BM and Others (returnees – criminal and non-criminal)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY,PRESIDENT OF THE UPPER TRIBUNAL |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] UKUT 293 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 April 2015 |
[2015] UKUT 293 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President of the Upper Tribunal
Upper Tribunal Judge Jordan
BM: Ms S Naik and Ms R Stickler (both of Counsel), instructed by Michael McGarvey Immigration Solicitors
DS: Mr R Toal and Ms A Smith (both of Counsel), instructed by Sutovic and Hartigan Solicitors
BBM: Mr R Toal and Ms Shazia Khan (both of Counsel), instructed by Ison Harrison Solicitors
DK: Mr R Toal and Mr A Eaton (both of Counsel), instructed by Irving and Co Solicitors
AA: Ms S Naik and Ms H Short (both of Counsel), instructed by Kate Ormsby of GMIAU
Respondent: Ms N Lieven QC, Mr D Blundell and Mr R Moules (both of Counsel), instructed by the Government Legal Department
BM and Others (returnees — criminal and non-criminal) DRC CG
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1. A national of the Democratic Republic of Congo (“DRC”) who has acquired the status of foreign national offender in the United Kingdom is not, simply by virtue of such status, exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR in the event of enforced return to the DRC.
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2. A national of the DRC whose attempts to acquire refugee status in the United Kingdom have been unsuccessful is not, without more, exposed to a real risk of persecution or serious harm or proscribed treatment contrary to Article 3 ECHR in the event of enforced return to DRC.
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3. A national of the DRC who has a significant and visible profile within APARECO (UK) is, in the event of returning to his country of origin, at real risk of persecution for a Convention reason or serious harm or treatment proscribed by Article 3 ECHR by virtue of falling within one of the risk categories identified by the Upper Tribunal in MM (UDPS Members – Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023. Those belonging to this category include persons who are, or are perceived to be, leaders, office bearers or spokespersons. As a general rule, mere rank and file members are unlikely to fall within this category. However, each case will be fact sensitive, with particular attention directed to the likely knowledge and perceptions of DRC state agents.
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4. The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in the DRC or in respect of whom there are unexecuted arrest warrants in the DRC or who allegedly committed an offence, such as document fraud, when departing the DRC. Such persons are at real risk of imprisonment for lengthy periods and, hence, of treatment proscribed by Article 3 ECHR.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 an anonymity order is made in respect of each of the Appellants. Unless the Upper Tribunal or other competent Court orders otherwise, no report of any of the proceedings herein or any form of publication thereof shall, directly or indirectly, identify any of the Appellants. This prohibition applies to, amongst others, all parties.
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• BM: The first Appellant.
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• DS: The second Appellant.
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• BBM: The third Appellant.
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• DK: The fourth Appellant.
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• AA: The fifth Appellant.
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• BB: Husband of the Appellant AA.
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• JM: APARECO office bearer.
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• PL: Executive National Secretary of APARECO.
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• XY: A person identified in the evidence of two witnesses who testified on behalf of the Appellant AA.
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• ADFL: Alliance of Democratic Forces for the Liberation of Congo
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(Alliance des Forces DÉmocratiques pour la LibÉration du Congo).
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• AI: Amnesty International.
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• ANR: The DRC National Intelligence Agency.
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(Agence National de Rensignements)
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• APARECO: Alliance de Patriotes pour la Refondation du Congo (Alliance of Patriots for the Re-establishment of the Congo).
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• BHC: British High Commission, Nairobi, Kenya.
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• COI: County of Origin Information.
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• DGM: Direction Generale de Migration (Directorate General of Migration) of the DRC.
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• DRC: Democratic Republic of the Congo.
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• ETD: Emergency travel document.
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• FAS: Failed Asylum Seeker.
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• FCO: Foreign and Commonwealth Office of the United Kingdom.
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• FDLR: Democratic Forces for the Liberation of Rwanda (Forces dÉmocratiques de liberation du Rwanda).
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• FFM: Fact Finding Mission of the FCO.
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• FNO: Foreign National Offender.
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• HRW: Human Rights Watch.
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• IGC: Intergovernmental Conference (an EU agency).
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• IOM: International Organisation for Migration.
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• JF: Justice First.
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• LANM: Les Amis de Nelson Mandela (A DRC human rights organisation).
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• OGN: Operational Guidance Note.
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• PNC: Police Nationale du Congo (The DRC National Police).
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• UDPS: Union for Democracy and Social Progress (Union pour la DÉmocratie et le ProgÉs Social).
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• UKBA: United Kingdom Border Agency.
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• UN: United Nations.
| Chapter number | Paragraph numbers |
| I Introduction 1 – | 5 |
| II The Democratic Republic of Congo 6 – | 10 |
| III Previous DRC CG Decisions of the Upper Tribunal 11 – | 14 |
| IV The Main Evidence Summarised 15 – | 43 |
| V The Expert Evidence | 44 - 49 |
| VI APARECO: Further Evidence | 50 - 58 |
| VII The County and Expert Evidence: Discussion and Findings 59 – | 87 |
| VIII Country Guidance 88 – | 89 |
| IX The Individual Appellants | |
| (i) DS | 90 - 91 |
| (ii) BBM | 92 - 93 |
| (iii) DK | 94 - 95 |
| (iv) BM | 96 |
| (v) AA | 97 - 100 |
| X The Individual Appellants: Conclusions | 101 - 115 |
| Appendix: Source Materials |
These five appeals have been selected and conjoined for the purpose of determining the legality of the actions of the United Kingdom Government whereby certain persons are returned from this country to the Democratic Republic of Congo (“ DRC”), their country of origin. All five Appellants are DRC nationals. There are two groups of Appellants:
In all five cases the Secretary of State for the Home Department (the “ Secretary of State”), the Respondent to these appeals, has initiated action to deport or remove the Appellants to the DRC.
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(a) The members of the first group are the second, third and fourth Appellants DS, BBM and DK, who are united by the characteristic that each is a foreign national offender subject to automatic deportation to the DRC. In the case of BBM only one of the permitted grounds of appeal is Article 8 ECHR.
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(b) The first and fifth Appellants, BM and AA, who challenge decisions to remove them to the DRC, have in common the characteristic that each is a failed asylum seeker. We shall examine in due course the significance of one further characteristic of the Appellant AA, namely her role in the organisation APARECO.
The assorted ingredients identified above give rise to the following country guidance issues:
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(i) Is a national of the DRC who is proposed for deportation or removal to his country of origin exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR by virtue of having been convicted of an offence in the United Kingdom?
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(ii) Is a national of the DRC proposed for deportation or removal to his country of origin exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR or in need of humanitarian protection by virtue of having claimed asylum unsuccessfully in the United Kingdom?
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(iii) Is a national of the DRC proposed for deportation or removal to his country of origin exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR or in need of humanitarian protection by virtue of having claimed asylum unsuccessfully in the United Kingdom and/or by virtue of having a prominent role in the organisation “APARECO”?
All of the Appellants challenged the Secretary of State's decisions by exercising their statutory right of appeal to the First-tier Tribunal (“ FtT”). Their appeals were dismissed. In all of the appeals permission was secured to appeal to this Tribunal which, by its earlier decisions, ruled that the determinations of the FtT must be set aside as they are vitiated by error of law pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. In all of the appeals the Upper Tribunal has held that the FtT erred in its consideration and determination of the central issue of risk to the Appellants in the event of their enforced return to DRC. The individual errors of law consisted of applying the wrong test, failing to take into account material facts and factors and misunderstanding the evidence. In the case of BBM only, the determination of the FtT has been set aside on the further ground of error of law concerning his claim under Article 8 ECHR. We held that the approach of the FtT to the issues of risk on return and Article 8 was unsustainable in law. The decisions of the FtT are hereby re-made, in accordance with section 12(2)(b)(ii).
The fundamental question for this Tribunal is whether the deportation or removal of any of the Appellants from the United Kingdom to the DRC would expose them to a real risk of persecution within the framework of the Refugee Convention or serious harm within the compass of the Qualification Directive or a breach of Article 3 of the European Convention on Human Rights and Fundamental Freedoms (“ ECHR”). If this Tribunal were to conclude that either of these risks is demonstrated in any of the Appellants' cases, the individual appeal would succeed as the Secretary of State's decision to deport would not be in accordance with the law, being in contravention of the ECHR and/or the Refugee Convention. The Appellants contend that such a risk exists by virtue of their status of failed asylum seeker or foreign national offender without more. In the...
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