XS (Kosovo- Adjudicator’s conduct – psychiatric report)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 26 April 2005 |
| Neutral Citation | [2005] UKIAT 93 |
| Court | Immigration Appeals Tribunal |
| Date | 26 April 2005 |
[2005] UKIAT 93
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr D K Allen (Vice President)
Mr R A McKee
For the Appellant: Mr Walsh, instructed by the Refugee Legal Centre
For the Respondent: Ms L Saunders, Home Office Presenting Officer
XS (Kosovo — Adjudicator's conduct — psychiatric report) Serbia and Montenegro
This is an appeal against the determination of an Adjudicator, Mr M Shrimpton, promulgated on 10 October 2003. In that determination, he dismissed the Appellant's appeal from the refusal of the Secretary of State on 30 May 2003 to grant asylum and his giving removal directions for the Appellant's removal as an illegal entrant to Serbia and Montenegro (Kosovo).
The Appellant had claimed to be a citizen of Serbia and Montenegro from Kosovo of Gorani ethnicity from the Dragash municipality in the south of Kosovo. He had entered this country on 2 May 2003 concealed in a lorry, travelling from Macedonia via Germany. He had been living in Macedonia since leaving Kosovo in 1999.
The Appellant's claim had initially been certified but the certificate was withdrawn following an application for Judicial Review. The Secretary of State accepted on the evidence that the previously disputed Gorani ethnicity of the Appellant had now been established. At the outset of the hearing before the Adjudicator, the Adjudicator sought to establish what the Secretary of State was now contending about nationality, in the light of the comments in the refusal letter about there being no record of anybody of the Appellant's name having been born or having lived in the villages where the Appellant claimed that he had been born and lived. The Home Office Presenting Officer, according to paragraph 13 of the determination, said in terms that the Secretary of State did not accept that the Appellant was from Kosovo, although he now accepted that he was of Gorani ethnicity. Bearing in mind the limited geographical area in which Gorani was spoken, the Adjudicator concluded that in effect the Secretary of State's case was that the Appellant came from Macedonia rather than from Kosovo, or was at any rate that the Appellant could not demonstrate to the necessary low standard of proof that he did come from Kosovo.
The Adjudicator then turned to the case in relation to persecution and risk of treatment in breach of Article 3. He said in paragraph 19:
“I am sorry to say, having seen and heard the appellant give evidence today, tested very thoroughly if I may say in cross-examination by Mr Flegg that the reasonable degree of likelihood or serious possibility standard of proof is nowhere near met.”
The Adjudicator explained why he came to that conclusion in the succeeding paragraphs.
The first point that he made was that the Appellant could not give a credible account of how he got from Tetovo in Macedonia to Germany, nor from Germany to England. All that he said was that he came by a lorry from Tetovo concealed in a “ box”. The Adjudicator said that the Appellant could barely describe the box and was unable to explain how he crossed a minimum of five international frontiers before arriving in Germany. The Adjudicator had asked the Appellant a number of questions about the route taken and the upshot of the answers was that the Appellant did not know, but said that at no frontier was the lorry searched nor was he asked for papers. The Adjudicator did not accept that, finding the whole account implausible. He said:
“I do not accept for one moment that the appellant could cross so many international frontiers without a single search being made … I accept that one could travel quite easily concealed in a lorry between Austria and Germany, but I do not accept it would be so easy to cross the other international frontiers, not least in a part of the world as tense as the Balkans have been in recent years.”
He continued saying that he did not accept the account of how the Appellant was concealed in the lorry because he could give no credible or sensible explanation of how he was concealed or the manner in which he was concealed. The Adjudicator rejected the claim that he could travel from Macedonia to Germany and on to the United Kingdom without any form of identity documents. He thought it overwhelmingly probable that the Appellant had had proper national identity documents.
Next the Adjudicator concluded the Appellant had given an inconsistent account of his background, had given no credible explanation as to how he had come by the not insubstantial sum of 5,000 euros and had produced no document of identity or other documents linking him to Kosovo.
The Adjudicator then said that he did not accept that the Appellant was from Dragash in Kosovo. The Adjudicator also pointed out that record keeping in the Federal Republic of Yugoslavia from the alleged birth day in 1984 of the Appellant was not so incomplete that there would have been no record had the Appellant come from the villages which he claimed to come from. The Secretary of State had made enquiries in Kosovo. In the upshot the Adjudicator concluded that the Appellant, although a Gorani, was a citizen of Macedonia from the region of Tetovo or an area close to the Macedonia/Kosovan border. He had earned money there as a labourer or elsewhere in Europe. He had not left Macedonia as recently as 2002.
The Adjudicator then said that even if the asylum claim had been credible there was now a sufficiency of protection for those of Gorani ethnicity in Kosovo.
As to the human rights claim which was based on Articles 3 and 8, and the depression from which the Appellant claimed to be suffering, the Adjudicator rejected the evidence from two psychiatrists to the effect that the Appellant was suffering from depression, because he said that both the doctors had assumed for the purposes of their reports that the Appellant's account of ill-treatment in Kosovo was true. The Adjudicator said that the account was not true and therefore the reports faced the fundamental objection that the Appellant was not a reliable historian. There was nothing genuine in the claims to have a suicidal ideation or in the threats of suicide which he had made known to the doctors, were he to be returned to Kosovo. Both reports suffered from the same defect, that is to say, “ the lack of adequate work on validation [of] self-reporting symptoms, where the person reporting the symptoms has something to gain”.
But in any event, the Adjudicator continued, even if the Appellant was suffering from a major depressive disorder and was from Kosovo, there were adequate facilities available there for his treatment. There was no evidence about the position in Macedonia but it was for the Appellant to show that there were there deficiencies in treatment of such a nature as to assist the ECHR claim.
The Adjudicator then referred to a further hurdle which he said lay in the way of the human rights claim, although he reached no concluded view on it: that was the principle of extra territoriality as he described it, namely that the ECHR could not impose obligations on the United Kingdom in relation to what might happen to an individual upon return to their own country. Thereafter the Adjudicator returned to whether there would be anything disproportionate about the return of the Appellant to Kosovo or Macedonia for the purposes of Article 8(2), concluding that it could not begun to be said to be disproportionate to remove the Appellant. The human rights aspect was not arguable he said.
The Adjudicator made some further comments about whether a threat of suicide “ where the suicide would be voluntary” could engage the United Kingdom's international obligations in any way. He expressed no concluded view on the matter, but was clearly inclined to the view that the law could not hold out to non-nationals the prospect of non-removal merely by their threatening in the absence of significant mental illness to take their own life.
The Adjudicator also commented on some matters that had transpired during the course of the hearing. We set those out because they are relevant to submissions which Mr Walsh made to us:
“I should say for the avoidance of doubt, having referred to Mr Flegg's cross-examination, that Mr Walsh, with a degree of impertinence with respect, suggested that I too had conducted a cross-examination. It is right that I put additional questions to the appellant, but it is trite law in this jurisdiction that an Adjudicator is entitled to put questions of his or her own to a witness, including an appellant. It is almost by definition additional questions will refer to matters not raised in cross examination. There is no rule of law restricting an Adjudicator to questions that have already been put, on behalf of the Secretary of State and I did not uphold an objection by Mr Walsh to additional questions, for example on the appellant's method of getting to this country.
When the appellant was first asked by me how the lorry got from Tetovo to Germany, he was unwise enough (with respect) to give what he no doubt thought was a clever answer, to the effect that it got to Germany because it had an engine. Unsurprisingly in those circumstances there was an element of asperity in my follow-up question, because I had not supposed for one moment that the lorry which allegedly took the appellant all the way from Tetovo to Germany by a route which cannot be identified, across frontier crossing points which cannot be named, was towed all the way. For the avoidance of doubt I do not accept that the appellant was concealed in a lorry, as I have already explained, indeed I reject the entirety of his case, save for his name.”
The grounds of appeal and submissions from Mr...
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