KD (Risks on Return)
| Jurisdiction | England & Wales |
| Judge | Mr G Warr,Mr J A O'Brien Quinn |
| Judgment Date | 29 October 2003 |
| Neutral Citation | [2003] UKIAT 112 |
| Court | Immigration Appeals Tribunal |
| Date | 29 October 2003 |
[2003] UKIAT 112
IMMIGRATION APPEAL TRIBUNAL
Mr G Warr (Chairman)
Mr J A O'Brien Quinn, QC
KD (Risks on Return) DR Congo
The Secretary of State appeals the determination of an Adjudicator (Mr D.G. Zucker) who allowed the appeal of a DRC national (hereinafter referred to for convenience as the appellant) from the decision of the Secretary of State to refuse his application for asylum. The appeal was allowed on human rights grounds of appeal only, under Article 3.
Miss C. Hough appeared for the Secretary of State. Mrs P. Maudsley represented the appellant.
The appellant claimed to be a supporter of the MPR and he used to work as a singer accompanying the late President Mbutu and sign songs in his praise between 1990 and 1991. He worked in a bakery and in 1996 set up his own bakery. At a meeting which the appellant had called with his customers on 14 April 2000 to discuss the rising price of flour and bread, six soldiers came and arrested the appellant on suspicion of supporting rebels. The appellant declined to sign a paper incriminating him in this activity and was detained until an explosion near the place where he was held enabled him to escape.
The Adjudicator found a number of significant inconsistencies in the appellant's account which undermined it in its entirety. The Adjudicator made it clear that he was not accepting the appellant's credibility and had not satisfied him that he had been a singer in support of President Mbutu. He approached the case purely on the basis of a person who in fact had no reason to be concerned about being returned to the DRC. He then considered the evidence about returning failed asylum seekers to the DRC and found that the appellant would be returned on documentation obtained by the Secretary of State which would put the authorities in the DRC on notice that the appellant had sought asylum in the United Kingdom. In the light of the UNCHR letters — to which we will make reference below — there was a strong likelihood that the appellant would be interrogated and that ill-treatment would follow. He allowed the appeal on that basis.
Mrs Maudsley applied for an adjournment on the footing that the Tribunal was to consider the issue in what she described as a test case. She was aware that other appeals had been adjourned the previous week.
We carefully considered the application. We noted that this appeal had been listed for hearing on 21 July 2003 and there had been no application for an adjournment in advance of the hearing. Miss Hough had lodged two comparatively recently Tribunal decisions dealing with the relevant issues and we saw no reason why the case should be adjourned. We refused the application.
Miss Hough relied on the grounds of appeal and the cases of M [2003] UKIAT 00071 and N [2003] UKIAT 00050. These cases had been heard on 9 July 2003 and 9 May 2003 respectively. Both cases had two legally qualified chairmen as well as a lay member.
It was clear that the Tribunal in the case of N was concerned with the issue of risk on return as a failed asylum seeker — see paragraph 5 of the determination. At paragraph 43 the Tribunal had concluded as follows:
‘(a) On the information available to it, as at 9 July 2003, it is not the fact that a person returned to the DRC is, by reason only of being a failed asylum seeker, at real risk of persecution or Article 3 ill-treatment;
(b) In order to run a real risk of being taken into detention, following the screening of a returnee at Kinshasa Airport, there must be something further in the returnee's background, such as past political or military activities or nationality of a state regarded as hostile to the DRC.
(c) There is nothing in the circumstances of the appellant in this case to suggest that he would of any adverse interest to the DRC authorities.’
In N the first issue identified at paragraph 8 was whether the appellant would be at risk as a failed asylum seeker. The Tribunal considered at paragraph 10.8 that it would be inconceivable if there were a real risk of persecution in the DRC for returning failed asylum...
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Upper Tribunal (Immigration and asylum chamber), 2004-01-28, [2004] UKIAT 7 (VL (Risk, Failed asylum seekers))
...include K [2003] 00032, N [2003] UKIAT 00050, L [2003] UKIAT 00046, M [2003] UKIAT 00051, [2003] UKIAT 00058, M [2003] UKIAT 00071, D [2003] UKIAT 00112 and [2003] UKIAT 00136. It can be seen that there are two cases bearing the letter “M” : 00051 and 00071. We shall hereafter refer to M 00......
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VL (Risk-Failed Asylum Seekers)
...include K [2003] 00032, N [2003] UKIAT 00050, L [2003] UKIAT 00046, M [2003] UKIAT 00051, [2003] UKIAT 00058, M [2003] UKIAT 00071, D [2003] UKIAT 00112 and [2003] UKIAT 00136. It can be seen that there are two cases bearing the letter “ M”: 00051 and 00071. We shall hereafter refer to M 00......
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Upper Tribunal (Immigration and asylum chamber), 2003-10-29, [2003] UKIAT 112 (KD (Risks on return))
...} h4.cjk { font-family: "Times New Roman", serif } h4.ctl { font-family: "Times New Roman", serif } Ar KD (Risks on Return) DR Congo [2003] UKIAT 00112 IMMIGRATION APPEAL TRIBUNAL Date of Hearing : 26 September 2003 Date Determination notified: ...29/10/2003.... Before: Mr G Warr (Chairman)......