Mm (Risk- Failed Asylum Seekers)
| Jurisdiction | England & Wales |
| Judge | P R Lane |
| Judgment Date | 15 August 0003 |
| Neutral Citation | [2003] UKIAT 71 |
| Year | 2003 |
| Court | Immigration Appeals Tribunal |
| Date | 2003 |
[2003] UKIAT 71
IMMIGRATION APPEAL TRIBUNAL
Mr P R Lane (Chairman)
Mr M L James
Mr T B Davey
For the Appellant: Mr K Behbahani of Messrs Scudamores Solicitors
For the Respondent: Ms C Hanrahan, Senior Home Office Presenting Officer
MM (risk- failed asylum seekers) Democratic Republic of Congo
The appellant, a citizen of the Democratic Republic of Congo, appeals with leave against the determination of an Adjudicator, Mr K W Brown, sitting at Taylor House, in which he dismissed on asylum and human rights grounds the appellant's appeal against the decision of the Secretary of State on 3 January 2001 to refuse him leave to enter the United Kingdom.
The appellant's account was that he had serious difficulties in (what is now) the DRC during the year 1998, as a result of renting rooms to Rwandans. He also said that his wife had Rwandan connections, in that her father was Rwandan, although she herself was a national of Zaire. There were searches of the appellant's house for Rwandans, during one of which he and his wife ran into the street and became separated. The appellant said that in February 1999, when attempting to leave the DRC, he was apprehended. The soldiers holding him saw a photograph of his wife which he had about him and asked the appellant where his wife was. Subsequently, however, the appellant was able to escape. From then until October 1999, he lived with a family in the DRC. He left the DRC in October 1999. He produced what was said to be a death certificate relating to his wife, giving a date of death of 26 February 1999.
The Adjudicator heard evidence from the appellant. He did not find the appellant to be credible. Indeed, at one point, the Adjudicator considered that “the appellant was making up his story of the escape and subsequent events as he went along” (determination, paragraph 34). The Adjudicator concluded that “I do not accept the appellant has given a credible account”. He did not consider that the purported death certificate was authentic “as providing evidence to support that his wife was killed as a result of torture at the hands of the DRC authorities” (paragraph 35).
The Vice President who gave leave to appeal found that
“The adverse credibility findings are sound. In particular, the Tribunal considers that the Adjudicator was entitled to find implausible the claims that on the one hand the Rwandans on the claimant's premises would not have been discovered on the first occasion when the premises was searched, on the other hand that he would have allowed them to remain living there given the threat that they posed. The findings about his escape from custody and its implausibility are also sound.”
Leave to appeal was given on the following basis:
“However, it is right to make the point as was done in the grounds of appeal that there are no findings by the Adjudicator on risk on return as a failed asylum seeker. It would appear from the submissions before the Adjudicator that there may be contrasting Tribunal determinations on the point, and it is appropriate therefore for the matter to be considered and clarified by the Tribunal.”
Mr Behbahani's submissions were, in essence, that, on the basis of the latest information available to the Tribunal, including in particular the UNHCR letters to which we shall make reference, there was a real risk that the appellant, if he returned to the DRC, would face persecution, the nature of which would also fall within Article 3 of the ECHR, as being cruel, inhuman or degrading.
Mr Behbahani very properly conceded that it was reasonable to infer from the Adjudicator's determination, in particular paragraphs 33 to 36, that the Adjudicator had not found any aspect of the appellant's account to be credible. This would include the appellant's claim to have been married to a woman whose father was of Rwandan ethnicity.
However, for the purposes of this appeal, the Tribunal indicated that it would proceed on the following basis:
i) The appellant is a citizen of the Democratic Republic of Congo.
ii) He has been in the United Kingdom for approximately three and three-quarter years, having arrived on 27 October 1999.
iii) If returned, he would arrive in the DRC as someone who had made an unsuccessful claim for asylum in the United Kingdom.
iv) The appellant was previously married to a DRC citizen whose father was Rwandan but who has since died.
The Tribunal would, however, emphasise that there is no question of its acceptance that the appellant and his wife suffered any of the problems described to (and rejected by) the Adjudicator, in particular, that the wife died at the hands of the DRC authorities.
In addition, there is the following matter. The Tribunal was concerned to ascertain the basis upon which the appellant would be returned to the DRC by the United Kingdom government. Ms Hanrahan was unable to answer this question immediately, so the Tribunal adjourned briefly so as to enable her to take instructions.
At the resumed hearing, Ms Hanrahan was able to give the Tribunal the following information:
a) The UK Government in the past removed persons to the DRC by mean of EU travel documentation.
b) That practice has ceased. Ms Hanrahan was unable to say precisely when, but it appears from a Home Office bulletin of January 2003 that the practice ceased prior to 30 January 2003.
c) A person in possession of a valid DRC passport can currently be removed.
d) The UK Government is in negotiation with the DRC Embassy in London with a view to arranging for those not in possession of such a passport to be returned to the DRC upon an emergency travel document.
e) Such a document would confirm that the person concerned is a DRC national but would not contain any other information as to why he or she had been present in the United Kingdom.
The recent history of the Democratic Republic of Congo is well known and the Tribunal does not consider that it would be of material assistance to set it out in this determination. It is, however, relevant to mention the following. On 30 July 2002 a peace agreement was signed in Pretoria, South Africa, by President Kabila of the DRC and President Kagame of Rwanda. Under this, the DRC government agreed to disarm and arrest thousands of Hutu rebels and send them to Rwanda, whilst the Rwandan government was to withdraw 30,000 of its troops based in Eastern DRC. Hutu rebels did not recognise the agreement. On 6 September 2002 the DRC government and the government of Uganda signed the Rwanda Accord, which called for the withdrawal of Ugandan troops from the DRC and the establishment of joint security patrols along the DRC's border with Uganda. Rebel factions continued to hold sway in the eastern and northeastern areas of DRC. However, on 2 April, one rebel organisation, the Movement for the Liberation of Congo, signed a power-sharing agreement with the DRC government. According to a BBC news report of January 2003, the MLC has installed representatives in Kinshasa, although Jean-Pierre Bemba, the MLC leader, has not ventured there. Reports of atrocities in the northeast continue to be received, and there are suggestions that dissident MLC commanders have formed a splinter movement. In May 2003, UN troops sought to assist those caught up in the violence in the northeast, but large numbers of civilians fled across the border to Uganda. In that part of the DRC, including Kinshasa, which is controlled by the Kabila government, there are still serious human rights problems, as the latest US State Department report observes. In particular, citizens do not have the right to change their government peacefully and the security forces were (during 2002) responsible for unlawful killings, torture, beatings, rape, extortion and other abuses. In general security forces committed these abuses with impunity. Prison conditions in hundreds of smaller regional detention facilities (both legal and illegal) remained harsh and life threatening; however, conditions in some of the larger, centralised prisons improved. Security forces continue arbitrarily to arrest and detain citizens. Prolonged pre-trial detention remains a problem. The Special Military Tribunal (COL) tried some civilians for political offences, although most cases were related to the Kabila assassination or to alleged coup plotting. The judiciary continue to be under funded, inefficient, and corrupt. All this we take from page 2 of the State Department report, set out at page 19 of the appellant's objective evidence bundle. Altogether, some 3 million people are estimated to have been killed during the course of the civil war, making it the largest conflict, in terms of loss of life, since World War II.
Such is the sorry state of the Democratic Republic of Congo, as it is to be found today. One point should, however, be mentioned at this stage. It was not argued on behalf of the appellant that, irrespective of what might happen to a person at Kinshasa airport, upon arrival from abroad, the situation in the DRC is such that everyone living in the government-controlled part of the country (other than those comprising or directly associated with the government) is as such at real risk of Article 3 ill treatment. Furthermore, the Tribunal is not aware of any claims to this effect in the documentary material on DRC currently available, whether emanating from a governmental or non-governmental source.
The situation in the DRC is, however, relevant, in Mr Behbahani's submission, to the question of whether the appellant, assuming him to be returned to Kinshasa by air as a failed asylum seeker from the United Kingdom, would as a result thereof be at real risk of coming to the adverse interest of the DRC...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2004-01-28, [2004] UKIAT 7 (VL (Risk, Failed asylum seekers))
...are not at risk. They 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 h......
-
VL (Risk-Failed Asylum Seekers)
...are not at risk. They 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 h......
-
KD (Risks on Return)
...no reason why the case should be adjourned. We refused the application. 7 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 ch......
-
Upper Tribunal (Immigration and asylum chamber), 2003-10-29, [2003] UKIAT 112 (KD (Risks on return))
...reason why the case should be adjourned. We refused the application. 7. 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 chai......