Ducja, R (on the application of) v Immigration Appeal Tribunal

Neutral Citation Number: [2003] EWHC 2637 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/2664/2003 Royal Courts of Justice Strand London WC2 Friday, 31 October 2003 B E F O R E: MR JUSTICE MITTING - - - - - - - THE QUEEN ON THE APPLICATION OF BESIM DUCJA -v- IMMIGRATION APPEAL TRIBUNAL - - - - - - - Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - (CLAIMANT) (DEFENDANT) MS A WESTON (instructed by The Rights Partnership) appeared on behalf of the CLAIMANT MR JP WAITE (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT - - - - - - - J U D G M E N T SMITH BERNAL WORDWAVE 1. MR JUSTICE MITTING: The claimant was born on 13 January 1983 in Boletin in Mitrovica, Kosovo. On 9 July 2000, he arrived in the United Kingdom and claimed asylum on the 10th. In a witness statement signed on 27 March 2002, he claimed to be a Gypsy but a Special Adjudicator found that he was not, in a decision promulgated on 17 June 2002, but was of Albanian extraction. The Special Adjudicator accepted his evidence that, in mid January 2000, his family and he had been beaten by approximately 15 members of a Serbian security force and their home set on fire and that in consequence he fled to Macedonia and then to the United Kingdom. 2. 3. 4. 5. His claim for asylum was rejected by the Secretary of State for the Home Department on 15 August 2001. In a decision letter he acknowledged that prior to the arrival of KFOR in Kosovo in June 1999, there was a threat of persecution by the Serb authorities, but concluded that the claimant could now safely return to Kosovo. He drew attention to areas of Kosovo not including Mitrovica in which Serbs represented a small minority of the population to which he could relocate without undue hardship. He observed that the claimant could have claimed asylum in one of many states on the way from Macedonia to the United Kingdom, and concluded that he had produced no evidence to show that he might be persecuted in future. He also concluded that his Convention rights did not require that he remain in the United Kingdom. The Special Adjudicator found that the claimant had been subjected to persecution by forces operating within the policy of the Serbian state in January 2000, but concluded that because of the operations of KFOR and UNMIK troups, there was no longer any fear of persecution in Mitrovica, and in any event, the claimant could safely relocate within Kosovo. The Special Adjudicator noted that the claimant had "some psychological sequelae" in respect of which he was receiving treatment in the United Kingdom, but concluded that they did not require that he should be granted refugee status. He concluded that his removal would not cause the United Kingdom to be in breach of its obligations under the Refugee Convention. He declined to consider the claimant's claim that his removal would infringe the claimant's Convention rights under the European Convention of Human Rights (Article 8), but concluded that the refusal of asylum did not infringe those rights. The claimant appealed against the Special Adjudicator's refusal to consider fully his claim under Article 8. On 2 August 2002, Mr John Freeman, vice-president of the Immigration Appeal Tribunal, allowed his appeal and directed the Special Adjudicator to determine his Article 8 claim. By a decision promulgated on 6 January 2003, the Special Adjudicator did so. He noted that he had received submissions to the effect that the claimant's rights under Articles 2, 3 and 5 would be infringed if he were to be returned to Kosovo, but nothing on the issue on which the Immigration Appeal Tribunal had remitted the claim to him for further determination (the Article 8 claim). He reminded himself as was the fact that he had received in evidence at the first hearing reports from two psychiatrists which indicated that the claimant was suffering from post-traumatic stress disorder for which he was receiving appropriate medication as an outpatient at Hallam St Hospital in West Bromwich. The Secretary of State for the Home Department did not put in any evidence, but indicated that he intended to rely on an unstarred decision of the Immigration Appeal Tribunal, Thaqi [2002] UKIAT 03520 in which the Immigration Appeal Tribunal had held that it was satisfied that there were adequate medical facilities in Kosovo for the treatment of post-traumatic stress disorder so that removal of a female appellant in that case suffering from that disorder would not infringe her Article 8 rights. The Special Adjudicator observed that the claimant was receiving a standard psychiatric drug at a fairly low dosage and assumed that the claimant would experience no difficulty in obtaining similar treatment in Kosovo. SMITH BERNAL WORDWAVE 6. In paragraphs 14 to 23 of his decision he summarised his findings. First of all, he reminded himself of the facts which I have recited as to the circumstances in which the claimant came to leave Kosovo. Secondly, he referred again to the two psychiatric reports. He reminded himself in paragraph 16 of the Immigration Appeal Tribunal's determination in Thaqi as to the general level of facilities for the treatment of those suffering from post-traumatic stress disorder in Kosovo. He reminded himself in paragraph 17 of the medication which the claimant was receiving in this country and of the view of the senior house officer who had provided one of the two psychiatric reports. In paragraph 19, he summarised his conclusions on the medical evidence: "There is nothing in the factual information placed before me to indicate that the appellant is anything other than in the broad category of those persons who, if they receive prompt and appropriate medical treatment, this condition can be very considerably alleviated. I do not accept that there is any evidence to indicate that the appellant has had an enduring personality change." In paragraph 20 he said this: "I therefore see no reasons for diverting from the factual analysis of the difficulties of a person returning to Kosovo who is receiving some treatment. The appellant is receiving a standard psychiatric drug on a fairly low basis and I assume that there will be no difficulty in the appellant accessing such medical treatment in Kosovo. Clearly if the appellant decided to relocate away from a major urban area he may well have some difficulties. That however will be a decision of the appellant's, not that of the UK government. It is the actions of the UK government that could place the appellant at a real risk of a breach that is effectively protected under the terms of the international Conventions." 7. He went on in paragraph 21 to find that there was no justification for revisiting his conclusions as to Articles 2 and 3 and found that there was absolutely no factual basis for determining that the appellant's right to life was in any way in reality at any risk through his post-traumatic stress disorder if returned to Kosovo. In paragraph 22 he said this: "Therefore in relation to Article 8 I find that the interference with his right to respect for his physical and moral integrity is not sufficiently made out for me to be satisfied that there is a real risk of a breach. It is therefore not necessary for me to go and to consider the other aspects of Article 8 if I had been convinced that there was a prima facie indication of a real risk of Article 8 being breached if the appellant were returned to Kosovo." He went on to state in paragraph 23 the assumption that he would be returned to Kosovo in a responsible way with a sufficient amount of medication to tide him over. 8. Miss Weston criticises the Adjudicator's reasons for, amongst other things, failing to follow the guidance of the Court of Appeal in Secretary of State for the Home Department v Razgar [2003] EWCA Civ 840, especially Dyson LJ's guidance at paragraphs 22 and 23, and submits that the Adjudicator did not make express findings as to the impact of return upon this claimant, given not only his medical history and the medical evidence before the Special Adjudicator, but also the background -- in particular the circumstances of his fleeing to Macedonia and to this country. 9. An appeal was lodged against the Adjudicator's decision. On 7 March 2003, Mr Batiste (vice- president) refused leave to appeal, giving as the reason for that decision the following: SMITH BERNAL WORDWAVE "It is correct that the Adjudicator did not properly address the Article 8 issue for which the determination was remitted back to him, and in particular did not address the issue of proportionality. However, all the evidence is clear from the case file. Also the significance of illness, the relationship between Article 3 and Article 8, and post-traumatic stress disorder in the context of Kosovo has recently been well explored by the Tribunal." 10. He went on to conclude that the Article 8 claim could not succeed given the failure of the Article 3 claim. It may be that Mr Batiste did not have adequate time to read and digest the Special Adjudicator's reasons because had he done so he would have found that in paragraphs 21 and 22 of his decision, at least on one view of it, he said precisely that. I was, at the start of this hearing and remain, puzzled as to Mr Batiste's observation that the Adjudicator did not address the issue of proportionality. On the Adjudicator's findings there was no need to address the issue of proportionality which only arises under Article 8(2). Therefore, in the first sentence of his decision, Mr Batiste seems himself to have fallen into error, but an error which could only favour the claimant. If this claim was properly rejected by the Special Adjudicator under Article 8(1), then there would have been no ground for granting permission to appeal to the Immigration Appeal Tribunal. 11. It is necessary to heed the guidance of the Court of Appeal in Razgar which I set out in quotation marks. "We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged. It seems to us that this approach is consistent with the fact that the ECtHR considered the merits of the Article 8 claim in Bensaid. It is also consistent with what was said in paragraphs 46 and 64 of Ullah. "(b) Seriousness of harm. "23. The degree of harm must be sufficiently serious to engage Article 8. There must be a sufficiently adverse effect on physical and mental integrity, and not merely on health (Bensaid paras 46-48)." 12. It seems to me that, although of course the Special Adjudicator would not have had the guidance in Razgar available to him because it was only decided on 19 June 2003, he did approach his task in broadly the way indicated there. He first of all did consider the treatment that the claimant was receiving for his post-traumatic stress disorder in the United Kingdom and reached conclusions which were open to him about it, which I have already recited. SMITH BERNAL WORDWAVE Secondly, he went on to consider what was likely to happen to his mental health in the receiving country, and again, on the basis of objective material referred to in the case of Thaqi by the Immigration Appeal Tribunal, reached a conclusion which was open to him to reach. Thirdly, it seems to me that, on a fair reading of paragraph 22 of his decision, he concluded that there would not be serious harm to his mental health if he were to be returned to Kosovo and that the degree of harm, if any that would be occasioned to him, would not have a sufficiently adverse effect on his physical and moral integrity to infringe his Article 8 rights. It is only the opening word "therefore" at the beginning of that sentence which leaves any room for argument about precisely what he meant. It is a possible construction of his decision that he decided that because the Article 3 rights of the claimant would not be infringed, therefore his Article 8 rights would not be engaged. But he did have Bensaid referred to him. He expressly referred to it in paragraph 13 of his decision; and it seems to me highly unlikely that he could have fallen into that arguable error. I interpret the word "therefore" at the beginning of paragraph 22 as meaning no more than that he had regard to the findings set out in the previous paragraphs of his decision. 13. His conclusion in paragraph 22 is not challenged as itself irrational. The only ground of criticism made is that his reasoning was inadequate and his findings of fact inadequate. I do not accept those submissions. It seems to me that, although they are comparatively briefly stated, the Special Adjudicator's reasoning is unimpeachable and his findings of fact both adequate and not reasonably open to attack. 14. In those circumstances, it was quite unnecessary for him to go on to consider the question of proportionality as he declined to do, and wrong for the Immigration Appeal Tribunal to criticise him for failing to do so. It is not strictly necessary for me to make any comparison between the facts of this case and those considered by the Court of Appeal in Djali v the Immigration Appeal Tribunal [2003] EWCA Civ 1371 -- a decision reported on 16 October 2003. But it is, in my judgment, plain that comparing the condition of Mrs Djali with that of this claimant, this claimant cannot possibly say that his condition now or prospectively on return to Kosovo is worse than her's. Given that Mrs Djali had the benefit of a finding in her favour of the Special Adjudicator, and this claimant did not, it seems to me that if this claim were to be remitted to the Special Adjudicator to make further findings, then truly the exercise would be purposeless because his conclusion would have to be that the claimant's rights under Article 8(1) would not be infringed by his return to Kosovo. For those reasons, this application for judicial review is dismissed. 15. MS WESTON: My Lord, the claimant is in receipt of a public funding certificate so I would ask for a detailed assessment. 16. MR JUSTICE MITTING: There is not a copy on the file. Would you lodge one within 7 days? 17. MS WESTON: Certainly, My Lord. 18. MR WAITE: My Lord, just a minor point of correction. You said at one stage that the Adjudicator would not have had Bensaid before him. 19. MR JUSTICE MITTING: No, I said he did have Bensaid before him. 20. MR WAITE: Prior to that I think you meant to say he did not have Razgar. SMITH BERNAL WORDWAVE 21. MR JUSTICE MITTING: No, I said he had Bensaid before him. I did make a mistake in saying that he did not have regard to the guidance in Razgar. He could not have done and I will correct that in the transcript. 22. MS WESTON: My understanding was, my Lord, that you said he did not have Razgar before him which was right. 23. MR JUSTICE MITTING: I will read the passages where I referred to Razgar and Bensaid in the transcript. I am aware I have to make at least one correction. I will try and make a rational one. 24. MS WESTON: My Lord, I do have a copy of the certificate here. 25. MR JUSTICE MITTING: Then if you hand that in I will make the appropriate order. There is no order for costs? 26. MR WAITE: No, my Lord. SMITH BERNAL WORDWAVE