CN (Burundi) v Secretary of State for the Home Department

In an Article 3 suicide-risk case, the claimant must establish a causal link between return and any enhanced risk of suicide. The tribunal must apply the Article 3 test and relevant factors, including whether the removing or receiving state has effective mechanisms to reduce the risk. A material mistake of fact may amount to an error of law where it causes unfairness, particularly where important evidence of self-harm or treatment is ignored or misunderstood. Under Article 8, proportionality must be assessed by the ultimate question identified in Huang. A tribunal must not impose an additional requirement of truly exceptional circumstances.

The appellant, a Burundian national with paranoid schizophrenia, had been detained in hospital on several occasions and was said to present a suicide risk. He lived in the United Kingdom with his partner and their daughter. His asylum claim was unsustainable, but he relied on Articles 3 and 8 of the European Convention on Human Rights in opposing removal to Burundi.

On 28 July 2006, the Asylum and Immigration Tribunal dismissed his appeal. It considered the risks at notification, during removal and after arrival, but concluded that medical support, escorts and family support would prevent a breach. It also applied a requirement of truly exceptional circumstances under Article 8. The appeal concerned material factual errors, failure properly to assess post-arrival suicide risk, the Article 8 proportionality approach and the significance of the procedural history.

1. Disposition. The appeal was allowed unanimously. The case was remitted to the Asylum and Immigration Tribunal for a full rehearing on reconsideration. The Court expressed no final view on the merits.
2. Material mistakes of fact. The Tribunal’s finding that there was no evidence of attempted self-harm overlooked professional evidence that the appellant had made several serious attempts to harm himself. It also misunderstood country information: the material identified certain antidepressants but did not establish that antipsychotic medication was available in Burundi. These were important matters which affected the suicide-risk assessment. Taken together, they were material mistakes of fact giving rise to unfairness and therefore errors of law under E and R v Home Secretary [2004] EWCA Civ 49 and R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982. The ambiguity concerning the partner’s willingness to accompany the appellant did not, by itself, constitute an error.
3. Article 3. The leading domestic authority was J v Secretary of State for the Home Department [2005] EWCA Civ 629. The claimant must establish a causal link between return and an enhanced risk of suicide. The Tribunal must also consider whether the removing or receiving state has effective mechanisms to reduce that risk. The availability to the claimant of mechanisms or facilities in the destination country is material. The high threshold illustrated by grave-illness cases such as N v Secretary of State for the Home Department [2005] UKHL 31 does not prevent a suicide-risk claim succeeding in principle. The Tribunal had not shown that it properly considered effective mechanisms in Burundi, and its medication error undermined that assessment.
4. Article 8. The Tribunal had applied a requirement of truly exceptional circumstances. Following Huang v Secretary of State for the Home Department [2007] UKHL 11, that was a legal error. Article 8 had to be reconsidered on remittal by applying the ultimate proportionality question without adding an exceptionality test.
5. Procedural history. The Court declined to grant permission on the separate ground concerning delay and the change in policy because it had not been taken below. The appellant could adduce evidence and make submissions on that issue at the remitted hearing, subject to any amendment permitted by the Tribunal, applying the principles in Strbac v Secretary of State for the Home Department [2005] EWCA Civ 828 and HB(Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 1713.

1. Court of Appeal (Civil Division): [2007] EWCA Civ 587. Appeal allowed and case remitted to the Asylum and Immigration Tribunal for a full rehearing on reconsideration.
2. Asylum and Immigration Tribunal: AIT No. CC628082002, determination dated 28 July 2006. The appellant’s asylum and human-rights appeal was dismissed.
3. Earlier Court of Appeal proceedings: On 3 October 2005, an earlier appeal was allowed by consent and the matter was remitted after an adjournment had been refused in circumstances affected by administrative error.