ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 11 January 2007 and 18 October 2006
Date Determination notified: 13 March 2007
MRS G GREENWOOD
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
Despite indications from recent political events in the DRC that the UDPS is perceived as less of a threat than previously, the guidance given in AB and DM Democratic Republic of Congo CG  UKIAT 00118 and confirmed in MK DRC CG  UKAIT 00001 remains correct.
"… had changed me from one cell to another every week or so".
"On 15 January 2006 when I escaped from the prison, another prisoner tried to escape but was caught. The guards then came and asked, who did not have family in Kinshasa and as I did not and had also been a good prisoner, they assigned me to look after the others. This is because they believed that I would not cause any trouble like the other prisoners.
On the same day, I was asked by a guard to go and buy some drinks. The place where I was detained was just down the road from the shop where the guard wanted me to go. When I got there just by the kiosk, there was a man waiting for me who told me he was one of my people, from my political party. After querying where I was from, he took me to a car and we left towards a house where I was to spend the night."
"I could not get out of the house and I was told to be discreet".
1. The Respondent's bundle, which is described at PF.1;
2. The Appellant's bundle, and a further bundle with updated background material served upon the Tribunal by the Appellant's solicitors with their letter of 21 December 2006 including; letters with translations purportedly from the UDPS and the Appellant's friend, respectively dated 15 July 2005 and 5 May 2006 together with certified translations; a further letter from the UDPS in London, dated 25 September 2006;
3. Country of Origin Information Reports (COIR) on the Democratic Republic of Congo dated April and 27 October 2006.
4. Tribunal determinations in:
VL (Risk-Failed Asylum Seekers) Democratic Republic of Congo CG  UKIAT 00007
AB and DM (Risk Categories Reviewed – Tutsis Added) DRC  UKIAT 00118
MK (AB and DM Confirmed) DRC CG  UKAIT 00001.
The International Crisis Group Report 'Securing Congo's Elections: Lessons from the Kinshasa Showdown' dated 2 October 2006.
A Freedom House Report 'Freedom in the World: Congo, Democratic Republic of (Kinshasa)' dated 6 September 2006.
US Committee for Refugees and Immigrants Report 'World Refugee Survey 2006: Congo-Kinshasa' dated 14 June 2006.
The Amnesty International Report 2006 for the DRC dated 23 May 2006.
Two BBC News Reports dated respectively 25 July and 5 September 2006.
The UN Integrated Regional Information Networks Report 'Congo-Kinshasa: Counting the Casualties after Kinshasa Battle)' dated 25 August 2006.
UK Foreign and Commonwealth Office Report 'Human Rights Annual Report: Democratic Republic of Congo' dated 12 October 2006.
The United Nations Mission Report – Democratic Republic of Congo (MONUC) 'Monthly Human Rights Assessment September 2006'.
A one page extract from a special report of OHCR dated 27 September 2006.
We arranged for copies of these documents to be provided to the parties' representatives.
"When I asked through talking to a friend who facilitated this evidence for me he told me this was facilitated by our party who sent this to me".
"My friend goes to where they are".
".. in any case the situation was not good since I had fled... I asked him to tell me about the situation and some details. I mean as my wife went back to her place there is no fixed abode and following the fire at my house my niece was burned'.
"No, he cannot have an idea, I asked him for evidence, proof. I said I was arrested. He sent them to me."
"I do not know. I have the photographs. It is not up to me to ask about the date, time or place".
"You are a leader, for everything you do with this movement you will pay. "
"Yes, I can see it is on its own. As for me I was not coming from the stairs but from another part there.
When they grabbed me they made me come out from the stairs underneath from the cellar and this is the door I was coming through" (the Appellant pointed to the door depicted in the upper photograph). "When I was arrested they opened it and pushed me in, made me go in. By now when I was coming out they were dragging me to make me go up the stairs".
Q. "There are three white chairs in the bottom photograph. Each chair is covered with something. It is from a different angle. Let me spell it out. You say these were the same event. The top photograph shows a chair with nothing on it. The bottom photograph shows the chair with something on it. I say these (photographs) have been stage-managed and taken at different times. What do you say?"
A. "I did not take the photographs. I did not go there to take the photographs I received. What can I say?"
"First, I was made to lie down on my belly in the vehicle. The military police were sat down with their feet on my back, beating me with belts on the head, calves, back."
"I only had a nosebleed and swelling on my head, body and buttocks".
"Before locking me up they were insulting me.
In the house they locked me up and went away. When they came back they put me in a vehicle."
"When they came they took me and beat me on the head, grabbed me by the hand on my polo shirt."
Q. "Did they make your nose bleed again?"
A. "No my nose did not bleed again, it was only when they were taking me there."
"No, the clothes I had, the polo shirt inside the shirt was taken.
Shirt and trousers and the polo shirt you see in the photo. The polo was underneath the shirt".
Q. "The shirt was taken? When?"
A. "Before being put in the vehicle. In fleeing the shirt was ripped from me. It remained in their hands".
Q. "The shirt was ripped from you at the demonstration?"
A. "When I was arrested."
Q. "In the van were you wearing the white polo shirt?"
Q. "When you left the house were you still wearing the white polo shirt?"
A. "Yes the same".
Q. "You say this was taken as you came out of the house. There is no marking, no blood on the shirt. There is nothing to support your contention that you had a nosebleed, that you were held in a dirty house for hours. I suggest it is wholly implausible for you to leave the house in a whiter than white shirt after your experiences."
A. "No, when I was arrested my nose was bleeding. I noticed more bleeding when I was in the vehicle. I was in that position (the Appellant bent forward) so when in that position it is after when wiping myself with my hands I noticed that my tears were mixed with blood. That does not mean that there was blood pouring down".
Q. "If you were beaten, kicked, held in a dirty house, blood was drawn, why does the shirt in the photographs have not a blemish?"
A. "I say clearly if you have not noticed bloodstains on my polo shirt I noticed blood when wiping myself. It was mixed with tears."
"… would have been the one who would have told me. When I met him he did not mention it".
"The evidence came two days later. He (Mr Mukendi) said he would now see the President and send me a letter, you have it".
Q. "When you went for the interview did you take any documents about your membership or activities in the DRC?"
A. "To present to him?"
A. "No I talked to him about the situation. He checked my name. He interviewed me. After the interview I had to wait."
Q. "When you were interviewed by Mr Mukendi on 25 September, when asked about documents you said there were none?"
Q. "Is it that you wanted the UDPS in London to support your application?"
A. "No it was simply a way to present myself to the party here so as to be known."
Q. "You wanted to be known as a member of the party here?"
A. "Yes with the authority of the party here".
Q. "If that was the reason, why did you take no documentary evidence to prove your membership of the DRC?"
A. When the evidence letter came I then looked to photocopy it and I could not find a place to do so. I sent it to the solicitor. After I asked if I could be sent a photocopy of this evidence. It was so with that I could prove as I went to see the authorities of the party and up till then I did not have a copy which could facilitate presenting myself to the party."
Q. "What prevented you going to the solicitor and getting a copy to take to the party in London?"
A. "I thought it was not pertinent to bring such evidence as I had not been told that I had to bring such evidence".
Q. "Evidence you have had since June included a note from the President of the branch in Idiofa saying that you were a party member and Deputy Secretary? What more pertinent evidence could there be for you to produce to the UDPS in London?"
A. [No response].
Q. "You said you did not think it pertinent to bring the letter. It was with your solicitors. Why did you not go to the solicitor's office and take it to the Party?"
A. "I have replied. I said I asked those in contact with the authorities of the Party here so I would be known to them. It is then I went there. They did not ask for evidence".
Q. "Did you not think it would be a good idea to take evidence?"
A. "Which evidence?"
A. "From the President in the DRC which you said you had received in June of 2006".
A. "I do not understand".
Q. "I will have one more go. You wanted the DPS in the UK to know of your membership in the DRC is that correct?"
A. "Yes to be known".
Q. "You were interviewed on 25 September 2006 in London is that correct?"
A. "Yes I went according to the call".
Q. "You did not know the man who interviewed you before, is that correct?"
A. "I talked to him".
Q. Did you know him before?"
A. "Not face to face – he had given me his name".
Q. You had received in June documents from the DRC, is that correct?"
Q. "In those documents was a letter from the President about your position in the Party."
A. "As secretary."
Q. "The letter from the President, why did you not take it with you when you went for interview on 25 September at UDPS in London?"
A. "I did not have the photocopy. I have explained. I said this in London."
Q. "The letter was at the solicitors."
A. "The letter from June I sent him. I did not have a copy."
Q. "Why did you not go to the solicitors to get the letter for the interview with the UDPS?"
A. "I would have gone to do so if through the telephone conversation the other person had asked for it."
Q. "You now tell us that you knew you were detained from 30 June 2005 until 15 January 2006. You earlier relied on and adopted that statement. Why did you adopt it if it was partly wrong?"
A. "Part of the statement was not wrong. The version I have here does not reflect what you are putting forward. In the French version I said I did not know for how long I had been detained or how long it would be if I did not escape."
Q. "The statement in the Home Office bundle, to whom was it given?"
A. "My solicitor in Dover."
Q. "The solicitor who still represents you?"
Q. "Did the solicitor bring a French interpreter?"
A. "Yes, a lady…"
Q. "The French statement in your possession was typed for you by the solicitor?"
Q "The statement was read over to you in French before you signed the English version".
A. "There was an oral translation. Asking me questions, typing on a computer. After the paper was in French the interpreter got me to read it and I received the French copy two or three days later. Later on I tried to get in touch to correct mistakes. He said I had to see the interpreter. From the given date the interpreter was not available."
Q. "To be clear, you were aware of mistakes in the statement?"
Q. "In the French version?"
A. "I found many mistakes. The solicitor called. I went to see him. He told me he could not see me because of the interpreter. At reception I was asked to correct some mistakes. I put these mistakes on a piece of paper so as to mention them so they could be corrected. He told me by that time it was too late. He had already sent things. I needed to come before. I had come before and there was in interpreter. As evidence I tried to correct such matters as names of children. They had been put backwards. The place of my marriage was also wrong. "
"I put my hand up. I did not see the others do it."
Q. "The same day you were put in charge you were asked to go and buy drinks?"
Q. "Was that the first time you had been asked to do something like that by a guard?"
Q "You went out of the cells on your own to buy drinks?"
A. "He took me with the empty bottles. We went up some steps to a particular level. He showed me a door. He pointed to the shop with his finger."
Q. "You went to the shop on your own?"
A. "A kiosk rather than a shop."
Q. "Did you go on your own?"
A. "He opened the door and said 'there' and I went".
Q. "What happened to the guard whilst you were on your way to the kiosk?"
A. "I do not know. I was looking forward."
Q. "How far was the kiosk from the place you were held?"
A. "The kiosk was somewhere there, distance is quite difficult to estimate, like before that corner". (The Appellant looked out of the hearing room window to a corner on the adjacent road).
Q. "How long was the walk?"
A. "At least two minutes. Not far. When I gave the bottles whilst he was looking for some sugary drink, cola. During that time I was waiting."
Q. "What happened?"
A. "I saw someone who said "Are you the prisoner coming from inside?' He said 'I am one of yours come'."
Q "What did you understand him to mean".
A. "Someone from my Party."
A. "I understood it must be someone who knew me. I did not know him. I thought it must be someone from my Party."
Q. "The man at the kiosk pointed to a car. It was one of yours. Did you get into the car on your own?"
A. "He came also".
Q. "Was someone else already in the car."
A. "Someone. I did not know him."
Q. "Was there someone in the driver's seat when you got in?"
A. "At some point, yes."
Q. "Who was driving the car when you got in by the kiosk?"
A. "I do not know – the person was there already."
Q. "How long were you driving for, before the car stopped at the house referred to in the statement?"
A. "In any case I have no idea. It is a big city."
Q. "The time?"
A. "I do not know".
Q. "Did you enquire of either of the men why you were being helped?"
A. "To the person outside, yes. I asked him afterwards."
Q. "What did he say?"
A. "He did not want me to ask him questions he said not to."
Q. "Did you ever discover why you were helped to escape?"
A. "Yes, the fact I was outside, he took me to his place."
Q. "Have you since discovered how it was he was waiting for you?"
A. "I do not know. He did not want me to ask questions."
Q. "Have you never had an answer why you were being helped or by whom?"
A. When I asked him the first question who he was his reply was 'I am one of you'. He did not want me to ask him questions."
Q. "You also said that in your statement at paragraph 10. Please explain why at the Screening interview on 31 March 2006 you told the Interviewing Officer that you arrived in Benin on 23 March and left the same day for the Ivory Coast."
A. "On the same day I arrived in Benin I went to the Ivory Coast."
Q. "Why did you say that if now you say you stayed a few days?"
A. "Maybe through having forgotten. I know that I went to Benin. I stopped a few days and after the Ivory Coast where I stayed for about a week."
Q. "Did the man accompany you to Brazzaville and then to the Ivory Coast?"
Q. "Did he accompany you to Tunisia?"
"It is difficult to know the circumstances because I am at the front of the photos. I do not know the moment they were taken".
"No he did not tell me how. I simply did the interview. He had to check and sent me a copy. I sent it to the solicitor".
"I mean election. People are elected, members who lead. The means of designation is through election. On that day normally a member of the cell above has to be present. For example, a member of the section or his representatives, they have to be present. That day, one of them will not be present so when the election takes place the sub-cell assembly is sovereign. So now there are administrative procedures, one of the members had to be present but in the meantime I arrived in my function.
During elections as there was nobody from the higher level, then the decision of the sub-cell assembly by now, it had to be done. The assembly was right to elect me because of the quality of my work."
- Home Office Operational Guidance Note (Democratic Republic of Congo) issued on 30 November 2006.
- The 2006 Year Review: Democratic Republic of Congo July to December published by the Great Lakes Centre for Strategic Studies.
- Amnesty International Report on the DRC sub-headed "Overview-Covering Events from January – December 2005".
- Second Carter Centre Post-Election Statement on the October 29 Presidential Elections dated 15 November 2006.
- Inter Press Service News Agency (IPS) Report that though dated 21 December 2006 related to an IPS Report of 23 August 2006 concerning an outbreak of hostilities in Kinshasa that appeared to be drawing to an end in the run-up to a second round of Presidential Elections.
- A series of articles released by the South Africa Press Association (SAPA) the first of which was dated 29 October 2006 sub-headed "DRC Election Marred by Violence" and followed by three further articles all dated 30 October 2006.
The Legal Framework
(i) Whether on return there is a well-founded fear of being persecuted under the Geneva Convention;
(ii) Whether on return there are substantial grounds for believing that the person would face a real risk of suffering serious harm within the meaning of paragraph 339C of the amended Immigration Rules; and
(iii) Whether on return there are substantial grounds for believing that a person would face a real risk of being exposed to a real risk of treatment contrary to Article 3 of the ECHR.
"We would emphasise first of all that the use of the word 'profile' highlights the fact that this category is intended to mark out those whose actual perceived military or political activities or involvements are likely to have brought them to the adverse attention of the Kabila regime. The mere membership of an opposition political party will not demonstrate that a person has such a profile". (Our emphasis).
"There were three main groups involved, the government, army, the rebel group controlled by Rwanda, the Congolese Rally for Democracy – Goma (RCD/Goma), and the rebel group controlled by Uganda, the Congo Liberation Movement (MLC) lead by J-P Memba. Further, within the RCD movement there have been dissident factions. The peace agreement has been made on a political front but according to Mr Kennes, lasting peace would depend upon it being accepted by the various military factions. In April 2002, there was a partial agreement involving the MLC and the government but excluding the RCD. This was not implemented".
"… we do not find very helpful Mr Kennes' suggestion that the category of Tutsi should be seen as including anyone who is a member or sympathiser of the RDC/Goma Rebel Movement or even anybody who was a member of the UDPS…".(Our italics).
"Bearing this point in mind, we accept that at the present time it is very dangerous to be an active member of the UDPS. The success of the ville morte action in bringing much of Kinshasa to a standstill in January 2005 has threatened the Kabila leadership. We accept Mr Kennes' evidence that UDPS militants abroad returning now would be at risk of detention." (Our italics).
"… 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 there is a real risk at present for UDPS activists." (Our italics).
"This last restriction, which has been in place since 1999, is contested by the main political parties, such as the Union pour la Democratie et le Progress Social (UDPS), which argue that they have been registered as a political party since the National Conference in the early 1990s and do not need to do so again."
"Having initially refused to take part in the TNG formed in June 2003, an August 2004 part-issued statement indicated that although the UDPS is not part of the TNG the organisation was fully participating in the transition process. On 30 June 2005, local authorities in Kinshasa denied the UDPS Party permission to conduct marches protesting the extension of the transition. The authorities cited public safety reasons for their refusal following statements by UDPS leaders encouraging citizens to overthrow the government. In November 2005 a senior UDPS official was found dead in mysterious circumstances and in December 2005 the party boycotted the referendum on the election and also missed the party candidate registration deadline in March 2006. On 10 March 2006 UDPS-organised demonstrations against elections delays were dispersed by riot police and around forty demonstrators were temporarily detained. On 22 March 2006 demonstrators again took the streets of Kinshasa to demand that the UDPS be integrated into the country's election organisational structures. Throughout the campaigning, elections and post-election events from April to September 2006, the UDPS maintained its boycott, citing electoral irregularities and organised demonstrations and spoiling tactics against rival parties and the electoral process." (Our italics).
"In the buildup to and immediate aftermath of the vote, there was high tension and violent exchanges in urban areas between rival sets of supporters of the main candidates with accusations of serious irregularities in the administration of the election."
"One of the main opposition parties, the UDPS, boycotted the polls. The UDPS had boycotted the December 2005 referendum and the registration exercise which had taken place in November 2005 and only announced its intention to participate in January 2006 after both exercises were closed. It demanded that registration should be reopened to allow them to take part in the polls. This was refused by the Electoral Commission which led to demonstrations".
"Police fired tear gas at opposition supporters who ran riot in the streets, assaulting supporters of other parties and pulling down election posters and banners. They were protesting on what they call the irregularities in the electoral process and many were believed to be supporters of the UDPS".
"… meanwhile, several opposition politicians, including fifteen of the thirty three other presidential candidates, joined Vice President Bemba's Union for the Nation but he failed to gain the support of Etienne Tshisekevi or his Union for Democracy and Social Progress (UDPS) which again renewed its unwillingness to accept the electoral process by refusing to back either candidate". (Our italics).
officially confirmed Kabila as President.
"While fraught with disputes between candidates, their supporters and over the organisation of the elections, the first round results of the elections were accepted by all sides. In the wider context, the information does not suggest that the rivalry in the competing camps in either the first or second rounds amounted to more than highly-charged electioneering in closely-fought elections the like of which is unprecedented in the DRC."
"While mainstream political and former rebel groups integrated into the TNG and electoral process face no systematic risk of persecution based on party activity, the UDPS is somewhat of an exception. In the build up to the July 2006 elections, the party maintained its boycott of the electoral process and organised numerous demonstrations which were forcefully suppressed by the security forces. While the party remains in self-imposed exile from mainstream politics, activists who had brought themselves to the adverse attention of the authorities are liable to face a real risk of persecution. However, the available information does not suggest that low level support or membership (i.e. no known activism) of the UDPS alone automatically constitutes grounds for the grant of asylum. Caseworkers should carefully assess the claimant's level of involvement before deciding on whether their particular circumstances meet the 'real risk' threshold".(Our italics).
"dedicated to providing accurate and timely political, economic and military information about the African Great Lakes countries."
"To improve reporting capacity in the region, GLCSS provides training and investigative journalism techniques to African journalists and provides access to its political, economic and military databases.
GLCSS is not a policy organisation; its overarching aim is to encourage transparency in reporting about African Great Lakes issues and provide a single source of accurate information about the region.
The GLCSS website, when finished, will provide the only consolidated news site focused on economic, political and military information in the African Great Lakes."
"It is formatted like a Diary. It revisits its concerns as events unfold on a month by month basis".
"Official campaigns for the historic elections at the end of July have started. This week, GLCSS attempts to assess the election mood vis-à-vis the security situation."
"Previously, GLCSS has asserted that political attention will increase ahead of elections and had also predicted that if other parties joined UDPS to boycott elections, the situation would get worse. This scenario started to unfold barely a few days into the campaigns. Apart from UDPS calls for the withdrawal of the 1+4 formula (President and his four Vice Presidents) the Independent Electoral Commission (CEI), the High Media Authority (HAM) and a group of nineteen presidential candidates seconded another idea on 4 July, to stop the ongoing campaign to first solve what they called 'irregularities' in the electoral process….
GLCSS believes, despite UDPS's claims as well as requests from other quarters to have the elections postponed, the campaign will continue and the elections will be on schedule. However, the protests are likely to continue and will cause more human and material loss. UDPS members will increasingly receive defectors from FONUS, RCD/N and RSF."
"In another development, UDPS continued its anti-election protest in Kinshasa. Diplomatic sources in the Congolese capital revealed that the protest was aimed at destroying any election poster or other materials and to send hostile messages to the international community whom they accuse of having imposed elections on the Congolese population. Protestors who were singing slogans supporting Etienne Tshisekedi reportedly tore up candidates' posters and burnt the CEI's banderols. The protestors not only attacked passers-by wearing T-shirts printed with candidates' portraits but they also tried to smash cars bearing candidates' posters while throwing bricks and burning bottles at the police.
A group of ten UDPS and Ngbanda's Aparicot supporters are said to have carried out similar acts of protest at the DRC Embassy in Paris because the Embassy's reception hall was not accessible for them to mourn the passing of Bakuwa Mwamba, a journalist assassinated at his home during the night of 8 July….
GLCSS has repeatedly pointed out that the political error made by Etienne Tshisekedi and his militants of not registering to participate in the forthcoming elections would lead to a dramatic end of his party – long considered as the main opposition party. In addition, Tshisekedi's hostility towards the international community was seen as another error that will systematically weaken the veteran politician as well as his party. GLCSS maintained the protest being organised by the UDPS, indicate its last strong grip on the DRC political scene." (Our italics and underlining).
"As it had been predicted by GLCSS in its previous analysis, a serious and violent election boycott was reported in Kasai Provinces. Those who boycotted were widely believed to be loyal to UDPS leader Etienne Tshisekedi, and burnt polling stations and voting materials".
"Bemba's association with Mobutu-loyalists and Etienne Tshisekedi's Union for Democracy and Social Progress (UDPS) supporters elevated him above other likely contenders."
"who is appointed from the ranks of Parliament's majority party, and possibly the future of the DRC"
"The support of Antoine Gizenge and Nzanga Mobutu, who came third and fourth respectively in the first round, explains the shift. On the other hand, Bemba, who reportedly received some support from UDPS supporters in the first round, especially in Kinshasa, has not yet managed to officially secure Tshisekedi support."
"Bemba has also been strengthening his coalition, which is called the National Union (UN). …
As previously reported by GLCSS, Bemba supporters are mainly Mobutists, and the new alliance is seen as an extension of RENACO. As for the UDPS-Bemba coalition it is still obscure and RENACO would lose a key supporter if Etienne decided not to support any candidate in the run-off. Commenting on the alliance, UDPS Secretary General Remy Masamba stated: 'we have been contacted by Bemba's people but have not reacted yet. We are talking to our grass root supporters so a decision is still pending. We still call for talks between the political actors to calm the tensions.'
GLCSS believe that some UDPS members who supported Bemba in the western provinces in the first round cannot be taken as a guarantee that the UDPS Party would automatically support Bemba in the run-off. Moreover, even though it supports him, it would not bring many votes to him as most of the UDPS members are not registered voters." (Our italics).
"Some opposition parties said they would not support either candidate… Etienne Tshisekedi's UDPS has officially said it would not support either candidate in the run-off.
However, some reports indicate that some of its cadres like Gaston Dondo and Fern Kaman have reportedly called on UDPS supporters to support Jean-Pierre Bemba. GLCSs would not be surprised if some UDPS supporters vote for Bemba because this also happened in the first round especially in Kinshasa; therefore GLCSS expects many UDPS members to vote for Bemba."
"With a PALU-led government, Kabila will be able to control Kinshasa, Bandundu and Bas Congo. Also many of the nationalists/Lumumbists will reinforce their support to Kabila because of Gizenge. In addition, with the participation of Nzanga Mobutu, Kabila will have more access to Equatur, Bemba's stronghold. More so, Etienne Tshisekedi's announcement that his UDPS will not support either candidate increases Kabila's chances of winning". (Our italics).
"The most likely scenario is that Kabila wins the elections and Bemba files a formal complaint about the election irregularities and then decides to co-operate with Kabila"..
"… would lead to a dramatic end of his party – long considered as the main opposition party. In addition, Tshisekedi's hostility towards the International Community was seen as another error that will systematically weaken the veteran politician as well as his political party. GLCSS maintains, the protest being organised by the UDPS indicate its last strong grip on the DRC political scene." (Our italics).
"… a gap in the evidence since President Kabila secured his victory".
"While the party remains in self-imposed exile from mainstream politics, activists who have brought themselves to the adverse attention of the authorities are liable to face a real risk of persecution".
"If we now accept they are no longer going to be viewed as a threat – it is a reasonable inference to draw they will be treated more favourably than they have been in the past.
That ignores a fundamental point – the politics and philosophy of the UDPS has not changed. Their aims and objective remain primarily the overthrow of the Kabila regime. No doubt they will be fully aware that when one abstains from the electoral process your political opponents may well benefit, but that is not the end of the process as far as the UDPS are concerned in bringing about political change in the DRC."
"Is one to assume that the current regime will now give up their political opposition or is it more likely that the regime will be emboldened in view of the electoral success, to seek out its previous political opponents and pursue them with a new zeal? There is no evidence that the UDPS will moderate their position and unlikely they will abandon their political involvement".
The appeal of the Appellant
The Appellant's claimed membership and activities on behalf of the UDPS in the DRC.
"There were demonstrations and incidents in Kinshasa and other towns on and around 30 June 2005, after protest action on that day was called by the UDPS Party against the decision to postpone the elections. Reports indicated that between 10 and 26 people were killed, scores wounded and that hundreds were arrested ". (Our italics).
"On June 30, local authorities in Kinshasa denied the UDPS Party permission to conduct marches protesting the extension of the transition. The authorities cited public safety reasons for their refusal following statements by UDPS leaders encouraging citizens to overthrow the government".
"Yet another title – but the Appellant's explanation was that this document was wrongly translated when it described him as 'Deputy Secretary'. The Appellant told you the document in French did not refer to the word "Deputy" and that the translation should have been 'Secretary for the level below the cell of the party in Idiofa' – that's what the Appellant put forward as the correct translation. That translation was confirmed by the Court Interpreter. So even if the translation is initially wrong on 'Deputy Secretary' and the translation given in evidence before you is correct, there is a difference in the Appellant's title as put forward in his amended translation when compared with the title put forward by the UDPS in their letter of 25 September and with the information provided by the Appellant in his statement of 12 April and what he said at interview, was his title.
So there are discrepancies as to what standing and what position he had in the Party. Again, I say, affecting adversely his credibility."
The Appellant's claimed arrest, detention and escape.
i. There was no evidence at all as to who actually took the photographs. The evidence was that they were obtained form the UDPS but no evidence was given as to how they came into the possession of the UDPS and it was difficult to understand how they could have come into the hands of the Party.
ii. Mr Jones in the course of cross-examination had made specific reference to white chairs shown at the top of the stairs on the bottom photograph. It showed items that looked like clothing visible on two of the chairs. The top photograph showed only one chair with nothing on it. Mr Jones had asked the Appellant about this and indeed he had made a point of ensuring that both Mr Claire and the Appellant were shown the photographs in order that he might identify the differences between them before putting these matters to the Appellant.
iii. Mr Jones had referred the Appellant to "the very white and clean shirt in pristine fashion, that the Appellant was wearing in the photos'. There appeared, looking at the original, no visible marks on that white shirt and yet, the Appellant's evidence to the Tribunal, was that he had been badly beaten up on the way from the demonstration to the house in which he had been detained for some hours. He had been so badly beaten in the army van that took him from the demonstration to the house, that he had a nosebleed. He also said the cellar in which he was held had been filthy dirty.
i. The Appellant was unable to produce any membership card when interviewed by the UDPS in London; and
ii. The Appellant had told us in oral evidence that he took no documents at all with him to his interview with the UDPS on 25 September.
We dismiss the asylum appeal.
We dismiss the appeal under the Immigration Rules because the Appellant is not entitled to Humanitarian Protection.
We dismiss the human rights appeal.
Senior Immigration Judge Goldstein
|1)||2006||2006 Year in Review: Democratic Republic of the Congo – July to December 2005.
|2)||March 2006||US State Department Report on the Democratic Republic of Congo – 2005.
|3)||April 2006||Country of Origin Information Report on the Democratic Republic of Congo.
|4)||23 May 2006||Amnesty International Report on the Democratic Republic of Congo for 2006.
|5)||14 June 2006||US Committee for Refugees and Immigrants Report – World Refugee Survey 2006: Congo – Kinshasa.
|6)||2006||Amnesty International Report: "Overview – Covering Events from January- December 2005".
|7)||July 2006||BBC News Report: "DR Congo's Kabila and his Kingdom".
|8)||August 2006||UN Integrated Regional Information Networks Report 'Congo – Kinshasa: Counting the Casualties after Kinshasa Battle'.
|9)||September 2006||BBC News Report: "Arrests Delay Congo Poll Results".
|10)||September 2006||Freedom House Report: "Freedom in the World: Congo, Democratic Republic of (Kinshasa)".
|11)||September 2006||United Nations Mission Report – Democratic Republic of Congo (MONUC): "Monthly Human Rights Assessment September 2006".
|12)||October 2006||International Crisis Group Report: "Securing Congo's Elections: Lessons from the Kinshasa Showdown".
|13)||October 2006||United Kingdom Foreign and Commonwealth Office Report: "Human Rights Annual Report: Democratic Republic of Congo".
|14)||October 2006||Country of Origin Information Reports – Democratic Republic of Congo.
|15)||October 2006||South Africa Press Association (SAPA) Reports of 29 and 30 October 2006 relating to reported incidents of violence in the DRC in the course of the elections.
|16)||November 2006||Home Office Operation Guidance Note (OGN) – Democratic Republic of Congo.
|17)||November 2006||Second Carter Centre Post-Election Statements
on the October 29 Presidential Elections.