MN (Rwanda) v Secretary of State for the Home Department

In a suicide-risk removal case, Article 3 may be engaged only where there are strong grounds for believing that return creates a real risk of inhuman or degrading treatment. The assessment must be rounded and address risks before removal, in transit and after arrival. The threshold is particularly high in a foreign case. Objective foundation for the feared ill-treatment and effective protective mechanisms are important considerations. A genuine subjective fear without objective foundation weighs against a real risk. An adequately reasoned and tenable tribunal decision will not be disturbed on appeal.

The appellant, a Rwandan Tutsi, was found essentially truthful about rape and traumatic violence during the 1994 genocide. An adjudicator rejected her asylum claim on persecution grounds but accepted, on medical evidence of post-traumatic stress disorder, that return would breach Article 3. On first-stage reconsideration, the Asylum and Immigration Tribunal found the adjudicator’s reasons inadequate, preserved the credibility findings and directed reconsideration of the appellant’s medical profile under Articles 3 and 8.

On second-stage reconsideration, the Tribunal found no real risk that the appellant could not access treatment or would commit suicide before removal, in transit or after return to Rwanda. It rejected the Article 8 claim. The central issue was whether the Tribunal’s reasoning about the risk on return was legally inadequate.

The judgment of Sir Paul Kennedy was agreed by Mr Justice David Richards and Lord Justice Mummery. The appeal was dismissed unanimously.

1. Applicable test. The Article 3 question in a suicide-risk removal case is whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment. The approach stated in J (Sri Lanka) v Secretary of State for the Home Department [2005] EWCA Civ 629 was accepted as correct.
2. High threshold. Suicide-risk cases involve two extensions of Article 3. The sending state may bear responsibility for foreseeable conduct of a non-contracting state and for a risk arising from an internal factor and the contrast between conditions in the two countries. The threshold is therefore particularly high in a foreign case, although such a claim can succeed in principle. The approach was supported by AJ (Liberia) v SSHD [2006] EWCA Civ 1736 and Bensaid v UK [2001] EHRR 10.
3. Assessment. The risk requires a rounded assessment. Relevant matters include the risk in the United Kingdom before removal, the risk in transit, the risk after arrival, whether the fear of ill-treatment in the receiving state is objectively well-founded, and whether effective mechanisms can reduce the risk. This guidance was drawn from J, including its six non-exhaustive matters, and KR (Iraq) v SSHD [2007] EWCA Civ 514.
4. Application. The AIT adequately assessed the medical evidence and the available circumstances. It was entitled to find that the appellant’s subjective fears were not objectively well-founded, that she faced no real risk of being unable to obtain treatment, and that the risks before removal and in transit could be managed. Supportive contact, possible family assistance and the availability of treatment were relevant. The conclusion was not dependent on her brother being available when removal occurred.
5. Appellate intervention. The AIT’s reasons adequately explained its approach to the evidence and its conclusion was tenable and open to it. There was therefore no error of law and no basis for intervention, notwithstanding the court’s sympathy for the appellant.

• Court of Appeal (Civil Division): On 30 October 2007, dismissed the appeal and held that the AIT had made no error of law: [2007] EWCA Civ 1064.
• Asylum and Immigration Tribunal: On second-stage reconsideration, promulgated on 20 December 2006, upheld the Secretary of State’s appeal, found no real risk of an Article 3 breach on return and rejected the Article 8 claim.
• Asylum and Immigration Tribunal, first-stage reconsideration: On 22 August 2006, found the original adjudicator’s reasons inadequate, preserved the credibility findings and directed reconsideration of the medical-profile issue under Articles 3 and 8.
• Adjudicator: On 2 February 2005, rejected the asylum claim on persecution grounds but accepted the alternative Article 3 claim on the medical evidence.