Bushi vs The Secretary of State for the Home Department Kosovo [2002] UKIAT 00449 (20 February 2002) [2002] UKIAT 00449

UKIAT
Bushi vs The Secretary of State for the Home Department Kosovo [2002] UKIAT 00449 (20 February 2002)
[2002] UKIAT 00449 · 2002-02-20
[1]Bushi vs The Secretary of State for the Home Department Kosovo [2002] UKIAT 00449 HX-09382-01 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 06/02/2002 Date Determination notified: 20 February 2002 Before Mr J A O'Brien Quinn QC (Chair) Mr D M Froome Mr C A N Edinboro Between Bushi APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The appellant, a citizen of the Federal Republic of Yugoslavia (Kosovo) and an ethnic Albanian, appeals against the determination of an Adjudicator (Mr P.M.S. Mitchell) dismissing his appeal against the decision of the Secretary of State to refuse his application for asylum.[2]The appellant was represented by Miss M. Phelan, of Counsel, instructed by Clore & Co., solicitors, while Mr T. Moore, Home Office Presenting Officer. appeared for the Secretary of State.[3]The grounds of appeal submitted in this matter are attached.[4]Leave to appeal to the Tribunal was granted by the Tribunal (Miss K. Eshun Vice President) on 6 December 2001.[5]In granting leave to appeal to the Tribunal, the Tribunal stated as follows:
'The grounds of appeal wish to adduce further evidence that the applicant is suffering from post-traumatic stress disorder, that a BBC news report suggests that the treatment for such disorder is generally psychotherapy and counselling with drugs in severe cases. It is submitted that the applicant is currently attending psychotherapy sessions and is still taking anti-depressants and tranquillisers. His condition is prima-facie severe. This appears to be in relation to the submission that the Adjudicator misdirected himself in finding that there would be no interference with the applicant's human rights, if he were returned to Kosovo.'
[6]When the appeal opened before the Tribunal on 6 February 2002, Miss Phelan submitted the medical report from the appellant's GP, Dr A.K. Ghosh, a report from the Brandon Centre, dated 4 December 2001, written by a Mr George M. Pearce, Psychoanalytic psychotherapist, who had examined the appellant's mental condition, and extracts from UNHCR notes on Kosovo, together with a BBC News Report on post-traumatic stress disorder.[7]The Tribunal also had before it, the CIPU Report issued by the Home Office in October 2001.[8]Miss Phelan argued that the situation where the appellant is concerned is such that, having regard to the fact that the appellant's psychological state is so precarious that returning him to Kosovo could be detrimental to his well-being, that he needed longer term treatment at the Brandon Centre, for which he had been booked in the near future, and that in the opinion of the psychoanalytic psychotherapist, deprivation of treatment would cause him to suffer unnecessarily. She also submitted relied on paragraph 5.12 of the CIPU Report, the health services in Kosovo, while capable of providing satisfactory primary care and were improving, some conditions, requiring more complex or long term treatment, were beyond current resources, which conditions included severe and chronic mental illness, from which the appellant suffered.[9]Miss Phelan also submitted that the appellant fell within the terms of paragraph 12 of the UNHCR recommendations with regard to 'persons with special protection needs'.[10]Relying on page 169 of her bundle, which dealt with the UNMIK situation in Kosovo, she stated that clinical psychologists were almost non-existent and that few psychiatrists had been trained in psychotherapy, was a strong indication that it would not be proper for the Secretary of State to return the appellant to Kosovo at the present time. She also relied on the same page 169, where it was stated that current lack of mental health structures for chronic psychiatric patients and the mentally disabled compelled UNMIK to appeal to host countries not to return such cases at the present time. She submitted that the conclusion, reached by the UNHCR at page 170 of her bundle, was that UNMIK strongly recommended the avoidance of the return of any persons who, among other things, were mentally ill.[11]She then drew our attention to the BBC News Report with regard to post-traumatic stress disorder and drew our attention to what was there stated, namely that the syndrome required professional attention and that those experiencing such problems should try to access help via the NHS or one's GP, for referral to psychiatric and psychological services. She submitted that such psychiatric and psychological services were not available in Kosovo and that the appellant, who showed all the symptoms of post-traumatic stress disorder, would be seriously affected if he were returned now to Kosovo.[12]Miss Phelan submitted that, in view of the medical and mental condition of the instant appellant, his appeal should be allowed.[13]We then heard Mr Moore, in reply, and he submitted that there was no indication that there was any breach of Article 3 or Article 8 of the European Convention on Human Rights and that neither of those two Articles would be breached by the Secretary of State's sending the appellant back to Kosovo at the present time.[14]He submitted that there was nothing to indicate that the appellant's condition was 'chronic', that it should be noted that it was 2½ years since the appellant's arrival that he had sought treatment from his GP and that no symptoms of depression or stress had been indicated before that.[15]He submitted also that the appellant's GP was not in a position to give a proper diagnosis that the appellant was suffering from post-traumatic stress disorder. He submitted that the report from the Brandon Centre did not show what tests or assessments had been made by the psychoanalytical psychotherapist in coming to his conclusion. He submitted that there is nothing in the evidence before us to enable us to assess whether or not the appellant had been properly diagnosed as suffering from post-traumatic stress disorder.[16]He admitted that it would appear that the medical facilities in Kosovo could not replicate those in the United Kingdom, nevertheless the background evidence before us in the CIPU report and otherwise, does show that the medical facilities in Kosovo satisfy primary care and pharmacological care. He submitted that, essentially, it boiled down to whether or not the appellant's need for psychiatric care and attention would be fulfilled in Kosovo and it must be considered whether the lack of such care, if it were proved, would amount to a breach of Article 3 or Article 8 of the European Convention. He submitted that what was stated at pages 169 and 170 of Miss Phelan's bundle did not deal with the case of 'chronic' disorder and that, having regard to the fact that no details of the tests used have been given, it could not be said that the appellant ought not to be returned at the present time.[17]The Tribunal then asked Mr Moore whether or not what was stated at the bottom of page 170 applied to the instant appellant, in that it there stated that the return of persons who are mentally ill should be avoided. 18. Mr Moore submitted, in reply, that it would first have to be established that the appellant was mentally ill and that that would not appear to be the case on the evidence before the Tribunal.[19]We then heard Miss Phelan in reply and she drew our attention to the Oxford Dictionary definition of the word 'chronic' and submitted that the reports of the psychoanalytic psychotherapist and the general practitioner were to the effect that the appellant needed at least twelve sessions in the UK before he would be fit to return and that it was clear from the report that, where the appellant was concerned, his rehabilitation would require encouragement and time. She submitted that the appellant showed all the symptoms set out at page 228 of her bundle and that it was clear that the treatment he would require was not available in Kosovo and that, in those circumstances, as long as his post?traumatic stress disorder continued, it would breach Articles 3 and 8.[20]The Tribunal then asked Miss Phelan what steps, if any, the appellant had taken to trace his family, as it would appear that, according to the psychoanalytic psychotherapist's report, some of his post-traumatic stress disorder would be attributable to the break-up of his family life. Miss Phelan took time to consult with her client and replied to the Tribunal to the effect that the appellant had contacted the Red Cross who were taking steps to find his family, and that the appellant had himself had made previous enquiries, but only learned that his family had left the village and had not yet been traced. He submitted that one of the most difficult matters with which the appellant had to come to grips was the news that his father had become a collaborator with the Serbs, but that, beyond that, he was not aware of his family's whereabouts.[21]The Tribunal then reserved its determination, carefully considered all the evidence and the submissions made to it, and directed itself that the burden of proof lay upon the appellant but that the standard of proof was the lower one laid down by the Court of Appeal in Sivakumaran and more recent decisions of the Courts and the Tribunal.[22]In our considered opinion, while we appreciate the fact that the appellant did not become a patient of Dr Ghosh regarding his anxiety and depression until 11 April 2000, even though he had arrived in the United Kingdom on 15 October 1998, nevertheless, looking at the medical and mental reports on the appellant and considering his age, he now being just over twenty years, and his history in Kosovo before he left, we find that we must agree that he is now suffering from post-traumatic stress disorder.[23]We are satisfied that he is undergoing treatment, and will require to undergo treatment for some time. We note what Mr George M. Pearce has stated in his report, namely that he needs longer term treatment at the Brandon Centre and that deprivation of that treatment would cause him to suffer unnecessarily.[24]We have looked at the situation in Kosovo, and while, on the documents before us, there is nothing concrete with regard to the services available to persons such as the appellant, nevertheless, referring to page 169 of Miss Phelan's bundle, where it is reported by the UNHCR as follows: 'The present ratio of one psychiatrist for every one hundred thousand inhabitants indicates the extent of the challenge posed. Clinical psychologists are almost non-existent and few psychiatrists have been trained in psychotherapy. The current lack of mental health structures for chronic psychiatric patients and the mentally disabled compels UNMIK to appeal to the host countries not to return such cases at this time.', it leads us to the conclusion that what UNMIK has stated, with regard to the avoidance of the return to Kosovo at this time, of persons who are mentally ill, should be given great weight.[25]While we fully appreciate what Mr Moore has argued, namely that we have not been shown what tests or assessments have actually been made on the appellant, in order for us to fully assess his mental situation, nevertheless, it is clear from the letter from the Brandon Centre, of 4 December 2001, that the appellant's situation has been assessed and the conclusion reached is that his psychological state is so precarious that returning him to Kosovo could be detrimental to his well-being. Further, we must accept that the whereabouts of his family is not known, and, even though efforts are being made to trace the family, it must be remembered that the appellant is only now twenty years of age and was parted from his family when he was still only a minor, and it would appear from the UNHCR and UNMIK reports, as well as from paragraph 5.12 of the CIPU report of October 2001, that severe and chronic mental illness are beyond current resources in Kosovo. In these circumstances we have come to the conclusion that in the particular circumstances of the present appellant, it would be detrimental to his mental health if he were to be returned there now.[26]In coming to that conclusion, we do not intend to open the 'floodgates' where all asylum seekers from Kosovo, who claim mental illness, are concerned, but, having regard to the particular background and age of the appellant, in the light of the medical and mental reports on him, we consider that it would be unsafe for him to be returned to Kosovo at the present time, when he is undergoing mental treatment and is likely to have to undergo such treatment for some time yet.[27]In all these circumstances, therefore, and in the particular circumstances of the instant appellant, we consider that the return of the appellant to Kosovo could amount to a breach of the appellant's rights under Article 3 and Article 8 of the European Convention on Human Rights, and we allow this appeal.[28]This appeal is, accordingly, allowed. J.A. O'BRIEN QUINN

Cited in 1 later judgment