Heard at Field House 				 [2003] UKIAT 00165 A (Afghanistan)
On  	 27 November   2003
Written   1 December   2003				   					  		 

IMMIGRATION APPEAL TRIBUNAL
	
Date Determination Notified

								08 December 2003
Before

Mr S L Batiste (Chairman)
Mr A Smith

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION  AND REASONS

This determination contains assessments of an Adjudicator’s discretion to refuse an adjournment request to obtain medical evidence, of the Tribunal’s discretion to accept fresh evidence, and of the inter-relationship of the recent decisions of the Court of Appeal  in N and Djali concerning freestanding health claims under Articles 3 and 8.
 					  	
1.	The Appellant, a citizen of Afghanistan, appeals, with leave, against the determination of an Adjudicator, Mr G M Perry, dismissing his appeal against the decision of the Respondent on 20 November 2002 to issue removal directions and refuse asylum 

2.	Mr B Hawkin represented the Appellant. Ms J Bracken, a Home Office Presenting Officer, represented the Respondent. 

3.	The Appellant claims that he is a Pashtun from Logar province. He never attended school because of the war situation in Afghanistan. Two of his brothers fought for the Hizb-I-Islami party and one was killed by General Nasurullah of Jamiat-I-Islami, which is now a part of the Northern Alliance. The Appellant was also a member of Hizb-I-Islami. In 2000 the Appellant was taken to fight for the Taliban. At first he refused and was kept in detention for about one month without food or water.  He was badly beaten.  He was then transported to the north and was forced to fight for two months.  At the end of October 2001, the Appellant and one of his brothers were on the front line when many of his friends were killed in fighting, including the Appellant's brother. At the end of February 2002, after the Taliban had surrendered, Nasurullah came to the family home and damaged it and called the family traitors.  The Appellant's father was arrested.  The Appellant went into hiding with an uncle and subsequently fled from Afghanistan.

4.	The only issue on which permission to appeal to the Tribunal was granted, is whether the Adjudicator erred in refusing to adjourn the hearing part heard to obtain a medical report.  No medical report had in fact even been commissioned prior to the hearing, but part way through that hearing Mr Hawkin had requested that the hearing be adjourned to enable a psychiatric report to be obtained. The Adjudicator refused that request on the following basis.
“Mr Hawkin did make an application during the hearing for an adjournment to enable such a report to be prepared.  I rejected the application on the grounds that the alleged condition had been referred to in the statement of Hassan Ahmadzi  dated 17 April 2003, sufficient time for a report to have been obtained or an application to adjourn to have been made prior to the hearing [on 2 May 2003].

5.	A medical report by a Consultant Psychiatrist, Dr N Savia, was commissioned soon after the hearing was over and is now before the Tribunal.  Dr Savia states that the symptoms displayed by the Appellant are compatible with post-traumatic stress disorder.  He opines that the prognosis for his symptoms is generally poor for two reasons.  First he has a poor educational background and a poor understanding of the concept of psychological symptoms and it would require a sympathetic councillor and interpreter to help him overcome his past experiences.  He may also benefit from antidepressant therapy.  The treatments are available in the UK but it would take between 6 and 12 months before his condition would improve.  The doctor states that there are no treatment options in Afghanistan, though he does not state how he draws that conclusion, especially in relation to the availability of antidepressant therapy in the form of medication.  

6.	Mr Hawkin first spoke to a request made by him in writing a week earlier that in the light of the Court of Appeal judgment in Razgar [2003] EWCA Civ 840 the Appellant wished additionally to rely upon an Article 8 claim on the basis of a combination of his private and family life with his cousin in United Kingdom, coupled with his health problems. The Tribunal noted however that the Adjudicator had dealt with and dismissed an Article 8 claim on the basis of the Appellant having shared a life with his cousin for the relatively short period from May 2002, and there was no good reason given to us why this should be revisited and we rejected this request.  As to the wider Razgar point, this had been overtaken by more recent Court of Appeal decisions in N [2003] EWCA Civ 1369 and Djali [2003] EWCA Civ 1371. However as the terms of the grant of permission to appeal related to the sustainability of the decision not to adjourn for a medical opinion, we decided that they inherently embraced the related but separate issues of whether we should consider the medical report for ourselves as fresh evidence concerning both the sustainability of the Adjudicator’s findings of fact, and whether there are viable freestanding health related claims under both Article 3 and Article 8 that had not been raised with the Adjudicator. So we agreed to hear submissions on these issues

7.	The first issue therefore is whether the Adjudicator was wrong to refuse the adjournment request. Paragraph 40 of the Immigration and Asylum Appeals (Procedure) Rules 2003 deals with the question of adjournment. The material parts are as follows.
(1) Subject to any provision of these Rules or of any other enactment, an Adjudicator or the Tribunal may adjourn the hearing of any appeal or application.
(2) An Adjudicator or the Tribunal must not adjourn the hearing on the application of a party, unless satisfied that the appeal or application cannot otherwise be justly determined
		(3) where a party applies for an adjournment of a hearing, he must
			(b) show good reason why an adjournment is necessary.

8.	As was made very clear by Denning LJ in Yates Settlement Trusts [1954]1 All ER 619 an adjournment is at all times a judicial act and is prima facie entirely within the discretion of the person charged with making the decision, and any superior court is accordingly slow to interfere. In Maxwell v Keun [1928] 1 KB 645, it was emphasised that a superior court would be very slow to interfere with the exercise of a discretion on an adjournment and very seldom does unless the result is to defeat the rights of a party altogether.

9.	In this appeal, the Adjudicator had a general discretion under Rule 40(1) as to whether to adjourn, but it was subject to the mandatory limitation in paragraph 40(2) and to the condition described in paragraph 40(3). The reason the Adjudicator gave for not adjourning was that there had been ample opportunity prior to the hearing to obtain a medical report or to make a written adjournment request and the Appellant's representatives were alerted well before the hearing to evidence that suggested medical evidence might be relevant. That is plainly correct.  The Appellant came to the UK in May 2002 and was interviewed in the following month. If, as Mr Hawkin alleged, some of the answers given at his asylum interview was flawed because of his mental state, then action should have been taken by the Appellant or his representatives very much earlier. The only explanation that Mr Hawkin could offer for this lack of action prior to the hearing was that the Appellant's solicitors had not identified a need for such a medical report.  With great respect, that is not a good reason when those same solicitors prepared for the proceedings a witness statement by the Appellant's cousin that was signed some two weeks before the hearing and raised mental health issues. Moreover, as the Vice-President who granted permission to appeal noted, the Appellant’s solicitors had filed a certificate prior to the hearing to the effect that they were in all respects ready to proceed. Additionally we note that the Adjudicator’s decision not to adjourn did not prevent a just hearing of the appeal on its merits and there was nothing in the Appellant’s demeanour at the hearing to suggest that he could not give oral evidence safely.

10.	We therefore conclude that the Adjudicator was properly entitled to refuse the adjournment request. Indeed we go further and conclude that he was required to do so, because the appeal could be justly determined without an adjournment and because the Appellant had shown no good reason why the hearing should be adjourned. There is therefore nothing in the Appellant’s appeal against this decision.

11.	We have then, for the reasons stated previously gone on to consider whether, having regard to our duty of anxious scrutiny, we should consider the medical report as fresh evidence, even though a medical report could have been produced at the hearing and no good reason for not doing so has been offered. 

12.	The Court of Appeal, has long accepted, in cases such as Altun on 26 June 1998 and Basnet [2002] EWCA Civ 1893, that in appropriate circumstances (for example where directions have not been complied with) the Tribunal has discretion to accept or refuse to admit new evidence in appropriate circumstances. This is also reflected in paragraph 48 of the 2003 Procedure Rules. As to the scope of that discretion, the Court of Appeal in Mekeledge [2003] EWCA Civ 1665, has held that its comments in Oleed EWCA Civ 1906 - that new evidence relating to a change of circumstances in the Appellant’s country occurring after the date of an otherwise sustainable Adjudicator's decision should not be admitted on appeal to the Tribunal to challenge that decision, though it might form the basis of a new claim – were only applicable to the issue of whether an appeal should be remitted for rehearing by the Tribunal. It did not affect the application of section 77(3) of the Immigration and Asylum Act 1999, and consequently the Tribunal must always assess an appeal before it in the context of the up-to-date objective material. As the Court of Appeal in paragraph 19 of SK EWCA Civ 841 has held that expert opinions are in effect part of the objective material, it follows that a report from a country expert in an appeal on which permission to appeal to the Tribunal has been granted, would be admissible as part of the up-to-date objective material. However we would observe that if such a report merely offers a different opinion from that reached by an Adjudicator on substantially the same objective evidence, it does not necessarily follow that the report in itself would justify the grant of permission to appeal.

13.	The Tribunal’s general practice is to accept that relevant and material evidence relating to the situation at the time of the Adjudicator's decision that was not, for a credible and valid reason, available at the time of the hearing, should be admitted as fresh evidence and considered by the Tribunal. There is however substantial space between these two positions and in assessing what is appropriate in each case we must be mindful of our duty of anxious scrutiny, which the Court of Appeal has frequently stressed.

14.	But what does that mean in practice? We consider that if an appellant, or his advisers on his behalf, reach a judgement for example not to call the appellant to give oral evidence himself, or not to call otherwise available corroborative witnesses on his behalf, or not to seek available corroborative medical or documentary evidence, and proceed to a hearing on that basis, then that appellant cannot, having lost his appeal, change his mind and seek another hearing on the basis that that evidence if called might have produced a different result. That would be an abuse of process. A more difficult assessment arises when there is no premeditated omission, but due perhaps to carelessness, inadvertence or neglect, in which the Appellant played no part, evidence that might be relevant and material is not sought. In these circumstances, each case must inevitably be assessed on its own merits. We consider that the potential materiality and impact of that evidence, and whether it has at least an arguable prospect of success, should be taken into account in deciding whether to admit it. 

15.	In this appeal, for the reasons we describe later that relate essentially to authority established in the Court of Appeal authorities in N and Djali, we do not consider that the medical report could even arguably sustain viable freestanding Articles 3 or 8 health related claims on the established facts. We asked Mr Hawkin to explain how he could address the principles raised in these two cases, but the most he could offer was an invitation to us to consider the facts on their merits and to have regard to the ECHR decision in Re D and the relevance of differential impact in terms of available treatment in the UK and Afghanistan. That plainly does not satisfy the requirements of N and Djali, and we would not therefore have admitted this report as fresh evidence, if this were the sole basis on which it was advanced. However Mr Hawkin also submitted that the medical report undermined the Adjudicator’s adverse credibility finding. We could not assess this submission without hearing full submissions and so, in pursuance of our duty of anxious scrutiny, we decided to admit the medical report as fresh evidence and to consider and decide all the issues raised by Mr Hawkin arising from it. 

16.	We have therefore assessed the two distinct issues raised by Mr Hawkin of whether the medical evidence could make any material difference to the Adjudicator's findings of fact and particularly his limited adverse credibility finding, and whether the medical evidence could sustain viable Articles 3 and 8 claims on medical grounds.

17.	We should mention at this point that the report by Dr Savia, which we summarised above, was written on 15 May 2003 and is now over six months old.  The Tribunal has repeatedly stressed the need for up-to-date medical evidence.  This is especially true in this appeal as Dr Savia indicated that the Appellant’s symptoms might improve with treatment from after six months. However, the only recent medical evidence is a rather brief and unsatisfactory letter dated 25 November 2003 from the Appellant's GP, to whom he was referred after Dr Savia made his report. The GP refers back, it would appear, to the report by Dr Savia though that is not clear, and confirms that the Appellant has severe mental health issues, which are presently being addressed. She does not say in what way they are being addressed, other than by stating that he has been prescribed Cicalopram, which is an antidepressant medication, and this should be reviewed monthly.  Thus, six months on from Dr Savia’s report and recommendations, there is no medical evidence to the effect that the Appellant is receiving anything more in the way of treatment in the UK than antidepressant medication. 

18.	Mr Hawkin first argued that the medical report reflected on the Adjudicator's credibility findings, which were undermined by it. However when we assessed the detail of the determination and the medical report and the Representatives’ submissions, we could see no viable basis for this proposition. We consider that Mr Hawkin initially promised much more than he was in the event able to deliver.

19.	The medical report did not suggest that the Appellant was unable to give oral evidence. The Adjudicator noted the evidence of the Appellant's cousin, who gave oral evidence concerning the Appellant's mental state and low IQ. Although he rightly did not regard the cousin’s evidence as an acceptable alternative to proper medical evidence, he plainly took what was said into account, because in paragraph 26 of the determination he expressly disregarded credibility points raised against the Appellant relating to apparent confusion by him over his mode of travel to the UK and the date on which the killing of his brother occurred.

20.	We therefore sought to ascertain in what other way the medical evidence might impinge upon the Adjudicator's findings. The Adjudicator certainly had regard to what the Appellant said in his asylum interview and did not accept the Appellant's claim that he was either ill or confused or not capable of understanding the questions put.  The Adjudicator sensibly pointed out that he had observed the Appellant giving oral evidence at the hearing and found that he was able to answer questions properly. When we asked Mr Hawkin to refer us to any matter in the asylum interview record suggesting confusion or an inaccurate answer based on confusion, the best he was able to do was to point us to question 29, where the Appellant asked for a question to be repeated because he had lost “his brain,” by which he plainly meant that he had lost his thread of thought. That however is no evidence of confusion undermining the viability of the answers he gave. Mr Hawkin could refer us to no other specific answer in the asylum interview record to support his submission.

21.	We then looked at the Adjudicator's credibility findings to see whether there was something in this that might be undermined by the medical evidence. We could find nothing.  The Adjudicator accepted that the Appellant's brothers were actively involved in fighting for the Hizb-I-Islami party and accepted the Appellant's evidence of their activities during the war between the Taliban and the Northern Alliance. He accepted that Commander Nasurullah did kill one of the Appellant's brothers and as we have said disregarded confusion by the Appellant over the date on which this occurred. He accepted clearly by implication that the Appellant was himself a member  of Hizb-I-Islami, though not as active or prominent as his two brothers. This is a fair reflection of the Appellant's own witness statement and if anything is supported by the medical report which identifies the Appellant's limitations, and by his cousin's evidence that the Appellant has a low IQ. The Adjudicator accepted that the Appellant is of Pashtun ethnicity and also that he was conscripted into fighting for the Taliban and was ill-treated by them. 

22.	The only adverse credibility findings made by the Adjudicator were that he did not accept that the Appellant's home was visited by General Nasurullah, or that it was ransacked and his father arrested, or that the Northern Alliance had a continuing and unabated adverse interest in the Appellant.  The reasons for this conclusion, which are set out in paragraph 30, were not based upon any inconsistency in the Appellant's evidence, but upon the plausibility of the account, given the Appellant's relatively low profile as compared to his brothers, and in the context of the objective evidence. These conclusions were properly open to him for the reasons stated and we could not see how the medical evidence impinged on them in any material sense.

23.	We therefore asked Mr Hawkin on several occasions to identify for us any specific example of how the medical evidence impinged adversely upon the Adjudicator's findings.  He could not identify any specific example, but instead offered the generalisation that because the Adjudicator rejected the Appellant's claim that he was confused or ill or not capable of understanding the asylum interview questions, this must have coloured and rendered unsound all his findings of fact. Having analysed the findings for ourselves as described above, we do not agree. We conclude that there is nothing in the medical evidence, which undermines the Adjudicator's findings of fact, which are properly sustainable and we reject this limb of attack upon the Adjudicator’s determination.

24.	We then considered for ourselves whether the medical evidence established a freestanding claim on medical grounds under Articles 3 or 8. As we have said, this issue was obviously not considered by the Adjudicator because the relevant medical evidence upon which Mr Hawkin now advances this claim was not put before him. Nor we must add had the cases of N and Djali then been decided.

25.	In N [2003] EWCA Civ 1369, the Court of Appeal undertook a thorough review of the state of the law in relation to Article 3 claims based upon ill health. That particular appeal related to HIV/AIDS but the principles established were intended to be of wider application. The Court carefully assessed the existing jurisprudence from the European Court of Human Rights (including D v UK) and its own previous decisions. Its material conclusions can be summarised as follows.
38. I am bound to declare, with great respect, that as a matter of principle I have much difficulty with the case of D. The contrast between the relative well-being accorded in a signatory state to a very sick person who for a while, even a long while, is accommodated there, and the scarcities and grave hardships which (without any violation of international law) he drew would face if he were returned home, is to my mind - even if the contrast is very great - an extremely fragile basis upon which to erect a legal duty upon the state to confirm or extend the right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature of the state's government. The elaboration of the immigration policy, with all that implies for the constituency of persons for whom within its territory a civilised state will undertake many social obligations, is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under ECHR where a person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the state.  But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with facilities available in the host country, is to my mind is something else altogether.  The idea of the "living instrument", which is a well accepted characterisation of the ECHR (and some other international texts dealing with rights) no doubt gives the Convention a necessary elastic quality, so that its application is never too distant from the spirit of the times.  I have difficulty in seeing that it should stretch so far as to impose on the signatory states forms of obligation wholly different in kind from anything contemplated in the scope of their agreement.
39. In the circumstances it is with respect no surprise that (as it appears to me) since D was decided the Strasbourg Court has effectively being at pains, in decisions I have cited, to avoid any extension of the exceptional category of case, which D represents.
40. But I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances, which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the Applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not been reasonably resisted by the authorities of a civilised state.
42. I should acknowledge that there exists a line of cases concerning Article 8 rights said to arise whether person in question claims that his mental health will be compromised or damaged if he is returned by the Secretary of State. The position has recently been examined by this Court in Razgar and there are also material passages in Bensaid.  We have not heard extended argument upon this appeal as to the scope of Article 8 in such circumstances.  While I apprehend with respect that nothing I have said here is inconsistent with the Court's reasoning in Razgar, it may be that the position regarding Article 8 will want some further scrutiny if my view of this case were to prevail.

26.	Turning now to the Article 8 claim, the Court of Appeal, in Razgar [2003] EWCA Civ 840, assessed the application of its decision on territoriality in Ullah to other Articles. It concluded
22. We suggest that, in order to determine whether an Article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way.  First, the claimant's case in relation to his private life in the deporting state should be examined.  In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include consideration of what he says about his mental health in the deporting country, the treatment he receives there and any relevant support that he says he that he enjoys there. Secondly, it will be necessary to look at what he says he is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy.  The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country.  If so, then the territoriality principle is not infringed, and the claim is capable of being engaged.
23. The degree of harm must be sufficiently serious to engage Article 8.  There must be a sufficiently adverse effect on physical and mental integrity, and not merely on health.
25. Even if a removal case engages the Article 8 (1), there is Article 8 (2) to consider.  As already noted, at paragraph 48 of the judgment in Bensaid, the ECHR said that even if the dislocation caused to the Applicant by removal was considered by itself as affecting the claimant's private life the interference was justified under Article 8 (2)…..  In Ullah, it was said that, where the European Court of Human Rights finds that removal engages the Convention, the Court will "often treat the right to control immigration as one that outweighs, or trumps, the Convention right.”
41. When it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the Adjudicator should pay very careful deference to the view of the Secretary of State as to the importance of maintaining such a policy.  There is obviously a conceptual deference between (a) deciding whether the decision of the Secretary of State was within the range of reasonable responses, and (b) deciding whether the decision was proportionate (paying deference to the Secretary of State so far as is possible).  We hold that the correct approach is (a) in all cases except where this is impossible because the factual basis of the decision of the Secretary of State has been substantially undermined by the findings of the Adjudicator.  Where (a) is impossible, then the correct approach is (b). But we doubt whether in practice the application of the two approaches will often lead to different outcomes.”

27.	The Court of Appeal in Djali EWCA Civ 1371, having reviewed the cases of M and Razgar, assessed the inter-relationship between the Article 3 claims [relating to physical illness] and Article 8 claims [relating to mental ill health] cases based upon the unavailability of forms of treatment and support in the home country. Simon Brown LJ held
“There appears to be one line of cases with regard to Article 3 claims and another with regard to Article 8. For my part I have some difficulty in understanding why a different and less stringent approach should be taken to claims based on mental health than say claims by those suffering AIDS or other physical ailments.” 
I have had the advantage of reading in draft the judgments to be handed down today in N, the case of an AIDS sufferer.  That case and others like it fall for consideration only under Article 3 and will succeed only in the most extreme and exceptional circumstances.  It would seem to be very odd if a markedly more generous approach were brought to bear in respect of those suffering mentally rather than physically.  I would echo what Laws LJ says in paragraph 42 of his judgement in N as to possible need for further scrutiny, beyond that in Razgar, of the true position regarding Article 8.

28.	We have applied these principles to the appeal before us. We accept the objective evidence that mental health care facilities in Afghanistan, and particularly in-patient facilities and supplies of free medication, are very limited.  However it appears that medication is available for purchase by individuals who need it. Whether the precise antidepressant medication being taken by the Appellant in the UK will be available in Afghanistan we do not know, but there are alternatives. We also note that antidepressant medication is the only treatment of the Appellant is receiving in the UK and there is no suggestion in the medical report that the Appellant requires in-patient treatment. Thus whilst there is a considerable disparity between the mental health facilities available in the UK and Afghanistan, there would not appear to be much difference between the actual treatment the Appellant is presently receiving her and what would be available on return to Afghanistan. However differential treatment is not the applicable test described in N.

29.	We accept Ms Bracken’s submission that there is nothing exceptional in this appeal. We do not consider that the evidence establishes anything that even approaches the test described in N, to the effect that the application of Article 3 where the complaint in essence is of want of resources in the Appellant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not been reasonably resisted by the authorities of a civilised state. We therefore reject the Article 3 claim.

30.	We consider that the observations of the Court of Appeal in Djali mean that a claim on medical grounds relating to the disparity of mental health care treatment between the Appellant's home country and the UK, cannot succeed under Article 8, due to the requirement of proportionality, if for success it requires a less stringent approach than is required than under Article 3. The mechanism by which this desirable consistency can be achieved derives from the view expressed in Razgar in relation to proportionality that “when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the Adjudicator should pay very careful deference to the view of the Secretary of State as to the importance of maintaining such a policy”.  We therefore reject also the Appellant's appeal under Article 8.

31.	For the reasons given above this appeal is dismissed.

Spencer Batiste
Vice-President