APPEAL No. RK (Obligation to investigate) Democratic Republic of Congo  UKIAT 00129
Date of hearing: 16 April 2004
Date Determination notified: 7 June 2004
|Secretary of State for the Home Department||APPELLANT|
The decision in VL
"41. For proper reasons largely to do with concerns about continued detention of a number of failed DRC asylum-seekers, the Bail for Immigration Detainees (BIDS) organisation whose co-ordinator is Mr Tim Baster, has entered into correspondence with the Home Office, with CIPU and a number of other bodies. Towards the end of 2003 key parts of this correspondence together with a number of other documents were published by the Immigration Law Practitioners Association (ILPA). We do not propose to itemise all of it in the text of this determination. It will suffice to say that it broadly covers materials considered relevant by BIDS up to and including their letter to the Home Office dated 25 November 2003. It is necessary also to say that much of it raises issues, e.g. the continued detention of failed asylum seekers, the history of Home Office failure to respond to BIDS' request for further enquiries, which are not our concern. However, insofar as it constitutes relevant new evidence meriting Tribunal assessment, its essential particulars can be summarised as follows:
42. The November 2003 BIDS' letter asserts that on 12 March 2002 a charter flight was organised by the Resettlement and Co-ordination Unit (RESCU) to Kinshasa. It included 13 passengers who were nationals of the DRC. According to first and second hand information given to BIDS, all but one of the 13 passengers concerned met with detention and ill treatment upon return. As for the only one who was not, he had been returned straightaway to the UK. Another of the passengers who had eventually been released had made his way back to the UK and claimed asylum. An anonymised statement setting out his experiences on return was contained in the bundle before us.
43. The same BIDS letter asserts that it knows of 3 further DRC nationals who have been removed since 10 October, 2003, two of whom – AB and DE - appear to have ended up in the Central Prison in Makala.
44. Marrying this information together with that supplied by the Home Office regarding the number of person returned in 2002-2003, BIDS contends (in its 25 November 2003 letter) that:
'Even assuming that all DRC nationals who were removed from the UK between January 2002 and November 2003 were actually sent to Kinshasa, then of 38 (adding the 2002 statistics to the provisional statistics for January – March 2003 and the three recent removals that we are aware of) there is evidence that 15 of these returnees were imprisoned on arrival in Kinshasa. This represents a rate of detention of some 40% of all known returnees over a two year period.'
45. The BIDS' bundle also includes materials from a Congolese NGO with an office in the Netherlands called 'DocuCongo' which indicates that this body has learnt of DRC nationals removed from other European countries who have been detained and ill treated on return. The position of this organisation on the subject is mainly set out in a letter dated 26 September 2003. It summarises two cases of persons said to have been returned from the Netherlands to Kinshasa in November 2002 and two in June 2003. Mention is also made of another person said to have been detained on arrival having been removed by Germany in September 2003. The author also refers to "a source in the DGM" (Direction Generale de Migration) giving an account of frequent mistreatment on return."
"78. The case in relation to which BIDS have adduced an anonymised statement concerns a DRC national who claims to have been one of the passengers on the March 2002 charter flight, He avers in that statement that upon arrival in Kinshasa he was detained and ill-treated before eventually being released. BIDS states that upon return to the UK he made a claim for asylum. We raised with the parties at the December hearing our receipt of unverified information that an asylum seeker who claimed to have been on the March 2002 flight had appealed and that an Adjudicator had dismissed his appeal quite recently. However, despite their raising no objections, we decided not to take steps to direct further inquiries or to seek to obtain a copy of any determination. Thus we make no judgment as to whether that dismissal, if one has been made, relates to the author of the statement submitted by BIDS. What we can state with certainty, however, is that there is no evidence before us to show that this statement's author has been accepted as credible by either the immigration authorities or the appellate authorities. Doubtless if this person is found to be credible as a result of his asylum application and/or appeal, that would put matters in a very different light.
79. The same observation applies to the evidence of another person said by BIDS to have been on this flight but to have been 'bounced' straight back. BIDS states that he has also claimed asylum. His evidence too can only be described as being as yet unaccepted by any UK authority.
80. BIDS elsewhere refers to other information it has received relating to persons who were on the March 2002 charter flight, but since nothing is specified, we can only assume it viewed such information as less significant than those items of evidence it has particularised.
81. That brings us to the two cases referred to by BIDS as AB and DE respectively. The BIDS letter describes the former case thus:
'AB' was removed from Heathrow in October 2003, by flight to Nairobi and thence to Kinshasa. His partner in the UK received a very distressed phone call from him at Kinshasa airport, in which he stated that he had already been arrested and was on his way to prison. A traveller at the airport witnessed his arrest and beating and also phoned his partner.'
82. The BIDS letter goes on to state that based on the above information, it approached human rights organisations for help in tracing and confirming AB's whereabouts. It then outlines the contents of a statement from someone described as a 'reputable witness, known to a number of international human rights organisations' who visited AB and heard from him about his detention and ill treatment.
83. BIDS' account of the case of DE was as follows. DE was removed in late October 2003. His solicitor was so concerned about his fate that she (unusually) gave him her mobile number immediately before removal and asked him to phone her on arrival in Kinshasa. He did not call her from Kinshasa for some two weeks after his removal, but, when he did, he said he was calling from Makala prison where he had been incarcerated and ill-treated.
86. A further matter we have to bear in mind is that, in respect of AB and DE, the accounts as given are far from self-evidently plausible. Believing AB's account would mean accepting as reasonably likely that the DRC authorities would have permitted him to phone after he had been arrested and was being escorted to prison. Believing DE's account would mean accepting that, whilst inside Makala prison, DE would still have had access to money he had with him when he arrived and would have been able to use it to bribe a prison official to call his solicitor in the UK. Both accounts described the calls as having been cut off or terminated. Given that both had said they had been granted access to a phone, this was a further oddity. AB's account involved acceptance, further, of the coincidence that not only was his arrest witnessed by a traveller at the airport but a traveller who was able to elicit straightaway from the policeman who had beaten AB in front of him the address of where AB was going. This traveller also happened to know AB and so was able to phone his partner in the UK who had earlier received the phone call from AB himself. IF AB's account had indeed been verified by a 'reputable witness, known to a number of international human rights organisations', then we would have expected that, between October and the date of hearing in December 2003, some specific report from such organisations not only confirming the visit but giving reasons why this person attached credence to AB's account would have been forthcoming."
"88. Another thing we have to bear in mind is that it is not known precisely why any of the individuals concerned in the BIDS and DocuCongo dossiers, even assuming their accounts were found after fuller examination to be true, fell foul of the authorities. Was it simply because they were failed asylum seekers or was it something related to other matters such as perceived political profiles or failure to perform civic obligations? Was it because they were regarded as having a nationality of a country hostile to the DRC (eg Rwanda, Uganda) or a political or military profile opposed to the regime? Certainly in some of the cases mentioned we simply do not know. Mr Aziz's response, again echoing BIDS, was that all that matters in relation to AB and DE is that these were people whom the UK authorities had found not to have any asylum-related problems on return. However, in point of fact we have no evidence in proper form even to show that the individuals concerned had made claims for asylum and were not, for example, persons returning from a family or business visit. Furthermore, even assuming each had made claims for asylum and been refused, the conclusions reached by UK authorities about their asylum claims can only have been based on the evidence as furnished by those individuals; it cannot be assumed those concerned necessarily gave the same account of themselves upon return to the DRC authorities.
89. These shortcomings in the evidence presented in the BIDS materials lead us to seriously question their contention that there is a UK rate of detention of some 40% of all known DRC returnees over a two year period. Of the figure of 38 removed between Jan 2002 - March 2003, we have not found satisfactory the evidence relating to any of the 13 persons mentioned as being returned on a charter flight in March 2002 or the evidence relating to the two cases of AB and DE. Put bluntly, that means that we have not found the evidence satisfactory in relation to the claims made about any of the 38 mentioned."
"91. That brings us to BIDS` argument that the Home Office and CIPU view about failed asylum seekers would be different had they undertaken proper inquiries into relevant matters, including the evidence relating to the March 2002 charter flight. It is not for us to pass judgment on Home Office procedures in respect of removals. However, insofar as the BIDS argument raises the general point that more active steps should have been taken by UK authorities to monitor returns, we would concur with the point made in the Tribunal determination in the case of S (Serbia and Montenegro – Kosovo)  UKIAT 00031 that the Tribunal is bound by the principles set out in the House of Lords judgment in Abdi and Gawe  1 WLR 298 regarding disclosure of evidence within accelerated procedures. There is no duty on the Secretary of State to embark upon an investigation into evidence not in his hands for the preparation of country bulletins or reports, in order to assist appellants in making their cases.
92. We note the reference in the BIDS letter to an Amnesty International (Netherlands) letter to the Dutch Government dated 8 July 2003 reporting intimidating behaviour from security services following removals from Holland to Kinshasa by charter flight. In one respect the accounts they mention do not support BIDS` contention that all asylum seekers are routinely detained on arrival at Kinshasa, since those concerned mention no problems at the airport beyond being asked to give their name and address. In another respect, however, the evidence does suggest that in these cases the security services began within a few days systematically and repeatedly visiting these addresses in order to make inquiries. As such it does raise some concerns. However, we consider (as did the Tribunal in M 00051 at para 11.13) that there would need to be much more substantial evidence indicative that this type of harassment was routine, before it demonstrated a real risk of persecution or serious harm. Furthermore, if this behaviour were routine, we would have expected that UNHCR and European governments who conduct returns would have made known concerns about it. Clearly the Dutch government considered this evidence but did not decide to change its policy in the light of it."
"76. Since the nature of the Contracting States' responsibility under Article 3 (art.3) in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; the Court is not precluded, however, from having regard to information which comes to light subsequent to the expulsion. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well-foundedness or otherwise of an applicant's fears."
MR JUSTICE OUSELEY