Mk (AB & Dm Confirmed)
| Jurisdiction | England & Wales |
| Judge | Dr H H Storey,Senior Immigration Judge |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2006] UKAIT 1 |
| Date | 29 November 2005 |
| Court | Asylum and Immigration Tribunal |
[2006] UKAIT 1
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Dr H H Storey (SENIOR IMMIGRATION JUDGE)
Mr L V Waumsley (SENIOR IMMIGRATION JUDGE)
For the Appellant: Mr N Sekhon, Counsel, instructed by Switalski's Solicitors
For the Respondent: Mrs R Pettersen, Home Office Presenting Officer
MK (AB & DM confirmed) Democratic Republic of Congo CG
The June 2005 HJT report concerning suspension by the Netherlands of the return of asylum seekers to DRC does not afford a sufficient basis for modifying the conclusions on failed asylum seekers reached in AB & DM .
The appellant is a national of Democratic Republic of Congo (DRC). By a determination notified on 16 August 2005, the Immigration Judge allowed on human rights grounds only the appellant's appeal against the decision to refuse to grant asylum and to refuse to grant leave to enter. The respondent seeks reconsideration of the determination.
The Immigration Judge did not find the appellant's account credible and he rejected it ‘in its entirety…’ (paragraph 57). Having rejected the asylum claim he went on to consider the appellant's human rights claim. At paragraphs 59 to 60, with reference to the issue of risk on return to failed asylum seekers, he stated:
‘I note the discrepancy between the evidence from the British Ambassador and the human rights activist. The letter from the British Ambassador post dates the information from the human rights worker. There is however evidence that this practice of detention assault and extortion of deportees continues as at 27 June 2005 if a person is unmasked as an asylum seeker (B60).
Given the findings I have made and guidance case law which I believe is out of date and does not take account of the Dutch information I accept its is reasonably likely the appellant will be subjected to inhuman or degrading treatment if returned to DRC given paragraph 34 and 35 above.’
Essentially therefore the Immigration Judge decided to allow the appeal because he considered that the appellant, as a failed asylum seeker, would be at real risk on return of ill-treatment contrary to Article 3.
The grounds alleged that this decision manifested a failure to follow a country guidance determination, that of AB and DM (Risk categories reviewed — Tutsis added) [2005] CG DRC UKIAT 00188 in particular.
At the reconsideration hearing Mr Sekhon submitted firstly, that the Immigration Judge could not be said to have materially erred in law in failing to follow AB and DM because neither of the parties had put the case before him and he plainly did not know about this decision, which was excusable because it had only been promulgated (on 21 July 2005) some four or five weeks prior to the hearing of this appeal on 12 August 2005. Secondly, in paragraphs 59–60 the Immigration Judge had effectively relied on compelling fresh evidence consisting in the evidence of the continuation as at 27 June 2005 of detention, assault and extortion of deportees if a person is unmasked as an asylum seeker. The reference he made was to an HJT Research News Reporting Service Item of 27 June 2005 which stated:
‘Netherlands suspends returns of asylum seekers to DRC following reported leaks of official documents
HJT Research News Reporting Service
27 June 2005
Dutch immigration minister Rita Verdonk announced a temporary halt of returns of failed asylum seekers to the Democratic Republic of Congo after official documents were reported to have been leaked to Congolese officials, BBC news reported on June 24th.
According to BBC News, the announcement came at a special sitting of the Netherlands parliament following a report by the Dutch Netwerk current affairs programme last week. Congolese officials, BBC News reported, were said to have obtained confidential documents on several deported asylum seekers. The deportees were then “abused” by Congolese officials, BBC News said.
An independent enquiry would be set up to investigate how the files were leaked, BBC News reported.
BBC News added that Dutch media reports said human rights organisations had warned that deportees faced the “serious risk of imprisonment, extortion and assault if unmasked as asylum seekers”.
Expatica News (a news and information website for expats in Europe) reported on June 22 that minister Rita Verdonk had been called on to resign following the revelations. Expatica said that the Netwerk current affairs programme had reported that Congolese authorities had obtained official documents relating to Dutch asylum applications in at least three cases.
According to Expatica, anonymous sources within the Congolese immigration service (DGM) and the country's security service (ANR) had told Netwerk that returnee asylum seekers “risk being held for detention for days, assaulted and receive a fine”. Expatica reported that it was also alleged by some former asylum seekers that the Congolese authorities had been fully aware of the statements they had made in their asylum applications in the Netherlands.
BBC News reported that minister Verdonk had previously reassured the Dutch parliament on several occasions that failed asylum seekers' files were kept secret.'
It is clear that that the Immigration Judge in this case was unaware of, or had overlooked, the AB and DM...
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