SS (sufficiency of protection, Roma, evidence) Romania [2004] UKIAT 00274 (29 September 2004) [2004] UKIAT 00274

UKIAT
SS (sufficiency of protection, Roma, evidence) Romania [2004] UKIAT 00274 (29 September 2004)
[2004] UKIAT 00274 · 2004-09-29
[1]SS (sufficiency of protection – Roma – evidence) Romania [2004] UKIAT 00274 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 3 August 2004 Date Determination notified: 29 September 2004 Before Mr R Chalkley, Vice President Mrs J Holt Mr M L James Between SS APPELLANT and Secretary of State for the Home Department RESPONDENT Mr I Kumi, of Counsel, instructed by Rahman & Company, Solicitors appeared for the appellant Mr L Parker, a Senior Home Office Presenting Officer appeared for the respondent. DETERMINATION AND REASONS The Appellant is a citizen of Romania. She was born on 8 December 1966 and claims to have entered the United Kingdom on 7 October 2002, hidden in the back of a lorry. She claimed asylum on 9 October 2002. She appeals, with leave of the Tribunal, against the decision of an Adjudicator, Mr R J Manuell, who in a determination promulgated on 24 October 2003, following a hearing at Surbiton on 6 October 2003, dismissed her appeal against the decision of the Respondent, taken on 9 December 2002, to direct her removal after refusing asylum.[2]The Appellant's claim is that she was forced to leave Romania because both she and her family had been harassed by the Romanian police, by doctors and by their fellow countrymen, because of the Appellant's Roma ethnicity. The police, in particular, had been a constant source of problems. The Appellant had suffered frostbite in 1999/2000 when she had fled to a forest to escape the police. The family again fled to the forest in early 2002, after the police raided their home. The Appellant complained in writing about the police in mid 2002, but that only resulted in her husband being beaten. Their home was again raided in August or September of 2002, when the Appellant was arrested and detained for 24 hours, during which she was beaten.[3]The Appellant claimed that she had undergone some six or seven surgical operations which had left her scarred. Her friends and family had paid for most of the operations. They had to pay the doctor secretly, because he had refused to treat her, because of her ethnicity. The Appellant decided to leave Romania but could not take the whole of her family with her and decided to leave some of her children behind.[4]Leave was granted in respect of the first three paragraphs of the application for permission to appeal, which suggested that the Adjudicator had erred in law in requiring corroborative evidence to be produced concerning the events which the Appellant claimed had occurred to her in Romania, prior to her departure.[5]At the hearing before us, Counsel sought our leave to adduce further documentation. He told us that it was evidence which had not been before the Adjudicator. The evidence comprised documents which showed that the Appellant had an appointment to attend hospital in September. We asked why these documents had not been submitted in accordance with directions and disclosed to the Home Office. He told us that they related to the fourth paragraph of the grounds of application for leave to appeal. We advised him that he had not been granted leave in respect of the fourth paragraph of the application. He submitted that the evidence of admission to hospital could not be adduced earlier because it is only dated 18 May 2004 and he sought to vary the leave now, by asking us to grant permission now in respect of paragraph 4 of the application.[6]The condition in respect of which the Appellant is due to be admitted to hospital is a pre-existing one. Counsel accepted that evidence could have been produced and indicated to us that he had appeared on behalf of the Appellant before the Adjudicator and recollected that a medical report had been placed before the Adjudicator.[7]We indicated to him that there was no evidence in the file of any medical evidence being adduced at the hearing before the Adjudicator and no reference to it in the determination. There was nothing in the bundle before us, nor in the bundle before the Adjudicator, indicating that medical evidence had been adduced. We expressed our surprise that it should be claimed that medical evidence was produced on the day of the hearing before the Adjudicator, because we noted that there was no Presenting Officer before the Adjudicator and we did not believe that this experienced Adjudicator would accept additional evidence at such a late stage, when there was no Presenting Officer present. Counsel did not pursue the argument.[8]For the Respondent, Mr Parker expressed some surprise that paragraph 4 of the grounds of application were being raised at such a late stage and objected to the grounds being varied. There was no evidence in the form of medical report before the Tribunal and if any evidence had been obtained then it should have been served. He submitted that there were no special circumstances, as required by Rule 20(ii) of the Immigration and Asylum (Appeals) Procedure Rules, 2003, which would render it unjust to refuse to vary leave. The Appellant's representatives have been on notice since January last that leave had not been granted on the point in issue.[9]Counsel submitted that the special circumstances which arise are that the Appellant now has an appointment at the hospital.[10]After conferring, we concluded that we would consider the documents. We were handed a letter of 18 May 2004 addressed to the Appellant from Sister Angela Gilmore at the Pain Clinic, Northwick Park Hospital, Watford Road, Harrow referring to an admission of the applicant under the care of a Dr J Harris on Thursday 16 September 2004 at 9am. It advises that the Appellant should fast prior to admission. We were also supplied with a letter dated 4 June 2004 addressed to the Appellant from the principal occupational therapist at Brent Council confirming that she had been referred for occupational therapy assessment. The last document we were supplied with was a photocopy of an unsigned letter from "GP Direct" dated 22 March 2004 addressed to the Home Office in respect of the Appellant which referred to her as having:
" …Significant problems with her mobility due to arterial disease which affects the arteries in her legs for which she has already had bypass surgery and a small amputation of her toes on the left foot. She had complications with the grafting at the surgery time and as a result of this has been seen at the local hospital and been given further treatment including a chemical sympathectomy to help reduce her foot pain. We have taken a lot of time to get to understand the family and try to help them with their multiple health needs ."
[11]We noted that there was no evidence as to why the Appellant was being admitted to a pain clinic.[12]We retired again and upon resuming the hearing indicated that we were not minded to vary leave. The claimant's condition was a pre-existing one. It was not something that has deteriorated recently and the Adjudicator makes clear that he was aware of her condition at the time of the hearing. The ground discloses no error of law. Even today the only document we have giving any indication of the Appellant's medical condition is a photocopy of an unsigned letter dated 22 March 2004.[13]Counsel advised us that in the circumstances he was not seeking a variation of leave to include paragraph 5 of the grounds of application, but he does seek leave to vary the grounds to include ground 6. For the sake of clarity this ground is as follows:- " 6. There was no material before the Adjudicator to justify his finding 'that because the Appellant had a serious circulatory problems and her sister had died of cardiac problems, there was a history of a predisposition to such problems': paragraph 20. The Adjudicator erred in reaching a medical finding contrary to the principles set out in Kheira and Kheira ."[14]The Presenting Officer again expressed some surprise that this issue had not been raised earlier and he submitted that the application amounted to little more than an abuse of the appeal system.[15]Counsel accepted that the application was late.[16]After retiring we concluded that we would allow the grounds to be varied to include paragraph 6 of the original application, as set out above.[17]Counsel then addressed us. He submitted that there were two fundamental errors of law identified in the grounds and that, as a result, that the appeal should be remitted to be heard again by the Adjudicator. He accepted that the Tribunal could correct the errors, but he suggested that the matter needs to be reconsidered in the light of up-to-date objective evidence and in the light of the Appellant's medical condition.[18]We enquired of Counsel as to why, if there were errors identified in the grounds, the Tribunal could not correct the determination. We asked him whether he had any up-to-date objective evidence. Counsel handed to us a copy of the Amnesty International Report covering events from January to December 2003 in relation to Romania. We advised him that we were familiar with the Tribunal's decision in IM (sufficiency of protection – Roma) Romania CG [2002] UKIAT 04872 and also with FD (sufficiency of protection – Roma – Muteanu) Romania CG [2004] UKIAT 00001 and assumed that he was familiar with the latter case since he was Counsel appearing on behalf of the Appellant in that appeal. He confirmed that he was. As to the case of FD , he suggested that each case needs to be looked at on its own merits.[19]We pointed out to Counsel that according to paragraph 5.67 of the Country Information and Policy Unit Report, medical care was provided free of charge to citizens in Romania. This Appellant requires medical treatment but, submitted correctly, "I cannot assist the court because the letter from the doctor says 'complicated medical problems' and there is no detail as to what it is."[20]We declined to hear from the Presenting Officer. We reserved our determination.[21]We have concluded that we must dismiss this appeal.[22]We find that unfortunately, this very experienced Adjudicator, did err in requiring there to be corroborative material. What he said at paragraph 22 is as follows:
" There is no suggestion in the Appellant's evidence that there was any reason at all why she could not have gathered at least some corroborating evidence concerning the event that she said occurred to her in Romania prior to her departure, nor any reason why such materials could not have been gathered subsequently. The fact that the Appellant felt able to leave at least one of her children behind is a clear indication that she felt her son would be safe and also that there are trustworthy persons in Romania, perhaps close relatives, with whom she is in contact and from whom assistance in the provision of corroboration could have been sought ."
[23]Corroboration of an individual's account of events is not normally required in asylum claims, except in those few cases there is clear evidence that it is available without difficulty and without causing any risk to the Appellant and no information as to why it has not been provided.[24]In paragraph 20 the Adjudicator said:- " No independent expert medical evidence was provided concerning the Appellant's state of health, but no expert knowledge is required to see that the Appellant unfortunately suffers from serious circulatory problems, which have required repeated surgery to her arteries and which are likely to explain the loss of her toes. Such surgery may well have been life saving. The fact that the Appellant's sister died last month at the tragically young age of 39 from cardiac arrhythmia and severe coronary artery atheroma (see the official death certificate) suggests an unfortunate family predisposition to such problems ." Again, we find that the Adjudicator did err. He had before him a medical certificate showing that the Appellant's sister had died on 11 September 2003 and that the cause of death was cardiac arrhythmia and severe coronary artery atheroma. As it now subsequently appears, he was right in believing that the surgery explained the loss of the Appellant's toes, since that is now confirmed by the unsigned letter from GP Direct dated 22 March 2004. Unfortunately, he was not in a position to say that the evidence before him suggests an unfortunate family predisposition to such problems.[25]Counsel suggested that even if the Tribunal were to accept what the Appellant claimed had happened to her it would not be safe for her to return. He drew our attention to the Amnesty International Report for the period January to December 2003. This suggested that the police resorted to firearms in circumstances prohibited by international standards and that many of the victims were Roma. It suggested also that most people saw no improvement in their living standards particularly their access to vital services such as healthcare and social support benefits. We noted however that the reports both of the Constitution revision coming into force following the referendum in October. The amendments of the Constitution were aimed at making the legislative process more effective and the judiciary more independent. However the report went on to suggest that the adopted revisions "may not" be sufficient to guarantee that the legislative process is more open to public scrutiny or that the judiciary is less susceptible to influence by the Ministry of Justice.[26]Unhelpfully, the report did not say why such revisions may not be sufficient.[27]The report spoke of Roma being frequently targeted for police ill-treatment, apparently to intimidate all members of their marginalised communities. Some Roma were ill-treated by police licensed security guards. There was, however, a positive change to the Penal Procedure Code which reduces the period the prosecutor can hold a suspect from 30 to three days. The report continued:
" Significant improvements with respect to pre-trial detention also came into force or were due to in January 2004, including the right to remain silent. These changes were prompted by the European Court of Human Rights judgment delivered in June ."
We noted that the Amnesty International delegation had visited Romania in November to conduct research in respect of their report.[28]We also considered the Country Information and Policy Unit April 2004 Report which gave what we believed to be a less dispassionate and more objective report. We noted, of course, that it is drawn from a variety of published documents (including the Amnesty International Report) and that, unlike the Amnesty International Report, it is fully sourced. According to paragraph 6.1, the European Commission Accession Report of December 2003 noted that Romania continues to respect human rights and freedoms and has made good progress in a number of important areas. Structures have been established to implement anti-discrimination legislation. The capacity of the ombudsman's office was strengthened. Good progress noted in last year's report in reforming the system of child protection has continued and further initiatives have been taken to enhance the rights of national minorities. The implementation of the Roma strategy has continued although lack of resources has meant that the results have been somewhat limited. Similarly the process of property restitution has continued, but remains far from complete. Reforms have been launched to a number of other areas: modernisation of the police, improving care for the disabled, reducing social exclusion, and improving social dialogue. Progress was reported to have been made in promoting equal opportunities between men and women with developing structures to reduce trafficking in human beings. Legislation extending the official use of minority languages was implemented relatively smoothly. Freedom House, in its 2004 report on political rights and civil liberties, assessed Romania as being a free country. It rated Romania in both areas of political rights and civil liberties as having obtained level two, level one being the highest and level seven being the lowest.[29]In January 2002 the 2000 government ordinance on preventing and punishing all forms of discrimination came into force. According to the European Commission, this law represents a step forward in terms of the fight against discrimination in Romania. Apart from noting the contents of paragraph 6.1 to 6.9 of the CIPU Report, we paid particular attention to paragraph 6.114 to 6.135 dealing with Roma. We noted that in addition to the 2001 national strategy for improving the condition of Roma, some fifteen commissions had been established in ministries or national agencies for the implementation of the Roma sector strategies. We noted that the World Bank considered that over the past decade significant efforts have been made by the state, political parties and NGOs towards improving the condition of Roma in Romany and we noted that the Roma community's rights were represented by political parties and that there was one representative of the RRMA Party in parliament. He is not the only representative of Roma origin in the Romanian Party; many more were elected but not on an "ethnic ticket".[30]The Adjudicator did not find the appellant to be a credible witness. However, as we have indicated above (see paragraphs 22 and 24) the Adjudicator did err. He should not, in these circumstances, have called for corroboration. As we point out (at paragraph 24), the appellant's explanation for the loss of her toes is contradicted by the unsigned medical report now submitted. We have taken the appellant's claim at its highest and assumed that everything she has claimed is true.[31]Our reading of the objective material has led us to conclude that the progress of the Romanian government to stamp out discrimination against the Roma is continuing. We do not believe that this Appellant has demonstrated that there is a real risk that she will suffer any persecutory harm or treatment which would breach her Article 3 rights on her return to Romania. We are satisfied that the progress made by the Romanian government and reported in IM [2002] UKIAT 04827 and in FD [2004] UKIAT 00001 is continuing and that the state of Romania offers appropriate and adequate protection against both state and non-state actors.[32]We too do not believe that the treatment experienced by this appellant passes the threshold amounting to persecution. The appellant stated that she complained in writing about the police to the military courts in mid-2002, but does not say what response she had. The objective material before us leads us to believe that if the appellant had made a written complaint concerning threats made by policemen to rape her daughter (see paragraph 9 of the appellant's statement of 5 September 2003), action would have been taken to investigate it. By mid-2002 the Government's "Strategy for Improving the Condition of Roma" was published and it had been in 1999 that the Romanian Inspectorate of Police had developed a programme to improve relations between the Roma and the police. The Ombudsman's office had been established in March 1997 and was said to have been fully operational by 1999. We believe that there is every reason to think that if a complaint were made in 2002, it would have been properly investigated.[31]For all these reasons we find that we must dismiss this appeal. R CHALKLEY VICE PRESIDENT