2011-12]. However, as noted in that report there remains a problem as to the effectiveness of the law. In 2009, Serbia adopted a strategy for improvement of Roma status and a three year national plan for its implementation. A three year action plan was adopted in 2013 but is reported to have failed to identify priorities and suffered from lack of funding. Various bodies have been set up to deal specifically with the problems faced by Roma but complaints are made about lack of activity or mandate of those bodies. Although there are some areas of "affirmative action" identified those are said not to be sufficiently implemented.
68. The overall picture painted by that evidence is that there has been and continues to be discrimination against Roma in Serbia in the areas of employment, education, healthcare and housing. There continue to be sporadic incidents of hate speech, threats and attacks against Roma. Although there are laws prohibiting direct and indirect discrimination in employment on the basis of sex and race, it is noted that the government enforced these laws "with varying degrees of success" [USDS Serbia 2014]. I accept also that there is evidence within the background material showing some discrimination in particular against Romani women. The 2010 ERRC report notes at [3.1] that Romani women suffer from multiple discrimination on the basis of their gender and ethnicity and experience barriers in accessing equal education, healthcare, adequate housing and employment.
69. The European Commission's Serbia 2015 report notes that "Further sustained efforts are needed to improve the situation of Roma?"[1.2]. It notes at [2.4] that:
"The legislation and institutions needed to uphold international human rights law are in place. Legislation to protect minorities and cultural rights is also broadly in place. However, sustained efforts are needed to ensure effective and consistent implementation across the country. Shortcomings particularly affect the following areas:
?.
Promotion and protection of the rights of the most vulnerable and discriminated groups? has yet to be fully ensured. Hate-motivated offences need to be properly investigated, prosecuted and sanctioned.
Efforts to improve the difficult living conditions of Roma and to combat discrimination need to be strengthened. Government coordination and leadership of Roma integration policy needs to be further improved."
That same report notes also that Roma participation in the formal labour market remains low [5.19].
70. On the other hand, motivated no doubt by Serbia's desire to join the EU, efforts are being made by the central government authorities to deal with these issues. At [5.19] the report notes that "?the Office of the Commissioner for Protection of Equality continued to raise awareness and promote mechanisms for protection against discrimination". And at [p54] of the Report, credit is given to various state bodies which "continued to promote awareness-raising on human rights, tolerance and non-discrimination" (although it is also noted that the role of the Office for Human and Minority Rights needs to be strengthened). Generally, Serbia's non-discrimination legislation is said to be in line with European standards although some further alignment is needed [p.56]. Racial hatred and intolerance is prohibited in the criminal code [p.56]. The legal framework is in place for the protection of minorities [p.57] although it is noted that implementation across Serbia needs to be more consistent.
71. Specifically in relation to progress on Roma issues the report notes at [p.58]:
"The adoption of a new Roma strategy and action plan remains outstanding. The third Roma seminar, held in June, concluded that good progress had been made with regard to civil registration but in all other areas progress was slow and uneven. The subsequent registration of undocumented citizens led to a fall in the number of 'legally invisible persons'. Systemic solutions have been found to prevent future reoccurrence of such cases?.. the Roma continue to face difficult living conditions and discrimination in access to social protection, health, employment and adequate housing. Compliance with international standards on forced eviction and relocation still needs to be ensured. Legalisation of informal Roma settlements should be considered as a way of enabling them to be regulated and covered by urban planning. Additional teaching assistants and health mediators are needed to address the high school drop-out rate among Roma children and poor access to healthcare? "
72. The background evidence shows that the settlements in which Roma tend to live lack basic services such as water, electricity and sewage facilities. A report prepared by the University of Education Freiburg dated June 2015 and entitled "Discrimination of Roma in Serbia" ("Freiburg report) states at 2.5 that:
"?living conditions of Roma community are still difficult. Those living in the numerous informal settlements are subject to a high degree of discrimination in accessing welfare, health care, employment and adequate housing, including the basic hygienic living conditions, water and electricity?. Social housing is still at an early stage and, in the absence of a comprehensive legal framework and the slow implementation of the activities envisaged by the National Social Housing Strategy, it does not provide a satisfactory response to Roma housing problems. The previous experience in Belgrade shows that only about 10 per cent of social apartments are allocated to persons of Roma ethnicity. In addition, the NGO Praxis alerted to the problems of the beneficiaries of social housing in Belgrade, whose lease contracts were cancelled or not renewed because they were unable to pay the high rents and utility fees. Namely, they cannot exercise legal protection in the event their contracts are cancelled. The costs of social housing often exceed the total incomes of the entire household and the beneficiaries were not offered subsidies ie housing allowances. Furthermore, the beneficiaries do not have the status of protected energy customers and have to pay persona property tax on the apartments although they do merely use them and do not own them."
It is noted that the EU is providing funding for housing solutions for Roma families but it appeared that the provision would be less than that envisaged which would in any event only provide housing for a limited number of Roma families.
73. In the area of housing, the ERRC 2011-12 country profile notes that in 2009, Parliament passed a law on social housing. The report notes that those entitled to social housing are those without a home or one of adequate standard who cannot afford one. Persons belonging to vulnerable groups including Roma are said to have priority in the allocation of social housing. Again, though, the report points to problems with implementation.
74. As noted in the Freiburg report, although Roma are entitled to free healthcare, implementation is not always consistent and some healthcare professionals seek documentation where none is required. That same report refers to the problem of unemployment amongst Roma who tend to be low-skilled or unskilled. It notes that only a third of women are legally employed. Discrimination is a problem in terms of opportunities and the issue of documentation also reduces access. It notes that the black economy and collection and resale of waste continue to be the basis of existence of the majority of Roma families. The report does note however efforts by the Office of the Commissioner for the Protection of Equality to prevent and protect against discrimination.
75. Roma have been designated as a priority category for self-employment. This allows an unemployed person to receive a subsidy of 1600 euros. As with other initiatives however, it has been inadequately funded and inconsistently implemented [Freiburg report p23].
76. The picture painted by the background evidence is that central government attempts to improve Roma integration are inconsistently applied at a local level. Some positive examples emerge such as that of the Autonomous Province of Vojvodina which has established the Office for Inclusion of Roma in 2006. That handles the implementation and monitoring of the national strategy for integration of Roma and implements action plans, coordinates projects for integration and liaises with other bodies and local, national and international level to deal with integration. Its main objective is to assure inclusion of Roma. The Freiburg report sets out at page 24 the achievements which have been made in that area. Other provinces operate reasonably well but have a less proactive approach and as a result Roma continue to experience difficulties at local level.
77. The conclusion of the Freiburg report is:-
"?the state authorities have not properly agreed on who has responsibility for managing the integration and implementation of the Government Strategy for improving the situation of Roma. Some successes, such as the work of health mediators, work management integration in Vojvodina, or models of integration in individual local self-governments and, finally, systematic work on significant issues of recognition of personal status, cannot replace the need for solving problems of Roma citizens. They remain poor, often illiterate and unable to stand up for their rights and equal status."

78. It is clear from the background evidence overall that the Serbian authorities at both central and in most provinces at a local level are making determined efforts to promote the integration of Roma in the community. I noted at [32] Mr Chirico's submission that I need to consider whether there would be a breach of Article 3 occasioned by the Appellant's return based on the case law of MSS and EM and whether "reception conditions" in Serbia would breach Article 3. Mr Jarvis contends for the "pure medical case" approach in GS and others. I noted that I might accept Mr Chirico's submission if it could be shown that the Serbian authorities were responsible for the Appellant's inability to access healthcare and other services.
79. However, that is not what the evidence shows. Whilst implementation of the law surrounding access to healthcare may be inconsistent at a local level, the evidence is as I have noted that there is a commitment to providing healthcare to Roma and ensuring access to it in spite of difficulties with, for example, documentation. The examples where that is not happening locally are the exception and not the rule. Furthermore, if the Appellant is wrongfully denied access to services, there are organisations which can assist her to gain access to services to which she is entitled. The evidence of access to employment and housing similarly shows local difficulties. Such services may also be under-resourced and therefore not readily available to all those who need them.
80. However the evidence does not show a real risk that the Appellant will in general be denied access to services on a discriminatory basis. The Appellant may well find herself faced with difficulties in finding employment and housing. However, social housing is available and there is a system in place to find employment for those who seek it insofar as it is available. The evidence does not show that the Appellant faces a real risk of treatment on return which would breach her Article 3 rights.

Conclusions

81. The Appellant is a person who can be removed to Serbia subject to the ability of the Respondent to have her documented by the Serbian authorities. If the Serbian authorities accept her as a person entitled to return to Serbia, it is likely that she will be given some form of documentation to establish that. She could even apply for a passport if she so wished. In either event, it is likely that she will have a form of document which will show her entitlement to access services. Even if that does not occur, she is likely to be able to access services particularly health services by other means, such as registering for temporary residence using a social welfare office as her address, and will have available to her assistance from organisations such as the NGO Praxis. They are also likely to be able to assist her with access to other services.
82. The evidence does not therefore establish that the Appellant will be at a real risk that she will face destitution or other treatment which could amount to a breach of Article 3 ECHR. A case based on her Article 8 rights is not pursued and could not succeed in any event for the reasons I have given.
83. My conclusions in relation to the Appellant's mental health and risk of suicide/self harm are dealt with at [54] to [56] above. The risk of suicide may be exacerbated by the prospect of deportation. However, there is limited evidence that the Appellant considers suicide at times of trauma; it appears more likely that she will resort to drug use. As Dr Maloney observes in any event, any elevated risk at that stage can be managed by monitoring and close supervision. Following return, Dr Maloney's evidence is that the Appellant is likely to resort to her usual behaviour of taking drugs and offending in order to cope. He speaks of self-destructive behaviour but evidence of past behaviour is that this amounts to self-harming. Although it is possible that she will self-harm following return in order to cope, the evidence of her past behaviours suggests that this will amount to self-cutting and there is no evidence that this has been so serious as to require medical intervention. The Appellant's mental health condition is likely to remain much the same in Serbia as in the UK - treatment in the UK is not widely available and in any event is unlikely to be possible unless the Appellant is motivated to abstain from drug use.
84. For the above reasons and the reasons which are preserved from the decision of First-tier Tribunal Judges Vaudin D'Imecourt and SJ Clarke, this appeal is dismissed.

DECISION

The Appellant's appeal is dismissed.

Signed Date 12 July 2016

Upper Tribunal Judge Smith