B and Secretary of State for the Home Department

LORD PHILLIPS, MR :

This is the judgment of the Court.

Introduction

This is an appeal by B against a decision of the Immigration Appeal Tribunal dated 2 June 2004, brought with permission granted by Carnwath LJ on 22 October 2004. B is a citizen of the Democratic Republic of Congo ('DRC'). She was born on 19 May 1985. She entered the United Kingdom on 11 January 2003 and claimed asylum four days later. On 25 February 2003 she was refused leave to enter. She appealed to an Adjudicator, further contending that she should not be sent back to the DRC on the ground that this would infringe her rights under Articles 2, 3 and 8 of the 1950 European Convention on Human Rights ('the Human Rights Convention'). On 10 June 2003 the Adjudicator allowed her appeal, holding that she was entitled to asylum and that to return her to the DRC would infringe her Human Rights Convention rights. The Secretary of State appealed against this decision and, on 2 June 2004, the IAT allowed his appeal.

The Secretary of State's appeal to the IAT was brought pursuant to Section 101(1) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), which applied to any appeal from a determination of an Adjudicator dated on or after 9 June 2003. That sub-section provides:

"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.

Attempts were made by the parties at resolving this appeal by consent. The Secretary of State was prepared to concede that the decision of the IAT was flawed in that it did not clearly identify an error or errors of law on the part of the Adjudicator. He contended, however, that such errors could clearly be identified and that the matter should be remitted to the IAT for further consideration. Those acting for B conceded that, if the only basis for the Adjudicator's decision had been that B was entitled to asylum, the Secretary of State had at least an arguable case that the Adjudicator had erred in law that would justify reconsideration by the IAT. They contended, however, that no error of law could be demonstrated in relation to the Adjudicator's finding that to send B back to the DRC would infringe her rights under the Human Rights Convention. Accordingly, that part of the Adjudicator's decision should be 'ring fenced' and remission to the IAT should be restricted to the question of whether B enjoys refugee status.

This appeal is brought pursuant to section 103 of the 2002 Act, which provides:

"(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".

The facts

No challenge has been made by the Secretary of State of the account given by B of her experiences before entering this country. On 4 August 1998 she was living at Commune de Gombe in the DRC with her stepfather, who was a Rwandan Tutsi, her mother and her two sisters aged 6 and 7. On that day a number of lorries carrying soldiers arrived. They took away her stepfather, her mother and her sister. She has since learned that her stepfather was almost certainly killed but that her mother and sisters probably survived and may have escaped to Europe. She, aged 13, was taken by a soldier called 'Commandant Eddie' to his house in Kinshasha, where she found five older girls. They were kept locked in the house. She explained that the soldier "would come in and take one of the girls each night. I was taken like the other girls. I was continuously raped. He said that we were for him. We were his girls".

In November 1998 the soldier was in some form of personal trouble. It seems that he had formed a particular affection for B, for he put her on a plane for Abidjan, in the Ivory Coast, and arranged for her to be met there, when she arrived without papers, by a woman known as Mammy Flaure, who was also from the Congo. She looked after B for the next four years. The two then came under threat as a result of political troubles in the Ivory Coast and fled, making their way to this country, where Mammy Flaure said she could no longer look after B, and left her at a supermarket.

As a result of her experiences B suffered both from gynaecological problems and from significant and disabling post traumatic stress disorder ('PTSD'). A psychiatric report that was before the Adjudicator commented:

"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

In his Determination and Reasons, the Adjudicator summarised the facts that we have set out above. He then considered at some length the current situation in the DRC. He directed himself that the burden was on B to prove that there was a 'real risk' of persecution for one of the five grounds recognised by the 1951 Geneva Convention Relating to the Status of Refugees ('the Refugee Convention), or of breach of protected human rights. The standard of proof, whether under the Refugee Convention or the Human Rights Convention, was 'a reasonable degree of likelihood', 'a reasonable chance' or a 'serious possibility'.

He began his findings by stating:

"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."

He went on to find that, over the last five years, conditions in the DRC had improved, so that the risk of persecution that B had faced five years earlier no longer persisted. He observed, however, when dealing with the role of women that "the risk of rape remains for homeless girls".

The most important findings appear in the following paragraphs:

"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.

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...