R P (DRC) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Phillips |
| Judgment Date | 09 December 2013 |
| Neutral Citation | [2013] EWHC 3879 (Admin) |
| Date | 09 December 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7141/2012 |
[2013] EWHC 3879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Transferred from
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Phillips
Case No: CO/7141/2012
Case No. CO/7194/2012
Christopher Jacobs (instructed by Duncan Lewis) for the Claimants
David Blundell (instructed by the Treasury Solicitor) for the Defendant
These proceedings raise the question of whether persons returned to the Democratic Republic of Congo ("the DRC") against their will are at real risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights simply by reason of their status as either (a) failed asylum seekers or (b) criminal deportees.
A series of country guidance cases has decided that, at least in the case of failed asylum seekers, no such risk arises except for those having or perceived to have a military or political profile in opposition to the DRC government. In the most recent of that series, BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098, the Upper Tribunal recorded the Secretary of State's concession (for the purposes of that case) that conditions in DRC prisons and detention centres were contrary to Article 3 (paragraph 177). The Tribunal further accepted that a person's status as a failed asylum seeker would be known at the point of return to N'Djili airport in Kinshasa, DRC (paragraph 188). But, after an extensive review of a large amount of documentary and witness evidence over a number of days, the Tribunal concluded that there was no evidence to substantiate the claim that returned failed asylum seekers to the DRC as such face a real risk of ill-treatment (paragraph 385).
The Tribunal added the following warning (paragraph 386):
" In the event of any future investigations being conducted of returned failed DRC asylum seekers, those concerned should take steps to ensure that basic relevant particulars are sought. Public funds, not to mention valuable judicial resources, are involved and must not be expended uselessly. In particular, we consider that where someone is known to have been a failed asylum seeker in the UK initial efforts should be directed to obtaining (with authorisation) details of that person's asylum claim and the outcome of any appeal …. that would at least ensure that the investigations into their claims about abuse on return have some external reference point for gauging the truth of what is now claimed."
In these proceedings R, a failed asylum seeker, contends that the country guidance in BK should not be followed in the light of more recent evidence to which I refer below. P, who is liable to automatic deportation to the DRC pursuant to s.32 of the UK Borders Act 2007 by reason of his criminal convictions in the United Kingdom, as well as having failed in an asylum claim, further contends that, in the light of the further evidence, criminal deportees to the DRC should be regarded as a new category of persons who are at risk of ill-treatment on return.
All parties were agreed that, although R's claim was subject to a mandatory transfer to the Upper Tribunal pursuant to s. 31A of the Senior Courts Act 1981, it was appropriate for the claims of R and P to be heard and determined together. I therefore directed that R's claim be transferred to the Upper Tribunal, but continued to hear the claim (concurrently with P's claim) as a Judge of that Tribunal as permitted by s. 6 of the Tribunals, Courts and Enforcement Act 2007.
The factual background
R is a national of the DRC, born in 1985. He arrived in the United Kingdom in November 2010 and applied for asylum, asserting that he feared persecution on the basis of his ethnicity as a Tutsi of the Banyamulenge clan. That claim was rejected by the Secretary of State and R's appeal and subsequent applications for permission to appeal were unsuccessful. R was detained on 28 June 2012 and the Secretary of State set removal directions for 5 July 2012
P is also a national of the DRC, born in 1987. He arrived in the United Kingdom in 2001 to join his parents and was granted indefinite leave to remain in 2003. Between July 2003 and May 2004 he was convicted of offences of street robbery, affray and assault on a police officer. In June 2006 he was convicted at Blackfriars Crown Court of robbery, sentenced to detention for public protection with a minimum term of 2 years 6 months and placed in a young offender institution. On 14 March 2011 a deportation order was made against P. His appeals against that order and against the refusal of his claim for asylum were unsuccessful. On 14 May 2012 an emergency Travel Document was agreed with the DRC authorities. P was detained on 28 June 2012 and deportation arrangements were set for 5 July 2012.
The 5 July 2012 injunctions and the start of these Judicial Review proceedings
On 3 July 2012 Mary Glindon MP sent an e-mail to Halliday Reeves Solicitors, who were acting for a DRC national who was about to be returned to that country on the same flight as R and P. The e-mail included the following passage:
"Last week I attended a meeting organised by the All Party Parliamentary Group, which was addressed by the [DRC] Ambassador, Barnabe Kikaya Bin Karubi. I raised the issue of the failed asylum seekers plight.
He type-cast all of these people saying that they have come to this country as members of the former oppressive regime in the DCR, are here because we have a good benefit system and having committed terrible crimes in this country have to be suitably punished when they return to the Congo. As Ambassador, he signs the deportation papers!"
On 5 July 2012 both R and P, through their Counsel, Mr Jacobs, applied urgently by telephone to Hamblen J. for injunctions to restrain their removal from the United Kingdom, relying upon the above e-mail and an order made earlier that day by Collins J. in the case of D (CO/5969/2012) in which Collins J stated as follows:
"While the Claimant has no personal merit, there is concern at the Ambassador's statement to the MPs. I think this should be investigated and an answer given by the Secretary of State since it can affect all returns to the DRC. Thus I am prepared to direct that he should not be removed pending disposal of this claim or further order."
Hamblen J. agreed with the approach of Collins J. and granted injunctions to restrain the removal of R and P.
On 6 July 2012, as required by Hamblen J's orders, R and P each filed the present claims for judicial review, relying on the DRC Ambassador's alleged statement and also upon a report entitled Unsafe Return compiled by Catherine Ramos of Justice First, a registered charity set up in 2006 to work with people in the Tees Valley who are claiming asylum. The report, dated 24 November 2011, was based on accounts (in most cases said to be first-hand) of the post-return experiences of 17 failed asylum seekers (and their 9 children) returned to the DRC between August 2006 and June 2011. All 17 had had their asylum claims refused in the United Kingdom and (according to Mr Jacobs' skeleton argument) had not been found to be credible. According to the report, the accounts given to Ms Ramos revealed that the human rights of all 9 of the children and 15 of the adults were violated. In particular, it reported that 13 returnees were subjected to some degree of interrogation, arrest, imprisonment, verbal, physical and sexual abuse, rape and torture. However, as all of the asylum seekers had requested anonymity, none of them was identified in the report.
Subsequent investigations and developments
On 16 August 2012 the DRC Ambassador wrote to Mary Glindon MP, copied to the UKBA among others, stating that he had been misquoted as to what he had said to the All Party Parliamentary Group. The Ambassador stated that:
"… at your question regarding the return of asylum seekers to the [DRC] who, allegedly are arrested, tortured and humiliated, I responded by saying that it was not the case. Congolese citizens who failed to acquire asylum in the United Kingdom are reunited with their families upon arrival…
Nevertheless, people who are being deported for having committed crimes in the UK are held in custody for a period of time to allow the congolese justice system to clarify their situation".
In the meantime, between 18 and 28 June 2012, the Country of Origin Information Service of the UKBA had undertaken a Fact Finding Mission ("the FFM") to Kinshasa, DRC, to acquire information about the procedure for and treatment of Congolese nationals returning to the DRC from the United Kingdom and western Europe. The results of the FFM were published in November 2012 in a report running to 107 pages, setting out information obtained from a large number of interlocutors.
In the light of the FFM report, the UKBA issued a Country Policy Bulletin ("the Bulletin") dated November 2012 to confirm its policy in relation to returns to the DRC. The Bulletin also considered the Unsafe Return report, but noted (paragraph 5.2.6) that the UKBA had not been provided with details of the individuals making the allegations, despite the fact that they were stated to have been in the asylum process...
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