AT (Medical Facilities, PTSD) Kosovo [2002] UKIAT 03520 (6 August 2002)

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Cite as: [2002] UKIAT 03520, [2002] UKIAT 3520

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AT (Medical Facilities - PTSD) Kosovo [2002] UKIAT 03520

HX/53562/2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 24 June 2002

Date Determination notified: 6 August 2002

Before

Professor D B Casson - Chairman

Mrs M Padfield JP

Between

AT	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

This is an appeal by an ethnic Albanian citizen of Federal Republic of Yugoslavia from Kosovo against the determination of an Adjudicator (Mrs I A M Murray) dismissing her appeal on asylum and human rights grounds against the decision of the Respondent on 22^nd January 2001 to refuse to grant leave to enter the United Kingdom. Before us the Appellant was represented by Ms R Dajani instructed by H S Kang & Co. The Respondent was represented by Mr M Pichamuthu.

The Appellant arrived in the United Kingdom at Waterloo International Rail Terminal on 15^th March 1999. She said she did not know in which country she had boarded the train. She applied for asylum on arrival but said she was without a passport or travel documents of any kind. She said she had travelled from Montenegro to France by lorry and that she had never been issued with a passport. She was accompanied by her son aged 7 years.

The Appellant told the Adjudicator that she was a Muslim ethnic Albanian from the district of Peje in Kosovo. She said her house had been raided in 1999 and she and her son had been beaten up, after which they left Kosovo. She said that soon after she left her husband, who had joined KLA, was killed by KLA members because they believed he had collaborated with the Serbs. The Adjudicator considered a medical report by Dr E Shehadeh. Credibility was not in issue in the appeal. The Respondent had accepted the Appellant's history and that she had had to flee her village in Kosovo because of the war. There was no evidence to corroborate her claim that her husband had been killed or for what reason. Having considered the evidence, the Adjudicator found that as KLA had been demilitarised and there was an International Peacekeeping Force, KFOR, in Kosovo, the Appellant's fear of persecution was not well-founded. The Adjudicator considered the medical report in evidence, but was not satisfied that the Appellant's human rights would be at risk on return to Kosovo.

Leave to appeal to the Tribunal was granted because, although the Adjudicator had directed herself in the traditional way as to the appropriate standard of proof in asylum cases, she chose twice in paragraph 21 of her determination to state that she was not "convinced" in relation to aspects of the evidence.

In her submissions to us Ms Dajani said the Appellant's fear was not of KLA; it was of former members of KLA or other Albanians who would perceive her as a collaborator. Ms Dajani also submitted that, in the now all too common absence of a representative for the Respondent, the Adjudicator had breached the Surendran guidelines in making her adverse credibility findings at paragraph 21. We say at once that we see no justification whatever for that submission.

In his submissions Mr Pichamuthu for the Respondent said the Appellant's claimed fear was of former members of KLA and some Albanians, but he submitted there was a sufficiency of protection by KFOR and UNMIK, as the Adjudicator had found at paragraph 20 of the determination. The Appellant's stated fear derived solely from her relationship to her husband, whose fate was now sadly unknown, but that fact removed the basis for her fear.

Decision and Reasons

We agreed to admit in evidence in this appeal a message from Dr Shehadeh, submitted for the Appellant, and the ICMPD–IOM Kosovo Information Project fact sheet on the health system in Kosovo.

This appeal is before us because of the Adjudicator's misguided use of a phrase which calls into question whether she applied the correct standard of proof. We do not understand why Adjudicators continue on occasion to use expressions which give rise to this risk. The Tribunal has authoritatively stated that the appropriate way of assessing risk in relation to a fear of persecution or breach of human rights, is whether there is a real risk. The evidence must be considered as a whole according to the guidelines stated by the Court of Appeal in Karanakaran [2000] Imm AR 271.

We have considered the evidence afresh. We accept Mr Pichamuthu's submission that the Appellant's asserted fear of former members of KLA and of some Albanians who would perceive her to be a collaborator falls with the death or disappearance of her husband. In the light of the totality of the evidence we unhesitatingly find that there is a sufficiency of protection in Kosovo and that the Appellant cannot succeed in her claim that her return would expose her to a real risk of persecution for any reason within the United Nations Refugee Convention.

We agree with the Adjudicator that the human rights claim stands or falls with the asylum claim in this case. We have considered the message from Dr Shehadeh, who states that he is not the Appellant's General Practitioner. He insists, however, that as a General Practitioner, he is more than adequately qualified to diagnose PTSD and depression. He states that he is convinced that the Appellant's mental state fulfils the ICD–10 diagnosis of depression and PTSD. We do not consider it necessary to judge Dr Shehadeh's qualifications to diagnose these conditions. For the purpose of the appeal, we are prepared to accept that his diagnosis is correct. Of itself, that determines nothing. The KIP fact sheet on the health system in Kosovo which has been put before us satisfies us that there are adequate medical facilities for treatment of these conditions in Kosovo. The facilities are not perfect, but it is trite to observe that there are few countries in which perfection is achieved. We find nothing to suggest that return to Kosovo would expose the Appellant to conditions which would attain the high threshold of breaching her rights protected under Article 3 of the European Convention or that there would be an interference with her rights protected by Article 8. In our judgment there is no evidential basis upon which this appeal could succeed.

The appeal is dismissed.

D B CASSON

ACTING VICE PRESIDENT

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