MD (Imprisonment in UK – Article 8) Serbia and Montenegro [2004] UKIAT 00292

IMMIGRATION APPEAL TRIBUNAL

Date:  11th June 2004
	Date Determination notified:
	..29th October 2004...

Before:

The Honourable Mr Justice Ouseley (President)
Mr C M G Ockelton (Deputy President)
Mr D J Parkes (Acting Vice-President)

Between:

APPELLANT

and

Secretary of State for the Home Department
	RESPONDENT

For the Appellant:	Mr N Stanage, instructed Switalski’s Solicitors
For the Respondent:	Mrs Giltrow, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	This is an appeal against the determination of an Adjudicator, Mr E H Woodcraft, promulgated on 20th January 2004.  The Appellant is a citizen of the Federal Republic of Yugoslavia, Kosovo, who arrived clandestinely in the United Kingdom in February 2000 with her husband and their children.  He claimed asylum, but when he was imprisoned for rape in the United Kingdom the Appellant applied for asylum in July 2002 in her own name with the children as her dependants.  They are a boy of about eleven and two girls aged about seven and two.  The Secretary of State refused asylum on 24th July 2003 and gave removal directions.  The Adjudicator dismissed her appeal on both asylum and human rights grounds.  In this appeal, we are only concerned with the human rights grounds.

2.	The Appellant is a Roma but her husband is not.  He is, it seems, an ethnic Albanian.  In August 2002, he was convicted of rape and sentenced to eight years imprisonment.  The Adjudicator rejected her statements that she would be blamed by his family in Kosovo for his imprisonment, because of her evidence that she had had no contact with his family since their arrival in the United Kingdom.  She could in any event go to another part of Kosovo.  He also rejected her evidence that she had had no contact with her own family in Kosovo since her arrival here, which she had put down to a lack of money and more recently to the effect on her of her husband’s imprisonment.

3.	The Appellant argued that her return to Kosovo would breach Article 8 because it would lead to a deterioration in her mental health and create a risk of suicide.  The Adjudicator pointed out that the psychiatric report upon which she relied said that there was no evidence of any prolonged depression before she left Kosovo and that medical treatment was available in Kosovo.

4.	The Adjudicator rejected next the claim that her family life with her husband would be unduly interfered with were she to be returned with her children while her husband was still serving a prison sentence in this country.  The Adjudicator held that she could not show that she had a family life with her husband while he remained in prison, and pointed out that they would be reunited upon his release and anticipated deportation to Kosovo.  If the husband were now to be released, they could all be returned immediately to Kosovo and, as return in those circumstances would be seen as a proportionate interference with family life, it would be bizarre if she and the children could be better off as a result of her husband’s crime and imprisonment.

5.	Although Counsel had advised that there were no grounds for appeal, Mr Ronan Toal advised pro bono that there were grounds and leave to appeal was granted.  The points raised by Mr Toal are properly arguable grounds and give rise to points of some interest.  He is to be commended, if we may say so, for his contribution to this case.

6.	It was accepted by Mrs Giltrow that the Adjudicator had erred in his approach to the survival of family life during the term of imprisonment, both in law and fact.  Imprisonment is an interference with family life which is justified under Article 8(2).  But family life is not necessarily lost as a result of incarceration.  We need only refer briefly to what was set out in Mr Toal’s grounds of appeal.  This is clear from R v SSHD ex parte Mellor [2001] EWCA Civ 472, R (P&Q&QB) v SSHD [2001] EWCA Civ 1151 and McCotter v UK [1993] 15 EHRR CD 98.  There was factual material which explained the continuing relationship between the husband, the Appellant and the children through visiting, telephoning and letter writing.

7.	We turn to the Appellant and her children’s family life and the degree to which their return to Kosovo would interfere with their right to respect for it.  The husband’s claim for asylum has been dismissed but he has a human rights appeal.  His anticipated release date is 27th April 2007.  There was no evidence about whether any part of his sentence could be served in Kosovo.

8.	It was agreed that because the three children would leave with their mother that they should be regarded as Appellants for these purposes.  It is also clear that the family life rights of the husband do not fall to be considered, but they are reflected in the position of the Appellant and her children, and give rise to no separate issue.

9.	The evidence before the Adjudicator had identified that although the offence had caused difficulties in the marital relationship, the Appellant had not abandoned her husband and there was evidence that she believed him to be innocent.  (His case was that he had had an affair with the woman he was convicted of raping.)  The Appellant had visited him in prison with the children when he was in HMP Armley, Leeds, but when he was transferred to Hull the journey from Wakefield had been too difficult and they had only been able to visit by accumulating visiting rights over many days, for which purpose he was brought to Wakefield.  There was considerable evidence as to the strain which this lack of visits had imposed on the Appellant, her mental outlook and health, and as to the strain of looking after the three children without her husband.  The children missed their father and were not coping readily without him;  they spoke to him on the telephone and wrote to him.

10.	This evidence has been updated for the purposes of this appeal.  The husband had been moved to HMP Wakefield which makes for easier visiting.  The Appellant’s statement said that she now had three regular visiting orders a month which she used with the children at weekends and one privilege visiting order which she used on a weekday to take the youngest child to visit again.  Although the youngest was only three months old when her father went to prison, she speaks to him on the telephone and, as with the other children, looks forward to the visits and is sad when they are over.  The Appellant affirmed her and his commitment to their marriage and the continuing affection expressed by the children for their father.  He produced a statement in which he referred to his affair, his commitment to the marriage and his love for his children.  It appears that there are daily phone calls.

11.	The son’s statement made the point that he had been here for four and a half years and now thought of himself as English.  When they had moved to Wakefield from South Kirby he had found it difficult to make friends, which would be worse still if he had to go to Kosovo.  He enjoyed seeing his father and visited him whenever he could, would miss him and did not think that they could phone from Kosovo.

12.	There was an updated social care report.  It says that the move from South Kirby to Wakefield has been disruptive to schooling and friendships.  The Appellant finds caring for the three children a constant struggle, needs support but has needed less since she has been able to visit her husband more regularly in HMP Wakefield.  She is still trying to come to terms with her husband’s betrayal of her through his affair, but would rather continue as a family.  She “presents as a very vulnerable and fearful lady when discussing returning alone to Kosovo”. She expressed fears as a lone Roma woman, perhaps unable to be reunited with her husband.  The social care report repeated what Dr Buller, the psychiatrist, had said to the effect that that she had developed suicidal tendencies, but the social worker was unsure whether returning her alone or with her husband would diminish them.

13.	The son was very unsettled, partly as a result of moving to Wakefield.  He felt responsible for the family, and had benefited from being able to visit his father, with whom over the last few months his relationship had begun to make some progress.  The older daughter was less easily upset than she had been, probably because of her more regular visits to her father.  The younger daughter was a happy child who was eager to talk to her father on the telephone.

14.	Mr Stanage, appearing for the Appellant, submitted that she was entitled to stay in order to exercise the visiting rights which she had.  There would be real problems with financing visits by applying for visas, even if they were forthcoming.  It should be assumed that contact would be maintained in the United Kingdom, even though the Prison Authorities could move the husband to a prison which would be much more difficult for the Appellant to visit.  There was an “insurmountable obstacle” to family life being maintained if the Appellant and her children were returned to Kosovo but the husband remained in prison in the United Kingdom;  R (Mahmood) v SSHD [2001] Imm AR 229, Court of Appeal.

15.	In Djali [2003] EWCA Civ 1371, the Court of Appeal said that one pointer which led to return being proportionate was that the relevant factors were widely replicable and if acceded to would lead to widespread disregard of the interest of immigration control.  That consideration did not apply here.  Mr Stanage countered the point made by the Adjudicator that success for the Appellant here would show that there was an advantage to be obtained by one party committing a serious crime enabling his family to stay while he served his sentence, which would be bizarre, by saying that human rights were not a reward for good behaviour or good behaviour by one’s family members.  It would be dangerous to talk of public confidence in the asylum and human rights system in this context because that could amount to pandering to the vile enthusiasms of the mob.

16.	He argued that there was evidence that return to Kosovo alone could lead the Appellant to commit suicide or to harm her children.  If there was a real risk that either would happen, there would be breach of Articles 3 and 8;  P (Yugoslavia) v SSHD [2003] UKIAT 00017.  The psychiatric evidence from Dr Buller was that he did not have the impression that there were any prolonged periods of disturbed mood prior to her leaving Kosovo or of suicidal ideation.  It was the arrest and conviction of her husband for rape which has had a marked effect upon her mental health.  She said that she has though of killing herself in a variety of ways.  There had been occasions when she had thought momentarily that it would be better if she took her children’s lives as well but this was not associated with any actual planning to harm them.  She had then quickly denied that she could harm them.  She said that she would kill herself rather than return to Kosovo;  it was apparent that she thinks, on a regular basis, of killing herself.  It was even more worrying that she had thought of killing the children.  But she denied having any specific plans.

17.	Dr Buller concluded that she suffered from a depressive illness, which he characterised as a major depressive episode for which she was prescribed anti-depressants, but her doctor was concerned that she should move on to drugs which were not toxic in overdose and which should be prescribed in small quantities.

18.	We asked whether there was a distinction to be drawn between those who threaten to commit suicide in this country if they are to be returned (in respect of whom there may be state preventative action of one form or another), and those who say that they may kill themselves upon return to their country where there might be fewer facilities to help them overcome their suicidal ideation.  No case law was cited to us in this respect.

19.	Mrs Giltrow submitted that this case should be approached on the basis that no member of the family had any expectation that they would succeed in staying when they arrived in 2000;  the conflict in Kosovo had ended.  The husband was not settled here, nor when his sentence expired would he have any expectation of staying.  The Secretary of State had expressed his view on the proportionality of the removal of the Appellant and the children in his decision letter and the evidence did not show that there was anything disproportionate in that decision.  She relied on M (Croatia) [2003] UKIAT 00024* for the Tribunal’s approach.  The evidence showed that it was possible to maintain a relationship even though there were visiting difficulties and reliance had to be placed on telephone and letter writing.  Although this was not a floodgates type of decision, there was an individual interest in the particular circumstances in not enabling the Appellant to stay.

20.	As to suicide, there was no clear evidence that it was a lack of treatment rather than removal which led to the problem.  Paragraph K.5.49 of the CIPU Report October 2003, although primarily written in the context of PTSD, recognised that treatment for other mental disorders was available, although on an under-developed basis.  She said that certain anti-depressant drugs referred to were available in Kosovo as they were included within the type of drugs referred to in the CIPU Report.

21.	We consider first the impact of the removal of the Appellant and her children on their family life with the husband.  The starting point in our view is that neither she nor her children (nor indeed the husband for that matter) had a realistic case for asylum when they arrived in this country in 2000, and she had no realistic claim for asylum at all when she made her claim in 2002.  The asylum claims are not now pursued.  It follows that all the arguments which she and her children deploy in order to stay in the United Kingdom draw upon the time and the circumstances which evolved whilst they have been in the United Kingdom, all without any original legitimate claim to be here.  They seek to stay only by exploiting two factors:  first, the delays throughout the legal processes for finally determining their claims, during which changes occurred of some significance for her and her children, and, second, the specific fact of her husband’s imprisonment allied to her lack of resources for making personal visits to him from Kosovo.

22.	Were it not for her husband’s imprisonment and the obstacle which that imposes to his return to Kosovo, there is scarcely any material which would have supported any allegation that their return would involve a breach of Articles 3 or 8.  Indeed, the contentions about suicidal ideation would probably have been without what evidential basis the husband’s imprisonment and return without him has provided for it.  The developing friendships and outlook of the children would not have sufficed to make the return of the family disproportionate.  There is no known basis for the husband’s continuing human rights claim.  

23.	The key question is whether the Secretary of State’s decision is out with the range of responses reasonably open to him in the light of the imprisonment which we assume will last until April 2007.

24.	We accept that there is a disrupted family life enjoyed here by the Appellant and her children with the husband and father.  The degree of disruption lawfully created by the prison sentence is severe and is a disruption brought about in the final analysis by the voluntary and seriously criminal acts of a family member, the husband and father.  This degree of disruption obviously has had an effect on the material and psychological well-being and development of the family.  That is the consequence of the crime and its due punishment.  It is an inevitable and melancholy consequence that families suffer for the crimes of their justly punished members.

25.	The particular degree of disruption here is sharpened by the relative cultural and linguistic isolation which the Appellant experiences in the United Kingdom, in the absence of her husband.  But it was their choice to come to the United Kingdom at a time when they had no realistic asylum claim;  enforced returns began two months later. 

26.	There has also been a lessening of the degree of disruption more recently as a result of the removal of the Appellant’s husband to Wakefield where he is more readily accessible for visits by all members of his family.  But there is no certainty as to his continued location at Wakefield;  the Prison Service can move him and he is more fortunate than some, perhaps many, in his proximity to his family.

27.	We accept that it is unlikely that the family will be able to afford the costs of travel to the United Kingdom to see the husband in prison, even if visas were obtainable.  We are not in a position to reach any definitive conclusion on the maintenance of telephonic contact, though we find it difficult to believe that it could never be possible.  Letters could be written.  So there would be a loss of the current but not guaranteed level of contact, to be replaced by a significantly lesser degree, for some three years.  We assume that the husband would be deported at the end of his sentence in the absence of any material suggesting otherwise.

28.	We do not regard that as a disproportionate interference with the family life of the Appellant and her children, or that the Secretary of State is unreasonable in treating it as a proportionate interference.  None had any legitimate claim to be in the United Kingdom when they arrived.  They would be no worse off than if the husband had come alone, and they, who also had no legitimate claim to come to the United Kingdom, had stayed behind.  Of course, the greater degree of separation would bear heavily on the Appellant’s ability to cope with the growing children and on their relationship with their father and also on their personal well-being.  But we do not see a sufficient degree of interference as to make their return unreasonable.  

29.	We do not accept Mr Stanage’s argument that the husband’s imprisonment constituted “an insurmountable obstacle” to his return, and that therefore as a family member faced such an obstacle, it would be disproportionate for the family to be returned.  The obstacle arising from the husband’s imprisonment has been created by the husband himself through his crime, and its inevitable consequence.  This is not of the same nature as those which are in essence created by eg a family member’s illness or political activities abroad.  Additionally, the obstacle is strictly temporary and finite and will be overcome with, we expect, assistance from the United Kingdom authorities in about three years.  It is reasonably to be supposed that the husband will wish to rejoin his family rather than prolong his stay without them.  The passage relied on in Mahmood, paragraph 55(3), is not looking at temporary obstacles which will be overcome.

30.	The Appellant and the children would in reality otherwise be more successful in advancing their aim to stay in the United Kingdom without even an arguably legitimate basis for doing so, other than the husband’s lawful imprisonment, than those who are law-abiding and have no claim.  We do not consider that such an outcome is what the Court of Appeal had in mind in Mahmood.  We see nothing disproportionate in the Appellant being no better off than someone who seeks a visa to visit a husband imprisoned in this country, who has no right to stay, and no right to stay because of the prohibitive cost to her of further trips.

31.	But whether that is so or not, we see nothing unreasonable in regarding the return to Kosovo of those family members not serving a prison sentence as a proportionate interference with family life.  If the decision is one for us, their return is proportionate.  The children in various ways and to varying degrees will have put down some roots here and will have adapted to life, school and friends here.  But that is not a sufficiently significant additional factor in this case, viewing all the considerations in the round.

32.	The remaining question is the significance to be attached the threats of suicide or of harm to the children.  We discount the threats of harm to the children.  The Appellant had quickly disavowed any such intention, and had only momentarily entertained the notion.  We do not consider that an adverse decision in this case or the threat of suicide before return should be treated as a basis for concluding that her Article 2, 3 or 8 rights would be breached in the United Kingdom.  There is treatment available to which she has access;  the absence of guarantee is to its efficacy at all times does not mean that there would be any breach of her rights at that point.

33.	Although the Appellant’s threats of suicide are couched as her preferred alternative to returning to Kosovo with her children (but without her husband), it is necessary to examine the prospect of suicide upon return.  She suffers from a depressive illness, for which she receives anti-depressants.  It is not really clear whether such treatment is available in Kosovo, although it would be surprising if PTSD were treatable there but not depression.  It was not anything which happened in Kosovo which caused the depression but her husband’s behaviour here, so she would not be returning to a place where past traumas could be re-awakened.  She would however be returning, for three years or so, as a lone woman with children, and it is not difficult to see why the prospect makes her anxious and depressed.

34.	The Adjudicator however did not accept, and he was entitled not to accept, the evidence given by the Appellant as to her absence of contact with her family and as to her husband’s family’s actual or supposed reaction to his imprisonment as being her fault.  Even allowing for the latter, we do not see that she has shown that she would be without any family support in Kosovo.

35.	There is cogent evidence that the Appellant is suffering from depression;  but we do not consider that it has the necessary degree of cogency to show that she would face a significant risk of suicide on return and that that risk would have been significantly increased by the fact of return.  The case with which a threat of suicide can be made justifies a requirement for cogent evidence as to the degree of risk and its increase, through return.  It is inevitable that many people view the prospect of returning to the country which they have left as depressing, particularly in these circumstances.  However, the evidence of Dr Buller, her past sound mental health in Kosovo, the cause of her depression, the possibility of treatment in Kosovo, the comparatively short time before her husband’s return, and the family link persuade us that there would be no breach of Article 3 or 8 on her return.

36.	We have applied the test set out in Soumahoro [2003] EWCA Civ 840.  But we observe that it is unlikely that a real divergence in standards of assessment between those who rely on physical illness, risk of death and the absolute right in Article 3, and those who rely on mental illness, risk of death and the qualified right in Article 8 is appropriate or intended;  see now Razgar v SSHD [2004] UKHL 27, at paragraph 20.

37.	We have looked at all of the factors in the round, but we regard the decision on return as reasonable and proportionate.

38.	This appeal is dismissed.  It is reported for what we say about the significance of imprisonment.

MR JUSTICE OUSELEY
PRESIDENT