VL (Risk-Failed Asylum Seekers)

JurisdictionEngland & Wales
JudgeDr H H Storey,Mr G Warr,Mr A Jordan
Judgment Date28 January 2004
Neutral Citation[2004] UKIAT 7
CourtImmigration Appeals Tribunal
Date28 January 2004

[2004] UKIAT 7

IMMIGRATION APPEAL TRIBUNAL

Before:

Dr H H Storey (Chairman)

Mr G Warr

Mr A Jordan

Between
Secretary of State for the Home Department
Appellant
and
VL
Respondent

VL (Risk-Failed Asylum Seekers) Democratic Republic of Congo CG

DETERMINATION AND REASONS
1

This case is a country guideline (CG) case on the issue of whether failed asylum seekers per se face a real risk of serious harm upon return to the Democratic Republic of Congo (DRC). As such it is intended as definitive unless there is a change of circumstances materially affecting the treatment of failed asylum seekers upon return to the DRC. Originally heard on 7 October 2003, it was reconvened on 17 December 2003 in order to hear further submissions from the parties on materials which had come to hand since the original hearing. Having been tasked with reaching an authoritative decision on this issue, we saw it as essential to ensure we took cognisance of all materials having a bearing on the issue.

2

The appellant, the Secretary of State, has appealed with leave of the Tribunal against the determination of an Adjudicator, Mr M.T. Sykes, allowing the appeal by the respondent (“claimant”), a national of Democratic Republic of Congo (DRC), against the decision of the Secretary of State refusing to grant leave to enter on asylum grounds. Mr C. Buckley appeared for the appellant. Ms S. Malik of Counsel instructed by Birchfields Solicitors appeared for the respondent at the first hearing. Mr F Aziz, a solicitor in this firm, represented at the second hearing.

3

This case had been listed some time ago to be a country guideline case in order to resolve a conflict at that time between Tribunal decisions, several on the one hand finding that failed DRC asylum seekers were not at risk and two – Mozu [2002] UKIAT 05308 and B [2003] UKIAT 00012 (DRC)) — finding that they were. However, since then there have been several reported Tribunal decisions specifically addressing this conflict and resolving it in favour of the view that failed asylum seekers per se 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 hereafter refer to M 00071 simply as M, in view of the fact that we cite it more than any other case.

4

We consider that these decisions, the decision of M in particular, based as it is on a comprehensive analysis of the relevant evidence, give valid reasons for rejecting the view that failed asylum seekers per se are at risk. Since we adopt the analysis and reasoning given in M in particular, we see no necessity or virtue in re-examining the same body of evidence and essaying our own separate analysis of it. As the Court of Appeal stated in S & Others [2002] INLR 416 at para 28, there is

“no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop [of general country conditions] at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and, therefore, wasted expenditure of judicial and financial resources upon the same issues and the same evidence”. (See to similar effect, Indrakumar [2003] EWCA Civ 1677, 13 Nov 2003 at para 13).

5

However, before us there were several new items of evidence that had not been considered in previous cases. The most important of these were:

  • – evidence relating to new Home Office procedures in respect of removals to the DRC;

  • – a UNHCR fax dated 15 December 2003;

  • – an important new report by Dr Erik Kennes;

  • – materials assembled by Bail for Immigration Detainees (BIDS) and put into the public realm in late 2003 in ILPA publications. These included details of two cases referred to as AB and DE, both of whom were said to have been ill treated in the DRC following removal from the UK in late 2003.

6

Before proceeding further, two general observations need to be made about the inclusion of the last two items just mentioned. The recent report by one of the leading recognised experts on the DRC, Dr Kennes, was not adduced by either of the parties in this case. The Tribunal became aware of it in the course of dealing with another case which had to be remitted. However, given that it dealt with generic issues and included a statement that he was aware its contents would be used in an immigration appeal and, given that no objection was made by the representatives in that other case to its use by the Tribunal in this, we considered it right to refer to it. We made the parties aware of our intention to refer to it and invited them to make submissions on it.

7

In the case of the BIDS materials, which we shall particularise more precisely later, these became known to other Tribunal panels in cases heard since the original hearing. Having noted that they had been published by ILPA and placed thereby into the public realm, we decided to take account of them. As already noted, we reconvened the hearing in order that the parties had proper opportunity to make submissions as to their relevance to the issue central to this case.

8

The steps we have taken in respect of these two items of evidence are unusual but fully justified in our view by the task we were set of reaching a decision to be treated as a country guideline case. As Laws LJ observed in S & Others [2002] INLR 438 at para 15, where a case is selected in order to produce a decision which is to be taken to be factually authoritative,

“the exercise upon which the IAT is engaged assumes something of an inquisitorial quality, although the adversarial structure of the appeal procedure of course remains… It is important not to lose sight of the fact that the jurisdiction of the IAT is as pragmatic as any other.”

9

At paragraph 29 Laws LJ added:

“… when it determines to produce an authoritative ruling upon the state of affairs in any given territory, it must in our view take special care to see that its decision is effectively comprehensive. It should address all the issues in the case capable of having a real, as opposed to fanciful, bearing on the result and explain what it makes of the substantial evidence going to each such issue.”

10

In Shirazi [2003] EWCA Civ 1562 the Court of Appeal re-affirmed the observations. Once, therefore, the Tribunal embarks upon the task of making a country guideline decision, in the sense identified by the Court of Appeal in S and Others, it is not only valid but also in everyone's interest that it does all in its power to ensure it has before it all known materials having a material bearing on the relevant issues. It would defeat the object of the exercise if the Tribunal were to confine itself to the body of evidence adduced by the parties even when it is aware that that body of evidence omits potentially material evidence.

The claimant's case
11

It is salient next to set out the facts of this particular case. The claimant was a national of DRC born in the town of Bukavo on 9 September 1975. She and her husband were market traders who lived in Kinshasa. She had joined the Union of Democracy Social Progress Party (UDPS) in 1996 and was active in the women's section. In 1999 her husband began working as a driver for a Lebanese businessman. In January 2000 former President Joseph Kabila was assassinated. She claimed that her husband had been arrested in February 2000, being suspected, along with the Lebanese businessman, of involvement in the assassination of President Kabila. He had been detained in Makala prison for 10 months. He fell ill and was then released, being required to report every day on probation. In July 2001 police raided their house and arrested the claimant and her husband. She was interrogated about her husband and the people for whom he drove. She told them he was only a driver. She was raped by several police officers. They released her after two weeks because she was ill. She was re-arrested later in July and again beaten, tortured and interrogated. She was released again after a further two weeks but told to report ever day. She went into hiding and then fled the country.

12

She claimed that her UDPS membership would put her at risk on return. However, the principal basis on which she put her claim was that she would be at risk because she and her husband had fallen under suspicion of involvement in the assassination of President Kabila.

The Adjudicator's assessment
13

The Adjudicator accepted that she had been a UDPS member albeit a low-level one. However, he did not consider the objective country materials bore out that low level UDPS members were at risk in the DRC. As regards the claimant's account of falling under suspicion of being involved in the assassination of President Kabila, the Adjudicator did not find it credible. He rejected her account of her husband's arrests and detentions.

14

We do not need to go into the Adjudicator's reasons for accepting part of the claimant's evidence but rejecting other parts. There was no attempt at a cross-appeal and no service of a respondent's notice under Rule 19 of the Immigration and Asylum Appeals (Procedure) Rules 2003. Neither party has sought to persuade us to go behind these findings and in any event we consider they were based squarely on the evidence. However, insofar as his conclusions based on these findings dealt with risk arising from UDPS membership, we shall need to return to them later. And, of course, we have also to examine the sustainability of his conclusion on the generic issue of risk to failed asylum seekers, which he stated as follows:

  • “22. There is no Article 3 claim in this case but the appellant is now towards the very end of her pregnancy...

To continue reading

Request your trial
28 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT