D v Secretary of State for the Home Department (Serbia & Montenegro) [2003] UKIAT 00180 (8 August 2003) [2003] UKIAT 00180

UKIAT
D v Secretary of State for the Home Department (Serbia & Montenegro) [2003] UKIAT 00180 (8 August 2003)
[2003] UKIAT 00180 · 2003-08-08
[1]APPEAL No. [2003] UKIAT 00180 D (Serbia & Montenegro) IMMIGRATION APPEAL TRIBUNAL Date of hearing: 7 August 2003 Date Determination notified: 8 August 2003 Before Mr Andrew Jordan Mr D. R. Bremmer Between D APPELLANT and Secretary of State for the Home Department RESPONDENT For claimant: Miss Maynard, counsel For the Secretary of State: Mr J. Jones, HOPO DETERMINATION AND REASONS The claimants, a husband and wife, are both nationals of Serbia and Montenegro and come from Kosovo. The Secretary of State appeals against the decision of an adjudicator, Miss D.A. Thomas, following a hearing on 11 April 2002 dismissing the wife's appeal against the decision of the Secretary of State to refuse her asylum claim but allowing her appeal under Articles 3 and 8. The claim of the husband was decided in line with that of the wife. It follows that if the Secretary of State's appeal is allowed in relation to the wife's appeal, a similar decision in the husband's case must be made. For the purposes of this appeal, we shall refer to the wife as the claimant.[2]The Article 8 appeal can be swiftly disposed of. In paragraph 39 of the determination, the adjudicator finds that to separate the two claimants by returning one to Kosovo without the other would be a breach of their rights under Article 8. In our judgment, there is no question of the couple being separated. If the wife succeeds in her claim, both will be permitted to remain. If she fails, both will be expected to return.[3]The principal issue in this appeal concerns the wife's state of health. In paragraph 24 of the determination, the adjudicator considered the submission made on the wife's behalf that it was not clear that the wife would receive the treatment she needs in Kosovo. Her conclusion is contained in paragraph 38 of the determination. She accepted the psychiatric and medical evidence put forward on the wife's behalf and stated:
"I am not satisfied that the appellant will get the level of treatment that she clearly requires. In considering the objective evidence, I find that if she returns to Kosovo she will be stigmatised and that will have a devastating effect upon her life and first state of health. I find that this would be the case wherever she lives in Kosovo. I note and accept that she has attempted suicide in the past and I have little difficulty accepting that if she returns she will feel vulnerable enough to attempt a repeat suicide in the future. For all these reasons I find that it would be a breach of her rights under Article 3 to return her to Kosovo in those circumstances."
[4]It is this finding that is the subject-matter of the appeal. In essence, the appeal centres upon the medical evidence that has been provided dealing with the claimant's psychiatric condition. The claimant was born in Kline on 14 February 1961. She is 42 years old. She and her husband arrived in the United Kingdom on 6 October 1999 and claimed asylum. The couple have, therefore, been in the United Kingdom for about four years. The first psychiatric report prepared by Dr Mohammed Al-Uzri is dated 6 October 2001, by which time the claimant had been in the United Kingdom for two years. The report begins at page 8 of the appeal bundle. On page 9 of the report, the doctor states that the claimant describes symptoms and a clinical picture that are consistent with Post Traumatic Stress Disorder. On the following page, the doctor describes how the claimant suffered a traumatic experience and subsequently developed psychological and physical problems. He repeats his earlier comment that her symptoms as consistent with criteria of a Post Traumatic Stress Disorder. In the following paragraph, he reaches his conclusion:
"The prognosis of post traumatic stress disorder is variable and uncertain as it depends upon the severity of the case and other factors such as receiving appropriate treatment. In Mrs Dani's case she has good prognostic factors such as the absence of mental health illness in her, or her family, and the good pre morbid personality she had. The treatment of post traumatic stress disorder could be long-term and involve psychotherapeutic intervention such as counselling, behavioural techniques or psychodynamic therapy as well as drug treatment. "
Mrs Dani will need a comprehensive assessment and evaluation of the severity of her symptoms and their impact on her daily functioning. Therefore, she would benefit from a period of In-Patient admission with the local Psychiatric Services for further assessment and treatment of her symptoms."[5]We were also referred to the City Hospital report prepared by Dr P. G. Wilson, Consultant Gastroenterologist on 3 April 2002 in which he describes the claimant is suffering from very very low grade colitis which it would be difficult to suggest was as a result of psychological stress. Importantly, he refers to the fact that, by April 2002, the claimant was taking antidepressants.[6]The most recent report is dated 24 February 2003 and was not before the adjudicator. It clearly follows the direction given by the Vice President, when granting leave, that fresh medical evidence should be provided. Once again, the report is prepared by Dr Al-Uzri. It is found beginning at page 27 of the appeal bundle. This report, of course, is made 3½ years after the claimant's arrival in the United Kingdom. It records that she was then receiving 40 mg per day of Cipramil, an antidepressant, as well as a sleeping tablet.[7]On page 29 of the report, in discussing Mood , the doctor describes how, in the context of her low mood and the difficult circumstances surrounding her asylum case, she made two attempts to kill herself, which were stopped by her husband. There is no further information provided in relation to the circumstances of these attempts. It does not appear that they required hospitalisation. This scant reference does not justify the weight that the adjudicator attached to these two episodes when considering the risk on return. It is insufficient to justify the adjudicator's finding:
"I note and accept that she has attempted suicide in the past and I have little difficulty accepting that if she returns she will feel vulnerable enough to attempt a repeat suicide in the future."
The medical evidence does not support the adjudicator's finding that the claimant is suicidal. Further, it does not support the adjudicator's possible implication that, whilst not suicidal in the United Kingdom now, she would be at risk of suicide in Kosovo.[8]On page 31 of the report, Dr Al-Uzri refers to the treatment available. This might include counselling and cognitive behavioural therapy. He says:
"It is not very clear to me what care she has received from the mental health services in Birmingham, as I have received no details of their intervention."
The doctor could, of course, have asked the claimant. In the absence of any evidence to the contrary, apart from the antidepressants and the sleeping tablets, the claimant has not sought out any further treatment. In his recommendations, the doctor repeated what he had said 18 months earlier that the claimant would benefit from active pursuance of help in the form of psychological therapies to help her overcome the symptoms she is experiencing and the trauma of the rape she suffered.[9]As far as we can tell, the claimant has still not taken up the suggestion made as long ago as 16 October 2001 that she would benefit from a psychiatric assessment. It seems to us that this is the starting-point for any assessment of treatment required. Furthermore, the claimant has now had a further six months since the last medical report to take up the recommendations that were made in October 2001 and repeated in February 2003 to seek psychological therapies such as counselling, behavioural techniques or psychodynamic therapy. We can only conclude that the claimant has no interest in pursuing these remedies. The availability of such remedies in Kosovo is, therefore, of only academic interest because the claimant has shown no inclination to make use of such remedies in the past 4 years when they have been freely available to her in the United Kingdom.[10]The antidepressant drugs and sleeping tablets that the claimant is now prescribed are available, in one form or another, in Kosovo.[11]The provision of medical services in Kosovo is considered in paragraph 5.44 to 5.50 of the CIPU Country Assessment for April 2003: Medical services 5.44 The health services are capable of providing satisfactory primary care and are continuously improving. But some conditions requiring more complex or long term treatment are beyond current resources. Details are not included here because health provision is constantly developing. 5.45 All hospitals are working, but the capacity of their laboratories and x-ray departments is limited. Also, patients with conditions that require regular laboratory control (eg. transplantation patients taking immuno-suppressive drugs) may not be able to find the necessary laboratory tests. All health houses (large health centres in the main towns of the municipalities) are working but their diagnostic capabilities are limited. 5.46 There is a growing AIDS problem in Kosovo, thought to originate from the large influx of prostitutes into the province. Patients with rare, chronic diseases (e.g., lack of growth hormone, hemophilia, HIV/AIDS) may not be able to find the drugs they need in public health care institutions or state pharmacies. Private pharmacies may be able to import the drugs they need, but they are likely to be expensive and the supply may be uncertain. 5.47 A review of the WHO mental health project in July 2002 made a positive evaluation of the progress in mental health sector in Kosovo. The WHO mental health programme has impacted on the development of a comprehensive mental health strategy developed in collaboration with local mental health professionals. This may come to be used as a model for use in other areas emerging from a period conflict. Also a Mental Disability and Mental Health Policy Implementation Task Force has been established. 5.48 Although mental health provision in Kosovo is underdeveloped, treatment for psychological conditions including Post Traumatic Stress Disorder (PTSD) is available in Kosovo. Details of the "Kosova Rehabilitation Centre for Torture Victims (KRCT)" which provides treatment for PTSD are included in the source documents. Growing numbers of people in Kosovo are suffering from PTSD. The number of patients treated for psychiatric disorders by KCRT increased from 1,187 in 2001 to 2812 in 2002. 5.49 As with medical treatment, the range of medical drugs available in Kosovo is constantly developing. Many standard drugs are now available, including Fluoxetin and Sertralin from the Selective Serotonin Uptake Inhibitors group (SSIs) often used for the treatment of PTSD. 5.50 A report by Mental Disability Rights International revealed that patients at the Shtimle Hospital were subjected to abuses by the staff. However, at the end of 2002, physical protection of inmates was still inadequate.[12]We note, in particular, paragraphs 5.48 and 5.49 dealing with the availability of drugs and the treatment of Post Traumatic Stress Disorder.[13]We return to consider the crucial paragraph 38 in the adjudicator's determination. The adjudicator accepted that the claimant was in receipt of treatment for her stress difficulties in the United Kingdom. The only treatment that the claimant was receiving, then as now, was antidepressant medication and sleeping tablets. Dr Al-Uzri's first report made no reference to medication because she was not then receiving any. The adjudicator did not, of course, have before her the second report. The adjudicator then expressed herself not satisfied that the claimant would get the level of treatment that she clearly required. In our judgment, there was no evidence before the adjudicator as to what treatment she required and, in spite of the February 2003 report, there is still no evidence that treatment, other than medication, has been attempted and found to be successful.[14]Mr Jones, who appeared on behalf of the Secretary of State, criticised the adjudicator's use of the expression "level of treatment" . Applying the decision of the Court of Appeal in I [1977] Imm AR 172 , he submitted that the quality or level of treatment was not a material consideration - it was immaterial if medical facilities in Kosovo were inferior to those in the United Kingdom, provided those facilities were available. Whether or not this is a fair gloss to put on the adjudicator's words, there is no doubt that medical treatment is available in Kosovo for the claimant.[15]Finally, we shall deal with the adjudicator's finding that the claimant will suffer a violation of her Article 3 rights as a result of the fact that she was raped and there is stigmatisation of victims of rape. The event, of course, took place some four years ago. The claimant has the support of her husband and family. There is no suggestion that those members of her family around her will stigmatise her. There is no reason why neighbours need know about this incident. In particular, there is no reason for the claimant to tell them. We do not consider that the background material establishes that women who have been raped in Kosovo cannot be returned because societal discrimination against them is sufficiently severe to overcome the high threshold of a violation of Article 3.[16]For these reasons, we do not consider that the adjudicator's conclusion is sustainable. Decision: The appeal of the Secretary of State is allowed. Andrew Jordan Vice President 8 August 2003