United Kingdom Asylum and Immigration Tribunal

CN (internal flight alternate – female minor) Cameroon [2004] UKIAT 00275

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18 June 2004

Date Determination notified: 29 September 2004

Before
Mr C P Mather (Vice President) Mr J B Wilson
Between

 

CN	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr D Seddon Counsel instructed by Bindman & Partners. For the respondent: Mr D W Saville, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. The appellant, Charley Ngom, is a citizen of Cameroon. She was born on 11 April 1987 and is therefore still a minor.
2. With permission, she appeals the determination of an Adjudicator, Mr A C B Markham David, promulgated on 17 September 2003. The appellant was granted leave to remain until 10 April 2005 which is the day before her eighteenth birthday. The Adjudicator was only therefore concerned to decide whether the appellant was entitled to refugee status. Although Mr Seddon argued before the Adjudicator that he should also deal with the question of human rights, the Adjudicator declined to do so and gave his reasons. The appellant has been refused permission to appeal on that issue. The grant of permission was limited to questions arising from the Adjudicator's apparent lack of reasons for finding that it would not be unduly harsh to expect the appellant to return and relocate in Yaoundé and the grounds assert that in making that assessment he failed to take her psychiatric condition into account.
3. The Adjudicator's task, and ours, is to an extent an artificial one. It is the question of determining refugee status when it is well known that the appellant will not be returned for the time being. It is slightly more difficult in this appeal than some. Not only is the question of refugee status (the real risk on return of persecution for a Convention reason) being decided on the theoretical risk of return now but also, if the respondent were to return the appellant now he would be in breach of his own policies on the return of minors. That policy is alluded to in the reasons for refusal of asylum which are set out in a letter dated 7 April 2003. In paragraph 7 of the letter the respondent indicates that he has decided to exercise his discretion and grant limited leave to remain,

"in accordance with the published Home Office asylum policy instruction on discretionary leave because you are an unaccompanied child for whom we are not satisfied that adequate reception arrangements in your own country are available".

4. It is not entirely clear how we should treat the respondent's policy which means that, in the particular circumstances of this appellant, she would not be returned because of a lack of reception arrangements, regardless of any actual risk. For the purposes of this determination we have decided that the policy should be ignored because the grant of discretionary leave is not relevant and the policy was at least part of the reason for that grant.
5. The Adjudicator found that the appellant came from a village near Bamenda, three hours by bus from the capital, Yaoundé. She had been living there with her father, an older brother and two younger sisters. Her mother had died in childbirth in 1990. She had left school in September 2001 because her father was an alcoholic and unable to pay the fees. The main problem which the appellant had was caused by her father and his alcoholism. In January 2003 a police inspector had been killed in the area and it was said that the appellant's father was the killer. Apparently he and the police inspector shared a girlfriend. The appellant is unable to say whether there is any truth in the allegation or not.
6. In early January 2003 the whole family was arrested and taken to the police station. The appellant's father was interrogated in front of them and beaten. This happened on more than one occasion. Neither the appellant nor her siblings were asked any questions at all but whilst at the police station some of the male officers undressed her and indicated they wanted to have sex with her. When her father objected he was beaten again. However, she was not subjected to rape and there was no further sexual assault. She was not beaten or otherwise molested at all. A woman called Rachel, who was her father's girlfriend, collected the appellant and her siblings from the police station and initially took them back to their own home. Some two days later the appellant's brother became ill after playing football and died the following morning. Rachel then took the appellant and her two sisters to her own house in a nearby village. The appellant said that she has no relatives on her mother's side in Cameroon as her mother was Congolese. Her father has some relatives in Yaoundé but that is a long way from the village. The appellant told the Adjudicator that before her brother died, he told her the police inspector's family intended to take revenge on their family. He warned the appellant and her sisters not to go out.
7. After a short time Rachel said that the problem was getting very serious and she was going to send the appellant to her sister's. She brought the appellant to England and then abandoned her in a shop. The appellant eventually ended up being taken to a police station at Croydon. Apparently Rachel had said that she would bring the appellant to England first and her sisters later.
8. The Adjudicator found that there was no suggestion that the appellant's family was expected to return to the police station at any time; that her father was in custody and although there was no question of releasing him there was no evidence any intention to punish the appellant or her siblings. He was satisfied that there was no reasonable likelihood of the appellant suffering any further persecution at the hands of the authorities in Cameroon.
9. In dealing with her fear of the inspector's family, the Adjudicator accepted that the fear was genuine. He said it was somewhat complicated because the appellant's fear, at least to some extent, was a fear of being harmed by witchcraft. The Adjudicator had the benefit of an expert witness who said that it was likely that, in her home area, the family of the deceased police officer would try to take some form of action against her by way of revenge or to assuage the wrath of their ancestors: The Adjudicator found that in her home area, if this were to occur, there would be no satisfactory protection available from the authorities. He then went on to consider the question of relocation. He found that the appellant's sisters are both living in Yaoundé with an aunt on her father's side. He said there was no evidence to suggest they were in any danger from the inspector's family in Bamenda, whilst they were in Yaoundé nor that the appellant would be in any such danger. He recorded that Mr Seddon had submitted to him that it would be unduly harsh to expect the appellant to relocate there. He relied on the letter sent to the appellant by her sisters in which they complained they were not given enough to eat, they could get no medical treatment and they do all the work in the house and get scolded and told off a lot. He also noted that the appellant had spoken to her aunt in June 2003. He also found that in addition to the aunt in Yaoundé, it appears there are some of her father's cousins there. He went on to say, "In these circumstances, I do not think it will be unreasonable, in the sense of unduly harsh, to expect the appellant to relocate there. Thus she is not entitled to refugee status."
10. The factors which Mr Seddon argued make it unduly harsh to return the appellant are first, the psychological problems which he argued relate back to her persecution and are therefore not independent of it. Second, he argued that there was no evidence to demonstrate that the internal relocation alternative is accessible to the appellant because she does not know where her aunt and her sisters are, if they are still there. He also argued that the respondent accepts there are no reception facilities and that she was and is a minor.
11. As to the relatives in Yaoundé the only evidence is that the appellant has received a letter from her sisters and that they are living with an aunt. The appellant is said to have more recently tried to telephone her aunt by ringing a telephone in the market but her aunt has not been around. There is no evidence to suggest that the appellant's relatives are not in Yaoundé or that her sisters are not being cared for there. The letter, which has no address on it, is short and says:-

"Charley, it is with the greatest difficulty and suffering that we make known to you our pain. We are suffering much because the woman has left. It is even difficult finding enough to eat, and sometimes we go for two days before being given just some cassava we have to do all the work in the house. When we are ill, there is no medical treatment and that illnesses just have to go away on their own. We get scolded and told off a lot. How are you? If you can, please come and get us. We are suffering so much. We have got much thinner. If you see us you will cry. We think a lot about you. Yours sisters, Belle and Lyse: here are the photos of your aunt. Thank you."

12. Although there is, in the bundle, a photocopy of the front of the envelope, addressed to the appellant's solicitor in the bundle there is no copy of the back and so it is not known whether it has a return address on it.
13. As to the psychiatric report, Mr Seddon accepted that fear of witchcraft is not an objectively well-founded fear although he argued, and we are prepared to accept, that it may well be a complicating factor in the general assessment of the appellant's subjective fears and the psychiatric problems that she has as a result. There has been a recent assessment of the appellant's psychiatric condition by Dr L D Bell. His report is dated 15 June 2004. The report records that there has been some improvement in the appellant's functioning since Dr Bell previously saw her in July 2003 although he said it was clear she was still psychiatrically unwell. He says that she told him that she deteriorated recently and he believed that the prospect of a further interview with him may well have been a factor in that deterioration. His conclusion is that the appellant's improvement largely arises from a feeling of safety resulting from her living in the United Kingdom where she feels less vulnerable but, the continued threat of return is one of the causes of her condition and any return "would result in a rapid deterioration of her mental state". He went on to say that he did not believe the appellant would be able to avail herself of such help as she received in the United Kingdom, in Cameroon. It is said that the psychological support she derives from attending college helps with her condition and that medication has a very limited role to play in the treatment of her condition as it would not be helpful until the main factors, the threat of return and her psychological insecurity, are no longer active.
14. The report is, as is the case of many psychiatric reports unhelpful in that it does not quantify the deterioration which may occur in the appellant if she were to return, nor does it give any source of knowledge as to the assertion that help and assistance would not be available in the Cameroon.
15. It was not seriously argued that even if the contents of the psychiatric report, and the question of becoming a street child, which is discussed in the expert report at page 102 in the bundle, are relevant factors to take into account in the assessment of an asylum claim, that the appellant would be entitled to refugee status on the basis of them alone.
16. The question we had to grapple with, given that the appellant had not challenged the finding that she would be able to avoid the objective risk from the inspector's family by relocating to Yaoundé, is whether the combination of her age, the possible inability to find her siblings and relations, the question of street children and the psychiatric evidence, together make it such that it will make it unduly harsh for her to relocate to Yaoundé. Mr Saville argued that these factors may well be persuasive in the course of an application for further leave to remain on human rights grounds, but they were not such as to mean that she must be granted refugee status.
17. The current leading authority, which we were told is the subject of an appeal to the House of Lords is that of AE and FE [2003] Imm AR 609 or [2003] EWCA Civ 1032. Mr Seddon argued that we should prefer the decision in Robinson [1997] Imm AR 568. We do not agree. AE and FE was decided by a Court including the Master of the Rolls. It explained at some length the nature of the correct factors to take into account when considering the question of undue harshness and why the Court's views had changed. At paragraph 66 Lord Phillips said that there had been material developments since Robinson (also decided by a Court including the then Master of the Rolls), he referred to the Human Rights Act 1998 having come into effect requiring decision makers to take into consideration human rights issues when considering the question of the removal of asylum seekers. In addition, the numbers claiming asylum had risen.
18. In AE and FE the court considered whether, where a husband had an internal relocation alternative to Colombo, from Jaffna, that alternative was made unduly harsh by his wife's mental condition which could not be treated in Colombo. Here it is the same person who has the fear of persecution elsewhere and a medical condition. We do not regard that distinction as being of relevance because of the courts overall approach to this question. We say that because in paragraph 70 of AE and FE the court said:-

"On the facts, the wife's psychiatric condition is not attributable to persecution, or well-founded fear of persecution, on her part nor related to her husband's well-founded fear of persecution in Jaffna. When considering the question of whether it will be reasonable to expect the husband to live in Colombo rather than Jaffna, his wife's condition is a neutral factor. It does not make Colombo unviable or unreasonable as a safe haven. There may be good grounds under the Human Rights Act, or as a matter of common humanity for not sending this family back to Colombo. The reason why AE wishes to remain in this country is not that there is nowhere where he can reasonably be expected to live in Sri Lanka that will not expose him to a well-founded fear of persecution. In essence it is if he and his wife are permitted to remain in this country this is likely to be beneficial to her post traumatic stress disorder, where a return to Sri Lanka is likely to be detrimental to this. This is not a reason to find that he has refugee status under the Convention his appeal must be dismissed."

19. It is true to say that in this case the appellant's psychiatric condition is attributable to her experiences in Cameroon, but not in Yaoundé.
20. However, earlier in the judgment the Master of the Rolls said, at paragraph 64:-

"… So far as refugee status is concerned, a comparison must be made between the asylum seeker's conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal relocation. If that comparison suggests that it will be unreasonable or unduly harsh to expect him to relocate in order to escape the risk of persecution his refugee status is established. The 'unduly harsh' test has been extended in practice to have regard to factors which are not relevant to refugee status, but which are very relevant to whether exceptional leave should be granted having regard to human rights …. humanitarian considerations."

The court then went on to say that:-

"65. The problem with this is that humanitarian considerations cannot readily be applied as a test of law as to whether an individual is entitled to refugee status. What is the touchstone which marks the difference between what is harsh and what is unduly harsh?"

21. The court went on to quote from the Tribunal determination in that appeal. Having considered the Tribunal's earlier determination, and set out the changes that had occurred since Robinson, the court went on to say:-

"67. It seems to us important that consideration of immigration applications and appeals should distinguish clearly between, i) the right to refugee status and the Refugee Convention; ii) the right to remain by reason by rights under the Human Rights Convention; and iii) considerations which might be relevant to a grant of leave to remain for humanitarian reasons. So far as the first is concerned the consideration of reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home. The comparison between the asylum seekers situation in this country and what it will be in the place of relocation is not relevant for this purpose. It may be very relevant when consideration of the Human Rights Convention, or the requirements of humanity.

22. That seems to us to cover the position here. We cannot find when comparing conditions in Yaoundé with those which the appellant might find if he were to return to her home area it would be unduly harsh to return her to Yaoundé. She has no objective reason to fear the inspector's family there. Her subjective fear of witchcraft would be no worse in Yaoundé than it is in her home area. She has family in Yaoundé which she does not have in her home area. We agree with Mr Saville that, however powerful the arguments about not returning the appellant may be in relation to her age, difficulty in finding her relatives and mental health are, they are not appropriate factors to take into account when considering refugee status.
23. We should mention the case Ikhoq [1997] Imm AR 404, relied on by Mr Seddon. We did not find that a helpful authority. We say that because although the Court of Appeal were prepared to take into account the medical condition when looking at the question of undue harshness (in 1997), the question of whether or not they should do so was not an issue in the appeal. It was accepted by all concerned that it was appropriate to do so.
24. In dismissing this appeal we make it clear that we were only dealing with the question of refugee status and that the appellant has the protection she needs by the grant of leave. She will have the opportunity of making an application for variation to extend that in due course. We are not therefore saying that she can or cannot be safely returned. We are only saying that she is not entitled to refugee status. There was no material error of law in the Adjudicator's determination.
25. The respondent granted leave because of his policy on the return of minors without knowing whether there are satisfactory reception arrangements. There is nothing to indicate the he has made specific enquiries about the appellant, as opposed to having general arrangements in place. The evidence is that there is family in Yaoundé and the appellant is not reasonably likely to be left to fend for herself. Even if we were wrong about this, it does not matter. The problems that the policy is intended to cover are human rights issues and, following AE and FE, not appropriate to take into account when assessing undue harshness in an asylum context.
26. The appeal is dismissed.

C P Mather

Vice President

Approved for electronic distribution.