N (Hutus - Article 3)
| Jurisdiction | England & Wales |
| Judge | Mr S L Batiste,Mrs W Jordan |
| Judgment Date | 05 September 2003 |
| Neutral Citation | [2003] UKIAT 65 |
| Court | Immigration Appeals Tribunal |
| Date | 05 September 2003 |
[2003] UKIAT 65
IMMIGRATION APPEAL TRIBUNAL
Mr S L Batiste (Chairman)
Mrs W Jordan
N (Hutus — Article 3) Burundi
The Respondent is a citizen of Burundi. The Appellant appeals, with leave, against the determination of an Adjudicator, Ms P Monro, allowing the Respondent's appeal under Article 3 against the decision of the Appellant on 31 October 2001 to issue removal directions and refuse asylum. Mr L Parker, a Home Office Presenting Officer, represented the Appellant. Mr F Khan represented the Respondent.
The Respondent is a Hutu. His father was a businessman with a lorry, who travelled across the provinces. They lived in Bujumbura, the capital, until anti-Hutu rioting in 1995, caused them to flee Gisagara in Gitega Province, where he decided to join the local agricultural college. There was rioting in Gitega City in July 1996 and the Appellant decided to leave the area. By that time he had no remaining family. He withdrew his father's money and went to work as a labourer in Buyenzi, where he remained until 1999. He then heard that the area was likely to be targeted by the government and decided to leave the country. He arrived in the UK illegally on 11 October 2000 and claimed asylum next day.
The Appellant rejected his claim arguing that he was not even from Burundi. The Adjudicator, who heard the claim in the absence of a Presenting Officer, concluded that the Respondent was a national of Burundi, but rejected his asylum appeal. However she allowed his appeal under Article 3. Her conclusions are set out in paragraphs 40 and 41 of the determination in the following terms
40. I find that there is not a reasonable likelihood that the [Respondent] will be persecuted for a Convention reason if he were returned. The civil war appears to have ended, although violence continues. There is no evidence to suggest that this Appellant would have reason to fear of persecution although the situation in Burundi remains fragile.
41. I now consider the claim that a return would infringe the [Respondent's] Article 3 rights. The humanitarian situation is described in the CIPU report. There are outbreaks of infectious diseases. There is systematic looting of crops and destruction of property carried out by armed political groups and government troops. There is a shortage of food, basic social services and economic opportunities. Looking at the situation overall, I find that Article 3 would be breached on a return.
The grounds of appeal challenge this decision on Article 3. There is no cross-appeal by the Respondent.
Mr Parker argued in essence that Adjudicator erred in concluding that the humanitarian situation in Burundi awaiting returnees crossed the severity threshold required under Article 3. The poor conditions in Burundi, described by the Adjudicator reflected the consequences of the long civil war and represented the quality of life of the population in general in Burundi, rather than any specific treatment facing the Respondent personally. He referred to two Tribunal decisions – Amjal Khan [2002] UKIAT 01223 relating to Afghanistan and Ngandu 01/TH/01994 relating to the Democratic Republic of Congo – to demonstrate the appropriate considerations involved. Mr Khan disagreed and submitted that the Adjudicator was entitled to conclude that the humanitarian situation did cross the Article 3 threshold. Neither representative took any real issue with the Adjudicator's summary of the objective evidence, contained in paragraphs 39(a)-(j), save that Mr Parker argued that the Adjudicator did not give proper weight to the fact that there had been a substantial number of returns from Tanzania, the main country of refuge, since early 2002 and most of these had been under the auspices of UNHCR, who would not have sponsored returning refugees to face inhuman or degrading treatment. Apart from this main issue, Mr Khan raised a related point concerning the scope of the Adjudicator's Article 3 finding, that we shall come to in due course.
However first, we should take note of the applicable principles of law. Article 3 imposes an absolute bar on torture, or inhuman or degrading treatment or punishment. It permits no exceptions and there is no derogation. The standard of proof is that of real risk. However ill-treatment must attain a minimum level of severity in order to fall within Article 3, as held by the ECHR in Ireland v UK. In SK [2002] UKIAT 05613*, Collins J., when assessing whether returnees to Croatia after the civil war there would face humanitarian conditions in breach of Article 3, held as follows;
“We accept that an individual's circumstances can be relevant. Thus, for example, a person who has learning difficulties or some physical disability may suffer disproportionately because of his or her condition. Nonetheless there must be a threshold, which is of general application. Croatia has suffered the ravages of a fierce and bitter civil war. Thus the mere fact that there will be a return to hardship resulting from that cannot produce a breach of human rights. The general situation must be taken into account, as must what is generally accepted in the society in question.”
The Court of Appeal has refused leave to appeal against the decision in SK. With regard to the last sentence quoted above, this reflects what...
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