CN (Burundi) v Secretary of State for the Home Department

It is well established that there may be circumstances in which it would not be possible for the Secretary of State to remove a foreign national to his home country where he would be at a high and increased risk of committing suicide without contravening that person’s human rights, in particular the rights safeguarded by Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). This proposition was recognised by the Strasbourg Court in Bensaid v United Kingdom[2001] 33 EHRR 10 and by this Court in J v Secretary of State for the Home Department[2005] EWCA Civ 629. Notwithstanding the principle, successful resort to it remains elusive.

The present case has a long and unhappy history. The appellant came to this country on 1 October 2000 when he was aged 17. He sought international protection primarily by reference to the Refugee Convention on the basis that he had a well-founded fear of persecution in his home country, Burundi. In the event, the Secretary of State did not accept that the appellant came from Burundi. On 10 January 2003 an adjudicator was satisfied that the appellant was a citizen of Burundi and he allowed his appeal on asylum and human rights grounds. The Secretary of State then appealed to the Immigration Appeal Tribunal which allowed his appeal on 11 November 2003 but did not disturb the finding that the appellant was from Burundi. That determination by the Immigration Appeal Tribunal followed a hearing at which the appellant had been neither present nor represented. It later transpired that the absence was the result of an administrative error on the part of the immigration authorities. The fact and outcome of the hearing before the Immigration Appeal Tribunal remained unknown to the appellant and his legal advisers until June 2004. There was then set in motion an application for permission to appeal to the Court of Appeal but that was resolved when the Deputy President of the Immigration Appeal Tribunal directed that there should be a fresh hearing before another adjudicator. When so doing, he observed that, “This appeal appears to have been blighted generally by error and misunderstanding”.

The next hearing took place before an Immigration Judge on 6 June 2005. On that occasion the appellant was represented but the appellant himself was again absent, this time because he had only recently been released from a mental hospital having been detained under section 3 of the Mental Health Act 1983. His counsel made an application for an adjournment but it was refused. He frankly conceded that, whilst he had no instructions to withdraw the asylum appeal, neither did he have any material to sustain it. However, he pursued his human rights appeal by reference to Articles 3 and 8 of the ECHR on the basis of the appellant’s mental health. The appeal on this ground failed, as it was bound to do at the time having regard to the paucity of medical evidence. On 4 July 2005, a Senior Immigration Judge of the Asylum and Immigration Tribunal granted the appellant leave to appeal to the Court of Appeal on the basis that it was arguable that the Immigration Judge on 6 June 2005 had erred by refusing an adjournment. On 3 October 2005 the Court of Appeal allowed the appeal by consent and remitted the matter to the AIT. In due course that gave rise to a hearing before a Designated Immigration Judge and an Immigration Judge on 28 July 2006 which resulted in a determination whereby the appellant’s appeal was dismissed on asylum and human rights grounds. It is common ground that the asylum claim is unsustainable. By the time of the hearing in July 2006, the central issue was that of suicide risk and Articles 3 and 8 of the ECHR. On 29 August 2006 a Senior Immigration Judge granted permission to the appellant to appeal to this Court. He said:

The Order granting permission is also endorsed by the Deputy President of the AIT with these words:

That deals with the procedural history in outline. That it is properly described as “unhappy” is plain to see. The unhappiness is compounded by another aspect of the case. At the hearing on 28 July 2006, the Secretary of State was still contending that the appellant is not from Burundi. The AIT rejected his contention and the Secretary of State does not seek to go behind that rejection. Thus, for the first time the national origin of the appellant is not now in issue. The irony is that if the appellant’s Burundian nationality had been accepted by the Secretary of State at the time of the appellant’s first application for international protection, the appellant would have been eligible for exceptional leave to remain on the basis of a policy of the Secretary of State applicable to Burundi nationals which was in place until October 2002. At that time, the mental health of the appellant was not as wretched as it has later come to be. I shall have to return to this aspect of the case.

The appellant left Burundi in the company of his mother in 1994 when he was aged 10 or 11. They feared persecution from the Tutsi who had murdered his Hutu father because they wanted to take his cattle. The appellant and his mother went to live in Congo Brazzaville and later in the Democratic Republic of Congo. In May 1996 the appellant’s mother disappeared during a massacre. He went to live with a person who was later to arrange his travel to this country. The appellant arrived here in October 2000. Since April 2004 he has been living with a partner who is a citizen of Cameroon. She had previously made an asylum application but it was unsuccessful. They have a daughter who was born on 19 September 2004. The objective evidence establishes that the civil war in Burundi has ended and that Hutus are not in general at real risk of persecutory treatment. The objective evidence is not favourable to the appellant’s asylum case or to his case on Article 3 to the extent that it relates to persecutory inhuman or degrading treatment.

The AIT noted the history of the appellant’s times in hospital under the Mental Health Act. He was detained from 30 March 2004 until 22 April 2004, from 27 April 2004 until 3 June 2004 and from sometime in May 2005 until 2 June 2005. The diagnosis is one of paranoid schizophrenia. At the time of the hearing on 28 July 2006, the most recent medical report was from Dr Tara Collinge, consultant psychiatrist, and was dated 23 June 2006. It was in the form of a brief letter which stated:

The AIT then referred to the following medical evidence:

In the context of Article 3, the AIT referred to N v Secretary of State for the Home Department[2005] UKHL 31; [2005] AC 296 and said:

The AIT then considered suicide risk in the context of Articles 3 and 8 and by reference to the decision of this Court in J v Secretary of State for the Home Department[2005] EWCA Civ 629. It observed the distinction between domestic and foreign cases and continued:

The conclusions of the AIT were expressed in these passages:

Finally the AIT considered Article 8. It acknowledged the family and private life between the appellant, his partner and their daughter and that his private life also encompasses his medical treatment. However, it concluded that it would be proportionate in the legitimate interest of maintaining proper immigration control for the appellant to be removed to Burundi because there were not “truly exceptional circumstances” as required by the decision of the Court of Appeal in Huang v Secretary of State for the Home Department[2005] EWCA Civ 105, [2006] QB 1.

On behalf of the appellant Mr Ronan Toal sought to advance four grounds of appeal. First, he submitted that the AIT had erred in law in its approach to Article 3 because it had made material findings that were not open to it or had misunderstood the evidence in such a way as to give rise to unfairness. Secondly, he submitted that the AIT had failed to determine whether there was a real risk that the appellant would commit suicide after his arrival in Burundi. Thirdly, he took issue with the proportionality finding in relation to Article 8 and was particularly critical of the finding that the appellant could and would live with his partner and child in Burundi. Soon after the hearing in this Court, the House of Lords handed down its decision in Huang. This led to our receiving further written submissions from both sides as to the implications of the decision of the House of Lords for the Article 8 issue in this appeal. Fourthly, and again in the context of the proportionality decision, it was submitted that the procedural and forensic history of this case and, in particular, the conduct of the defendant were not accorded due significance by the AIT. Before the hearing in this court, the appellant had permission to appeal by reference to the first and second of these grounds. It is appropriate that he also be granted permission in respect of the third. I now turn to consider the grounds of appeal.

Mr Toal advanced three criticisms of the way in which the AIT approached the evidence and made findings of fact. First, he took issue with the finding that the appellant “has not taken any steps to harm himself and we have not read any reports that he has harmed himself or has attempted to do so”. The finding was that, whilst there was evidence of suicidal ideation, it had not resulted in actual self harm or attempted suicide. The complaint is that this failed to take into account a Community Care Assessment Summary dated 11 May 2006. This was compiled by a social worker. It referred to the fact that the appellant had been admitted to hospital under section 3 of the Mental Health Act on several occasions. It added:

This document was before the AIT. On the face of it, it is inconsistent with the passage in the determination to which I have referred. Whilst the document cannot be characterised as a “medical report”, it emanated from a professional source directly involved with the appellant and there is no obvious reason why it should have been ignored.

The second complaint concerns the availability of specific medication in Burundi. The AIT interpreted the available material as meaning that “anti-depressant and anti-psychotic drugs were available in Burundi”. The material before it was in the form of a response to a request which had been processed through the Foreign & Commonwealth Office. The request asked:

It is common ground that this document does not support the finding that anti-psychotic drugs were available in Burundi. The submission of Mr Beal is that, whilst the AIT may have erred in fact as a result of their misunderstanding of the evidence, the error does not give rise to a material error of law.

The third complaint is about the finding that the appellant’s partner would assist him to make suitable arrangements for his return to Burundi and that “her evidence indicated that she would be prepared to go with him”. This finding is not easy to assess. I have set out the relevant passage in the determination in paragraph 10, above. It is difficult to reconcile the finding that “her evidence indicated that she would be prepared to go with him” with the passage earlier in the same paragraph:

In the event, the appellant’s health at the time of the hearing was the subject of the letter from Dr Collinge, written only shortly before the hearing, to the effect that his health had “significantly deteriorated” and that “hospitalisation may be inevitable”. Thus, Mr Toal submitted that the willingness of the appellant’s partner to go to Burundi was expressly stated to be conditional and, at the date of the hearing, there was no reason to believe that the condition would be fulfilled. On the other hand, Mr Beal contended that the Secretary of State would not attempt to remove the appellant unless and until his health improves and, at that time, the partner’s condition would be fulfilled. Moreover, the partner would have no right to remain in the United Kingdom following the removal of the appellant and, if forced to choose between Burundi and Cameroon, it is a reasonable assumption that she would prefer Burundi because she claims to fear persecution in Cameroon.

What is the consequence of all this? I see no reason to doubt that the Secretary of State would not remove the appellant unless and until his health were to improve. In these circumstances, I do not consider that any ambiguity in the passage of the determination dealing with the willingness of the appellant’s partner to accompany him to Burundi gives rise to an error of law. However, the other two complaints are, in my judgment, justified. Specific evidence of “several serious attempts to harm himself when unwell” appears to have been mistakenly ignored and the evidence about medication for the most serious of the appellant’s afflictions has been misunderstood. These were important issues and the findings in relation to them seem to have played a significant part in the reasoning of the AIT. I would characterise these two matters, taken together, as material mistakes of fact giving rise to unfairness in the determination. On this basis I find that the AIT fell into legal error on the basis described in E and R v Home Secretary[2004] EWCA Civ 49; [2004] QB 1044 and R(Iran) v Secretary of State for the Home Department[2005] EWCA Civ 982.

Mr Toal advanced two criticisms under this ground of appeal. The first is that, whilst the AIT correctly listed the three points in time at which the matter had to be considered – the communication of final decision to remove, the journey to Burundi and after arrival at Burundi – it proceeded to make findings only in relation to the first two and not in relation to the third, which was the most important. Whilst I accept that the drafting of the later paragraphs in the determination is not as clear as it might have been, I do not consider that it can be said that there was a failure to address the position that would arise in Burundi. It is implicit in the passages set out earlier in this judgment that the AIT considered that the appellant’s human rights would not be infringed at any of the three stages.

I therefore turn to the more difficult question of whether it fell into legal error when addressing the question whether, by returning the appellant to Burundi, the Secretary of State would be acting unlawfully by reference to Article 3. The leading domestic authority on suicide risk on return in the context of Article 3 is J v Secretary of State for the Home Department[2005] EWCA Civ 629, which is firmly founded on the Strasbourg jurisprudence, including Bensaid. Giving the judgment of the court, Dyson LJ said at paragraph 25:

Dyson LJ then amplified the test by identifying six relevant factors. For present purposes it is necessary to refer only to the sixth which is set out (in paragraph 31) in the following terms:

It was by reference to this consideration that the appellant in AJ(Liberia) v Secretary of State for the Home Department[2006] EWCA Civ 1736 succeeded in this Court and obtained an order for remittal to the AIT. Similarly, in the present case, it is submitted that the AIT did not give proper consideration to the question whether effective mechanisms to reduce the risk of suicide exist in Burundi. As Hughes LJ said in AJ(Liberia) (at paragraph 30)

The considerations that arise when addressing this issue in the context of suicide risk on return are very similar to those which arise in cases of grave physical illness of which N v Secretary of State for the Home Department[2005] UKHL 31, [2005] AC 296 is the leading domestic example. I tend to agree with the observation of Richards LJ in The Queen (Tozlukaya) v Secretary of State for the Home Department[2006] EWCA Civ 379, at paragraph 62, that the circumstances are not precisely analogous but the similarities are more important than the differences. Thus, as Ouseley J said when giving the decision of the Immigration Appeal Tribunal in AA(Algeria – Mental Health)[2005] UKIAT 00084, at paragraph 47:

The cases on “other illnesses” such as N show just how difficult it is for a claimant to surmount the high threshold. Nevertheless, it remains the case that a suicide risk case can in principle succeed. That means that in any particular case where the issue is raised, it is incumbent upon the AIT to apply the basic test and amplified factors as set out in J, above. A claimant will have to establish a causal link between return to his home country and the enhanced risk of suicide. And when considering that enhanced risk, the AIT will have to consider Dyson LJ’s sixth factor, namely the presence or absence of effective mechanisms to reduce the risk.

In my judgment, the determination in the present case is afflicted by material legal error because, notwithstanding the references to N and J, it is not apparent that the AIT addressed the issue of “effective mechanisms”, save to the extent that it concluded that the appellant’s partner would continue to be supportive of him. Moreover, the legal error that I identified in relation to the first ground of appeal, namely the misunderstanding of the evidence about anti-psychotic medication, also undermines the determination on the question of effective mechanisms to reduce the risk of suicide.

I do not underestimate the magnitude of the task that faces the appellant in the pursuit of his Article 3 claim. However, he is entitled to have it properly considered in a determination that is free from material legal error. Some cases which raise the issue of suicide risk are readily identifiable as hopeless. However, this appellant has been in receipt of expert medical and other professional care over a significant period of time and the material he is able to produce (not all of which I have referred to) puts him in a different category from some whose claims are vague and supported only by cursory expert opinions. I tend to agree with Mr Toal’s submission that the predicament of this appellant is significantly more serious than that in Bensaid (whose case failed in Strasbourg) and his current diagnosis and prognosis seem worse than that of AJ(Liberia) whose case was remitted to the AIT by reason of a failure properly to have considered the sixth of Dyson LJ’s factors.

For the reasons I have set out when considering the first and second grounds of appeal, I would allow this appeal and remit the matter to the AIT without expressing any final view on the ultimate merits. In these circumstances I can deal with the other grounds of appeal more briefly.

As I have recorded, the AIT disposed of the Article 8 aspect of the case quite briefly, deciding that, whilst Article 8 was engaged, the Secretary of State satisfied the proportionality test because there are no “truly exceptional circumstances”, using the language of the Court of Appeal in Huang, and that there are no insurmountable obstacles to return to Burundi where the appellant “could resume his family and private life … with his partner and child”. To the extent that the appeal by reference to Article 8 raises the question of the finding as to the likelihood that the appellant’s partner would return to Burundi with him, I have already dealt with this in the context of Article 3. To the extent that the Article 8 case is based on private life and suicide risk, much of what I have said in the context of Article 3 may be relevant. However, there then arises the problem which has caused some of the delay in producing this judgment, that is to say the decision of the House of Lords in Huang[2007] UKHL 11, which post-dated the hearing of this appeal and is the subject of subsequent written submissions. The House of Lords, in a composite opinion, stated (at paragraph 20):

Between March 2005 (when Huang was decided in the Court of Appeal) and March 2007 (when the decision of the House of Lords was promulgated) the Secretary of State and the AIT habitually applied a test of “truly exceptional circumstances”. In doing so in the present case it simply followed that pattern. In one sense, that was a legal error as the House of Lords has now established. At one stage, I was of the view that an analysis of the approach now stipulated by the House of Lords might be a necessary ingredient of this judgment. However, I have come to the conclusion that this is not the case in which to embark upon that interpretation. The appeal has succeeded on Article 3 and some of that success may be said to impact on the Article 8 case, in particular the misunderstanding by the AIT of the evidence. As this court, differently constituted, has addressed the subject in MT(Zimbabwe)[2007] EWCA Civ 455 and is to address it again shortly with the benefit of full submissions in AG(Eritrea), I do not think that it will assist to go into detail at this stage, particularly as we have not had oral submissions on the point. I simply record that on the remitted hearing Article 8 will be reconsidered by the AIT along with Article 3 and in accordance with the decision of the House of Lords in Huang.

The factual background to this part of the case is summarised in paragraph 4, above. Mr Toal submitted that the procedural and forensic history of the case and, in particular, the conduct of the Secretary of State were not accorded due significance by the AIT either in the context of proportionality or otherwise. As I understand it, this point was not taken as such before the AIT. Nor does the appellant have permission to appeal in relation to it. It would be difficult not to sympathise with the appellant about the history of the case and the change in policy. However, the appeal having succeeded here on grounds 1 and 2, with the result that there will be a remitted hearing in the AIT, it seems to me that the preferable course is not for this court to grant permission to appeal on this ground and to consider it substantively when it has not yet been considered by the AIT, but simply to enable the appellant to adduce evidence and make submissions about it at the remitted hearing (subject to the AIT permitting amendment of the grounds of appeal) . The point, difficult though it is, can then be properly considered by the expert tribunal, applying the principles expounded in Strbac v Secretary of State for the Home Department[2005] EWCA Civ 828 and HB(Ethiopia) v Secretary of State for the Home Department[2006] EWCA Civ 1713.

It follows from what I have said that, having identified material errors of law in the way in which the AIT considered the Article 3 claim, which may also impact on the Article 8 claim, I would allow this appeal and remit the case to the AIT for a full rehearing on reconsideration. Although I would not allow (or dismiss) the appeal by reference to the decision of the House of Lords in Huang or what I have called the procedural and forensic history, there is no reason why those matters should not be at large at the remitted hearing.

I agree.

I also agree.