[2003] UKIAT 49
- Case title: M (Article 3, Article 8)
- Appellant name: M
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Angola
- Judges: Ms D K Gill, Mr H J E Latter
- Keywords Article 3, Article 8
The decision
IN THE IMMIGRATION APPEAL TRIBUNAL
Heard at:
Field House
Decision number:
_M (Article 3 - Article 8) Angola [2003] UKIAT 00049
Heard on:
20th June 2003
Appeal number:
Date typed:
22nd June 2003
Date promulgated:
03rd July 2003
The IMMIGRATION ACTS
Before:
Mr. H J E LATTER (CHAIRMAN)
MS. D. K. GILL
Between:
Appellant
And
The Secretary of State for the Home Department
Respondent
DETERMINATION AND REASONS
Representation:
For the Appellant: Ms. S. Osman, of Counsel, instructed by Freemans Solicitors.
For the Respondent: Ms. R. Giltrow, Senior Home Office Presenting Officer.
1. The Appellant has appealed, with leave, against the determination of Miss S. Jhirad, an Adjudicator, who (following a hearing on 17th February 2003 at Taylor House) dismissed her appeal on asylum and human rights grounds against the Respondent’s decision of 24th January 2002 to give directions for her removal to Angola.
1.2 The Appellant’s asylum claim was certified. The Adjudicator upheld the certificate. Accordingly, the appeal before us relates only to the Appellant’s human rights appeal.
2. The Appellant entered the United Kingdom illegally on 1st September 2001 and claimed asylum on 5th September 2001. The Respondent refused her application (on asylum and human rights grounds) on 24th January 2002, for the reasons given in the refusal letter dated 24th October 2001.
3. Leave to appeal to the Tribunal was granted only in relation to Ground 2 of the grounds of application. This asserts that the Adjudicator had failed to properly apply the UNHCR’s position concerning the return of Angolans to Luanda. The Adjudicator was wrong to assert that “it would be quickly discovered that the Appellant was someone who originated from Luanda, that she has relatives, close connections and a network of friends in Luanda”. In fact, it is asserted in ground 2 of the grounds of application that the Appellant was only 8 years old when she first left Luanda to live with her grandmother in the southern provinces of Angola. The Adjudicator had therefore failed completely to consider the position of the Appellant as a young single female with a young child on return to a city with which she has had no connection since she herself was a young child.
4.1 At the hearing before us, Ms. Osman informed us that the Appellant is attending “mother and baby” psychotherapy counselling sessions at the Medical Foundation. She did not have any up-to-date letter from the Medical Foundation, nor did she have any medical evidence. The general living conditions in Luanda are very bad, as is evidenced by the UNHCR’s letter of October 2002. The medical services are poor (paragraphs 5.27 to 5.29 of the CIPU report dated April 2003). Violence against women is widespread. Child prostitution is a problem (paragraphs 6.46 to 6.50 of the CIPU report).
4.2 Ms. Osman submitted that, if the Appellant is returned to Luanda with her young child, she would be deprived of the counselling sessions which she is currently receiving at the Medical Foundation and the rights which she has enjoyed in he United Kingdom. Ms. Osman submitted that, notwithstanding the judgement of the Court of Appeal in Ullah & Do [2002] EWCA Civ 1856, the Appellant’s rights under Article 8 would be breached if she is returned to Luanda.
5. Ms. Giltrow accepted that the Adjudicator had been factually incorrect to say that the Appellant has connections in Luanda. However, the objective evidence does not show that particular categories of people cannot be returned. The Appellant’s mother arrived in the United Kingdom in 1992. She had applied for leave to remain under the Overstayers Scheme but she was considered to be ineligible for consideration under this scheme. The Appellant’s mother has now made a human rights application. Ms. Giltrow understood that the Appellant would be returned to Luanda with her mother. However, she was not able to given us an undertaking to this effect. Ms. Giltrow accepted that the general humanitarian condition in Luanda is very bad. However, she submitted that poor country conditions cannot found an Article 3 claim. In this connection, she relied on Ngandu (01/TH/-1994) – a determination of the Tribunal in the case of a DRC national. Even if the Appellant would not receive any counselling in Angola, Ms. Giltrow submitted that her return to Angola would not be in breach of Article 3.
6.1 It was accepted before us that the Adjudicator incorrectly found that the Appellant has relatives, close connections and a network of friends in Luanda. We accept that the Appellant left Luanda, when she was 8 years old, to live with her grandmother in the southern provinces. We therefore accept that, if returned to Angola, she would not have any connections in Luanda.
6.2 We have noted that Ms. Giltrow indicated that it is intended that the Appellant would be returned to Angola with her mother. However, we were not given an undertaking to this effect and, accordingly, have decided that it would be inappropriate for us to determine this appeal on the basis that the Appellant would be returned to Angola with her mother. We determine this appeal on the basis that the Appellant would be returned to Angola, as a young single female (being only about 18 ½ years old), with a young baby to look after.
6.3 The “Operational Guidance Note” issued by the Immigration and Nationality Directorate of the Home Office dated October 2002 (which was before the Adjudicator) states that, as is inevitable in a country which had been in civil war for most of the last 25 years, the general humanitarian situation is extremely poor. The conflict has resulted in many internally displaced persons. The end of the conflict has enabled aid agencies to provide supplies to remote regions of the country. Aid agencies have begun humanitarian assessments of previously inaccessible regions in southern and central parts of the country. The implication is therefore that aid agencies are able to provide humanitarian assistance in Luanda, which is accessible. However, we entirely accept that the humanitarian situation in Luanda is very poor indeed. This explains the position of the UNHCR issued in October 2002 (and referred to in the Operational Guidance Note), which is stated in paragraph 4 of the Operational Guidance Note to be as follows:
As far as individuals originating from Luanda are concerned, we believe that they should only be returned if, firstly, this will not result in them living in a situation of internal displacement and, secondly, any family members residing there have been identified and notified. As regards individuals from the provinces or those who do not have relatives in Luanda, we believe that their return to Angola should be avoided, lest they increase the already large number of internally [dis]placed persons.”
6.4 We were referred to the section on children in the CIPU report dated April 2003. We do not see the relevance of this, as the Appellant’s child is not orphaned, nor would the child be abandoned unless the Appellant chooses to abandon her child. The objective evidence shows that there is widespread violence against women by government forces. However, according to paragraph 6.44 of the CIPU report, this appears to take place in areas where counter-insurgency operations take place. However, we acknowledge that sexual harassment is a problem (paragraph 6.44 of the CIPU report). Women suffer from discrimination, are frequently the victims of brutality in the home, disproportionate malnutrition and poor medical provision (paragraph 6.43 of the CPU Report). Although medical care is provided free of charge, its availability is limited by a shortage of trained personnel and medicines. Under-investment in health, coupled with three decades of conflict, has caused an almost complete break down in health services. Many diseases including tuberculosis, acute diarrhoea and acute respiratory diseases are endemic in many parts of the country and preventative services are very limited (paragraph 5.27 of the CIPU Report).
6.5 Whilst we were not provided with an up-to-date letter from the Medical Foundation, we are prepared to determine this appeal on the basis that the Appellant is attending psychotherapy sessions with her child at the Medical Foundation. The letter from the Medical Foundation dated 16th January 2002 (which was before the Adjudicator) states that, since 11th March 2002, the Appellant and her daughter have been attending psychotherapeutic mother and baby group sessions twice a week. There is no medical evidence, apart from this letter. We do not know the seriousness of the Appellant’s condition. Indeed, we have no evidence of any diagnosis, or whether the Appellant is receiving any medication.
6.6 If the Appellant is returned to Luanda, we accept that her situation would be very grim indeed. There is a real likelihood that she would become internally displaced in Luanda, given that she has no connections in Luanda. We do not underestimate her situation and we bear in mind that she would be returning with a young baby. We note that the UNHCR has not said categorically that returns to Angola of persons who do not have connections in Luanda should not take place; its position is that such returns should be avoided. However, on the whole of the evidence before us, we are of the clear opinion that the conditions the Appellant would face would not be of such severity as to reach the threshold for a breach of Article 3. The Article 3 threshold is a high one. Any case such as this must be judged in the light of the decision of the European Court of Human Rights (ECtHr) in Bensaid v. The United Kingdom [2002[ INLR 325. In that case, the ECtHr said (paragraph 40 of the judgement):
40. The Court accepts the seriousness of the applicant’s medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant’s removal in these circumstances would be contrary to the standard of Article 3. It does not disclose the exceptional circumstances of the D. case (cited above) where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts.
6.7 Of course, in the appeal before us, the Appellant does not rely on any medical condition. However, the principle in Bensaid is also applicable where the Article 3 claim is based solely on the general conditions in the receiving country.
6.8 In the grounds of application, reliance is placed on the Tribunal’s Determination in Gregorio [2002] UKIAT 04045. In that case, the Tribunal had decided that a man of 29 years of age would not be at risk if returned to Angola. There was evidence in that case that the applicant had friends in Luanda. Mr. P. Moulden, who was the Chairman, noted at paragraph 9 of the Determination: “The Appellant is not a young woman”. In the grounds of application in the appeal before us, it is asserted that the inference from paragraph 9 of the Determination in Gregorio is, arguably, that it is not safe for young women to be returned to Angola.
6.9 We entirely reject this argument. In Gregorio, the Tribunal were not laying down general principles for ascertaining the categories of persons who would be able to return to Angola and those who would not. The comment of Mr. Moulden at paragraph 9 was nothing more than a comment made in passing.
7.1 Ms. Osman submitted that, notwithstanding the Court of Appeal’s judgement in Ullah & Do, the Appellant’s rights under Article 8 would be breached by her return to Angola. The reliance on Article 8 was based solely on the same general humanitarian condition which is the basis of the reliance on Article 3.
7.2 We respectfully disagree with Ms. Osman. It is clear, from Ullah & Do, that, if an Article 3 claim is not made out, then a contracting state is under no obligation to recognise that any other Articles, to the extent that reliance is based on treatment the applicant will receive in the receiving country, are or may be engaged. Given that we have found that the Appellant’s return to Angola will not be in breach of her rights under Article 3, it follows that her Article 8 claim which is based on the same general conditions in Angola, cannot succeed.
8. For all of these reasons, the appeal is dismissed.
Decision
The appeal of the Secretary of State is DISMISSED.
Ms. D. K. GILL
CHAIRMANVice President CHECK Date: 26th June 2003
Heard at:
Field House
Decision number:
_M (Article 3 - Article 8) Angola [2003] UKIAT 00049
Heard on:
20th June 2003
Appeal number:
Date typed:
22nd June 2003
Date promulgated:
03rd July 2003
The IMMIGRATION ACTS
Before:
Mr. H J E LATTER (CHAIRMAN)
MS. D. K. GILL
Between:
Appellant
And
The Secretary of State for the Home Department
Respondent
DETERMINATION AND REASONS
Representation:
For the Appellant: Ms. S. Osman, of Counsel, instructed by Freemans Solicitors.
For the Respondent: Ms. R. Giltrow, Senior Home Office Presenting Officer.
1. The Appellant has appealed, with leave, against the determination of Miss S. Jhirad, an Adjudicator, who (following a hearing on 17th February 2003 at Taylor House) dismissed her appeal on asylum and human rights grounds against the Respondent’s decision of 24th January 2002 to give directions for her removal to Angola.
1.2 The Appellant’s asylum claim was certified. The Adjudicator upheld the certificate. Accordingly, the appeal before us relates only to the Appellant’s human rights appeal.
2. The Appellant entered the United Kingdom illegally on 1st September 2001 and claimed asylum on 5th September 2001. The Respondent refused her application (on asylum and human rights grounds) on 24th January 2002, for the reasons given in the refusal letter dated 24th October 2001.
3. Leave to appeal to the Tribunal was granted only in relation to Ground 2 of the grounds of application. This asserts that the Adjudicator had failed to properly apply the UNHCR’s position concerning the return of Angolans to Luanda. The Adjudicator was wrong to assert that “it would be quickly discovered that the Appellant was someone who originated from Luanda, that she has relatives, close connections and a network of friends in Luanda”. In fact, it is asserted in ground 2 of the grounds of application that the Appellant was only 8 years old when she first left Luanda to live with her grandmother in the southern provinces of Angola. The Adjudicator had therefore failed completely to consider the position of the Appellant as a young single female with a young child on return to a city with which she has had no connection since she herself was a young child.
4.1 At the hearing before us, Ms. Osman informed us that the Appellant is attending “mother and baby” psychotherapy counselling sessions at the Medical Foundation. She did not have any up-to-date letter from the Medical Foundation, nor did she have any medical evidence. The general living conditions in Luanda are very bad, as is evidenced by the UNHCR’s letter of October 2002. The medical services are poor (paragraphs 5.27 to 5.29 of the CIPU report dated April 2003). Violence against women is widespread. Child prostitution is a problem (paragraphs 6.46 to 6.50 of the CIPU report).
4.2 Ms. Osman submitted that, if the Appellant is returned to Luanda with her young child, she would be deprived of the counselling sessions which she is currently receiving at the Medical Foundation and the rights which she has enjoyed in he United Kingdom. Ms. Osman submitted that, notwithstanding the judgement of the Court of Appeal in Ullah & Do [2002] EWCA Civ 1856, the Appellant’s rights under Article 8 would be breached if she is returned to Luanda.
5. Ms. Giltrow accepted that the Adjudicator had been factually incorrect to say that the Appellant has connections in Luanda. However, the objective evidence does not show that particular categories of people cannot be returned. The Appellant’s mother arrived in the United Kingdom in 1992. She had applied for leave to remain under the Overstayers Scheme but she was considered to be ineligible for consideration under this scheme. The Appellant’s mother has now made a human rights application. Ms. Giltrow understood that the Appellant would be returned to Luanda with her mother. However, she was not able to given us an undertaking to this effect. Ms. Giltrow accepted that the general humanitarian condition in Luanda is very bad. However, she submitted that poor country conditions cannot found an Article 3 claim. In this connection, she relied on Ngandu (01/TH/-1994) – a determination of the Tribunal in the case of a DRC national. Even if the Appellant would not receive any counselling in Angola, Ms. Giltrow submitted that her return to Angola would not be in breach of Article 3.
6.1 It was accepted before us that the Adjudicator incorrectly found that the Appellant has relatives, close connections and a network of friends in Luanda. We accept that the Appellant left Luanda, when she was 8 years old, to live with her grandmother in the southern provinces. We therefore accept that, if returned to Angola, she would not have any connections in Luanda.
6.2 We have noted that Ms. Giltrow indicated that it is intended that the Appellant would be returned to Angola with her mother. However, we were not given an undertaking to this effect and, accordingly, have decided that it would be inappropriate for us to determine this appeal on the basis that the Appellant would be returned to Angola with her mother. We determine this appeal on the basis that the Appellant would be returned to Angola, as a young single female (being only about 18 ½ years old), with a young baby to look after.
6.3 The “Operational Guidance Note” issued by the Immigration and Nationality Directorate of the Home Office dated October 2002 (which was before the Adjudicator) states that, as is inevitable in a country which had been in civil war for most of the last 25 years, the general humanitarian situation is extremely poor. The conflict has resulted in many internally displaced persons. The end of the conflict has enabled aid agencies to provide supplies to remote regions of the country. Aid agencies have begun humanitarian assessments of previously inaccessible regions in southern and central parts of the country. The implication is therefore that aid agencies are able to provide humanitarian assistance in Luanda, which is accessible. However, we entirely accept that the humanitarian situation in Luanda is very poor indeed. This explains the position of the UNHCR issued in October 2002 (and referred to in the Operational Guidance Note), which is stated in paragraph 4 of the Operational Guidance Note to be as follows:
As far as individuals originating from Luanda are concerned, we believe that they should only be returned if, firstly, this will not result in them living in a situation of internal displacement and, secondly, any family members residing there have been identified and notified. As regards individuals from the provinces or those who do not have relatives in Luanda, we believe that their return to Angola should be avoided, lest they increase the already large number of internally [dis]placed persons.”
6.4 We were referred to the section on children in the CIPU report dated April 2003. We do not see the relevance of this, as the Appellant’s child is not orphaned, nor would the child be abandoned unless the Appellant chooses to abandon her child. The objective evidence shows that there is widespread violence against women by government forces. However, according to paragraph 6.44 of the CIPU report, this appears to take place in areas where counter-insurgency operations take place. However, we acknowledge that sexual harassment is a problem (paragraph 6.44 of the CIPU report). Women suffer from discrimination, are frequently the victims of brutality in the home, disproportionate malnutrition and poor medical provision (paragraph 6.43 of the CPU Report). Although medical care is provided free of charge, its availability is limited by a shortage of trained personnel and medicines. Under-investment in health, coupled with three decades of conflict, has caused an almost complete break down in health services. Many diseases including tuberculosis, acute diarrhoea and acute respiratory diseases are endemic in many parts of the country and preventative services are very limited (paragraph 5.27 of the CIPU Report).
6.5 Whilst we were not provided with an up-to-date letter from the Medical Foundation, we are prepared to determine this appeal on the basis that the Appellant is attending psychotherapy sessions with her child at the Medical Foundation. The letter from the Medical Foundation dated 16th January 2002 (which was before the Adjudicator) states that, since 11th March 2002, the Appellant and her daughter have been attending psychotherapeutic mother and baby group sessions twice a week. There is no medical evidence, apart from this letter. We do not know the seriousness of the Appellant’s condition. Indeed, we have no evidence of any diagnosis, or whether the Appellant is receiving any medication.
6.6 If the Appellant is returned to Luanda, we accept that her situation would be very grim indeed. There is a real likelihood that she would become internally displaced in Luanda, given that she has no connections in Luanda. We do not underestimate her situation and we bear in mind that she would be returning with a young baby. We note that the UNHCR has not said categorically that returns to Angola of persons who do not have connections in Luanda should not take place; its position is that such returns should be avoided. However, on the whole of the evidence before us, we are of the clear opinion that the conditions the Appellant would face would not be of such severity as to reach the threshold for a breach of Article 3. The Article 3 threshold is a high one. Any case such as this must be judged in the light of the decision of the European Court of Human Rights (ECtHr) in Bensaid v. The United Kingdom [2002[ INLR 325. In that case, the ECtHr said (paragraph 40 of the judgement):
40. The Court accepts the seriousness of the applicant’s medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant’s removal in these circumstances would be contrary to the standard of Article 3. It does not disclose the exceptional circumstances of the D. case (cited above) where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts.
6.7 Of course, in the appeal before us, the Appellant does not rely on any medical condition. However, the principle in Bensaid is also applicable where the Article 3 claim is based solely on the general conditions in the receiving country.
6.8 In the grounds of application, reliance is placed on the Tribunal’s Determination in Gregorio [2002] UKIAT 04045. In that case, the Tribunal had decided that a man of 29 years of age would not be at risk if returned to Angola. There was evidence in that case that the applicant had friends in Luanda. Mr. P. Moulden, who was the Chairman, noted at paragraph 9 of the Determination: “The Appellant is not a young woman”. In the grounds of application in the appeal before us, it is asserted that the inference from paragraph 9 of the Determination in Gregorio is, arguably, that it is not safe for young women to be returned to Angola.
6.9 We entirely reject this argument. In Gregorio, the Tribunal were not laying down general principles for ascertaining the categories of persons who would be able to return to Angola and those who would not. The comment of Mr. Moulden at paragraph 9 was nothing more than a comment made in passing.
7.1 Ms. Osman submitted that, notwithstanding the Court of Appeal’s judgement in Ullah & Do, the Appellant’s rights under Article 8 would be breached by her return to Angola. The reliance on Article 8 was based solely on the same general humanitarian condition which is the basis of the reliance on Article 3.
7.2 We respectfully disagree with Ms. Osman. It is clear, from Ullah & Do, that, if an Article 3 claim is not made out, then a contracting state is under no obligation to recognise that any other Articles, to the extent that reliance is based on treatment the applicant will receive in the receiving country, are or may be engaged. Given that we have found that the Appellant’s return to Angola will not be in breach of her rights under Article 3, it follows that her Article 8 claim which is based on the same general conditions in Angola, cannot succeed.
8. For all of these reasons, the appeal is dismissed.
Decision
The appeal of the Secretary of State is DISMISSED.
Ms. D. K. GILL
CHAIRMANVice President CHECK Date: 26th June 2003