NL (Mozu-Facts)
| Jurisdiction | England & Wales |
| Judge | J Barnes,Prof D B Casson |
| Judgment Date | 03 September 2003 |
| Neutral Citation | [2003] UKIAT 58 |
| Court | Immigration Appeals Tribunal |
| Date | 03 September 2003 |
[2003] UKIAT 58
IMMIGRATION APPEAL TRIBUNAL
J Barnes
Prof D B Casson
For the Appellant: Mr M Connor, Counsel instructed by Christian Khan Solicitors
For the Respondent: Mr A Hatton, Home Office Presenting Officer
NL (Mozu-Facts) Democratic Republic of Congo CG
The appellant is a citizen of the Democratic Republic of Congo, (formerly Zaire) (DRC) who was born on 16 May 1963. He entered the United Kingdom on 27 July 1997 and applied for asylum on arrival, he was accompanied by his wife and five children who are his dependents in this appeal. Following an interview on 18 May 1999 his application was refused for the reasons set out in a letter dated 12 March 2001. On 11 April 2001, the Secretary of State issued directions for his removal to the Democratic Republic of Congo following refusal of leave to enter after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds. His appeal was heard on 3 March 2003 by Mr R G Walters, an Adjudicator, who dismissed his appeal. He now appeals to the Tribunal against that decision.
The basis of his claim was that following studies in Morocco from October 1987 until January 1995 he returned to his own country which was then under the rule of President Mobutu and his party, the Mouvement Populaire de Revolution (MPR), and managed to obtain work in July 1995 with his brother-in-law in a garage. The appellant was put in charge of the financial department and, although he said that he supported the Union pour la Democratie et le Progres Social (UDPS) whilst at University in Morocco, he became a member of the MPR because his brother-in-law was a member and he considered himself obliged to do so. He became known to one of the President's sons and acted as his customs agent in retrieving merchandise from the port supported by a Presidential guard escort. He said this made him known in his own area as an influential MPR member, but because his main allegiance was to UDPS he claimed to have been involved in a dialogue between the UDPS and the MPR from the end of 1995 and subsequently with additional negotiations with the rebel Alliance de Forces Democratique pour la Liberation (AFDL) aimed at seeking to establish a future power base in the DRC. He and a friend went to Kisangani in March 1997 but the rebels were in the process of capturing the town and denied any knowledge of the intended dialogue when his friend raised the issue with them. The appellant and his friend escaped back to Kinshasa where he remained until Kabila's troops entered on 17 May 1997. At that point anyone who had worked for the Mobutu regime was at potential risk and he fled into hiding, making arrangements to leave the country on 25 July 1997 by air with his family to Belgium whence they made their way to this country. Since his arrival in the United Kingdom he has been a member of the UDPS and he now feared that if he was returned to his own country he would be at risk because of his membership of the UDPS which he would continue to demonstrate there.
The Adjudicator accepted that the appellant had been a member of the UDPS since his arrival in the United Kingdom although he agreed with the view of the Secretary of State that this was a calculated measure intended to create or substantially enhance his claim to asylum here.
The Adjudicator rejected parts of the claim made as to his experiences in his own country prior to departure. He did not accept that he would have had to join the MPR in order to keep his job in what was a firm owned by a member of his family saying:
“it is not an action which I find consistent with that of a supposed Democrat as the appellant claims to be”.
In relation to the trip to Kisangani he did not accept that the appellant had been detained there or persecuted by reason of his political opinion by AFDL soldiers. He said this at paragraph 33 of the determination:
“I find that he was detained in the hotel by the drunken soldiers as a means of extracting any property from him which he might have. The appellant was seen simply by the soldiers as a relevantly rich man from whom they believed they could obtain money and goods.”
He continued at paragraph 35:
“I did not find the appellant's evidence credible that he had been involved in these various negotiations with the AFDL and other political groups. There is no evidence that the appellant had any real political power or any constituency. His jobs were to work in the accounts department of the garage and help Mobutu's son avoid customs duties on imported goods. He held no political office in Mobutu's party. I could think of no reason why the AFDL would be interested in talking to him at all. He described himself in interview as being a member of a group of a young people [sic] who tried to think about ways to change the situation and lead to dialogue. Such a group, I find, would be on no interest to the Kabila regime.”
Dealing with the Adjudicator's conclusions in relation to the past history in DRC, we accept that there is background evidence, including that in the expert report of Dr Eric Kennes of 17 February 2003 which appears at pages 69 to 116 of the appellant's bundle, which would support at least the advisability of membership of the MPR at that time in what was then a one party state. It seems to us that the ground of appeal which challenged what the adjudicator said at paragraph 27 of his determination is based on a misconception as to what he was in fact saying. It was assumed, and Mr O'Connor maintained this assumption in his submissions to us, that the adjudicator was saying that the appellant had not joined the MPR at all. That, with respect, is not what the paragraph in question says. It says merely that the adjudicator does not accept that
“he would have to join the MPR in order to keep his job.”
That had been the appellant's evidence. That paragraph 27 has such a more restricted meaning is made clear by paragraph 38 of the determination which is as follows:
“the appellant gave evidence that if returned to the DRC he would continue his activities on behalf of the UDPS. I did not believe that evidence. I think it more probable that he would adjust his political affiliation to that of the regime in power as he did on the previous occasion.” (our emphasis)
In other words the Adjudicator is saying no more than that he believed the appellant was prepared to trim his political affiliation to suit the circumstances in which he found himself.
Turing to paragraph 35 and the reasoning there, it is challenged on two bases in the grounds of appeal. First, that the appellant was not suggesting that he was the main person carrying out front line negotiations with the AFDL and that the Adjudicator should have explored the extent to which the appellant was involved and whether he would be targeted because of his association with other persons of influence; secondly, that Dr Kennes did confirm that there had been secret talks between MPR, UDPS and AFDL members around 1996-1997 and that the AFDL had subsequently attacked influential members of the other groups they formerly held talks with. Given that the position put forward in the grounds of appeal is that at best the appellant played some sort of support role, entirely contrary to what we perceive to be the thrust of the claims made at interview and in his subsequent witness statement, it does not seem to us that the grounds of appeal raise any arguable issue that the Adjudicator's findings were not sustainable on the evidence before him. Before us, Mr O'Connor sought to rely on the claims made at interview that the friend whom he said was actually conducting the negotiations with the AFDL was, according to information he received, killed by rebel troops on their arrival in Kinshasa. The Appellant later learned that his own house had been looted and that his parents had been threatened in their home. Initially Mr O'Connor put it to us that the threats to the parents had been because the appellant was being sought by the invading troops but he subsequently conceded that there was nothing in the evidence at interview or in the appellant's statement which would support that additional gloss. The fact of knowledge of the sort of dialogue which may have being going on at the time does not seem to us arguably to advance the credibility of the appellant who was, it is accepted, a UPDS member in the United Kingdom for six years. It is clear from Dr Kennes' report that the fact of the existence of such dialogue in the state of turmoil then existing in the country is historically known. Given the situation which then existed, it is no criticism of the appellant that he chose to remove himself and his family as soon as he was able to arrange to do so, but the fact remains that on his own account he left by air from Kinshasa in late July 1997, some two months after the Kabila regime had been established, at a time when the new government, although dominated by...
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