COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION APPEAL TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE STANLEY BURNTON
| BK ( DEMOCRATIC REPUBLIC OF CONGO)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Lisa Giovannetti & Mr Rory Dunlop (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 19th November 2008
Crown Copyright ©
Lord Justice Longmore:
"Despite concerted efforts by a significant number of people – lawyers, NGOs and others – and despite there having been a long lead-in period to the hearing and conclusion of this case during which members of the UK's DRC diaspora have been encouraged by leaflets and public meetings in over six cities to come forward with cases, we have found no evidence to substantiate the claim that returned failed asylum seekers to the DRC as such face a real risk of persecution or serious harm or ill-treatment."
(a) Persons involuntarily returned to DRC will not be seen as normal returnees and will arouse the interest of the authorities so as to be questioned on arrival. [paras 188-189]
(b) They will accordingly be interrogated on arrival at the airport and, if the interrogation revealed anything of interest to the authorities they would be likely to be detained at or near the airport; otherwise they would be released. [para 324]
(c) Failed asylum seekers would not be seen as traitors because there are voluntary repatriations and DRC is a full party to the Refugee Convention. [para 191]
(d) DRC officials would usually assume that the accounts of failed asylum seekers had been disbelieved. [para 192]
(e) If the DRC authorities believed that the act of claiming asylum was traitorous there would be no need to interrogate them to find out what they had said about the DRC government. [para 193]
(f) The DRC authorities are well aware that claiming asylum abroad can sometimes be for purely economic reasons. [para 194]
(g) There have been no official government statements portraying asylum seekers as traitors. [para 195]
(h) DRC authorities would be able to differentiate between those who are anti-regime and those who are either loyal or apolitical. [para 197]
In making these findings, the AIT made various assessments about the witnesses and evidence advanced on the appellant's behalf. Some of these witnesses were reluctant to allow their names into the public domain. The tribunal did not find the evidence of W1, W2 or W3 to be credible.
i) The appellant's activity with the UDPS in the DRC and the United Kingdom was at the 'lowest possible level';
ii) The appellant was generally an unreliable and evasive witness;
iii) The appellant and her mother concocted their accounts and this reflected adversely on the mother's credibility as well;
iv) The evidence which the appellant's mother gave was not credible;
v) The claim that the appellant was arrested, ill treated and raped was rejected;
vi) The account of her claimed escape and travels was not believed.
i) the AIT had failed to give credence to witnesses who had been disbelieved in the course of their asylum applications; it was said that the mere failure of an asylum claim on the grounds of credibility did not mean that evidence given about the fate in general of those involuntarily removed to DRC was necessarily false. This ground, as I understood it, related both to the witnesses, such as W2 and W3, who gave oral evidence to the Tribunal but also to hearsay accounts from those who were (or had been) in DRC and gave those accounts to expert and factual witnesses who then repeated them in their evidence to the Tribunal;
ii) the AIT had failed to consider what questions would be asked of those involuntarily returning and to remind themselves, as said in IK  UKIAT 00312, that they could not be expected to lie in the answers they gave;
iii) the AIT should not have rejected the evidence of witness W1 whose asylum claim had been accepted by a differently constituted AIT on the basis that he was a credible witness;
iv) the evidence of the first expert witness (E1) should have been accepted especially as he had given evidence and been believed in AB and DM.
Credibility of Failed Asylum-seekers
"We underline our concern that E2's reports nowhere address the question of to what extent the deportees her organisation interviewed or heard about could be considered credible given their history as failed asylum seekers. Of course, someone who is a failed asylum seeker may not necessarily have been disbelieved about everything or anything, but, in general terms, if a person is a failed asylum seeker there is absolutely no reason (absent evidence to the contrary) to assume that they have been found credible in the course of their asylum claim. Hence any approach to evidence from a failed asylum seeker which treats it as truthful simply on trust is extremely problematic. E2 was asked about this in cross-examination and said that she and/or her organisation brought their considerable experience to bear when assessing what she/they were doing. We are bound to say we see very little evidence of any real scrutiny. On her own account the main priority of her and her organisation when contracting such people is to win their trust. That is entirely understandable, but, in the absence of an indication in E2's reports of the issue of an individual's past credibility or lack of it being addressed, even with those individuals she and her organisation were able to interview thoroughly, this is a serious flaw in her methodology. This is not to say that she had not shown real diligence in some respects, for example in writing down telephone interviews and in video-recording some interviews. In appendix B of her first report she refers to being able in February 2006 to interview a number of people in a "special setting" in which statements were taken in their presence of two persons and a local group attempting to "provide help to people forced to return from Europe and unable to survive". But unfortunately she does not match these measures with other basic empirical steps and, as a result, we are left with a body of evidence with very little substance."
The critical phrase is "extremely problematic". The AIT make it clear that they do not proceed on the basis that a failed asylum seeker is to be disbelieved about all that he or she has said in the past or was saying to the expert witness. But there can be no doubt that evidence from such a source is, indeed, extremely problematic. The AIT considered the evidence on a whole and came to its conclusion upon it. This is particularly clear with findings about the February 2007 charter flight in para 359. It is impossible to see any error of law. An assertion that a tribunal has approached evidence too sceptically is not an assertion of error of law, only an assertion that more than one factual decision is possible. The fact that the decision-maker has come to a particular factual conclusion does not mean that any error of law has been made.
The IK Point
"if W1 had voiced then the much wider claim he now has."
This paragraph is not, however, given as the reason for rejecting W1's evidence. There were separate reasons given for that earlier. Even in this paragraph the AIT accepted that part of W1's evidence was considered true namely that he had been principal assistant to the chief prosecutor and may well have had occasion to visit N'Djili airport and the prison at Kin Maziere. This shows the AIT's balanced approach to the evidence.
"does not indicate that the amounts requested/demanded normally present any particular problem for the returned asylum seekers except where there are special risk factors."
They later said
"even loose change will do"
"… This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security  3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decision should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent tribunal had indeed confused the three tests or neglected to apply the correct relocation test. The structure of their determination can be explained by the fact that this was a "country guidance" case: but that makes it all the more important that the proper approach … is followed in future."
Lord Justice Stanley Burton:
Lord Justice Laws: