QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF P (DRC)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
(IMMIGRATION AND ASYLUM CHAMBER)
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF R (DRC)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
David Blundell (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 15 October 2013
Crown Copyright ©
Mr Justice Phillips :
"In the event of any future investigations being conducted of returned failed DRC asylum seekers, those concerned should take steps to ensure that basic relevant particulars are sought. Public funds, not to mention valuable judicial resources, are involved and must not be expended uselessly. In particular, we consider that where someone is known to have been a failed asylum seeker in the UK initial efforts should be directed to obtaining (with authorisation) details of that person's asylum claim and the outcome of any appeal . that would at least ensure that the investigations into their claims about abuse on return have some external reference point for gauging the truth of what is now claimed."
The factual background
The 5 July 2012 injunctions and the start of these Judicial Review proceedings
"Last week I attended a meeting organised by the All Party Parliamentary Group, which was addressed by the [DRC] Ambassador, Barnabe Kikaya Bin Karubi. I raised the issue of the failed asylum seekers plight.
He type-cast all of these people saying that they have come to this country as members of the former oppressive regime in the DCR, are here because we have a good benefit system and having committed terrible crimes in this country have to be suitably punished when they return to the Congo. As Ambassador, he signs the deportation papers!"
"While the Claimant has no personal merit, there is concern at the Ambassador's statement to the MPs. I think this should be investigated and an answer given by the Secretary of State since it can affect all returns to the DRC. Thus I am prepared to direct that he should not be removed pending disposal of this claim or further order."
Subsequent investigations and developments
" at your question regarding the return of asylum seekers to the [DRC] who, allegedly are arrested, tortured and humiliated, I responded by saying that it was not the case. Congolese citizens who failed to acquire asylum in the United Kingdom are reunited with their families upon arrival
Nevertheless, people who are being deported for having committed crimes in the UK are held in custody for a period of time to allow the congolese justice system to clarify their situation".
"In accordance with the country guidance in [BK] the [UKBA] maintains that failed asylum seekers per se do not face a real risk of persecution or serious harm on return to the DRC. However BK does accept that returnees are likely to be questioned and case owners should review each case to determine whether the applicant falls into the risk categories identified in Country Guidance, whilst taking into consideration appropriate evidence which post dates BK".
"In [the FFM report] the weight of evidence is that detention occurs only under certain circumstances; for example the French Embassy stated 'DGM [Direction Generale de Migration] do not detain people for immigration matters. This happens if you have committed crimes here or for example a returnee has committed a crime [the example given was murder] in the country the person has been returned from. In which case, the DGM will be looking out for their arrival. Therefore people are not detained for being returned but for their crimes. DGM does not have detention facilities at the airport. They detain people in town at their headquarters'".
and concluded that (paragraph 11.7 and 11.8):
"The consensus within the FFM is that returnees per se do not face a risk of detention, unless they committed a known offence, or have a recognised profile of opposition to the DRC government. Whilst in general prison conditions in the DRC are severe and likely to reach the Article 3 threshold consideration needs to be given to the individual facts, in particular (a) the reasons for any possible detention, (b) the likely length and type of detention and the individual's gender, age and state of health".
"The reality is that no indication of status is given in the redocumentation process. The only potential for the DRC authorities to learn of a serious crime committed in the UK by one of its nationals is if the crime attracted significant media publicity and the offender was identified as a DRC national."
The Defendant's further decisions and challenges to those decisions
(a) The decision in R's case
"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
"The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v. SSHD  AC 514 at p 531F."
"Consideration has therefore been given to whether your client fits the profile identified by the FFM as those who may be at risk. It has been confirmed that your client has not been convicted of any offence while in the UK and no evidence has been adduced to establish that he is wanted for any offences committed in the DRC. He cannot therefore be considered to be at risk on that basis".
"It is not proposed that your client should be deported for having committed crimes in the UK; it is proposed that he should be removed because he will not return voluntarily. It is not therefore considered that any comments attributed to the Ambassador support the view that your client will be placed at risk on return to the DRC."
" . Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.
First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
" .. in borderline cases, particularly where there is doubt about the underlying facts, it would be entirely possible for a court to think that the case was arguable . but accept nonetheless that it was open to the Secretary of State, having asked himself the right question and applied anxious scrutiny to that question, to think otherwise; or at least the Secretary of State would not be irrational if he then thought otherwise."
(b) The decision in P's case
" . the only potential for the DRC authorities to learn of a serious crime committed in the K by one of its nationals is if the crime attracted significant media attention publicity and the offender was identified as a DRC national. Your client's case has not attracted significant media publicity which has identified him as a Foreign National Offender to the DRC authorities."
" the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not".
"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed them it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusions that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.
Discussion of R's claim: the risk to a failed asylum seeker on return to the DRC
"Dr Ballard's report is relied on to offset the country guidance case of SL (Returning Sikhs and Hindus) Afghanistan CG  UKIAT 137 and thus to cause the Administrative Court to set aside the deportation orders, on the ground that Afghanistan is no longer safe for Sikhs or Hindus irrespective of their individual circumstances. The Administrative Court is really a wholly unsuitable tribunal for that purpose. Country guidance cases have a special status, failure to attend properly to them being recognised by this court as an error of law even though country guidance cases deal only with fact: see R (Iran) v Secretary of State for the Home Department  Imm AR 535, para 27. They have that special status because they are produced by a specialist court, after what at least should be a review of all of the available material. And that in particular involves a judicial input from a background of experience, not least experience in assessing evidence about country conditions, that is not available to such judges as sit in the Administrative Court and in this court. A judge hearing a judicial review application will therefore wish to tread carefully before finding that a country guidance case is unreliable just on the basis of one or two subsequent reports. The parties appearing before him will in particular wish to ensure that he is aware of any decisions in the AIT subsequent to the country guidance case in which that case has been considered."
(1) Returning failed asylum seekers from diaspora countries are suspected of being opposed to the Kabila regime/ alternatively scrutinised more carefully than returnees from other countries.
(2) They are detained on return for this purpose.
(3) "Strong interviews" may involve the use of torture.
(4) If responses to questioning are not clear the period of detention can be lengthy, thus increasing the likelihood of ill treatment.
(5) There is a screening process at the airport, whereby returnees are interviewed by DGM. During this process the returnee's luggage is searched for any evidence of opposition activity. DGM will then decide whether to free the individual.
(6) There may be a greater risk of ill treatment if an individual has been outside DRC for a longer period of time.
(7) There may be a greater risk of ill treatment if an individual has no family or connections in Kinshasa.
(8) Extortion and intimidation takes place at the airport.
(9) DGM officials go to the United Kingdom in order to identify Congolese returnees.
(a) Human Rescue: "The treatment of returnees is related to political activity. The greatest focus is on Congolese people living in the UK where the diaspora is very strong returnees from the UK will be treated very badly. There are also some ex Mubutu army people living in the UK when they are sent back they are detained and ill-treated".
(b) A Congolese Human Right Organisation: ".. if a person has made some declarations against the government they can have problems once in the DRC. Someone who has demonstrated against the government while abroad or even human rights defenders can have problems.
The UK is more open in giving opportunities to 'combatants', it is known there is freedom of speech there. That's the reason why when people are returned from the UK they are looked [at] more carefully than other countries"
(c) Les Amis de Nelson Mandela: The DGM and ANR [L'Agence nationale de renseignments] will search people's belongings to see if they are linked to the European combatants and also to see if they have any family in DRC. Those without family are at risk of disappearing. . If the DRC find a photo of President Kabila in a person's luggage and that person says Kabila is good, the person is not ill-treated."
(d) Association de Defense des Droits de l'Homme: " . Those who have applied for asylum abroad are considered to have given a bad image to the government and identified as members of the opposition. They will be asked about their reasons for applying for asylum. If returnees are found to have a political connection they are sent to the ANR"
(e) Renadhoc: People who claim asylum whether in the UK or other western European countries put the government in a bad light so the image Congolese take to other countries is not seen well here by the government, but again it is the person's profile that counts, not where the person returns from."
(f) Oeuvres sociales pour le developpement: "'Important information' would be political activist connections or a problem with the government in place. If a DGM officer releases someone with either of these backgrounds they would be in trouble"
(g) A human rights organisation in DRC: "The profile of those [failed asylum seekers] and other returnees who are detained or ill-treated is to be perceived as a political opponent or provenance, for example, Equateur province or Kasai or being a former military official or being close to people who used to be in the Mobutu regime".
(h) Toges Noir: "There is the phenomenon of 'combatants' who are against the DRC authorities and attack DRC officials when they are in Europe/UK. Those people are on the black list. When there is a group return to the DRC, the authorities cannot make a difference between 'combatants' and other returnees. DGM officials accuse returnees of being 'combatants' to take money from them but if they are real combatants there is a different treatment".
Discussion of P's claim: the risk to criminal deportees
i) First, that criminal deportees to the DRC, if identified as such, will be detained on arrival for an indeterminate period. The DRC Ambassador's official statement makes the unequivocal statement that "people who are being deported for having committed crimes in the UK are held in custody for a period of time to allow the Congolese justice system to clarify their situation". Further, there is ample evidence in the FFM report, most convincingly in the response from the French Embassy (see paragraph 16 above), that the DRC Ambassador's statement reflects what occurs in practice. Another interlocutor reported that returnees with a criminal record "are taken straight to prison". It is clear that the 'detention' referred to in this content is not merely a short period of administrative detention at the airport for immigration purposes (several interlocutors confirming that there are no detention facilities at the airport), but incarceration in a prison or detention facility in or around Kinshasa.
ii) Second, such detention is likely to be in conditions which contravene Article 3 of the ECHR. The Bulletin acknowledges (paragraph 11.8) that prison conditions in the DRC are severe and likely to reach the Article 3 threshold. This was more than confirmed by a US State Department Report dated 19 April 2013 which records that conditions in most prisons remained severe and life threatening: "Serious threats to life and health were widespread and included violence, particularly rape; food shortages; and inadequate food, potable water, space, sanitation, ventilation, temperature control, lighting and medical care. Death from starvation or disease was not uncommon". Mr Blundell advanced an argument that such concerns do not extend to DGM detention facilities in which deportees are likely to be held. However, the same Report goes on to state: "Even harsher conditions prevailed in small detention centres, which were extremely overcrowded; had no toilets, mattresses, or medical care; and provided detainees with insufficient amounts of light, fresh air and water".
"As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this court should find deeply unattractive, if not indeed totally offensive. Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty which he or she did not hold, to a brutal and despotic regime.
As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation. This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe. But it is also entirely objectionable on purely practical grounds. The intellectual exercise (if it can be so described) of assessing whether (i) a person would and could reasonably be expected to lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal. To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu-PF is an impossible exercise."
" . The immigration judge would have to consider the kind of questions that the applicant might be asked when interrogated at the road block; how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu-PF card or sing the latest Zanu-PF campaign songs. It is difficult to see how a judge could provide confident answers to these questions. He or she would almost certainly be unable to avoid concluding that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered".