VK (Professional Handwritten Grounds not Acceptable)
| Jurisdiction | England & Wales |
| Judge | John Freeman,George Warr,Mr A Smith |
| Judgment Date | 12 October 2017 |
| Neutral Citation | [2003] UKIAT 176 |
| Court | Immigration Appeals Tribunal |
| Date | 12 October 2017 |
[2003] UKIAT 176
[2In The Immigration Appeal Tribunal
Immigration And Asylum Acts 1971–99
John Freeman (chairman)
George Warr (vice-president) and, Mr A Smith
Mr T Vanhegan (counsel instructed by Gulbenkian Harris Andonian) for the appellant
Mr G Phillips for the respondent
VK (Professional Handwritten Grounds not Acceptable) Serbia and Montenegro
This is an appeal from a decision of an adjudicator (Ms Sarvanjan Kaler), sitting at Barnet on 10 April, dismissing an asylum and human rights appeal by a citizen of Kosovo. Leave was given on the basis that the adjudicator had needed to consider, under article 8 of the Human Rights Convention, the situation of the appellant and her family in this country, as well as what awaited them on return. We were astounded to see that the grounds of appeal, though clearly drafted by the appellant's solicitors (a well-known firm with two very experienced part-time adjudicators in the partnership) appeared in handwritten form. This is not acceptable in the 21 st century from anyone providing a professional service: any repetition is likely to be reported, through the Immigration Services Commissioner, to the Office for the Supervision of Solicitors.
The unusual features of the case were, starting with the less so:
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a) The family had been here ever since 1999, at first by dint of an asylum claim by this appellant's husband, finally dismissed on appeal on 22 November 2001; now he is named as a dependant on her claim. They have two children, Stiven, born in Kosovo in March 1997, and Kelly, born here in January 2001.
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b) The appellant was raped, as the adjudicator accepted, by Serb soldiers in Kosovo in April 1999; but her husband does not know about that, and she is afraid of the consequences if he were to find out.
The adjudicator dealt with the article 8 issues arising as follows:
- Mr Merrylee questioned the Appellant in detail about how it was that her husband did not know about the rape, since he would have asked to have sexual intercourse after his return from the mountains. The Appellant's explanation was that she told him she was in pain after the attack on her. The Appellant places great importance on how her husband would react if he knew about the rape, and it would appear that she has managed to hide this from her. The Appellant's mother-in-law knew, and I asked her why the mother-in-law did not shun her. The Appellant's explanation was that she felt sympathy since she had witnessed the incident. The actions of the mother-in-law do not indicate to me that she would tell other people about this incident, bearing in mind the shame that is attached to this. I do not find it credible that the mother-in-law, who was the only witness to these events, would have spread the story of the rape of her daughter-in-law. It follows that I do not find it likely the husband would be told about these events on the family's return to Kosovo. I do not accept the story about the brief telephone Convention, in which the rape was not mentioned. … 23. [bis] The Article 8 argument has been raised at the first time at the hearing. The Respondent has had no notice of this, but I have nevertheless given consideration to the arguments put forward by Mr Merrylee. The Appellant's husband would leave her with the children, and she would be ostracised and ill-treated by the civilian population. 24. Lord Phillips in Ahsan Ullah and Thi Lien Do (2002) EWCA Civ 1856 in the Court of Appeal at paragraph 64: Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage Article 3, the English court is not required to recognise that any other Article of the Convention is, or may be engaged. Where such treatment falls outside Article 3, there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds. 25. Even if the Appellant is right, and her husband would discover that she had been raped, I would have to be persuaded that he would act in a hostile manner towards her, leave her and take away the children. She has not said that she fears physical violence. When she described her behaviour, the only hint of violence was his hitting the doors. This in itself does not show a tendency to violence. 26. If he did leave his wife and take away the children, this is not treatment that the Appellant would be subjected to by the receiving state. There are too many imponderables. What I have to consider is what is reasonably likely to happen, and if the state has any obligations to prevent this. Firstly, I do not think it likely that the husband will discover his wife has been raped. Secondly, there is a possibility that he would leave her, just as there is a possibility that he would not. The report of Dr Steer states that the husband shows features of but is not a diagnosis of Post-Traumatic Stress Disorder. He suffers from mild depression. He is not undergoing any treatment that would be interrupted. He would no doubt be upset, and in his state would still want the support of his wife. Even if the husband did leave the Appellant, that is not a matter that would place the UK authorities in breach of their obligations under Article 8. 27. As to the Appellant's treatment from third parties, the evidence does not support her assertion that she would face persecution because of her ethnic origin. If she is shunned because she has been raped, and her husband did know about this, then she could move to another area...
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