JB(Torture and III treatment - Article 3)
| Jurisdiction | England & Wales |
| Judge | Mr K Drabu,Mr A G Jeevanjee |
| Judgment Date | 24 February 2003 |
| Neutral Citation | [2003] UKIAT 12 |
| Court | Immigration Appeals Tribunal |
| Date | 24 February 2003 |
[2003] UKIAT 12
IMMIGRATION APPEAL TRIBUNAL
Mr K Drabu (Chairman)
Mr A G Jeevanjee
For the Appellant: Mr D O'Callaghan of Counsel instructed by Waran & Co, solicitors
For the Respondent: Mr D Buckley, Home Office Presenting Officer
JB (Torture and III treatment — Article 3) DR Congo
The appellant is a national of the Democratic Republic of Congo. He appeals to us with leave against the decision of an Adjudicator, Mr J R Devittie who dismissed his appeal against the respondent's decision not to allow him to remain in the United Kingdom under the Human Rights Act 1998. The appellant arrived in the United Kingdom on 11 December 195 and claimed asylum. The application was refused on 1 October 1996 and his appeals against the decision were finally determined and dismissed on 10 May 1999. On 28 July 1999 the appellant made a claim to remain under human rights. That claim was considered but refused by the respondent on 15 January 2002. The Adjudicator dismissed appeal against that decision on 15 October 2002.
The appellant had given oral evidence before the Adjudicator, stating that since his arrival in the United Kingdom he had been active in the activities of the RNS, which fights for human rights in the DRC. He told the Adjudicator that he had attended their meetings regularly and in June 2001 he had attended a demonstration when the Minister of Information had visited London. He produced a newspaper article he had written at the time and which he said had been published in Kinshasa. He said that he had not intended to publish the article. It had fallen into the hands of a journalist who had published it in Kinshasa. He told the Adjudicator that because of this article and because of his activities in the United Kingdom, he would face torture and degrading treatment if he were returned to the DRC. The Adjudicator said, “I do not believe the appellant's evidence as to how the article came to be published. He was vague and hesitant. The ground upon which leave to appeal to the Tribunal was granted was that arguably the Adjudicator did need to consider the possible effect of the article, self serving though he found it: see Danian [2000] Imm AR 96.
Before us Mr O'Callaghan relied upon the article and argued that the Adjudicator had failed to consider the issue of risk on return properly in that he had disregarded the article on an improper basis. He argued that the Adjudicator ought to have considered in the light of the objective as well as subjective evidence whether the appellant would be safe from persecution in the DRC on his removal from the United Kingdom. He submitted that the Adjudicator's approach to the relevant evidence had been wrong. He asked that we give due weight to the objective evidence on DRC and also the decisions of the Tribunal in Mozu [2002] UKIAT 05308, and Bashiya [2002] UKIAT 00186. Mr O'Callaghan requested that the appeal be remitted for a fresh hearing before a different Adjudicator. When we asked whether there was any impediment as to why we could not deal with the appeal on its merits, Mr O'Callaghan said that as far as he was concerned, there was none. He submitted that the appellant would be at real risk of inhuman and degrading treatment on return because it would soon be discovered that he was a failed asylum seeker and that he had been active in dissident politics of the DRC in the UK.
Mr Buckley said he had “sympathy with the Counsel because it was not enough for the Adjudicator to find that the article was self-serving”. He said that the determination of the Adjudicator in this case was “bad” as he should have considered whether the appellant would be regarded as anti-government. He drew our attention to paragraph 5.22 of the CIPU on DRC and submitted that there has been some improvement in the conditions in the DRC but “not a lot”. He suggested that as the appellant has been away from the DRC for many years, his past activities, if any, would be of little interest or relevance to the authorities. He said that he would not oppose remittal of this appeal. When asked to address us on the merits, Mr Buckley simply said that the appellant would now be at less risk than before and that he would be likely to be arrested on arrival but investigations would not reveal anything adverse about him, He asked us to take account of the CIPU January 2003 Bulletin on DRC. And the decision of the Tribunal in Madjidi [2002] UKIAT 02245. Mr Buckley's attention was drawn by the Tribunal to Paragraphs 5.19, 5.20 and 5.21 and asked whether the contents of these paragraphs were contradictory to the contents of Paragraph 5.22, which he had asked us to bear in mind. He agreed that there is a contradiction but asked us to find that the return of the appellant to the DRC would not breach his rights under Article 3. In his final submission, Mr O'Callaghan drew our attention to the report of the expert and also Paragraph 5.33 of the CIPU. He asked us to bear in mind paragraphs 4.14 to 4.17 in the event the appellant is detained on arrival. He also reminded us that according to Paragraph 5.38 use of torture is common in the DRC. He asked that the appeal be allowed.
The parties are agreed that the decision of the Adjudicator is unsustainable. In our view he not only erred in failing to address properly the risk on return due to the article that the appellant was relying upon and his activities in the United Kingdom in support of democratic rights of people in the DRC, he also appears to have misread or misconstrued the objective evidence in relation to the DRC. With regard to the conditions in the DRC the Adjudicator has stated in his determination, “The CIPU report indicates that political parties are allowed to exist in the DRC particularly in Kinshasa. There is nothing in this appellant's past, which makes him stand out for attention. There is no reason why his article which voices concerns shared by many in the DRC should have ruffled feathers in the DRC to the extent of placing him in dander (sic) of ill treatment.” With great respect the Adjudicator understanding of the situation in the DRC is far removed from what is apparent from a full and not unduly selective reading of the CIPU. The government in the DRC is not a functioning democracy that the Adjudicator seems to have understood where “political parties are allowed to exist” and where the concerns raised by the appellant in his article “are shared by many”. Our reading of Paragraphs 5.19 to 5.22 of the CIPU leads us to believe that freedom of assembly and political association is severely restricted. “The Government considers the right to assemble and associate subordinate to the maintenance of public order. The Government requires all organisers to apply for permits, which are granted at Government's discretion. Public activities generally are dispersed by the security forces. The Government requires political parties to apply for permits to hold press conferences but such permits are frequently denied.” (Paragraph 5.19 of the CIPU). In our view the decree of 17 May 2001 which allows political parties to function legally and is therefore described as “liberalising political activities” is so full of conditions that...
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