Date of hearing: 7 October 2003 and 17 December 2003
Date Determination notified: 28 January 2004
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
"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  EWCA Civ 1677, 13 Nov 2003 at para 13).
- 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.
"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."
"... 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."
The claimant's case
The Adjudicator's assessment
"22. There is no Article 3 claim in this case but the appellant is now towards the very end of her pregnancy and, if returned, is likely to be sent back with a very young child. Having regard to the Tribunal's findings in Mozu, I find that there is a real risk of imprisonment and rape on her return and of consequent harm to her child. The CIPU Report deals with prison conditions at paragraphs 4.14-4.37. I need only cite paragraphs 4.14:
`The present regime operates 220 known prisons and other places of detention, and in all such facilities, conditions are harsh, unsanitary and life-threatening ...Prisoners reportedly are beaten to death, tortured, deprived of food and water and die of starvation.'
23. I conclude that if returned the appellant is at real risk of being detained and subjected to persecution or to torture, or inhuman or degrading treatment or punishment. This would be for a Convention reason – the political opinion imputed to her from her having sought asylum in the UK.'
The grounds of appeal and submissions
'was unable to provide the Adjudicator with any hard evidence due to the fact that the fax machine at Salford Magistrate's Court was not working. The HOPO offered to provide relevant documents at the first available opportunity but this was denied and the Adjudicator said that he would only accept what was in front of him.'
The issue of failed asylum seekers
The DRC context
The Kennes report of 29 September 2003
"In the Democratic Republic of Congo, the failed returned asylum seekers are as such not a persecuted category. This means that a failed returned asylum seeker as such will not automatically be arrested at the airport (p.2 ).…
The mere fact of being a failed returned asylum seeker on (sic) itself does not create a security risk. The aggravating factors are the possession of valid travel documents, and the existence of a case against this person (p. 8)."
" If somebody invented a story and returns to the country with valid travel documents, there will be no problem for him/her at the airport. He will enter the country as anybody else.
If, however, no valid travel documents can be presented, the person will experience difficulties. In this case, the returnee is put under custody with the aim to squeeze money out of his or her pockets… If the person or his family is unable to pay, the returnees will be transferred to CPRK (Makala) prison until he or she pays, most likely a higher fee than initially requested. "
The BIDS materials
"Even assuming that all DRC nationals who were removed from the UK between January 2002 and November 2003 were actually sent to Kinshasa, then of 38 (adding the 2002 statistics to the provisional statistics for January – March 2003 and the three recent removals that we are aware of) there is evidence that 15 of these returnees were imprisoned on arrival in Kinshasa. This represents a rate of detention of some 40% of all known returnees over a two year period".
The UNHCR position
"Our September assessment was drafted on the basis of information which was sourced directly from our field office in the DRC and cleared by our Headquarters in Geneva.
UNHCR`s view on country of origin information are a primary source as they are based on first-hand reports from its field presence around the world.
We make continuous efforts to ensure that our positions mirror the current situation in the country concerned. In line with this, given the particularly fluid political situation in the DRC during the past months, our position on the DRC has seen changes when the need arose".
Policies and practices of other countries, EU governments in particular
"the basis for the suspension is in the Immigration and Refugee Protection Regulations (230(1)) which states: `The Minister may impose stay on removal orders with respect to a country or place if the circumstances in that country or place pose a generalised risk to the entire civilian population as a result of a) an armed conflict within the country, b) an environmental disaster resulting in a substantial temporary disruption of living conditions, c) any situation that is temporary or generalised"
"6.45. It is possible for failed Congolese asylum seekers to be returned to the DRC provided they have valid travel documents. The British Ambassador stated in a letter of November 2002 that he has not seen any evidence to indicate that returned failed asylum seekers are persecuted on arrival in Kinshasa. He also stated that the French, Belgian and Dutch governments regularly return failed Congolese asylum seekers to the DRC.
6.46. The Belgian and Dutch governments have also not seen any evidence to indicate that returned failed asylum seekers are persecuted. A letter from the Belgium Embassy in London of July 2003 states that the Belgian government enforces the returns of failed Congolese asylum seekers to the DRC. Both the Belgian Embassy in Kinshasa and the Belgian Immigration Department monitor the treatment of returned failed asylum seekers to the DRC from Belgium and have not seen any evidence to indicate that returned failed asylum seekers are at risk of persecution. A letter from the Dutch Embassy in London of July 2003 states that the Dutch Government enforces the returns of failed Congolese asylum seekers to the DRC and that the Dutch Embassy in Kinshasa has not seen any evidence to indicate that returned failed asylum seekers are at risk of persecution, although they do not monitor the treatment of returned failed asylum seekers as a matter of policy".
"Upon arrival in Kinshasa a so-called reception committee is present. This committee is mainly made up of representatives from the IND, the Royal Military (Kmar) and if necessary an official from the Dutch Embassy in Kinshasa. In addition, the Director of the DGM sits on the committee. Family members of the person being returned to the DRC can also make up part of the committee, as well as workers from the International Red Cross. Furthermore, there is a Deportations Supervisory Board, which is made up of officials from the Kmar and a professor from the Royal University of Brabant. This committee oversees the procedure followed if the person in question disappears."
Expert evidence and the latest report of Dr Kennes
"In this field opinion evidence will often or usually be very important since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists".
"'AB` was removed from Heathrow in October 2003, by flight to Nairobi and thence to Kinshasa. His partner in the UK received a very distressed phone call from him at Kinshasa airport, in which he stated that he had already been arrested and was on his way to prison. A traveller at the airport witnessed his arrest and beating and also phoned his partner. "
a) Nationality or perceived nationality of a state regarded as hostile to the DRC (in particular those who have or are presumed to have Rwandan connections or are of Rwandan origin);
b) having or being perceived to have a military or political profile or background.
being from rebel held areas;
being of a family of mixed ethnicity;
being of Tutsi origin or being perceived to be Tutsis.
However, since in our view the latest evidence is not clear-cut in respect of these additional categories and the Tribunal has not found that they are effective risk categories currently, we leave the matter to be more definitively decided as and when necessary in future reported cases.
The claimant's particular circumstances