LSH
Heard at Field House		AK (Risk - UDPS) DR Congo [2003] UKIAT 00136 	
On 12 September 2003
Prepared: 12 September 2003			

IMMIGRATION APPEAL TRIBUNAL

                                                                               Date Determination notified:

                                                                                      …11th November 2003.	

	Before:		

Mr H J E Latter (Chairman)
Mr P Rogers JP
Mr N Kumar JP
	
Between	
	
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
	
		APPELLANT	
			
	and		

	
		RESPONDENT 	

Representation:

For the appellant:	Ms Rachel Dunbavin, Home Office Presenting Officer
For the respondent:	Mr T Khan,Counsel, instructed by,
			Charles Napp, Solicitors

DETERMINATION AND REASONS

1.	This is an appeal by the Secretary of State against the determination of an Adjudicator, Miss L Astle, in which she allowed the respondent’s appeal against the decision made on 27 February 2001 giving directions for the respondent’s removal, following the refusal of his claim for asylum.

2.	In this determination the Tribunal will refer to the respondent to this appeal as the applicant.

3.	 The applicant’s claim can briefly be described as follows.   His family is from the Luba tribe, a tribe traditionally coming from the Kasai region in the DRC.   His uncle is Maitre Mukendi, an advisor to the leaders of the UDPS.  The applicant was a member of the UDPS University branch and was in charge of public relations, having joined the University in 2000.    

4.	On 17 May 2000, the anniversary of President Kabila becoming President, the conditions in the University were not good and the students saw the anniversary as a good opportunity to demonstrate.   A group of them organised by the appellant stopped a bus and took it to the city centre to disrupt celebrations.   After the demonstration they drove it back to the campus and left the bus so that the owner could claim it.  

5.	Four days later the police came to the campus and arrested the applicant. He was told that he was organising a rebellion and was at the centre of it.  The police took him to a place which the applicant was not able to identify for about 3 weeks.    He was then transferred to the Kin-Maziere Police Station in Kinshasa.  He was held in a cell on his own for one week and was beaten with cord and truncheons.    The police wanted him to confess that he was organising a coup d’etat.  The Chief of the Armed Forces was directing the investigation.  One of the results of the beating was that he now has a problem with his nose.  In warm weather he suffers from nose bleeds.   He also has two scars on his leg.

6.	However, a commander took pity on the applicant who appealed to his better nature.   He spoke to the commander in his own language, Swahili, saying that the hopes of his family rested on him.   This man went away for 2 or 3 hours and then returned.  It was early evening.   He opened the cell door and gave the applicant directions. He went to the outside wall, climbed it and ran away.  As he did so he heard the commander cry out that he had escaped.  A shot was fired in the air.   The applicant hid in the bush.   He heard people searching for him, but they did not find him.   In the morning he found a fisherman who helped him to cross to Brazzaville.  He thinks now that the man who helped may be dead.   The applicant then lived rough in Congo Brazzaville from June until December 2000.  He told a man of his plight and was allowed to use his phone card to call his friends.   His brother sent him money.  He contacted an agent and a passport was arranged.  The applicant travelled back to Kinshasa on 22 December 2000, and from there to Lubumbashi and on to Johannesburg before travelling to the United Kingdom arriving on 23 December 2000.   

7.	His claim for asylum was based on a fear of persecution from the authorities and security forces in the DRC, because of his political opinions.  The Secretary of State did not find the account to be credible for the reasons which he has set out in his decision letter dated 24 February 2001.  The Adjudicator heard the appeal against this decision on 17 March 2003.  She has set out her findings in paragraphs 29 to 34 of her determination.  The applicant had produced a newspaper article in evidence containing an article about the protest and referring to him.   The Adjudicator did not attach any particular importance to it saying the article may or may not be genuine.   She commented that it gave different dates to those supplied by the applicant and was published some 9 months after the event.  The only person it named was the applicant, although others were arrested at the time and the applicant on his own account had escaped by that stage.   She was sceptical about the paper but took it into account as part of the evidence in the round.

8.	She went on to comment that the applicant’s account of his part in the protest and his arrest had been consistent.   It was perhaps a little jumbled at interview, but she felt that some allowance must be made for the fact that the applicant was interviewed immediately upon arrival.  This might also account for the discrepancy over his travel details.   He had demonstrated some knowledge about the UDPS and that he had become a student at the University in 2000.  Overall, the Adjudicator found that he was a student and a member of the UDPS and that there was a reasonable degree of likelihood that he had been involved in a protest about conditions at the University.

9.	As such, the Adjudicator considered that it was likely that the applicant had been detained and the background information indicated that anyone who was detained was likely to be ill-treated.  However, she did not find it credible that the chief of the armed forces would be involved in investigating a student protest, nor did she find his account of escaping from detention to be credible.  She did not find it at all believable even to the lower standard of proof, that a commander of police would risk his life and his job as a simple humanitarian gesture to a stranger who spoke Swahili to him.  She did not believe that the applicant was at large on account of his escape. 
  
10.	The Adjudicator went on to consider whether the applicant would be at risk upon return as a failed asylum seeker.  She had before her the Tribunal determination in Mozu [2002] UKIAT 05308.  She commented that she did not have the benefit of reading Dr Kennes’ report herself and must therefore rely on the Tribunal’s analysis of it.   She noted the reference to two government officials saying that there was a real risk to returnees on political grounds.  On this basis, she allowed the appeal on both asylum and human rights grounds.

11.	In the grounds of appeal it is argued that the Adjudicator’s findings are speculative and that she has not applied the correct test when dealing with the risk on return for a failed asylum seeker.   She relied on the Tribunal’s analysis of Dr Kennes’ report referred to in the case of Mozu.   This was not a starred decision and each case turned on its own merits.  The grounds annex a letter dated 22 November 2002 from the British Ambassador in Kinshasa indicating that since his appointment in May 2000 he has not come across any evidence of failed asylum seekers facing persecution from the DRC authorities on return.   The Adjudicator had not explained why she considered the applicant would face a reasonable likelihood of persecution for a Convention reason on return. 

12.	Ms Dunbavin adopted these grounds in her submissions.   She argued that the Adjudicator’s findings were insufficiently explained.  It was clear that she had not believed the account of escaping from detention.   Given her findings she failed to explain how or why the applicant would be at risk on return.   She placed too much weight on Mozu which turned on its own facts at the date of decision.   There was no proper analysis of the evidence.   She referred the Tribunal to the decisions in L DRC [2003] UKIAT 0046 and K [2003] UKIAT 0032.  In paragraph 8 of L there was a reference to the UNHCR position that only those who had a military or political profile or sought asylum abroad owing to a political or military background, would be at risk on return.  

13.	Mr Khan submitted that the Adjudicator’s findings on the issue of credibility were properly open to her.  The applicant had been arrested because of his political opinion.  He had been detained and the Adjudicator found there was a likelihood of ill-treatment.   In these circumstances, her assessment of the risk on return was properly open to her.  The background evidence showed that there was a continued risk of ill-treatment by those who were detained.  There was a risk that the authorities would discover that the applicant had been detained in the past.  There would be a real risk of ill-treatment in any future detention. 

14.	The Tribunal will deal firstly with the issue of the Adjudicator’s findings of facts and the circumstance in which the applicant left the DRC.   Applying the lower standard of proof, the Adjudicator did accept that he had been arrested following the protest about conditions at the University.  He was detained and the likelihood was that he had been ill-treated.   The Adjudicator went on to consider whether there would be a real risk on return. It is clear from paragraph 33 that she took the view that the risk would arise from the applicant being returned as a failed asylum seeker.  She based her decision on the Tribunal determination in Mozu.

15.	That case was determined in October 2002.   It concerned a woman asylum seeker with two young children.  On the basis of the evidence before the Tribunal, it found that the DRC was in a very unsettled condition and the evidence of the reception of return asylum seekers particularly from the UK, was such that her return did indeed, expose her to a serious risk of imprisonment and with it rape.  This determination was considered in K where in paragraph 17 the Tribunal held that Mozu was clearly confined to the specific situation of the appellant in that case as someone in poor mental health at risk on imprisonment and rape and returning with small children.   In our judgment, the Adjudicator placed undue weight on this one authority, which in any event is by no means representative of Tribunal jurisprudence on the issue of returns to the DRC.

16.	In both L and K, the Tribunal came to the conclusion that there was no real risk of serious harm for failed asylum seekers per se.   The Tribunal agrees with these views for the reasons set out in those determinations.   We take into account the letter dated 22 November 2002 from the British Ambassador who says that he has not come across any evidence that DRC nationals forcibly returned to Kinshasa have faced persecution from the authorities.   Neither have the Belgian, French or Dutch governments.  In our judgment there is no adequate evidential basis for a finding that this appellant would be at risk on the sole grounds that he would be returned as a failed asylum seeker.

17.	Mr Khan argued that there was a risk to the appellant arising from his individual circumstances.   The Adjudicator had found that he had been a student and a member of the UDPS who had been involved in a demonstration, detained and ill-treated.   It is the applicant’s claim that he was involved in the December 2001 demonstrations Lubumbashi.  The CIPU Report at paragraphs 5.74-5 confirms that more than 400 students were  arrested and detained at the police headquarters. Many were subjected to beatings and whippings with military belts.   Almost all of the students were released the following day.  The Tribunal certainly does not condone any such behaviour.   However, the issue is whether this applicant would now be at a real risk of persecution or treatment contrary to Article 3 on return.   Even if he was detained and ill-treated as he describes, this was because he had been involved in a student demonstration.   The Tribunal are not satisfied that he would be regarded by the DRC authorities as having any political profile, nor that he would be of any adverse interest to them.   He would be of no more interest to them than any of the other students who had taken part in that demonstration.

18.	For these reasons, the Tribunal are satisfied that the Adjudicator’s assessment of the risk on return was wrong and that there is no reasonable degree of likelihood that the applicant would be at risk either of persecution or of treatment contrary to Article 3.

19.	In these circumstances, the appeal by the Secretary of State is allowed.

H J E Latter
Vice President