Ratkoceri & Ors v The Secretary of State for the Home Department Kosovo [2002] UKIAT 08358 (29 April 2003) [2002] UKIAT 08358

UKIAT
Ratkoceri & Ors v The Secretary of State for the Home Department Kosovo [2002] UKIAT 08358 (29 April 2003)
[2002] UKIAT 08358 · 2003-04-29
[1]Ratkoceri & Ors v The Secretary of State for the Home Department Kosovo [2002] UKIAT 08358 HX44221-2001 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 12/11/2002 Date Determination notified: 29 April 2003 Before His Honour Judge D Holden (Chairman) Mr R Hamilton Ms S S Ramsumair, JP Between Ratkoceri & Ors APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The appellants, citizens of Yugoslavia from Kosovo, were given leave to appeal against the determination of an Adjudicator, Miss M N Lingard, who dismissed their appeal against the respondent's decision refusing to vary their leave to remain following the refusal of their claim for asylum.[2]The appellants were represented by Mr P Jarro of Counsel and the respondent by Mr J McGirr, a Home Office Presenting Officer.[3]The Vice President who gave to appeal in this case did so because he considered that the grounds of appeal raise issues which merited further consideration by the Tribunal.[4]We have considered the grounds of appeal but will not comment at length on them at this point in our determination because it appears to us that the main aspect for consideration is the position of Mrs Ratkoceri. We shall, of course, deal with her position and go on in to consider other matters raised in the grounds of appeal.[5]We confirm that we have considered the Adjudicator's determination with care. For reasons that will appear hereafter, we take the view that the Adjudicator, Miss Lingard, has given very careful consideration to the facts, the law and all the issues. In the main, we agree with her conclusions. In fact, we only take a different view in one limited area although it is an area that is of considerable importance to the appellants.[6]The Adjudicator has dealt very clearly and succinctly with the background as far as it concerns all the dependants. We also note that the appellant's credibility has been accepted. It appears that Mr Ratkoceri joined the LDK in 1987 when he was at university. He was detained for a short time by the Serbian police in February and June of 1998 and on the second occasion he was accused of supplying food to the KLA. In December 1998 he was again stopped by the Serb police and he was beaten and his birth certificate was confiscated. He was told that if he was found in that area again he would be shot. In February 1999 the appellant joined the KLA but before he went on active duty he was given leave by them and returned to his family in March 1999 when, at the beginning of April, he and his wife and two children and parents were forcibly evicted from their home by the Serb police. He was on his way to the Macedonian border with his family when he was stopped by the police again, tied up and beaten. He was released when the appellant's father paid a bribe. Similar incidents occurred on another couple of occasions whilst they were waiting to cross the border into Macedonia. He eventually left Macedonia although Mr Ratkoceri's parents eventually returned to Kosovo just before Christmas 1999 as they wanted to investigate their property. Apparently they have remained there because they were able to get back into their house. Mr Ratkoceri does not want to return because he fears being persecuted by the KLA or the TMK. He says that this fear arose when his father discovered a letter on the second day after returning to the territory. It was a letter from the KLA that asked for information as to his whereabouts and accused him of being a deserter and indicated that he would, as a deserter, be bought to trial. Mr Ratkoceri's father reported the matter to the international police in Kosovo and they promised to do something about it although nothing appears to have been done. Another letter was sent to the father's home about three weeks later indicating that disloyalty would never be forgotten. This was reported to the police who investigated the matter although they never reported the result of their findings after their investigations.[7]Mr Jarro submits that the Adjudicator failed to consider the specific circumstances of the first appellant when considering the question of sufficiency of protection. He referred us to paragraph 41 of the determination where it is said:
"In my assessment, however, of the appellant's asylum part of this appeal I must give due weight in my considerations to the Tribunal "starred" determination of Dyli [2000] IMLR 372 , also referred to in legal decisions adduced on behalf of the appellant, and the decision of the Administrative Court in Vallaj ( CO/2738-2000, 21 December 2000 , unreported). In my view, given all the objective evidence before me it seems that there is a sufficiency of protection in Kosovo, in the Horvath sense, afforded to Kosovan citizens. The appellant was clearly not a deserter and although there may well be certain individuals who may possibly make arbitrary decision of this nature, to all intents and purposes the appellant is someone who clearly did fight with the KLA and who could not reasonably be viewed as someone who was supportive of the Serbian authorities or failing to give active support to the fight for Kosovan autonomy within the region."
However Mr Jarro submits that it is necessary to consider the perception of those that were making threats against him. In short, they would regard him to be a deserter and it was unlikely, in those circumstances, that any adequate protection could be provided. It was submitted that protection had to be effective.[8]We have considered Mr Jarro's submissions on this aspect with care. We agree that the position of the appellant's parents is not an important factor. It appears that they are contented to live in Kosovo without difficulties and it is right to confirm that we accept that the parents position is somewhat different. We are not, however, persuaded that the Adjudicator's conclusions in relation to Mr Ratkoceri are flawed. As the Adjudicator points out in paragraph 40 of her determination, the authorities have been willing and able to properly investigate the matter. We appreciate that it might be very difficult in practical terms for the authorities to succeed in taking matters further having regard to just letters and telephone calls. We are not able to accept that it is reasonably likely that the protection that will be afforded to him and his family would be insufficient.[9]We now turn to consider Mrs Ratkoceri's position. We note that the Adjudicator has commented on her unfortunate position and she did have before her a medical report given by Dr E Zapata-Bravo. This report appears at pages 55 to 78 of the appellant's bundle of documents. It is a very detailed report and gives us a clear indication that Mrs Ratkoceri had very disturbing and upsetting experiences. Mr McGirr submits that Dr Zapata-Bravo was wrong to diagnose a post-traumatic distress disorder because he has not linked that to a diagnosis with any dramatic experiences. In other words he was suggesting that the specialist had no evidence before him to indicate what caused the symptoms in question. We cannot accept that submission because it is very clear that Dr Zapata-Bravo had ample information for him to make the diagnosis that he in fact made. One only has to consider paragraphs 3.4.6 and 3.4.7. Her experiences must have been extremely disturbing. We note that amongst other things she saw bodies lying by the roadside and she actually witnessed some killings. She saw old people dying due to the harshness of the conditions and heard the shootings and the cries of people. We are in no way surprised that her experiences led to her present condition. That is one that includes not only post-traumatic distress disorder but severe depression.[10]We accept Mr Jarro's submissions that this lady's condition is serious and it is one that requires treatment and careful handling. We have had the advantage of seeing a supplemental report from the specialist. This is at pages 137 to 140 of the bundle of documents. It is unfortunate that the information now given by Dr Zapata-Bravo was not before the Adjudicator because we suspect that it might have made a considerable difference to the view that she took in relation to this lady's position. The specialist touches on the objective evidence which might give some indication as to what health services are available for someone in her condition. In particular he refers to the UNMIK document entitled "Briefing Note on the Repatriation of Kosovo/Albanians" that is dated 10 January 2002. This document appears to confirm that Kosovo's health services cannot provide satisfactory treatment for certain conditions including severe and chronic mental illness and psycho-social disorders. It also indicates that the only drugs that are available for treatment are for minor conditions and common diseases. He reiterates on the second page of his supplemental report that Mrs Ratkoceri's post-traumatic stress disorder and her depressive episode are both severe conditions that at the time of his assessment had been present for nearly three years. He considered "they are typically severe and chronic mental illness and psycho-social disorders in the sense referred to in the UNMIK report". He also opines that a lack of adequate treatment could make her condition more chronic or even incurable. It is also interesting to note that he deals with the Adjudicator's comment as to the benefit of the patient returning to her own cultural roots etc. He accepts that this is, in general, true but not necessarily so in this particular case. He considers that there is a need to distinguish between, on the one hand, treatment measures that are fundamental and immediate and, on the other hand, rehabilitation factors that are contributory but not essential for the time being. He says that the treatments suggested in his first report are the essential ones for the control, reduction and eventual cure of Mr Ratkoceri's mental disorders. He considers that if they are not in place, a contributory factor such as a return to her cultural roots and associated potential benefits on its own would be totally ineffective.[11]We confirm that we were today handed a copy of a letter written by Dr George Mutebi, the Senior Clinical Medical Officer in Psychiatry of the Community Mental Health Team in East Ham. This confirms that Mrs Ratkoceri has been referred to a psychiatric out-patient clinic and that he is the person that sees her regularly for treatment.[12]In our view Dr Zapata-Bravo has now dealt fully with those matters raised by the Adjudicator in paragraph 54 to 58 of her determination. Suffice it to say, that he is not of the view that she would benefit in any way if she was returned to Kosovo. In fact he is saying in terms that it would be detrimental to her health. We agree with the Adjudicator when she says that certain important information was lacking inasmuch as there was a lacuna within his report. For that reason we have indicated that it is unfortunate that those instructing Dr Zapata-Bravo did not ensure that such important and reasonably obvious matters were dealt with.[13]We note that Mr McGirr submits that we should pay attention to Section 77 of the Immigration & Asylum Act 1999. We were referred to 77(4) which indicates that the appellate authority may take into account only evidence which was available to the Secretary of State at the time when the decision appealed against was taken or that relates to relevant facts as at that date. We note, however, that 77(3)(b) makes it clear that in considering an appellant's rights under Article 3 of the Human Rights Convention we may take into account any evidence which is considered to be relevant to the appeal. It follows, in our judgment, that we are entitled to take notice of this evidence because it is apparent that Article 3 is very much under consideration and there seems little doubt that Dr Zapata-Bravo's supplemental conclusions clearly relate to matters which were in being at the time of the decision. We consider that it would be illogical to take a different view to the one that we now express. It would also be, in the circumstances of this case, quite unjust so to do. We also have noted the recent Tribunal decision in S&K that sensibly indicates that evidence can be considered in respect of any aspect of Human Rights at the hearing.[14]We, therefore, allow Mrs Ratkoceri's appeal because we are satisfied that it is reasonably likely that an enforced return to Kosovo would be highly detrimental to her health. We consider that we are bound, in the present circumstances, to accept Dr Zapata-Bravo's evidence which is now compelling and complete. We confirm that we have taken due notice of the Tribunal's decision in the case of Thaqi [2002] UKIAT 03520 . That was a decision which involved a Muslim ethnic Albanian. Here a general practitioner, who was not in fact that appellant's general practitioner, suggested that he was more than adequately qualified to diagnose PTSD and depression. The Tribunal concluded that there were adequate medical facilities for treatment of those conditions in Kosovo. It confirmed that the facilities were no perfect but observed that there are few countries in which perfection is achieved. We can only assume that the Tribunal in that case were not looking at the type of compelling and carefully prepared psychiatric report which we had before us. We also assume that that Tribunal were not made aware of the UNMIK paper to which we referred above. We are conscious of the fact that each case has to be decided on its own merits and we have borne this proposition carefully in mind when reaching the conclusion that we have reached.[15]It is apparent that since Mrs Ratkoceri will not be required to return to her country in the foreseeable future there can be no question of the rest of her family being removed. This was the view very properly reached by the Adjudicator. Here we have, as far as the rest of the family concerned, an Article 8 consideration. We hope we can be forgiven for not analysing the position as one is now required to do having regard to the Tribunal decision in Nhundu (01/TH/0613) . This is clearly a close-knit family situation. As we have said, we hope we may be forgiven for not elaborating on the Article 8 considerations.[16]As we have indicated above we allow this appeal because we are satisfied that the appellants' human rights will be infringed if they were returned to Kosovo. In particular Article 3 Rights in relation to Mrs Ratkoceri and Article 8 Rights in respect of all the appellants. We have of course considered the prognosis as put forward by Dr Zapata-Bravo. He appears to be confident that there is likely to be a full recovery, although it may take as long as two years. We hope that at an appropriate time the appellants will be able to return to Kosovo.[17]We conclude by expressing our thanks to Mr Jarro and Mr McGirr for the excellent way in which they made their submissions. No time was wasted and it is clear that both representatives have spent some time preparing their respective cases. His Honour D Holden Chairman