MD (Medical Facilities, Adequate Treatment) Russia CG [2002] UKIAT 02678 (16 July 2002) [2002] UKIAT 02678

UKIAT

MD (Medical Facilities, Adequate Treatment) Russia CG [2002] UKIAT 02678 (16 July 2002)

[2002] UKIAT 02678 · 2002-07-16

[1]The appellant is the wife of Vladimir Drotsevitch, they are citizens of Russia. Mr Drotsevitch appealed a decision by the respondent who had given removal directions to Russia in respect of this couple and their two children and refused an asylum claim. When this matter was heard before an Adjudicator, Mrs D Taylor, she dismissed the appeal on both refugee and human rights grounds. However, in the final two paragraphs of her determination she stated:

"24. For reasons stated in the determination of the asylum appeal I do not accept that there are substantial grounds for believing the United Kingdom would be in breach of its obligations under the ECHR were the appellant to be returned to Russia. It is however clear, that Mrs Drotsevitch has a very serious medical condition. The letter from the hospital states that "

Marina is severely affected by her condition, and is deeply jaundiced. Drug therapy is available, but it is not very effective. The way it is looking at the present, we may well need to consider a liver transplant." It seems highly likely that the standard of medical care which will be available to Mrs Drotsevich would not be as high in Russia as it is in the United Kingdom. No doubt IAS would wish to put further information before the Secretary of State in relation to Mrs Drotsevitch's health, together with evidence concerning the availability of liver transplants in Russia before the Secretary of State. 25. This entire family have uprooted themselves from Russia and come to the United Kingdom primarily, in my view, because of Mrs Drotsevitch's poor health. Indeed Mr Drotsevitch himself appeared very anxious when he was giving his evidence and is clearly under great stress. I would hope therefore the Secretary of State would look sympathetically upon a request for exceptional leave to remain for this family, at least until Mrs Drotsevitch's medical condition is satisfactorily resolved."

[2]Leave was granted by a Vice President, Mr Freeman, where he noted that there was no application for leave to appeal against the dismissal of the human rights and asylum appeals or to challenge the Adjudicator's rejection of the asylum claim. The only ground of appeal was that the Adjudicator had accepted this appellant had a very serious medical condition. Mr Freeman went on to state the Adjudicator made an extra-statutory recommendation but did not "grasp the nettle" and consider whether the facts raise a case under Article 3 of the Human Rights Convention. He went on to state that:

"We can do this ourselves, but we shall expect to see some hard information about what treatment is likely to be available for the appellant's condition in Russia, which understandably her consultant here could not give."

[3]The evidence and submissions provided to us by Ms Swaniker indicated that Mrs Drotsevitch did have a liver transplant on 7 February 2002. A report, dated 15 March 2002, from the Department of Hepatology, St James's University Hospital Leeds, Dr N Breslin (consultant Hepatologist Gastroenterologist) sets out the situation at that date. The letter states:

"Ms Drotsevitch underwent liver transplantation for her primary biliary cirrhosis with standard arterial venous and biliary anastomosis. She had an uneventful postoperative course apart from the development of medication related hypertension. Her operation was performed on the 7th February and she has been followed up in the clinic for regular intervals since then. Her liver function tests continue to improve at each visit. She has normal renal function satisfactory haematological parameters. She will need to remain on long term immuno drug levels, initially these will be done weekly, then fortnightly, then monthly and ultimately every 3 to 4 months. There would need to be performed under a supervision of a specialist experienced in managing patients on immuno suppression and with an interest in liver diseases. Any interruptions in this treatment would result in potential for life threatening side affects from the drugs or rejection of the liver transplant if the drugs were stopped, which again could have very serious consequences. I am unsure as the availability of the availability expertise required to monitor and treat Ms Drotsevitch in the future were she returned to Russia. We would obviously need to be clarified. Having successfully undergone her transplantation and based on current rate of progress we would anticipate that Ms Drotsevitch should return to a normal quality of life, state 5 years survival prospect in the origin of 70%. I trust this information is of use to you."

[4]Ms Swaniker advised us that she had made attempts to obtain more detailed information as to the treatment and services available to the appellant on return to Russia but, had been unable to locate any objective information beyond that contained in the Home Office CIPU Report. She referred us to the CIPU Report of October 2001, paragraph 6.19 relating to the health system in the Russian Federation. A similar statement is made in the April 2002 report at paragraph 4.26. We quote that paragraph: "Medical Services 4.26 The Russian Federation provides a basic health service for all its citizens. All health care was formerly financed directly by the state, but in 1993 a health insurance scheme, the Medical Insurance Fund, was introduced, with payment by employers rather than by the state. In 1998, there were 4.7 physicians and 11.8 hospital beds per 1,000 people. Difficulties experienced by the health care system have been reflected in a serious deterioration in the health of the population. The reasons cited for this include unsatisfactory environmental conditions, a decline in immunity, a shortage of vitamins and medicines, and insufficient inoculations. Meanwhile, average life expectancy for males decreased from 63 years in 1990[2] to 58 years in 1999, and the ongoing decline of Russia's population figures, which have fallen by two million in the past decade, has caused alarm. Factors contributing to this decline include high rates of suicide, alcoholism, abortion and infant mortality. Russia has one of the highest abortion rates in the world, with 66 for every 100 pregnancies. [21]

[5]She also advised us that since the liver transplant, the appellant's situation had been gradually improving and that she had responded to treatment well. That treatment was proceeding as stated in the report of Dr Breslin.

[6]She submitted that in the situation we should uphold and confirm the recommendation made in the final paragraph of the Adjudicator's determination on the basis that the appellant and her family should be allowed to remain on exceptional basis until her medical situation was settled.

[7]Mr Blundell submitted that as the Vice President had set out in the approval of leave, we should grasp the nettle and, on the facts available, conclude whether there would be a breach of

Article 3 of the ECHR

if the appellant were to be returned to Russia. He submitted that on the current facts there was no breach of Article 3 as it appeared that medical treatment was available to this appellant on return, while it may not be of the same level as the United Kingdom, there was no evidence to indicate that this appellant would fail to get treatment or that in any way he would suffer inhuman or degrading treatment. The issue:

[8]We found the issue before us to be solely whether if the appellant were returned to Russia, that there would be a breach of the obligations on United Kingdom under the ECHR. In particular that there were substantial grounds for believing that there was a real risk this appellant could suffer treatment in breach of provisions of

Article 3 of the ECHR

. Decision:

[9]We have carefully noted the situation of this appellant. She comes before us subsequent of a dependant claim made by her husband on asylum and human rights grounds. The two children of this couple are included in that claim. The husband's claim has been dismissed, that decision is not appealed to us.

[10]We note that Mrs Drotsevitch has undergone the liver transplant that was necessary for her. It now appears she is in an improving situation. She is responding to treatment in a satisfactory manner in accordance with the information provided by Dr Breslin.

[11]From a consideration of the CIPU Report, which is the only objective evidence we have, we note that while it is of the very generalised nature and reflects some problems with the Russian health system. It does not however indicate that this appellant would be unable to access the medical treatment that is required for her in her current predicament. Which would appear to include the requirement for long-term immuno suppressant drugs and regular monitoring.

[12]Given this situation, we find that there would not be a breach of Article 3 or any other of the Articles within the ECHR should this appellant be returned to Russia. We do not have reasons to conclude that there is a real risk of this appellant suffering inhuman or degrading treatment on her return. We have also taken into account the situation of the two children aged 17 and 6 and the appellant's husband. There does not appear to be any problems in their regard and there is no claim that they are settled or have any claim under

Article 8 of the ECHR

[13]The appellant is of course able to make further application to the respondent for any extended period of recovery she or her medical advisors may think appropriate. We however do not make any recommendation.

[14]The appeal is dismissed. A R Mackey