Bushati & Ors v The Secretary of State for the Home Department [2002] UKIAT 07423 [2002] UKIAT 07423

UKIAT
Bushati & Ors v The Secretary of State for the Home Department [2002] UKIAT 07423
[2002] UKIAT 07423 · 2003-03-27
[1]Bushati & Ors v The Secretary of State for the Home Department [2002] UKIAT 07423 HX44741-2001 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 16/01/2003 Date Determination notified: 27 March 2003 Before DR H H STOREY (CHAIRMAN) MRS A J F CROSS DE CHEVANNES MR YILKA BUSHATI (+DEPENDANTS) Between Bushati & Ors APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The appellant, a national of Federal Republic of Yugoslavia, has appealed with leave of the Tribunal against a determination of Adjudicator, Ms P Monro, dismissing the appeal against the decision of the Secretary of State refusing to grant leave to enter on asylum grounds. Miss B Gill of Counsel instructed by Gupta & Partners (Harlesden) Solicitors appeared for the appellant. Mr S Walker appeared for the respondent.[2]The Tribunal has decided to reconfirm its earlier decision to allow the appeal on Art 8 grounds.[3]The Tribunal previously determined this case on 12 August 2002 under reference [2002] UKIAT 03625 , allowing the appeal. When the Secretary of State then applied for leave to appeal to the Court of Appeal, the Deputy President concluded that it was arguable the Tribunal had erred in law. But instead of granting leave to appeal to the Court of Appeal he set aside the Tribunal's determination and directed that the same Tribunal reconsider the appeal.[4]One of the original Tribunal members was unable to sit. Both parties consented to the Tribunal proceeding with two of the three original members.[5]The grounds of appeal submitted by the Secretary of State in response to the Tribunal`s decision to allow the appeal on Art 8 grounds alleged several flaws in the Tribunal`s determination. One was that the Tribunal had wrongly taken account of the identification in the UNHCR Position Paper on the Continued Protection Needs of Individuals from Kosovo. It was stated in the grounds that:
"[t]he UNHCR no longer lists victims of sexual violence as a specific protection category "
. Another was that the Tribunal had not had regard to the April 2002 CIPU Report; the KIP report for Decan and the KIP Factsheets on the Health System in Kosovo and Services for Women". A third alleged flaw was that the Tribunal had wrongly relied on previous UNHCR Position Papers which had identified single female-headed households as a vulnerable category despite the fact that UNHCR no longer identified them as such. The grounds concluded as follows: "In conclusion, it is submitted that the Tribunal`s starting point was an error of law and that their findings that the claimant will not be traumatised by the process of return (paragraph 8) nor stigmatised (paragraph 11) cannot lead to a successful human rights appeal in her favour".[6]We have set out the Secretary of State`s grounds in some detail because it became apparent during the hearing that they were inaccurate and misleading in several respects. More care should have been taken in their drafting. In our view we very much doubt that the Deputy President would have acted under provision of Rule 27 of the Immigration and Asylum Appeals (Procedure) Rules 2000 had he been aware of the factual inaccuracies in the grounds.[7]What are these inaccuracies?[8]In the first place, as Mr Walker conceded, the grounds were wrong to contend that the April 2002 UNHCR Position Paper no longer lists victims of sexual violence as a specific protection category. We have already quoted the excerpt from the March 2001 UNHCR Position Paper. That dated April 2002 lists five protection categories, one of which is described thus:
"The claims of traumatised individuals such as victims of torture or particularly egregious forms of violence (for example ex-detainees, or survivors of sexual violence), or witness [sic] to crimes against humanity, will require special attention, in that their past experiences will be highly relevant in determining their continued protection needs"
[9]Although this formulation is different from the March 2001 formulation, it plainly continues to identify survivors of sexual violence as a special risk category.[10]In the second place, the Tribunal never sought to base its findings on the continuing existence within the UNHCR Position Paper of a separate category dealing with single women returning with children. Certainly the Tribunal did state that as a single women returning with children, the appellant would find herself in a vulnerable position. But that was in the context of a paragraph that made very plain that there were two further factors of relevance in her case. By quoting a passage from this paragraph out of context, the author of the grounds created a quite false impression of why the Tribunal concluded there was a violation of Art 8.[11]In the third place the grounds were also wrong to state that the Tribunal found that the process of return would not traumatise the claimant. The paragraph in question found rather that she would not be "re-traumatised by the process of return" and went on to state that the medical report had made quite clear that the claimant would deteriorate if she did not have a stable environment.[12]Fourthly, the grounds were wrong to state that the Tribunal concluded the claimant would not be stigmatised. To the contrary, we concluded she would. At paragraph 8 we stated:
"…there was no good reason to doubt that upon return to her home area the appellant would be stigmatised by her community, who would know of the rape because of the fact that it was witnessed by her parents in law, her own two children and two village children."
[13]The paragraph identified in the grounds as being one where it was supposedly stated she would not be stigmatised was one dealing with the separate Art 3 issue of whether the objective country materials showed that stigmatisation of rape victims was "widespread and systematic" in Kosovo.[14]This leaves only one arguable point in the grounds - that the Tribunal did not have regard to the CIPU report for April 2002 and the KIP report for Decan the KIP Factsheets on the Health System in Kosovo and Services for Women. Since it appears these were placed before the Tribunal, we are prepared to accept that we erred in not having regard to them. Thus the grounds have some remaining, albeit limited, efficacy.[15]However, in view of their limited efficacy, we consider that we need only reconsider whether, in the light of these further materials, we should have come to a different conclusion as regards Art 8. Miss Gill urged us to reconsider Art 3, but for reasons which will become clear, we see no proper basis for doing so.[16]Before proceeding further, it is helpful, in our view, to set out what we said in our previous determination at relevant paragraphs, square-bracketed to distinguish their numbering from that used here (if due to typing errors or the like the following departs in any respect from the original copy, the latter is to be treated as the correct record):
"[3]. The adjudicator found credible the appellant`s evidence that in February 1999 the appellant`s house had been raided by Serbian soldiers who raped her in front of her parents-in-law and children. However, notwithstanding her acceptance of past persecution, she did not consider the appellant qualified for asylum or under Article 3 because the situation in Kosovo was now such that she would no longer face a real risk of persecution at the hands of the Serbs. She concluded that, although the appellant would be returned as a single parent along with her children, there was no evidence she was exhibiting signs of trauma, no evidence that her mental health would deteriorate, no (or "slim" evidence) evidence that people in her neighbourhood knew she was sexually abused and no evidence she would have need of specialist therapeutic services which might not be available in Kosovo. But the adjudicator did go on to make a recommendation for ELR given the difficulties she would face as a single woman with children who might well, she said, be stigmatised as there would be speculation about the reason for the absence of her husband and the appellant had a subjective (even if not objective) fear of her father whose control she would fall under. In relation to Article 3, she also noted that it was the medical opinion of Dr Oakes that her psychological state had significantly deteriorated since her husband's disappearance. [4]. The grounds rightly identify a number of flaws in the adjudicator's determination. One is the tendency of the adjudicator to refer to there being "no evidence" where there clearly was some, even if only that of the appellant herself. This led her into error at paragraphs 43 when she said that the was "no evidence that people in the neighbourhood know that she was sexually abused; there is only speculation."
That was difficult to square with paragraph 17 where she recorded the appellant's evidence as being that her rape had been witnessed by two other village children (as well as her parents in law). It also led her into error in concluding that there was "no evidence" that the appellant's mental health would deteriorate if she returned to Kosovo. The psychiatrist's report to which the adjudicator attached weight, had noted that the appellant's symptoms of depression were unlikely to stabilise until her family "is allowed to exist in a [stable] environment". [5]. Another flaw we noted was an apparent contradiction between her conclusion in respect of the appellant`s asylum and human rights claim that she would not be stigmatised and her conclusion to the opposite effect in respect of a recommendation for exceptional leave to remain. [6]. Had it not been for these errors, we consider the adjudicator would have concluded that the appellant did in fact fall within one of the categories identified by UNHCR as in continuing need of international protection, namely:
"Victims of sexual violence. Survivors of this crime who remained traumatised, including those who because of the sexual violence will be stigmatised and ostracised by the community in which they would be expected to return". [7]. The basis for UNHCR continuing to identify this category is further evidenced by the US State Department report for February 2001 which reports that "
Rape is underreported significantly due to the cultural stigma attached to victims and their families". The CIPU report for October 2001 notes that "There is severe stigma attached to rape, which affects the victims entire family and this leads to under reporting…". The Tribunal in Kurshumliu [2002] UKIAT 00857 has usefully summarised other sources which are to similar effect. That Tribunal concluded, rightly in our view, that there is no country information to show that the passage of time since the end of the war has improved conditions for rape victims. [8]. Whilst it is true that there was no strong medical evidence to show that she would be re-traumatised by the process of return, the medical report had made quite clear that she would deteriorate if she did not have a stable environment. Furthermore, given the adjudicator's acceptance of the appellant's evidence otherwise, there was no good reason to doubt that upon return to her home area the appellant would be stigmatised by her community, who would know of the rape because of the fact that it was witnessed by her parents in law, her own two children and two village children. The fact that her own children may have failed to understand what had happened did not undermine the reasonable likelihood that other villagers would have come to know from the four other persons who witnessed the rape that a serious attack on the applicant [sic] had taken place. [9]. It remains, however, to consider what is entailed by these conclusions. [10]. Plainly they did not qualify the appellant for asylum, there being no real risk of future persecution at the hands of the Serbs and no real risk that the new authorities in Kosovo would be unable or unwilling to protect the appellant (assuming she could establish she was a member of a particular social group consisting of women raped by the Serbs) against societal hostility directed at her. [11]. In Kurshumliu the Tribunal considered that "by a narrow margin and on the particular facts" what was likely to happen to the appellant amounted to inhuman and degrading treatment infringing her human rights under Article 3. However, like the Tribunal did in the case of M (01TH3623), we do not think that there was sufficient evidence to bring the appellant's case within the high threshold set by Article 3. There is insufficient evidence in our view to show that the difficulties the appellant faces on return would reach the high threshold of severity of harm required under the Refugee Convention and under Article 3. That is because we do not think that the objective materials relied upon by the appellant`s representatives demonstrate that stigmatisation of rape victims is widespread or systematic. In assessing the severity of harm we would expect some factoring in of the ameliorative effects of rape counselling services put in place by the Kosovan authorities in at least some areas, in conjunction with international NGOs, as part of an attempt to respond to the problems caused by the widespread use by the Serbs of rape as a weapon of war. [12]. There remains the question, however, of whether, even though not rising to the level of serious harm, the harm likely to face the appellant upon return would give rise to a real risk to the appellant`s right to physical and moral integrity. In our view there was a need for the adjudicator to have considered this issue. She wrongly assumed that because the appellant failed in her Article 3 appeal there was no viable ground of appeal under Article 8. [13]. In this case there was an obvious need for the adjudicator to have considered Article 8 and in undertaking the necessary balancing exercise to have considered cumulatively two different factors strongly indicating that to remove her would be a disproportionate interference with her right to respect for private life. One was her likely stigmatisation. We have already made clear our views on the relevance of that factor in this case. The other was her psychological vulnerability. Even though there was no strong medical evidence identifying a real risk of retraumisation, there was sufficient medical evidence to establish that as a single woman returning with children the appellant would find herself in a vulnerable position not only in her own home area but also, if she tried to relocate, within other areas. That psychological vulnerability was clearly attested to by Dr Oakes. [14]. Like the Tribunal in M, we are fortified in our conclusion that the adjudicator should have found a violation of the appellant`s right to respect for her physical and moral integrity as an aspect of her right to respect for private life by the fact that UNHCR continues to identify victims of rape as a category in need of continuing international protection. [15]. For the above reasons, although we would affirm the adjudicator's decision to dismiss the asylum and Article 3 grounds of appeal, this appeal is allowed on Article 8 human rights grounds".[17]Having set out our previous analysis we ask ourselves, does the further evidence identified by the Secretary of State warrant that we reach a different conclusion as regards Art 8.[18]We think not. As already noted, the April 2002 CIPU report notes in identical terms to the October 2001 report that "There is severe stigma attached to rape, which affects the victims entire families and this leads to under reporting…" The US State Department Report of April 2002 states that:
"Rape is underreported significantly due to the cultural stigma attached to victims and their families. Tradition prevents much discussion of the topic of rape among ethnic Albanians, since the act is seen as dishonouring the entire family…"
[19]As regards the other materials, the KIP report for Decan, the KIP Factsheets on the Health System in Kosovo and Services for Women, the information they provide does not identify any support for traumatised women within the appellant`s home area of Decan. Even had this evidence shown that there were such facilities in Decan, we do not think this would have resulted in any significant difference in the situation that would face the appellant upon return, since she would still face stigmatisation from the local community. However, since mention is made in these materials of support facilities for traumatised women in at least two other municipalities, the question does arise whether this fact warranted (warrants) a different conclusion about the viability of internal relocation. Having considered the matter, we have decided it does not warrant a different conclusion. For one thing, up to date materials continue to emphasise that rape victims are stigmatised. But even if by relocating the appellant was able to achieve anonymity, it remains, given the psychiatric report, that she would be having to conceal her past history to those in her own community (apart from medical staff) and she would be in a vulnerable psychological state at real risk of deteriorating. It would not assist in this regard that she would be relocating as a single woman with three children to look after.[20]There are three further matters we need to deal with.[21]In the course of his submission Mr Walker urged the Tribunal to reconsider its assessment of the medical evidence in this case. He drew our attention to passages in Dr Oakes`s report where he finds that there were no typical post-rape manifestations and that the appellant's nightmares did not seem to be rape-specific. Dr Oakes also commented that the appellant discussed a range of symptoms which were largely reactive to current social difficulties.[22]Had we been dealing in our original determination with this appeal at first instance, we may have seen these passages from Dr Oakes as of decisive significance. However, whilst we identified certain errors in the adjudicator's determination, these were not such as led us to conclude we should interfere with her own assessment of the appellant's history of being a rape victim. Having heard the appellant give oral evidence and found her a frank and credible witness, the adjudicator concluded that she had given an entirely credible explanation for not mentioning the rape to her husband. Whilst there was a lack of clarity in the adjudicator's eventual conclusions, it was plain that they were based on a finding that the appellant had been a rape victim. We were not prepared to interfere with that finding in our original determination and we are not prepared to do so now.[23]Mr Walker also submitted that, since the Tribunal had decided this case previously, the Court of Appeal's judgment in the case of Ullah [2002] EWCA Civ 1856 had now modified the approach that had to be taken in Art 8 cases such as M and this one. The purport of this judgment was, he said, that if the claim failed to succeed on Art 3 grounds, that was the end of the matter. It was not open to an adjudicator or the Tribunal to allow such an appeal under Art 8.[24]With respect to Mr Walker, we think that that is far too broad a reading of Ullah. The Master of the Rolls very precisely states the application of this judgment as being confined to cases in which conditions in the receiving country are the sole ground on which a claim is based. In our view his judgment does not cover a case such as this. In this case the claim was made on the basis of a combination of grounds, in part relating to the situation in the receiving state (FRY) as a vulnerable individual she would face stigmatisation as a rape victim and in part relating to the situation of the appellant in the UK where she has lived since mid-1999 with her three children (one being born here). The appellant's psychological difficulties and her need for a stable environment meant that elements of her private and family life in this country had more significance than would have been the case otherwise. Were Ullah to be read more broadly, it would not only place it at odds with the European Court of Human Rights judgment in Bensaid (2001) 33 EHRR 10 (which their lordships considered) but several other judgments of the Strasbourg Court, such as Nasri v France (1996) 21 EHRR 458 . Whilst their lordships were anxious not to extend that jurisprudence, they did not state they were resiling from it.[25]Miss Gill sought to persuade us that in the course of reconsidering our decision, we should take a different view of the appellant`s situation under Art 3. We were not persuaded by her arguments as we consider that paragraph 11 of our original determination sets out valid reasons for concluding that return of this appellant would not expose her to a real risk of harm contrary to Art 3.[26]For the above reasons our conclusion is that a reconsideration of this appeal does not persuade us to reach a different conclusion from that we took previously.[27]Accordingly, we reconfirm our original decision to refuse the appeal on asylum and Art 3 grounds but to allow it on Art 8 grounds. DR H H STOREY VICE-PRESIDENT