Tribunal decisions

The decision

KH
Heard at Field House

FO (Albanians - Article 3) Serbia and Montenegro [2003] UKIAT 00069
Date: 8 August 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

09.09.03

Before:

Mr J Barnes (Chairman)
Dr A U Chaudhry

Between

Secretary of State for the Home Department

APPELLANT

and

RESPONDENT

Representation:

For the appellant: Ms R Giltrow, Home Office Presenting Officer
For the respondent: Ms L Maroof of Counsel instructed by Brain Sinnott & Co.

DETERMINATION AND REASONS

1. The respondent is a citizen of what was formerly the Federal Republic of Yugoslavia but is now Serbia and Montenegro. He was born on 14 November 1983 in the province of Kosovo and is of Kosovan Albanian ethnicity. He claims to have entered the United Kingdom illegally on 16 September 1999. On 24 September 1999 he claimed asylum. That application was refused on 29 January 2001 when he was granted exceptional leave to remain until 14 November 2001, the date on which he would attain the age of 18. On 30 October 2001 his representatives applied to the Immigration and Nationality Directorate for an extension of the appellant's exceptional leave to remain in line with that which had been granted to his cousin, Romeo Olluri. On 14 December 2001 they wrote a further letter to the Immigration and Nationality Directorate claiming that any forced removal of the appellant would be in breach of Article 8 of the Human Rights Act 1998 by which they no doubt intended to refer to Article 8 of the European Convention incorporated into United Kingdom law by that Act.

2. In response to an invitation from the appellant, the respondent submitted a statement of additional grounds dated 5 July 2002 in which he stated that the Serbs had killed his parents and that he believed that his brother also was dead, so he had no family at all in Kosovo. He recorded that he travelled to the United Kingdom with his cousin, that they lived together and he was now his only family relation. He said that his cousin had been granted four years exceptional leave to remain which would lead to a grant of indefinite leave at the end of that period and it was his case that as Romeo was the only family he had, any forced expulsion of him from the United Kingdom would breach his rights under Article 8 of the European Convention. Additionally, he claimed that he had been traumatised by his experiences in Kosovo, requiring medication and counselling treatment, and that his forced return would be in breach of his rights under Article 3 of the European Convention.

3. That application was refused by the Secretary of State for the reasons set out in a letter dated 1 August 2002. He dealt with the Article 3 claim in the following terms at paragraphs 7 and 8 of the that letter:

"7. You state that your client will suffer inhuman and degrading treatment if removed from the United Kingdom because he is suffering from post traumatic stress disorder. You claim that to return Mr Fatjon Olluri would lead to the deterioration of his health. The Secretary of State has considered your claim but is aware that case law at Strasbourg makes clear that PTSD cannot amount to inhuman and degrading treatment even when a condition deteriorates on return. This opinion has been confirmed in Cruz Varas v Sweden [1991] – 14 EHRR 1 and Kudla v Poland (26/10/00). Such conditions do not meet the minimum level of severity required to achieve a claim under the ECHR. Furthermore, the Secretary of State is of the opinion that should your client's condition continue and/or deteriorate on return to Federal Republic of Yugoslavia he will be able to access adequate medical facilities there.

8. The Secretary of State further notes that hospitals have been re-opened and with extensive reconstruction works, there have been significant improvements in the physical infrastructure in Kosovo."

4. The letter then goes on to deal with the Article 8 claim with which we are not concerned in this appeal since there has been no appeal on the part of the respondent against the failure of the Adjudicator to deal with the Article 8 claim (based on his life in the United Kingdom with his cousin) on the basis that he had allowed the appeal under Article 3 and was therefore relieved of necessity of so doing. It is appropriate to record, however, that at paragraph 11 of the letter the Secretary of State dealt with the claim that the appellant's parents were dead and possibly also his brother. It was noted that he had not lodged any corroborative evidence to support the claim and that according to his asylum interview on 19 January 2000 he had had no contact with his family since arriving in the United Kingdom so that he would not have any information about whether his family were alive or dead. The Secretary of State noted that the respondent had adduced no evidence to show that he had other family/friends in Kosovo apart from his nuclear family, with whom he could find help/support. We further note that in neither of the two witness statements which were produced before the Adjudicator is there any suggestion on the part of the respondent that his parents or indeed his brother had been killed at the time he left Kosovo. What he related were four incidents between March 1998 and April 1999 which culminated in the family being evicted from their home in April 1999 when they went to Delobrad to live with relatives. The appellant and his cousin were then sent by the families out of Kosovo in September 1999 and this was the last occasion that the respondent saw his parents. That was, of course, after KFOR and UNMIK had entered Kosovo in the intervening period in June 1999. All that the respondent claims in those statements is that he has had no contact with his family since arrival in the United Kingdom. He does not suggest that he has made any attempt to contact his family, whether immediate or extended, in Kosovo since his arrival.

5. On 23 August 2002 the Secretary of State issued the usual notice to the respondent of his right to appeal on human rights grounds against his decision refusing to grant him leave to remain either under Article 3 or Article 8 on the basis which he had put forward.

6. The respondent appealed against that decision on both Article 3 and 8 grounds and his grounds of appeal add nothing to what had already been said in support of the application.

7. His appeal was heard on 27 November 2002 by an Adjudicator, Mr S S Chohan, who observed that the respondent had never apparently sought to appeal against the initial refusal of his asylum application so that there were no outstanding rights in that respect and he was concerned solely with the human rights claims which had been put forward. As we have noted he allowed the appeal under Article 3 and did not therefore consider it necessary to deal with the claim under Article 8.

8. The Secretary of State was granted leave to appeal against the allowing of the respondent's appeal under Article 3 of the European Convention and that is the only issue which is before us for determination.

9. The Secretary of State raised challenges on two grounds in the grounds of appeal. The first was that on the facts the Adjudicator's decision was unsustainable since there was no credible evidence that removal of the respondent to his own country would, on the basis of his diagnosed medical condition ,reach the high threshold necessary to engage Article 3 having regard to the Strasbourg jurisprudence, particularly in the final judgment in Bensaid v United Kingdom (Strasbourg 44599/98) [2001] INLR 325. The second basis was that for various reasons the psychiatric report produced by Dr Hicks was flawed and should not have been relied upon by the Adjudicator. Save in relation to Dr Hicks' views as to the level of treatment which would be available to the respondent in Kosovo are concerned – a matter on which Ms Maroof conceded that the doctor was not qualified to reach views and which would depend upon the view which we formed of the objective evidence in this respect – the second basis of challenge was effectively abandoned by Ms Giltrow, who accepted that she could not go behind the diagnosis of post traumatic stress disorder which had been made by Dr Hicks.

10. The medical evidence before the Adjudicator was a psychiatric report dated 29 October 2002 by Dr Hicks who holds, in addition to his general medical qualifications, the qualification of Member of the Royal College of Psychiatry, and who is an Honorary Clinical Lecturer in Psychiatry at the University of Bristol and a specialist registrar in adult mental health at Wootton Lawn Hospital in Gloucester.

11. That report is based on one interview with the respondent in which he gave his history, which confirmed at paragraph 3.1.5 that the respondent's parents had decided he should leave Kosovo for his own safety and that his father and uncle made all the necessary arrangements. The report noted that the respondent lived in rented accommodation with his cousin Romeo in Swindon, that he had a part time job with Sainsburys Homebase there and had completed a GNVQ course in IT at Swindon College of Further Education as well as courses in English and maths since his arrival in the United Kingdom. He said that he was physically fit and well with no past history of note. At paragraph 3.8.2 it was noted that the respondent did not describe any symptoms or show any signs suggestive of a psychotic illness and that he was orientated in time, place and person and thought that his current problems were psychological in nature and caused by his experiences in Kosovo. At paragraph 4, Dr Hicks stated that the respondent described symptoms and signs consistent with the diagnosis of post traumatic stress disorder and gave it as his view that the respondent would benefit from anti-depressant medication for at least six to twelve months as well as a psychological approach to his problems. In this respect he recommended that the counselling he was then receiving at the GP practice should continue but if he continued to suffer symptoms despite that treatment plan he could be referred to the local Community Health Team for more specialised treatment if needed, and that the length of psychological therapy would depend on his response to treatment. He also concluded that the respondent would benefit from continued support which he had been receiving under the care of local Social Services. This would, of course, have followed from the fact that he was a minor on his arrival in the United Kingdom. As to the future prognosis, he says at paragraph 5 that the respondent is likely to suffer chronic (long term) symptoms if he does not receive the recommended treatment and that recovery would be helped by a perception of physical safety and social support. He referred to the Diagnostic and Statistical Manual of Mental Disorders which stated "symptom reactivation may occur in response to reminders of the original trauma, live stressors, or new traumatic events…". He concluded at paragraph 5.4 as follows:

"In my opinion it is likely that Mr Olluri would suffer a recurrence and worsening of his symptoms of PTSD and depression if he were forcibly returned to Kosovo, as he is likely to reminded [sic] of his original trauma. In my opinion his mental health would suffer as a result even if he had access to adequate treatment."

12. As we have said, Dr Hicks also gave the view that it was unlikely that the respondent would receive adequate treatment if he returned to Kosovo "based on information regarding medical resources available in Kosovo" (paragraph 5.2 of his report), a matter which was noted by the Adjudicator at paragraph 15 of his determination.

13. The Adjudicator said this at paragraphs 16 and 17 of the determination:

"16. Dr Hicks' conclusions are supported by the UNHCR letter of April 2002, in which it is indicated that persons with severe and chronic mental illness whose condition requires specialised medical intervention of a type not yet available in Kosovo are vulnerable individuals. I did not have the benefit of having heard oral evidence from Dr Hicks. However, I have no reason to doubt his above conclusions. In the case of Galica, the Tribunal had the benefit of hearing oral evidence from Dr Hicks and his opinion and conclusions were accepted.

17. In the ICMPD – IOM report, it is made clear that Kosovo still faces serious difficulties in respect of mental health. The said report at page 5 states as follows:

'In summary, currently the repatriation of mentally ill persons, especially those with chronic mental illness, child or adolescent psychiatric illness (particularly if the patients are also drug addicts) and forensic psychiatry pathology, needs to be assessed carefully case by case. It is likely that most of these patients cannot be treated in Kosovo.'

The said report also states at page 6 that returnees from western countries have grave difficulties in respect of mental health treatment."

He then went on to say at paragraph 18:

"…. In this case the Appellant's mental health problems are serious, so much so, that it does lead Dr Hicks to conclude, as stated above, that in his opinion the Appellant's mental health would suffer even if he had access to adequate treatment in Kosovo. In such circumstances, it is not appropriate to return the appellant to Kosovo."

14. We must deal first with the sustainability of the Adjudicator's findings as at the date of the hearing before him. It was Ms Maroof's general submission that his findings were sustainable and should not be interfered with by the Tribunal. The powers of the Tribunal in this respect were reviewed by the Court of Appeal in Borissov –v- SSHD [1996] Imm AR 524, where previous decisions were also considered. In the principal judgment, Hurst LJ said this at page 533:

"Thus the jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the Special Adjudicator's conclusions of fact, though no doubt this power will be sparingly exercised, and in any event, in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with the finding of primary fact by the Special Adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him."

A little later in the judgment he referred to what Kennedy LJ had said in Assah v Immigration Appeal Tribunal [1994] Imm AR 519, that:

"… In the final analysis an Appellate Tribunal such as the Immigration Appeal Tribunal not only can, but should, reverse a finding of fact if it is unsustainable."

15. We approach our views as to the sustainability of the Adjudicator's findings at the date of hearing before him on that basis. The reliance which he placed on the ICMP-IOM Report at paragraph 17 of his determination appears to us to be highly selective. There was no suggestion in the medical report before him that the respondent required in-patient treatment for his diagnosed condition. Indeed, the expressed view was that the current GP-level counselling should be continued. The quotation at paragraph 17 of the determination is taken from the end summary of the information provided by the Kosovo Ministry of Health as at July 2002, and we accept that their view at that date was that mental health care in Kosovo faced serious difficulties. Nevertheless we note in particular that they made the following comments in the body of the statement:

"Despite the serious problems, the Ministry of Health, Environment and Spatial Panning with support of WHO and other donor agencies, is making efforts to improve the situation. According to Strategic Plan for Mental Health in Kosovo, future mental health services shall be community based and family focused and closely linked with family medicine and social services. The opening of the first Community Mental Health Centres in Gjakove/Djakovica (March 2001) and Ferizaj/Urosevac (June 2001) is the first step. Similar centres will be established in the five other regional centres by June 2002. These centres will offer community based out-patient mental health services. The situation with human resources will start to improve when the twenty five current residents in psychiatry, and the first generation of students in the Faculty of Psychology (opened in the University of Prishtina/Pristina in September 2001) will graduate and the projected upgrading training courses for psychiatric nurses (planned for 2002) begin to materialise".

16. The World Health Organisation provided the following information as at July 2002 in relation to primary care, which is what the respondent would require:

"There are very few and weak services at the primary health care level, seven neuro-psychiatric services in Prishtine/Pristina Podujeve/Podujevo, Kline/Klina and Gjilan/Gnjilan. They consist basically in one or two neuro-psychiatrists and few nurses, and provide ambulatory care and, in some cases, a home care service.

Mainly the GPs refer patients with psychiatric disorders to the hospitals. GPs do not manage any level of psychiatric pathology yet although the first generation of Family Medicine practitioners was trained."

17. The report then goes on to analyse the facilities which are available municipality by municipality throughout Kosovo. At page 19 of the document under paragraph 3.21 they give details of the facilities available in the municipality of Prizren, the home area of the respondent, as follows;

"The staff of local NGO 'Kendelija' offer psychiatric consultations to patients in two health centres in Prizren, in Centre for Social Work and one health centre in Dragash/Dragas. Dutch International NGO "Healthnet" that deals with mental health, like training of doctors and nurses to work in family health centres with the aim of integration of mental health care."

It is then apparent from the further detail given that there is a psychiatric ward in Prizren General Hospital on an ongoing basis; that the training of doctors for mental health services in Healthnet has been in place since November 2000 and is due to end in October 2002; and that mental health consultations with Kendelija commenced in March 2000 and remain ongoing.

18. We note also from the July 2002 briefing note on repatriation of Kosovo Albanians that psychiatric services were very limited, with an almost total lack of community services "other than those associated with conflict trauma". The respondent's condition is, of course, wholly concerned with the results of conflict trauma.

19. For the above reasons, it does not seem to us that the Adjudicator had sought objectively to assess what was likely to be the improved position in relation to the availability of basic medical services for someone in the appellant's condition in his own country, noting that the July 2002 reports on which he placed his views all predicated a continuing improvement in the situation there because of the measures which had been put in train.

20. Secondly, there is nothing to show that the Adjudicator had given proper consideration to the European Court's decision in Bensaid (referred to in Galica which he quotes) in relation to whether or not the high threshold required to engage Article 3 would be reached on the facts before him.

21. Because Ms Maroof sought before us to distinguish Bensaid on the basis that it was considered there that the effect of removal and return to his own country was to a large degree speculative, we consider it appropriate in this determination to summarise the medical evidence on which Mr Bensaid sought to rely before the Court because it is only on this basis that the meaning of the speculative nature of any adverse affect following removal in the later passages in the judgment can be properly understood.

22. At paragraph 7 of that judgment the Court records the circumstances as follows:

"7. The applicant is a schizophrenic suffering from a psychotic illness. He appears first to have experienced symptoms in 1994-1995. When he first came to the attention of the mental health services, his condition was so severe that consideration was given to detaining him compulsorily in a psychiatric hospital. However, this was not required since he responded sufficiently to treatment. His illness has been successfully managed. At the end of 1997, he was admitted to hospital for a few days following a minor relapse which his psychiatrist attributed in part to side effects from his previous medication. His anti-psychotic medication was changed from Sulpirade to Olanzapine.

Schizophrenia is an illness or group of illnesses affecting language, planning, emotion, perception and movement. Positive symptoms often accompany acute psychotic episodes (including delusions, hallucinations, disordered or fragmented thinking and catatonic movements). Negative symptoms, associated with long term illness, include feelings of emotional numbness, difficulty in communicating with others, lack of motivation and inability to care about or cope with everyday tasks."

23. At paragraph 15 of the judgment it is recorded that the United Kingdom indicated they did not wish to have the applicant medically examined, submitting there was a hospital in Algeria which provided treatment and which could admit the applicant and administer the medication which the government understood the applicant to be receiving. The hospital was some seventy five to eighty kilometres from the applicant's village and it was the government's view that there was at that time no particular danger in travelling between the village and the hospital. As medication and treatment would be available in Algeria it was concluded that his circumstances were not so exceptional or compelling that he should be granted entry.

24. The Court then dealt with the medical evidence before it for the appellant at paragraphs 16 and 21 of the judgment. Paragraph 16 is as follows:

"16. The applicant obtained opinions from his psychiatrist as to the likely effect of removal to Algeria. In a letter dated 24 March 1998, Dr Johnson stated that there was a high risk that the applicant would suffer a relapse of psychotic symptoms on returning. The requirement regularly to undertake an arduous journey through a troubled region would make the risks still higher. She pointed out that when individuals with psychotic illness relapse, they commonly have great difficulty in being sufficiently organised to seek help for themselves or to travel. For this reason, it was necessary for the management of such illnesses to be local and readily accessible. It was therefore very unlikely in these circumstances that any relapse of the applicant would be effectively treated. In a supplementary report of 7 July 1998, Dr Johnson stated that any suffering which might accompany a relapse would be likely to be substantial. When the applicant's illness had been severe, he had lost all insight into the fact that he was ill and believed the persecutory delusions and abuse which he experienced, including voices telling him to harm other people. He had previously felt sufficiently depressed and helpless that he contemplated suicide."

25. The Court continued at paragraph 21 as follows:

"In a further opinion dated 20 May 1999 sought by the Immigration Service with the applicant's consent, Dr Johnson reported that, when seen in February 1999, the applicant showed some signs of deterioration, with his auditory hallucinations having become more intrusive and with thoughts about harming himself and voices telling him to harm himself ("positive symptoms"). He had been unable to sleep because of this. His Olanzapine had been increased and he had responded to this. However, he continued to have considerable difficulties with motivation and social withdrawal ("negative symptoms"). The applicant's mental illness was likely to be a long term one. She would expect that he would continue to have positive symptoms, which would persist and could worsen, though controlled to a substantial degree by Olanzapine. At times he might require urgent help for these symptoms. There had been a significant deterioration in his level of social functioning likely to be attributable to negative symptoms and which was likely to be significantly handicapping in the coming years. With continuing medication and support from the mental health services, however, he would be likely to remain at the same level and not require very long periods of institutionalisation. Nor was he at a very serious risk of suicide. If, however, the applicant was returned to Algeria, she stated that she would be more uncertain of the prognosis. She thought it was:

'highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in Algeria would trigger exacerbation of his systems as occurred on his last visit to Algeria….. His fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell… If he were unable to obtain appropriate help, if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others… Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect.'

She further advised that any change of medication from Olanzapine to Sulpirade would risk deterioration in his negative symptoms and diminish the control of the positive symptoms."

26. It will be seen from this that in the case of Bensaid the medical evidence was that removal and repatriation would be reasonably likely to exacerbate Mr Bensaid's symptoms and to lead to a regressive situation in which self harm and harm to others could not be eliminated. It is now appropriate to record how the Court dealt with this factual situation at paragraphs 37 to 40 of the judgment:

"37. The difficulties in obtaining medication and the stresses inherent in returning to this part of Algeria, where there is violence and active terrorism, are alleged to endanger seriously his health. Deterioration in the applicant's already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self harm and harm to others, as well as restrictions in social functioning (e.g. withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.

38. The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an in-patient should be a last resort. Nonetheless medical treatment is available to the applicant in Algeria. The fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.

39. The Court finds that the risk that the applicant will suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulties of travel to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made.

40. The Court accepts the seriousness of the applicant's medical condition. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting States for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D case (cited above) where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."

27. In our view, a proper consideration of the evidence before him and of the guidance in Bensaid v United Kingdom to which he should have had regard, render the Adjudicator's decision for the reasons which he gives in paragraph 18 of his determination unsustainable. It therefore follows that it is appropriate for us to reconsider the Article 3 claim on the basis of the evidence before the Adjudicator and of the additional evidence now before us. This comprises an addendum psychiatric report from Dr Hicks dated 27 June 2003 and the Home Office CIPU Serbia and Montenegro Country Assessment of April 2003.

28. Dr Hicks records at paragraph 3 that the respondent has been prescribed Paroxetine (an anti-depressant) at a dose of 20mg per day by his GP since November 2002 which he still takes and is on no other medication. We note from the respondent's bundle before the Adjudicator that it contains a letter of 24 October 2002 from his General Practitioner confirming that he first registered as a patient on 29 October 1999, which was shortly after his arrival in the United Kingdom, but that it was not until 20 August 2001 that he sought any treatment when he was put on anti-depressants and tranquilisers with arrangements for him to see the practice counsellor. Dr Hicks records that the respondent has continued to see his counsellor at his GP practice once or twice a month and found the sessions of some help. Further, that he continues occasionally to see his social worker who continues to help him claim his benefits. His mood remained variable and his anxiety has been perpetuated by continuing worry over his asylum claim and his current Court appearance. He records at paragraph 3.1.16:

"Mr Olluri told me that he is still fearful of returning to Kosovo, as he believes that his life would be in danger from the Serb Army and police because of the events documented [in the doctor's earlier psychiatric report]. He told me that he believed that he would suffer from further persecution if forcibly returned to Kosovo and would consider suicide if returned to that country."

29. At 3.2.1 it is recorded that the respondent is still suffering in the way which he had previously set out and said that he recently woke at night in a panic and punched the wall causing a fracture in his right hand. He remained worried about the outcome of his asylum claim and found it difficult to imagine a future for himself, preferring his own company and generally feeling detached and estranged from others. He had developed occasional thoughts of deliberate self harm when he felt particularly low in mood. He remained in rented accommodation with his cousin in Swindon and still has had no contact with his family whom he said he feared might have been killed. He had not been referred to his local (secondary care) psychiatric services in Swindon and was otherwise medically fit and well. Dr Hicks again observed (at paragraph 3.6.2) that the respondent did not describe any symptoms or show any signs suggestive of a psychotic illness; that he was orientated in time, place and person and thought his current problems were psychological in nature and caused by his experiences in Kosovo. He added that he expressed thoughts of self harm and suicide although he had made no plans at the time of interview.

30. At paragraph 4 he gave as his opinion that the symptoms remained consistent with the diagnosis of PTSD and that in his opinion the respondent would benefit from continuing to take his anti-depressant medication to treat his PTSD. He anticipated that he would need to remain on that for at least another six to twelve months effectively to treat his symptoms. He was of the view that the respondent would continue to benefit from contact with his social workers in order to continue to access benefits, housing and help in gaining employment in the future. He would also benefit from psychological treatment such as cognitive behaviour therapy involving imagined exposure, graded self exposure and/or cognitive therapy for beliefs about the symptoms or the trauma and the subsequent dropping of excessive safety behaviours. He was of the view that it was likely that the respondent would need the services of a psychologist in secondary care (hospital based) in order to effectively treat his symptoms, which would require twelve to sixteen sessions of treatment. What is considered there is clearly out-patient treatment.

31. It is appropriate to set out the whole of paragraph 5 dealing with the prognosis:

"5.1 In my opinion Mr Olluri continues to suffer from the effect of PTSD which has only been partially treated so far with anti-depressant medication, counselling and primary care. In my opinion his current symptoms of PTSD are unlikely to improve whilst he experiences further worry over the outcome of his asylum claim. In my opinion he needs to continue with his anti-depressant medication but would also benefit from further psychological therapy as recommended above in order to benefit from an improvement in his symptoms.

5.2 In my opinion Mr Olluri is likely to suffer chronic (long-term) symptoms if he does not receive psychological treatment and medication as detailed above. In my opinion if such treatment is not provided he will suffer from worsening symptoms of PTSD and require treatment provided by secondary (hospital based) services rather than primary (GP based) services alone.

5.3 In my opinion Mr Olluri will be at increased risk of self harm and suicide in the future if he is returned to Kosovo. He has documented thoughts of self harm at 3.1.6, 3.2.1 and 3.6.2 due to his continuing mental illness and in my opinion he is likely to harm himself with the associated risk of suicide if he were forcibly returned to Kosovo.

5.4 In my opinion it is unlikely that Mr Olluri would receive adequate treatment if he returned to Kosovo based on information regarding medical resources available in Kosovo (appendices 4 & 5).

5.5 In my opinion Mr Olluri's recovery from his symptoms will be helped by his perception of physical safety and social support. The importance of social support in improving mood in asylum seekers has been confirmed by research findings. In my opinion his current perception of physical safety has helped him lead a relatively normal life since his arrival in the UK. In my opinion Mr Olluri has little social support in Kosovo as he has had no contact with his family and fears that they are dead."

32. It will be immediately apparent from that prognosis that once more Dr Hicks strays outside the proper areas of his competence in paragraphs 5.4 and 5.5. The appendices to which he refers have not been produced before us in any event but the question of whether there exists medical care facilities in Kosovo is a matter for us to judge on the basis of the objective evidence produced before us.

33. So far as paragraph 5.5 is concerned, the only evidential basis on which Dr Hicks bases his non-medical opinion that the respondent has little social support in Kosovo is that he says he has had no contact with his family and fears that they are dead. As we have already observed, the evidence before us is that at the date of his departure from Kosovo, which was after the arrival of the UNMIK and KFOR forces, the arrangements for his departure were made by his immediate and extended family in the persons of his father and uncle who were then living with relatives in Kosovo. The respondent's claims in this respect amount to no more than an assertion that he has not had contact with his immediate or extended family in Kosovo since his arrival in the United Kingdom. Given that the only fear claimed on the part of himself and his family was of the Serbs, and given that there can now be no rational basis for such a fear either in respect of himself or his family, the position remains that there is no credible evidence before us that there does not continue to exist in Kosovo immediate and extended family support should he now be returned there. That is a matter in respect of which the burden of proof is on the respondent and he has failed to discharge it even to the lower standard of a reasonable likelihood relevant to an Article 3 claim.

34. That is not, however, to discount the relevance of the first three paragraphs in the prognosis and we accept that these show that the situation of the respondent has, if anything, deteriorated between the first and second psychiatric reports, and that the respondent has now for the first time expressed views as to self harm which have arguably been partially exemplified in the recorded injury which he said resulted from his having punched a wall. There is also, as Ms Maroof emphasised before us, the fact that he is currently undergoing treatment for his condition in the United Kingdom. In none of these respects, however, is his situation markedly different from that revealed by the medical evidence in the case of Mr Bensaid with which we have already extensively dealt.

35. Ms Maroof placed her submissions to us essentially on three further matters: firstly, the views of Dr Hicks as to potential suicidal ideation; secondly, that the respondent was currently receiving treatment for his condition in the United Kingdom and that removal was considered as likely to lead to a deterioration even if his treatment could be continued in Kosovo; and thirdly, that the facilities in Kosovo were in any event arguably inadequate.

36. The position of somebody said to be likely to commit acts of self-harm was recently fully considered by the tribunal in the reported decision of [2003] UKIAT 00017 P (Yugoslavia) promulgated on 1 July 2003 and on which Ms Giltrow has relied on behalf of the Secretary of State. In that case the Tribunal summarised his claim at paragraph 4 in the following terms:

"The appellant based his claim on submissions that if he were now to return to Kosovo, he would be at high risk of taking his own life in order to avoid reliving traumatic experiences. At fourteen years old he had escaped from his family home when Serb militia men had set it on fire. He has subsequently learnt that his parents had been killed then or later. He had been told they were buried in a mass grave. Before he left Kosovo he had survived begging on the streets doing his best to avoid being harmed or used by criminal gangs."

It will be seen that his position was arguably worse than that of the respondent in the present appeal. After briefly reviewing the treatment of self harm by Strasbourg jurisprudence at paragraphs 17 and 18 of the determination, the Tribunal turned to consideration of the current medical approach to suicide cases, noting by reference to the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, fourth edition (DSM-IV), Text Revision, Washington DC, American Psychiatric Association 2000, that there is a clinical basis for diagnostic criteria of the likelihood of suicidal tendencies. This depends on diagnosis of a major depressive episode and can be clinically evaluated. We note that there is no such evaluation made by Dr Hicks in either of his reports.

37. The Tribunal then considered whether there existed satisfactory relevant medical facilities in Kosovo. The Adjudicator in P had found that such facilities did exist. It had been noted that in the October 2000 CIPU Assessment at paragraph 5.39 it was said that:

"Although mental health provision in Kosovo is relatively undeveloped, treatment for psychological conditions including post traumatic stress disorder is available in Kosovo. Details of the 'Kosovo Rehabilitation Centre for Torture Victims (KRCT)' which provides treatment for PTSD are included in the source materials."

It was further noted that paragraph 5.38 in that assessment mentioned a review of the EDWHO mental health project in July 2002 made a positive evaluation of the progress in mental health sector in Kosovo, stating that "The WHO mental health programme has impacted on the development of a comprehensive mental health strategy developed in collaboration with local mental health professionals…" We note at this point that, although apparently not produced to the Adjudicator, this was current evidence at the date of the hearing before him. The Tribunal in P continued at paragraph 34:

"Certainly there is no current evidence we have been made aware of that mental health facilities have been considered of poor quality or as seriously deficient or as unlikely to ensure intensive treatment of a mental health condition when that was required. Furthermore, it appears that particular steps have been taken to cater for the needs of persons who have been victims of trauma."

We interpolate here that the April 2003 CIPU Assessment produced to us, giving the most up to date sourced information, maintains a similar position. What was quoted from paragraph 5.39 of the October 2002 assessment in P is repeated at paragraph 5.48 in the latest assessment. The passage formerly at paragraph 5.38 is now at paragraph 5.47 and adds that, "also a Mental Disability and Mental Health Policy Implementation Task Force has been established", sourcing this statement from a UN Report of October 2002. It notes also at paragraph 5.49, based on a Kosovo Information Project information request answer of October 2002 that, "As with medical treatment, the range of medical drugs available in Kosovo is constantly developing. Many standard drugs are now available, including Fluoxetin and Sertralin from the selective Sertonin Uptake Inhibitors group (SSIs) often used for the treatment of PTSD."

38. The evidence as to medical treatment available in Kosovo on which Ms Maroof based her submissions was that which was before the Adjudicator and did not take into account what is said in the current CIPU Report. On the basis of the evidence before us we are satisfied that, although it may not duplicate the medical treatment available in the United Kingdom, there does exist in Kosovo at the present time adequate medical treatment for people suffering from the condition for which the respondent has been diagnosed.

39. Turning to the Tribunal decision in P, the Tribunal then considered the issue of the risk of suicide, which is at least partially relied upon by Ms Maroof in the instant appeal. The Tribunal noted that the medical evidence fell short of stating that the appellant in P represented a real suicide risk regardless of his location, noting that it maintained that his current environment in the United Kingdom assisted him in maintaining the level of psychological equilibrium he had. It noted also that in alluding to problems P would face, there were suggestions that the mere fact of return to his country would psychologically destabilise him. But the Tribunal pointed out that the underlying logic that return to his own country was seen to give rise to a real risk of suicide was for the following reasons: first, that within that country he had suffered events which caused him to become traumatised; secondly, that having to return to such a place would compel him to re-experience that trauma in a way he could not cope with; and, thirdly, that he would not have the necessary medical and social support in order to ensure that he could cope. The Tribunal then dealt with the first two issues at paragraphs 43 and 44 of its determination as follows:

"43. As regards (i) and (ii), we would not question that return to Kosovo would cause the appellant to record dramatic events in a different way than he does at present: he will be back in the country where his traumatic experiences occurred. But we do not see that the mere fact of return to the country of Federal Republic of Yugoslavia or to the region of Kosovo entails that the appellant will be compelled to revisit the scene of his trauma in the village of Matcan, north east of Pristina. For one thing the appellant, whatever he subjectively believes now, will see for himself upon arrival in Kosovo that the Serbs no longer pose a threat to ethnic Albanians in Kosovo and that there had been a considerable improvement in the political and security situation in Kosovo. None of the medical evidence suggests that he would be incapable of perceiving such realities. For another it will be entirely a matter for him whether he chooses to visit his old house or the village of Matcan: indeed, it is implicit in what is said in the medical reports that he will not want to revisit the scene of his trauma for some considerable time, if ever.

44. Viewed in this light it is clear that the principal medical reports wrongly equated return to a country with return to a scene of trauma. Thus, to the extent that the medical reports postulated a re-exposure to the scene of the trauma, they go well beyond the limits of a realistic appraisal. So long as the appellant seeks medical help when he returns, and again the medical evidence does not suggest he would not seek medical help, his return will not be to the scene of his trauma but into the hands of medical and related services whose focus would be on treating his trauma, not reactivating it. Those administering the medical help will be persons very familiar with victims of trauma arising out of the Kosovo conflict."

40. Dealing with the third issue, the Tribunal said this at paragraph 45 of its determination:

"As regards (iii), we would accept the appellant currently enjoys medical and social support to a good standard. But it is sufficiently clear that he has managed to cope well enough with his trauma to attend college, train as a chef and conduct social relationships. When he returns to Kosovo he will not have (so far as we are aware) any family support network. But when he returns, no longer as a minor, we consider that his demonstrated ability to engage with the external world will stand him in good stead there. Indeed, since he will be returning to his own culture to live among people of the same ethnic background, and, in addition, will be able to access adequate medical facilities and receive assistance with finding housing and employment, we do not consider that he will in fact have to face conditions anywhere near as adverse as those which the medical reports appear to presuppose."

41. Ms Maroof sought valiantly to distinguish the situation of the respondent from that of P. She submitted that he would no longer have the support of his cousin which he has enjoyed here, or of the social services, and said that he was a vulnerable persons who would be displaced. In P, the claimant had been coping well in the United Kingdom but she said that the respondent was in a very different category since whilst he had previously had a job and had undertaken educational courses, it appeared from Dr Hicks report that he was no longer working and had become withdrawn and that his condition had worsened since the first psychiatric report.

42. We accept that there does appear to have been some worsening of his situation looking at the latest medical report. Dr Hicks takes the view that he has long term problems of post traumatic stress disorder which are capable of being treated. As we have seen, in Bensaid the medical opinion, couched in very similar if not stronger terms of deterioration in Mr Bensaid's condition were he returned, and in P that the risk of suicide might be increased, were nevertheless not considered to reach the high threshold set in Bensaid for the engagement of Article 3 harm.

43. We are satisfied on the objective evidence not only that there is no risk of harm to the appellant for the reasons which he fears – and it seems to us that the point taken in P that this will become apparent on return is a valid point – but that there will be adequate medical treatment available to him in his own country, albeit perhaps not to the same standard as would apply in the United Kingdom. Moreover, there is no evidence, as existed in P, that this respondent would be returning to a situation where there was no family support available to him. The evidence is that his family were alive and well in September 1999 when arrangements were made for his departure from Kosovo. His immediate family had been displaced from their own home by the actions of the Serbs who had ultimately burned it down. His brother was at that time a member of the KLA according to his evidence. Given that KFOR and UNMIK had then arrived in Kosovo and that any fear of the Serbs had thereby been removed, there is no reasonable likelihood on the evidence that his immediate or wider family do not remain in Kosovo albeit that he says he has had no contact with them since his arrival here. There is, therefore, no reason to believe that a family support network does not exist for him there. For those reasons we are satisfied that there is no reasonable likelihood that the respondent will suffer treatment in breach of his protected human rights under Article 3 if he is now returned to Kosovo.

44. It has never been his case that return would infringe his rights to private life in the sense of his moral and physical integrity by reason of the conditions which exist there but, for the sake of completeness, we note that such a claim by Mr Bensaid was rejected also and the Court dealt with that issue at paragraph 48 in the following terms:

"Turning to the present case, the Court records that it has found above that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity will be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law' pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims."

45. Bensaid is, accordingly, also authority for the fact that there is a high threshold to be reached before Article 8 can be engaged and that even if that high threshold is reached it will be unlikely that a claimant can show that removal would not be proportionate in the public interest, given the wide margin of appreciation allowed to the state in its consideration of proportionality of removal. Had this been an issue raised before us, we would have been in no doubt that removal of the respondent would not have led to a breach of his right to private life under Article 8 either.

46. The question of whether removal would breach any right to family life under Article 8 was not before us. We agree with Ms Giltrow's submission that it was open to the respondent to have sought leave to appeal to the Tribunal on the basis that the Adjudicator had erred in law by failing to deal with the Article 8 limb of the claim before him. The respondent did not seek to do so either within the time limits applicable under the Immigration and Asylum Appeals (Procedure) Rules 2000, which then applied, or to raise the matter subsequently after leave to appeal had been granted to the Secretary of State on 17 February 2003. For that reason we were not prepared to hear argument in relation to the Article 8 issue as to interference with family life which had been canvassed before the Adjudicator, although we are bound to say that since it rested on the respondent's claimed right to exercise family life with his cousin here, we do not see that there was any arguable basis having a real prospect of success that the unexplained treatment of his cousin by the Secretary of State in granting four years exceptional leave to remain would, on the facts, render it disproportionate to remove the respondent on the basis that his rights to family life here would thereby be breached when there is no evidence that he would be unable to resume a family life of at least equal standing in his own country.

47. For the reasons which we have thought it proper to set out at some length, so that Adjudicators may realise the full effect of the European decision in Bensaid, the Secretary of State is entitled to succeed in his appeal.

48. This appeal is accordingly allowed.

J Barnes
Vice President