United Kingdom Asylum and Immigration Tribunal

T (Risk UDPS) Democratic Republic of Congo [2002] UKIAT 02206

HX36805-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 3 May 2002

Date Determination notified: 27 June 02

Before
Mrs J A J C Gleeson (Chairman) Mr A G Jeevanjee Mr R Baines JP
Between

 

T	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

1. The appellant, Mr Kibula Tengwa, is a citizen of the Democratic Republic of the Congo. He appeals with leave from the determination of an Adjudicator (Miss S Jhirad) who dismissed his appeal against refusal of asylum and the setting of removal directions.

2. At the Tribunal hearing, Mr T Hodson of Counsel represented the appellant. Mr A Sheikh, Home Office Presenting Officer, appeared for the Respondent.

3. Leave to appeal was granted on all grounds, though the chairman who granted leave to appeal indicated that ground 6 was less likely to succeed. He considered that the discrepancies set out in paragraph 9 of the determination might not be determinative, being only minor discrepancies about dates; that the Adjudicator had not made it clear in paragraph 10 whether she considered that the appellant had been imprisoned for his political beliefs or not, and whether he was likely to resume his political activities on return; and she failed to consider his account against the background evidence for the Democratic Republic of the Congo.

4. At the hearing, Mr Hodson indicated that he would not be relying on ground 6. He asked the Tribunal to consider paragraph 10 of the Adjudicator's determination –

"10. I find there is a reasonable likelihood that the appellant was a member of the UDPS, but not that he was a prominent member, and that his low-level activities for the UDPS would not have attracted any adverse attention by the authorities. No charges were brought against the appellant as a result of his detention and accordingly I find there is no reasonable likelihood he has a criminal record or that he is in a wanted list so as to bring him to the attention of the DRC authorities.

The appellant has been absent from the country for at least four years and I find there is no reasonable likelihood that he would be sought or identified as a high-profile activist if he returned to the DRC so as to attract persecution.

Furthermore, since his departure from the country, there have been significant changes in the country situation, the AFDL is now in power, and the régime from which he claimed he fled persecution no longer subsists.

Although public political activity is banned, political parties are allowed to exist, the UDPS continues to function and its viewpoint is expressed in the press."

5. Mr Hodson submitted that paragraph 10, which contained all the findings of fact and background evidence, was insufficiently reasoned. It appeared to accept that the appellant was a low-level UDPS member and had been detained. The adjudicator's reasoning supporting her findings of past and future risk was too sparse. It was not clear on what basis the Adjudicator concluded as she set out in paragraph 10.

6. Mr Hodson referred the Tribunal to the Report of the UN Special Rapporteur on human rights in the Democratic Republic of the Congo, Mr Roberto Garreton of Chile, laid before the UN General Assembly on 31 August 2001. At paragraphs 59 to 63, which appear on p 65 of the appellant's bundle, the Report says this –

"Right to liberty of person

59. Many civilians and soldiers from Kivu and Equateur have been detained, for reasons that are not always explained, as have journalists and human rights defenders. The international commission to investigate President Kabila's assassination and the Military Court commit the greatest number of abuses. Although some detention centres were closed down on the day of the Special Rapporteur's arrival in March, many are used sporadically, for instance, the DEMIAP centre where Ngbutene died as a result of torture.

60. The President declared an amnesty in May, just before the arrival of the Security Council mission, which benefited many people not implicated in violent crimes or treason, a crime of which dissidents were often accused during the Laurent Kabila era (but not under his son and successor). On the occasion of each visit by the Special Rapporteur, detainees were released.

Right to freedom of movement

61. Many people cannot travel abroad and no-one may travel to the east of the country. Several members of the opposition are on a list of persons forbidden to leave the country, and many people have their passports taken away from them upon their arrival. The Special Rapporteur found out that the explanation given by the Minister of the Interior ('the passport belongs to the State, it is taken away upon return and must be requested each time we want to travel') is not true.

Right to physical integrity

62. Torture is still used, although in recent months the number of complaints has diminished. The most serious case is that of Pierre Ngbutene.

Right to freedom of expression and opinion

63. In contrast to the situation in territory controlled by RCD and FLC, in Government-controlled territory, there are many daily newspapers. However, criticism is always difficult, as media directors and journalists are very often detained, summonsed, interrogated and sometimes tortured."

7. Mr Hodson accepted that the Special Rapporteur was referring to people whose profile was much higher than that of the appellant, who was neither a journalist nor a media director, but the excerpt showed that the current régime was still prone to detain its critics without charge or lawful reason.

8. He asked the Tribunal to look at the Amnesty International Report at p74 of the bundle, which he contended was evidence that those who were politically engaged might be detained, ill-treated and tortured. The Tribunal asked if any evidence had been put before the Adjudicator to show that the appellant was still politically active. Mr Hodson conceded that it had not been raised, either orally or in any of the appellant's statements, but said that the appellant might perhaps resume his studies. To the lower standard appropriate for Geneva Convention Relating to the Status of Refugees 1951 and European Convention of Human Rights and Fundamental Freedoms 1950, that remains a matter which the appellant must prove.

9. Mr Hodson argued that the Adjudicator had not explained in her determination whether she was satisfied that the appellant had organised student demonstrations as alleged. There was no consideration of the likelihood of political activity on return, and possibly no consideration of whether it had occurred in the past. The determination was seriously, if not fatally flawed by this omission. Given the major lacunae in her determination, the Tribunal must either remit or rehear the appeal.

10. Mr Hodson said that he had not been present at the hearing of the appeal. He argued that the determination ignored the test on resumption of political activities set out in Monga Mola Sokoto v SSHD [00TH02367]. He took us to paragraphs 19 to 23 of that decision of the Immigration Appeals Tribunal of which paragraphs 22 and 23 summarise the Tribunal's decision on future persecution in the Democratic Republic of the Congo (in August 2000) –

"22. So the issue is not whether the appellant having engaged in political activity against the Mobutu régime is because of that liable to persecution – we have no clear evidence that that of itself would lead to persecutory actions. There is, however, considerable evidence that engaging in political activity such as the activity in which the appellant did engage would lead to a risk of such treatment. We have cited statements (including that of the Home Office) that members of political parties are subject to harassment and imprisonment by security forces and there is ample evidence that once imprisoned the treatment received would be persecutory. We see the engaging in such political activity as a fundamental right and freedom the breach of which may be persecution depending on the nature of the breach and the treatment meted out.

23. On the evidence before us, we are of the view that if the appellant were to engage in the activity protected by the Convention (i.e. expression of public opinion) there would be serious possibility of persecution. We do not accept… either that his political activities were too low for him to claim protection or that the case turns on the knowledge that the authorities might have of his previous activities. In our view these two contents do not go to the central point which is whether there was a risk of persecution for engaging in a Convention right."

11. That decision predates the coming into force of the Human Rights Act 1998. It is an unstarred decision of the Immigration Appeals Tribunal and is of persuasive, rather than binding force.

12. Mr Hodson submitted that the Amnesty International Report on the Democratic Republic of the Congo dated 8 January 2002 demonstrated that conditions had not significantly changed, and that treatment of political opponents remained harsh. Counsel referred the Tribunal to the Court of Appeal decision in Demirkaya v Secretary of State [1999] Imm AR 498 at p.506 where Lord Justice Stuart-Smith held that –

"In my judgment, if it is the opinion of the Tribunal that there has been such a significant change that the appellant is no longer at risk, it is incumbent upon them to explain why this is so. In the absence of such explanation and reasoning, it seems to me that there may be a real risk that someone who, because of his suspected association with the PKK, was subjected to such appalling treatment before he fled the country, will suffer more than transient ill-treatment on arrival at the airport and in the day or so thereafter that he is detained. Accordingly I have come to the decision that the Tribunal's determination cannot be sustained."

13. He argued that the same approach applied to the Adjudicator's determination, and the Tribunal notes that this approach was followed by the Court of Appeal in Klodiana Kacaj v SSHD [2001] INLR 354*.

14. Mr Sheikh for the Respondent argued that paragraphs 9 – 11 of the Adjudicator's determination evaluated the evidence. The appellant was aware of the Secretary of State's reservations as set out at paragraphs 9 and 10 of the letter of refusal, but had not provided any evidence to rebut the discrepancies therein set out. He accepted that the determination could have been more thorough, but contended that it was not fatally flawed as it stood. There were clear findings as to the appellant's length of absence from the Democratic Republic of the Congo, and at paragraph 11 had addressed the question of risk on return.

15. The appellant was now 31 and the UDPS was not a student party. He referred the Tribunal to paragraphs 5.5-5.8 of the CIPU Country Report for October 2001 on the Democratic Republic of the Congo. The UDPS is not banned, but public gatherings do need a permit. Although there was no risk to the appellant in the United Kingdom, he had not continued his political activities here, and there was no evidence that he had been charged, so it was unlikely that the appellant would now be of interest to the authorities in the Democratic Republic of the Congo.

16. It was not reasonably likely that the appellant would resume his political activities on return, and even if he did, as long as he abided by the law and ensured that the meetings which he attended had permits, he would not be at risk. Paragraph 98 of the UN Human Rights Report on the Democratic Republic of the Congo (p71 of the appellant's bundle) indicated an improvement in the situation, and greater freedom for political parties after the accession of President Joseph Kabila. At p74, an Amnesty International press excerpt reported the December 2001 the detention of a group of UDPS supporters who had been planning a public meeting. Mr Sheikh suggested that the meeting might have been intended as an unlicensed demonstration, and that mere UDPS membership would not be enough to attract a risk on return.

17. United Kingdom or western democratic standards should not be applied to the Democratic Republic of the Congo. The situation had been liberalised to some extent and there was no real risk if the appellant were to be returned today. He asked that both limbs of the appeal be dismissed.

18. In reply, Mr Hodson reminded the Tribunal of the inadequacy of the Adjudicator's credibility finding, which was based upon peripheral matters such as differences in dates, length of detention and the circumstances of the appellant's escape. He had omitted to mention the beatings at interview because he was not asked. The discrepancies between the various statements did not on inspection go to the heart of the appellant's claim. The adverse credibility finding was unsound, and the Adjudicator's determination simply unclear.

19. On the question of the appellant's present commitment to the UDPS, the Tribunal should remember that he had been removed from the context, and had been deeply politically committed whilst in the Democratic Republic of the Congo. There was no evidence that commitment had evaporated, and the appellant's present lack of activity should be weighed with the general assessment of his claim.

20. We reserved our determination for postal delivery, which we now give. We do find the Adjudicator's credibility finding and findings of fact to be unsatisfactory.

21. Mr Hodson asked that the Tribunal remit the appeal for hearing afresh. The Tribunal considered whether we should remit or should dispose of the appellant's appeal ourselves. We reminded ourselves of the provisions of the Immigration and Asylum Appeals (Procedure) Rules 2000, paragraph 23 –

"23. Unless it considers -
(a) that it is necessary in the interests of justice, and
(b) that it would save time and avoid expense
to remit the case to the same or another adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself."

22. Given the very substantial changes in the Democratic Republic of the Congo in the last seven years, the appellant's low-level activities, and particularly in the light of his educational and political inactivity since coming to the United Kingdom, we did not consider either that it was necessary in the interests of justice or that it would save time and avoid expense to have the appeal heard afresh by another Adjudicator.

23. We therefore considered whether, if the appellant's account were treated as broadly credible, it could now establish a well-founded fear of persecution for a Refugee Convention reason in the Democratic Republic of the Congo, or engage the European Convention of Human Rights and Fundamental Freedoms 1950.

24. The detention the appellant claimed to have suffered was during the closing months of the Mobutu régime, and he was released in April 1997. He was not charged, so there would be no record of his activities now, and there is no indication that anyone has been looking for him. The appellant has not kept up contact with the Democratic Republic of the Congo, although he had a wife and child there.

25. In May 1997, Mobutu's Government fell and was replaced by that of President Laurent-Désire Kabila. The appellant did not return to the Democratic Republic of the Congo after either of the changes of régime.

26. The current CIPU Country Report for the Democratic Republic of the Congo summarises recent developments –

"On 16 January [2001], President Laurent Kabila was assassinated in Kinshasa. He was given a full state funeral. His son - Joseph Kabila - was sworn in as the new President of the DRC.

In February, representatives from the six warring countries and the three main rebel groups attended a United Nations Security Council meeting in New York on the DRC in February 2001. In a resolution negotiated with all the parties, the Security Council demanded that rebel forces withdraw an initial 15 km from their current positions by 15 March 2001 and plan for a complete withdrawal by 15 May 2001.

In May, the Commission of Enquiry into the assassination of Laurent Kabila produced its findings in a report which accuses both the Ugandan and Rwandan Governments and the rebel RCD rebel group of plotting the assassination and a coup.

Also in May, a law is passed allowing registered political parties to engage in political activity legally subject to certain conditions.

In October, the Government, opposition political parties, armed groups and members of civil society met in Addis Ababa to start the Inter-Congolese Dialogue (ICD). The aim of the ICD is to resolve the conflict between rebel forces and the Government and to agree the setting up of an interim government until free democratic elections are held. The DRC Government pulled out of the talks which were subsequently re-scheduled to take place in South Africa.

In February [2002], the Inter-Congolese Dialogue starts again in Sun City in South Africa.

27. This appellant has been in the United Kingdom since 1997. On his own account, he was a student leader in the UDPS in 1995, but has not been politically active, nor studied, in the five years since coming to the United Kingdom. The UDPS is a registered political party in the Democratic Republic of the Congo.

28. The appellant has never sought to argue below or in his statements or interviews that he would continue his political activities on return, and we can therefore find no reason why a brief interest in what is now a legal political party in the Democratic Republic of the Congo as a young man, seven years ago, should put him at risk on return.

29. We therefore dismiss the appeal.

J A J C Gleeson

Vice-President