Djali v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Laws,Lady Justice Arden |
| Judgment Date | 16 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1371 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2003/1032 |
| Date | 16 October 2003 |
[2003] EWCA Civ 1371
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMGRATION APPEAL TRIBUNAL
Lord Justice Simon Brown
Lord Justice Laws and
Lady Justice Arden
Case No: C1/2003/1032
R de Mello Esq (instructed by The Immigration Advisory Service) for the Appellant
Ms L Giovannetti (instructed by The Treasury Solicitor) for the Respondent
The appellant is a 38 year old Kosovan citizen of Albanian origin who arrived in this country with his dependent wife and two children on 17 February 2000 and claimed asylum. Following interview on 3 January 2001 his claim was refused by letter dated 4 January 200On appeal to the Adjudicator the appellant abandoned his asylum claim but relied successfully upon Article 8 of ECHR. The appellant's wife suffers from severe Post-Traumatic Stress Disorder and the Adjudicator concluded that:
"To require Mrs Djali to return to Kosovo at the present time would be inhumane and … her removal would be in breach of her right to respect for her physical and moral integrity under Article 8 … [and] it would be unreasonable and a further breach of Article 8 to allow the appellant's wife to stay but to require the appellant and their dependent children to be removed."
On 3 March 2003 the IAT allowed the Secretary of State's appeal against that decision, concluding that:
"Whilst return would be an interference with the respondent's Article 8 rights, having regard to the legitimate aim of maintaining an effective immigration policy the return of the respondent and his wife to Kosovo would not be disproportionate."
The IAT had considered on the appeal a fresh psychiatric report from Dr Singh put in by Mr Djali.
The present further appeal comes before us by permission of Keene LJ who thought it "properly arguable that the IAT misinterpreted Dr Singh's report and that the Adjudicator was entitled to regard this case as comparable to that of 'M'". (I shall return later to M, a decision of the IAT under reference 01/TH03623 dated 2 January 2002). That specific ground aside, Mr de Mello submits that the Adjudicator's determination and reasoning were unassailable; if anything, indeed, Mr de Mello submits that the Adjudicator applied too strict a test to the appellant's Article 8 claim.
With that brief introduction let me at once turn to the central facts of the case which were never in dispute and which were summarised by the Adjudicator as follows:
"[I]n 1995 Serb soldiers entered [the appellant's] home. He and his wife were taken into separate rooms. He was beaten up and his wife was raped. In 1996 the appellant and his wife were again attacked by Serb soldiers. They were in the process of cutting up wood when they were attacked by the Serbs who used a chain-saw to cause injuries to them. The appellant was a member of the KLA but he deserted in March 1999 because of the way in which the KLA were behaving. Apart from killing Serbs they were also killing ethnic Albanians who did not support their cause. The appellant returned to his village and then together with his wife he went into the mountains to hide. The appellant was with many other people from his village when they were attacked by Serb militia. Many people were killed including the appellant's brother. The appellant and his wife were extremely distressed and traumatised by their experiences."
The medical evidence before the Adjudicator consisted of a short letter dated 20 May 2002 from Dr Addo, describing himself as Clinical Attachment to Dr Singh, Consultant Psychiatrist. Dr Addo stated of the appellant's wife:
"She is still suffering from severe symptoms of Post Traumatic Stress Disorder with insomnia, poor memory and concentration. She is unable to function at her optimum at home. … She also complains of severe recurrent headaches. Once she starts to show some improvement to her medication she will be referred for psychological therapy."
Dr Singh's subsequent report of 2 January 2003 stated:
"Since her referral [in June 2001] … she has been treated with anti-depressant medication. [The counselling psychologist] reported on 30 May 2002 that 'Mrs Djali was unable to talk about the war which is the cause of her distressed state, she prefers to depend on medication to help her feel better. We agreed that psychotherapy was not useful at this time but it is an option to her when she feels she is able to talk'".
In his conclusions Dr Singh stated:
"She has been treated with anti-depressant medication and since being on treatment there has been some improvement in her mental state but she continues to be handicapped by the residual symptoms of the illness. She was referred for psychological intervention with a view that she may be able to discuss about her feelings and her experiences in her native country. At that point she appeared to be too unwell to participate in such therapy. In my view she will most certainly benefit from such intervention. … I am in no doubt that if she is asked to go back to her native country it will have a detrimental effect on her mental and physical health. In terms of treatment, information that is available to me, it is very unlikely that Mrs Djali would have access to specialist treatment that is being made available to her in United Kingdom."
Largely on the basis of Dr Addo's report the Adjudicator concluded:
"I find that Mrs Djali's psychiatric illness is directly related to the traumatising experiences which she suffered in Kosovo. I am satisfied from the objective evidence that there are no adequate facilities in Kosovo to provide her with the specialist care, counselling and rehabilitation which she requires. I find that to return her to Kosovo in the present circumstances would very likely result in an exacerbation of her present condition."
As to M, the Adjudicator said that that case:
"involved features which are very similar to those in this present appeal. … there was clear medical evidence that her return at the present time would adversely affect the therapeutic treatment which she was currently receiving but was also likely to adversely affect the progress which had been achieved by returning her to the country where associations with her past suffering would be intensified. I find that exactly the same considerations apply in this appeal so far as Mrs Djali is concerned. Dealing with the question of proportionality, the Tribunal went on to state that whilst it will only be rarely that removals pursuant to maintenance of a consistent immigration policy would not be proportionate, this is one of those rare cases where it would not be so."
The critical passages in the IAT's determination are to be found in paragraphs 8, 9 and 11 as follows:
"8. Mr Ekagha [the Home Office Presenting Officer] challenged the Adjudicator's assessment of the medical evidence relating to the respondent's wife. … [He] pointed out that the wife was only receiving treatment by way of anti-depressant medication in the UK, and there was no objective evidence that this would not be available in Kosovo, or that out-patient counselling would not be available if and when required. Mr Alin [Mr Djali's representative] was unable to dispute this. …
9. Since the hearing before the Adjudicator there has been a report by Dr Singh, the consultant in charge of treating the wife. … He … opined that he was in no doubt that if [Mrs Djali] were asked to go back to her native country it would have a detrimental effect on her mental and physical health, but he did not indicate what that detriment might be or its severity. He also said that it is very unlikely that she would have access to specialist treatment being made available to her in the UK, but there was no indication what that consisted of besides the anti-depressant medication. Nor did he disclose any special knowledge about the medical facilities in Kosovo.
11. We … accept Mr Ekagha's submission that the medical and other evidence described above did not support the Adjudicator's view that this was a rare and exceptional case, comparable to the case of M. In so concluding we find he was in error. The Adjudicator was entitled to accept the evidence that the wife had been raped and traumatised by her experiences in Kosovo in the past at the hands of the Serbian forces, and that therefore special attention had to be paid to her claim. However, on the evidence of her actual condition and the availability of adequate medical treatment to treat her in Kosovo, the Adjudicator should have followed the starred Tribunal decision in Kacaj to the effect that it is difficult to envisage a case where Article 8 would be breached in the absence of persecution or Article 3 ill-treatment because the need to control immigration would make the removal proportionate. His failure to do so fatally undermines his determination, which cannot stand. We are able to make our own assessment of proportionality in its place. We conclude that, whilst return would be an interference with the respondent's Article 8 rights, having regard to the legitimate aim of maintaining an effective immigration policy the return of the respondent and his wife to Kosovo would not be disproportionate."
Since this appeal was brought, this court decided a group of three cases which I shall refer to simply as "Razgar" [2003] EWCA Civ 840, the judgment of the Court being given by Dyson LJ. Razgar casts considerable light on the approach to be taken in Article 8 cases of this sort and although Ms Giovannetti tells us that the Home...
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