Tribunal decisions

The decision

Appeal No. HX09799-2002
DG (Journalist-Healthcare) Nepal CG [2002] UKIAT 04284

IMMIGRATION APPEAL TRIBUNAL

Date heard: 14 August 2002
Date notified: 18-9-2002..………..…
Before:-

DR H H STOREY (Chair)
MRS L H S VERITY
MR M L JAMES

Between

MR DHAN BAHADUR GURUNG
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, a national of Nepal, has appealed with leave of the Tribunal against a determination of Adjudicator, Miss S I Bayne, dismissing the appeal against the decision by the respondent to refuse to grant asylum notwithstanding a grant of exceptional leave to remain for a limited period. This is a s. 69(3) appeal. Mr D Ideh of Counsel instructed by E J Winter & Son Solicitors represented the appellant. Mr J Morris appeared for the respondent.

2. The Tribunal has decided to dismiss this appeal.

3. The appellant had appealed on asylum and human rights grounds. However at the hearing Mr Ideh conceded that the appeal could not succeed on asylum grounds. We think that was a very sensible step on his part. The adjudicator gave sound reasons based squarely on the evidence for concluding that the appellant had failed to show that Maoists had ever seriously threatened him in the course of his work as a journalist. However, leave had also been granted in relation to the human rights element of his claim and the particular issue of whether the drug Warfrin was available in Nepal.

4. Certain facts are not in dispute: that the appellant had been a journalist by profession, that with financial assistance from his employers and his brother he had gone to a hospital in Vellore, India and had a heart operation on 4 August 1999. Upon return to Nepal he continued to attend Western Regional Hospital at Pokhara as an outpatient until May 2000 when he resumed work, receiving regular blood tests and medication. He was then advised by his medical team at Kathmandu to seek further specialist medical advice from abroad and he applied to the British Embassy in Kathmandu for a visitor’s visa to enable him to obtain the same in the UK. At that time he was employed in a hotel. On arrival in the UK the appellant registered with a GP on 18 December 2001 and has been in receipt of medical treatment since this date. That treatment includes daily doses of Warfin.

5. There is no dispute either that this case turns on whether the appellant can show that return to Nepal would expose him to a real risk of treatment contrary to Article 3 or 8 of the European Convention on Human Rights. We were referred to the leading case of D v UK (1997) 24 EHRR 423 where the European Court of Human Rights accepted that a combination of medical and social problems in the country of refuge and in the country of origin could in certain circumstances give rise to a real risk of treatment contrary to Article 3. Although we were not referred to it, it is also clear from the cases of Bensaid v UK [2001] INLR 325, that where return would cause significant detriment to an appellant’s physical and moral integrity as an aspect of his right to respect for private life, that could amount to a disproportionate interference with a claimant’s Article 8 rights.

6. The adjudicator did not consider the appellant would face a risk of treatment contrary to Article 3. She noted the letter from Tribhuwan University Teaching Hospital in Kathmandu referred to the need for a possible further operation and concluded it showed that it was access to this particular operation that was not possible in Nepal. She saw a letter from the Nepal Ministry of Health dated 9 April 2002 as confirming this. She said at paragraph 73:

“Whilst I accept that there may be difficulty in obtaining certain drugs in Nepal the evidence shows that the appellant was receiving medication and appropriate monitoring by the Nepali authorities and I do not find that to return him there would result in inhuman or degrading treatment contrary to Article 3…”.

7. Mr Ideh adduced with our permission a letter from the Medical Board of Bir Hospital Development Committee recommending that the appellant was suffering from rheumatic heart disease and that his specialist Dr Chandra had recommended that [a] medical check-up cannot be done inside Nepal. It concluded: “…it is hereby recommended to go to an advanced medical centre in abroad for medical check-up and treatment of the said disease”.

8. Mr Ideh submitted that it was clear from the Medical Board letter that doctors in Nepal considered that he needed treatment as well as medical check-up for his condition abroad. The letter from his GP in the UK established that for his condition it was essential that he receive regular does of Warfin. The respondent, he contended, had failed to demonstrate that that drug was available to the appellant in Nepal. He accepted that the appellant in the past had been able to receive a substitute at private cost in India, albeit only so as to ensure an “erratic, spasmodic and problematic supply”. The adjudicator had ignored, he argued, that the appellant`s brother had now retired from the Indian Army and returned to Nepal and that this source of both funds for treatment and medication had now come to an end. Too much reliance had been placed on the fact that when the appellant arrived in the UK he had with him 21 tablets upon which his life depended.

9. We find ourselves unable to accept Mr Ideh`s main submissions.

10. In the first place the evidence in this case does not establish that the appellant’s medical condition is unstable. We are quite prepared to accept that it would become serious if he were not to receive Warfin or its equivalent, but the fact remains that so long as he had such medication he is able to live a relatively normal life.

10. In the second place the evidence does not establish that the appellant’s doctors in Nepal considered that Warfin or an equivalent was unavailable to him there. Whatever the Medical Board meant by necessary “treatment” abroad, they did not state that Warfin or its equivalent was unavailable to this appellant in Nepal. The letter from the appellant’s specialist at Tribhuwan University Teaching Hospital – Dr Sunil Chandra Jha – also made no mention of the unavailability of Warfin or its equivalent either. Indeed he identified the problem as the need for “thorough check-up in a higher centre and possibly tricuspid valve annuloplasty/replacement”. Given that Dr Jha was the appellant’s own specialist, we find it very surprising, if Warfin or its equivalent were indeed unavailable at his hospital, that he should fail to mention this as a problem. The same could be said of the recent letter from the Cardiologist at Western Regional Hospital who simply mentions the need for his going to a higher centre “for further management and advice in view of a possible need for tricuspid valve repair and annuloplasty”. We observe that, despite a letter of 15 February 2002 addressed to the Cardiology Department at Western District Hospital asking for confirmation as to whether Warfin was available in Nepal for the appropriate treatment of cardiology patients and whether Mr Gurung`s cardiological condition can be treated in Nepal, there was no evidence before us of any reply confirming that Warfin was unavailable. Indeed, although in the absence of clear evidence as to whether any correspondence was received in reply we cannot be certain, it may be that the 9 April 2002 letter is all that came in response to that 15 February letter.

11. In the third place there is no satisfactory evidence from any other independent medical source that Warfin or its equivalent is unavailable in Nepal. We say “no satisfactory evidence” because we recognise that there was evidence in the form of a letter dated 24 July 2002 from Parbat Pharmacy dated 24 July 2002 stating that Warfin is not available in Nepal and acitron cannot easily be brought over from India and that to do so would in any case be against Nepalese law. There was also a letter of 28 June 2002 from the appellant`s brother stating that he could no longer buy medicine in India for the appellant and “he cannot be helped in Nepal”. Neither of these documents was before the adjudicator. We do not consider that we can place reliance on either. We find it odd that, in view of the evident efforts to corroborate the claim to the unavailability of Warfin or its equivalent in Nepal, no letter has been produced from either a medically qualified doctor or from a governing body responsible for pharmaceutical services in Nepal. We were not given any explanation as to why Mr Amar Singh of a pharmacy in Pokhara should have been approached. His letter does not state his qualifications nor explain on what basis he claimed to know what the situation as regards Warfin and acitron was throughout Nepal. His letter does not append any official lists of prescribable medicines nor does it discount that Warfin or acitron may be used within hospitals. As for the letter from the appellant’s brother, it has plainly been written in response to a request by or on behalf of his brother to help provide evidence in support of his appeal.

12. In assessing these two items of evidence, we have considered it relevant that on the appellant’s own account his specialist must have known he was in receipt of acitron illegally and that without it his physical well being was in jeopardy. That makes doubly strange in our view that the specialist should not specify the need for the appellant to go abroad in terms of his need to gain legal access to this drug.

13. So far as other sources of evidence are concerned, the appellant’s GP in the UK noted that she was unable to comment on availability of treatment in Nepal. Other sources submitted by Mr Morris certainly confirm that in Nepal there is a perpetual shortage of essential drugs and supplies and that cardiac disease has shown a marked rise in Nepal. These take matters very little further. It remains that no reference has been found in the literature relating to healthcare in Nepal of the non-availability of drugs which are essential to the treatment of a significant number of cardiac patients. Given that the numbers of cardiac patients are rising, we would have expected, were vital drugs made illegal or non-prescribable in Nepal, to have seen concerns expressed by WHO or other international NGOs in the health field to that effect.

14. Even assuming we were wrong about the availability of Warfin or its equivalent in Nepal, we would still not have allowed this appeal. In our view if returned to Nepal he would have the wherewithal to ensure a continuous supply of Warfin or its equivalent. On the appellant’s own account he had managed to continue working in Nepal, in the hotel industry, even after he developed a serious heart condition. There is absolutely no evidence before us to show that any doctor in the UK has found him to he medically incapable of work. On his return to Nepal, there is no good reason to suppose, therefore, that he would not again find employment. Thus he would not be prevented by any financial reasons from purchasing Warfin or its equivalent.

15. Such purchase could be achieved in a number of ways. If he were able to get evidence from an authoritative medical source in Nepal or elsewhere that Warfin or its equivalent were not available in Nepal, it is reasonably likely his UK doctors would make arrangements for him to be sent the drug via a private prescription here. If for some reason that proved impracticable, he could go himself to Southern India (as his brother had done before) to purchase acitron there. We recognise his evidence was that supply via India was spasmodic and uncertain. We also accept that there has recently been the declaration of a state of emergency in Nepal, to deal with the Maoist insurgency. However, there is no evidence that Nepal has closed its borders with India as part of this declaration. The objective country materials fall well short of establishing that the situation has become such that any one travelling to India faces a real risk of serious harm on the way. We note in this regard the approach taken by the European Court of Human Rights to arguments raised in the Bensaid v UK case to the effect that the civil war there made receipt of adequate treatment unlikely. At paragraph 39 the Court said this:

“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”.

16. At paragraph 49, when dealing with the Article 8 issue, the Court said:

“…the Court recalls that it has found above that the risk of damage to the applicant’s health from return to his country of origin was based largely on hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment….”.

17. Although the facts we have to consider are very different, we consider that the appellant’s case likewise rested far too much on speculative argument.

18. Even if the appellant did not want to travel to India himself, he would have the financial means to employ someone to go and purchase the necessary drugs for him. Whether or not his brother was still able to do this, despite retirement, it was not reasonably likely the appellant would find any shortage of persons willing to take employ as a courier in this way. It may be, as the appellant claimed, that to bring the drug acitron into Nepal via southern India would involve an unlawful act. However, on his own account his brother had been able to do this without any difficulty from the Nepalese authorities. There was no evidence before us that there were any effective fines or sanctions applied against those who unlawfully imported drugs of this kind.

19. For the above reasons we do not consider that the appellant’s return to Nepal would expose him to a real risk of treatment contrary to his human rights under Article 3 or Article 8.

DR H H STOREY
VICE-PRESIDENT