United Kingdom Asylum and Immigration Tribunal

H-NMB-V2

Heard at Field House

[2003] UKIAT 00025 M (Armenia)

On 4^th June 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

.................................................

Before:
Mr A R Mackey - Chairman Mr A A Lloyd JP

Between

APPELLANT

and
SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT

Representation:

For the Appellant: Mr T Mukherjee of Counsel

representing Popkin & Co, Solicitors

For the Respondent: Mr A Sheikh, Home Office Presenting Officer.

DETERMINATION AND REASONS
1. The Appellant, who is an 18 year old citizen of Armenia appeals with leave against the determination of an Adjudicator Mr D J Boyd QC, promulgated 25^th November 2002 wherein he dismissed an appeal against the decision of the Respondent who had refused leave to enter and asylum and human rights claims. The Adjudicator however stated at paragraph 33 of his determination:

"However I recommend that the Secretary of State should carefully consider whether the appellant is at this stage in a fit state to be returned and that she be granted further leave to remain in order to allow her to mature and recover. Any doubt in the Secretary of State's mind should be resolved in the Appellant's favour."

The Appellant's Background

2. The Adjudicator had found the Appellant's evidence credible. He noted that she was the only daughter of a couple from Armenia. Her mother had been a Jehovah's Witness and had died of an illness in July 2001 when the Appellant was approximately 16. The Appellant was thus left in the situation where her only close relative was her father. Unfortunately there had been a violent relationship between the Appellant's mother and father and on the death of her mother the Appellant herself had began to suffer from beatings with belt and fists from her father and was also locked in a darkened room for long periods. The Appellant had been able to arrange with her only near relative, an aunt, now based in the United Kingdom to escape from Armenia arriving in this country in September 2001 and initially given leave to enter as a student.
3. Before the Adjudicator both the Appellant and the aunt MP gave evidence. It was explained that the Appellant was very timid, lacked confidence and grieved for the loss of her mother. She was living with MP, her common-law partner and their three children.
4. Psychiatric evidence was provided from Dr Caroline Gorst-Unsworth which recorded the psychological problems of the Appellant and that during the time when she was receiving emotional support from her aunt there had been therapeutic benefit. It was claimed that on return to her father she will be caused further psychological damage.
5. Consideration was also given to the issue of whether the Appellant could be supported by friends from the Jehovah's Witness faith in Armenia and while it was noted that the faith was itself illegal in Armenia the Adjudicator did not consider the Appellant suffered persecution in the past because of her religious beliefs. However the Adjudicator went on to find that the recovery of the Appellant would be impeded by further abuse from her father and that she would not be able to seek support from him or any other relatives, "she might get support and accommodation with friends, including a Witness family". He then concluded:

"While her return to Armenia would trigger concerns about her Article 3 and 8 rights, I am not satisfied on balance that the risk would be so serious that these risks would be infringed. I have to say I have reached this view only after careful deliberation."

He then dismissed the human rights appeal.

The Appellant's Submissions

6. Mr Mukherjee submitted to us that the determination of the Adjudicator was flawed and that there was a real risk of a breach of either Article 3 or Article 8 of the ECHR if this Appellant were returned to Armenia. He submitted that the father's domestic violence was a real issue and that he would find her on return. The psychiatric evidence supported the Appellant's depressed psychological state and that we should give weight to the conclusions in that.
7. Beyond this he noted that there was no other support network available to this Appellant on return to Armenia. The evidence set out in a specialist report from Dr Robert Chenciner (5^th November 2002), which had also been before the Adjudicator, confirms that there was no government or non-governmental organisations available to provide support to a young woman alone in Armenia where there was a risk of domestic violence.
8. He submitted therefore as there were clearly doubts in the mind of the Adjudicator from his conclusions at paragraphs 31 and 33 that he should have gone on to at least conclude that there would be a risk of a breach of either Article 3 or 8 for a period of many months or possibly years to come. He submitted that the determination should not have ended in a vague recommendation but in a firm conclusion that there was a real risk of abuse which would breach Article 3.
9. In relation to the Article 8 claim we were able to ascertain that the aunt MP has exceptional leave to remain in the United Kingdom until 19^th April 2004. The Appellant is living with her aunt and her three young children and the partner of MP who was stated to be a British citizen.
10. Mr Mukherjee submitted that it would be a breach of the private life of this Appellant she had established in UK if she were returned, particularly given the lack of mental health care and emotional support that would be available to her.

The Respondent's Submissions

11. Mr Sheikh submitted to us that the Adjudicator's determination was not flawed in relation to the Article 3 ECHR assessment. He conceded that there was a risk that if this Appellant were returned to her father she may be abused again. However he noted that she was now a woman in her own right and would have the ability to live independently in a manner that would not breach Article 3. He also asked us to note the very high threshold of breach of Article 3 as set out in determinations of the European Court of Human Rights such as Bensaid.
12. He submitted that there was a possibility that the Appellant could be supported by Jehovah's Witness families in Armenia. She had shown some independence in the past by distributing leaflets on her own behalf and carrying out her religion. He also noted that the Appellant's evidence indicated she had continued to see her Jehovah Witness friends even though her father refused to let her be involved. Finally he submitted that there was a possibility of financial support given to the Appellant on return by her aunt and also there was the possibility of the aunt returning to Armenia to be with the Appellant.
13. On the issue of Article 8 he submitted that the determination in the Court of Appeal in Ullah and Do was relevant and the Article 8 right could not be claimed in such a situation. He also noted that the Appellant's aunt MP did not have status to remain in this country beyond 2004.
14. He submitted that, following the determination in the Court of Appeal in Mahmood, even if it were accepted that there would be a disruption of the Appellant's family or private life by her return to Armenia, that it would not be disproportionate to the rightful objective of immigration control.
15. He also asked us to note that other recommendation could be made to the Secretary of State and it was not a fault in the determination of this Adjudicator to make a recommendation and it do not indicate a contradiction in the assessment.
16. We asked whether any consideration had been given to the recommendation of the Adjudicator. We were advised that it did not appear this had happened presumably on the basis that the Home Office is awaiting the outcome of this appeal.
17. In reply Mr Mukherjee submitted that it was unrealistic to consider that this appellant could lead an independent life from her father on return to Armenia at this time of her life particularly noting the agreed findings that she was a quiet woman who appeared to lack confidence and needed emotional support. He noted that the objective evidence indicated that a person in such a situation was at risk of being forced into prostitution merely to survive. He also asked us to note that the psychiatric evidence indicated that the Appellant needed further time to grieve over a limited period of time. Finally he submitted that the possibility of Jehovah's Witnesses giving her support on return could not be argued as being sufficient and that would not allow her to lead a life away from her father.
18. He submitted also that it was wholly unrealistic to expect MP and her family to return to Armenia. Beyond that we did not have evidence before us as to their current situation in the status of the relationship between the Appellant and them.
19. We reserved our Determination.

The Issues

20. We found the issue before us to be whether the assessment of the Adjudicator, of the human rights under Articles 3 and 8 of the ECHR sustainable. If so should a recommendation made to the Secretary of State for a period of further leave to remain?

DECISION

21. We are satisfied after careful consideration of this Appellant's case, which because of the acceptance of credibility, raised humanitarian issues, that the assessment of the Adjudicator was a correct one. The only possible ground this Appellant could succeed under would be under Article 3 of the ECHR. In this regard we adopt the binding reasoning of the Court of Appeal in Ullah and Do in respect of the Article 8 claim.
22. The standard required under Article 3 is a high one and this was clearly reflected in the European Court Determination of Bensaid. It is considered that while the Appellant's situation may be an unfortunate one there are not substantive reasons for concluding there would be a real risk of a breach of Article 3 if she were to be returned to Armenia. We find ourselves in almost complete agreement with the findings of the Adjudicator that while an infringement of Article 3 has not been established to the risk and severity of maltreatment levels, required in terms of relevant jurisprudence, the Appellant's humanitarian situation is a very concerning one in the short term. The psychiatric evidence presented reflects that and indicates the benefits received from the emotional support provided by her aunt. Noting that the Aunt MP herself has only exceptional leave to remain in this country until 18 April 2004 we strongly recommend to the Secretary of State in this case that consideration should be given to the grant of some form of leave to remain in this country until the same date of 18 April 2004 for this Appellant. During that period the Appellant would have the opportunity to continue her recovery from the loss of her mother and abuse by her father and ,in addition, grow in age and maturity so that she would ultimately be able to return to Armenia and live an independent life. Whether return took place with her aunt or otherwise is a matter of conjecture only for us but it could be taken into consideration in any application and if any extended leave to remain is granted.
23. The appeal is dismissed, however, on the unique features of this case noting the short term humanitarian considerations some form of leave to remain is recommended for consideration by the respondent to the date suggested.

A R Mackey

Vice President