QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BESIM DUCJA||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR JP WAITE (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"There is nothing in the factual information placed before me to indicate that the appellant is anything other than in the broad category of those persons who, if they receive prompt and appropriate medical treatment, this condition can be very considerably alleviated. I do not accept that there is any evidence to indicate that the appellant has had an enduring personality change."
In paragraph 20 he said this:
"I therefore see no reasons for diverting from the factual analysis of the difficulties of a person returning to Kosovo who is receiving some treatment. The appellant is receiving a standard psychiatric drug on a fairly low basis and I assume that there will be no difficulty in the appellant accessing such medical treatment in Kosovo. Clearly if the appellant decided to relocate away from a major urban area he may well have some difficulties. That however will be a decision of the appellant's, not that of the UK government. It is the actions of the UK government that could place the appellant at a real risk of a breach that is effectively protected under the terms of the international Conventions."
"Therefore in relation to Article 8 I find that the interference with his right to respect for his physical and moral integrity is not sufficiently made out for me to be satisfied that there is a real risk of a breach. It is therefore not necessary for me to go and to consider the other aspects of Article 8 if I had been convinced that there was a prima facie indication of a real risk of Article 8 being breached if the appellant were returned to Kosovo."
He went on to state in paragraph 23 the assumption that he would be returned to Kosovo in a responsible way with a sufficient amount of medication to tide him over.
"It is correct that the Adjudicator did not properly address the Article 8 issue for which the determination was remitted back to him, and in particular did not address the issue of proportionality. However, all the evidence is clear from the case file. Also the significance of illness, the relationship between Article 3 and Article 8, and post-traumatic stress disorder in the context of Kosovo has recently been well explored by the Tribunal."
"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)."