M v Secretary of State for the Home Department (DR Congo) [2003] UKIAT 00051 (10 July 2003) [2003] UKIAT 00051

UKIAT

M v Secretary of State for the Home Department (DR Congo) [2003] UKIAT 00051 (10 July 2003)

[2003] UKIAT 00051 · 2003-05-31

For the Appellant: Mr. P. Ward, of P. J. Ward Solicitors.

For the Respondent: Mr. P. Deller, Senior Home Office Presenting Officer.

Basis of asylum claim (before the First Adjudicator) :

The First Adjudicator's Determination:

I am satisfied as to the contents of that report that the injuries sustained by the appellant were sustained in the manner stated by him through being beaten while in custody. However, I do not accept the reasons why he was taken into custody due to his lack of credibility nor do I accept the details of how he purportedly escaped from such custody, again due to a lack of credibility.

As previously stated I accept that the appellant did receive injuries through being beaten but I do not accept the reasons for his detention and subsequent escape.

I find that the appellant has not provided any basis for challenging the assertions in the respondent's letter that he would be persecuted if he were to return to the DRC on account of his claimed relationship to a person closely associated with the Mobutu regime nor does he fall to be in a category of those at risk as advised by the UNHCR.

On the basis of the facts as described above I find that the appellant has not established a claim for refugee status under the 1951 Convention. However I find that if he were to be returned to Zaire at this moment in time he would undoubtedly be detained and face torture that would bring the United Kingdom to be in breach of our obligations under the 1951 Convention.

However I make a recommendation that the appellant be granted exceptional leave to remain in the United Kingdom as by returning him to Kinshasa in the Democratic Republic of Congo at this time would undoubtedly send him to face certain detention and subsequently punishment that would amount to persecution.

The Second Adjudicator's Determination:

(i) that, due to the Appellant's lack of credibility, the First Adjudicator did not accept that any period of detention was a result of political activities or association on behalf of the Appellant (paragraph 16 of the Second Adjudicator's Determination).

(ii) that the First Adjudicator had accepted that the Appellant had been beaten during a period of detention, but he was not apparently satisfied that this was for the reasons the Appellant had stated and in view of his lack of credibility did not accept that he was ever suspected of any political activities (paragraph 30 of the Second Adjudicator's Determination).

(iii) that the reference in paragraph 47 of the First Adjudicator's Determination to the 1951 Convention is in fact a reference to the 1950 Convention, as this appeared to be the only sensible construction of that paragraph (paragraph 10 of the Second Adjudicator's Determination). Further, that the thrust of the Appellant's case would appear to be that, if the First Adjudicator had been able to allow the appeal on human rights grounds, he would have done so (paragraph 11 of the Second Adjudicator's Determination).

If he had been detained in the past, it might well be for some minor criminal offence. He has not to my knowledge indicated that he was ever charged with an offence, that it would lead to the keeping of any official records on him.

(i) The Second Adjudicator was wrong to conclude that the Appellant could use a current valid passport to return to the DRC, because the passport which he had arrived with was a passport issued by the former Republic of Zaire prior to 1997.

(ii) The Second Adjudicator had erred in her consideration of the objective evidence and the Tribunal case-law as to the risk on return of failed asylum seekers.

(iii) The Appellant had asserted that he would face a risk of starvation, ill-health and death, given the evidence of lack of food, clean water, healthcare and shelter in the DRC. This was relevant to both Article 3 and to the question of proportionality in relation to Article 8. The Second Adjudicator had erred in not considering or making any findings on this aspect of the Appellant's appeal.

The issues:

Issue 1: Whether, in general terms, a failed asylum seeker is at real risk of persecution and/or treatment in breach of Article 3 simply on account of being a failed asylum seeker per se (i.e. the Senga point). This question is focused on whether the DRC authorities take an adverse interest in returnees (regardless of their backgrounds), leading to the detention of returnees and their ill-treatment.

If the answer is yes, then we would simply allow the appeal. If the answer is no, then we would go on to consider the next issue, which is:

Issue 2: Whether the Appellant's background is such that he would be of adverse interest to the DRC authorities on his return.

Issue 3: Whether the general humanitarian condition in the DRC is such that the Appellant's removal would be in breach of his rights under Article 3 and/or Article 8.

Documents before the Tribunal:

10.1 Documents submitted on the Appellant's behalf:

(i) Extracts from the Danish Immigration Service Report on the roving attaché mission to Kinshasa dated January 2000;

(ii) Extracts from the report of Oxfam GB "No end in sight" dated August 2001;

(iii) Expert report of Erik Kennes dated 19th June 2002;

(iv) Letter from Amnesty International Netherlands to the Ministry of Justice, The Hague, dated 9th July 2002, with translation.

(v) Two reports of Docu Congo with translations, each dated 16th May 2003;

(vi) Letter from UNHCR dated 22nd May 2003;

(vii) AFP News Report dated 26th May 2003; and

(viii) Transcripts of the following Determinations of the Tribunal submitted to the Second Adjudicator:

Andre Bashiya [2002] UKIAT 00186 (heard on 21st January 2002)

Jean Marie Kalala Nibanga [2002] UKIAT 02369 (heard on 19th April 2002)

Akoye Mozu [2002] UKIAT 05308 (heard on 7th October 2002)

10.2 Documents submitted on the Respondent's behalf:

Due to administrative problems, Mr. Deller was not able to lodge any documents before the Tribunal. However, we have the documents which were submitted before the Second Adjudicator, which are:

(i) The CIPU Report dated October 2002;

(ii) The CIPU Bulletin dated 1/2002, dated 1st May 2002; and

(iii) Transcripts of the Determinations of the Tribunal in the following cases:

Blandine Kama-Museu [2002] UKIAT 00747 (heard 28th February 2002)

Ngunga Nzakimuena [2002] UKIAT 01961 (heard 24th May 2002)

Issue 1 - Risk as a failed asylum seeker:

C. The fate of returned asylum seekers in the DRC

No systematic studies have been done on the fate of returned asylum seekers, nor on the Kinshasa government policy. We must relay on two letters and two press articles.

The first press article is a statement of a former official of the Minister of the Interior, inspector of the immigration police. According to his statement, returned failed asylum seekers are immediately arrested at the airport and subsequently imprisoned. No other source of information is known about this alleged practice, and it has not been independently verified.

The second press article is about an official statement by the immigration office. On May 24, 2001, the newly appointed director general of the Congolese immigration services, Mr. Leyka Moussa Nyembo, delivered a speech in Hotel Memling (Kinshasa) where he outlined his immigration policy. Mention was made of the attitude of his services and the government towards returned political asylum seekers. Mr. Leyka declared he wanted to dismantle underground emigration networks, who operate under the cover of applications for political asylum in western countries. One of the instruments of his policy would be the creation of "migratory detention centres" in Kinshasa. In the press reports about this speech, it was not clear what the role would be of these centres.

During a telephone conversation with the author of his report, Mr. Leyka made it clear that the "migratory detention centres" are not centres of imprisonment. The aim of the centres is the screening and identification of returned asylum seekers, with the view of their reintegration into society. Information is gathered about the individuals behind the underground networks, to be able to put them before justice. According to the assistant to the director general, some of these centres are already operational.

According to this official version, the "migratory detention centres" are just a screening agency. There is no problem with it as long as the returned asylum seekers are effectively members of an underground migration network. When the centres harbour returned asylum seekers who were entitled to political asylum but were unjustly refused, then the authorities immediately have their opponents at hand to interrogate them and put them into jail. The real function of the detention centres is thus linked to the overall government policy towards opposition. The government policy towards political opposition cannot be considered without taking into account the workings of the judicial system, and more specifically, the workings of the Military Court.

The first letter is made up by the Amnesty International London office and states that Amnesty had received reports in August 2000 about three returned asylum seekers who have been imprisoned in Makala prison, Kinshasa.

The second letter is the most crucial document. In a letter written by Mr. Wanigasekara (UNHCR London) to Mr. Zohreh Neinzi of the Devon law Centre, dated November 20, 2001, it is said

It is important to consider that the overall security situation remains volatile and is a matter of general concern to everyone resident in the DRC. Despite ongoing efforts and negotiations between the opposition parties, armed movements and the government, fighting still continues between the rebel and the government forces in the eastern and southeastern regions as well as the Equateur province, resulting in human rights violations.

Against this backdrop, persons originating from rebel-held territories (….) are held in suspicion and liable to adverse attention – sometimes amounting to persecution – from the authorities in Kinshasa (…)

According to information available to UNHCR, agents of the security services frequently interrogate Congolese returning to Kinshasa from abroad, particularly those who are known to have sought asylum. UNHCR is aware of instances where interrogation at the airport has been followed by arbitrary detention and serious ill treatment by DRC security agencies. If the returnee is not already known to the DRC authorities, there is a strong likelihood that were he to be returned to Kinshasa, his background would be revealed in the course of interrogation upon arrival.

We may add to this element that returned asylum seekers from the UK will be met with more suspicion than others, because of the support given by the British government to the RCD rebel movement in the East, and more specifically to the governments of Rwanda and Uganda.

xx We entirely accept that, if there is a real risk that a returned failed asylum seeker would be transferred to a prison or illegal detention centre whilst they are interrogated and/or enquiries are conducted into their backgrounds, then he or she would receive treatment amounting to persecution or in breach of Article 3, either because of the general conditions they are likely to have to endure and/or because of the treatment which, as detainees, they are likely to be subjected to by those detaining them. Whether there would be a Convention reason for the purposes of the 1951 Refugee Convention is something which we do not need to determine in this particular appeal.

xx However, the evidence before us simply does not show, even to the low standard, that there is a real risk that returning failed asylum seekers would be transferred to prisons or illegal detention centres. Mr. Gaskin's submission was that, given that illegal detention centres are operated by the ANR and given that the ANR's responsibilities include border security matters, this means that there is a real risk that returning failed asylum seekers would be transferred to illegal detention centres. We do not accept that submission, as it is based on pure supposition. Furthermore, if this was the fate of returning failed asylum seekers, we would expect to see reports from international human rights organisations to this effect. The evidence which has been drawn to our attention either:

xx Mr. Gaskin submitted that it should not be assumed that conditions in migratory detention centres are any better than those in prisons or illegal detention centres. However, there is a complete dearth of evidence about the conditions in migratory detention centres. We again revert to the fact that no evidence has been produced from human rights organisations that returned failed asylum seekers receive persecutory treatment or treatment in breach of Article 3. We again revert to the fact that the UNHCR has not said that it is at present not safe to return failed asylum seekers to the DRC. This in spite of the fact that the evidence is that returns are being effected.

(i) Paragraph 82 of the report of the Special Rapporteur of the United Nations Economic and Social Council – Commission on Human rights, dated February 2001 (on page 19 of Mr. Kennes' report, page 43 of the Appellant's bundle) which refers to ten UDPS leaders being transferred to unknown detention centres. We cannot conceive that, given the procedures and appeal rights which are in place in the United Kingdom for refugee status determination and given the current objective evidence, UDPS leaders would feature amongst failed asylum seekers being returned to the DRC by the United Kingdom. The context suggests that the UDPS leaders were in detention following arrest within the DRC.

(ii) The extract from the Amnesty international report of 26th June 2001 quoted at page 14 of Mr. Kennes' report on page 38 of the Appellant's bundle which refers to torture being routinely used by the DRC government forces against known or suspected government opponents .

(iii) (On pages 14, 15 and 16 of the Mr. Kennes' report) the arrests and detentions of persons such as –

two persons who were leaders of a human rights organisation;

a director of a well-known journal;

two journalists;

the president of the UNAFEX political party

It is easy to see how, within the context of the repressive environment in the DRC, journalists and those involved in the media can, depending on the content of their media-reporting, come to the adverse attention of the DRC authorities. Indeed, we note that, in relation to the arrests of the two leaders of the human rights organisation, the authorities prohibited the publication of a journal of the organisation. We note, in relation to the arrest of the president of the UNAFEC political party, that he was interrogated about the strategies of his party.

We considered that the information mentioned above does not assist in determining whether failed returned asylum seekers, regardless of their background, are at real risk of treatment amounting to persecution or in breach of Article 3. It is, however, in line with the UNHCR's general advice that each case must be carefully examined.

Most people who are sent back to the DRC Congo which we have been able to follow over a period of time involve insecurities and even unlawful and arbitrary detention. Here are some precisions:

We are not told how many people were returned to the DRC, the number of people Docu Congo spoke to and the number of people who alleged "insecurities" or "unlawful and arbitrary detentions". What follows this paragraph by way of "precisions" quotes from 5 sources. The picture which these convey is a mixed one. Under the heading "testimonies", specific examples of various people are given but, in the main, we are not told about the backgrounds of the individuals concerned, except, for example, for:

- the person mentioned in paragraph g. on page 69 of the Appellant's bundle. However, we note that he was an active member of an opposition party.

- the person mentioned in paragraphs d. on page 68 of the Appellant's bundle. However, we note that he was accused of treason and of being an active member of an opposition party.

- the person mentioned in paragraph h on page 69 of the Appellant's bundle. We note that he was accused of "having come on behalf of the rebels".

These examples do not show that returnees, regardless of their backgrounds, are at real risk of persecution or Article 3 ill-treatment simply on account of being failed asylum seekers. They do, however, show (once again) that the backgrounds of the individual returnees have to be carefully examined.

(a) what is said in that report is based on information gathered for the proposes of a report published in 2000; and

(b) the UNHCR letter of 20th November 2001 states that the UNHCR is not opposed to the return of failed asylum seekers to the DRC provided that they have had access to a full and fair hearing.

We consider ourselves entitled to place great weight on the advice of the UNHCR, being a non-partisan body and which takes its responsibility of monitoring the fate of asylum seekers seriously.

UNHCR can make the following comments on the return of unsuccessful asylum seekers to the DRC. The current situation in the Democratic Republic of Congo (DRC) is characterised by serious deterioration on both protection and security fronts. This raises questions as to whether unsuccessful DRC asylum seekers may be returned without security and protection risks.

Whilst maintaining that rejected asylum seekers may be returned to the DRC as a general rule, UNHCR would advise that humanitarian considerations should be given the broadest possible interpretation whenever return is envisaged. In this regard, it has to be borne in mind that the overall humanitarian situation in the DRC continues to be of concern, mainly due to human rights violations, epidemic outbreaks, major nutritional and health problems and restrictions on humanitarian access that are exacerbated by the ongoing hostilities. Over 2.5 million of the estimated 50 million Congolese citizens are now displaced. Over 500,000 people were displaced in 2002 alone, mainly due to intensified violence and renewed fighting. Almost a million of them have not received any aid because of the unstable security situation, especially in the eastern provinces of DRC.

With the above considerations in mind, UNHCR would caution against any forcible returns to areas outside Kinshasa. Persons originating from Kinshasa, and who are not in need of international protection, may be returned there, provided that family links and economic support in the capital are ascertained.

In addition, asylum-seekers with certain profiles should receive particularly careful consideration prior to return. Issues such as the individual's place of origin, last place of habitual residence, family relations, ethnic group and profession should be considered before the person is removed. An individual approach is therefore required on the basis of the circumstances of each case and careful consideration of the changing political and security context in the DRC.

First hand accounts and reports from local human rights NGOs suggest that certain individuals who are deported (regardless of whether they sought asylum abroad), or even repatriated voluntarily, may face serious problems following possible interrogation conducted by security services upon arrival in Kinshasa. Should the authorities in Kinshasa discover that a deportee has a political or military profile, or has sought asylum abroad owing to a political or military background, such person may be at risk of arbitrary detention and ill-treatment. There have also been reports of abuse of power by security offices at Ndjili International Airport (Kinshasa). It is alleged that they intimidate deportees to extort money, and send them to detention centres in cases where neither they nor their families can pay.

However, the DRC authorities maintain that the deportee who returns with a travel document "tenant lieu de passport" is required to complete immigration formalities upon arrival in order to confirm his or her Congolese nationality. He is not detained and is allowed to leave immigration premises once Congolese nationality is confirmed. The problem in the deportation procedure may occur when the deportee is not a Congolese national and has acquired a DRC passport in a fraudulent manner. In such cases, there have been reports that persons suspected of being nationals of countries considered as "unfriendly" (e.g. Uganda, Rwanda) may be arbitrarily detained and face ill-treatment. Nationals of other countries would normally be released after interrogation. It is therefore recommended that the nationality of rejected asylum seekers be carefully ascertained before they are processed for return to the DRC.

DRC authorities maintain that the information in the preceding paragraph correctly reflects the procedure in place to receive deportees. The UNHCR (UN High Commissioner for Human Rights) has nevertheless received reports about deportees transferred to the DRC security services such as ANR (Agence Nationale des Renseignements) and DEMIAP (Detection Militaire des Activites Anti Patrie) for interrogation. The Minister of Interior recently announced that these two security services no longer officially operate at Ndjili International Airport. Officially, only the police and the DGM (Direction Generale des Migrations) are currently operating at this airport. Reports suggest, however, that the remaining security services have not in fact ceased their operations and continue to maintain an unofficial presence at Kinshasa Airport.

(the emphasis in bold is ours)

xx We have been provided (on behalf of the Respondent) with a copy of a letter from the British Ambassador in Kinshasa dated 22 nd November 2002 addressed to the Immigration and Nationality Directorate. This letter states:

In answer to your recent enquiry I can confirm that, since my appointment to Kinshasa in May 2000, this Embassy has not come across any evidence that DRC nationals forcibly returned to Kinshasa after failing to obtain political asylum in European countries have faced persecution from the DRC authorities.

The Belgian and French governments regularly forcibly return failed asylum seekers to Kinshasa; the Dutch government returned a group of 48 on 20 November. The local Embassies of these three countries have told me that the essential requirement for DRC Immigration is acceptable identification documents.

I am not in a position to offer assurances however that returnees would not face prosecution if it were established that they had left the DRC without the mandatory travel documents, or if they had been the subject of criminal arrest warrants or of legal investigation prior to their original departure.

xx. Mr. Gaskin submitted that, given that returned failed asylum seekers are not British nationals, there is no reason to suppose that the British Embassy would receive information about the fate of returned failed asylum seekers. We can see some merit in this assertion. However, it is evident, from the letter from the British Ambassador, that the Ambassador had been in touch with the embassies of three other governments, all of which have forcibly returned failed asylum seekers to the DRC. We are aware that there are numerous non-governmental international organisations which are interested in the human rights situations in countries across the globe, including the DRC. It is inconceivable that, if returned failed asylum seekers (regardless of their background) had encountered persecutory treatment or treatment in breach of Article 3 simply on account of being failed asylum seekers, this would not be reported. We have not had produced to us any reports which show that returned failed asylum seekers are, simply on account thereof, at risk in the DRC. The lack of any such evidence, together with the lack of any general advice from the UNHCR that it is at present not safe in general to return failed asylum seekers to the DRC is, in our view, significant.

(i) Mozu is a case which was decided on its own facts. Furthermore, the Tribunal in Mozu proceeded on the basis that Mr. Kennes' report was to be accepted without question. We have already explained above why we have concerns about Mr. Kennes report. In addition, it is not clear which UNHCR letter (referred to in paragraph 12 of the Tribunal's Determination) was referred to the Tribunal and whether (if it was the UNHCR letter of 20th November 2001 mentioned as the second letter in Mr. Kennes' report), the Tribunal's attention was drawn to the full text of the letter, or merely to the abridged version contained in Mr. Kennes' report. Mozu should not be regarded as authority for the proposition that failed asylum seekers are, per se, at risk of treatment amounting to persecution or in breach of Article 3 (if it ever was) and should no longer be cited.

(ii) Bashiya was a case where the Adjudicator had found that the Appellant was arrested and tortured in prison and the Tribunal determined the appeal on the basis that the cause of his arrests was his support for the MLC. We are aware that the Tribunal received evidence from Mr. Kennes but there is no indication, from the Determination itself, that the Tribunal was referred to the full text of the UNHCR's letter of 20th November 2001.

(iii) Nibanga was a case where the Adjudicator accepted that the applicant was an escapee from possible prosecution for assault and that he had had a very minor role in the UDPS. We are aware that the Tribunal considered many of the documents which we ourselves have been referred to. However, two things, in our view, stand out particularly – firstly, the Tribunal made no mention of the UNHR's letter of 21st November 2001; secondly, it is evident, from paragraph 17 of the Determination, that the Tribunal was not considering whether failed asylum seekers, regardless of their backgrounds were at risk on return. This is evident from the following extracts of paragraph 17 of the Determination:

. ................. we take the view that the clear evidence shows ongoing harassment of UDPS members whether one endeavours to categorise them as active prominent, less prominent or simply members.

and, at paragraph 19:

We find that there is a real risk that mistreatment could take place and the reason being the appellant's political activities even at the low level.

Issue 2:

Issue 3:

Article 3:

Article 8:

Decision

The appeal is dismissed.