IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Thursday, 24th July 2003
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE MAY
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent/Respondent|
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MISS L GIOVANNETTI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
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"The Secretary of State accepted that the appellant came from a majority Serb area and that, as an ethnic Albanian he might face protection concerns. However, as 95% of the population was ethnic Albanian, he could safely live in many other parts of the province. Some 800,000 ethnic Albanians (90% of those who had fled Kosovo in 1998 and 1999) had already voluntarily returned."
"I think that Mr Januzi is currently suffering from a moderate depressive episode with somatic symptoms. Moderate depressive episode with somatic symptoms is classified as code F32.11 in the International Classification of Diseases version 10 as used by the World Health Authority."
"... returning to Kosovo would also be viewed as a negative step. People with such symptoms can be returned to the environment which precipitated them but only if this is done rapidly and in association with complex pharmacological management."
I omit a sentence, and Dr Barrett then concluded:
"... because he has had symptoms for in excess of a year they are liable to have become chronic and to be worsened by a return to the precipitating environment."
"If, on the other hand one adheres to the psychological school of thought (as I do) then a return to Kosovo would be equally disastrous. After this length of time Mr Januzi's symptoms have become chronic, and a return to the environment would be likely to worsen them. I would have thought that he would be at strong risk of developing more symptoms of depression, and in due course to qualify for a diagnosis of severe depression. Such a diagnosis carries with it a strong risk of death by suicide or self-neglect. This risk should not be underestimated."
"Chronically ill persons whose conditions require specialised medical intervention of the type not yet available in Kosovo."
"Of course it will be difficult for the appellant to readjust to life in Kosovo. However, we are not satisfied that despite the medical report and the various factors relied on by Counsel, it would be unduly harsh for the appellant to be returned to Pristina. We found that there are facilities available for treatment in Pristina which are adequate for the appellant and we are not satisfied on the evidence that the appellant's return to Kosovo would precipitate a deterioration in his condition. We take into account that many thousands of Kosovans have returned to Kosovo. GPs in the area will be all too familiar with dealing with problems of returnees who would have faced ill treatment at the hands of the Serbs. We are not satisfied that the appellant could not receive some appropriate counselling nor that adequate medication would not be available for him. Although the appellant may be isolated, there would be many individuals in circumstances like his in Pristina. He would have the support of his compatriots in coming to terms with the difficulties he would undoubtedly face on return. We do not underestimate these difficulties and we give weight to all the factors properly relied upon by Counsel. However we do not find that it would be unduly harsh for the appellant to return to Pristina nor do we find that his Article 3 or Article 8 rights would be infringed by his return. It is right to record that counsel placed her arguments principally on the question of undue harshness."
"It follows that if the home state can afford what has variously been described as 'a safe haven', 'relocation', 'internal protection', or 'an internal flight alternative' where the claimant would not have a well-founded fear of persecution for a Convention reason, then international protection is not necessary. But it must be reasonable for him to go to and stay in that safe haven."
Lord Woolf then cited a case in the Federal Court of Australia from which he drew that conclusion. He continued at page 939H:
"In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the 'safe' part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights."
"Stated another way for clarity ... would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?"
"Lord Woolf referred to the principle that [civil, political and socio-economic human rights] should be enjoyed without discrimination. While discriminatory denial of human rights in the place of relocation can plainly be relevant to the question of whether an asylum-seeker can reasonably be expected to move there, we do not consider that Robinson establishes that it will not be reasonable to require relocation unless, in the place of relocation, these human rights are protected."
"... the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought."
"An asylum seeker who has no well-founded fear of persecution but has left his home country because he does not there enjoy those rights, will not be entitled to refugee status. When considering whether it is reasonable for an asylum seeker to relocate in a safe haven, in the sole context of considering whether he enjoys refugee status, we cannot see how the fact that he will not there enjoy the basic norms of civil, political and socio-economic human rights will normally be relevant. If that is the position in the safe haven, it is likely to be the position throughout the country. In such circumstances it will be a neutral factor when considering whether it is reasonable for him to move from the place where persecution is feared to the safe haven. States may choose to permit to remain, rather than to send home, those whose countries do not afford these rights. If they do so, it seems to us that the reason should be recognised as humanity or, if it be the case, the obligations of the Human Rights Convention and not the obligations of the Refugee Convention."
"When considering whether it would be unreasonable, or unduly harsh, to send an asylum seeker back to a safe haven within his home country, courts and jurists have tended to apply a test which involves not merely the considerations which bear on whether he enjoys the status of a refugee but also the wider considerations described above. The UNHCR has commended such an approach. The result has been that it is difficult to identify the extent to which decisions constitute rulings on the refugee status of asylum seekers as opposed to applications of wider humanitarian considerations."
At paragraph 64 it said this:
"So far as refugee status is concerned, a comparison must be made between the asylum seeker's conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal location. If that comparison suggests that it would be unreasonable, or unduly harsh, to expect him to relocate in order to escape the risk of persecution, his refugee status is established. The 'unduly harsh' test has, however, been extended in practice to have regard to factors which are not relevant to refugee status, but which are very relevant to whether exceptional leave to remain should be granted having regard to human rights or other humanitarian considerations."
"It seems to us important that the consideration of immigration applications and appeals should distinguish clearly between (1) the right to refugee status under the Refugee Convention, (2) the right to remain by reason of rights under the Human Rights Convention and (3) considerations which may be relevant to the grant of leave to remain for humanitarian reasons. So far as the first is concerned, we consider that consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home. The comparison between the asylum seeker's situation in this country and what it will be in the place of relocation is not relevant for this purpose, though it may be very relevant when considering the impact of the Human Rights Convention, or the requirements of humanity."
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Art 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Art 3 treatment may none the less breach Art 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity ..."
"... the Court recalls that it has found ... that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Art 8 of the Convention."
It then described how additionally it is necessary in an Article 8 case to bear in mind the powers and rights of the member state under Article 8(2), which have to be balanced out against the individual's interests under Article 8(1).
"First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged. It seems to us that this approach is consistent with the fact that the ECtHR considered the merits of the article 8 claim in Bensaid. ...
23. The degree of harm must be sufficiently serious to engage article 8. There must be a sufficiently adverse effect on physical and mental integrity, and not merely on health ...
24. There must be substantial grounds for believing that the claimant would face a real risk of the adverse effect which he or she claims to fear: see, for example, Kacaj v Secretary of State for the Home Department  INLR 354 at para 12. I would accept the submission of [counsel] that the degree of likelihood of the adverse effect occurring is no less than that required to establish a breach of article 3."
"We found that there are facilities available for treatment in Pristina which are adequate for the appellant and we are not satisfied on the evidence that the appellant's return to Kosovo would precipitate a deterioration in his condition."