England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 5th November 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal sent out on 18th June 2001 dismissing the applicant's appeal. The application for permission to appeal was lodged on 6th August 2001 and is therefore out of time, but it was lodged in somewhat under three weeks of receipt of the refusal of permission by the Immigration Appeal Tribunal itself. For my part, if an appeal had on the merits a real prospect of success, I would not refuse an extension of time.
2. The applicant arrived in the United Kingdom on 17th June 1998 and claimed asylum. He is a citizen of the Federal Republic of Yugoslavia, being from Kosovo. Ethnically he is an Albanian. He is now aged 23. The special adjudicator seems to have accepted the applicant's account of events, which broadly was that he had failed in 1996 to respond to his military call-up papers and had then kept out of the way of the authorities. However, he was involved in demonstrations and he and his family were arrested and beaten by Serbs in April and May 1998, causing him to flee. He had fears, both in relation to the Serbs and to the KLA in Kosovo. However, when it came to whether those fears were objectively well-founded, the special adjudicator noted that the number of Kosovans who had returned since the end of hostilities in 1999 was substantial. He stressed the presence of KFOR and also the fact that some 90 per cent of those in Kosovo were by then Albanian. He concluded that the fear was not well-founded.
3. Permission to appeal, however, was granted by the Immigration Appeal Tribunal because the special adjudicator, it thought, might have left out of account evidence that Mr. Gashi's home village was adjacent to a large residual settlement of Kosovan Serbs at a location called Gorazdevac. The Immigration Appeal Tribunal, in its consideration of the matter, was prepared to proceed on the basis that the applicant might be at some risk from the Gorazdevac Serbs if he were to return to his own village. But the Tribunal pointed out that this raised the new issue, which had not been before the adjudicator, of whether it would be unduly harsh to expect him to return to some other location in Kosovo. It clearly had in mind the decision in Robinson v Secretary of State [1997] Imm App R 562. The only factor specific to the applicant which was relevant to this issue, as the Tribunal saw it, was his medical condition, in particular his mental condition. There was psychiatric evidence before them in the form of a report from a Dr. Steadman, a report which referred to the applicant as suffering from depression at a significant level. The Immigration Appeal Tribunal commented that the report did not indicate that the depression was chronic or required anything significant in the way of treatment over any length of time. It was not shown that he had any substantial requirement for psychiatric services. The Tribunal concluded that the report did not provide any basis for saying that it would be unduly harsh for the applicant to return to some other part of Kosovo.
4. Mr. Gashi challenges that decision on two main grounds. First of all, it is said that the non-medical evidence, if approached in the proper cumulative fashion, showed that it was unreasonable to expect him to re-locate elsewhere in Kosovo. Emphasis in the skeleton argument is placed on UNHCR reports describing widespread problems in Kosovo in terms of housing, social assistance, education and other services. Mr. Fripp this morning has emphasised that it would be unreasonable for Mr. Gashi to return to any part of a country which he associates with the killing and ill- treatment of a number of members of his family.
5. In themselves social and economic difficulties, common throughout Kosovo, cannot in my view make it unduly harsh or amount, as Lord Woolf MR put it in Robinson, to undue hardship to move to a different part of the province. Something more than that must be required. The applicant's history of persecution, on the face of it, did not make it unreasonable for him to move elsewhere. It is alleged that he would be unable to rejoin his family but he was leaving them anyway to seek asylum in this country. It is difficult to see why it is unreasonable for a 23 year old to relocate internally without his father or his brothers. As was said in Robinson, it is not enough to say that there are no friends or relatives in that particular part of the home country.
6. As for his fears in respect of Kosovo, I would accept that Mr Gashi's emotional state is not irrelevant to the issue of unreasonableness, but I cannot see that it would be unreasonable to expect himself to relocate in a part of Kosovo where he would be reasonably free from risk of persecution merely because he and his family had been persecuted in some other part of that territory where he had originally lived. Insofar as there is anything in this particular argument, it seems to me to come under the mental condition ground, which is the next aspect of the case which is relied upon.
7. I turn therefore to that ground which is the second one advanced on Mr Gashi's behalf. As I have indicated, it concerns the medical evidence. The point made here is that the applicant's depressive illness is not only relevant to whether treatment would be available but also as to the broad issue of reasonableness of internal flight. Reliance is placed by Mr. Fripp on some new evidence put before us in the shape of a more recent report by Dr. Steadman. This report tells the reader that Mr. Gashi's mental condition has improved over recent months during his time in the United Kingdom. It does however go on to say:

"It is also my view that returning a person such as this gentleman to an environment where such stated events occurred would carry a significant risk of developing a substantial worsening in his mental health."

8. As I have indicated, Mr Fripp places some reliance upon that, although he recognizes that there is a certain lack of precision in the area of Kosovo referred to. I am bound to say that it is not clear, when one reads that passage, that Dr Steadman has applied his mind to the issue which was before the Immigration Appeal Tribunal and which we have to consider, that of internal flight, and the differences in the environment in different parts of Kosovo. The statement made by Dr Steadman is a general one and does not appear to appreciate that the problems which Mr. Gashi has faced arise in a particular part of Kosovo where his original home was located. No particular attention appears to have been given by Dr. Steadman to the effect upon Mr. Gashi, were he to return to some different part of Kosovo where, objectively speaking, he would be free from risk of persecution.
9. The position therefore is this. Dr. Steadman's original report does not deal with the internal flight option and did not suggest that the depression suffered by Mr Gashi would be made worse by moving to a different part of Kosovo away from Gorazdevac. The whole thrust of that report concerned returning to Kosovo at all. That seems to me to be very much the situation which pertains in respect of this latest report as well. I cannot see that anything in this latest evidence, or indeed in that which was before the IAT, indicates that there is any real arguable ground for suggesting that the IAT went wrong in their assessment of the internal flight issue.
10. There was a third ground raised in the notice of appeal and the skeleton argument which has not been pursued orally this morning. It was that the Immigration Appeal Tribunal gave inadequate reasons for refusing permission to appeal. It is a ground which, had it been pursued, I would have described as wholly without merit, and it shows judgment on Mr. Fripp's part that he has not seen fit to pursue it this morning orally. Whether or not adequate reasons were given by the IAT does not indicate that they made an error of law in their substantive decision. I can see no real prospect of success for this proposed appeal. For that reason I would dismiss the application.
11. LORD JUSTICE THORPE: I agree.
Order: Application refused; detailed assessment of costs.