United Kingdom Asylum and Immigration Tribunal

Islami v The Secretary of State for the Home Department Kosovo [2002] UKIAT 06303
CC/30102/01

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 13/11/2002

Date Determination notified: 29 January 2003

Before

Mr. P. R. Moulden (Chairman)

Mr. C. A. N. Edinboro

Mr A. F. Sheward

Between

Islami	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

1. The Appellant is a citizen of the Federal Republic of Yugoslavia and an ethnic Albanian from Kosovo. She has been given leave to appeal the determination of an Adjudicator (Mrs J. A. J. C. Gleeson) dismissing her appeal against the Respondent's decision to refuse to vary her leave to enter the United Kingdom and refuse asylum.
2. Ms S. Day of Luqmani Thompson and Partners appeared for the Appellant. Mrs A. Holmes, a Home Office Presenting Officer, represented the Respondent.
3. The Appellant arrived in the United Kingdom on 28 May 1999 under the Humanitarian Evacuation Program, accompanied by her husband and son. They were all given exceptional leave to remain for 12 months expiring on 28 May 2000. Her husband went back to Kosovo after approximately three months and the Appellant then claimed asylum in her own right, on 5 May 2000, with her son as her dependent. The notice containing the decision against which she appeals is dated 5 April 2000. The Adjudicator heard the appeal on 29 October 2001 and leave to appeal was granted on 22 July 2002.
4. The Appellant said that she had worked for a government body in Kosovo, Kryesia e Kosoves, which made important decisions at regional level. She was employed as an interpreter translating between Serbian and Albanian. Part of her job involved reading, considering and giving an opinion on whether political prisoners should be released or have their sentences reduced. She joined the Communist Party when she was 18 years old, which was essential at that time in order to obtain a good job. The Serbs abolished this organisation in March 1991 and the Appellant lost her job. She claimed that those whose cases she was involved in were now in positions of power in Kosovo and she would be at risk from them and others. Some of her former colleagues were dead, for unknown reasons. In August 1990 her husband lost his job at the Unit of Medicine for Sport. Four years later he started a private ambulance service. After a while she helped him, until 1998/99, when the war started. Between finishing her government job in 1991 and her departure from the country she did not have any problems with Albanians because of her former job. Following her husband's return to Kosovo he is running a sports ambulance service. He complains of lack of support and unfair competition.
5. At the hearing before the Adjudicator the Appellant accepted that the original basis of her claim was a fear of the Serbs and that she had not mentioned fear of Albanians because of her former government service.
6. The Appellant's two daughters arrived in the United Kingdom in 1992 and have indefinite leave to remain. Her elder son arrived in 1997 and has indefinite leave to remain.
7. On all the evidence the Adjudicator found that the Appellant was not likely to be at any significant risk because of her former government employment. She had not established a well-founded fear of persecution for a Convention reason.
8. In relation to the human rights elements of the claim, under articles 3 and 8, the Adjudicator had medical evidence from the Appellant's GP, but no Consultants report from the Royal Free Hospital where she was being treated. The Adjudicator found that the Appellant was suffering from anxiety and depression and receiving psychotherapy and counselling. She was taking antidepressants and night sedation when needed. Her anxieties centred on what would happen to her if she had to return to Kosovo.
9. The Adjudicator found that there were appropriate medical facilities in Kosovo to treat the Appellant's psychiatric problems as they appeared to her and that the Appellant's husband, because of his medical qualifications, would know this. It was likely that the Appellant and her son would recover more quickly if they were reunited with her husband and his father. Her son had spent most of his life in Kosovo. He had uncles and aunts in Kosovo. The Adjudicator concluded that it would be proportional to return the Appellant to Kosovo and to do so would not infringe her human rights.
10. The grounds of appeal raise issues under Articles 3 and 8. It is submitted that the Adjudicator reached the conclusion that appropriate medical facilities would be available to the Appellant in Kosovo without country information to support this. The Appellant seeks to rely on an additional country information and medical evidence. The treatment she required would not be available to her in Kosovo and there would be withdrawal problems and adverse long-term effects if she could not obtain Paroxetine.
11. We have before us the Appellant's bundle containing 33 pages, the Appellant's supplemental bundle of 13 pages, an Internet report from the Kosovo Rehabilitation Centre for Torture Victims (KRCT), the Respondent's bundle, the April 2002 Country Assessment, the Kosovo Information Project Fact Sheet on Mental Health in Kosovo, the Judgment of the European Court of Human Rights in Bensaid and the tribunal determinations in Bushi [2002] UKIAT 00449 and Shehu [2002] UKIAT 05103. Both representatives agreed that we did not need to consider the evidence from Wing Commander Neal or Dr Stuart Turner, which did not relate to the Appellant in particular.
12. Ms Day submitted that the Appellant was receiving essential medical treatment in the United Kingdom, which would not be available to her in Kosovo. The medical evidence confirmed this. This evidence, which was not before the Adjudicator, showed, that the Appellant was totally dependent on Paroxetine. Ms Day relied on the new reports from the GP, the psychotherapist and the Royal Free Hospital. They showed that there was a real risk of suicide. In reply to our question Ms Day conceded that there was no medical evidence specific to the Appellant as to whether she could be treated with a drug other than Paroxetine or the effects of its withdrawal.
13. Ms Day referred us to page 1 of the supplementary bundle, which is an e-mail from Dr Rexhepi, the director of the District Health Authority in Pristina. This states that, "All the drugs for a moment in Kosovo are coming from abroad with different names and from different countries. That means pharmacies are not all the time furnished with all drugs and especially with psychiatric ones. And as very important issue is that we don't have established counselling services because we are lack of psychiatrists. And problems like PTSD and depression need and professional support not only drug treatment". It goes on to say that a number of drugs are "not available" including Paroxetine.
14. Ms Day crew our attention to page 5 of the Appellant's original bundle; this is a letter from UNHCR dated 8 February 2002 which states, "Psychiatric services are very limited, with an almost total lack of community services other than those associated with conflict trauma. Patients are mostly treated pharmaceutically; rehabilitation is virtually non-existent". The Appellant would not be able to get a regular supply of the drug she needs and counselling was not available. She had a severe and chronic medical condition which could not be treated. We were referred to passages in the Respondent's Country Assessment. Paroxetine was not on the list of essential drugs. Even if the Appellant were able to obtain it from time to time, the country information showed that she was not likely to be able to afford it or to regularly obtain it. Even if she changed to another drug there was no evidence that any suitable drug would be available in Kosovo, either regularly or at all. The information at page 12 of the Appellant's original bundle and pages 5 to 9 of the supplementary bundle highlighted the considerable dangers of withdrawal from Paroxetine. Ms Day distinguished this case from Bensaid. In Bensaid the appropriate medication was available in Algeria (paragraph 20). In Berisha (page 40 of the Respondent's bundle) that Appellant had not shown the same compelling need for psychiatric treatment and his claim did not have the same degree of support from the medical evidence. Ms Day submitted that this case was closer to those of Bushi and Shehu. We were asked to allow the appeal.
15. Ms Holmes submitted that to return the Appellant would not infringe her rights under Article 3. She was ill but not that ill. The medical report at page 11 of her supplementary bundle indicated that she was capable of looking after her son. She was eating adequately and did not have panic attacks. Ms Holmes accepted that the Appellant had moderate problems, which were likely to be helped by the drugs she was taking. It was likely that she would be anxious and depressed, to some extent because of her separation from her husband. It was clear that she had not always been suicidal and the risk of suicide was speculative. It was not likely that she would kill herself and leave her son unprotected. Appropriate medical treatment was available in Kosovo. She referred us to the Kosovo Information Project report at page 18 which listed the mental health facilities in Pristina. We were referred to paragraph 5.39 and 5.40 of the Country Assessment. Dr Rexhepi said no more than that the drugs were not available all the time. The Appellant might well be in a better position because of her husband's medical qualifications. Her family might be able to send her the drugs from the United Kingdom. There might be other means of treating her illness, other than Paroxetine. There were important similarities with Bensaid. This case was not as serious. We were asked to dismiss the appeal.
16. In reply Ms Day submitted that the Appellant was likely to be able to cope because of the medication and counselling she was receiving. To return her to Kosovo would infringe her human rights Article 3. Even if she did not have a well-founded fear of persecution in Kosovo, she did have a genuine subjective fear of what would happen to her. More than one medical professional said she was at risk of suicide. To suggest that she would not commit suicide because of her son was pure speculation and unsupported by any medical evidence.
17. The medical report from Dr Rustin (the Appellant's GP), at page 2 of the supplementary bundle, states, "She is absolutely dependent on taking her medication which is still Paroxetine, currently 20 mg a day..... In my professional opinion, this woman is determined not to return to Kosovo because of the risk of violent vendetta behaviour towards herself and her son. There is little doubt in my mind that she would rather kill herself than do so. Mrs Islami will have to take her medication indefinitely until her circumstances are secure and stable enough for her to start to rebuild her confidence and allow herself to take up her interest in life again. Mrs Islami also receives regular counselling from our practice counsellor".
18. There is a report from the practice counsellor (a psychoanalytical psychotherapist) at page 10 of the Appellant's supplementary bundle, which shows that the Appellant is being seen on a regular basis approximately every three weeks for one hour. It expresses the view, "Mrs Islami has consistently told me that she cannot return to Kosovo and her determination not to do so brings grave concerns of the suicide risk should she not be granted the immigration status to remain in this country.... There are no indications that Mrs Islami's mental health will recover whilst the uncertainty of her status here and permanent fear of returning to Kosovo remain. Her medication given here, but unavailable in Kosovo, helps to stabilise her health but do not and cannot remove the root cause of her illness".
19. There is a detailed medical report from Dr Pendlebury, a Senior House Officer to a Consultant Psychiatrist at the Royal Free Hospital. She states that the report has been prepared under his supervision. Relevant passages state, "During our last consultation she had no specific plans or intentions to kill herself, but from her GP's input this appears not to be the case at present. Mrs Islami has stated on a number of occasions that she will kill herself should she have to return to Kosovo, and I believe this to be a real risk at present. I.... suggest that there is a very high risk of deterioration in her mental state to the point of suicidality should she be returned to Kosovo". The report confirms that she takes Paroxetine daily and Gaviscon.
20. The Appellant's son will not go for counselling as recommended by the GP, and does not wish to discuss what happened in Kosovo. The Appellant is in touch with her husband who has told her that he does not recommend that she returns because the country is in transition. The Appellant's three adult children are either in the United Kingdom or France and have exceptional leave to remain or the equivalent.
21. Paragraph 4.25 of the Country Assessment state that, "Health services are capable of providing satisfactory primary care and are improving. But some conditions requiring more complex or long-term treatment are beyond current resources. Details are not included here because health provision is constantly developing". The Municipality Report (at paragraph 3.2) shows that there are psychiatric and mental health clinics in Pristina, which provide mental health services. However, the explanatory note refers only to improving the psychological state of torture victims. It contains no reference to counselling.
22. The medical evidence persuades us that the Appellant's mental health is such that she requires continuing treatment. Currently she is receiving treatment consisting of counselling and Paroxetine. Her medical advisers consider that this is and will continue to be appropriate and necessary for the foreseeable future. We accept this. The country information shows that, at best, Paroxetine is only available irregularly and expensively. Our interpretation of the report from Dr Rexhepi is that it is not likely to be available at all. We have no medical evidence as to the possible suitability of other drugs, but Dr Rexhepi's report shows that a number of named psychiatric drugs are not available. We would have given greater weight to the submission that the Appellant is likely to suffer serious withdrawal symptoms if Paroxetine is withdrawn had this been said in any of the medical reports. Nevertheless, the reports which are not specific to the Appellant support the view that she is at the least likely to have difficulties if the drug is withdrawn, particularly if no suitable replacement is available.
23. We accept the country information that counselling is not likely to be available in her part of Kosovo.
24. The medical evidence also indicates that there is a real risk that the Appellant will commit suicide if she is forced to return to Kosovo. We prefer the medical evidence to Ms Holmes speculation that the Appellant would not commit suicide for fear of what might happen to her son.
25. We find, on the totality of the evidence, that the likely deterioration in the Appellant's mental health resulting from the non-availability of appropriate medication and counselling in Kosovo, combined with the risk of suicide, means that if she were to be returned there would be an infringement of her human rights under Article 3. In reaching this conclusion we have taken into account the high Article 3 threshold.
26. We find the Appellant has a private and family life in the United Kingdom. To return her to Kosovo would constitute an infringement of this and interfere with her physical and moral integrity, notwithstanding that she and her son would be reunited with her husband and his father. To return her would be in accordance with the law and would pursue a legitimate aim. However, on all the evidence, we find that it would not be proportionate.
27. We allow the appeal on human rights grounds.

P. R. Moulden

Vice President