MN (Rwanda) v Secretary of State for the Home Department

This is an appeal from a decision of the Asylum and Immigration Tribunal promulgated on 20^th December 2006, permission to appeal having been given in this court by Sir Henry Brooke.

The appellant is a native of Rwanda and a Tutsi. She was born on 10^th March 1978, so she is now 29 years of age. For the first 16 years of her life she lived with her parents and her brothers in Kigali, the capital of Rwanda, where her father was an accountant.

Then in April 1994 the Hutus in power began the period of genocide of Tutsis which lasted for about 100 days and received international condemnation. On 1^st May 1994 Hutu militia men arrived at the home of the appellant where she, then aged 16, was with her mother, the male members of the family being in hiding. The appellant and her mother had not joined them because the appellant was unwell. Both women were raped. A week later the same militia men returned. On that occasion one of the appellant’s brothers was present and he tried to protect the women. He was attacked and executed before their eyes. Again the women were raped, and the appellant's parents were killed. The only survivors, it seems, were three of her brothers. She was taken off and held by the militia for two months, and during that period she was constantly raped. Prominent amongst her abusers was Major Ninja. Then, when her captors heard heavy artillery, they made off and she escaped to an orphanage where she found her two younger brothers. She stayed there a few weeks, then the violence ended.

At that stage she was reunited with her brother Gilbert Kayumba. He found accommodation for her and her two younger brothers. She finished schooling, obtained qualifications, and for at least two years, from 1998 to 2000 worked as an accountant, having previously received some treatment, including treatment in Kenya, for loss of speech.

By 1998 Hutu militia men, who had fled when the RPF obtained power, were drifting back to Rwanda. Many, including her family’s attackers, were reported and imprisoned. Then, in 2000, a number were released. She claims–

On 4^th July 2001 the appellant and her brother Gilbert arrived in the United Kingdom by air from Kigali. She was given a 24 hour transit visa, but overstayed, and on 13^th September 2001 she claimed asylum. Perhaps because of the changes taking place in Rwanda it was not until 13^th August 2004 that the Secretary of State gave his decision. Her application was refused. She appealed and on 2^nd February 2005 her appeal was heard by an adjudicator, Mr Turcan. The appellant gave evidence, with the assistance of an interpreter, and the adjudicator found her account to be “essentially truthful”. He was satisfied that she had a genuine fear for her safety at the hands of Major Ninja, but he was unable to find that she faced a real risk of persecution at his hands or that she would, if returned, be in danger from Hutus or of any interest to the present government. Her appeal against the refusal of asylum therefore failed, and that decision still stands. But the adjudicator went on to consider the appellant’s alternative claim that, because of what she had undergone and its effect upon her, it would be a breach of her human rights, and in particular of her rights under Article 3 of the European Convention on Human Rights were she to be returned to Rwanda. The adjudicator had before him medical reports from Dr Seear and Dr Sandra Evans which indicated that the appellant was a highly traumatised individual suffering from post traumatic stress disorder and in need of long term support. On the basis of that material the adjudicator felt able to say that a decision to return her to the country where she was subjected to traumatic and horrifying experiences would amount to a breach of Article 3.

The adjudicator gave inadequate reasons for that conclusion, as the Asylum and Immigration Tribunal decided in response to an application by the Secretary of State, and at a first stage reconsideration on 22^nd August 2006 Senior Immigration Judge King found the absence of reasons to amount to an error of law. It was then agreed that the credibility findings should be maintained, and that the issue for the second stage reconsideration should simply be–

The second stage reconsideration by the AIT, from which this appeal lies, took place before Immigration Judge Phillips at Hatton Cross on 2^nd November 2006, the Determination being promulgated on 20^th December 2006. The appellant gave evidence with the assistance of an interpreter. It emerged that she had last heard of her younger brothers in about March 2004 when they were asking in a letter why the appellant and her brother Gilbert had not returned to “granny’s”, and spoke about living with “Joyce”. In May 2005 she heard from a friend in Rwanda that the younger brothers were no longer in Rwanda and might be in Uganda. By the time of the hearing in 2006 the appellant was no longer living with her brother Gilbert and she had not seen him for about three months. His claim for asylum had been refused in July 2005, and he had gone into hiding with friends. He did telephone his sister, but, to safeguard his position, he did not tell her his address. The appellant told the immigration judge that she would contemplate suicide if required to return, and in paragraphs 28 to 33 of the determination the judge carefully analysed the five medical reports which were before her, dealing with them in chronological order. Before us Mr Fripp, for the appellant, accepted that the judge’s analysis of the medical evidence was accurate, so I can to some extent restrict my review of that evidence.

The first report before the judge was from the appellant’s general practitioner, Dr Joyce, and it has not been produced to us. The second report was from Dr Sandra Evans, an experienced consultant psychiatrist who saw the appellant on 23^rd December 2004 at the request of her solicitors. The appellant had, she said, spent the previous year at a school in this country learning English, and spoke it reasonably well. She had stopped attending the school in March 2004, but continued to live in a house in Romford which she shared with her brother. She felt low each year when it came round to the anniversary of the genocide, and was clearly disturbed when attempting to tell the doctor what had happened. She complained of sleeping poorly despite medication in the form of Citalopram (a common treatment for depression and PTSD, which was prescribed for the appellant by her GP). Over a period of about 18 months the appellant received some therapy from the Medical Foundation for the Care of Victims of Torture, and she felt guilt in relation to the brothers she had left in Rwanda. I need not attempt to repeat all that the appellant told the doctor, but Dr Evans confirmed the diagnosis of PTSD, recommended referral to the local Mental Health Team with stronger medication, and ended thus–

Dr Anne Lane’s report is dated 15^th August 2006, when the appellant’s condition was “very unstable”, because of her anxiety about the future. In June 2005 the appellant was expressing a desire to die whenever her condition became acute, and Dr Lane considered it to be “extremely important that she be supported to stay in the UK and not face the threat of having to return to a place where her life has (sic) under such extreme threat.” The doctor concluded by expressing her view that any further disruption would put the appellant at a high risk of suicide.

The psychologists worked with a psychiatrist, Dr Sara Dimic, who saw the appellant on various occasions between 29^th July 2005 and 11^th August 2006. The history, diagnosis, and prognosis were as recorded by others, but by the time that Dr Dimic was reporting, the appellant was “on and off her medication” and denied having suicidal plans at the moment. But she said that she would rather kill herself than go back to Rwanda. The doctor accepted the reality of that threat, saying that “her suicidal risk would be very high if sent back to the place of traumatic events”.

The immigration judge assessed the medical evidence in the context of the background material before her, including reports which dealt with health care in Rwanda. In May 2003 it was estimated that there were 300 doctors in the country, with five referral hospitals for more advanced medical care, and health care centres each serving an estimated 25,000 people. But, as is so often the case, the provision of health care was uneven. In the Human Rights Watch Report “Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda”, dated 30^th September 2004 it is said at page 21 that–

The immigration judge was satisfied that the appellant was at the time of her determination suffering from PTSD and depression for which she was receiving treatment, and as to what might be available in Rwanda, the judge said–

The judge noted that in J (Sri Lanka) v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] All ER (D) 359 (May); [2005] Imm AR 409; [2006] INLR 354 it was considered appropriate to look separately at the risk of suicide in the United Kingdom on hearing of an adverse decision, the risk in transit, and the risk in the destination country. For reasons which the judge explained, and which are now accepted to be adequate, she found that the risk of suicide in the UK and on the way to Rwanda could be managed in such a way that it would not attain the Article 3 threshold. Mr Fripp does, however, point out that the judge, in paragraph 50 of her determination, did envisage that the protective measures for the journey “could, with the cooperation of the appellant and her brother, include returning the appellant along with her brother, in accordance with normal procedures which are designed to ensure that family members are returned together.” Mr Fripp complains that, as the appellant’s brother has gone to ground, the judge was speculating, but, as it seems to me, the approach was realistic. Her brother, although in hiding, has been supportive, and as Ms Grey for the respondent pointed out, if the appeal fails her brother may decide to go with her to offer support or he may be arrested. Clearly the judge’s conclusion was not contingent on the brother being available when deportation takes place.

That brings me to the heart of this appeal, which is an attack on the judge’s assessment of what would happen to the appellant in Rwanda. In paragraphs 51 to 54 the judge said–

In oral evidence the appellant claimed to have had access to medical treatment in Rwanda in the past and, against the background of the objective evidence, taken in the round, I find there is no real risk that she will be unable to access any medical treatment she requires for PTSD or depression on return to Rwanda.

I have looked at all the evidence in the round and weighed this up: including the evidence which I have not specifically referred to in the findings set out above. I have considered all the submissions. I have taken careful note of the lower standard of proof. Having done so I uphold the respondent’s appeal.

I find that the evidence does not meet the threshold required. I find the appeal should not succeed because there is no real risk that the appellant’s subjective fears, which have been held not to be objectively well founded will cause her to respond to a removal decision by committing suicide in the United Kingdom before removal, or en route to Rwanda, or following arrival in Rwanda.”

Mr Fripp's submits that the reasoning in paragraphs 51 and 52 is so inadequate that the decision should be quashed and remitted for reconsideration.

The approach to be adopted in cases of this kind, where it is said that Article 3 and/or Article 8 can be invoked because a victim of trauma will be at risk of suicide, if returned to his or her country of origin, was considered by this court in J (Sri Lanka) (supra), and the approach there suggested has received support in subsequent cases, including in particular AJ (Liberia) V SSHD [2006] EWCA Civ 1736. Before us it was accepted to be the right approach and it was clearly the approach that the judge in this case attempted to follow, explicitly referring to the J case. In paragraph 25 of J Dyson LJ, giving the judgment of the court, set out the general test to be applied, namely whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment, or punishment.

As Hughes LJ said in paragraph 12 of AJ (citing other authorities) the application of that test in a suicide case involves an extension upon an extension of Article 3–

Mr Fripp submitted that the judge erred in law because she attached too much significance to the possibility of supportive contact in Rwanda when it was far from clear that the appellant would have any support from her brothers, and she failed to give sufficient weight to the appellant’s genuine fears (as, for instance, Black J did in Kurtaj v SSHD [2007] EWHC 221 (Admin). As Ms Grey explained, Kurtaj was a very different type of case, with different evidence and a different issue at stake. Mr Fripp submitted that, if sibling support were removed from paragraph 51 of the determination, there would be no reasoning left to support the judge’s conclusion. He did not seriously seek to challenge the judge’s conclusions in relation to the availability of health care.

Ms Grey submitted that the judge was entitled to decide as she did on the available evidence, and that her determination does adequately set out her reasoning process. In dealing with family support the judge chose her words carefully, and what she said was not unrealistic. She looked at the past and at the future, and considered the matter in the round, as she was required to do. In KR (Iraq) v SSHD [2007] EWCA Civ 514 it was stated, at paragraphs 35 and 46, that what was required was a rounded assessment of the risk that if returned to her country of origin the appellant would be driven to commit suicide. The judge in the present case made that assessment, and reached a tenable conclusion. I entirely agree. The judge had a difficult and anxious task. She obviously dealt with the matter with considerable care, and in my judgment the reasons which she gave her conclusion as to the risk on return to Rwanda adequately explained her approach to the evidence before her. Her conclusion was one which was open to her, as Mr Fripp concedes. In my judgment there was no error of law, and there is no reason for this court to intervene, whatever sympathy it may have for this unfortunate appellant.

I would therefore dismiss this appeal.

I agree.

I also agree.