COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMGRATION APPEAL TRIBUNAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE ARDEN
| SEFER DJALI
|- and -
|THE IMMIGRATION APPEAL TRIBUNAL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms L Giovannetti (instructed by The Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Justice Simon Brown:
"To require Mrs Djali to return to Kosovo at the present time would be inhumane and … her removal would be in breach of her right to respect for her physical and moral integrity under Article 8 … [and] it would be unreasonable and a further breach of Article 8 to allow the appellant's wife to stay but to require the appellant and their dependent children to be removed."
"Whilst return would be an interference with the respondent's Article 8 rights, having regard to the legitimate aim of maintaining an effective immigration policy the return of the respondent and his wife to Kosovo would not be disproportionate."
"[I]n 1995 Serb soldiers entered [the appellant's] home. He and his wife were taken into separate rooms. He was beaten up and his wife was raped. In 1996 the appellant and his wife were again attacked by Serb soldiers. They were in the process of cutting up wood when they were attacked by the Serbs who used a chain-saw to cause injuries to them. The appellant was a member of the KLA but he deserted in March 1999 because of the way in which the KLA were behaving. Apart from killing Serbs they were also killing ethnic Albanians who did not support their cause. The appellant returned to his village and then together with his wife he went into the mountains to hide. The appellant was with many other people from his village when they were attacked by Serb militia. Many people were killed including the appellant's brother. The appellant and his wife were extremely distressed and traumatised by their experiences."
"She is still suffering from severe symptoms of Post Traumatic Stress Disorder with insomnia, poor memory and concentration. She is unable to function at her optimum at home. … She also complains of severe recurrent headaches. Once she starts to show some improvement to her medication she will be referred for psychological therapy."
"Since her referral [in June 2001] … she has been treated with anti-depressant medication. [The counselling psychologist] reported on 30 May 2002 that 'Mrs Djali was unable to talk about the war which is the cause of her distressed state, she prefers to depend on medication to help her feel better. We agreed that psychotherapy was not useful at this time but it is an option to her when she feels she is able to talk'".
"She has been treated with anti-depressant medication and since being on treatment there has been some improvement in her mental state but she continues to be handicapped by the residual symptoms of the illness. She was referred for psychological intervention with a view that she may be able to discuss about her feelings and her experiences in her native country. At that point she appeared to be too unwell to participate in such therapy. In my view she will most certainly benefit from such intervention. … I am in no doubt that if she is asked to go back to her native country it will have a detrimental effect on her mental and physical health. In terms of treatment, information that is available to me, it is very unlikely that Mrs Djali would have access to specialist treatment that is being made available to her in United Kingdom."
"I find that Mrs Djali's psychiatric illness is directly related to the traumatising experiences which she suffered in Kosovo. I am satisfied from the objective evidence that there are no adequate facilities in Kosovo to provide her with the specialist care, counselling and rehabilitation which she requires. I find that to return her to Kosovo in the present circumstances would very likely result in an exacerbation of her present condition."
"involved features which are very similar to those in this present appeal. … there was clear medical evidence that her return at the present time would adversely affect the therapeutic treatment which she was currently receiving but was also likely to adversely affect the progress which had been achieved by returning her to the country where associations with her past suffering would be intensified. I find that exactly the same considerations apply in this appeal so far as Mrs Djali is concerned. Dealing with the question of proportionality, the Tribunal went on to state that whilst it will only be rarely that removals pursuant to maintenance of a consistent immigration policy would not be proportionate, this is one of those rare cases where it would not be so."
"8. Mr Ekagha [the Home Office Presenting Officer] challenged the Adjudicator's assessment of the medical evidence relating to the respondent's wife. … [He] pointed out that the wife was only receiving treatment by way of anti-depressant medication in the UK, and there was no objective evidence that this would not be available in Kosovo, or that out-patient counselling would not be available if and when required. Mr Alin [Mr Djali's representative] was unable to dispute this. …
9. Since the hearing before the Adjudicator there has been a report by Dr Singh, the consultant in charge of treating the wife. … He … opined that he was in no doubt that if [Mrs Djali] were asked to go back to her native country it would have a detrimental effect on her mental and physical health, but he did not indicate what that detriment might be or its severity. He also said that it is very unlikely that she would have access to specialist treatment being made available to her in the UK, but there was no indication what that consisted of besides the anti-depressant medication. Nor did he disclose any special knowledge about the medical facilities in Kosovo.
11. We … accept Mr Ekagha's submission that the medical and other evidence described above did not support the Adjudicator's view that this was a rare and exceptional case, comparable to the case of M. In so concluding we find he was in error. The Adjudicator was entitled to accept the evidence that the wife had been raped and traumatised by her experiences in Kosovo in the past at the hands of the Serbian forces, and that therefore special attention had to be paid to her claim. However, on the evidence of her actual condition and the availability of adequate medical treatment to treat her in Kosovo, the Adjudicator should have followed the starred Tribunal decision in Kacaj to the effect that it is difficult to envisage a case where Article 8 would be breached in the absence of persecution or Article 3 ill-treatment because the need to control immigration would make the removal proportionate. His failure to do so fatally undermines his determination, which cannot stand. We are able to make our own assessment of proportionality in its place. We conclude that, whilst return would be an interference with the respondent's Article 8 rights, having regard to the legitimate aim of maintaining an effective immigration policy the return of the respondent and his wife to Kosovo would not be disproportionate."
"18. But article 8 claims are sometimes more difficult to analyse. Where the claim is that an expulsion will interfere with a person's family life in the deporting state, there is no problem. Article 8 is in principle capable of being engaged: see Ullah para 46. But where the claim is based on an alleged breach of the right to private life in the broader sense referred to, for example, in Bensaid para 47, the position is more difficult. The preservation of mental stability is "an indispensable precondition to effective enjoyment of the right to respect for private life". Let us consider two paradigm cases. In case A, the person is in good health in the UK, but he says that, if he is deported to a "safe" third country, there is a real risk that he will suffer a serious decline in his mental health, because he has a fear (admittedly irrational) that he will be returned to face persecution in his country of origin. In case B, the person is already suffering from mental ill-health for which he is receiving treatment in the deporting country. His case is that, if he is deported, his mental condition will become significantly worse because in the receiving state he will not be given the treatment that he has previously enjoyed.
19. It is clear that case A is not capable of engaging article 8: the territoriality principle is decisive. But what about case B? The allegation is that the expulsion will cause a significant deterioration in the claimant's mental health. But will it be as a result of the cessation of treatment in the deporting country, or will it be because the treatment previously enjoyed will not be replicated by the receiving country? On an application of the "but for" test, both will be effective causes. The deterioration in the claimant's mental health will not occur if the deporting state does not disrupt the treatment being given by it. But equally it will not occur if the receiving state continues the treatment previously enjoyed. So how should the territoriality principle be applied in a "mixed case" where the allegation of interference with private life contains two elements, one relating to the deporting country, and the other to the receiving country?
22. … We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. 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. It is also consistent with what was said in paragraphs 46 and 64 of Ullah.
(b) Seriousness of harm
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 (Bensaid paras 46-48).
(c) Risk of harm
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 Mr Garnham (not disputed) that the degree of likelihood of the adverse effect occurring is no less than that required to establish a breach of article 3.
25. Even if a removal case engages article 8(1), there is article 8(2) to consider. As already noted, at para 48 of the judgment in Bensaid, the ECtHR said that even if the dislocation caused to the applicant by removal was to be considered by itself as affecting the claimant's private life, the interference was justified under article 8(2). In Kacaj (para 26), the IAT said that in deportation cases: 'it will be virtually impossible for an applicant to establish that control on immigration was disproportionate to any breach'. In Ullah (para 24), it was said that, where the ECtHR finds that removal engages the EHCR, the court 'will often treat the right to control immigration as one that outweighs, or trumps, the Convention right'.
26. We are in no doubt that in Kacaj, the IAT overstated the position. Paragraph 24 of Ullah reflects the situation more accurately. That this is so has been shown by a number of recent decisions of the ECtHR."
"In my view, removing [M] from therapy would probably be detrimental to her mental state. Trust and a sense of security are a necessary condition for working with people who have experienced severe trauma. This has taken over half a year to develop with her and I think has created an important platform which has played a vital role in her improvement. I strongly believe that therapy with her is at a critical point and that it ending prematurely would compromise a process of working through her trauma that she is just beginning. In addition I think being forced out of therapy would 'hook' her into belief that investing or trusting in any relationship is not worthwhile, something which would clearly be counter therapeutic."
"We are satisfied that on the basis of that evidence the appellant must be accepted to be deeply traumatised by her past experiences … The medical view is not only that she is in need of continued psychological and psychotropic treatment but that a severing of the bond of trust which has been forged with her clinical psychologist over a period of many months would be detrimental to her health at an important point in the present therapy."
"13. The Secretary of State has further considered whether your claim that your wife is ill would engage the United Kingdom's obligations under Article 3 of the Human Rights Act 1998.
14. You have claimed that your wife suffers from various medical problems and is currently receiving medical care in the United Kingdom, and that the withdrawal of that treatment will adversely affect her health. However, the Secretary of State is aware that a functioning hospital does exist in Gjakova, and that several health stations ('Ambulantas' exist in the surrounding villages. He also notes that a military hospital run by the Argentinian army is also supportive in terms of the provision of drugs and treatments. Taking all of these considerations into account, the Secretary of State is of the opinion that any suffering to which you may be exposed as a result of removal will not be sufficiently severe to engage Article 3."
"… In our judgment, the present case is not one where it is so plain that Article 8(2) is bound to trump the Article 8(1) claim that it is possible to certify the claim as manifestly unfounded. We would add that we would be especially reluctant to allow this appeal on the basis of Article 8(2) when the point has, apparently, never even been considered by the Secretary of State."
"47. Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
Interference with sexual orientation or sexual life may adversely affect physical integrity; not, however, in this context physical health.
Lord Justice Laws:
Lady Justice Arden: