BK (Democratic Republic of Congo) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Longmore,Lord Justice Stanley Burton,Lord Justice Laws
Judgment Date03 Dec 2008
Neutral Citation[2008] EWCA Civ 1322
Docket NumberCase No: C5/2008/0424

[2008] EWCA Civ 1322

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM & IMMIGRATION APPEAL TRIBUNAL

THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Right Honourable Lord Justice Laws

The Right Honourable Lord Justice Longmore and

The Right Honourable Lord Justice Stanley Burnton

Case No: C5/2008/0424

AA049582006

Between :
BK (DEMOCRATIC REPUBLIC OF CONGO)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Mr Christopher Jacobs & Ms Jessica Franses (instructed By Biscoes) For The Appellant

Ms Lisa Giovannetti & Mr Rory Dunlop (instructed By Treasury Solicitors) For The Respondent

Hearing dates : 19 th November 2008

Lord Justice Longmore
1

On 31 st October 2008 the Asylum and Immigration Tribunal (“AIT”) promulgated their amended determination in this country guidance case in relation to the Democratic Republic of Congo (“DRC”). Removals to DRC have been put on hold pending that determination and this appeal. The reason why a further country guidance was required in respect of DRC was to resolve the issue whether failed asylum-seekers, involuntarily returned to DRC, were likely, merely because of their return, to suffer a well-founded fear of persecution for a Convention reason or mistreatment such as to engage Article 3 of the ECHR. In AB and DM [2005] UKAIT 00118 the AIT had confirmed that categories of asylum-seekers, such as (1) those with a political or military profile in opposition to the government and (2) Tutsis or those suspected by being Tutsis, were at risk and were to be treated as refugees. That tribunal also pointed out that the assessment of risk in any individual case would depend on a careful analysis of that individual's origin background and profile but there was no suggestion that failed asylum-seekers, who had no opposition profile, were at risk merely because they were failed asylum-seekers.

2

The appellant, BK, had no opposition profile beyond that of being a low-level member of the UDPS (Union pour la Democratic et le Progres Social) when she was in DRC. Nor, on the findings of the Tribunal, did she acquire any higher profile while she was in the United Kingdom. On that basis the Secretary of State considered that she would be of no interest to the DRC authorities on return and her claim to asylum was refused. The appeal to the AIT raised the issue whether those findings were correct and also the broader issue whether failed asylum-seekers returned to DRC against their will were at real risk of persecution, serious harm or ill-treatment. That depended on what was likely to happen to failed asylum-seekers on arrival at N'Djili airport in Kinshasa and thereafter. The AIT correctly described that as a purely factual issue.

3

Those issues necessitated a hearing of 12 days before the AIT who received a mass of oral and written evidence on that question between 3 rd July and 25 th September 2007. Their unamended decision was notified to the parties on 18 th December 2007 and contained 547 paragraphs. After an exhaustive analysis of the evidence they concluded in para 385:-

“Despite concerted efforts by a significant number of people – lawyers, NGOs and others – and despite there having been a long lead-in period to the hearing and conclusion of this case during which members of the UK's DRC diaspora have been encouraged by leaflets and public meetings in over six cities to come forward with cases, we have found no evidence to substantiate the claim that returned failed asylum seekers to the DRC as such face a real risk of persecution or serious harm or ill-treatment.”

4

On the way to that conclusion they made these findings among many others:-

(a) Persons involuntarily returned to DRC will not be seen as normal returnees and will arouse the interest of the authorities so as to be questioned on arrival. [paras 188–189]

(b) They will accordingly be interrogated on arrival at the airport and, if the interrogation revealed anything of interest to the authorities they would be likely to be detained at or near the airport; otherwise they would be released. [para 324]

(c) Failed asylum seekers would not be seen as traitors because there are voluntary repatriations and DRC is a full party to the Refugee Convention. [para 191]

(d) DRC officials would usually assume that the accounts of failed asylum seekers had been disbelieved. [para 192]

(e) If the DRC authorities believed that the act of claiming asylum was traitorous there would be no need to interrogate them to find out what they had said about the DRC government. [para 193]

(f) The DRC authorities are well aware that claiming asylum abroad can sometimes be for purely economic reasons. [para 194]

(g) There have been no official government statements portraying asylum seekers as traitors. [para 195]

(h) DRC authorities would be able to differentiate between those who are anti-regime and those who are either loyal or apolitical. [para 197]

In making these findings, the AIT made various assessments about the witnesses and evidence advanced on the appellant's behalf. Some of these witnesses were reluctant to allow their names into the public domain. The tribunal did not find the evidence of W1, W2 or W3 to be credible.

5

In considering the particular circumstances and evidence of the appellant, the AIT made the following findings between paragraphs 524 to 544 of the determination:

i) The appellant's activity with the UDPS in the DRC and the United Kingdom was at the 'lowest possible level';

ii) The appellant was generally an unreliable and evasive witness;

iii) The appellant and her mother concocted their accounts and this reflected adversely on the mother's credibility as well;

iv) The evidence which the appellant's mother gave was not credible;

v) The claim that the appellant was arrested, ill treated and raped was rejected;

vi) The account of her claimed escape and travels was not believed.

6

Accordingly, the appellant did not discharge the onus of proof on her to show that she had a well founded fear of persecution or that there were substantial grounds for believing that she faced a real risk of serious harm or treatment contrary to Article 3 of the ECHR. Her appeal was therefore dismissed.

7

It might be thought that the conclusions of the AIT were conclusions based on findings of primary fact and thus not amenable to being reversed by a court whose function is confined to identifying and coverting errors of law. Amazingly, however, there are 23 separate grounds of appeal. Unsurprisingly each of these grounds, on analysis, turned out to be little more than disagreement on the part of the appellant with the conclusions reached by the AIT after hearing an abundance of evidence.

8

The main grounds developed in oral argument were that

i) the AIT had failed to give credence to witnesses who had been disbelieved in the course of their asylum applications; it was said that the mere failure of an asylum claim on the grounds of credibility did not mean that evidence given about the fate in general of those involuntarily removed to DRC was necessarily false. This ground, as I understood it, related both to the witnesses, such as W2 and W3, who gave oral evidence to the Tribunal but also to hearsay accounts from those who were (or had been) in DRC and gave those accounts to expert and factual witnesses who then repeated them in their evidence to the Tribunal;

ii) the AIT had failed to consider what questions would be asked of those involuntarily returning and to remind themselves, as said in IK [2004] UKAIT 00312, that they could...

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