IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE SMITH
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent/Respondent|
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR RAZA HUSAIN (instructed by Messrs TRP) appeared on behalf of the Appellant
MS KRISTINA STERN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
Crown Copyright ©
"In my view, his evidence was consistent and plausible and it has been corroborated by that of his wife whose credibility has not been challenged."
"1(a) He had lived at Kisangani. He had carried on business buying gold from mines and selling it to traders in Kisangani.
"(b) In c.1994, he had been involved as a co-ordinator of a Human Rights organisation Haki Za Binadamu in Kisangani. He and the other members of the organisation enquired into, and had reported abuses of human rights in the Kisangani area.
"(c) In c. May 2002, he and other members of the Haki Za Binadamu had met with a view to organising a demonstration to protest against activities of the Rwandan soldiers and the RCD rebels. It had been decided to hold a demonstration on 14th May 2002. That day, he had set out for the radio station -- because he had been deputed to broadcast the opening of the demonstration. At the radio station, Congolese soldiers of the RCD were on the verge of mutiny. A group of Rwandan soldiers had appeared. He and his colleagues had been arrested. Leaflets relating to the demonstration had been found in his possession.
"(d) He had been detained for c. seven months. Whilst in custody he had been maltreated. In c. November 2002, the Congolese officer named Anande had made contact with him. He (Mr Mongoto) and Mr Anande had both been members of the Lokele Tribe. As a result of discussions between them, it had been agreed that Mr Anande would assist him to escape on payment of a bribe of US$1,000.
"(e) Arrangements had been made for the raising of the money. On 24th December 2002, Mr Anande had driven him out of the prison, concealed in a jeep. His cousin had paid Mr Anande the money -- and had arranged for a driver to take him (Mr Mongoto) to Uganda.
"(g) [sic] From Uganda, he had flown to the United Kingdom. By that time, his wife had already arrived in the United Kingdom. She and their son had fled from the DRC immediately after the demonstration on 14th May 2002. She had been raped at that demonstration. She had been granted exceptional leave to remain."
"41. However, I am also satisfied that the Respondent has shown that the Appellant's removal will be lawful, and also necessary in a democratic society in the interests of public safety or the economic well-being of the country and proportionate to that aim. The Appellant's wife has been granted exceptional leave to remain, but upon circumstances very similar to those relied upon by the Appellant. I have found it safe for the Appellant to return to Kinshasa, and therefore I find no insurmountable obstacle to the Appellant's wife returning with him. It was not shown that the Appellant's son cannot return there, despite his age. In any event, the Appellant can apply to re-join his wife in the United Kingdom as her husband, in which event his removal will be proportionate according to Mahmood  INLR 1. I find no exceptional circumstances in this case of the sort envisaged in Mahmood. The Appellant's prospects of success in such an application are not relevant -- see  UKIAT 00005."
"In the light of those conclusions, we agree with Mr Renton's conclusions [he was the adjudicator] that there are no substantial reasons preventing Mr Mongoto's wife and son returning to the DRC with him and settling in Kinshasa. We agree with his conclusion that their removal is necessary in a democratic society in the interests of maintaining immigration control. We now have the guidance (which was not available to Mr Renton) of the starred determination of the Tribunal in M (Croatia)  UKIAT 00024."
"They [that is to say the adjudicator and the Tribunal] should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, eg through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality."
"59 ... The true position in our judgment is that the HRA [that is of course the Human Rights Act] and s.65(1) [that is the section of the relevant immigration statute] require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.
"60. In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances."
"In response to international pressure, the RCD/G and MLC authorities conducted trials following massacres committed by their armies during 2002; however, these trials were widely and sharply criticized by NGOs and human rights observers and raised questions about the legitimacy and credibility of the trials. In the case of the May 2002 Kisangani massacre committed by the RCD/G, six of the nine defendants were acquitted of involvement; two escaped and only one defendant was still in prison at year's end. The military judicial authorities who handled the inquiry overlooked reprisals that their soldiers took against the civilian population. On August 19, President Kabila promoted the two RCD/G officers charged with leading the massacres, Laurent Nkunda and Gabriel Amisi (also known as Tango Fort), to Brigadier-General."
"The promotion of the RCD/G officers is part of an attempt to achieve some reconciliation between former warring factions in DRC. It is not indicative of any enhanced risk for the claimant in Kinshasa."
"The USSD Report, which supports the pre-existing picture of emerging reconciliation, does not undermine:
"(a) the Adjudicator's finding that there was no evidence that people originating from rebel-held territory are routinely persecuted in Kinshasa.
"(b) the IAT's finding that they were not satisfied that the authorities in Kinshasa would be aware of the Appellant and his wife's political profile in Kisangani, or
"(c) the IAT's conclusion that there is 'an obvious and inherent lack of likelihood in the proposition, and we do not accept, that information was passed from the rebels to the Kinshasa authorities'."
"... very weighty reasons have to be put forward to justify the expulsion of a young person (16 years old), alone, to a country which has recently experienced a period of armed conflict with all its adverse effects on living conditions and with no evidence of close relatives living there."
"15. First, it was plain that the Secretary of State had considered that the appellant's wife was deserving of some form of leave in the United Kingdom. She was accordingly granted exceptional leave to remain in September 2002 with the couple's baby son. Accordingly, the fact (as the adjudicator found it) that the appellant's circumstances were not dissimilar to those of his wife pointed against, rather than towards, the proportionality of return: this was a case where the Secretary of State's past dealing with members of the same family contra-indicated removal..."
"(a) The fact that the Appellant's wife has been granted exceptional leave to remain here does not mean that she cannot leave the UK and/or return to the DRC. On the contrary, on the Adjudicator's findings the Appellant and his wife and family would be safe in Kinshasa.
"(b) Absent any change in her immigration status, the Appellant's wife is going to have to return to Kinshasa in approximately 16 months in any event."
"(c) Both the Appellant and his wife are young and fit.
"(d) The Appellant's children in the UK are of a sufficiently young age that they are unlikely to have any difficulty in adapting to life in the DRC.
"(e) The Appellant was a successful business man trading gold in the DRC.
"(f) The Appellant's wife was a business woman trading in second hand clothes and also buying and selling gold.
"(g) There are no insurmountable obstacles to the Appellant and his family returning together to live in Kinshasa.
"(h) Alternatively, the Appellant could return to Kinshasa without his wife and family (if they choose to remain here without him) and apply for entry clearance to enter the United Kingdom."
Order: Appeal is dismissed