England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Wednesday 6 February 2002

Wednesday 6 February 2002

1. LORD JUSTICE KAY: This is an application for permission to appeal against a decision of Newman J given on 10 August 2001 refusing permission to the applicant to apply for judicial review.
2. The circumstances of this case are as follows. The applicant is a citizen of the Federal Republic of Yugoslavia in the district of Kosovo. He is a single man from Shipol in the Mitrovica province. He asserts that he was arrested by the Serb police in 1998 and 1999. On the second occasion he asserted that he was detained for four days and during that period he was beaten up and made to stand naked under a cold tap three times a day. He left Kosovo in May 1999 and arrived clandestinely in the United Kingdom on 25 September 1999, claiming asylum two days later. He had a pre-existing medical problem, a rheumatoid condition which causes him considerable stiffness and pain in his back and lower body, for which he had received treatment in Kosovo before leaving that country.
3. On 27 November 2000 the Secretary of State rejected his application for asylum and certified the claim. The claimant appealed against the decision. The appeal was rejected by a special adjudicator, Mr O'Malley, in a determination promulgated on 13 March 2001. His conclusions were first that the applicant did not have a well-founded fear of persecution; secondly that the Secretary of State's certification should be upheld because the applicant had not adduced evidence of torture; thirdly that the United Kingdom would not be in breach of its obligations under Article 3 of the Convention if the applicant were returned; and fourthly, because of the applicant's on-going need for medical treatment and the adjudicator's doubts as to the availability of such treatment in Kosovo, he made a recommendation that the applicant should be permitted to remain until there was adequate treatment for him in Kosovo. By a letter dated 21 May 2001 the Secretary of State indicated that he had carefully considered the recommendation but concluded that the circumstances did not merit the grant of exceptional leave to remain. The condition that the applicant was suffering from was in his view not of a sufficient severity to justify such leave.
4. This matter has been bedevilled by poor preparation of the case on behalf of the applicant and it has been necessary for the court to adjourn the matter and seek assistance from the Secretary of State so as to properly understand what has gone on. That is to be regretted. There is a clear duty on those who advise people in cases of this kind to present their applications properly to enable the court to deal with them in a reasonable span of time and not to usurp more of the court's time than is necessary. In order to ensure that the applicant is not prejudiced by such conduct I have found it necessary to delve into this matter in far greater depth than ought to have been necessary and it has taken up a totally disproportionate amount of the court's time.
5. The matters of complaint are numerous. It is sufficient if I summarise them and deal with each aspect of the matter. First there is a complaint that the special adjudicator dealt with the matter on a different basis from the Secretary of State. It is submitted that, in granting particularly the certificate, the Secretary of State did so on the basis that there was no evidence of torture. It is submitted that since the special adjudicator accepted the applicant's account as to what had occurred, that was evidence of torture and it was not open to the special adjudicator to reach a conclusion that that conduct that he had found did not amount to torture. That argument is totally fallacious. If in fact the conduct did not amount to torture there was, as the Secretary of State found, no evidence of torture and so there is nothing inconsistent in the approach of the special adjudicator and the approach of the Secretary of State. I reject that basis.
6. The issue arises whether the conduct as found was such that the special adjudicator was bound to find that it was torture. In my judgment the conduct described by the applicant was not such that no reasonable adjudicator could reach the conclusion that he did. There is no precise definition of torture. It is a matter for the special adjudicator himself to assess and decide whether that which he finds does amount to torture. There was nothing so extreme in this case as to oblige the conclusion that it was torture and so it was very much a matter for the assessment of the special adjudicator. I find no fault in his conclusion in that regard.
7. It is submitted that the evidence put forward on behalf of the applicant was such as to show, to the sufficient standard, that this was a case where asylum should have been granted. Having looked with care at the documentation that was put before the special adjudicator, it seems to me that his reasons were entirely appropriate reasons for reaching the conclusions that he did.
8. The one aspect that caused me concern and which I could not fully understand on the last occasion was what had happened in relation to the human rights appeal. I could not understand it because I was not supplied with a copy of the notice of appeal to the special adjudicator. Even though I have now been provided with a copy of that, it is missing the one part of the document that is really essential, that is the grounds of appeal that were being put forward. I am told that that has not been capable of being traced by the solicitors on behalf of the applicant. If that is so then I view that as a disgraceful situation. They have had the conduct of this matter throughout. How it is that they are not able to produce a document of that kind I really do not begin to understand, if they have been acting competently in the course of these proceedings.
9. So it is that one has to look and try to guess what the issues were that were raised before the special adjudicator. I do have a copy of the statement that was filed on behalf of the applicant. That does refer to his claim under Article 3 but seems to confine the submissions being made to the question of torture and not to the lack of available treatment. That probably explains why that aspect of the matter was not dealt with by the special adjudicator. If no submissions to that effect were being made to him then one can well see why he did not find it necessary specifically to deal with that aspect of the matter, although it is quite clear from the whole of the adjudication that he had considered the matter carefully and having considered all aspects of it he found in specific terms that the United Kingdom would not be in breach of its obligations under Article 3 if the applicant were to return.
10. On behalf of the Secretary of State it is submitted that on that basis the proposed appeal could not succeed. It is further submitted that in any event the nature of the medical evidence does not support any possible conclusion that the Secretary of State would be in breach of Article 3 if he were returned. In a helpful skeleton argument filed on behalf of the Secretary of State, Mr Sharland has referred the court to the decision of the European Court of Human Rights in Bensaid v The United Kingdom (Application No 44599/98, 6 February 2001). Mr Bensaid was a failed asylum seeker from Algeria. He was a schizophrenic suffering from a psychotic illness. There was evidence that the medication Mr Bensaid required was not available for free to out-patients and that he had no ability to pay for such treatment. Without finding it necessary to detail in its entirety that decision, the European court concluded that there would be no breach of Article 3 if he were returned. On behalf of the Secretary of State it is submitted that that case was a much stronger one than the present case. My attention was drawn specifically to the medical evidence that was provided to the special adjudicator which included the fact that whilst in Kosovo this applicant had been treated in a way that, it is quite clear from the comments made by the doctor, he then viewed as being appropriate. In those circumstances, even if this had been an issue that was raised -- which I am not satisfied it was -- in my view the only conclusion the special adjudicator could have come to was that there would be no breach of Article 3 if he was returned.
11. Having considered those aspects and the entirety of the submissions that have been put before me, I have no doubt that Newman J was right to refuse leave and I refuse permission to appeal against his order.
ORDER: Applications refused. Application for public funding adjourned to be decided on paper on receipt of a representation order. (Order not part of approved judgment)