CC
Heard at Field House			
On 29 July 2003		NL (Mozu-Facts) Democratic Republic of Congo [2003] UKIAT 00058 	

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     .3RD September 2003	

	Before:		
J Barnes
Prof D B Casson

Between	

	
		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
		RESPONDENT 	

Representation
For the Appellant:	Mr M Connor, Counsel instructed by Christian Khan Solicitors
For the Respondent:	Mr A Hatton, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The appellant is a citizen of the Democratic Republic of Congo, (formerly Zaire) (DRC) who was born on 16 May 1963. He entered the United Kingdom on 27 July 1997 and applied for asylum on arrival, he was accompanied by his wife and five children who are his dependents in this appeal. Following an interview on 18 May 1999 his application was refused for the reasons set out in a letter dated 12 March 2001. On 11 April 2001, the Secretary of State issued directions for his removal to the Democratic Republic of Congo following refusal of leave to enter after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds. His appeal was heard on 3 March 2003 by Mr R G Walters, an Adjudicator, who dismissed his appeal. He now appeals to the Tribunal against that decision.

2.	The basis of his claim was that following studies in Morocco from October 1987 until January 1995 he returned to his own country which was then under the rule of President Mobutu and his party, the Mouvement Populaire de Revolution (MPR), and managed to obtain work in July 1995 with his brother-in-law in a garage. The appellant was put in charge of the financial department and, although he said that he supported the Union pour la Democratie et le Progres Social (UDPS) whilst at University in Morocco, he became a member of the MPR because his brother-in-law was a member and he considered himself obliged to do so. He became known to one of the President’s sons and acted as his customs agent in retrieving merchandise from the port supported by a Presidential guard escort. He said this made him known in his own area as an influential MPR member, but because his main allegiance was to UDPS he claimed to have been involved in a dialogue between the UDPS and the MPR from the end of 1995 and subsequently with additional negotiations with the rebel Alliance de Forces Democratique pour la Liberation (AFDL) aimed at seeking to establish a future power base in the DRC. He and a friend went to Kisangani in March 1997 but the rebels were in the process of capturing the town and denied any knowledge of the intended dialogue when his friend raised the issue with them. The appellant and his friend escaped back to Kinshasa where he remained until Kabila’s troops entered on 17 May 1997. At that point anyone who had worked for the Mobutu regime was at potential risk and he fled into hiding, making arrangements to leave the country on 25 July 1997 by air with his family to Belgium whence they made their way to this country. Since his arrival in the United Kingdom he has been a member of the UDPS and he now feared that if he was returned to his own country he would be at risk because of his membership of the UDPS which he would continue to demonstrate there.

3.	The Adjudicator accepted that the appellant had been a member of the UDPS since his arrival in the United Kingdom although he agreed with the view of the Secretary of State that this was a calculated measure intended to create or substantially enhance his claim to asylum here.

4.	The Adjudicator rejected parts of the claim made as to his experiences in his own country prior to departure. He did not accept that he would have had to join the MPR in order to keep his job in what was a firm owned by a member of his family saying:

“it is not an action which I find consistent with that of a supposed Democrat as the appellant claims to be”.

5.	In relation to the trip to Kisangani he did not accept that the appellant had been detained there or persecuted by reason of his political opinion by AFDL soldiers. He said this at paragraph 33 of the determination:

“I find that he was detained in the hotel by the drunken soldiers as a means of extracting any property from him which he might have. The appellant was seen simply by the soldiers as a relevantly rich man from whom they believed they could obtain money and goods.”

6.	He continued at paragraph 35:

“I did not find the appellant’s evidence credible that he had been involved in these various negotiations with the AFDL and other political groups. There is no evidence that the appellant had any real political power or any constituency. His jobs were to work in the accounts department of the garage and help Mobutu’s son avoid customs duties on imported goods. He held no political office in Mobutu’s party. I could think of no reason why the AFDL would be interested in talking to him at all. He described himself in interview as being a member of a group of a young people [sic] who tried to think about ways to change the situation and lead to dialogue. Such a group, I find, would be on no interest to the Kabila regime.”

7.	Dealing with the Adjudicator’s conclusions in relation to the past history in DRC, we accept that there is background evidence, including that in the expert report of Dr Eric Kennes of 17 February 2003 which appears at pages 69 to 116 of the appellant’s bundle, which would support at least the advisability of membership of the MPR at that time in what was then a one party state. It seems to us that the ground of appeal which challenged what the adjudicator said at paragraph 27 of his determination is based on a misconception as to what he was in fact saying. It was assumed, and Mr O’Connor maintained this assumption in his submissions to us, that the adjudicator was saying that the appellant had not joined the MPR at all. That, with respect, is not what the paragraph in question says. It says merely that the adjudicator does not accept that

“he would have to join the MPR in order to keep his job.”

That had been the appellant’s evidence. That paragraph 27 has such a more restricted meaning is made clear by paragraph 38 of the determination which is as follows:

	“the appellant gave evidence that if returned to the DRC he would continue his activities on behalf of the UDPS. I did not believe that evidence. I think it more probable that he would adjust his political affiliation to that of the regime in power as he did on the previous occasion.” (our emphasis)

In other words the Adjudicator is saying no more than that he believed the appellant was prepared to trim his political affiliation to suit the circumstances in which he found himself.

8.	Turing to paragraph 35 and the reasoning there, it is challenged on two bases in the grounds of appeal. First, that the appellant was not suggesting that he was the main person carrying out front line negotiations with the AFDL and that the Adjudicator should have explored the extent to which the appellant was involved and whether he would be targeted because of his association with other persons of influence; secondly, that Dr Kennes did confirm that there had been secret talks between MPR, UDPS and AFDL members around 1996-1997 and that the AFDL had subsequently attacked influential members of the other groups they formerly held talks with. Given that the position put forward in the grounds of appeal is that at best the appellant played some sort of support role, entirely contrary to what we perceive to be the thrust of the claims made at interview and in his subsequent witness statement, it does not seem to us that the grounds of appeal raise any arguable issue that the Adjudicator’s findings were not sustainable on the evidence before him. Before us, Mr O’Connor sought to rely on the claims made at interview that the friend whom he said was actually conducting the negotiations with the AFDL was, according to information he received, killed by rebel troops on their arrival in Kinshasa. The Appellant later learned that his own house had been looted and that his parents had been threatened in their home. Initially Mr O’Connor put it to us that the threats to the parents had been because the appellant was being sought by the invading troops but he subsequently conceded that there was nothing in the evidence at interview or in the appellant’s statement which would support that additional gloss. The fact of knowledge of the sort of dialogue which may have being going on at the time does not seem to us arguably to advance the credibility of the appellant who was, it is accepted, a UPDS member in the United Kingdom for six years. It is clear from Dr Kennes’ report that the fact of the existence of such dialogue in the state of turmoil then existing in the country is historically known. Given the situation which then existed, it is no criticism of the appellant that he chose to remove himself and his family as soon as he was able to arrange to do so, but the fact remains that on his own account he left by air from Kinshasa in late July 1997, some two months after the Kabila regime had been established, at a time when the new government, although dominated by AFDL members, also included members of the UDPS. 

9.	Turning to the appellant’s activities in the United Kingdom the Adjudicator summarises his evidence on this point at paragraph 36 of the determination in the following terms:

“In his witness statement the Appellant details his involvement with the UDPS in the UK. He said that he had demonstrated outside the Rwandan, American and Angolan embassies and outside the United Nations office. In addition he had demonstrated outside the French embassy and outside Downing Street. At p. 62 there is a letter from the Chairman of the Executive Committee of the UDPS/UK Federation which states that these protests have been held at the embassies of all countries involved in the current Congolese civil war. The Appellant’s telephone number appears in a leaflet at p. 63 of A.1 where he is described as “L.Marie”. This leaflet calls on all Congolese people to protest against the presence on Congolese soil of troops from Zimbabwe, Angola, Uganda, Namibia and Rwanda. It also bears an anti-Kabila message.”

He also records the appellant’s additional evidence as to the knowledge that might be had by the DRC government as to his activities in the United Kingdom as follows at paragraph 39 of the determination:

“The appellant said in his witness statement that the UDPS has videotaped these demonstrations for its own purposes. The appellant claimed that copies of these tapes had fallen into the hands of the DRC security services. The appellant said that he has been told this by an MPR member who he knows in the UK and who has contact with persons in Brussels who are of importance in the Kabila regime.”

As to that evidence the adjudicator commented at paragraph 40 that, had it been the case, he would have expected the chairman of the UDPS/UK Federation to have mentioned it in his letter, but that he did not. Before us, Mr O’Connor accepted that he could not fault the approach of the Adjudicator at paragraphs 39 and 40 of the determination and he accepted that there was no evidence that the UDPS in London was regarded by the DRC authorities with suspicion.

10.	So far as the challenges to the adverse credibility findings are concerned, we are satisfied that the grounds of appeal raise no arguable challenge that such findings are unsustainable. They point to no error of law or approach on the part of the Adjudicator in this respect and we see no basis on which it would be proper for the Tribunal to interfere with findings made by an Adjudicator who has had the benefit of seeing and hearing the appellant give evidence before him.

11.	The remaining challenges raised are in relation to whether, having regard to his accepted UDPS membership whilst in the United Kingdom, the appellant would be at risk of persecution or breach of his protected human rights on return to the DRC. Returns are effected, of course, only to Kinshasa which is his home area.

12.	So far as any activities while he was an MPR member between 1995 and 1997 are concerned we see no arguable basis on which these would put him at any real risk. The position of persons closely associated with the Mobutu regime is dealt with in the April 2003 CIPU assessment at paragraph 5.72 and 5.73. It is the clear view expressed there that if persons closely associated with the Mobutu regime are not suspected of collaboration with the rebel forces by the security forces, they are not at risk of persecution and can therefore return to the country if they are abroad. This includes persons who were closely associated with the MPR during the Mobutu regime. These findings are based on the Belgian 2002 Fact-Finding Mission Report on the DRC. It does not seem to us that the appellant is somebody who could be regarded as either closely associated with the Mobutu regime or with the MPR during it. Even taking it at its highest, his evidence was to no greater effect than that he played some part in negotiations with the UDPS at a subordinate level at that time. But in any event there would need to be the additional factor of suspected collaboration with rebel forces even if there was still some knowledge of past association with the Mobutu regime. There is no suggestion the Appellant has any connection at all with the rebels.

13.	Given the adjudicator’s findings that he did not believe there was a reasonable likelihood that the appellant would continue activities on behalf of the UDPS if returned to the DRC (paragraph 38 of the determination), and that this, too, was a finding which is in our view sustainable for the reasons he gives, the only issue which we have to consider is whether the adjudicator’s finding in relation to the risk on return is sustainable.

14.	The Adjudicator reviewed the background evidence as to this. He considered the expert report of Dr Kennes at paragraphs 37 and 42 to 44 of his determination. At paragraph 37, he refers to the evidence as to the treatment of UDPS activists in the DRC. The adjudicator had effectively discounted the relevance of these passages because he did not accept that the appellant would continue overt activities for the UDPS if returned. We accept that there is evidence that some members of the UDPS in the DRC may be the subject of adverse attention on the part of the authorities. From the examples given by Dr Kennes they appear to be either prominent high level party officials and activists or members of any level who take part in political demonstrations which are generally illegal and broken up by the authorities. Dr Kennes is quite clear in his report that it is not UDPS membership as such which will bring adverse attention, but UDPS membership allied with the belief that the person concerned is conspiring with the rebels in the Eastern part of the country.

15.	Having regard to the sustainable findings of the adjudicator and for the reasons given above, the issue now before us therefore narrows itself to whether the appellant faces a real risk on return at the point of entry. As to this the adjudicator said this at paragraph 45 of the determination:

“The question is, of course, whether this Appellant faces a real risk on return. I am satisfied that he does not because of his activities under the Mobutu regime for the reasons which I have mentioned above. I am also satisfied that there is not a real risk that he faces imprisonment and ill-treatment because of his activities in the UK. There is no objective evidence before me to suggest that the security services are targeting returned asylum seekers because of participation in activities such as the Appellant has participated in upon their return to Kinshasa.”

16.	The background evidence before us from the respondent as to the position on return to DRC is first a letter of 22 November 2002 from the British Embassy in Kinshasa to the Immigration and Nationality Directorate which confirmed that since the writer’s appointment in May 2000 the embassy has not come across any evidence that the DRC nationals forcibly returned to Kinshasa after failing to obtain political asylum in European countries have faced persecution from the DRC authorities. The letter says that the Belgian and French governments regularly forcibly return failed asylum seekers to Kinshasa and that the Dutch government returned a group of 48 on 20 November. The local embassies of these three countries had told the writer that the essential requirements for DRC immigration are acceptable identification documents. He was not, however, able to offer assurances that returnees who had left the DRC without mandatory travel documents or had been the subject of criminal arrest warrants or illegal investigation prior to their original departure would not face prosecution if those facts were established. 

17.	Secondly, in its bulletin of 30 January 2003 the respondent has stated that there had been no suspension of removals of failed asylum seekers to the DRC although there were administrative problems , which were in the process of resolution, in obtaining the travel documents necessary from the DRC Embassy in London. 

18.	Finally there was a copy of a letter of 15 July 2003 from the Home Office to the UNHCR seeking clarification of the Home Office position on return of failed asylum seekers. It recorded that the UNHCR position paper of 25 April 2003 showed no objection in principle to all removals to the DRC but called for them to be based upon principled decisions that took account of humanitarian considerations and the fluid protection situation there. The Home Office view was that the political situation had improved with the ceasefire holding and a broad based transitional government in the process of being established, but noted that there had been a recent letter from UNHCR to a legal representative referring to “a serious deterioration” in protection of security situations in the DRC. But in discussion with the UNHCR office by a senior case worker it had been established that the main reason for that view was the ethnic conflict in the Ituri region in the north east of the country, far removed from Kinshasa. The Home Office reiterated its view that they were not aware of any deterioration in the situation in Kinshasa and other government controlled areas in the West of DRC which would call the safety of returns there into question, but that the situation was improving in such government controlled areas. For that reason there was no intention to suspend removals to Kinshasa after asylum procedures had been exhausted. The letter then added this:

“I would if I may also like to raise a related point contained in the April UNHCR position paper. In that reference is made to reports from the local human rights NGO’s that certain individuals may face serious problems on their return. In particular that they might face interrogation by the Security services at Kinshasa Airport, and if the deportee is considered to have a military or political profile, the individual would be at risk of arbitrary detention and ill-treatment. The statement also referred to other individuals being sent to detention centres as a means of extorting money. However we are not aware of any evidence of serious abuse by the Congolese authorities of individuals returning from the UK or other EU countries. We are not aware of any international agency reporting on Human Rights in the DRC reporting such abuse, neither are we aware of any such report by local human rights organisations and would be grateful for more information about the reports referred to in the position paper.” 

19.	It is clear from the respondent’s documentation that the position is maintained that there is no reason why those who have been through a full asylum process and whose appeals have been dismissed should not be returned to Kinshasa, and that there is no information which would confirm reports from certain local NGO’s that any persons considered to have a military or political profile might be at risk of arbitrary detention and ill-treatment. In any event, the Appellant certainly has no arguable military connection and, for the reasons set out above, there is no reason to think that he would have a political profile in the DRC.

20.	Dr Kennes deals with the position of returned failed asylum seekers in his report also, at pages 103 – 104 in the appellant’s bundle. He says that there are no systematic studies on the fate of returned asylum seekers or on the Kinshasa’s government policy in relation to them. He says there was a statement from a former Ministry of Interior official on 13 October 2000 that returned failed asylum seekers were immediately arrested at the airport and subsequently imprisoned. No other source of information was known about such a practice and it has not been independently verified. 

21.	There was further the official statement by the Director General of the Congolese Immigration Services on 24 May 2001 which is frequently cited before us. As the Tribunal has made clear in numerous decisions the thrust of that statement was directed at people traffickers and, indeed, Dr Kennes confirms this where he said that the spokesman declared he wanted to dismantle underground immigration networks, who operate under the cover of applications for political asylum in Western countries. Dr Kennes says that in a telephone conversation with him, the maker of that statement made it clear that the migratory detention centres were not centres for imprisonment but simply intended for screening and identification of returned asylum seekers with the view of reintegration into society, combined with gathering information about individuals behind the underground networks to able them to be brought to justice. Dr Kennes says that he sees no problem if that is the use to which such centres are being put but then continues:

“When the centres harbour returned asylum seekers who were entitled to political asylum but were unjustly refused, then the authorities immediately have their opponents at hand to interrogate them and put them into jail.” (our emphasis)

He added that he is not saying that all failed returned asylum seekers are put into jail, but he is saying that the procedure of the migratory detention centres, which he is informed are partially operational by the Director of Migration Services, is an instrument for identification of failed returned asylum seekers. Despite a comment later in the report that returned asylum seekers from the UK would be met with more suspicion, Mr O’Connor specifically disassociated himself from that comment in the report, accepting that there was no evidence to support it.
It is axiomatic that if the Appellant does not succeed before us it will not be on the basis that he is someone entitled to political asylum who is being unjustly refused, the category which Dr Kennes identifies in the passage we have quoted above.

22.	We are left then with this situation. It is accepted on behalf of the appellant that there is no evidence that UK returnees are more seriously treated than those from any other country and that there is no evidence that the UDPS in London is regarded by the DRC authorities with suspicion. In this country the appellant has been associated with the UDPS in relation to demonstrations largely protesting about the actions of other countries involved in the civil war in the DRC, a matter in respect of which the authorities in the DRC equally protest. The thrust of the evidence is that UDPS membership is likely to draw adverse attention from the authorities only if linked with evidence of collaboration with the rebels in the Eastern part of the country, but there is no evidence from the appellant that the UDPS in London is involved in any such activity at all, or regarded with suspicion by the DRC authorities. It is known that France, Belgium and the Netherlands return quite substantial numbers of DRC failed asylum seekers to Kinshasa and there is no evidence that there is any reasonable likelihood that such returnees face persecution or treatment in breach of their protected human rights on return. There is no evidence that even if the activities of the appellant for the UDPS in London were known to the DRC authorities that of itself would be reasonably likely to put him at real risk on their part. We have no doubt that had any such evidence existed the appellant’s representatives would have been assiduous in ensuring that it was brought to our notice. The burden of proof remains on the appellant to show to the level of a reasonable likelihood that he runs a real risk of persecution or treatment in breach of his protected human rights if now returned. The Adjudicator found that he failed to discharge that evidential burden and we see no basis on the evidence before us on which it can be said that his decision was unsustainable.

23.	 There is one further matter which it is appropriate for us to deal with in this determination because we have taken the opportunity of analysing Dr Kennes’ report as to risk on return. The grounds of appeal placed reliance on the Tribunal decision in Mozu [2002] UKIAT 05308. It is a decision frequently cited by Appellant’s representatives as authority for the broad proposition that a failed asylum seeker is at risk of persecution on return to the DRC.  There have been many Tribunal decisions both before and since which have undertaken a detailed consideration of the basis on which this proposition depends. It arises from a misconstruction of what was said by the Director General of the Congolese Immigration Services in the statement referred to above. The effect of that statement had been the subject of analysis by the Tribunal in at least two previous appeal decisions which were apparently not drawn to the attention of the Tribunal in Mozu. That analysis is effectively the same as that given by Dr Kennes in his report referred to above. As will be seen, Dr Kennes’ report is certainly not now, if it ever was, authority for the broad proposition sought to be derived from Mozu, although his opinion is there referred to. Finally, as another division of the Tribunal has recently commented in [2003] UKIAT 00032 K (DR Congo), not only should Mozu be regarded as confined to its specific facts, but it undertakes no detailed or reasoned assessment of the objective evidence upon which it purports to rely.  We agree with and endorse that view.

24.	For the above reasons it follows that this appeal is dismissed.

Mr J Barnes
Vice President