[2003] UKIAT 199
- Case title: P (Risk, Failed asylum seekers)
- Appellant name: P
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Cameroon
- Judges: Ms D K Gill, Mr P Burns, Dr A U Chaudhry
- Keywords Risk, Failed asylum seekers
The decision
IN THE IMMIGRATION APPEAL TRIBUNAL
Heard at:
Field House
Decision number:
_P (Risk - Failed Asylum Seekers) Cameroon [2003] UKIAT 00199
Heard on:
18th August 2003
Date typed:
19th August 2003
Date promulgated:
29th August 2003
The IMMIGRATION ACTS
Before:
MS. D. K. GILL (CHAIRMAN)
MR. P D BURNS
DR A U CHAUDHRY
Between:
The Secretary of State for the Home Department
Appellant
And
Respondent
DETERMINATION AND REASONS
Representation:
For the Secretary of State: Mr. A. Sheik, Senior Home Office Presenting Officer.
For the Respondent: Mr. N. Armstrong, of Counsel, instructed by Elder Rahimi Solicitors.
1. The Secretary of State has appealed, with leave, against the determination of Mrs. H S Coleman, an Adjudicator, who (following a hearing on 26th November 2002 at Taylor House) allowed the appeal of Mr. P (a national of Cameroon, aged about 31 years, who we shall hereafter refer to as the Claimant) on human rights grounds (Article 3) against the Secretary of State’s decision of 21st December 2001 to give directions for his removal as an illegal entrant.
2. The Claimant’s asylum claim was certified by the Secretary of State under paragraph 9(3)(a) of Schedule 4 of the 1999 Act. The Adjudicator (who we shall hereafter refer to as the Second Adjudicator) did not agree with the opinion expressed in the certificate.
3. The Second Adjudicator dismissed the appeal on asylum grounds because she found that there was no applicable Refugee Convention reason. She allowed the appeal on Article 3 grounds for two (unrelated) reasons:
(i) that he would be detained on arrival in Cameroon and would then be subjected to a inhuman or degrading treatment; and,
(ii) because she accepted the medical evidence that the Claimant “would be a very high suicide risk” if he is returned to Cameroon and “could suffer severe personality deterioration”. She considered that this was not a question of whether any pre-existing condition could be treated but whether his mental health would be adversely affected simply by returning him to Cameroon. She found that the latter was the case and that exposing him to the possibility of mental breakdown was of itself cruel, inhuman or degrading.
4. The Claimant first arrived in the United Kingdom on 27th November 1996 and claimed asylum. His claim was refused and he appealed against that refusal. His appeal was heard on 5th May 1999 and was dismissed. The Adjudicator who heard this appeal (the First Adjudicator) did not find the Claimant credible.
5. On 9th October 2000, he was forcibly removed from the United Kingdom and returned to Cameroon. He then returned to the United Kingdom on 12th October 2001 and did not claim asylum until 14th December 2001. He was interviewed on 18th December 2001. He claimed that, on his return to Cameroon, he was escorted by United Kingdom immigration officials who told the authorities that he was a failed asylum seeker from the United Kingdom. He claimed that he was then arrested on arrival at the airport and detained. He was first detained at the airport and tortured and then transferred to New Bell Prison in Douala. He was again ill-treated and tortured. He was released on 9th December 2000 and then had to go to hospital for a period. He then joined the SCNC and started going to their meetings. He attended a demonstration with the SCNC on 1st October 2001. That demonstration was violently broken up by the police. He escaped from that demonstration and went into hiding. He then flew from Douala airport to come to the United Kingdom.
6. We summarise the Second Adjudicator's assessment of credibility and her approach to assessing the risk on return at paragraphs 12.4 to 12.7 below.
7. The grounds of application for leave to appeal to the Tribunal assert:
Ground 1: that the Second Adjudicator had erred in her assessment of the objective evidence submitted which detailed the adverse treatment that failed asylum seekers are likely to receive on return. Reliance was placed on paragraph 5.35 of the CIPU report.
Ground 2: that there is no evidence that the harsh prison conditions in Cameroon are such that the high threshold required for a breach of Article 3 would be reached.
Ground 3: that the Second Adjudicator erred in allowing the appeal under Article 3 due to the Claimant’s psychological condition, for the reasons given in sub-paragraphs i. and ii of paragraph 3 of the grounds.
8.1 At the hearing before us, Mr. Sheik began his submissions by expanding on the grounds of application. When it was pointed out to him by the bench that there was no challenge in the grounds of application to the Second Adjudicator's assessment of credibility and, in particular, to her finding that he had been detained on being returned to Cameroon and that his past history was probative of future risk, Mr. Sheik contended that Ground 1 was in fact a challenge to these findings. We were not in agreement, as we were of the view that a common-sense reading of Ground 1 shows clearly that the challenge was in relation to the assessment of the risk on return based on the objective evidence, and not a challenge on the findings upon which the risk on return was assessed by the Second Adjudicator. Furthermore, our view of the inference to be drawn from Ground 1 was supported by the fact that, at no stage up until the hearing before us had the Secretary of State challenged the Claimant’s claim that he had been detained on arrival in Cameroon. Indeed, the Secretary of State had only noted (in the refusal letter and the letter dated 11th March 2002 referred to below) that he did not condone violations of human rights on the part of the security forces in Cameroon.
8.2 Mr. Sheik then sought to vary the grounds of appeal and to challenge the Second Adjudicator's acceptance of the Claimant’s detention on arrival in Cameroon. Mr. Armstrong strongly objected to leave being granted for the grounds to be varied. We noted that the application to vary the grounds of appeal was made at a very late, after the hearing had already commenced and, even then, only in response to a reminder by the bench that the Secretary of State had not challenged the finding at paragraph 28 of the Determination. Furthermore, as Mr. Armstrong noted, the refusal letter dated 21st December 2001 does not challenge the Claimant’s claim that he was arrested and detained on arrival in Cameroon. Neither does the letter dated 11th March 2002 from the Immigration and Nationality Directorate to the Claimant’s solicitors. In both this letter and the refusal letter, the Secretary of State merely states that he does not condone any violations of human rights which may have been committed by the security forces in Cameroon and that he considers that these actions arise from failures of discipline and supervision rather than from any concerted policy on the part of Cameroonian authorities. In fairness to Mr. Sheik, he did not have the Home Office file on this appeal at the hearing. However, after he had had an opportunity to read the letter dated 11th March 2002, he withdrew his application to vary the grounds of appeal.
9.1 Mr. Sheik submitted that Ground 2 was academic, if the Tribunal were to agree with the Secretary of State on Ground 1. In other words, if we considered that the Claimant was not at risk of being detained on arrival in Cameroon, then the evidence as to the prison conditions in Cameroon becomes irrelevant.
9.2 In relation to Ground 1 of the grounds of application, Mr. Sheik relied on paragraph 5.35 of the CIPU report (quoted at paragraph 7 above). The source for this information was the Danish fact-finding report of 2001. That document was in the Claimant’s bundle at pages 251 and 252 and referred to by the Second Adjudicator. There are different views on the subject of the risk on return to Cameroon . Mr. Sheik submitted that it was speculative to suggest that the Claimant would be forcibly deported and escorted. He could depart voluntarily. In any event, even if he was forcibly deported, his records would show that he had been previously arrested on being deported as a failed asylum seeker and that he was released without charge. The Second Adjudicator did not accept that the Cameroonian authorities had any knowledge of his political involvement (which she described as “tangential involvement in some political activity”). In Mr. Sheik’s submission, there was no real risk that, on the facts as found in the Claimant’s case, he would be seen as anything other than someone who had simply sought to better his economic position by applying for asylum abroad. This was especially the case, given that he had claimed asylum twice. The Claimant is not a wanted person and therefore the fourth paragraph of Section 8.1.2 of the Danish Fact-finding report does not apply to him.
9.3 With regard to the second ground on which the Second Adjudicator had allowed the Article 3 claim (that is, on medical grounds), Mr. Sheik referred us to paragraph 30 of the Determination in which the Second Adjudicator had stated that there was no evidence of medical facilities being available in Cameroon. However, paragraphs 4.24 to 4.27 of the CIPU Extended Bulletin dated November 2002 deal with medical services. Paragraph 4.24 shows that there is a wealth of hospitals and medical centres in Cameroon. It could not therefore be said that there were no facilities, although it is true that paragraph 4.24 does not make a specific mention of psychiatric services or facilities. The Article 3 claim on medical grounds needs to be determined in the light of the judgement of the European Court of Human Rights (ECtHR) in Bensaid v. The United Kingdom [2002[ INLR 325, in particular, paragraph 40 of that judgement. The condition of the claimant in that case was more serious (he was a schizophrenic) and therefore the consequences of his removal on his health would have been more serious that someone who (as in the case of the Claimant) is suffering from Post-Traumatic Stress Disorder (PTSD).
9.4 Mr. Sheik asked us to allow the appeal outright.
9.5 Mr. Armstrong referred us to Section 8.1.2 of the Danish Fact-Finding Report. The objective evidence as to what happens to a returnee is conflicting, as the Second Adjudicator had noted. At paragraph 22 of the Determination, the Second Adjudicator had set out the contents of the CIPU report and Section 8.1.2 of the Danish Fact-Finding Report. She carefully considered the conflict in the objective evidence. There was nothing to suggest that her conclusions were plainly wrong or perverse. She came to the conclusion that the Claimant would be at risk of being detained on arrival in Cameroon because it had happened before. That finding is one which she was entitled to reach. With regard to the assertion that the Claimant could depart voluntarily, Mr. Armstrong was not able to say whether the Claimant would depart voluntarily. However, the notice of the Secretary of State’s decision states that directions for the Claimant’s removal had been given. He was forcibly returned to Cameroon previously.
9.6 With regard to the Article 3 claim on medical grounds, Mr. Armstrong referred us to a statement dated 22nd November 2002 from a Ms. Annette Elder, partner in Elder Rahimi, who represent the Claimant. This statement was before the Second Adjudicator. Ms. Elder states in her statement that, despite having made attempts to obtain information about the medical services in Cameroon, she could not obtain any, save for the evidence at page 199 of the Claimant’s bundle. This was the only piece of evidence which was before the Second Adjudicator, although the Second Adjudicator had not specifically referred to it. The Second Adjudicator's finding that there was no evidence of medical facilities being available in Cameroon was not plainly wrong or perverse. In considering whether the consequences of removal on the Claimant’s condition would reach the high Article 3 threshold, Mr. Armstrong referred us to the fact that the evidence before the Second Adjudicator was that the Claimant was a suicide risk. He is still receiving counselling and taking drugs, as had been recommended by Mr. Hughes. Page 222 of the Claimant’s bundle sets out the prognosis. Pursuant to the judgement of the Court of Appeal in Soumahoro, Nadarajah and Razgar [2003] EWCA Civ 840, the Article 3 and Article 8 claims need to be assessed following a step by step approach. Mr. Hughes states that the Claimant is struggling to copes in the United Kingdom anyway. The key point about Bensaid is that the claimant in that case was a schizophrenic and was going to suffer a relapse wherever he was. Accordingly, removal was not going to make a difference in his case to his condition. That is not the situation in the appeal before us. In the event that we were not with him on Article 3, Mr. Armstrong asked us to remit the appeal for the Article 8 claim to be considered on medical grounds. Mr. Armstrong confirmed that there was no medical evidence before the court that the Claimant was receiving counselling and taking medication. The only evidence on this point was the Claimant’s oral evidence before the Second Adjudicator.
9.7 In reply, Mr. Sheik asked us to note the lack of any medical evidence that the Claimant is receiving counselling and taking medication.
10. We reserved our determination.
11. We have decided to dismiss the Secretary of State’s appeal. We now give our reasons.
12.1 We must proceed on the basis of accepting the Second Adjudicator's assessment of the Claimant’s credibility and on the basis of her findings of fact as to the Claimant’s history are not before us (see paragraphs 8.1 and 8.2 above).
12.2 We do, however, need to set out in some detail, the Second Adjudicator's approach to the hearing (as disclosed by the Determination) and her assessment of credibility since this is the only way of placing into its proper context her finding as to the risk on return.
12.3 There was no Presenting Officer before the Second Adjudicator. She quite properly pointed out to Mr. Armstrong (who appeared before her) that she had concerns about the Claimant’s credibility (paragraph 10 of the Determination). She noted the Determination of the First Adjudicator (paragraph 6 of the Determination) and the medical and other documentary evidence which was before her (paragraphs 12 and 13 of the Determination). At paragraph 16 of the Determination, she stated that Mr. Armstrong was correct to say there are problems with the assessment of credibility in this case.
12.4 The Determination of the Second Adjudicator shows that she very carefully assessed the Claimant’s credibility. We noted that:
(i) She began at paragraph 16 of the Determination by saying that there were at least three major problems with the evidence which had never been successfully explained. She then dealt with her concerns about credibility at paragraphs 16, 17, 18 and 19.
(ii) She then stated that there were, however, “strong indicators in favour of the Claimant and some of his account” (paragraph 20 of the Determination). She went on to deal with these, in paragraphs 20, 21 and 22.
(iii) These “strong factors” included the medical evidence which was before her and the objective evidence as to the fate of returned asylum seekers. At paragraph 21 of the Determination, she stated that she could not ignore the medical evidence which was before her. She considered that there was some support for the Claimant’s claim that he was arrested when he was returned to Cameroon in October 2000 (paragraph 22 of the Determination). In this connection, she noted paragraph 5.36 of the CIPU report and Section 8.1.2 of the Danish Immigration Report.
(iv) At paragraph 23, she stated that she balanced all the evidence and considerations together. Even taking into account the Claimant’s depressed state and diagnosis of PTSD, she did not find that his excuses and explanations for the very major discrepancies over his early detentions had been satisfactorily explained. She considered that the discrepancies were so great that it seemed impossible for him to have given lucid information in some aspects of his claim if he was so mistaken in others. She stated that she was not necessarily saying that he was lying but that, at best, his evidence was so unsatisfactory that it could not be accepted as evidence even at a lower standard.
12.5 The Second Adjudicator then made her findings of fact, beginning at paragraph 24. She accepted that there was a reasonable likelihood that he was arrested and detained in the 1990s as claimed. She considered that the medical evidence before her “very strongly pointed to some traumatic incident” having occurred to the Claimant after his return to Cameroon. On this basis, she made the following findings of fact:
(a) she gave some credence to the Claimant’s claim that he was politically active and involved with the SCNC. She did not give credence to the claim that he was strongly involved with any of the groups.
(b) she did not accept the Claimant’s evidence of his detentions in 1993 or 1996.
(c) she accepted that, on being returned to Cameroon, the Claimant was arrested by Cameroonian officials at the airport and held and ill-treated as claimed. She also accepted that he was subjected to a male rape in prison by one of the prisoners.
(d) she gave some credence to the Claimant’s claim that he may have been involved in the demonstrations on 1st October 2001. However, she did not accept his evidence that he was actively sought by the authorities after the demonstration.
12.6 The Second Adjudicator then considered whether the Claimant had a current well-founded fear of persecution for a Refugee Convention reason. She had earlier made a finding that the Claimant was arrested in the past when he was returned as a failed asylum seeker. She considered that past persecution must be probative of future persecution. She therefore accepted that it is reasonably likely that he could be detained in the future. However, she did not accept that this would be for political reasons. Although she accepted that the Claimant may have been tangentially involved in some political activity in Cameroon, there was no evidence that Cameroonian authorities were aware of this or were targeting him for it. She found that there was no Refugee Convention reason and, accordingly, that his asylum claim must fail (paragraph 27 of the Determination).
12.7 The Second Adjudicator then considered the Article 3 claim on the first ground (paragraph 3 (i) above). She again reiterated that she found that his past history was probative of future risk. Furthermore, she noted that those detained were at high risk of ill-treatment (paragraph 28 of the Determination) and that prison conditions are dire (paragraph 29 of the Determination). At the end of paragraph 29, she stated: “In the light of such evidence it is clear that if the [Claimant] were likely to be detained as before he would face a high risk of inhuman or degrading treatment contrary to Article 3”. She therefore found that the Claimant had established that his return to Cameroon would be in breach of Article 3.
13.1 We now turn to consider the challenge to the Second Adjudicator's assessment of the risk on return.
13.2 We first deal with the objective evidence as to the treatment of returned failed asylum seekers. Ground 1 of the grounds of application relies on paragraph 5.35 of the CIPU report. This states:
“Cameroonian authorities are not informed when a failed asylum seeker is returned to Cameroon and such individuals are not routinely stopped, detained and questioned. There is no legislation in Cameroon which provides for the prosecution of individuals seeking asylum abroad even if the authorities were informed of the names of every returning failed asylum seeker”.
13.3 The source for this (according to footnote 20 of the CIPU report) is the Danish Fact-finding report relating to a mission to Cameroon in January / February 2001. The full version of this report is to be found in the Claimant’s bundle. The relevant section is Section 8.1.2, which the Second Adjudicator referred to in the Determination. It is apparent, from the full version of Section 8.1.2 of the report, that what is quoted in paragraph 5.35 of the CIPU Report is not a true representation of Section 8.1.2. As we have said above, Section 8.1.2 of the Danish report sets out differing views as to what happens to returned failed asylum seekers. In summary, these appear to be:
(i) (first paragraph of Section 8.1.2) According to one western diplomatic source, a rejected asylum seeker forcibly returned to Cameroon would not be at risk. He did not know of cases where a returned rejected asylum applicant had had problems with the authorities as a result of being deported. He pointed out that the authorities were not informed that people were rejected asylum applicants.
We emphasise this last sentence. It would seem to us that whether or not Cameroonian authorities are informed that people forcibly deported were rejected asylum seekers would depend largely on whether the authorities of the deporting country inform Cameroonian authorities of this fact.
(ii) Mr. Gemu Akuchu (Executive Secretary, National Commission on Human Rights and Freedoms) confirmed that rejected asylum seekers who returned to Cameroon voluntarily were not at risk of being detained by the police on their return (second paragraph of Section 8.1.2).
Mr. Akuchu’s opinion as to what happens in the case of a person forcibly deported and escorted is set out in the third and seventh paragraphs of Section 8.1.2. It would appear, from these two paragraphs, that, according to Mr. Akuchu, if a rejected asylum seeker is escorted by policemen dressed in civilian clothes as though they were travelling with any other person and if Cameroonian authorities are not informed that the individual is a rejected asylum seeker, then the individual would not experience any problems. However, if the individual is deported in handcuffs and accompanied by foreign policemen in uniform who hand him over to Cameroonian authorities, then the individual risked detention by the police. This would be to investigate his background. If Cameroonian authorities were aware that he had sought asylum abroad he would be suspected of having discredited Cameroon. If the authorities merely found that he had sought asylum for economic reasons, he would be released. The report states that the editor of the Messenger believed that asylum applications abroad were seen as damaging Cameroon’s image.
(iii) Mr. T. Asonganyi (Secretary General, Social Democratic Front) reported that if the authorities knew that someone was a rejected asylum applicant they would arrest him as, by applying for asylum, he would be suspected of harming Cameroon’s reputation abroad. He would also risk being ill-treated or even tortured (sixth paragraph of Section 8.1.2).
We considered that this was consistent with the opinion of Mr. Akuchu.
(iv) Another western diplomatic source stated that his country had known a number of cases of rejected Cameroonian asylum applicants marrying nationals whilst their asylum claims were pending, then returning voluntarily to Cameroon to wait for family reunification from there under existing rules. The source saw this as a sign that rejected Cameroonian asylum applicants were not persecuted when they returned home. The source added that rejected asylum applicants were not known to be such in Cameroon. Cameroonian authorities would not be able to tell whether deported Cameroonians were rejected asylum applicants or had, for example, been deported because their visas had expired (ninth paragraph of Section 8.1.2)
We considered that this was in line with Mr. Akuchu’s opinion and that there was nothing in the statements attributed to this source which contradicts or is inconsistent with Mr. Akuchu's opinion.
(v) Another western diplomatic source reported that last year one European country returned nearly 200 people to Cameroon. They were escorted by police, and none of them had reported problems of a political nature in Cameroon. Some were rejected asylum applicants and others had committed other minor crimes (tenth paragraph of Section 8.1.2).
We noted that this does not say whether the escorting police were uniformed or in civilian clothes and whether the deportees were handed over to Cameroonian authorities.
(vi) We have noted that the eighth paragraph of Section 8.1.2 states:
“None of the western diplomatic sources consulted by the delegation were aware of any cases in which the return of rejected asylum applicants had led to serious problems for those involved. Several sources stated that no such cases had been reported by Amnesty International or by human rights organisations in the relevant western countries. They took this as a sign that there were no cases of rejected asylum applicants having problems with Cameroonian authorities because of their asylum applicants.”
However, there is no indication in this paragraph as to whether the observations of these sources were in relation to all rejected asylum seekers, whether they were forcibly deported and escorted by uniformed policemen and then handed over to Cameroonian authorities) or whether they were escorted by policemen in civilian clothes or whether they voluntarily returned to Cameroon.
We have to weigh this information against the fact that:
(a) we do not know whether the opinion of the western diplomatic source referred to in (i) above was based on those cases where Cameroonian authorities are not informed that the deportees were rejected asylum applicants. We say this because he specifically pointed out that Cameroon authorities are not informed that people were rejected asylum applicants.
(b) there are two sources (Mr. Akuchu and Mr. Asonganyi) who both refer to problems if the Cameroonian authorities know that a person is a rejected asylum seeker.
13.4 On the objective evidence before us, we conclude that:
(a) rejected asylum applicants who voluntarily return to Cameroon are not at real risk of being detained on arrival or receiving serious harm (a term which we use to mean treatment amounting to persecution or in breach of Article 3).
(b) rejected asylum seekers who are forcibly deported but not escorted to Cameroon or who are escorted by officials in civilian clothes would not face a real risk of being detained on arrival or receiving serious harm, provided that the Cameroon authorities are not informed that they are rejected asylum seekers.
(c) if a rejected asylum seeker is escorted by police to Cameroon and the Cameroonian authorities are informed that the person is a rejected asylum seeker, such a person is at real risk of being detained.
This does not, however, mean that the individual would be subjected to treatment amounting to serious harm. In this connection, we noted that Mr. Akuchu’s opinion is that the detention by Cameroonian police would be to investigate the deportee’s background, that if Cameroonian authorities were aware that he had sought asylum abroad he would be suspected of having discredited Cameroon but if the authorities merely found that he had sought asylum for economic reasons, he would be released.
The fourth paragraph of Section 8.1.2 refers to the detention of a returning Cameroonian who was on a list of wanted persons. He was released after 12 hours. This paragraph also states that such detentions are short, usually a day or half a day. On the other hand, there is evidence (paragraphs 5.1 to 5.6 of the CIPU report) that the government’s human rights record is generally poor, that government officials have committed numerous human rights abuses, that security forces arrest and arbitrarily detain various opposition politicians, local human rights monitors and other citizens, holding them for prolonged periods, often without chance for trail, and at times, incommunicado.
We therefore concluded that whether an individual falling within this category (c) would be at real risk of serious harm on return to Cameroon would be a question of fact in each case. Rejected asylum seekers are not, simply on account of being rejected asylum seekers, at real risk of serious harm on return to Cameroon.
13.5 The Claimant’s claim that he was escorted to Cameroon and handed over by the United Kingdom immigration officials who told Cameroonian authorities that he was a failed asylum seeker from the United Kingdom has never been challenged by the Secretary of State, despite the fact that the Claimant mentioned this at his interview in December 2001. This is important. His claim that he was then detained is consistent with the objective evidence. However, his claim that he was arrested, tortured and detained for a period of 2 months (from 9th October 2000 to 9th December 2000) is not consistent with the objective evidence, bearing in mind that, according to the Second Adjudicator's finding, his political activity in Cameroon was at best tangential and that there was no evidence that Cameroonian authorities were aware of his political involvement or were targeting him for it. His claim that he was detained for two months and tortured is therefore not credible. However, it is not open to us to re-open the Second Adjudicator's finding that the Claimant was detained for two months on arrival in Cameroon, for the reasons we have given in paragraphs 8.1 and 8.2 above. We are therefore (in a manner of speaking) “stuck” with the Second Adjudicator's finding that he was detained for two months and ill-treated as claimed. This is an important point to bear in mind because the outcome of the appeal to the Tribunal may well have been different.
13.6 Mr. Sheik submitted that there was no reason to suppose that the Claimant would be forcibly removed and that he could voluntarily depart. However, the fact is that the Claimant was forcibly removed on the last occasion and did not voluntarily depart. There is no basis for the Tribunal to suppose (or the Second Adjudicator to have supposed) that he would not be forcibly removed again (particularly as, this time, he would be someone who had entered the United Kingdom twice and claimed asylum) or that he would voluntarily depart. Whilst we do not know whether any escorts would inform the Cameroonian authorities that he was a failed asylum seeker, we do know (from the fourth paragraph of Section 8.1.2 of the Danish Report) that the Cameroonian airport police appear to have a list of wanted persons. Whether such a list would be extensive enough to include persons previously detained on arrival in Cameroon is something we do not know. If such a list does include these persons, we do not know whether the information would include information that the person was previously released without charge. Against these unknown factors, we have to weigh in the fact that this particular Claimant is someone who has been found to have been detained on arrival, tortured and held for two months. We consider that the Second Adjudicator was perfectly entitled to find that his past history is probative of future risk. Her finding, in these circumstances, that he was at real risk of receiving treatment amounting to serious harm cannot be said to be plainly wrong or perverse. Mr. Sheik submitted that the fact that the Claimant would be arriving in Cameroon as someone who had claimed asylum abroad twice means that he is someone who would be seen as an economic migrant. There is no reason to suppose this. It would be pure speculation to make such an assumption. The second attempt to claim asylum may equally be seen as indicative of a person who had some real reason to fear the Cameroonian authorities.
14. We would stress that our assessment in paragraph 13.6 above should not be seen as setting some general principles for the determination of the risk on return for failed asylum seekers from Cameroon. As we have stated above, we are constrained in this case by the fact that the Second Adjudicator's finding as to the Claimant’s claimed detention in 2000 is not before us, and that there is no challenge to the Second Adjudicator's finding that his past history is probative of future risk. This case therefore turns on its own particular facts, as found by the Second Adjudicator.
15. For all of the above reasons, we must dismiss the Secretary of State’s appeal.
15. For all of the above reasons, we are satisfied that the Adjudicator’s credibility findings were open to her on the evidence which was before her. Her finding that the Claimant would be at risk of inhuman or degrading treatment on return to Cameroon (paragraph 28 of the Determination) was not plainly wrong, on the evidence which was before her. Her finding that if were likely to be detained as before, he would face a high risk of cruel, inhuman or degrading treatment contrary to Article 3 (paragraph 29 of the Determination) was one which was open to her. There is no error in her approach to assessing the risk on return. We are of the opinion that this is not an appropriate case for the Tribunal to interfere.
16. Given our conclusion above, it is strictly speaking not necessary for us to consider whether the Second Adjudicator was right to allow the Article 3 claim on the second ground mentioned in paragraph 3 above. We would however say that we considered that the medical evidence before the Second Adjudicator as to the risk of suicide was speculative. Furthermore, whilst the medical opinion is that the Claimant “could suffer severe personality deterioration”, this is not sufficient to sustain the Second Adjudicator’s finding that the act of removal would be in breach of his Article 3 rights, given the high threshold to be reached for Article 3 cases.
17. For all of these reasons, the appeal is dismissed.
Decision
The appeal of the Secretary of State is DISMISSED.
Ms. D. K. GILL
Vice President Date: 19th August 2003
Heard at:
Field House
Decision number:
_P (Risk - Failed Asylum Seekers) Cameroon [2003] UKIAT 00199
Heard on:
18th August 2003
Date typed:
19th August 2003
Date promulgated:
29th August 2003
The IMMIGRATION ACTS
Before:
MS. D. K. GILL (CHAIRMAN)
MR. P D BURNS
DR A U CHAUDHRY
Between:
The Secretary of State for the Home Department
Appellant
And
Respondent
DETERMINATION AND REASONS
Representation:
For the Secretary of State: Mr. A. Sheik, Senior Home Office Presenting Officer.
For the Respondent: Mr. N. Armstrong, of Counsel, instructed by Elder Rahimi Solicitors.
1. The Secretary of State has appealed, with leave, against the determination of Mrs. H S Coleman, an Adjudicator, who (following a hearing on 26th November 2002 at Taylor House) allowed the appeal of Mr. P (a national of Cameroon, aged about 31 years, who we shall hereafter refer to as the Claimant) on human rights grounds (Article 3) against the Secretary of State’s decision of 21st December 2001 to give directions for his removal as an illegal entrant.
2. The Claimant’s asylum claim was certified by the Secretary of State under paragraph 9(3)(a) of Schedule 4 of the 1999 Act. The Adjudicator (who we shall hereafter refer to as the Second Adjudicator) did not agree with the opinion expressed in the certificate.
3. The Second Adjudicator dismissed the appeal on asylum grounds because she found that there was no applicable Refugee Convention reason. She allowed the appeal on Article 3 grounds for two (unrelated) reasons:
(i) that he would be detained on arrival in Cameroon and would then be subjected to a inhuman or degrading treatment; and,
(ii) because she accepted the medical evidence that the Claimant “would be a very high suicide risk” if he is returned to Cameroon and “could suffer severe personality deterioration”. She considered that this was not a question of whether any pre-existing condition could be treated but whether his mental health would be adversely affected simply by returning him to Cameroon. She found that the latter was the case and that exposing him to the possibility of mental breakdown was of itself cruel, inhuman or degrading.
4. The Claimant first arrived in the United Kingdom on 27th November 1996 and claimed asylum. His claim was refused and he appealed against that refusal. His appeal was heard on 5th May 1999 and was dismissed. The Adjudicator who heard this appeal (the First Adjudicator) did not find the Claimant credible.
5. On 9th October 2000, he was forcibly removed from the United Kingdom and returned to Cameroon. He then returned to the United Kingdom on 12th October 2001 and did not claim asylum until 14th December 2001. He was interviewed on 18th December 2001. He claimed that, on his return to Cameroon, he was escorted by United Kingdom immigration officials who told the authorities that he was a failed asylum seeker from the United Kingdom. He claimed that he was then arrested on arrival at the airport and detained. He was first detained at the airport and tortured and then transferred to New Bell Prison in Douala. He was again ill-treated and tortured. He was released on 9th December 2000 and then had to go to hospital for a period. He then joined the SCNC and started going to their meetings. He attended a demonstration with the SCNC on 1st October 2001. That demonstration was violently broken up by the police. He escaped from that demonstration and went into hiding. He then flew from Douala airport to come to the United Kingdom.
6. We summarise the Second Adjudicator's assessment of credibility and her approach to assessing the risk on return at paragraphs 12.4 to 12.7 below.
7. The grounds of application for leave to appeal to the Tribunal assert:
Ground 1: that the Second Adjudicator had erred in her assessment of the objective evidence submitted which detailed the adverse treatment that failed asylum seekers are likely to receive on return. Reliance was placed on paragraph 5.35 of the CIPU report.
Ground 2: that there is no evidence that the harsh prison conditions in Cameroon are such that the high threshold required for a breach of Article 3 would be reached.
Ground 3: that the Second Adjudicator erred in allowing the appeal under Article 3 due to the Claimant’s psychological condition, for the reasons given in sub-paragraphs i. and ii of paragraph 3 of the grounds.
8.1 At the hearing before us, Mr. Sheik began his submissions by expanding on the grounds of application. When it was pointed out to him by the bench that there was no challenge in the grounds of application to the Second Adjudicator's assessment of credibility and, in particular, to her finding that he had been detained on being returned to Cameroon and that his past history was probative of future risk, Mr. Sheik contended that Ground 1 was in fact a challenge to these findings. We were not in agreement, as we were of the view that a common-sense reading of Ground 1 shows clearly that the challenge was in relation to the assessment of the risk on return based on the objective evidence, and not a challenge on the findings upon which the risk on return was assessed by the Second Adjudicator. Furthermore, our view of the inference to be drawn from Ground 1 was supported by the fact that, at no stage up until the hearing before us had the Secretary of State challenged the Claimant’s claim that he had been detained on arrival in Cameroon. Indeed, the Secretary of State had only noted (in the refusal letter and the letter dated 11th March 2002 referred to below) that he did not condone violations of human rights on the part of the security forces in Cameroon.
8.2 Mr. Sheik then sought to vary the grounds of appeal and to challenge the Second Adjudicator's acceptance of the Claimant’s detention on arrival in Cameroon. Mr. Armstrong strongly objected to leave being granted for the grounds to be varied. We noted that the application to vary the grounds of appeal was made at a very late, after the hearing had already commenced and, even then, only in response to a reminder by the bench that the Secretary of State had not challenged the finding at paragraph 28 of the Determination. Furthermore, as Mr. Armstrong noted, the refusal letter dated 21st December 2001 does not challenge the Claimant’s claim that he was arrested and detained on arrival in Cameroon. Neither does the letter dated 11th March 2002 from the Immigration and Nationality Directorate to the Claimant’s solicitors. In both this letter and the refusal letter, the Secretary of State merely states that he does not condone any violations of human rights which may have been committed by the security forces in Cameroon and that he considers that these actions arise from failures of discipline and supervision rather than from any concerted policy on the part of Cameroonian authorities. In fairness to Mr. Sheik, he did not have the Home Office file on this appeal at the hearing. However, after he had had an opportunity to read the letter dated 11th March 2002, he withdrew his application to vary the grounds of appeal.
9.1 Mr. Sheik submitted that Ground 2 was academic, if the Tribunal were to agree with the Secretary of State on Ground 1. In other words, if we considered that the Claimant was not at risk of being detained on arrival in Cameroon, then the evidence as to the prison conditions in Cameroon becomes irrelevant.
9.2 In relation to Ground 1 of the grounds of application, Mr. Sheik relied on paragraph 5.35 of the CIPU report (quoted at paragraph 7 above). The source for this information was the Danish fact-finding report of 2001. That document was in the Claimant’s bundle at pages 251 and 252 and referred to by the Second Adjudicator. There are different views on the subject of the risk on return to Cameroon . Mr. Sheik submitted that it was speculative to suggest that the Claimant would be forcibly deported and escorted. He could depart voluntarily. In any event, even if he was forcibly deported, his records would show that he had been previously arrested on being deported as a failed asylum seeker and that he was released without charge. The Second Adjudicator did not accept that the Cameroonian authorities had any knowledge of his political involvement (which she described as “tangential involvement in some political activity”). In Mr. Sheik’s submission, there was no real risk that, on the facts as found in the Claimant’s case, he would be seen as anything other than someone who had simply sought to better his economic position by applying for asylum abroad. This was especially the case, given that he had claimed asylum twice. The Claimant is not a wanted person and therefore the fourth paragraph of Section 8.1.2 of the Danish Fact-finding report does not apply to him.
9.3 With regard to the second ground on which the Second Adjudicator had allowed the Article 3 claim (that is, on medical grounds), Mr. Sheik referred us to paragraph 30 of the Determination in which the Second Adjudicator had stated that there was no evidence of medical facilities being available in Cameroon. However, paragraphs 4.24 to 4.27 of the CIPU Extended Bulletin dated November 2002 deal with medical services. Paragraph 4.24 shows that there is a wealth of hospitals and medical centres in Cameroon. It could not therefore be said that there were no facilities, although it is true that paragraph 4.24 does not make a specific mention of psychiatric services or facilities. The Article 3 claim on medical grounds needs to be determined in the light of the judgement of the European Court of Human Rights (ECtHR) in Bensaid v. The United Kingdom [2002[ INLR 325, in particular, paragraph 40 of that judgement. The condition of the claimant in that case was more serious (he was a schizophrenic) and therefore the consequences of his removal on his health would have been more serious that someone who (as in the case of the Claimant) is suffering from Post-Traumatic Stress Disorder (PTSD).
9.4 Mr. Sheik asked us to allow the appeal outright.
9.5 Mr. Armstrong referred us to Section 8.1.2 of the Danish Fact-Finding Report. The objective evidence as to what happens to a returnee is conflicting, as the Second Adjudicator had noted. At paragraph 22 of the Determination, the Second Adjudicator had set out the contents of the CIPU report and Section 8.1.2 of the Danish Fact-Finding Report. She carefully considered the conflict in the objective evidence. There was nothing to suggest that her conclusions were plainly wrong or perverse. She came to the conclusion that the Claimant would be at risk of being detained on arrival in Cameroon because it had happened before. That finding is one which she was entitled to reach. With regard to the assertion that the Claimant could depart voluntarily, Mr. Armstrong was not able to say whether the Claimant would depart voluntarily. However, the notice of the Secretary of State’s decision states that directions for the Claimant’s removal had been given. He was forcibly returned to Cameroon previously.
9.6 With regard to the Article 3 claim on medical grounds, Mr. Armstrong referred us to a statement dated 22nd November 2002 from a Ms. Annette Elder, partner in Elder Rahimi, who represent the Claimant. This statement was before the Second Adjudicator. Ms. Elder states in her statement that, despite having made attempts to obtain information about the medical services in Cameroon, she could not obtain any, save for the evidence at page 199 of the Claimant’s bundle. This was the only piece of evidence which was before the Second Adjudicator, although the Second Adjudicator had not specifically referred to it. The Second Adjudicator's finding that there was no evidence of medical facilities being available in Cameroon was not plainly wrong or perverse. In considering whether the consequences of removal on the Claimant’s condition would reach the high Article 3 threshold, Mr. Armstrong referred us to the fact that the evidence before the Second Adjudicator was that the Claimant was a suicide risk. He is still receiving counselling and taking drugs, as had been recommended by Mr. Hughes. Page 222 of the Claimant’s bundle sets out the prognosis. Pursuant to the judgement of the Court of Appeal in Soumahoro, Nadarajah and Razgar [2003] EWCA Civ 840, the Article 3 and Article 8 claims need to be assessed following a step by step approach. Mr. Hughes states that the Claimant is struggling to copes in the United Kingdom anyway. The key point about Bensaid is that the claimant in that case was a schizophrenic and was going to suffer a relapse wherever he was. Accordingly, removal was not going to make a difference in his case to his condition. That is not the situation in the appeal before us. In the event that we were not with him on Article 3, Mr. Armstrong asked us to remit the appeal for the Article 8 claim to be considered on medical grounds. Mr. Armstrong confirmed that there was no medical evidence before the court that the Claimant was receiving counselling and taking medication. The only evidence on this point was the Claimant’s oral evidence before the Second Adjudicator.
9.7 In reply, Mr. Sheik asked us to note the lack of any medical evidence that the Claimant is receiving counselling and taking medication.
10. We reserved our determination.
11. We have decided to dismiss the Secretary of State’s appeal. We now give our reasons.
12.1 We must proceed on the basis of accepting the Second Adjudicator's assessment of the Claimant’s credibility and on the basis of her findings of fact as to the Claimant’s history are not before us (see paragraphs 8.1 and 8.2 above).
12.2 We do, however, need to set out in some detail, the Second Adjudicator's approach to the hearing (as disclosed by the Determination) and her assessment of credibility since this is the only way of placing into its proper context her finding as to the risk on return.
12.3 There was no Presenting Officer before the Second Adjudicator. She quite properly pointed out to Mr. Armstrong (who appeared before her) that she had concerns about the Claimant’s credibility (paragraph 10 of the Determination). She noted the Determination of the First Adjudicator (paragraph 6 of the Determination) and the medical and other documentary evidence which was before her (paragraphs 12 and 13 of the Determination). At paragraph 16 of the Determination, she stated that Mr. Armstrong was correct to say there are problems with the assessment of credibility in this case.
12.4 The Determination of the Second Adjudicator shows that she very carefully assessed the Claimant’s credibility. We noted that:
(i) She began at paragraph 16 of the Determination by saying that there were at least three major problems with the evidence which had never been successfully explained. She then dealt with her concerns about credibility at paragraphs 16, 17, 18 and 19.
(ii) She then stated that there were, however, “strong indicators in favour of the Claimant and some of his account” (paragraph 20 of the Determination). She went on to deal with these, in paragraphs 20, 21 and 22.
(iii) These “strong factors” included the medical evidence which was before her and the objective evidence as to the fate of returned asylum seekers. At paragraph 21 of the Determination, she stated that she could not ignore the medical evidence which was before her. She considered that there was some support for the Claimant’s claim that he was arrested when he was returned to Cameroon in October 2000 (paragraph 22 of the Determination). In this connection, she noted paragraph 5.36 of the CIPU report and Section 8.1.2 of the Danish Immigration Report.
(iv) At paragraph 23, she stated that she balanced all the evidence and considerations together. Even taking into account the Claimant’s depressed state and diagnosis of PTSD, she did not find that his excuses and explanations for the very major discrepancies over his early detentions had been satisfactorily explained. She considered that the discrepancies were so great that it seemed impossible for him to have given lucid information in some aspects of his claim if he was so mistaken in others. She stated that she was not necessarily saying that he was lying but that, at best, his evidence was so unsatisfactory that it could not be accepted as evidence even at a lower standard.
12.5 The Second Adjudicator then made her findings of fact, beginning at paragraph 24. She accepted that there was a reasonable likelihood that he was arrested and detained in the 1990s as claimed. She considered that the medical evidence before her “very strongly pointed to some traumatic incident” having occurred to the Claimant after his return to Cameroon. On this basis, she made the following findings of fact:
(a) she gave some credence to the Claimant’s claim that he was politically active and involved with the SCNC. She did not give credence to the claim that he was strongly involved with any of the groups.
(b) she did not accept the Claimant’s evidence of his detentions in 1993 or 1996.
(c) she accepted that, on being returned to Cameroon, the Claimant was arrested by Cameroonian officials at the airport and held and ill-treated as claimed. She also accepted that he was subjected to a male rape in prison by one of the prisoners.
(d) she gave some credence to the Claimant’s claim that he may have been involved in the demonstrations on 1st October 2001. However, she did not accept his evidence that he was actively sought by the authorities after the demonstration.
12.6 The Second Adjudicator then considered whether the Claimant had a current well-founded fear of persecution for a Refugee Convention reason. She had earlier made a finding that the Claimant was arrested in the past when he was returned as a failed asylum seeker. She considered that past persecution must be probative of future persecution. She therefore accepted that it is reasonably likely that he could be detained in the future. However, she did not accept that this would be for political reasons. Although she accepted that the Claimant may have been tangentially involved in some political activity in Cameroon, there was no evidence that Cameroonian authorities were aware of this or were targeting him for it. She found that there was no Refugee Convention reason and, accordingly, that his asylum claim must fail (paragraph 27 of the Determination).
12.7 The Second Adjudicator then considered the Article 3 claim on the first ground (paragraph 3 (i) above). She again reiterated that she found that his past history was probative of future risk. Furthermore, she noted that those detained were at high risk of ill-treatment (paragraph 28 of the Determination) and that prison conditions are dire (paragraph 29 of the Determination). At the end of paragraph 29, she stated: “In the light of such evidence it is clear that if the [Claimant] were likely to be detained as before he would face a high risk of inhuman or degrading treatment contrary to Article 3”. She therefore found that the Claimant had established that his return to Cameroon would be in breach of Article 3.
13.1 We now turn to consider the challenge to the Second Adjudicator's assessment of the risk on return.
13.2 We first deal with the objective evidence as to the treatment of returned failed asylum seekers. Ground 1 of the grounds of application relies on paragraph 5.35 of the CIPU report. This states:
“Cameroonian authorities are not informed when a failed asylum seeker is returned to Cameroon and such individuals are not routinely stopped, detained and questioned. There is no legislation in Cameroon which provides for the prosecution of individuals seeking asylum abroad even if the authorities were informed of the names of every returning failed asylum seeker”.
13.3 The source for this (according to footnote 20 of the CIPU report) is the Danish Fact-finding report relating to a mission to Cameroon in January / February 2001. The full version of this report is to be found in the Claimant’s bundle. The relevant section is Section 8.1.2, which the Second Adjudicator referred to in the Determination. It is apparent, from the full version of Section 8.1.2 of the report, that what is quoted in paragraph 5.35 of the CIPU Report is not a true representation of Section 8.1.2. As we have said above, Section 8.1.2 of the Danish report sets out differing views as to what happens to returned failed asylum seekers. In summary, these appear to be:
(i) (first paragraph of Section 8.1.2) According to one western diplomatic source, a rejected asylum seeker forcibly returned to Cameroon would not be at risk. He did not know of cases where a returned rejected asylum applicant had had problems with the authorities as a result of being deported. He pointed out that the authorities were not informed that people were rejected asylum applicants.
We emphasise this last sentence. It would seem to us that whether or not Cameroonian authorities are informed that people forcibly deported were rejected asylum seekers would depend largely on whether the authorities of the deporting country inform Cameroonian authorities of this fact.
(ii) Mr. Gemu Akuchu (Executive Secretary, National Commission on Human Rights and Freedoms) confirmed that rejected asylum seekers who returned to Cameroon voluntarily were not at risk of being detained by the police on their return (second paragraph of Section 8.1.2).
Mr. Akuchu’s opinion as to what happens in the case of a person forcibly deported and escorted is set out in the third and seventh paragraphs of Section 8.1.2. It would appear, from these two paragraphs, that, according to Mr. Akuchu, if a rejected asylum seeker is escorted by policemen dressed in civilian clothes as though they were travelling with any other person and if Cameroonian authorities are not informed that the individual is a rejected asylum seeker, then the individual would not experience any problems. However, if the individual is deported in handcuffs and accompanied by foreign policemen in uniform who hand him over to Cameroonian authorities, then the individual risked detention by the police. This would be to investigate his background. If Cameroonian authorities were aware that he had sought asylum abroad he would be suspected of having discredited Cameroon. If the authorities merely found that he had sought asylum for economic reasons, he would be released. The report states that the editor of the Messenger believed that asylum applications abroad were seen as damaging Cameroon’s image.
(iii) Mr. T. Asonganyi (Secretary General, Social Democratic Front) reported that if the authorities knew that someone was a rejected asylum applicant they would arrest him as, by applying for asylum, he would be suspected of harming Cameroon’s reputation abroad. He would also risk being ill-treated or even tortured (sixth paragraph of Section 8.1.2).
We considered that this was consistent with the opinion of Mr. Akuchu.
(iv) Another western diplomatic source stated that his country had known a number of cases of rejected Cameroonian asylum applicants marrying nationals whilst their asylum claims were pending, then returning voluntarily to Cameroon to wait for family reunification from there under existing rules. The source saw this as a sign that rejected Cameroonian asylum applicants were not persecuted when they returned home. The source added that rejected asylum applicants were not known to be such in Cameroon. Cameroonian authorities would not be able to tell whether deported Cameroonians were rejected asylum applicants or had, for example, been deported because their visas had expired (ninth paragraph of Section 8.1.2)
We considered that this was in line with Mr. Akuchu’s opinion and that there was nothing in the statements attributed to this source which contradicts or is inconsistent with Mr. Akuchu's opinion.
(v) Another western diplomatic source reported that last year one European country returned nearly 200 people to Cameroon. They were escorted by police, and none of them had reported problems of a political nature in Cameroon. Some were rejected asylum applicants and others had committed other minor crimes (tenth paragraph of Section 8.1.2).
We noted that this does not say whether the escorting police were uniformed or in civilian clothes and whether the deportees were handed over to Cameroonian authorities.
(vi) We have noted that the eighth paragraph of Section 8.1.2 states:
“None of the western diplomatic sources consulted by the delegation were aware of any cases in which the return of rejected asylum applicants had led to serious problems for those involved. Several sources stated that no such cases had been reported by Amnesty International or by human rights organisations in the relevant western countries. They took this as a sign that there were no cases of rejected asylum applicants having problems with Cameroonian authorities because of their asylum applicants.”
However, there is no indication in this paragraph as to whether the observations of these sources were in relation to all rejected asylum seekers, whether they were forcibly deported and escorted by uniformed policemen and then handed over to Cameroonian authorities) or whether they were escorted by policemen in civilian clothes or whether they voluntarily returned to Cameroon.
We have to weigh this information against the fact that:
(a) we do not know whether the opinion of the western diplomatic source referred to in (i) above was based on those cases where Cameroonian authorities are not informed that the deportees were rejected asylum applicants. We say this because he specifically pointed out that Cameroon authorities are not informed that people were rejected asylum applicants.
(b) there are two sources (Mr. Akuchu and Mr. Asonganyi) who both refer to problems if the Cameroonian authorities know that a person is a rejected asylum seeker.
13.4 On the objective evidence before us, we conclude that:
(a) rejected asylum applicants who voluntarily return to Cameroon are not at real risk of being detained on arrival or receiving serious harm (a term which we use to mean treatment amounting to persecution or in breach of Article 3).
(b) rejected asylum seekers who are forcibly deported but not escorted to Cameroon or who are escorted by officials in civilian clothes would not face a real risk of being detained on arrival or receiving serious harm, provided that the Cameroon authorities are not informed that they are rejected asylum seekers.
(c) if a rejected asylum seeker is escorted by police to Cameroon and the Cameroonian authorities are informed that the person is a rejected asylum seeker, such a person is at real risk of being detained.
This does not, however, mean that the individual would be subjected to treatment amounting to serious harm. In this connection, we noted that Mr. Akuchu’s opinion is that the detention by Cameroonian police would be to investigate the deportee’s background, that if Cameroonian authorities were aware that he had sought asylum abroad he would be suspected of having discredited Cameroon but if the authorities merely found that he had sought asylum for economic reasons, he would be released.
The fourth paragraph of Section 8.1.2 refers to the detention of a returning Cameroonian who was on a list of wanted persons. He was released after 12 hours. This paragraph also states that such detentions are short, usually a day or half a day. On the other hand, there is evidence (paragraphs 5.1 to 5.6 of the CIPU report) that the government’s human rights record is generally poor, that government officials have committed numerous human rights abuses, that security forces arrest and arbitrarily detain various opposition politicians, local human rights monitors and other citizens, holding them for prolonged periods, often without chance for trail, and at times, incommunicado.
We therefore concluded that whether an individual falling within this category (c) would be at real risk of serious harm on return to Cameroon would be a question of fact in each case. Rejected asylum seekers are not, simply on account of being rejected asylum seekers, at real risk of serious harm on return to Cameroon.
13.5 The Claimant’s claim that he was escorted to Cameroon and handed over by the United Kingdom immigration officials who told Cameroonian authorities that he was a failed asylum seeker from the United Kingdom has never been challenged by the Secretary of State, despite the fact that the Claimant mentioned this at his interview in December 2001. This is important. His claim that he was then detained is consistent with the objective evidence. However, his claim that he was arrested, tortured and detained for a period of 2 months (from 9th October 2000 to 9th December 2000) is not consistent with the objective evidence, bearing in mind that, according to the Second Adjudicator's finding, his political activity in Cameroon was at best tangential and that there was no evidence that Cameroonian authorities were aware of his political involvement or were targeting him for it. His claim that he was detained for two months and tortured is therefore not credible. However, it is not open to us to re-open the Second Adjudicator's finding that the Claimant was detained for two months on arrival in Cameroon, for the reasons we have given in paragraphs 8.1 and 8.2 above. We are therefore (in a manner of speaking) “stuck” with the Second Adjudicator's finding that he was detained for two months and ill-treated as claimed. This is an important point to bear in mind because the outcome of the appeal to the Tribunal may well have been different.
13.6 Mr. Sheik submitted that there was no reason to suppose that the Claimant would be forcibly removed and that he could voluntarily depart. However, the fact is that the Claimant was forcibly removed on the last occasion and did not voluntarily depart. There is no basis for the Tribunal to suppose (or the Second Adjudicator to have supposed) that he would not be forcibly removed again (particularly as, this time, he would be someone who had entered the United Kingdom twice and claimed asylum) or that he would voluntarily depart. Whilst we do not know whether any escorts would inform the Cameroonian authorities that he was a failed asylum seeker, we do know (from the fourth paragraph of Section 8.1.2 of the Danish Report) that the Cameroonian airport police appear to have a list of wanted persons. Whether such a list would be extensive enough to include persons previously detained on arrival in Cameroon is something we do not know. If such a list does include these persons, we do not know whether the information would include information that the person was previously released without charge. Against these unknown factors, we have to weigh in the fact that this particular Claimant is someone who has been found to have been detained on arrival, tortured and held for two months. We consider that the Second Adjudicator was perfectly entitled to find that his past history is probative of future risk. Her finding, in these circumstances, that he was at real risk of receiving treatment amounting to serious harm cannot be said to be plainly wrong or perverse. Mr. Sheik submitted that the fact that the Claimant would be arriving in Cameroon as someone who had claimed asylum abroad twice means that he is someone who would be seen as an economic migrant. There is no reason to suppose this. It would be pure speculation to make such an assumption. The second attempt to claim asylum may equally be seen as indicative of a person who had some real reason to fear the Cameroonian authorities.
14. We would stress that our assessment in paragraph 13.6 above should not be seen as setting some general principles for the determination of the risk on return for failed asylum seekers from Cameroon. As we have stated above, we are constrained in this case by the fact that the Second Adjudicator's finding as to the Claimant’s claimed detention in 2000 is not before us, and that there is no challenge to the Second Adjudicator's finding that his past history is probative of future risk. This case therefore turns on its own particular facts, as found by the Second Adjudicator.
15. For all of the above reasons, we must dismiss the Secretary of State’s appeal.
15. For all of the above reasons, we are satisfied that the Adjudicator’s credibility findings were open to her on the evidence which was before her. Her finding that the Claimant would be at risk of inhuman or degrading treatment on return to Cameroon (paragraph 28 of the Determination) was not plainly wrong, on the evidence which was before her. Her finding that if were likely to be detained as before, he would face a high risk of cruel, inhuman or degrading treatment contrary to Article 3 (paragraph 29 of the Determination) was one which was open to her. There is no error in her approach to assessing the risk on return. We are of the opinion that this is not an appropriate case for the Tribunal to interfere.
16. Given our conclusion above, it is strictly speaking not necessary for us to consider whether the Second Adjudicator was right to allow the Article 3 claim on the second ground mentioned in paragraph 3 above. We would however say that we considered that the medical evidence before the Second Adjudicator as to the risk of suicide was speculative. Furthermore, whilst the medical opinion is that the Claimant “could suffer severe personality deterioration”, this is not sufficient to sustain the Second Adjudicator’s finding that the act of removal would be in breach of his Article 3 rights, given the high threshold to be reached for Article 3 cases.
17. For all of these reasons, the appeal is dismissed.
Decision
The appeal of the Secretary of State is DISMISSED.
Ms. D. K. GILL
Vice President Date: 19th August 2003