Kibiti v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 2000 |
| Date | 21 July 2000 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Peter Gibson, Chadwick, Buxton LJJ
M Gill QC and Miss E Dubicka for the appellant
Miss E Grey for the respondent
Case referred to in the judgments:
Adan v Secretary of State for the Home DepartmentELR [1999] AC 293: [1998] Imm AR 338.
Asylum appellant from the Congo appeals against refusal of asylum dismissed Tribunal concluded that a state of civil war existed in the Congo on the facts and following Adan appellant outwith the Convention whether Tribunal approach correct in law.
Evidence counsel for appellant sought to rely on report not in existence at date of Tribunal hearing whether counsel so entitled to rely on such evidence the ambit of an appeal under s. 9 of the 1993 Act.
The appellant was a citizen of the Congo. He had been refused asylum by the Secretary of State. His appeals to a special adjudicator and the Tribunal had been dismissed.
The Tribunal had concluded that there was a state of civil war in the Congo and thus, following Adan, the appellant was therefore outwith the Convention.
That approach was challenged by counsel who sought inter alia to rely on a report which had been written after the Tribunal hearing: counsel for the Secretary of State submitted it was inadmissable.
Held
1. The Tribunal approach to Adan was correct. In cases where it might apply the following guidance was to be followed:
.1 Was there a civil war in progress in the country in question?
.2 If so, a person who suffered the incidents of that war as a member of one or other of the participating parties could not claim he was persecuted for a Convention reason even if the parties were divided on what would otherwise be Convention grounds.
.3 Where there was a civil war a person could only claim the protection of the Convention if he had a fear of persecution over and above that attaching to his involvement in the civil war and that fear of persecution was for a Convention reason.
.4 If there were no civil war the usual Convention rules applied.
2. On the facts the appellant was outwith the Convention.
3. It was inappropriate for counsel to seek to rely on evidence which was not in existence at the date of the Tribunal hearing, an appeal under section 9 being limited to any question of law material to the determination.
1. Peter Gibson LJ: I will ask Buxton LJ to give the first judgment.
2. Buxton LJ: The appellant in this case, Mr Romain Kibiti, is an asylum seeker who comes from the Congo. The issues in the appeal concern the current state of affairs in that country and the conclusions and reasoning of the Immigration Appeal Tribunal in relation to Mr Kibiti's claim for asylum, particularly in the light of the Immigration Appeal Tribunal's application of the case of Adan v Secretary of StateELR [1999] AC 293 (which I shall refer to as Adan).
3. It is necessary at first to say something briefly about the history.
4. In August 1992 President Lissouba came to power in the Congo by democratic election after a lengthy period of one-party rule. There was an almost immediate outbreak of very serious violence, and, according to an Amnesty International report which was before the Tribunal and is before us, 2,000 people are reported to have been killed and many thousands more displaced from their homes by the end of the year. The fighting appears to have degenerated into attacks on ethnic grounds.
5. Sporadic violence continued thereafter. But in 1995 President Lissouba and his opponents, particularly Mr Sassou, signed an agreement to end the hostilities. Militias attached to various political parties continued in existence, despite Government attempts to disband them, and there were disabling flare-ups of violence over the following year.
6. In June 1996 the appellant left the Congo, travelling through Zaire and Belgium to the United Kingdom. I will return shortly to his account of what had happened to him when he was in the Congo and to the grounds upon which, on arrival in this country, he sought asylum.
7. In 1997 there were about to be elections in circumstances that apparently gave rise to further violence. A group called the Cobras, who were the supporters of Mr Sassou, were suspected of planning a coup d'tat. The President, Mr Lissouba, attempted to arrest Mr Sassou and fighting broke out between the supporters of the two parties. In October 1997 Mr Sassou took over power, with assistance from outside forces, and Mr Lissouba was overthrown. What happened thereafter in the state of affairs in the country is a matter of controversy in this appeal. I shall have to revert to it.
8. When he made his application to the Secretary of State and when he appeared before the special adjudicator, who upheld the Secretary of State's decision not to grant Mr Kibiti asylum, Mr Kibiti gave an account of attacks on him and violence towards him prior to his leaving the Congo. The special adjudicator was not prepared to accept more than a small amount of what Mr Kibiti said because he did not find Mr Kibiti to be a witness of uniform credibility. It is not, however, necessary to go over those matters because the basis of Mr Kibiti's application, at least before the Immigration Appeal Tribunal, and certainly the exclusive basis of the argument before us, has related to what is likely to happen to him should he be returned to the Congo in the light of the present state of disruption in that country. True it is that the special adjudicator did, nonetheless, consider in some detail Mr Kibiti's reasons for coming here, and held that he had come here for economic rather than Convention reasons. But the centrality of the case as put by Mr Kibiti throughout his applications is to be found in the account of it given by the special adjudicator at page six of his determination. He said that he had a Convention reason and, to quote the special adjudicator:
The Convention reason was because he was a Bebembe and his ethnic background. The fear was reasonable. If there was a civil war Adan...
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E v Secretary of State for the Home Department
...these issues by apparently conflicting approaches in two separate lines of Court of Appeal authority. A strict approach was taken in Kibiti v Home Secretary [2000] Imm AR 594, and more recently in AE and FE v Secretary of State [2003] EWCA Civ 1032. A more flexible approach was developed in......
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Upper Tribunal (Immigration and asylum chamber), 2009-01-27, [2008] UKAIT 91 (AM and AM (Armed conflict: risk categories))
...(704-705; see also the Court of Appeal’s application of Adan’s guidance in Romain Kibiti v Secretary of State for the Home Department [2000] Imm AR 594, in which Buxton LJ on p.599 stated: “In our judgment the current situation in the Democratic Republic of Congo is properly to be described......
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Am & Am (Armed Conflict: Risk Categories)
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E v Secretary of State for the Home Department; R v Same
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