Shehu vs The Secretary of State for the Home Department Kosovo [2002] UKIAT 05103 (07 November 2002) [2002] UKIAT 05103

UKIAT
Shehu vs The Secretary of State for the Home Department Kosovo [2002] UKIAT 05103 (07 November 2002)
[2002] UKIAT 05103 · 2002-11-07
[1]Shehu vs The Secretary of State for the Home Department Kosovo [2002] UKIAT 05103 CC/04553/2002 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 13/09/2002 Date Determination notified: 07 November 2002 Before Dr A U Chaudhry Mr N Kumar JP Between Shehu APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The Appellant, a citizen of the Federal Republic of Yugoslavia, was given leave to appeal to the Tribunal against the Determination of an Adjudicator, Mr P Digney, who dismissed his appeal against the Respondent's decision of 20th June 2001 giving directions for his removal from the United Kingdom and refusing to grant him asylum.[2]Mr B Halligan of Counsel appeared on behalf of the Appellant, and the Secretary of State was represented by Mr G Saunders, a Home Office Presenting Officer.[3]The Chairman who gave leave to appeal in this case did so on the basis that he considered that it was arguable that the Adjudicator's approach to the medical evidence was flawed.[4]The medical evidence in this appeal is limited to a report given by Dr. Robert Cohen, a consultant psychiatrist. The report that was before the Adjudicator was that dated 21st February 2002. We wish to make it clear that this Adjudicator did not see a subsequent report which was produced by Dr. Cohen, which is before us, dated 19th June 2002. We consider that it was very unfortunate that the Appellant's representatives did not consider it expedient to obtain additional information from Dr. Cohen so that it was available to the Adjudicator at the time of his adjudication.[5]We will not enter into any lengthy observations in this case, save to say that the Adjudicator was somewhat critical of Dr. Cohen's first report. Ms Braganza, who appeared on behalf of the Appellant before the Adjudicator, made a somewhat elementary mistake in submitting to the Adjudicator that he was bound to accept the medical report as there was no evidence to the contrary. The Adjudicator did not agree with this submission and, of course, as a matter of law, he was quite correct. It is for an adjudicator or this Tribunal to consider any medical evidence but we are not bound to accept that it is reliable and acceptable. The Adjudicator deals with the medical position in paragraph 7 of his Determination. In the second paragraph of his Determination, at page 6, he says:
"Whilst what the appellant suffered was appalling, and he may have been traumatised after what he experienced, his evidence suggests that he recovered and could face life. I am not in a position to decide whether he is deceiving himself or malingering, but I conclude that his present state is a reaction to the refusal and will disappear once the case is over. I can see no reason to suppose that he has ever been suicidal and I do not believe that there is a risk that he will commit suicide if he is returned."
[6]It would appear that the Adjudicator made a number of disparaging remarks; in particular, we refer to the top of page 6 of his Determination. With all due respect to the Adjudicator, we do consider that he has to some extent attempted to adopt the role of a psychiatrist.[7]We have reached the conclusion that the Adjudicator has not dealt with the psychiatric evidence appropriately. We have some sympathy for him in that he did not see the subsequent report of 19th June 2002. There, Dr. Cohen has confirmed that the diagnosis of PTSD is based almost entirely on the patient's self-report of subjective symptoms. However, he has gone on to give reasons for concluding that, in this particular case, the Appellant does suffer from PTSD, and he does require substantial treatment and that he is a suicide risk. In his earlier report, Dr. Cohen gives an indication of the sort of treatment that the Appellant will require. At page 59 of the Appellant's bundle, at the final paragraph, he says:
"The severity of his depression is such that I feel his condition warrants a course of anti-depressant medication. In addition, he also needs treatment for the treatment of PTSD. This is best offered in the form of EMDR (Eye Movement Desensitisation Reprocessing) a psychological technique usually offered by a clinical psychologist to reduce distressing symptoms of nightmares and day-time flashbacks."
[8]Mr Saunders very sensibly accepts that if that treatment is required there are no such facilities providing the same in Kosovo.[9]Mr Halligan, for the Appellant, submits that his client's rights under Article 3 will be infringed if he is forced to return to Kosovo. He submits that the new or updated medical evidence makes a considerable difference to his client's appeal. He accepts that it is very unfortunate that such information was not made available to the Adjudicator.[10]Mr Saunders, for the Secretary of State, whilst accepting the limitation on the facilities available for the treatment of persons with psychiatric difficulties in Kosovo, submits that to succeed the Appellant needs to show what treatment he is now receiving in this country and what he would need by way of treatment in Kosovo. Mr Saunders submitted that we should reach the conclusion that the Adjudicator's Determination was in no way flawed. He pointed out the fact that the Adjudicator had looked at the chronology with care; he had taken there particular notice of the fact that at the time of the interview there were no apparent problems from a psychiatric point of view but within a few weeks he was seen by a psychiatrist with a somewhat different diagnosis. In conclusion, Mr Saunders submitted that the Adjudicator was perfectly entitled to reach the conclusions that he did having regard to the background and the psychiatric evidence as it was before him.[11]We have given anxious consideration to this appeal. We do not think it will be appropriate to remit the case for re-hearing by another Adjudicator. We are entitled to give proper consideration to all the medical evidence. We are impressed by Dr. Cohen's letter of 19th June 2002. As the Adjudicator has said, this Appellant had an appalling and traumatic time in Kosovo. It would seem to us, that as a matter of common sense, that he was likely to be very traumatised. This is in no way inconsistent with the present medical evidence. We are particularly concerned about the prognosis as far as it relates to the suicide risk. We fully appreciate the fact that some appellants might be able to mislead a consultant psychiatrist. Indeed, this is something which Dr. Cohen accepts as being a possibility. However, Dr Cohen has concluded that there are clinical findings that indicate that the appellant has genuine medical problems.[12]We have, after the consideration mentioned above, decided to allow this appeal. On the basis of the present medical evidence, we are satisfied that there will be a substantial risk that this Appellant would not receive appropriate medical treatment if he were forced to return to Kosovo. We also consider that it is likely that the removal in itself would be traumatic and not conducive to a proper recovery. His Honour Judge D Holden Chairman

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