MM (risk- failed asylum seekers) Democratic Republic of Congo  UKIAT 00071
Date of hearing: 9 July 2003
Date Determination notified: 15.08.03
|Secretary of State for the Home Department||RESPONDENT|
For the appellant: Mr K Behbahani of Messrs Scudamores Solicitors
For the respondent: Ms C Hanrahan, Senior Home Office Presenting Officer
"The adverse credibility findings are sound. In particular, the Tribunal considers that the Adjudicator was entitled to find implausible the claims that on the one hand the Rwandans on the claimant's premises would not have been discovered on the first occasion when the premises was searched, on the other hand that he would have allowed them to remain living there given the threat that they posed. The findings about his escape from custody and its implausibility are also sound."
"However, it is right to make the point as was done in the grounds of appeal that there are no findings by the Adjudicator on risk on return as a failed asylum seeker. It would appear from the submissions before the Adjudicator that there may be contrasting Tribunal determinations on the point, and it is appropriate therefore for the matter to be considered and clarified by the Tribunal."
i) The appellant is a citizen of the Democratic Republic of Congo.
ii) He has been in the United Kingdom for approximately three and three-quarter years, having arrived on 27 October 1999.
iii) If returned, he would arrive in the DRC as someone who had made an unsuccessful claim for asylum in the United Kingdom.
iv) The appellant was previously married to a DRC citizen whose father was Rwandan but who has since died.
a) The UK Government in the past removed persons to the DRC by mean of EU travel documentation.
b) That practice has ceased. Ms Hanrahan was unable to say precisely when, but it appears from a Home Office bulletin of January 2003 that the practice ceased prior to 30 January 2003.
c) A person in possession of a valid DRC passport can currently be removed.
d) The UK Government is in negotiation with the DRC Embassy in London with a view to arranging for those not in possession of such a passport to be returned to the DRC upon an emergency travel document.
e) Such a document would confirm that the person concerned is a DRC national but would not contain any other information as to why he or she had been present in the United Kingdom.
"The need for a case-by-case approach in examining all asylum applications and in assessing whether or not an asylum seeker may be returned in safety. Within the particular country context, each case should be examined on its own merits with due weight being given to the specific background and profile of the applicant."
The letter then went on to look in more detail at particular categories of persons who might be at risk on return:
"Against this backdrop, persons originating from rebel-held territories such as Goma are held in suspicion and liable to adverse attention – sometimes amounting to persecution – from the authorities in Kinshasa. By a similar token, persons of Rwandese origin are also at risk of adverse attention. This is not least because Rwandese and Rwanda-supported forces are prominent among the armed elements ranged against the Kinshasa authorities. In this light, persons of Tutsi ethnic origin are known to be among the targets of extreme human rights abuses amounting to persecution. Tutsis and those perceived to be Tutsis have been subjected to arbitrary detention and ill treatment and have in certain instances been tracked down and killed in Kinshasa. This analysis is equally applicable to ethnically mixed Tutsis.
According to information available to UNHCR, agents of the security services frequently interrogate Congolese returning to Kinshasa from abroad, particularly those who are known to have sought asylum. UNHCR is aware of instances where interrogation at the airport has been followed by arbitrary detention and serious ill treatment by DRC security agencies. If the returnee is not already known to the DRC authorities, there is a strong likelihood that were he to be returned to Kinshasa, his background could be revealed in the course of interrogation on arrival."
"Members of the very specific groups of Hemas, Lendus and Banyanulenges, may hence become victims of ethnic intolerance either because of their activities or because they belong to the group of mixed-marriage people who may be rejected by their neighbours and be forced to seek asylum in a neighbouring country. People belonging to a family of mixed ethnicity should be identified as a group at risk. Particularly in the east, those who are approached in the UNHCR in search of help want to leave because none of the two communities will trust them.
In general, the offspring belong to the ethnic group of their fathers. So if the mother is e.g. Hutu, Baluba or Kongo and the father is Tutsi, the child will be described as Tutsi. Yet, the case is not always that straightforward. Some people have been even killed because of their appearance, because they look like a Tutsi, while in fact they were not. One group that is often persecuted, but unfortunately often forgotten are the Hutus who themselves are not safe inside the DRC. They are persecuted on both sides of the frontlines."
"In view of the above [namely, the preceding passage concerning the return of refugees from neighbouring countries such as Congo-Brazzaville] and describing the very serious situation in the DRC, caution should be exercised in the involuntary return of unsuccessful asylum applicants from the DRC, and a case-by-case approach is necessary in dealing with these individuals. Asylum seekers who have been unsuccessful after going through fair eligibility procedures and application of correct eligibility criteria may still face problems upon return to their country of origin. Issues such as the individual's place of origin, last place of habitual residence, family relations, ethnic group and profession are to be considered before the person is deported. An individual approach based on the circumstances of each case and a careful consideration of the changing political and security context in the DRC is therefore required. In any case, deportation to the DRC should be avoided."
"that a great majority of deportees are escorted by the police of the deporting country. According to the authorities, when the deportee returns with a travel document "tenant lieu de passport", he/she is referred unaccompanied to the immigration office in the center of the capital to complete immigration formalities. The authorities reiterate that the deportee, while he or she is completing immigration formalities, is not a detainee and that as soon as Congolese nationality is confirmed the person is allowed to leave immigration premises.
A problem arises when the deportee is in fact a non-Congolese national. DRC immigration authorities have indeed reported to UNHCR and the local office of the UN High Commissioner for Human Rights (UNHCHR) in Kinshasa that in several instances deportees holding identity/travel documents issued by the DRC Diplomatic Missions turn out to be Angolans after a thorough interview. As an example, the DRC immigration authorities were "hosting" in their premises for over a year an Angolan national who was deported as Congolese by the Swiss authorities, but who had departed to Switzerland from Angola and not from the DRC. It is therefore recommended that states very carefully ascertain the nationality of unsuccessful asylum applicants before they are processed for return to the DRC.
While the DRC authorities maintain their position as to the procedure in place to receive deportees, the UNHCR has received reports on deportees transferred to the DRC intelligence services such as ANR (Agents Nationale des Renseragnements), DEMIAP (Detection Militaire des Activites Anti Patrie) or GSSP (Garde Speciale de Securite Presidentielle) for interrogation. The DRC authorities deny such procedures.
Against this background, it can no longer be said that only those deportees who are discovered by the authorities to have sought asylum abroad undergo interrogation sessions upon arrival at Kinshasa airport. In fact, reports from local human rights NGO's, victims and eye witnesses show that certain groups of individuals who are deported (having or not having sought asylum), who repatriate voluntarily, may face serious problems following possible interrogation conducted by security services upon arrival to Kinshasa. Should the authorities in Kinshasa discover that a deportee has a political or military profile, or has sought asylum abroad owing to a political or military background, such a person may be at risk of arbitrary detention and ill treatment. People who are returned without any assurances that the government does not hold any grudge against them could be in serious trouble and get detained as prisoners of conscience or could even be at risk of the death penalty, always depending on their activities."
"Responding to a question from the audience whether seeking asylum itself could lead to persecution and hence be a sufficient ground for granting refugee status, Mr Byaruhanga [Central Africa Researcher, Amnesty International London] stated that he was not aware that people had been detained solely for seeking asylum. Usually they are accused of some offence, like alliance with the enemy, as e.g. in the case of people from Kivu, having fled to Nairobi and subsequently to Europe and then being deported to Kinshasa."
"when countries of asylum have deported someone and handed over all the information about this asylum seeker to the home government. Informing them that the applicant has e.g. claimed that he was imprisoned and beaten could cause serious problems for the individual."
The seminar appears to have agreed that this "is something that must in all cases be avoided" and that
"reporting to the authorities of the country of origin about the asylum claim obviously could create serious trouble for a person who may not have problems otherwise."
"The British Ambassador to the DRC stated in November 2002 that he has not seen any evidence to indicate that failed asylum seekers are persecuted on arrival in Kinshasa. He has also stated that the French, Belgian and Dutch governments return failed Congolese asylum seekers to the DRC without any problems. The only formal requirement needed to allow the returns of failed asylum seekers are valid travel documents."
"The humanitarian situation in the DRC continues to be of concern to UNHCR, mainly due to human rights violations, epidemic outbreaks, major nutritional and health problems and restrictions on humanitarian access that are exacerbated by the ongoing hostilities. Over 2.5 million of the estimated 50 million Congolese citizens are now displaced. Over 500,000 were displaced in 2002 alone, mainly due to intensified violence and renewed fighting. Almost a million of them have not received any aid because of the unstable security situation, especially in the eastern provinces of DRC.
With regard to the treatment of persons returned to the DRC, first hand accounts and reports from local human rights NGOs suggest that certain individuals who are deported (regardless of whether they sought asylum abroad), or even repatriated voluntarily, may face serious problems following possible interrogation conducted by security services upon arrival in Kinshasa. Should the authorities in Kinshasa discover that a deportee has a political or a military profile, or has sought asylum abroad owing to a political or military background, such person may be at risk of arbitrary detention and ill treatment. There have also been reports of abuse of power by security officers at Ndjaili International Airport (Kinshasa). It is alleged that they intimidate deportees to extort money, and send them to detention centres in cases where neither they nor their families can pay.
However, the DRC authorities maintain that the deportee who returns with a travel document "tenant lieu de passport" is required to complete immigration formalities upon arrival in order to confirm his or her Congolese nationality. He is not detained and is allowed to leave immigration premises once Congolese nationality is confirmed. The problem in the deportation procedure may occur when the deportee is not a Congolese national and has acquired a DRC passport in a fraudulent manner. In such cases, there have been reports of persons suspected of being nationals of countries considered as "unfriendly" (e.g. Uganda, Rwanda) may be arbitrarily detained and face ill treatment. Nationals of other countries would normally be released after interrogation. It is therefore recommended that the nationality of rejected asylum seekers be carefully ascertained before they are processed for return to the DRC.
DRC authorities maintain that the information in the preceding paragraph correctly reflects the procedure in place to receive deportees, the UNHCR (UN High Commissioner for Human Rights) has nevertheless received reports about deportees transferred to the DRC security services such as ANR (Agents Nationale des Resignaments) and DEMIAT (Detection Militaire des Actives en Anti Patrie) for interrogation. The Minister of Interior recently announced that these two security services no longer officially operate at Ndjauli International Airport. Officially, only the police and the DGM (Direction Generale des Migrations) are currently operating at this airport. Reports suggest, however, that the remaining security services have not in fact ceased their operations and continue to maintain an unofficial presence at Kinshasa airport.
The above-mentioned observations, combined with the serious deterioration of the protection and security situation in the DRC, raises questions as to whether unsuccessful DRC asylum seekers may be returned without undue risk. You may be aware that as recently as March of this year, UNHCR's view was that it was, generally speaking, possible for unsuccessful asylum seekers to return to the DRC provided that they had been found in fair procedures not to have international protection needs. UNHCR believe that the validity of that view has been brought into question by the recent events in the DRC. Therefore, we are keeping the situation under review and are asking our headquarters to provide us with an updated position on returns, which takes into account the most recent developments.
Please keep us informed of the outcome of this appeal."
"continued threats and difficulties faced by those who have, or are presumed to have, Rwandan connections or are of Rwandan origin in Kinshasa and other parts of the DRC."
Reference is then made to a continued threat
"for those individuals who are suspected by the Kinshasa authorities of having close links to Rwanda."
Given the findings of the Adjudicator, to the effect that even whilst he was married, the problems described by the appellant did not occur, and given that he is not at present married to anyone who has Rwandan connections, Mr Behbahani appeared to accept that this letter could be of little assistance to the appellant.
a) On the information available to it, as at 9 July 2003, it is not the fact that a person returned to the DRC is, by reason only of being a failed asylum seeker, at real risk of persecution or Article 3 ill treatment;
b) In order to run a real risk of being taken into detention, following the screening of a returnee at Kinshasa airport, there must be something further in the returnee's background, such as past political or military activities or nationality of a state regarded as hostile to the DRC;
c) There is nothing in the circumstances of the appellant in this case to suggest that he would be of any adverse interest to the DRC authorities.
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P R Lane