COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE MAURICE KAY
| Emrush Miftari
|- and -
|The Secretary of State for the Home Department
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)
Miss Elisabeth Laing (instructed by Solicitor to HM Treasury) for the Respondents
Crown Copyright ©
Lord Justice Buxton
It is now well known that Parliament revoked the power of the Immigration Appeal Tribunal to hear appeals on fact in relation to any decision by an Adjudicator which was made after the first week of June 2003. For a long time the effect of this decision appears not to have percolated through to those who practise before the IAT, and the IAT itself made a number of determinations in which it did not clearly identify the point of law which alone gave it jurisdiction to hear the appeal.
The present appeal is yet another example of the difficulties to which the failings identified by the Vice-President have given rise.
In all the circumstances it is clear that the Appellant would have to establish an exceptional case to satisfy the criteria under Articles 3 and 8. In this case I consider that an exceptional case has been made out. He is 58 years of age and appears to be an old man because of his mental health problems……..[The consultant psychiatrists] agreed that the Appellant is suffering symptoms of PTSD. I accept that the Appellant's mental health would deteriorate if returned and I agree with the reports and conclusions of [the consultant psychiatrists]. I am satisfied that the Appellant will be subjected to inhuman or degrading treatment if returned to Kosovo and therefore Article 3 is applicable. I am also of the view that it would not be appropriate for the Appellant to be removed to Kosovo and that his removal would constitute a breach of Article 8(2) of the ECHR. I am satisfied that any interference with his private moral or family life would not be necessary and proportionate in the circumstances of this particular case.
He accordingly allowed the appeal on human rights grounds.
The appeal to the IAT
2. The Adjudicator has considered the circumstances of this case to be exceptional. However, it is submitted that medical provision for this Appellant is available in Kosovo. The Adjudicator has erred in considering only the availability of treatment in the former home area of the Appellant (Paragraph 29). The Tribunal considered in 00017 P that treatment is available: 'Certainly there is no current evidence we have been made aware of that mental health facilities have been considered of poor quality or as seriously deficient or as unlikely to ensure intensive treatment of a mental health condition when that was required. Furthermore, it appears that particular steps have been taken to cater for the needs of persons who have been victims of trauma.' (Paragraph 34)
It is submitted that the availability of 40 neuro-psychiatrists in the Kosovo area at a ratio of one psychiatrist per 90,000 inhabitants (as compared to one psychiatrist per 30,000 inhabitants in the UK) demonstrates the provision of mental healthcare. That the provision is not of the same availability (and/or quality) of that of the UK does not, in my submission, render it sufficiently poor as to breach Article 3.
3. It is submitted that even if the Appellant were unable to access some healthcare due to financial constraints that this would not breach Article 3. The Adjudicator has correctly noted the case of K v Secretary of State  ImmAR yet has failed to apply those findings. In line with 00017 P, the availability of medical treatment, not it's accessibility, is the key. It is submitted that in accepting the availability of treatment the Adjudicator has erred in allowing this appeal.
A Vice-President of the IAT ruled that "the grounds indicate a basis for appeal to this Tribunal".
The Immigration Appeal Tribunal
"15. Thereafter however we depart from the Adjudicator with regard to the conclusions that he thought it proper to draw from these reports. The particular error which we consider he perpetrated was to limit his consideration of the relevant objective evidence to the available mental health facilities in the Claimant's immediate area, that being the Gjilan municipality. We note the point made by Mr Revindran from the evidence in the bundle concerning UNMIK who say they will only accept people at their last place of residence, but UNMIK are not the only body responsible for returns, and it is clear that the policy of the Secretary of State is to effect returns to Pristina, and thereafter, as Ms Holmes argued, it is for the Claimant to decide where he goes, and it is clear that he has some family in his home area should he chose to go there and on the other hand as the Adjudicator concluded at paragraph 29 of the Determination, he would be clearly able to obtain some sort of accommodation when he returned. We consider that the restriction as effectively we consider it to have been by the Adjudicator of consideration on return to the immediate area was a clear error of law in that he should properly have given consideration to return to Kosovo generally and risk on that account if any.
"16. We consider that we can therefore look at the up-to-date evidence in the April 2004 Country Report. In particular this is to be found at paragraphs K.5.61 to K.5.66. From this we see that a review of the WHO mental health project in July 2002 made a positive evaluation of the progress in the mental health sector in Kosovo. Treatment for psychological conditions including Post Traumatic Stress Disorder is available in Kosovo and details are provided in source documents of the Kosovo Rehabilitation Centre for Torture Victims which provides treatment for PTSD. In 2001 according to a Balkans crisis report the number of patients treated for psychiatric disorders by the Kosovo Rehabilitation Centre for torture victims increased from 1,187 in 2001 to 2,812 in 2002. There is also a quote from a statement by the UNHCR, at paragraph K.5.63. It is said that the situation is difficult given the large number of patients coming to the psychiatric clinic in Pristina , and there is reference to medication available, at paragraph K.5.64 of the report.
"17. It is relevant to bear in mind the views of the doctors that the Claimant does not have plans to end his life and is not suffering from a depressive illness. We consider that the Adjudicator was in error in considering that the Appellant has shown an exceptional case in order to satisfy the Article 3 and Article 8 criteria. We have derived assistance from the Tribunal Determination in  UKIAT 00053 N (Kenya) which among other things makes the point at paragraph 23 that some similar considerations apply to the threat of serious harm to the Article 8 claim as to the Article 3 claim. It was concluded by the Tribunal there that in cases of this nature the Appellant cannot succeed under Article 8 if she fails underArticle 3, there being no measurable difference in the test for engaging Article 8 which requires a flagrant denial of the appropriate rights. Reliance was properly placed on the decision of the Court of Appeal in Djali in this regard. The issue of financial constraints is not part of the basis of the claim, as Mr Revindran stated to us, and therefore to that extent we do not need to consider the relevant points made by the Court of Appeal in K. It is a question of access to adequate medical facilities for the particular matters from which the Claimant suffers, and we have concluded that the Adjudicator was in error in limiting his consideration to the immediate area, and that on a proper consideration of the objective evidence he should have come to the conclusion that the case is not an exceptional one and that the return of the Claimant would not give rise to a real risk of breach of his Article 3 or Article 8 rights.
The Tribunal allowed the Secretary of State's appeal, and discharged the decision of the Adjudicator.
The appeal to this court
Whether the Tribunal's conclusion that consideration of the availability of medical services in Kosovo should be extended beyond the Appellant's home region of Gjilan was an error of law in the light of UNMIK's objection to returning people other than to their place of origin
That question was sought to be supported by reference to material emanating not only from UNMIK but also from the UNHCR that had come into existence after the date of the IAT's determination, and which was alleged to cast doubt on the IAT's conclusions as to the liberty of Mr Miftari to move outside the Gjilan region that had been assumed in paragraph 15 of its determination, quoted above.
i) The grounds submitted to the IAT did assert errors of law on the part of the Adjudicator
ii) Even if that were not so, it was clear that the Adjudicator had indeed made errors of law. That objective fact gave the IAT jurisdiction, even if those particular errors had not been identified in the grounds
iii) In any event, it was plain that the Adjudicator had gone badly wrong in law, and the Court of Appeal should not permit that plainly erroneous determination to stand. It will be noted that that contention may not be consistent with the (correct) concession recorded in paragraph 7 above.
Before dealing with those contentions it is necessary to identify and to say something about the errors of law on the part of the Adjudicator on which the Secretary of State relies.
Errors of law alleged by the Secretary of State
"only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control"
The source of the IAT's jurisdiction
"the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal…with the recent limitation of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction"
That means that the IAT can only consider what is legitimately found in the actual or amended grounds. It does not have jurisdiction to consider anything that is not there found. Third, whilst a court will not ordinarily be required, in the absence of the point being raised, to consider whether it has jurisdiction to take a particular case, that is not so of the IAT. It has to consider jurisdiction expressly because it has to pass on the grounds of appeal. It is very difficult to see how a decision as to jurisdiction can be saved by demonstrating that although the basis on which it was taken was unjustified, the Vice-President could have granted permission on a different basis that was not before the court.
The grounds to the IAT
The discretion of this court
The IAT's powers in an appeal on a point of law
"at the time of the IAT's decision in this case members of the IAT were under the misapprehension that, once permission to appeal on a point of law had been given, it was open to the IAT to review the Adjudicator's conclusions of fact"
The same misapprehension appears to have obtained in the case before us.
Lord Justice Keene :
Lord Justice Maurice Kay :
"is not required to consider any grounds of appeal other than those included in the application."
As I understand it, the purpose of that provision was to put an end to the previous common practice of applying for permission to appeal in an inchoate way and adding grounds or further grounds piecemeal thereafter. The rationale of Robinson still holds good. Rule 18(2) does not prevent the Tribunal from considering unformulated, Robinson – obvious Convention points and it should continue to do so. Nothing in B or any of the recent authorities discounts Robinson. On the other hand, there is no authority of which I am aware that would enable the Secretary of State to invoke the same principle. At one point it seemed that Miss Laing was minded to submit that, because the Adjudicator was obviously wrong in his application of Articles 3 and 8, the jurisdiction of the Tribunal, and therefore this court, could arise on a Robinson basis. However, that is not the basis upon which the Tribunal proceeded and I do not consider that it can avail the Secretary of State in this case. Indeed, on the material to which we have been referred and without the benefit of fuller submissions, I am not convinced that Robinson can ever avail him. As originally propounded, it seems to be something of a one-way street. If that now arguably engages Article 6, it will have to be considered on a future occasion.