QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PRELA||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(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)
MISS VICTORIA NASSAR (instructed by Immigration Services Limited, London) appeared on behalf of the CLAIMANT
MR SAM GRODZINSKI (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"However, there are a number of factors in this case which lead me to make a strong recommendation that this Appellant and his family are given four years exceptional leave to remain in the United Kingdom. The factors are these. Firstly, the Appellant's mental health as set out in Dr Steadman's report. Secondly, the Appellant and his family have been in the United Kingdom since September 1998 and during that time the Appellant's wife has given birth, here, to another child of the Appellant, making three children in all. The Appellant underwent a particularly gruesome form of torture in having his teeth removed in Kosovo. He saw dead bodies and saw people being killed. Had the original appeal come before me I might well have considered that the cessation clause would have applied. Finally, life in Kosovo would be extremely hard for the Appellant and his young family. They have no home to go to; their house was destroyed. The Province's infrastructure is in the painfully slow process of being rebuilt."
"The recommendation made in the special adjudicator's determination dated 04/04/2002 has been carefully considered and for the reasons mentioned above the Secretary of State is not satisfied that it contains additional clear compassionate circumstances. Consequently, the Secretary of State is not prepared to take further action on the recommendation."
"The Appellant underwent a particularly gruesome form of torture in having his teeth removed in Kosovo. He saw dead bodies and saw people being killed."
It is submitted before me that, in the most recent decision letter, the Secretary of State has failed properly to take those matters into account. Reliance is placed on the fourth paragraph on the second page of the Secretary of State's letter. In that the Secretary of State says:
"The Secretary of State does not condone any violation of human rights which may have been committed against your client and his family before they left Kosovo in 1998. The Secretary of State accepts that your client may have suffered torture in the past, but given the current improved political situation in Kosovo, he is of the opinion that your client can reasonably be expected to live in relative peace on return to Kosovo."
Miss Nassar, who appears on behalf of the claimant, submits that that paragraph simply does not do any kind of justice to the horrendous torture suffered by this claimant. The words "may have suffered" are an indication that the Secretary of State has not given full weight to matters which are set out in the adjudicator's decision.
"Notwithstanding your client's account of events including his ill-treatment, his current medical condition and any difficulties the family may encounter on return to Kosovo, the Secretary of State has concluded that these matters do not amount to sufficiently exceptional circumstances that had not previously been considered, such as to warrant departure from his policy."
It is submitted that the reference there to ill-treatment and the reference in the proceeding paragraph to which I have referred to torture show that the Secretary of State had well in mind the observations of the adjudicator in paragraph 34, to which I have also referred.
"The Secretary of State accepts the substance and findings of Dr Steadman's medical report but has concluded that the report does not demonstrate clear exceptional compassionate circumstances on which the Secretary of State may be inclined to grant your client leave to remain. In particular, the Secretary of State has considered that your client's anxiety symptoms and sleep disturbance are far from exceptional and indeed these symptoms are very common in many former residents of the Federal Republic of Yugoslavia."
Again, in my judgment it cannot be said that he has (a) failed to take the report into account; or (b) not given it proper weight when arriving at his decision.