United Kingdom Asylum and Immigration Tribunal

QG (ECHR Art 3, Art 8, Women) Kosovo [2002] UKIAT 01053
HX-11955-2001

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 28/01/2002

Date Determination notified: 09/04/2002

Before

Mr H J E Latter (Chair)
Mr M G Taylor
Mrs A J F Cross De Chavannes

Between

QG	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Representation: For the appellant: Miss E Norma, of Counsel, instructed by Nelsons, Solicitors.
For the respondent: Mr D Mackenzie-Smith, Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal by Qomile Gashi, a citizen of the Federal Republic of Yugoslavia from Kosovo, against the determination of an Adjudicator (Mrs M Gurung-Thapa) who dismissed her appeal against the respondent's decision made on 2 June 2000 giving directions for her removal from the United Kingdom following the refusal of her claim for asylum.
2. This decision was on the basis that the appellant had failed to return and complete a Statement of Evidence Form. Following the submission of grounds of appeal, the appellant's claim was considered further but by a letter dated 9 March 2001,the respondent maintained his decision.
3. The appellant claims to have arrived in the United Kingdom on 3 October 1999. She claimed asylum on the same day. Her claim was determined in the absence of any substantial evidence from the appellant. She appealed against that decision. The hearing was adjourned on two occasions and was finally heard on 3 September 2001.
4. The appellant gave evidence at the hearing confirming the contents of a written statement dated 27 July 2001. In this statement she gives an account of being raped by two Serb soldiers in her own home in Kosovo. She describes this as being the most terrible moment of her life. An atrocity had been carried out on her body which had dishonoured her family and husband. She suffered from depression and still had nightmares about the incident. Her family knew what had happened to her. Her neighbours must have known as they would have heard her screaming. She was receiving counselling and was on medication. The medical evidence confirmed that she was suffering from a depressive illness.
5. The Adjudicator accepted that the appellant had been raped. She had before her a report prepared by Rachel Wareham dated October 2000 entitled "No Safe Place: an assessment on the violence against women in Kosovo". She also had before her medical evidence from a nurse practitioner in mental health dated 8 August 2001 and from the appellant's GP dated 31 August 2001. The appellant had been prescribed anti-depressants and referred to a counsellor. The GP's assessment was that the appellant was suffering from a depressive illness. The evidence from the nurse practitioner after one assessment was that the appellant was suffering from post traumatic stress disorder. The Adjudicator commented that she was unable to form a view as to whether or not the appellant fell within a category identified by the UNHCR as persons with special protection needs. She did not have up to date medical evidence as to the appellant's mental state.
6. The Adjudicator was not satisfied that the appellant had a well-founded fear of persecution in Kosovo for a Convention reason nor that there were substantial grounds for believing that there was a real risk that the appellant would face treatment contrary to Article 3 or Article 8 on return. Accordingly, she dismissed the appeal.
7. Leave to appeal was granted by the Tribunal (Dr H Storey, Vice President) on the basis that it was arguable that the Adjudicator had failed to give adequate reasons why she concluded that the appellant would not by virtue her medical condition be exposed to a real risk of treatment contrary to either Articles 3 or 8. The parties were directed to furnish whatever general country materials there were relating to facilities for medical treatment in Kosovo.
8. At the hearing before the Tribunal the appellant submitted a bundle of documents (A) together with the report of October 2000 from Rachel Wareham. There was a further medical report dated 27 December 2001 from the nurse practitioner. The respondent submitted the municipality information fact sheet for Pristina together with the Tribunal decisions in Tafolli (01/TH/1269) and Berisha (01/TH/2623).
9. Miss Norman submitted that the present appeal was properly distinguishable from the facts in both Tafolli and Berisha. The appellant had given an account of a horrendous rape in which the intention was to humiliate completely the victim. Many women could not talk about such events at all. There was a great weight of condemnation against women who were raped. There was a real risk of being abandoned by friends and family because of the dishonour to the family. The appellant was receiving medication and counselling but may need psychiatric treatment at a higher level. The diagnosis had not been finalised because of problems about what the appellant was able to disclose. The appellant's condition was caused by what had happened to her in Kosovo. Sending her back to the same environment would cause her further distress and illness. There was a paucity of evidence about health care in Kosovo. There was no evidence that the help the appellant needed would be available there.
10. Mr Mackenzie-Smith submitted that the environment had changed in Kosovo. The Serbian authorities had gone. It was inferred that the appellant was at risk of being divorced by her husband but in fact he was still with her. The background evidence showed that there were social services available in Kosovo. The medical report tended to indicate that the assessment was incomplete. The Adjudicator had reached the correct decision.
11. The Adjudicator accepted that the appellant had been the victim of a rape in humiliating and degrading circumstances. The use of rape as a weapon of war is well documented. However, as Rachel Wareham records in her report the tendency is for the issue to be forgotten about when a particular conflict subsides. There really can be little doubt that rape was common during the conflict in Kosovo. The report prepared by Rachel Wareham makes chilling reading. Many of the victims are convinced that they will face rejection and stigmatisation by their own community and by their own families.
12. Each claim must be looked at on its own facts and in the light of the provisions of the Refugee and Human Rights Conventions. The rape on the appellant was perpetrated by members of the Serb authorities. They have now left Kosovo. The Adjudicator was right to hold that there is no reasonable degree of likelihood of the appellant facing persecution on return. The conflict in Kosovo is over. Peacekeeping forces are present and law and order is being maintained by UNMIK and KFOR.
13. However, the appellant is left with the emotional and psychological effects of the rape. It is submitted that it would be a breach of Article 3 or Article 8 for the appellant now to be returned to Kosovo. This depends both on her condition and upon the facilities available in Kosovo. The medical evidence before the Tribunal is that the appellant is suffering from a depressive illness and that she has been referred to a counsellor. According to Dr Collinson the appellant's symptoms are consistent with those to be expected from any other person who has gone through similar experiences. The appellant is having counselling and will continue with this at the surgery. She will be on anti-depressants for a total of 6 months. The cost of private counselling by someone with the same qualifications as the present counsellor would be £20-£30 a session. The anti-depressant (Prozac) that she is on costs £7.12 per month privately. The doctor did not know whether these treatments were currently available in Kosovo.
14. Mr Smith, the nurse practitioner has provided a further report dated 27 December 2001. He says that he first met with the appellant on 1 October 2001. He has met with her several times since and his work is on-going. It is his view that the appellant's symptomatology is consistent with a diagnosis of post traumatic stress disorder. His intentions to date are focused on maintaining the appellant's psychological stability. His role has been to offer short term intervention and it may be necessary in the future to consider referring the appellant on to secondary or tertiary services. This would offer the opportunity for longer term treatment under the expertise of a consultant psychiatrist. The appellant has symptoms of anxiety and depression which are to be seen in the context of past events, in her apprehension and fear about what would happen if she were returned to Kosovo and in a degree of social isolation and difficulty adapting to her current situation in Nottingham.
15. It is clear from the information sheet produced about Pristina that social services do function in Kosovo. These are identified at heading 8 of the report. It is right to note that the primary activity of these services is to provide financial assistance for vulnerable families. There is one psychiatric institution identified at heading 7.4. There is one main hospital dealing with clinical problems and six health centres. In Rachel Wareham's report at page 49 there is a reference to the Kosovo Centre for Rehabilitation of Torture Victims and the Centre for Protection of Women and Children (both in Pristina). Both centres offer care and support for those with symptoms of trauma. The second centre has a self help group for rape survivors where they can meet and support each other. There is no reason why the appellant should not have access to these facilities. There is no evidence to support any contention that the appellant will in fact be ostracised by her husband or family.
16. Dealing first with Article 3, there has to be a minimum level of severity before the consequences of removal may be said to amount to inhuman or degrading treatment contrary to Article 3. Looking at the situation of the appellant, the fact that she has not been referred for secondary services, and the fact that she is receiving counselling and anti-depressants, the Tribunal are satisfied that she will be able to have access to similar support as treatment in Kosovo. In our view to return the appellant to Kosovo would not breach the minimum level of severity required to amount to a breach of Article 3. The Tribunal take a similar view in respect of Article 8. For the reasons already set out there would not be a breach of her right to physical and moral integrity by a return to Kosovo.
17. For the reasons which we have set out, the Tribunal agrees with the conclusions reached by the Adjudicator.
18. This appeal is dismissed.

H J E Latter