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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bonyoma v Secretary Of State For Home Department [2001] EWCA Civ 1353 (27 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1353.html Cite as: [2001] EWCA Civ 1353, [2002] Imm AR 234

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday, 27th July 2001

1. LORD JUSTICE JUDGE: Patrick Weloca Bonyoma seeks judicial review of the decision of the Secretary of State for the Home Department, dated 11th September 2000, directing his removal to Belgium following refusal by Sir Richard Tucker on 30th November 2000.
2. The applicant is a national of the country formerly known as Zaire, which is now the Democratic Republic of the Congo. He was born in 1975. As a result of the troubles and strife in that unhappy country, in March 1997 he inadvertently stepped on to a land mine. He was severely injured. He lost his right leg below the knee. He suffered injury to his arm and in the explosion his cousin, who was nearby, was killed. He was the witness to a number of incidents which no one could possibly be expected to endure with total equanimity. He is entitled to considerable sympathy.
3. On 11th May 2000 he was in possession of a passport which contained a Schengen visa issued by the Embassy of Belgium in Kinshasa. It was valid for a 30-day stay in Belgium. On 23rd May he flew to Belgium and stayed there for a single night. According to his account to the psychiatrict, Dr Jones, while he was at the airport in Belgium he fell over. He was given some assistance by a French individual who lived in Lille and offered him - at any rate for a brief period - a home or refuge. He stayed in France for four nights. Again, according to his account to Dr Jones, he was told while he was in France that he would be safer in the United Kingdom. So on 28th May he crossed the Channel by ferry and landed at Dover. He was interviewed the next day. He said he had not applied for asylum in Belgium because it was just like Kinshasa. He said that he had decided to claim asylum in the United Kingdom because of the accident in which he had lost his right leg and he had heard that there were good facilities in the United Kingdom for the care of individuals who suffered from his medical condition.
4. On 20th June he was examined by a consultant psychiatrist, Dr Fisher. Dr Fisher advised against the applicant's removal to Belgium.
5. On 3rd July the Secretary of State gave notice of his decision that, on what can be summarised as third country grounds, the applicant should be removed to Belgium. On 23rd August the decision letter then under consideration read:

"On 16 June 2000 the Belgian authorities were asked to accept that Belgium was the Member State responsible for the examination of your client's application under the terms of the Dublin Convention. By letter dated 30 June 2000 the Belgium authorities accepted responsibility for the examination of your client's claim."

6. I shall omit a passage which is narrative.

"On 18 July 2000 the Belgian authorities were advised that arrangements had been made to transfer your client to Belgium on 24 July 2000. These arrangements were subsequently deferred, however, in the face of your stated intention to seek permission for judicial review ..... "

7. Turning to the grounds at that stage available, the letter continued:

" ..... you assert that the Secretary of State's decision to remove your client to Belgium was both unlawful and unreasonable. The Secretary of State remains of the clear view, however, that your client is properly returnable to Belgium under Section 2 (2) of the Asylum and Immigration Act 1996 and that he is properly re-admissible to Belgium under the provisions of the Dublin Convention."

8. He goes on:

"The Secretary of State has seen no evidence to suggest, and indeed does not believe, that the Belgian authorities would send your client elsewhere other than in accordance with the 1951 Convention in the event of the refusal by them of any asylum application made by him. If, contrary to the Secretary of State's understanding of what is likely to happen, your client fears that the Belgian authorities would seek to remove him to his country of nationality before his claim had been properly considered, it would be open to your client to take proceedings against Belgium under Article 34 of the ECHR and immediately to seek an interim measure indication under Rule 39. There has never been a report of the Belgian authorities failing to comply with an interim measure indication in the case of an order for deportation, expulsion or removal."

9. An application for permission to move for judicial review of that decision was rejected by Mr Justice Sullivan on 25th August.
10. A few days later on 6th September the applicant saw another psychiatrist, Dr Jones, whose report is dated 7th September. He concluded that apart from medical or surgical problems with the stump, the applicant was suffering from post-traumatic stress disorder and filled with anxiety about a possible return to Belgium. The report includes the following passages on which Mr Juss, on behalf of the applicant, would have us focus our closest attention:

"There are evident reasons why his anxiety is raised at the thought of return to Belgium. He has realistic fears. There may be individuals from hostile groups and he could still be in personal danger. He found that the French language on the news media provoked anxiety and tension and he has found this less in non-French speaking environments. He requires treatment to his amputation and he is apprehensive because there are many Zairians working in the health services in Belgium and he fears the contact.

.....

He is presently in a very stressed state. I consider that a return to Belgium would be extremely adverse. I cannot exclude serious risk of suicide. He requires a calm, supportive environment to cope with his PTSD symptoms. I believe he is capable of recovery from this and is capable of rehabilitation. The hazard if he is returned to a stressful situation is that the PTSD will not remit and that he will deteriorate to a chronic, irrecoverable state."

11. After considering and referring to Dr Fisher's earlier report, Dr Jones concludes:

"Mr Bonyoma is suffering active, severe post-traumatic stress disorder. This would be seriously increased if he were returned to Belgium. There is then a real risk of deterioration to the point of suicide or of a chronic, irrecoverable state."

12. Mr Juss, on behalf of the applicant, naturally enough, focussed on the passages in the report which underlined the risks to which Dr Jones believed that the applicant would be exposed. That is a perfectly legitimate way of approaching this application but it is fair to the Secretary of State to emphasise that what he had to consider was not isolated passages from the report but the report as a whole. That report was sent to the Secretary of State and the decision of the Secretary of State was conveyed in a letter dated 11th September.
13. Mr Juss submitted to Sir Richard Tucker - and he renewed his submission before us in a measured, careful argument - that the decision was irrational, in effect, for three reasons. The first was that the medical evidence was not properly evaluated, in particular, in relation to the risk of deterioration to the point of possible suicide or the point where the disorder would or might become chronic. Secondly, the decision was disproportionate in its likely impact on this particular applicant. Third - and, in reality, a development of the first argument - the removal of the applicant would constitute a breach of his rights under the European Convention, in particular, Article 3 by subjecting him to degrading or inhuman treatment or punishment, or Article 2, if he were to commit suicide, obviously his right to life.
14. It is right to note at the outset that it is just a little too easy perhaps to be beguiled into forgetting that the return envisaged by the Home Secretary is not of the applicant to his country of origin but to Belgium which is a safe third country.
15. We were asked to consider two authorities by Mr Juss: first, the observations of the European Court of Human Rights in Bensaid v United Kingdom, a decision given on 6th February 2001 quoting a passage from the judgment of Lord Justice Simon Brown in the Court of Appeal in R v Home Secretary ex parte Turgut, dated 28th January 2000 and emphasising in his judgment that the obligation of an irrationality challenge in an Article 3 case and, I would add, an Article 2 case, is, and I quote from Lord Justice Simon Brown,

"to subject the Secretary of State's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed."

16. Second, our attention was also drawn to a rather different case, Keenan v United Kingdom, a recent judgment given on 3rd April 2001 which related to the inhuman and degrading treatment in prison following the way in which a known suicide-risk prisoner was detained by way of punishment.
17. Having considered those two authorities, it is perhaps important in view of the arguments deployed before us to return to the decision letter itself. The letter refers directly to the psychiatric report. Plainly, following the failure of the application for permission before Mr Justice Sullivan, the only new material was that report and the arguments based on it. The decision letter focussed exclusively on that report. It is very difficult to conclude simply by reading the first paragraph of the letter that the Secretary of State did not fully attend to the letter. In fact, it went on:

"The Secretary of State has considered very carefully the report from Dr Jones and he accepts that both the prospect and the actual removal of your client to Belgium may have a negative impact upon him. In view of your client's psychiatric condition, the Secretary of State has considered whether there are substantial grounds for believing that your client's proposed removal to Belgium would be a sufficiently compelling compassionate factor to warrant departing from his normal policy and practice. However, although your client may be exposed to psychological stress as a result of his removal to Belgium, the Secretary of State does not accept that the risk to your client reaches that level of severity of physical or mental suffering such as to warrant allowing your client to remain in the United Kingdom exceptionally. He takes the view that there are adequate, appropriate and equivalent medical and psychiatric facilities in Belgium which will be available to your client. Furthermore, the Secretary of State is satisfied that if your client genuinely feels at risk from any quarter in Belgium he will be able to bring his concerns to the attention of the Belgium authorities who will be willing and able to provide him with an appropriate level of protection. The Secretary of State is satisfied that the Belgian authorities neither tolerate nor condone any unlawful act against asylum seekers in Belgium and that they take the strongest action against the perpetrators of any such act."

18. In the context of this case and the issues which the Secretary of State had to consider, that letter represents in my judgment a rational analysis of the significant features of the case and, in particular, gives full attention to the effect of the medical evidence from Dr Jones as well as to the consequent issues, if Mr Juss is right, to which consideration of Articles 2 and 3 of the Convention can give rise. It is, of course, for this court to consider the underlying factual material, in the words of Lord Justice Simon Brown, "to see whether it compels a different conclusion to that arrived at by the Secretary of State".
19. Sir Richard Tucker expressed himself in these words after considering the submissions made by Mr Juss which, in effect, were echoed by those he made to us. He said:

"I reject entirely the suggestion that the Secretary of State did not consider that report. That leaves the problem of whether, having considered it, he reached a decision which was irrational in the Wednesbury sense. I do not take that view. The decision was reasonable, rational and sensible.

I return to the beginning. Of course I sympathise with the claimant's plight, but I am utterly unconvinced that there is even an arguable case for suggesting that there are not proper facilities in Belgium for treating any complaint he may manifest, or for believing that the Secretary of State reached an irrational conclusion in deciding that he could properly return this unhappy man to Belgium .....

It was a decision which it was perfectly open to the Secretary of State to take and to form his own view about it having considered carefully the reports which were before him."

20. I have made my own judgment, as I have already said, to see whether a different conclusion is to be reached to that found in the decision letter. I have examined it by taking a more stringent view of the Wednesbury point than perhaps Sir Richard did, but, all that said, the conclusion Sir Richard came to was a correct one. There is no ground shown to us to justify granting this renewed application for permission to move for judicial review.
21. LORD JUSTICE MUMMERY: I agree.
22. SIR MARTIN NOURSE: I agree.
Order: Application refused