The decision

Heard at: Field House

On: 24 June 2004

FK (Respondent’s notices – genocide survivors) Rwanda [2004] UKIAT 00185


Date Determination notified:

08 July 2004


Mr G Warr (Vice President)
Mrs L R Schmitt
Mr D R Bremmer JP


Secretary of State for the Home Department





1. The Secretary of State appeals the determination of an Adjudicator (Mrs S M Walker) who allowed on human rights grounds the appeal of a citizen of Rwanda (hereinafter for convenience referred to as the claimant) from the decision of the Secretary of State to refuse his application for asylum.

2. The Adjudicator dismissed the claimant's asylum appeal.

3. The Adjudicator's determination was promulgated on 1 October 2003.

4. The Secretary of State was represented before us by Mr M Davidson. Ms E Shaw (Turpin Miller & Higgins, Solicitors) appeared for the claimant.

5. The claimant is of Hutu ethnicity. His parents and siblings were massacred in 1994 by Tutsi forces in Kigali. The claimant went to Uganda but had to leave Uganda and arrived in the United Kingdom in September 2001 and made his application for asylum then.

6. The Adjudicator found the claimant to have given truthful evidence but concluded in the light of the objective material the claimant would not suffer persecution on return to Rwanda. The claimant had been away from Rwanda for nine years. The political party that his father had supported no longer existed. The claimant was a young man of twenty two when he had left Rwanda and he had never himself been active political. The Adjudicator considered the UNHCR position letter of a risk of false allegations in respect of genocide but concluded that the risk was unlikely. Thousands of refugees who had left Rwanda at the same time as the claimant had returned there. Merely being outside the country for a long time was not likely to cause the claimant to be at special risk, given the vast number of returnees who had returned and who were continuing to do so. There was no evidence to suggest that being a Hutu in itself or being absent from Rwanda for a long period of time would lead to persecution and accordingly the asylum appeal must fail.

7. Under the ECHR, the Adjudicator stated in paragraph 38 that, given his conclusions in respect of the asylum claim, any breach "would be in respect of the humanitarian and security situation in Rwanda." The claimant would be a genocide survivor. there was still nearly two hundred thousand families in adequate shelter. Paragraph 40 of the determination reads as follows:

"The appellant has no family left in Rwanda. He has no home to which to return. He has been out of the country for over 9 years. I find that to remove him to Rwanda would put him at serious risk of being unsettled or displaced and if that happens he will lack even the basic amenities. I find that such [sic] that the treatment he would receive would fall into the category of being inhuman and degrading."

8. The Secretary of State appealed, submitting that in reaching her conclusion the Adjudicator had applied too low a standard of proof and reference was made to the case of Soering. It was not detailed how the claimant, as a fit and healthy thirty one year old, would face a real risk of inhuman or degrading treatment. The Adjudicator's reasoning was not sufficiently indicated.

9. The Tribunal granted permission in a decision notified to the parties on 17 December 2003.

10. Ms Shaw requested the Tribunal to entertain a respondent's notice sent under cover of a letter dated 11 June 2004 and received by the Tribunal on 14 June 2004.

11. The Tribunal pointed out that many months had elapsed since the Tribunal had granted permission to the Secretary of State. Ms Shaw submitted that the special circumstances were that the claimant had only instructed the firm of solicitors in May 2004. The claimant had been represented before by the Refugee Legal Centre. Mr Davidson commented that the notice had been submitted extremely late. The special circumstances, in Ms Shaw's submission were that the Adjudicator had made fundamental errors and it was in the interest of justice to receive the notice out of time. She submitted the appeal should be remitted for a fresh hearing.

12. The Tribunal carefully considered the request to admit the respondent's notice. It is accepted, and rightly accepted that the notice is out of time. Rule 19 requires that a notice must be filed –

(a) within such period as the Tribunal may direct; or

(b) where the Tribunal makes no such direction, within ten days,

after the respondent is served with notice that the appellant has been granted permission to appeal.

13. As we have already observed, the parties were notified about the grant of permission on 17 December 2003 and the notice was not sent to the Tribunal until shortly before the hearing date and arrived on 14 June 2004.

14. The claimant was represented by extremely experienced representatives who are in receipt of public funds. The Refugee Legal Centre had the conduct of the matter and advised the Tribunal on 1 June 2004 that the claimant had instructed new solicitors.

15. We see nothing special or exceptional about the circumstances in this appeal. The claimant was properly represented by very experienced representatives until early June 2004. He then instructed fresh representatives. It was not until very shortly before the hearing date that the notice was served.

16. It would have been obvious to the representatives on receipt of the Adjudicator's determination on 1 October 2003 that the appeal had only been partly successful. It would have been open to the representatives, had they felt it appropriate, to lodge an appeal straight away against the dismissal of the asylum aspects.

17. Although we have considered the respondent's notice, we are not satisfied that viewed as a whole the Adjudicator's treatment of the asylum issues was not properly open to him. We see no reason to suppose that the claimant was not appropriately advised by her previous representatives. There has been a very long delay in the case as we have mentioned. The rules make it clear that a time period applies and this has been greatly exceeded. Looking at the matter in the round, the Tribunal declined to entertain the notice out of time.

18. On the Article 3 issue, Mr Davidson submitted that the threshold was a high one. Refugees continued to return from Rwanda as appeared from the Home Office Country Assessment. Reference was made to the case of N (Burundi) [2003] UKIAT 00065.

19. Ms Shaw submitted that the Adjudicator's findings should be upheld notwithstanding that the claimant feared non-deliberate harm. Non-deliberate harm could occasion Article 3 although there was jurisprudence on the question of medical issues. The Adjudicator had referred to Ireland v United Kingdom [1978] 2EHRR25 in paragraph 41 of her determination. She had properly directed herself on the question of inhuman and degrading treatment. Although the determination might be described as a confident one it was properly open to the Adjudicator to find as she did. The absence of medical care could amount to inhuman or degrading treatment. The case of N (Burundi) was not a starred determination. The amount of returnees returning to Rwanda were creating humanitarian problems. The claimant would have no family support in Rwanda and he had been out of the country for ten years.

20. At the conclusion of the submission we reserved our determination.

21. The claimant is a fit thirty one year old with no apparent health problems. Returning refugees are referred to in paragraphs 6.79 to 6.84 of the Home Office Country Assessment for October 2003. As is common ground, there are large numbers of returning refugees to Rwanda. For example, according to the UNHCR, some thirteen thousand Rwandan citizens returned to the country from the DRC during the first nine months of 2002. Some twenty four thousand Rwandan refugees were voluntarily repatriated from Tanzania. The government had made a concerted effort during 2002 to encourage repatriation of Rwandan refugees throughout the region particularly in Tanzania.

22. Transit centres were established in 2001 to issue new returnees with basic items and identity cards. Relatively few reports of threats or harassment against returnees were received during 2001. A tripartite agreement was signed in January 2003 facilitating the return of refugees. A further agreement was signed in July 2003 concerning the voluntary repatriation of some twenty six thousand Rwandans in Uganda. Some Rwandan refugees voluntarily returned home from neighbouring DRC it was reported in August 2003.

23. The issue of genocide survivors is set out in paragraphs 6.113ff of the assessment. It is reported that the main problems faced by the survivors of genocide is that sometimes they have to live near those who have participated in the genocide who are returning from prison or from exile. It has to be borne in mind that the claimant has been outside the country for some ten years. Among the documents in the claimant's bundle that was sent in late in the day is a letter from the UNHCR dated 16 September 2003. This refers to the fact that the vast majority of Rwandans had voluntarily returned home since the genocide. During 2001 UNHCR had facilitated the voluntary repatriation of over twenty thousand refugees from the DRC and from Tanzania. We note that UNHCR was of the opinion that the question of the return of unsuccessful asylum seekers should be approached with caution particularly in respect of persons originating from the north western and south western parts of the country where sporadic rebel attacks still occur. The UNHCR recommended that before deciding on return states should give due regard to the particular circumstances of each individual case, area of origin, educational level, age, gender, health etc., to determine if any of these persons should be allowed to remain on their territory on humanitarian grounds. We were not specifically referred to any documents in the claimant's bundle by Ms Shaw. Some of the documents date back to 2001. We note that the claimant has training to drive forklift trucks and other vehicles and has worked to a good standard with his company.

24. The Adjudicator dismissed the claimant's asylum appeal. He found that he was at serious risk of being unsettled or displaced. If that occurred, the claimant would lack even the basic amenities.

25. We do consider that having regard to the authorities, in particular the authorities mentioned in the case of N (Burundi) that the Article 3 threshold is a high threshold – see for example SK [2002] UKIAT 05613 which is referred to at paragraph 6 of N and Fazilat [2002] UKIAT 000973. Ms Shaw referred us to no authority indicating to the contrary. Reference may be made to the recent decision of the House of Lords in Razgar [2004] UKHL27 – see the opinion of Lord Bingham, for example, at paragraph 4 where reference is made to the admissibility decision of the Strasbourg Court in Henao v Netherlands – the case illustrated "the stringency of the test applied by the Court when reliance is placed on Article 3 to resist a removal decision."

26. We appreciate that the claimant will face hardship and difficulties in Rwanda. However, we find that the Adjudicator erred in concluding that the risk of unsettlement or displacement to which she refers would lead to a level of inhuman or degrading treatment which would reach the high threshold required to breach Article 3. As we have observed, the claimant is a fit thirty one year old who is able to hold down a job. He is not a vulnerable individual. We take into account the UNHCR position paper to which we have made reference. We were not directed by Ms Shaw to any material that would indicate that the claimant would face inhuman or degrading treatment on return to Rwanda. Although the case of N (Burundi) is not a starred decision, we see no reason why it should not be applied in the circumstances of Rwanda.

27. For the reasons we have given, the Adjudicator erred in allowing the appeal under Article 3. The Secretary of State's appeal is accordingly allowed and the decision of the Adjudicator on Article 3 is reversed.

G Warr
Vice President

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