Upper Tribunal (Immigration and asylum chamber), 2005-06-13, [2005] UKAIT 102 (JT (Tutsi, Failed asylum seekers, Evidence))
| Jurisdiction | UK Non-devolved |
| Judge | Mr K Drabu, Mr J Lever |
| Status | Reported |
| Date | 13 June 2005 |
| Published date | 28 June 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 12 May 2005 |
| Subject Matter | Tutsi, Failed asylum seekers, Evidence |
| Appeal Number | [2005] UKAIT 102 |
JT (Tutsi - failed asylum seekers – evidence) Democratic Republic of Congo [2005] UKAIT 00102
Heard at Manchester Hearing Centre
On 12 May 2005
Determination promulgated:
Before:
Mr K Drabu (Senior Immigration Judge)
Mr John Lever (Immigration Judge)
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Schwenk of Counsel, instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Mr Wood, Home Office Presenting Officer
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We heard this appeal in pursuance of the IAT direction for re-consideration afresh. The Asylum and Immigration Tribunal Practice Directions paragraph 14.11 state that: ‘Where immediately before, 4 April 2005, an appeal was pending before an Adjudicator, having been remitted to an Adjudicator by a court or the IAT it will already have been decided that the original Adjudicator’s determination cannot stand. The Tribunal will accordingly proceed to rehear the appeal.’ Pursuant to Rule 31(3) of the Asylum and Immigration Appeal (Procedure) Rules 2005, we are obliged, therefore, to substitute a fresh decision to allow or dismiss the appeal.
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The facts of the case as put to the respondent initially were as follows: The appellant is a national of the Democratic Republic of Congo. He was born on 1 December 1984 in Seke, DRC. He claims to have arrived clandestinely in the United Kingdom on 8 September 2004. On 13 September 2004 he applied for asylum at the ASU. On 28 October 2004 the respondent made a decision to refuse to grant asylum under paragraph 336 of HC395 (as amended) and on 1 November 2004 the respondent decided to give directions for his removal as an illegal entrant from the United Kingdom under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971.
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The decision to refuse to grant asylum and to give directions for removal was made for the reasons stated in the Reasons for Refusal letter dated 28 October 2004. In paragraph 5 of that letter the basis of the appellant’s claim is summarised as follows: “The basis of your claim is that you are of Banyamulenge Tutsi ethnicity. You claim that you were educated in Zambia. You claim that after your education in 1999, you returned to the Democratic Republic of Congo (DRC) and in June or July 2001 your brother, who was a soldier for the Rassamblement Congolais pour la Democratie (RCD) was killed by government forces. Soon after you state that the Mai Mai raided and destroyed your home village. You claim that you were accused of supporting the RCD and the Mai Mai took some hostages from your village including your stepmother, but you were able to escape. You state that in October or November of 2003 you were apprehended by the RCD and were made to work for them for about two months. You claim that when they knew your name and where you came from they realised that you were of Tutsi origin and insisted that you join them as a soldier. You state that around Christmas of 2003 you managed to escape from the RCD by slipping out of the lorry they were using to transport you to a training camp. However you claim that you were then captured by the Mai Mai who noticed strap marks on your body sustained from carrying items and assumed from this that you were RCD soldiers. You state that you were taken to a camp and questioned about your activities. You allege that you were beaten with sticks and rubber batons. You claim that you were arrested as prisoners of war and the Government soldiers then came and questioned you. You claim that they did not believe that you were an active member of the RCD and so you were released around February 2004. You state that a friend told you that government forces and Mai Mai had killed your other brother. You claim you then did casual work and left the DRC by boat on 28 July 204. You fear that if you are returned to the DRC you will be tortured and beaten by Mai Mai rebels or the Interahamwe rebel Hutu group on account of your ethnicity. You fear that the DRC Government forces will imprison you because you are a Tutsi. In addition you fear retribution from the RCD because you escaped from the convoy taking you to training camp.”
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The letter then goes on to give reasons for the decision of the respondent. In summary the respondent does not accept the appellant’s claim of being a Tutsi. The letter gives a number of reasons for rejecting the appellant’s claim of being a Tutsi including the fact that he had on his own account lived in the DRC without difficulties from December 2001 to November 2003 doing casual work in various areas of the DRC which according to the respondent would not have been possible had he been a Tutsi. The respondent also disbelieved the appellant in his claim to have escaped from the custody of the Mai Mai as well as his claim to be detained by the RCD and his escape from the RCD. Having considered and rejected the appellant’s claim for asylum, the respondent considered and also rejected the appellant’s claim to Humanitarian Protection under Articles 2 and 3 of the ECHR and Discretionary Leave for infringement of Article 8.
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When we heard the appeal the appellant said that he does not need an interpreter and that his command of English language is good. Mr Schwenk confirmed that an interpreter was not needed. The appellant gave oral evidence, relying on his bundle of documents, which included his two written statements dated 6 January 2005 and 28 April 2005. He confirmed the veracity of these statements and also the contents of his statement made on 29 September 2004, which he had submitted, to the respondent. He said he does not presently have a passport or a travel document. He said that he receives £31 from NASS for his maintenance. He said that if he is returned to the DRC and if he were required to pay a bribe on arrival to secure his safe entry, he would have no money to pay. He said that the reason Tutsis are discriminated and harassed in the DRC is because they are seen as foreigners and troublemakers. He said that if he is sent to Kinshasa he would be subject to the same treatment as anywhere else in the DRC as the authorities in Kinshasa are also hostile to Tutsis. He said that in Kinshasa he would have language difficulties as he speaks English and not French. He said he would be victimised and discriminated against in Kinshasa.
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In cross-examination the appellant was taken through the answers that he had given at his interview and the statements that he had made in writing. He was asked what had happened to the other people who had been with him and who had been asked by the by the government forces to take guns and uniforms. He said he did not know. When asked if he knew where his father had been born, he said that he did not know. When asked to name big towns around his birthplace Seki, the appellant named Kosongo and Ovira and said that different languages are spoken in these areas. He said that his stepmother had funded his education in Zambia and that he had returned from Zambia in 2000. When asked why he had not re-located in the DRC he said that he could not as the Mai Mai were everywhere. He was asked to explain why he had described himself as unemployed in the DRC when according to his written statement he had worked on the ship. He said that he had said so because when he left the DRC he was unemployed. He had been employed in 2002/2003. He was asked why he had gone to Seke when he should have known that area to be unsafe. He said that he had gone there because his sister and mother were there and he did not know who was controlling Seke at that time. When asked about his passport he said that he had lost it on the boat. It had been issued in the DRC and he had always carried his passport on him. He explained that when he had been detained by the RCD he had the passport with him. Neither the RCD nor the Mai Mai had ever asked him to show his passport. When asked to explain his answer given at the interview that at the time of his arrest by the RCD he did not have his ID with...
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