COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE CARNWATH
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Robin Tam (instructed by Treasury Solicitors) for the Respondent
Crown Copyright ©
LORD PHILLIPS, MR :
This is the judgment of the Court.
"A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law"
Prior to 9 June 2003 an appeal lay against an Adjudicator's decision on grounds of fact or law. Neither the Secretary of State's grounds of appeal to the IAT nor the decision of the IAT adequately reflected the change in the law made by the sub-section. We have no evidence of the basis upon which the IAT gave the Secretary of State permission to appeal to the IAT.
"(1) Where the Immigration Appeal Tribunal determines an appeal under section 101 a party to the appeal may bring a further appeal on a point of law".
"This is compounded by the increasing neurological vulnerability which means that each subsequent trauma is more damaging by virtue of the unresolved traumas of the past."
The Report stated:
"PTSD can be treated and responds well to Eye Movement Desensitisation Reprogramming and similar approaches. These are highly specialised techniques which are unlikely to be available in her country of origin. [B] will require a period of certainty and security within which to benefit from any therapeutic intervention."
The Adjudicator's decision
"I have carefully examined the oral evidence, submissions, documentation and caselaw referred to. I find that in the past, the appellant has suffered a traumatic incident which would amount to persecution and severe ill-treatment. However, in my view the issue to be considered is whether or not there would be a real risk to the appellant if she were returned. On this issue, there are the points relating to her ethnicity, the situation in Kinshasa, her position as a woman, the return itself and the medical situation to be considered."
"34. However, I have paid particular attention to the cases of Ngha and Ramazani and the issues relating to medical treatment, combined with the appellant's particular situation. Firstly, she has no family or financial support in the DRC. The caselaw and background information indicates that medical assistance and medicines have to be paid for. The appellant has no means of livelihood and whilst there is a reference to the Salvation Army providing health assistance at low rates and the churches and nongovernmental organisations providing help, there is no guarantee that she would have their support. It is possible that she could be homeless and, in accordance with the background information, at great risk or danger of rape.
35. She has been diagnosed as severely depressed and suffering from PTSD. Further, because of the trauma suffered, a therapeutic approach is required. It is said that she needs a great deal of support and has an increasing neurological vulnerability. I conclude that to return the appellant would not lead to an improvement in her situation and more likely a deterioration. I am not certain that she could receive the appropriate treatment, particularly because of her situation as a young girl, no livelihood, no family support and her financial position.
36. Having regard to the caselaw and background information, I find that if she is returned there is a real risk that she would suffer ill-treatment or conditions such that would amount to persecution or inhuman or degrading ill-treatment sufficient for a Convention reason or likely to be a breach of Article 3 of the 1950 Convention.
ASYLUM AND THE 1951 CONVENTION
37. Article 1 of the 1951 Convention defines a refugee as someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.
38. Given my findings, I find that the appellant has discharged the burden of proof of having a well-founded fear of persecution for a Convention reason. I come to the conclusion that the appellant's removal would cause the United Kingdom to be in breach of its obligation under the 1951 Convention.
HUMAN RIGHTS AND THE 1950 CONVENTION
39. The appellant's representatives has submitted that the appellant's rights under Articles 3 and 8 of the 1950 Convention are engaged. Under Article 3 I have to decide whether there is a breach of the prohibition on Torture, or Inhuman or Degrading Treatment or Punishment. I have subsumed into my consideration of this Article my assessment under Article 2 on the Right to Life. Both rights are absolute. Under Article 8, the appellant's physical and moral integrity needs to be considered.
40. Given my findings, I find that if the appellant is now returned to the DRC, there is a real risk she will suffer a breach of her protected rights under these Articles. In the light of the above conclusions, I find that the Decision appealed against would cause the United Kingdom to be in breach of the law or its obligations under the 1950 Convention. "
The grounds of appeal to the IAT.
The decision of the IAT.
"Street children are subject to harassment including the rape of homeless girls. However we adopt the reasoning and conclusions set out in paragraph 9 of Sinanduku which reads as follows and applies equally to the DRC:
"The background evidence certainly shows that there is possibility and to that extent a risk of rape in the Congo but because the general risk exists for all, it does not follow that there was a real risk for each individual. In order to establish a real risk arising from the general risk faced by an entire category of people, it must be shown from the evidence that there is a consistent pattern of a gross flagrant or a mass occurrence of the conduct feared. The background evidence fails to reach this high threshold and in these circumstances the risk to women in general identified in the background evidence is not such that it can be properly be said that there is a real risk to the Respondent on return."
The situation in the DRC is far from ideal and there is clearly violence, some lawlessness and difficulties within the infrastructure. However although there may be a general rule in the DRC this Respondent has not shown a real risk that it applies to her."
Submissions before us
1. The appeal is allowed
2. The Appellant's appeal to an adjudicator under sections 65 and 59 Immigration Act 1999 is remitted for hearing by an adjudicator other than Mr N E Sarsfield.
3. No order as to costs
4. Detailed assessment of the Appellant's publicly-funded costs in accordance with the Community Legal services (Costs) Regulations 2000 and Regulation 107 fo the Civil Legal Aid (General) Regulations 1989.