IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 25 February 2005
Date Determination notified: 21 July 2005
|AB and DM||APPELLANT|
|Secretary of State for the Home Department||RESPONDENT|
The Tribunal broadly confirms the list of risk categories identified in M, VL and subsequent CG cases but finds that in view of the increase in anti-Rwandan feeling, Tutsis or those suspected of being Tutsi are at risk by reason of being associated with Rwandans. Essentially, the risk categories are those with an ethnic, political or military profile in opposition to the government. The assessment of risk in an individual case will depend upon a careful analysis of that individual's origins, background and profile.
The facts relating to the first appellant.
The facts relating to the second appellant
The grounds of appeal in the first appeal.
The grounds of appeal in the second appeal
The hearing before the Tribunal: The evidence of Mr Eric Kennes
18. There would not be a risk to someone from the area where the President or his wife came from. If a person really was suspected, he would be interrogated and that would continue in prison. If held in prison, a person would have to resort to other strategies such as asking a friend or relative in an influential position to intervene on his behalf. If someone did end up in prison he might well be forgotten about and left there for months or years. If the first appellant was suspected of being Rwandan by association, he would fall into a risk category. If there was no evidence of this, he would not be at risk. The transfer of information between authorities in the DRC was not systematic. It may happen in some cases but not in others. Information was commonly transferred from DRC embassies abroad to the immigration service but the system was less efficient for transferring information internally between the regions.
The background situation
Tribunal cases on risk categories
"93. Our essential focus in this determination has been on the issue of failed asylum seekers. However, the Adjudicator in allowing this appeal made reference to one further risk factor, namely, being a woman with a very young child: see paragraph 22. In view of the analysis set out in M and preceding paragraphs of this determination, we also have to consider whether there was another possible risk category into which she would fall, with reference to identification by the Tribunal in M of two definitive risk categories as follows:
(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.
94. As explained earlier, we consider M (0071) reached sound conclusions and we adopt its conclusions in this respect as well as others. We note that both the latest UNHCR evidence and the latest report of Mr Kennes lent further support to the identification of these two categories. They also lend support to inclusion of a third category being without travel documents but this does not arise in the UK context for reasons already given.
95. We would also observe that the UNCHR and Mr Kennes have made reference in the past to other possible risk categories, including 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".
"15. Firstly, we note that both confirm that as a result of 1998 pogroms against Tutsis the authorities in conjunction with the ICRC took specific steps to protect the Tutsi community in Kinshasa. Secondly, even though the Belgian source does not describe the level of protection as complete, neither source identifies any significant level of civilian violence against Tutsis since specific steps were taken.
16. Secondly, both sources are dated 2002. They do not deal with the situation since August 2002. As already noted, the CIPU report, which deals with developments since, identifies a significant improvement beginning in 2001.
17. Thirdly, we do not quite understand Mr Khan's contention that Tutsis fall into separate risk category by virtue of being confused with Rwandans. It is clear that the authorities now protect Tutsis in Kinshasa. If there is a failure to make a distinction sometimes between Tutsis and Rwandans, it is made by civilian Kinois not by the authorities. The latter to repeat, are described as affording protection to Tutsis against civilian actions.
18. We also consider that the argument advanced by Mr Khan does not in any event easily fit the particular facts in relation to this claimant. On his own account, his mother was a Congolese, not a non-Congolese Tutsi. It appears from the background sources that suspicion and hostility against Tutsis is primary directed against non-Congolese Tutsis.
19. Since returns from the UK to the DRC are to Kinshasa and there is no evidence to suggest that Tutsis originating from other areas are prevented from remaining in that city, it is unnecessary for us to address the evidence relating to treatment of Tutsis in other areas particularly those in rebel held areas, although we note that the CIPU refers to continuing discrimination against them, not to any significant levels of violence or other forms of serious harm."
Conclusions on the risk categories
"Until recently, the Banyamulenge were viewed as allies of RCD-Goma and Rwanda, and were subsequently deemed to be safe in Eastern DRC. However, following a shift of alliances, the Banyamulenge are also reportedly targeted by Rwandan troops because of their perceived or actual opposition to the Rwandan occupation in Eastern DRC. Despite the efforts of the DRC authorities to protect the Banyamulenge/Tutsi ethnic group, the government may not be able to protect them from the generalised hostility of local communities. For these reasons, UNHCR is of the opinion that individuals of Banyamulenge ethnic origin may be at risk of persecutory acts on the grounds of nationality and membership of a racial group."
The report focuses primarily on the situation in the East of the DRC but it does provide support for the fact that there is a risk to Tutsis from the generalised hostility of local communities at least in Eastern DRC. The Banyamulenge live mainly in the East. They are ethnically related to the Rwandan Tutsi although they have their own distinct dialect. They are descended from those who came from Rwanda before colonial occupation started in1885. They have been seen as natural allies of the Rwandans even though they have sided with the Congolese against the Rwandans. The incursions by the ethnic Tutsi troops of Laurent Nkunda and Mutebesi was justified as necessary to protect the Banyamulenge but in all likelihood this was an excuse to intervene and its effect has been to harden attitudes against both Tutsis and Banyamulenge
38. In the Human Rights Watch Report of 4 December 2004 dealing with press reports that Rwandan troops had again crossed into the DRC it was said that news of a Rwandan military presence would further spark anger towards Congolese of Rwandan origin, particularly those who were Tutsi. Congolese of other groups believed that Congolese Tutsi, and a related people, the Banyamulenge, would support a Rwandan invasion. Fear and hatred between ethnic groups had risen sharply in eastern Congo in the previous six months. These reports support Mr Kennes' view that at present there is an increased risk to Tutsis exacerbated by a reaction to the events in Bukavu in May-June 2004 and subsequently. According to Mr Kennes it is very dangerous for anyone who is a Tutsi or considered as such to live in Kinshasa. He would have to live in the commune of Gombe where there is some protection offered by MONUC but only the well off can live there. High level officials of RCD/Goma might enjoy some sort of protection.
Persons from Kivu
43. This is not to say that an individual from Kivu could not succeed in showing a real risk where there are other factors adding to risk in play. This emphasises the importance of each case being looked at on its own facts. The fact that a returnee comes from Kivu would be a relevant factor to be taken into account but by itself is not determinative. The assessment of risk involves a careful scrutiny of the evidence as a whole including the evidence of to what extent an appellant's origin, background and descent might lead the authorities to consider him as Rwandese.
Military and political profile
44. We confirm that there continues to be a real risk for those with a political or military profile. Each case must be judged on its own facts but it is possible now to provide a little more detail at least about those who fall within the "political profile" subcategory.
Failed asylum seekers
Summary of the Risk Categories
(i) We confirm as continuing to be a risk category those with a nationality or perceived nationality of a state regarded as hostile to the DRC and in particular those who have or presumed to have Rwandan connections or are of Rwandan origins.
(ii) We consider that in light of recent developments there is now a risk category consisting of those who are Tutsi (or Banyamulenge) or are perceived to be Tutsi (or Banyamulenge). The only possible exception to it arises in relation to high-level officials of RCD/Goma. We accept that in practice there is considerable overlap with (i) since, as a result of the events of 2004 "Rwandan" and "Tutsi" are more often regarded as the same by the DRC authorities and civilian population and as a result Tutsis and those perceived as such face higher risks than before. However, they are distinct categories, one nationality-based, the other ethnicity-based.
(iii) We also confirm as an existing risk category those having or being perceived to have a military or political profile in opposition to the government. The risk fluctuates in accordance with the political situation. On the basis of the evidence before us, the current position is as follows. The Tribunal accept that there is a real risk at present for UDPS activists. In the eyes of the authorities in Kinshasa UDPS supporters are assimilated with supporters of the RDC/Goma movement because of the alliance reached in 2003 even if later officially ended. At present there is a lesser risk for PALU members. There is a potential risk for DSP members who are considered as potential or actual collaborators for JP Bemba and his MLC movement. The risk for those associated with the Mobutu regime has considerably lessened. It is clear from the background evidence that close relatives of Mobutu have returned to the DRC from exile: CIPU report paragraph 6.110-2. It is reported that those not suspected of collaboration with the rebels would no longer be at risk and affiliation to the MPR would not normally involve the risk of political persecution. No repression has been organised against PDSC members since the death of Laurent Kabila.
(iv) The evidence before us sought to identify a number of further potential risk categories: rebel movement members now in opposition to their own movement and those who come from the east (including Kivu) but are returned to Kinshasa without a political or military profile. However, these issues do not arise in the present appeal and we do not have sufficient evidence to make it appropriate to reach conclusions about them.
The appeal of the first appellant
The facts relating to the second appellant
H J E Latter
Background materials placed before the Tribunal
CIPU reports October 2003, April 2004 and October 2004
Public AI Index AFR 62/28/98 dated 24 July 1998
UNHCR letter "Returns to the DRC" 13 August 2003
Human rights Watch 24 July 2003
US State Dept Report DRC 31 March 2003
BID letters 25 Sept 2003, 16 April 2003, 7 May 2003, 16 May 2003, 30 May 2003
Home Office letters 14 Feb 2003, 17 March 2003, 17 April 2003, 20 May 2003, 11 June 2003, 12 August 2003
Docu- Congo email 20 August 2003
UNHCR letters 23 January 2003, 10 June 2003
Home Office letters 15July 2003, 1August 2003
Amnesty International faxes 9July 2003 (x2)
Docu-Congo 23 June 2003, 16 may 2003
Undated statement by returned asylum seeker
Home Office Bulletin 30 January 2003
BID letter 30 may 2003
Home Office letter 12 June 2003
BID letter 16 July 2003
Country report ACCORD/UNHCR seminar 28-9 June 2003
Kennes Fate of returned asylum seekers 10 Feb 2003
RLC documents on return 21 October 2003
IRRN (UK) 2 Dec 2004 Arun Kundnani
UNHCR letters 15 Sept 2003, 24 February 2004, 3 August 2004, 2 February 2005
HRW report 4 December 2004
UNHCR report 2005
Congoceca July 2002 human rights abuses against UDPS
Statement UDPS Gen Sec 10 Nov 1999
Afrol News 20 march 2003
Utusan online report 10 April2003
All Africa.com report 31 March 2003
BBC news report 3 April 2003
ABC news on line report 9 April 2003 (x2)
BBC news report 8 April 2003
World Refugee survey report 2004
Reports from Mr Kennes dated 19 October 2004, 18 November 2004, 22 November 2004, 27 March 2005
Cases cited or referred to
B (DR Congo)  UKIAT 00012
M (DR Congo)  UKIAT 00051
VL (risk – failed asylum seekers) DRC  UKIAT 00007
S (DRC)  UKIAT 00010
M (Croatia)  UKIAT 00024 *
M (DRC)  UKIAT 00075
TC (mixed ethnicity –Rwandan) DRC  UKIAT 00238
RK (obligation to investigate)  UKIAT 00129
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