United Kingdom Asylum and Immigration Tribunal

jh

Heard at Field House

[2003] UKIAT 00097 G (Serbia and Montenegro)

On 2 October 2003

IMMIGRATION APPEAL TRIBUNAL

DATE Determination notified: 21.10.03

Before:
Mr G Warr (Chairman) Mr A Smith Mr R G Baines

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

DETERMINATION AND REASONS
1. The Secretary of State appeals the determination of an Adjudicator (Mr A M Kopieczek) who heard the appeal of a citizen of the Federal Republic of Yugoslavia (Kosovo) referred to hereinafter as the appellant on 14 January 2003. He dismissed the appellant's asylum appeal but allowed the appeal under Article 3 and Article 8 of the ECHR.
2. Mrs R Giltrow appeared for the Secretary of State. Mr D Blum, of Counsel, instructed by S A Carr & Co represented the respondent.
3. The respondent arrived in the United Kingdom on 14 June 1999 and was granted leave to remain for one year under the policy then prevailing – the KOSEX Programme. She married on 4 January 2002. She applied for asylum on 31 July 2002. Her husband's appeal rights had been exhausted on that date. She had two children, one born three weeks ago.
4. The Adjudicator accepted the account given to him by the appellant of her experiences in Kosovo. She had been raped by a Serb soldier. The Adjudicator was told by the appellant that neither her husband nor her family knew about this rape. The Adjudicator accepted this.
5. The Adjudicator found that there was no evidence that the appellant would be at risk in general terms in her home village and that there was a sufficiency of protection for her in Kosovo. There would be no renewed attack on her of the kind that she had suffered in the past – see paragraphs 35 and 36 of the determination. There was no real risk of future persecution for a Convention reason. The Adjudicator had before him a report by Dr Pizzo dated August 2002 which suggested that if the appellant were to return to Kosovo her mental state would deteriorate "which would lead to her being quite disabled". As the Adjudicator comments in paragraph 42, Dr Pizzo did not indicate the basis on which he came to that conclusion. The Adjudicator's determination continues as follows:

"43. The appellant's family do not know about the rape. There is objective evidence which suggests that women in the appellant's position would be ostracised and socially isolated if family and neighbours find out about a rape, because of the sham that this brings on the family. The appellant has said that if her husband found out he would leave her and take their child. On the basis of the country background material, I accept that this is reasonably likely to be true. It is also reasonably likely in my view that if the appellant returns to her own village the fact of her rape would become known to her family because her neighbours are likely to have been aware of it.

44. There is evidence of the availability of psychiatric services and medication in Kosovo generally. However the document from the municipality Council of Ferizaj states that there is no psychiatric hospital in the Ferizaj region and that the nearest is in Pristina. The Ministry of Health letter sates that there are no practising psychiatrists in the appellant's province and that there are two psychiatrists in Ferizaj which look after 300,000 people in the surrounding municipalities. The letter from the Clinic for Medical Diagnostics suggests that there is a lack of psychiatric help for war rape victims in Kosovo.

45. The evidence about the availability of psychiatric care in the CIPU is to some extent inconsistent with the Medical Diagnostics Clinic report. However, the other evidence that I have referred to suggests that in the appellant's area there is a lack of psychiatric services. The reasons for refusal letter suggest that there are adequate psychiatric services in the appellant's area and a health centre in her village. In the grounds of appeal the appellant challenges these assertions and invites the respondent to adduce evidence of the existence and extent of those psychiatric services. The evidence has not been provided by the respondent.

46. If the appellant were returned to her home area in Kosovo she is reasonably likely to become isolated and ostracised once the fact of her rape is known to her family, as I have indicated is likely. She would be unable to obtain adequate treatment for her psychiatric conditions, on the basis of the evidence adduced on her behalf.

47. I have considered those consequences against the background of a country which still experiences a high level of crime and where, according to the CIPU (4.2-4.3) unemployment runs at about 50 percent and about 50 percent of the population are considered to be living in poverty. In addition to this, the appellant would be reasonably likely to be separated from her child who was born in July 2002. All these factors suggest that the view of Dr Pizzo, that the appellant's mental health would deteriorate, is likely to be an accurate assessment.

48. I am not satisfied that the appellant would be able to relocate in Kosovo. Her mental state and the fact that she has a young child viewed against the situation in Kosovo generally, have lead me to conclude that this would be unduly harsh. There is no reason to doubt the appellant's evidence that her sister in Kosovo would be unable to accommodate her and her family.

49. In all these circumstances, I am satisfied that returning the appellant to FRY (Kosovo) would amount to inhuman or degrading treatment under Article 3. So far as Article 8 is concerned in terms of the physical and moral integrity of the appellant, although removing the appellant would in principle be in accordance with the law and pursues a legitimate aim, I am not satisfied that removing the appellant would be a proportionate response to that aim."

6. Mrs Giltrow submitted that there was no indication who the appellant feared. She had said that no one knew about the rape. The Adjudicator's approach had been speculative. Dr Pizzo had not had regard to whether the appellant could obtain treatment in Kosovo. The appellant had said she could not stay with her husband's sister's family as it would be difficult for them to support her. It would not be unduly harsh in the circumstances for her to live in a village other than her original village. It was speculative to assume that the news of the appellant's rape would emerge. She was close to the family at the time of the incident and they do not appear to have found out about it. She could return to Pristina where her husband's family came from. She need not return to her own village. The burden was on the appellant to provide evidence that there were no psychiatric services.
7. Mr Blum submitted that it was not for the doctor to speculate about the psychiatric treatment available in Kosovo. It was not speculative, it was a finding of fact that news would leak out. There was no burden on the appellant in the circumstances as the Secretary of State had asserted that there were sufficient psychiatric services. The appellant had put in evidence to show that that was not so. Reference was made to a document at page 52 of the appellant's bundle stating that there were no practising psychiatrists in various municipalities. It was not clear, Counsel accepted, what questions had been asked of the Ministry of Health which had elicited this information. Apparently the document had been sent to the instructing solicitors at their request. Reference was made to authorities in the bundle. There was a general absence of medical treatment and long waiting lists. Counsel accepted that each case had to be decided on its individual merits. Not every woman who had been raped would be ostracised and not every ostracism would involve a violation of Article 8 or Article 3 rights. There were two points to consider. One was the deterioration in the appellant's mental health and the other was the ostracism. The appellant was not taking medication at present as she had just given birth to a baby. She was on herbal medicine instead. It was planned that she would resume her mediation in due course.
8. The Adjudicator had accepted Dr Pizzo's opinion that the appellant's health would deteriorate. It was necessary to look at all the evidence in the round as the Adjudicator had done. Counsel directed our attention to items in the appellant's bundle that indicated that rape victims were the subject of ostracism. There might not be no high risk of suicide in the appellant's case unlike some of the authorities on which reliance was placed and it may be that the proper emphasis should be on Article 8 in this case rather than Article 3. There would be a lack of accommodation available in Pristina. The Adjudicator had correctly addressed himself on the law and the facts and the Secretary of State's appeal should be dismissed. Mrs Giltrow submitted that the appellant had kept to herself the events that had occurred four and a half years ago and there was no reason why that fact should now come to the public's attention. If the neighbours in the locality were aware of the rape, there was no reason why the appellant should have her past held against her in Pristina where her husband's family came from. She had been treated on a confidential basis in the United Kingdom since 2000. It would not alert the local population in Kosovo should she attend a health centre for her problems. As so many people have been traumatised by the events in Kosovo – not merely rape victims – attending a health centre for psychiatric problems would not cause people to believe that the patient had been raped. The lack of treatment, if there was a lack of treatment, would not cause a serious life threatening deterioration in the appellant's condition – see Bensaid [2001] INLR 325 and D v United Kingdom [1997] 24EHRR423.
9. At the conclusion of the submissions we reserved our determination.
10. On 30 July 2002 Dr Bawa stated that the appellant's mental state was not unduly depressed and she was not actively suicidal. There was no evidence of any psychosis and she did not express any abnormal perception or delusional beliefs. She lived with her husband and three week old baby. She had been raped in Albania but had not mentioned this to anyone. Dr Pizzo wrote on 30 October 2002 that he did not see the appellant again after his last consultation because she had moved out of the catchment area and had failed to attend her last appointment with Dr Pizzo. In Dr Pizzo's report of 22 August 2002 the appellant had emphasised that she was keeping her experiences to herself for fear of ostracism. Dr Pizzo refers to a gradual improvement in her mental state since October 2000. Counsel told us that the appellant had in fact not been on her usual medication as she had recently had a child but was planning to return to it. She had been on some herbal medication.
11. It is apparent that the Adjudicator was not altogether impressed with the quality of the medical evidence. Both Dr Pizzo and Dr Bawa are described as locum staff grade to a Consultant Psychiatrist.
12. It is important to recall that the appellant will not be returning to Kosovo alone. She will be returning with her husband and children to Pristina where her husband's sister and her family apparently live. She has lived with her husband for some time and they have a young family and she has kept the news of her past experiences from him and her family. We accept Mrs Giltrow's submission that it would be speculative to assume that news of the events would surface after so many years. The appellant has had confidential treatment in this country and we simply do not accept that seeking treatment in Kosovo would lead to people finding out what had happened.
13. We are aware of the extent of the problem of rape in Kosovo. In the bundle there is a report from a gynaecologist practising in Pristina dated 30 August 2002. He stated that before and after the war he had had many war rape victim patients seeking help, support, advice and therapy at his clinic. In view of the small number of psychologists and neuro-psychologists in Kosovo there was a difficulty in referring his patients for consultation – patients had to wait more than a year and there was no guarantee of such a consultation. The document from the Ministry of Health dated 27 November 2002 states that there are no practising psychiatrists in three named municipalities. There were two psychiatrists in Ferizaj who had to look after some 300,000 people. Counsel was not able to tell us what questions had been asked of the Ministry of Health which had elicited this information. In paragraph 9 of the refusal letter the Secretary of State had asserted that there was a health centre in the appellant's village and this does not appear to have been contradicted. However it is not possible to know to what extent the assertions made by the Secretary of State were put the Ministry of Health – we do not know what questions were asked.
14. Counsel refers to a deterioration in the appellant's medical condition were she to be returned to Kosovo. The appellant's condition has improved over the years on such medical evidence as we have before us. Having found in paragraph 42 of his determination that Dr Pizzo had not indicated the basis on which he had come to the conclusion that return would lead the appellant to being quite disabled, it does appear to be unexplained why the Adjudicator should have come to the conclusion that the doctor's opinion was likely to be an accurate assessment. We consider the Adjudicator's approach to be based on surmise and speculation and not properly founded on evidence.
15. As we have said, the appellant will be returned with her husband and family to Pristina. Her husband's family apparently live there. There may be difficulties with accommodation but we are far from satisfied that the difficulties would breach the appellant's human rights. Counsel indicated that he was concentrating more on Article 8 than Article 3 issues. However, the appellant has apparently survived on herbal medication without ill effect during her pregnancy and it is not established that such medication as she currently requires is not available to her or that an absence of such medication would cause sufficiently adverse consequences as to amount to an interference with her physical and moral integrity: see Bensaid v United Kingdom [2001] INLR 325 at paragraph 46 on page 337. We accept there may be difficulties and long waiting lists and that treatment might not be what it is in the United Kingdom. On the other hand, the doctors in Kosovo will be more familiar than most with the types of trauma suffered by this appellant. Although she will be deprived of some support in the United Kingdom, she will have the support of her family and be in her home country.
16. We were referred by Counsel to various Tribunal authorities. However, each case turns on its own facts. Furthermore the evidence presented is always slightly different. The objective material put before each Tribunal also differs as does the medical evidence.
17. We accept that there is prejudice against rape victims but we agree with what was said in D and Others (HX/37250/02) that it certainly cannot be the case that all women who come from Kosovo who have been raped require protection under the Convention on Human Rights – each case has to be considered on its merits: see paragraph 10 of the determination.
18. In this case, the appellant has kept the news of her attack from her husband and family for many years and we are not satisfied on the evidence before us that what happened in the past would come back to haunt her. If she is concerned about what neighbours might have found out in her home village, it is reasonably open to her to reside in Pristina where her husband's family live. We disagree with the Adjudicator's finding that it would be unduly harsh for the appellant to relocate. After all, on marriage one party or the other will often relocate in any event. The Adjudicator does not explain why the appellant should not live with her husband in Pristina, for example. Counsel referred to the Kosovo Rehabilitation Centre for Torture Victims. In its headquarters there are two psychiatrists, a GP and other specialists. There are also satellite centres in other areas which have a psychiatrist, GPs and nurses. Counsel submits that these satellite centres are not in the appellant's area. As we have observed, if the appellant is inhibited about living in her home area, there are other areas where there is some assistance for people who have been raped. We accept that there may be waiting lists and other difficulties but we do not find, for the reasons we have given, that the consequences of removal would have sufficiently adverse affects on her physical and moral integrity.
19. We accept that there may be accommodation and other difficulties for the family in Kosovo but we do not find that the Adjudicator was entitled to conclude that removal of the appellant would involve a breach of her rights under Article 8, still less a breach of her Article 3 rights.
20. The appeal of the Secretary of State is allowed and the decision of the Adjudicator is reversed.

G Warr

Vice President