Miftari v Secretary of State for the Home Department

In paragraph 40 of his judgment in Mlauzi v Secretary of State [2005] EWCA Civ 128 the Vice-President of this court said:

It is now well known that Parliament revoked the power of the Immigration Appeal Tribunal to hear appeals on fact in relation to any decision by an Adjudicator which was made after the first week of June 2003. For a long time the effect of this decision appears not to have percolated through to those who practise before the IAT, and the IAT itself made a number of determinations in which it did not clearly identify the point of law which alone gave it jurisdiction to hear the appeal.

The present appeal is yet another example of the difficulties to which the failings identified by the Vice-President have given rise.

Background

Mr Miftari is an ethnic Albanian citizen of Serbia and Montenegro (Kosovo), aged 58. He first arrived in the UK in 1999 under the Kosovan Humanitarian Evacuation Programme; thereafter decided that it was not safe to return; and claimed asylum here on 26 June 2000. That asylum claim was rejected by the adjudicator, and is no longer pursued. Mr Miftari however resists return to Kosovo on the ground that, because of his state of health, return would be in breach of this country's obligations under articles 3 and 8 of the ECHR. Although there was some criticism of the medical evidence and of the adjudicator's handling of it, it is accepted for the purposes of this appeal that Mr Miftari is at least suffering from a form of PTSD, with potential for self-harm, which raises issues about the available treatment should he be returned to Kosovo. The extent of his illness; and the medical position in Kosovo; are however matters of controversy, to which I shall have to return.

The adjudicator

The Adjudicator accepted evidence from a consultant psychiatrist that there was a significant level of mental illness in Kosovo, and a paucity of qualified psychologists and psychiatrists. The incidence was 1 psychiatrist for each 90,000 of population, whereas the ratio in the UK was 1:30,000. Having recorded that evidence, in paragraph 21 of his determination, the Adjudicator set out the view of the UK experts that Mr Miftari needed many months of psychological treatment, which had not yet become available in the UK. He then, in paragraph 29, recorded that the municipality from which Mr Miftari comes, Gjilan, was a region with almost 300,000 inhabitants but, on the information then to hand, no mental health services, the one acute ward having been diverted to other purposes. He then continued, at paragraph 30:

In all the circumstances it is clear that the Appellant would have to establish an exceptional case to satisfy the criteria under Articles 3 and 8. In this case I consider that an exceptional case has been made out. He is 58 years of age and appears to be an old man because of his mental health problems……..[The consultant psychiatrists] agreed that the Appellant is suffering symptoms of PTSD. I accept that the Appellant's mental health would deteriorate if returned and I agree with the reports and conclusions of [the consultant psychiatrists]. I am satisfied that the Appellant will be subjected to inhuman or degrading treatment if returned to Kosovo and therefore Article 3 is applicable. I am also of the view that it would not be appropriate for the Appellant to be removed to Kosovo and that his removal would constitute a breach of Article 8(2) of the ECHR. I am satisfied that any interference with his private moral or family life would not be necessary and proportionate in the circumstances of this particular case.

He accordingly allowed the appeal on human rights grounds.

The appeal to the IAT

The Secretary of State sought permission to appeal to the IAT. The grounds that he advanced are of crucial importance in the present appeal, and the relevant parts of them must be set out in full:

2. The Adjudicator has considered the circumstances of this case to be exceptional. However, it is submitted that medical provision for this Appellant is available in Kosovo. The Adjudicator has erred in considering only the availability of treatment in the former home area of the Appellant (Paragraph 29). The Tribunal considered in 00017 P that treatment is available: 'Certainly there is no current evidence we have been made aware of that mental health facilities have been considered of poor quality or as seriously deficient or as unlikely to ensure intensive treatment of a mental health condition when that was required. Furthermore, it appears that particular steps have been taken to cater for the needs of persons who have been victims of trauma.' (Paragraph 34)

It is submitted that the availability of 40 neuro-psychiatrists in the Kosovo area at a ratio of one psychiatrist per 90,000 inhabitants (as compared to one psychiatrist per 30,000 inhabitants in the UK) demonstrates the provision of mental healthcare. That the provision is not of the same availability (and/or quality) of that of the UK does not, in my submission, render it sufficiently poor as to breach Article 3.

3. It is submitted that even if the Appellant were unable to access some healthcare due to financial constraints that this would not breach Article 3. The Adjudicator has correctly noted the case of K v Secretary of State [2001] ImmAR yet has failed to apply those findings. In line with 00017 P, the availability of medical treatment, not it's accessibility, is the key. It is submitted that in accepting the availability of treatment the Adjudicator has erred in allowing this appeal.

A Vice-President of the IAT ruled that "the grounds indicate a basis for appeal to this Tribunal".

The Immigration Appeal Tribunal

The IAT accepted that the Adjudicator was entitled to come to the view that he did as to the diagnosis of PTSD, but continued, in a passage that again must be set out in full:

15. Thereafter however we depart from the Adjudicator with regard to the conclusions that he thought it proper to draw from these reports. The particular error which we consider he perpetrated was to limit his consideration of the relevant objective evidence to the available mental health facilities in the Claimant's immediate area, that being the Gjilan municipality. We note the point made by Mr Revindran from the evidence in the bundle concerning UNMIK who say they will only accept people at their last place of residence, but UNMIK are not the only body responsible for returns, and it is clear that the policy of the Secretary of State is to effect returns to Pristina, and thereafter, as Ms Holmes argued, it is for the Claimant to decide where he goes, and it is clear that he has some family in his home area should he chose to go there and on the other hand as the Adjudicator concluded at paragraph 29 of the Determination, he would be clearly able to obtain some sort of accommodation when he returned. We consider that the restriction as effectively we consider it to have been by the Adjudicator of consideration on return to the immediate area was a clear error of law in that he should properly have given consideration to return to Kosovo generally and risk on that account if any.

16. We consider that we can therefore look at the up-to-date evidence in the April 2004 Country Report. In particular this is to be found at paragraphs K.5.61 to K.5.66. From this we see that a review of the WHO mental health project in July 2002 made a positive evaluation of the progress in the mental health sector in Kosovo. Treatment for psychological conditions including Post Traumatic Stress Disorder is available in Kosovo and details are provided in source documents of the Kosovo Rehabilitation Centre for Torture Victims which provides treatment for PTSD. In 2001 according to a Balkans crisis report the number of patients treated for psychiatric disorders by the Kosovo Rehabilitation Centre for torture victims increased from 1,187 in 2001 to 2,812 in 2002. There is also a quote from a statement by the UNHCR, at paragraph K.5.63. It is said that the situation is difficult given the large number of patients coming to the psychiatric clinic in Pristina, and there is reference to medication available, at paragraph K.5.64 of the report.

17. It is relevant to bear in mind the views of the doctors that the Claimant does not have plans to end his life and is not suffering from a depressive illness. We consider that the Adjudicator was in error in considering that the Appellant has shown an exceptional case in order to satisfy the Article 3 and Article 8 criteria. We have derived assistance from the Tribunal Determination in [2004] UKIAT 00053 N (Kenya) which among other things makes the point at paragraph 23 that some similar considerations apply to the threat of serious harm to the Article 8 claim as to the Article 3 claim. It was concluded by the Tribunal there that in cases of this nature the Appellant cannot succeed under Article 8 if she fails underArticle 3, there being no measurable difference in the test for engaging Article 8 which requires a flagrant denial of the appropriate rights. Reliance was properly placed on the decision of the Court of Appeal in Djali in this...