BK (Failed asylum seekers)
| Jurisdiction | England & Wales |
| Judge | Storey,Warr,Davey |
| Judgment Date | 25 September 2007 |
| Neutral Citation | [2007] UKAIT 98 |
| Court | Asylum and Immigration Tribunal |
| Date | 25 September 2007 |
[2007] UKAIT 98
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Senior Immigration Judge Warr
Immigration Judge Davey
For the Appellant: Mr C Jacobs & Miss J Frances, of Counsel, instructed by Biscoes Solicitors
For the Respondent: Miss L Giovannetti, of Counsel, instructed by Treasury Solicitors
BK (Failed asylum seekers) DRC CG
On return to the DRC failed asylum seekers do not per se face a real risk of persecution or serious harm or treatment contrary to Article 3 ECHR. In so finding this decision updates and reaffirms existing country guidance.
Lengthy as was the hearing of this case, it concerns essentially two matters only: the appellant's particular case and the issue of whether failed asylum seekers returned to the Democratic Republic of Congo (DRC) against their will are at real risk of persecution or serious harm or ill treatment. Given the publicity it has received, here and in the DRC, it is important to emphasise what the case is not about. It is not concerned with the issue of treatment of failed asylum seekers by United Kingdom officials during the removal process. It is not concerned with the sending of any kind of political message to the DRC government as to what this country thinks of how it treats its citizens; that is not in any event a judicial function. Apart from deciding the appellant's case, it is concerned solely with the purely factual issue of what is likely to happen to failed asylum seekers when they arrive at N'Djili airport in Kinshasa and thereafter. Nevertheless resolution of this issue is of some moment for those concerned and indeed on 23 August 2007 the Administrative Court stayed any removals to the DRC pending the outcome of this case.
Quite exceptionally, much of the hearing of the case took place in camera. Hearings before this Tribunal must normally be in public and it is of cardinal importance that they should remain so. However, both parties in this case were agreed from the outset that, without prejudging any issues, we should have regard to concerns expressed by certain potential witnesses about their safety if their identities became known. In the event we have serious doubts that the veil of secrecy was justified in several cases and we have principally maintained our anonymity and confidentiality order because that is what we said we would do. It has proved convenient in any event for us in this determination to anonymise all the witnesses save for that from witnesses who expressly said they were happy to be named and save for that which concerns figures in the political life of the DRC whose names are already in the public realm. Given the length and complexity of the case (the documentation alone occupied 11 lever arch files), Senior Immigration Judge Warr and Immigration Judge Davey have made some contribution to the writing of this determination. Our findings and reasons, however, are the findings and reasons of all three. Below W=Witness and E= Expert.
In view of the very considerable body of evidence we have to deal with, covering both the appellant's case and the general issue of failed asylum seekers, it may assist to begin with a table of contents (paragraph numbers in brackets):
The appeal [4]
Procedural history [5]–[19]
The “objective” parts of the case
Witnesses who gave oral evidence
W1 [21]–[37]
W2 [38]–[49]
W3 [50]–[67]
The IK and Observer 16 September 16, 2007 evidence [68]
Miss Jenny Cuffe's BBC report and evidence [69]–[75]
Evidence of Miss Elizabeth Atherton [76]–[80]
Other evidence
Evidence of DW [81]–[82]
Evidence relating to AB (including that from Miss CC) [83]
June 2004 VSV report [84]–[92]
Evidence from OCDH etc [93]–[95]
Evidence of E1 [96]–[128]
Evidence of E2 [129]–[153]
Tribunal country guidance cases [154]–[159]
The background evidence [160]–[169]
Submissions [170]–[185]
Legal framework [186]–[187]
Our assessment: specific matters
Identification as failed asylum seekers [188]–[189]
Asylum seekers as traitors [190]–[195]
Risks specific to failed asylum seekers from the UK/Europe [196]–[197]
The “airport witnesses”
Witness W1 [200]–[212]
Witness W2 [213]–[223]
Witness W3 [224]–[236]
The IK article and the Observer 16 September 2007 evidence and additional comment on W1,W2 and W3 [237]–[243]
Miss Jenny Cuffe's evidence [244]–[248]
Miss Elizabeth Atherton's evidence [249]
DW's evidence [250]
E1's evidence [251]–[268]
E2's evidence [269]–[278]
Overview [279]
DRC EU Report on Illegal Migration [280]–[283]
UNHCR position statements [284]–[286]
Individual embassy and EU government assessments [287]–[292]
VSV and ASADHO evidence [293]–[311]
Evidence of E1 (“Position B”) [312]–[324]
Other evidence [325]–[333]
The case of WY [334]–[351]
The appellant's central submissions [352]
Witnesses who did not materialise [353]–[357]
27 February 2007 charter flight [358]–[375]
Evidence of specific cases of abuse of returnees [376]–[386]
The “subjective” parts of the case [387]–[393]
The appellant's case [394]–[435]
The appellant's mother's evidence [436]–[448]
Evidence of JK [449]–[460]
Evidence of E1 regarding the appellant's case [461]–[487]
Submissions relating to the appellant [488]–[523]
Our assessment: the appellant's case [524]–[544]
Appendix: Background materials before the Tribunal
The appellant is a citizen of the Democratic Republic of Congo born in November 1978. She arrived in the United Kingdom on 3 February 2006 and applied for asylum on that date. The Secretary of State considered the application but refused it in a letter dated 28 March 2006. The appellant appealed. It is her appeal which falls for us to decide in this determination. Given the agreement of both parties that our determination of the appellant's appeal should encompass the general issue of risk to failed asylum seekers returned to the DRC, we shall deal first of all with this general issue, returning at the end to the appellant's particular case.
Prior to the first day of hearing on 3 July 2007 there were several case management hearings. We need only note the following details.
On 16 May 2006 the parties agreed before Immigration Judge Gillespie that there was “no reliance on Article 8”.
Despite the respondent requesting the appellant's representatives several times, beginning as long ago as 20 June 2006, to ask their expert witness, E1, to use his extensive contacts in the DRC to confirm aspects of the appellant's account relating to her and her husband's and father's UDPS involvement, this was never done.
In a letter dated 29 June 2006 the Treasury Solicitor requested that the hearing set for 2 July be adjourned in view of repeated delays and late service by the appellant's representatives of various documents. That application was refused on 29 June 2007, but was renewed by Ms Giovannetti at the outset of the hearing on 3 July. She highlighted the fact that the evidence submitted by the appellant's representatives by the 27 June deadline set by the Tribunal included a statement from Ms Atherton which made reference to 10 case studies and a second report from E2 of which no prior warning had been given. There were some 1,500 pages of evidence which had been adduced. It was essential, in order for the respondent to prepare properly for what had been identified by the Tribunal long ago as an intended country guidance case on a generic issue, she submitted, that adequate time be given to investigate the particulars of the case studies mentioned, the files relating to which were currently in storage. She accepted, however, that the respondent was ready to proceed in relation to the appellant's evidence. Mr Jacobs objected to the application to adjourn as well as to the fall-back position of proceeding only with the evidence relating specifically to the appellant.
We decided that it would be unfair to proceed with the hearing on 3 July insofar as it had been set to deal with general issues relating to failed asylum seekers and UDPS involvement, but that neither party would be prejudiced by proceeding with the hearing of evidence specific to the appellant. The hearing was accordingly undertaken in two stages. The first stage in July dealt with the “subjective” element of the case — the evidence of the appellant, her mother, JK (Federal President of the UDPS in the United Kingdom) and the expert, E1. E1 had prepared reports dealing both with the individual facts of the appellant's case and the wider issues of returned asylum seekers and the hearing in July was only concerned with E1's report in respect of the personal features of the appellant's case. The proceedings in September 2007 were largely devoted to the “objective” evidence of a general nature.
In between July and the resumed hearing in September there were communications from the parties which we need not detail except to observe that both sought permission to adduce further evidence, some relating to the appellant's particular case, some to the general issue of returned failed asylum seekers.
Prior to the commencement of the resumed hearing in September we reminded ourselves of the entirety of the evidence that had been before us when he heard the case in July. At the outset of the September hearings we granted both parties permission to adduce the further evidence they had submitted. Mr Jacobs also raised the concerns of W1 that he had received death threats which he had reported to the police (we were subsequently given details of the police reference number). W1 was already covered by the Tribunal's Anonymity and Confidentiality Order, effective from the beginning of the hearing in July but, in view of this information, we took additional steps to ensure W1, W2 and W3 were able to give their...
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