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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AN (Risk, Failed Asylum Seekers) Democratic Republic of Congo [2003] UKIAT 00050 (04 July 2003)
URL: http://www.bailii.org/uk/cases/UKIAT/2003/00050.html
Cite as: [2003] UKIAT 00050, [2003] UKIAT 50
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AN (Risk - Failed Asylum Seekers) Democratic Republic of Congo [2003] UKIAT 00050
Date of hearing: 1 October 2002
Date Determination notified: 04/07/03
| AN | APPELLANT |
| and | |
| Secretary of State for the Home Department | RESPONDENT |
For the Appellant: Mr. F. Gaskin, of Counsel, instructed by Reid Sinclair & Co. Solicitors.
For the Respondent: Ms. C. Hanrahan, Home Office Presenting Officer.
2. The Appellant left the DRC on 1st April 2002 and travelled to France, where she stayed for 2 ½ months. She left France on 15th June 2002 and travelled to the United Kingdom by Eurostar, arriving at Waterloo Station on the same date. On arrival, she made her asylum and human rights claims. Her husband, who had arrived in 1995, had exhausted his appeal rights (according to § 1. of the Adjudicator's Determination). Apparently, as at the date of the hearing before the Adjudicator, he was in custody pending removal to the DRC.
3. Basis of claim (in brief): In Kinshasa, the Appellant was the best friend of Micheline Mushiya, who was the mistress of Eddy Kapend, who was high in President Laurent Kabila's government. The Appellant and Micheline carried out a business together, exporting to Brazzaville. Four days after the assassination of Laurent Kabila (on 17th February 2001), soldiers arrested the Appellant, Micheline, Micheline's friend and two female students. By this time, Mr. Kapend had been arrested on suspicion of being involved in the assassination. The Appellant was accused of being an accomplice to Mr. Kapend. She was detained for 1 ½ months. Wives of various commanders were also incarcerated in this detention centre. A body of comanders raided the detention centre and set their wives plus the Appellant and Micheline free. The Appellant sought refuge in the house of a friend named Fatou. She stayed with her friend for 11 months. When the trial of those accused of the assassination began in March 2002, the authorities began arresting innocent people and family members of the accused. Fatou advised the Appellant to leave the DRC. The Appellant then left the DRC, in disguise, with an agent. She flew to Luanda in Angola and then Paris.
4. The Adjudicator's Determination: The Adjudicator considered that the Appellant had not been consistent about where she had been arrested. In her self-completed questionnaire (SCQ), she had said that she had been arrested at Micheline's house, whereas, at her interview, she had stated that she was arrested in Mrs. Kapend's house. He noted that she had purported not to know the name of Mrs. Kapend, although she had said that she had met her and had received packages from her to take to Brazzaville. She had not been consistent about the goods which she had allegedly traded. No objective evidence had been placed before him of any commando raid of a detention centre as claimed by the Appellant. Her delay in leaving the DRC indicated that she was of no interest to the authorities. He did not accept that she was close to either Mrs. Kapend or Micheline, nor that she was involved with either of them. He did not accept that she was arrested following Mr. Kapend's arrest. Before the Adjudicator, reliance was placed on the Tribunal's Determination in Mozu [2002] UKIAT 05308.
5. In the grounds of application for leave to appeal the Tribunal, it was asserted (inter alia) that the Adjudicator erred in considering that Mozu had no application to this case, given that Mozu deals with returnability of failed asylum seekers to the DRC regardless of the reasons for the failure of their claims.
6. Leave to appeal to the Tribunal was granted in a determination sent to the parties on 20th March 2003. The reason for granting leave was that, although Mozu was a decision on the facts and not binding on the Adjudicator, it was desirable that the Tribunal should speak with one voice, even on questions of fact, where those turn on the general background in a particular country. The Tribunal should revisit Mozu, if that case was being used for a purpose for which it was never intended. Leave was granted only on this point and specifically refused otherwise.
7. At the hearing before us, Mr. Gaskin sought to take up ground 2. of the grounds of application, on which leave had been refused. We heard briefly on this, and then decided to grant leave in relation to ground 2, which challenges the Adjudicator's credibility findings.
The issues:
8. There are two issues before us.
Issue 1: Whether (regardless of any credibility issues), the Appellant would be at real risk of persecution and/or treatment in breach of Article 3 as a failed asylum seeker, per se (i.e. the Senga point). If the answer is yes, then the appeal stood to be allowed. If the answer is no, then we would proceed to consider the next issue, which is:
Issue 2: Whether the Adjudicator's findings are safe.
Issue 1 - Risk as a failed asylum seeker:
9.1 Mr. Gaskin relied on the Tribunal's Determination in Mozu and also on the report of Mr. Kennes (this, it would seem, is his correct title, rather than Dr. Kennes) dated 30th July 2002, a copy of which he submitted. He could not say whether this report (which had been prepared for a specific case) was authorised by the author for release generally. This report was referred to in § 9 of the Tribunal's Determination in Mozu. Mr. Gaskin submitted that Mr. Kennes has considerable expertise.9.2 We were referred to Section C on page 28 of this report, which deals with the fate of returned asylum seekers to the DRC. It is appropriate that we set out Section C of the report in full.
C. The fate of returned asylum seekers in the DRC
No systematic studies have been done on the fate of returned asylum seekers, nor on the Kinshasa government policy. We must relay on two letters and two press articles.
The first press article is a statement of a former official of the Minister of the Interior, inspector of the immigration police. According to his statement, returned failed asylum seekers are immediately arrested at the airport and subsequently imprisoned. No other source of information is known about this alleged practice, and it has not been independently verified.
The second press article is about an official statement by the immigration office. On May 24, 2001, the newly appointed director general of the Congolese immigration services, Mr. Leyka Moussa Nyembo, delivered a speech in Hotel Memling (Kinshasa) where he outlined his immigration policy. Mention was made of the attitude of his services ad the government towards returned political asylum seekers. Mr. Leyka declared he wanted to dismantle underground emigration networks, who operate under the cover of applications for political asylum in western countries. One of the instruments of his policy would be the creation of "migratory detention centres" in Kinshasa. In the press reports about this speech, it was not clear what the role would be of these centres.
During a telephone conversation with the author of his report, Mr. Leyka made it clear that the "migratory detention centres" are not centres of imprisonment. The aim of the centres is the screening and identification of returned asylum seekers, with the view of heir reintegration into society. Information is gathered about the individuals behind the underground networks, to be able to put them before justice. According to the assistant to the director general, some of these centres are already operational.
According to this official version, the "migratory detention centres" are just a screening agency. There is no problem with it as long as the returned asylum seekers are effectively members of an underground migration network. When the centres harbour returned asylum seekers who were entitled to political asylum but were unjustly refused, then the authorities immediately have their opponents at hand to interrogate them and put them into jail. The real function of the detention centres is thus linked to the overall government policy towards opposition. The government policy towards political opposition cannot be considered without taking into account the workings of the judicial system, and more specifically, the workings of the Military Court.
The first letter is made up by the Amnesty International London office and states that Amnesty had received reports in August 2000 about three returned asylum seekers who have been imprisoned in Makala prison, Kinshasa.
The second letter is the most crucial document. In a letter written by Mr. Wanigasekara (UNHCR London) to Mr. Zohreh Neinzi of the Devon law Centre, dated November 20, 2001, it is said
It is important to consider that the overall security situation remains volatile and is a matter of general concern to everyone resident in the DRC. Despite ongoing efforts and negotiations between the opposition parties, armed movements and the government, fighting still continues between the rebel and the government forces in the eastern and southeastern regions as well as the Equateur province, resulting in human rights violations.
Against this backdrop, persons originating from rebel-held territories (….) are held in suspicion and liable to adverse attention – sometimes amounting to persecution – from the authorities in Kinshasa (…)
According to information available to UNHCR, agents of the security services frequently interrogate Congolese returning to Kinshasa from abroad, particularly those who are known to have sought asylum. UNHCR is aware of instances where interrogation at the airport has been followed by arbitrary detention and serious ill treatment by DRC security agencies. If the returnee is not already known to the DRC authorities, there is a strong likelihood that were he to be returned to Kinshasa, his background would be revealed in the course of interrogation upon arrival.
We may add to this element that returned asylum seekers from the UK will be met with more suspicion than others, because of the support given by the British government to the RCD rebel movement in the East, and more specifically to the governments of Rwanda and Uganda.
9.3 We were also referred to the report of the Special Rapporteur of the United Nations Economic and Social Council – Commission on Human Rights, dated 1st February 2001, extracts of which are set out on pages 22 to 23 of Mr. Kennes' report. The Special Rapporteur's report mentions, inter alia, gross human rights violations in the DRC, arbitrary detention, prolonged detention without due process, torture in prisons, the "very bad conditions" of detention in Makala prison, many deaths in prisons (in particular, Makala prison). In § 82 of the report (quoted at page 22 of Mr. Kennes' report), the Special Rapporteur mentions that ten UDPS (Union Pour La Democratie et le Progres Social) leaders who were held at Kinshasa police inspectorate until the day he arrived in the country had not registered. They were then taken to an unknown destination.9.4 We were also referred to § § 4.18 to 4.22 of the CIPU Report of April 2003. This states that conditions in most of the large, central prisons are harsh but are no longer life-threatening as they have been in previous years (§ 4.18). However, conditions in the small, local prisons remain harsh and life-threatening (§ 4.20). According to §4.19, 146 persons died at Makala prison in 2002. Makala prison is Kinshasa's main central prison (§ 4.18). There are numerous illegal detention centres which are operated by the security services, especially the ANR (Agencie Nationale de Renseignements) and the DEMIAP (Military Detection of Anti-Patriotic Activities. Annex C of the CIPU Report states that the ANR shares responsibility for internal and external security with the CNS, including border security matters. Annex C states that the CNS (National Security Council) shared responsibility for internal and external security with the ANR, including border security matters and that it was replaced by the Committee for State Security in 2002.
9.5 Mr. Gaskin submitted that there was a real risk that returning failed asylum seekers are transferred to prisons or illegal detentions centres until such time as enquiries are completed. The fact that the CIPU Report states that illegal detention centres are operated by the ANR (which, with the CNS until it was replaced, was responsible for border security matters) meant that there was a real risk that returning failed asylum seekers would be transferred to illegal detentions centres. Even if they are held at migratory detention centres, Mr. Gaskin submitted that it cannot be assumed that conditions in the migratory detention centres are any better than the conditions in prisons or illegal detention centres.
Determination of Issue 1:
10.1 We would say at the outset that we are considering the situation of failed asylum seekers returning to the DRC whose claims have been properly assessed and whose backgrounds have been found to be such that there is no real risk that they would draw the adverse attention of the DRC authorities. We entirely accept that anyone whose background is such that there is a real risk that they would, on arrival or subsequently, draw the adverse attention of the DRC authorities, would be very harshly treated indeed. They, however, would succeed in their asylum and human rights claims (Article 3).10.2 We have no reason to doubt the expertise of Mr. Kennes to comment on the situation in the DRC. His curriculum vitae (which is annexed to his report) shows that he has undertaken studies (including ongoing research papers on Zaire), been involved in training courses, written or co-written several publications and working papers on Africa (with emphasis on the DRC).
10.3 We noted that Mr. Kennes' report has been prepared for a specific case. Our attention has not been drawn to anything which suggests that the report is authorised for use generally and/or that its contents are of general application. The Tribunal has, on countless occasion in the past, made it clear that reports should not been adduced if they have been prepared for a specific case unless the author's permission has been obtained and the author has confirmed that the contents are of general application. This simply has not been done in this case.
10.4 Nevertheless, we considered the report. We noted that the first press article is attributed, according to footnote 72 on page 28 of the report, to a release dated 13th October 2000 – which is nearly 2 ½ years ago. Furthermore, Mr. Kennes himself states, in relation to the first press article, that no other source of information is known about the alleged practice of immediately arresting returned failed asylum seekers at the airport and imprisoning them, and that the alleged practice has not been independently verified.
10.5 Against the first press article, we have to set the second press article, which (having been issued in May 2001) is more recent than the first press article and which was an official statement issued by the immigration service. We acknowledge that official statements from the DRC authorities suggesting that returned asylum seekers would be properly treated should, bearing in mind the general human rights record of the DRC government, be viewed with great suspicion. We noted that the first press article states that persons whose asylum claims have been "unjustly refused" would be interrogated and imprisoned. If this was said by the official in question to Mr. Kennes, then such a candid admission on the part of the official endows the remainder of what he is quoted to have said above with greater credibility than might have been the case if he had denied that the DRC authorities would mistreat such persons. If, on the other hand, the assertion that there are no problems with the migratory detention centres unless the DRC authorities are dealing with persons who have been "unjustly refused asylum" is attributable to Mr. Kennes himself, then the Appellant's evidence itself shows that it is safe to return failed asylum seekers to the DRC, provided their claims have been properly assessed.
10.6 The second letter (from the UNHCR) is dated November 2001. We noted that this letter was addressed to Mr. Zohreh Neinzi of the Devon Law Centre. We do not know whether this letter was prepared in respect of a specific proposed returnee. However, even if this letter is of general application, the letter only states that the UNHCR is aware of "instances" where interrogation at the airport has been followed by arbitrary detention and serious ill-treatment. The standard of proof for showing that returned failed asylum seekers would receive treatment amounting to persecution or in breach of Article 3 is that of a real risk or a real likelihood. Of course, guarantees cannot be given. The fact that there are "instances" where interrogation at the airport has been followed by arbitrary detention and serious ill-treatment simply is not sufficient to discharge the low standard of proof.
10.7 We considered that the final sentence of the UNHCR's letter would only apply if the returnee's background is such that there is a real risk that he or she would be of adverse interest to the DRC authorities. As we have already stated above, we are here considering the risk on return for persons whose backgrounds have been found to be such that there is no real risk of adverse attention from the DRC.
10.8 The first letter (from Amnesty International) is dated January 2001. The letter does not provide details such as whether persons other than the three who were detained at Makala were returned to the DRC and what happened to the others. Neither does the letter provide any details about the background of the three persons who were detained. Are they, for example, persons whose asylum claims ought to have been allowed but who somehow "slipped through the net" and therefore persons who (in the words used in the second press article, were "unjustly refused asylum"? We considered it inconceivable that, if there was a real risk of persecution in the DRC for returning failed asylum seekers in the DRC, the letter from the UNHCR (which post-dates the letter from Amnesty International) would not have made this clear.
10.9 We entirely accept that, if there is a real risk that a returned failed asylum seeker would be transferred to a prison or illegal detention centre whilst they are interrogated and/or enquiries are conducted into their backgrounds, then he or she would receive treatment amounting to persecution or in breach of Article 3, either because of the general conditions they are likely to have to endure and/or because of the treatment which, as detainees, they are likely to be subjected to by those detaining them. Whether there would be a Convention reason for the purposes of the 1951 Refugee Convention is something which we do not need to determine in this particular appeal.
10.10 However, the evidence before us simply does not show, even to the low standard, that there is a real risk that returning failed asylum seekers would be transferred to prisons or illegal detention centres. Mr. Gaskin's submission was that, given that illegal detention centres are operated by the ANR and given that the ANR's responsibilities include border security matters, this means that there is a real risk that returning failed asylum seekers would be transferred to illegal detention centres. We do not accept that submission, as it is based on pure supposition. Furthermore, if this was the fate of returning failed asylum seekers, we would expect to see reports from international human rights organisations to this effect. What little evidence has been drawn to our attention relates the persons whose backgrounds would draw adverse attention – for example, the report of the Special Rapporteur on page 22 of Mr. Kennes' report which refers to ten UDPS leaders being transferred to unknown detention centres. We cannot conceive that, given the procedures and appeal rights which are in place in the United Kingdom for refugee status determination and given the current objective evidence, UDPS leaders would feature amongst failed asylum seekers being returned to the DRC by the United Kingdom. The context suggests that the UDPS leaders were in detention following arrest within the DRC.
10.11 We note that Mr. Kennes states that returnees from the United Kingdom are viewed with more suspicion. We have no reason to take issue with this. However, if returning failed asylum seekers from the United Kingdom are at real risk of persecution after arrival in the DRC, we (again) considered it inconceivable that the UNHCR would not say so.
10.12 We have been provided (on behalf of the Respondent) with a copy of a letter from the British Ambassador in Kinshasa dated 22nd November 2002 addressed to the Immigration and Nationality Directorate. This letter states.
In answer to your recent enquiry I can confirm that, since my appointment to Kinshasa in May 2000, this Embassy has not come across any evidence that DRC nationals forcibly returned to Kinshasa after failing to obtain political asylum in European countries have faced persecution from the DRC authorities.
The Belgian and French governments regularly forcibly return failed asylum seekers to Kinshasa; the Dutch government returned a group of 48 on 20 November. The local Embassies of these three countries have told me that the essential requirement for DRC Immigration is acceptable identification documents.
I am not in a position to offer assurances however that returnees would not face prosecution if it were established that they had left the DRC without the mandatory travel documents, or if they had been the subject of criminal arrest warrants or of legal investigation prior to their original departure.
10.13 Mr. Gaskin submitted that, given that returned failed asylum seekers are not British nationals, there is no reason to suppose that the British Embassy would receive information about the fate of returned failed asylum seekers. We can see some merit in this assertion. However, it is evident, from the letter from the British Ambassador, that the Ambassador had been in touch with the embassies of three other governments, all of which have forcibly returned failed asylum seekers to the DRC. We are aware that there are numerous non-governmental international organisations which are interested in the human rights situations in countries across the globe, including the DRC. It is inconceivable that, if returned failed asylum seekers (regardless of their background) had encountered persecutory treatment or treatment in breach of Article 3 simply on account of being failed asylum seekers, this would not be reported. We have not had produced to us any reports which show that returned failed asylum seekers are, simply on account thereof, at risk in the DRC. The lack of any such evidence, together with the lack of any general advice from the UNHCR that it is at present not safe in general to return failed asylum seekers to the DRC is, in our view, significant.10.14 Mr. Gaskin submitted that it should not be assumed that conditions in migratory detention centres are any better than those in prisons or illegal detention centres. However, there is a complete dearth of evidence about the conditions in migratory detention centres. We again revert to the fact that no evidence has been produced from human rights organisations that returned failed asylum seekers receive persecutory treatment or treatment in breach of Article 3. We again revert to the fact that the UNHCR has not said that it is at present not safe to return failed asylum seekers to the DRC. This in spite of the fact that the evidence is that returns are being effected.
10.15 We have no reason to suppose that the Respondent would seek to remove any failed asylum seekers to the DRC without valid identification and travel documentation. Indeed, the Bulletin numbered 1/2003 dated January 2003 issued by CIPU on the DRC suggests that the delays currently being experienced in effecting removals to the DRC are on account of the administrative problems of obtaining travel documents from the DRC Embassy in London – which suggests that removals are only effected after proper documentation is in place.
10.16 Accordingly, we have concluded, on the whole of the evidence before us, that failed asylum seekers are not at real risk of being subjected by the DRC authorities to treatment which amounts to persecution or in breach of Article 3, simply because they are failed asylum seekers. The Tribunal's Determination in Mozu should not be regarded as authority for the proposition that failed asylum seekers are at such risk (if it ever was) and should no longer be cited.
Issue 2 - The challenge to the credibility findings:
11.1 Mr. Gaskin submitted that the Appellant had not claimed to have any knowledge of Mrs. Kapend, the first wife of Mr. Kapend. She stated that she did not know Mrs. Kapend's name because she could not enquire of her friend Micheline as that would be insulting to Micheline. When she referred to her arrest, she said that she was with her friend Micheline who she might have referred to as Mrs. Kapend. When the Appellant said that she had received packages from Mrs. Kapend, she was referring to her friend Micheline and not Mrs. Kapend, who the Appellant had always maintained she had never known.11.2 . Ms. Hanrahan accepted that § 14 of the Adjudicator's Determination was somewhat confusing. However, the Adjudicator had given other reasons for rejecting the credibility of the Appellant's claims – for example, the Appellant had not been consistent as to the nature of the goods she had traded in, the lack of any documentary evidence of the commando raid on the detention centre and the fact that she had remained in the DRC for 11 months after her alleged escape. Ms. Hanrahan submitted that, overall, the Adjudicator's findings were sound.
Determination of Issue 2:
12. Whilst we acknowledge that the Adjudicator gave other reasons for rejecting the credibility of the Appellant's claims, we considered that it was clear from the Determination that the main reasons why the Adjudicator rejected the credibility of the Appellant's claims was because she had not been able to provide the first name of the wife of Mr. Kapend and the fact that the Adjudicator considered that the Appellant had been inconsistent in her accounts as to the place where she was arrested. In our view, the explanations offered for the credibility issues (§ 11.1 above) render the Adjudicator's Determination unsafe, given that the explanations have not been considered. This is not to say that the explanations offered will be accepted as credible. That is a matter for the Adjudicator hearing the appeal afresh to determine in the light of all of the evidence.
Decision
The appeal is allowed, to the extent that the appeal is remitted for fresh hearing before an Adjudicator other than Mr. F R C Such.
Ms. D. K. GILL Vice President |
Date: 15th May 2003 |