Heard at Field House 						
On  	 14 August 2003
Written 14 August 2003				         [2003] UKIAT 00065 N (Burundi)

IMMIGRATION APPEAL TRIBUNAL
	
Date Determination Notified

								05/09/2003 	

Before

Mr S L Batiste (Chairman)
Mrs W Jordan

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Respondent

DETERMINATION  AND REASONS
 					  	
1.	The Respondent is a citizen of Burundi. The Appellant appeals, with leave, against the determination of an Adjudicator, Ms P Monro, allowing the Respondent’s appeal under Article 3 against the decision of the Appellant on 31 October 2001 to issue removal directions and refuse asylum. Mr L Parker, a Home Office Presenting Officer, represented the Appellant. Mr F Khan represented the Respondent. 

2.	The Respondent is a Hutu. His father was a businessman with a lorry, who travelled across the provinces. They lived in Bujumbura, the capital, until anti-Hutu rioting in 1995, caused them to flee Gisagara  in Gitega Province, where he decided to join the local agricultural college. There was rioting in Gitega City in July 1996 and the Appellant decided to leave the area. By that time he had no remaining family.  He withdrew his father's money and went to work as a labourer in Buyenzi, where he remained until 1999.  He then heard that the area was likely to be targeted by the government and decided to leave the country.  He arrived in the UK illegally on 11 October 2000 and claimed asylum next day.

3.	The Appellant rejected his claim arguing that he was not even from Burundi.  The Adjudicator, who heard the claim in the absence of a Presenting Officer, concluded that the Respondent was a national of Burundi, but rejected his asylum appeal. However she allowed his appeal under Article 3. Her conclusions are set out in paragraphs 40 and 41 of the determination in the following terms
40. I find that there is not a reasonable likelihood that the [Respondent] will be persecuted for a Convention reason if he were returned.  The civil war appears to have ended, although violence continues.  There is no evidence to suggest that this Appellant would have reason to fear of persecution although the situation in Burundi remains fragile.
41. I now consider the claim that a return would infringe the [Respondent's] Article 3 rights.  The humanitarian situation is described in the CIPU report.  There are outbreaks of infectious diseases.  There is systematic looting of crops and destruction of property carried out by armed political groups and government troops.  There is a shortage of food, basic social services and economic opportunities.  Looking at the situation overall, I find that Article 3 would be breached on a return.

4.	The grounds of appeal challenge this decision on Article 3. There is no cross-appeal by the Respondent. 

5.	Mr Parker argued in essence that Adjudicator erred in concluding that the humanitarian situation in Burundi awaiting returnees crossed the severity threshold required under Article 3. The poor conditions in Burundi, described by the Adjudicator reflected the consequences of the long civil war and represented the quality of life of the population in general in Burundi, rather than any specific treatment facing the Respondent personally. He referred to two Tribunal decisions – Amjal Khan [2002] UKIAT 01223 relating to Afghanistan and Ngandu 01/TH/01994 relating to the Democratic Republic of Congo – to demonstrate the appropriate considerations involved. Mr Khan disagreed and submitted that the Adjudicator was entitled to conclude that the humanitarian situation did cross the Article 3 threshold. Neither representative took any real issue with the Adjudicator's summary of the objective evidence, contained in paragraphs 39(a)-(j), save that Mr Parker argued that the Adjudicator did not give proper weight to the fact that there had been a substantial number of returns from Tanzania, the main country of refuge, since early 2002 and most of these had been under the auspices of UNHCR, who would not have sponsored returning refugees to face inhuman or degrading treatment. Apart from this main issue, Mr Khan raised a related point concerning the scope of the Adjudicator's Article 3 finding, that we shall come to in due course. 

6.	However first, we should take note of the applicable principles of law. Article 3 imposes an absolute bar on torture, or inhuman or degrading treatment or punishment.  It permits no exceptions and there is no derogation. The standard of proof is that of real risk. However ill-treatment must attain a minimum level of severity in order to fall within Article 3, as held by the ECHR in Ireland v UK. In SK [2002] UKIAT 05613*, Collins J., when assessing whether returnees to Croatia after the civil war there would face humanitarian conditions in breach of Article 3, held as follows;
“We accept that an individual's circumstances can be relevant.  Thus, for example, a person who has learning difficulties or some physical disability may suffer disproportionately because of his or her condition.  Nonetheless there must be a threshold, which is of general application.  Croatia has suffered the ravages of a fierce and bitter civil war.  Thus the mere fact that there will be a return to hardship resulting from that cannot produce a breach of human rights.  The general situation must be taken into account, as must what is generally accepted in the society in question.”

7.	The Court of Appeal has refused leave to appeal against the decision in SK. With regard to the last sentence quoted above, this reflects what Collins J had earlier held in Fazilat [2002] UKIAT 00973, also in relation to Article 3;
“15. As the Court in Strasbourg has recognised, it is not for signatures to the Convention to impose the standards of the Convention on all of the world.  Recognition has to be handed to the situation in individual countries and to the standards that are accepted, and expected in those countries.  Of course in relation to Article 3 there is a line below which the treatment cannot sink, if we may put it that way…… but, as again the Court in Strasbourg has indicated, the threshold has to be a high one.”

8.	In essence, the assessment of Collins J. in SK, is reflected in the decisions in Ngandu, which relates to the conditions in the Democratic Republic of Congo arising from the conflict there, and also in Amjal Khan, which relates to the post-war situation in Afghanistan. 

9.	It is from this basis of law and that we now turn to the issues raised in the appeal before us

10.	As we indicated earlier, Mr Khan raised an issue relating to the scope of paragraph 41 of the determination. He suggested that the basis for allowing the Article 3 claim was not limited to the humanitarian conditions alone, but also reflected the Adjudicator’s positive credibility finding in respect of the Respondent and the fact that he feared ethnic violence. We can deal with this point briefly. The Adjudicator certainly accepted the Respondent's credibility, in the absence of any cross-examination on behalf of the Appellant.  However the Appellant has no-one to blame but himself for this omission and Mr Parker has not sought to challenge this finding. When then assessing the asylum claim, the Adjudicator plainly had regard, not just to the risks arising from the conflict, which she held “appeared to have ended” but also to the wider risk of persecution on grounds of Hutu ethnicity, both by the state and by individuals. She concluded in terms in paragraph 40 “there is no evidence to suggest that this [Respondent] would have reason to fear persecution although the situation in Burundi remains fragile.” Thus she concluded in effect there was no real risk that the Respondent would face treatment on or after return that would cross the severity threshold, required to constitute persecution. It is true that she did not then specifically link this finding to a related Article 3 claim on the basis of feared ethnic violence, but she did not need to do so because she found in the Respondent's favour under Article 3 on the separate basis of the humanitarian situation on return. We accept in principle that it is possible for Article 3 to be contravened, even if the treatment could not be said to amount of persecution. However we cannot see, in the circumstances of this appeal, having considered Mr Khan's submission, that there is any basis for any meaningful distinction between the asylum claim on the 1951 Convention basis of ethnic violence, and any associated Article 3 claim on the basis that the Respondent feared ethnic violence. On the facts of this appeal, the scope of persecution and of inhuman or degrading treatment, cover the same ground and must stand or fall together. We conclude therefore that paragraph 41 of the determination means what it says and relates to the humanitarian situation facing the Respondent on return, and in particular to the matters specifically raised in that paragraph. 

11.	We turn therefore to the main issue in this appeal, which is whether the Adjudicator erred in her conclusion that the Respondent would face a breach of his Article 3 rights by reason of the humanitarian situation in that country. As we have said earlier, there is no real challenge to the Adjudicator's summary of the objective evidence. The challenge relates to the conclusions she drew from it. The key factors that led to the Adjudicator’s decision to allow the Article 3 appeal are plainly set out in paragraph 41. There are outbreaks of infectious diseases. There is systematic looting of crops and destruction of property by armed political groups and government troops. There is the shortage of food, basic social services and economic opportunities. We have assessed whether, in line with the Court of Appeal’s judgement in Oleed, this is plainly wrong or unsustainable

12.	There are some notable omissions from the determination. At no point did the Adjudicator set out the specific terms of Article 3 and show understanding that they relate to “treatment” of the Respondent, rather than the general situation in Burundi. Nor did she show any awareness that this Article has a minimum severity threshold. Nor did she indicate that she had taken into account the substantial body of jurisprudence on this subject, key elements of which we have summarised above. 

13.	With regard to infectious diseases, and the shortage of food, social services, and economic opportunities, these are problems that in various degrees beset much of Africa. It is true that as a consequence of the civil war, these problems are worse in Burundi than most other places. However the problems she described are general in nature in that country and affect the whole population. The population of the country in mid 1999 was estimated as being well over 6½ million people. The logic of the Adjudicator's conclusion, bearing in mind she does not identify any specific risk to the Respondent, is that the whole country is in effect living in inhuman or degrading conditions. This is not a sustainable conclusion in the light of the evidence and the guidance offered by Collins J. in SK and Fazilat about general hardship caused by a civil war and the need to have regard to the standards that are accepted and expected in the country being assessed. Nor did the Adjudicator have regard to the fact that from 1996 until he left Burundi in 1999, when the civil war was fierce, the Respondent was still then able to obtain employment and accommodation. Poor economic opportunity in general does not mean that a fit young man like the Respondent could not find work and support himself again on return. This is especially so in the aftermath of the conflict when, as the objective evidence shows, there is a Government programme for rebuilding the infrastructure, and UNHCR has indicated that it has funds available to assist the reintegration of returnees. Also there is no evidence that the Respondent is ill or in any need of medical care on return. It is also material, as Mr Parker submitted, that in the first nine months of 2002 at least 45,000 Burundian refugees returned to the country from abroad, and 25,000 of them did so with UNHCR assistance. There are now also plans for more extensive returns especially from Tanzania. The Adjudicator does not appear to have considered the implausibility that UNHCR would sponsor returns to conditions that across the country as a whole would constitute inhuman or degrading treatment. We find the Adjudicator’s conclusion is unsustainable and her error springs from her failure to address the actual terms of Article 3 or to take into account the relevant jurisprudence. 

14.	The Adjudicator also referred in paragraph 41 to the looting of crops and the destruction of property. If by this she meant that the country was the poorer for this having happened, that is true but those consequences fall within the ambit of our comments in the previous paragraph.  Insofar as she was referring to continuing problems, these would relate to areas where there is continuing violence, but this covers only a limited part of the country as a whole, and not where the Respondent lived since 1995. It is essentially confined to parts of five provinces, namely Bujumbura-Rural (though not the city centre), Bururi, Rutana, Ruyigi and Makamba provinces. Thus the Adjudicator was also wrong to give such weight to this factor in the context of whether this Respondent would face inhuman or degrading treatment on return, and her conclusion is unsustainable.

15.	For these reasons, we accept Mr Parker's submission that the Adjudicator's conclusion to allow the appeal under Article 3 is unsustainable and must be set aside. We conclude, on the basis of the Adjudicator’s own summary of the objective evidence and the legal principles described above that, whilst the situation in Burundi is extremely poor for the population as a whole following the civil war, it does not in context cross the minimum threshold required to establish a real risk that the Respondent would face torture, or inhuman or degrading treatment or punishment on return.

16.	For the reasons given above this appeal is allowed.

Spencer Batiste
Vice-President