United Kingdom Asylum and Immigration Tribunal

MM (risk- failed asylum seekers) Democratic Republic of Congo [2003] UKIAT 00071

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 9 July 2003

Date Determination notified: 15.08.03

Before
Mr P R Lane (Chairman) Mr M L James Mr T B Davey
Between

 

MM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr K Behbahani of Messrs Scudamores Solicitors
For the respondent: Ms C Hanrahan, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant, a citizen of the Democratic Republic of Congo, appeals with leave against the determination of an Adjudicator, Mr K W Brown, sitting at Taylor House, in which he dismissed on asylum and human rights grounds the appellant's appeal against the decision of the Secretary of State on 3 January 2001 to refuse him leave to enter the United Kingdom.

2. The appellant's account was that he had serious difficulties in (what is now) the DRC during the year 1998, as a result of renting rooms to Rwandans. He also said that his wife had Rwandan connections, in that her father was Rwandan, although she herself was a national of Zaire. There were searches of the appellant's house for Rwandans, during one of which he and his wife ran into the street and became separated. The appellant said that in February 1999, when attempting to leave the DRC, he was apprehended. The soldiers holding him saw a photograph of his wife which he had about him and asked the appellant where his wife was. Subsequently, however, the appellant was able to escape. From then until October 1999, he lived with a family in the DRC. He left the DRC in October 1999. He produced what was said to be a death certificate relating to his wife, giving a date of death of 26 February 1999.

3. The Adjudicator heard evidence from the appellant. He did not find the appellant to be credible. Indeed, at one point, the Adjudicator considered that "the appellant was making up his story of the escape and subsequent events as he went along" (determination, paragraph 34). The Adjudicator concluded that "I do not accept the appellant has given a credible account". He did not consider that the purported death certificate was authentic "as providing evidence to support that his wife was killed as a result of torture at the hands of the DRC authorities" (paragraph 35).

4. The Vice President who gave leave to appeal found that

   "The adverse credibility findings are sound. In particular, the Tribunal considers that the Adjudicator was entitled to find implausible the claims that on the one hand the Rwandans on the claimant's premises would not have been discovered on the first occasion when the premises was searched, on the other hand that he would have allowed them to remain living there given the threat that they posed. The findings about his escape from custody and its implausibility are also sound."

5. Leave to appeal was given on the following basis:

   "However, it is right to make the point as was done in the grounds of appeal that there are no findings by the Adjudicator on risk on return as a failed asylum seeker. It would appear from the submissions before the Adjudicator that there may be contrasting Tribunal determinations on the point, and it is appropriate therefore for the matter to be considered and clarified by the Tribunal."

6. Mr Behbahani's submissions were, in essence, that, on the basis of the latest information available to the Tribunal, including in particular the UNHCR letters to which we shall make reference, there was a real risk that the appellant, if he returned to the DRC, would face persecution, the nature of which would also fall within Article 3 of the ECHR, as being cruel, inhuman or degrading.

7. Mr Behbahani very properly conceded that it was reasonable to infer from the Adjudicator's determination, in particular paragraphs 33 to 36, that the Adjudicator had not found any aspect of the appellant's account to be credible. This would include the appellant's claim to have been married to a woman whose father was of Rwandan ethnicity.

8. However, for the purposes of this appeal, the Tribunal indicated that it would proceed on the following basis:

   i) The appellant is a citizen of the Democratic Republic of Congo.

   ii) He has been in the United Kingdom for approximately three and three-quarter years, having arrived on 27 October 1999.

   iii) If returned, he would arrive in the DRC as someone who had made an unsuccessful claim for asylum in the United Kingdom.

   iv) The appellant was previously married to a DRC citizen whose father was Rwandan but who has since died.

9. The Tribunal would, however, emphasise that there is no question of its acceptance that the appellant and his wife suffered any of the problems described to (and rejected by) the Adjudicator, in particular, that the wife died at the hands of the DRC authorities.

10. In addition, there is the following matter. The Tribunal was concerned to ascertain the basis upon which the appellant would be returned to the DRC by the United Kingdom government. Ms Hanrahan was unable to answer this question immediately, so the Tribunal adjourned briefly so as to enable her to take instructions.

11. At the resumed hearing, Ms Hanrahan was able to give the Tribunal the following information:

    a) The UK Government in the past removed persons to the DRC by mean of EU travel documentation.

    b) That practice has ceased. Ms Hanrahan was unable to say precisely when, but it appears from a Home Office bulletin of January 2003 that the practice ceased prior to 30 January 2003.

    c) A person in possession of a valid DRC passport can currently be removed.

    d) The UK Government is in negotiation with the DRC Embassy in London with a view to arranging for those not in possession of such a passport to be returned to the DRC upon an emergency travel document.

    e) Such a document would confirm that the person concerned is a DRC national but would not contain any other information as to why he or she had been present in the United Kingdom.

12. The recent history of the Democratic Republic of Congo is well known and the Tribunal does not consider that it would be of material assistance to set it out in this determination. It is, however, relevant to mention the following. On 30 July 2002 a peace agreement was signed in Pretoria, South Africa, by President Kabila of the DRC and President Kagame of Rwanda. Under this, the DRC government agreed to disarm and arrest thousands of Hutu rebels and send them to Rwanda, whilst the Rwandan government was to withdraw 30,000 of its troops based in Eastern DRC. Hutu rebels did not recognise the agreement. On 6 September 2002 the DRC government and the government of Uganda signed the Rwanda Accord, which called for the withdrawal of Ugandan troops from the DRC and the establishment of joint security patrols along the DRC's border with Uganda. Rebel factions continued to hold sway in the eastern and northeastern areas of DRC. However, on 2 April, one rebel organisation, the Movement for the Liberation of Congo, signed a power-sharing agreement with the DRC government. According to a BBC news report of January 2003, the MLC has installed representatives in Kinshasa, although Jean-Pierre Bemba, the MLC leader, has not ventured there. Reports of atrocities in the northeast continue to be received, and there are suggestions that dissident MLC commanders have formed a splinter movement. In May 2003, UN troops sought to assist those caught up in the violence in the northeast, but large numbers of civilians fled across the border to Uganda. In that part of the DRC, including Kinshasa, which is controlled by the Kabila government, there are still serious human rights problems, as the latest US State Department report observes. In particular, citizens do not have the right to change their government peacefully and the security forces were (during 2002) responsible for unlawful killings, torture, beatings, rape, extortion and other abuses. In general security forces committed these abuses with impunity. Prison conditions in hundreds of smaller regional detention facilities (both legal and illegal) remained harsh and life threatening; however, conditions in some of the larger, centralised prisons improved. Security forces continue arbitrarily to arrest and detain citizens. Prolonged pre-trial detention remains a problem. The Special Military Tribunal (COL) tried some civilians for political offences, although most cases were related to the Kabila assassination or to alleged coup plotting. The judiciary continue to be under funded, inefficient, and corrupt. All this we take from page 2 of the State Department report, set out at page 19 of the appellant's objective evidence bundle. Altogether, some 3 million people are estimated to have been killed during the course of the civil war, making it the largest conflict, in terms of loss of life, since World War II.

13. Such is the sorry state of the Democratic Republic of Congo, as it is to be found today. One point should, however, be mentioned at this stage. It was not argued on behalf of the appellant that, irrespective of what might happen to a person at Kinshasa airport, upon arrival from abroad, the situation in the DRC is such that everyone living in the government-controlled part of the country (other than those comprising or directly associated with the government) is as such at real risk of Article 3 ill treatment. Furthermore, the Tribunal is not aware of any claims to this effect in the documentary material on DRC currently available, whether emanating from a governmental or non-governmental source.

14. The situation in the DRC is, however, relevant, in Mr Behbahani's submission, to the question of whether the appellant, assuming him to be returned to Kinshasa by air as a failed asylum seeker from the United Kingdom, would as a result thereof be at real risk of coming to the adverse interest of the DRC authorities. If we may paraphrase Mr Behbahani's submissions, they appear to come to this. Against the background of the situation in the DRC today, it does not take much for a citizen of that country to find himself or herself the subject of adverse interest from the authorities. Returning to the DRC from Europe, as a failed asylum seeker, is therefore enough to arouse such adverse interest. Secondly, once a person is the subject of adverse interest, he or she is likely to be detained. The objective evidence shows that persons in detention in the DRC are frequently subjected to abuse at the hands of the authorities. Even if they are not, however, the conditions experienced by those in detention are in themselves such as to violate Article 3 of the ECHR.

15. The Tribunal turns to the documentary materials relating to the DRC which were before it at the hearing. With one exception, namely, the April 2003 DRC Country Assessment, these documents were ones submitted on behalf of the appellant.

16. At page 62 of the objective evidence bundle, there is a letter dated 27 June 2002 from the UNHCR to a firm of solicitors in the United Kingdom. Apparently, those solicitors had requested information on the current situation in the DRC in relation to the return of unsuccessful asylum seekers. In that letter, the UNHCR emphasised:

    "The need for a case-by-case approach in examining all asylum applications and in assessing whether or not an asylum seeker may be returned in safety. Within the particular country context, each case should be examined on its own merits with due weight being given to the specific background and profile of the applicant."

    The letter then went on to look in more detail at particular categories of persons who might be at risk on return:

    "Against this backdrop, persons originating from rebel-held territories such as Goma are held in suspicion and liable to adverse attention – sometimes amounting to persecution – from the authorities in Kinshasa. By a similar token, persons of Rwandese origin are also at risk of adverse attention. This is not least because Rwandese and Rwanda-supported forces are prominent among the armed elements ranged against the Kinshasa authorities. In this light, persons of Tutsi ethnic origin are known to be among the targets of extreme human rights abuses amounting to persecution. Tutsis and those perceived to be Tutsis have been subjected to arbitrary detention and ill treatment and have in certain instances been tracked down and killed in Kinshasa. This analysis is equally applicable to ethnically mixed Tutsis.

    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 could be revealed in the course of interrogation on arrival."

17. It is necessary to observe that this letter pre-dated the agreement signed on 30 July 2002 between the Rwandan and DRC governments.

18. The day after this letter was written, there began in Vienna a seminar under the auspices of ACCORD/UNHCR. This seminar was organised in order to assess the then current situation in the DRC, in particular, the position regarding human rights of groups considered to be at risk. The Final Report arising from this seminar is contained at pages 64 to 136 of the bundle.

19. At page 119, there is a passage relating to "mixed marriages". Mr Behbahani sought to rely upon this passage in his submissions. In deference to him, we shall set it out in full:

    "Members of the very specific groups of Hemas, Lendus and Banyanulenges, may hence become victims of ethnic intolerance either because of their activities or because they belong to the group of mixed-marriage people who may be rejected by their neighbours and be forced to seek asylum in a neighbouring country. People belonging to a family of mixed ethnicity should be identified as a group at risk. Particularly in the east, those who are approached in the UNHCR in search of help want to leave because none of the two communities will trust them.

    In general, the offspring belong to the ethnic group of their fathers. So if the mother is e.g. Hutu, Baluba or Kongo and the father is Tutsi, the child will be described as Tutsi. Yet, the case is not always that straightforward. Some people have been even killed because of their appearance, because they look like a Tutsi, while in fact they were not. One group that is often persecuted, but unfortunately often forgotten are the Hutus who themselves are not safe inside the DRC. They are persecuted on both sides of the frontlines."

20. The Tribunal does not consider that this passage assists the appellant's case. It is not clear whether the reference to people "belonging to a family of mixed ethnicity" is intended to cover more than people whose parents were of different, or mixed, ethnicity. However, even if the passage is to be interpreted as extending to those who, whilst themselves not of mixed ethnicity, marry a spouse who, or into a family that is, of mixed ethnicity, it is common ground that this appellant is not now (if he ever was) married to a person who had Rwandan connections. The appellant himself is not of mixed ethnicity.

21. At pages 124 to 127, there is an extensive passage under the heading "Security Threat for Deported Asylum Seekers". The opening paragraph reads as follows:

    "In view of the above [namely, the preceding passage concerning the return of refugees from neighbouring countries such as Congo-Brazzaville] and describing the very serious situation in the DRC, caution should be exercised in the involuntary return of unsuccessful asylum applicants from the DRC, and a case-by-case approach is necessary in dealing with these individuals. Asylum seekers who have been unsuccessful after going through fair eligibility procedures and application of correct eligibility criteria may still face problems upon return to their country of origin. Issues such as the individual's place of origin, last place of habitual residence, family relations, ethnic group and profession are to be considered before the person is deported. An individual approach based on the circumstances of each case and a careful consideration of the changing political and security context in the DRC is therefore required. In any case, deportation to the DRC should be avoided."

22. The Tribunal would make three comments on this passage. First, it appears to be primarily (if not exclusively) focussed upon those being returned from countries bordering the DRC. Secondly, despite the last sentence, it falls short of a finding that returning asylum seekers as such are at real risk of serious ill treatment. Thirdly, it commends a case-by-case approach, looking at factors of the individual claimant which may be relevant in predicting the attitude towards him of the DRC authorities. Such an approach is clearly correct.

23. The report then goes on to describe the findings of a working group on returnees which was created in the United Nations Human Rights Office in Kinshasa. This showed:

    "that a great majority of deportees are escorted by the police of the deporting country. According to the authorities, when the deportee returns with a travel document "tenant lieu de passport", he/she is referred unaccompanied to the immigration office in the center of the capital to complete immigration formalities. The authorities reiterate that the deportee, while he or she is completing immigration formalities, is not a detainee and that as soon as Congolese nationality is confirmed the person is allowed to leave immigration premises.

    A problem arises when the deportee is in fact a non-Congolese national. DRC immigration authorities have indeed reported to UNHCR and the local office of the UN High Commissioner for Human Rights (UNHCHR) in Kinshasa that in several instances deportees holding identity/travel documents issued by the DRC Diplomatic Missions turn out to be Angolans after a thorough interview. As an example, the DRC immigration authorities were "hosting" in their premises for over a year an Angolan national who was deported as Congolese by the Swiss authorities, but who had departed to Switzerland from Angola and not from the DRC. It is therefore recommended that states very carefully ascertain the nationality of unsuccessful asylum applicants before they are processed for return to the DRC.

    While the DRC authorities maintain their position as to the procedure in place to receive deportees, the UNHCR has received reports on deportees transferred to the DRC intelligence services such as ANR (Agents Nationale des Renseragnements), DEMIAP (Detection Militaire des Activites Anti Patrie) or GSSP (Garde Speciale de Securite Presidentielle) for interrogation. The DRC authorities deny such procedures.

    Against this background, it can no longer be said that only those deportees who are discovered by the authorities to have sought asylum abroad undergo interrogation sessions upon arrival at Kinshasa airport. In fact, reports from local human rights NGO's, victims and eye witnesses show that certain groups of individuals who are deported (having or not having sought asylum), who repatriate voluntarily, may face serious problems following possible interrogation conducted by security services upon arrival to Kinshasa. Should the authorities in Kinshasa discover that a deportee has a political or military profile, or has sought asylum abroad owing to a political or military background, such a person may be at risk of arbitrary detention and ill treatment. People who are returned without any assurances that the government does not hold any grudge against them could be in serious trouble and get detained as prisoners of conscience or could even be at risk of the death penalty, always depending on their activities."

24. The Tribunal makes the following observation on the passages just quoted. First, they clearly have to be read in the light of, and subject to, the opening passage, previously quoted, which, although advising the exercise of caution in the involuntary return of unsuccessful asylum applicants, does not state that no such returns may be made, whatever the circumstances.

25. The second point relates to the issue of nationality. In the present case, there is no doubt at all but that the appellant is a Congolese national. In particular, there is no evidence at all to show that the authorities in Kinshasa would have reason to suspect that he was from Angola. When interviewed at Kinshasa airport, there is no reason to suppose that the interviewer would have reason to question the travel documentation issued by the DRC Embassy in London, describing the appellant as a DRC citizen. Thirdly, there is the question of the appellant being an unsuccessful asylum seeker. Ms Hanrahan, as previously noted, informed the Tribunal that there was no question of the travel documentation stating the reason why the appellant was in the United Kingdom. In any event, the only logical inference to be drawn from the paragraphs just quoted is that, even if the authorities at Kinshasa airport discover at the interview that the person is a failed asylum seeker, that will not necessarily result in the person concerned being taken into detention and ill treated (whether by torture, other active ill treatment or as a result of the conditions in which persons are held). Those who are said by the report to be at risk of facing serious problems are people having a political or military profile or who sought asylum abroad owing to a political or military background. The appellant falls into no such category. Nor, as we have said, is he a person of mixed ethnicity.

26. The final passages of the Report to which reference needs to be made occur at pages 126 and 127 of the bundle. These deal with the question of persecution on the grounds of having sought asylum abroad. The following passage is significant:

    "Responding to a question from the audience whether seeking asylum itself could lead to persecution and hence be a sufficient ground for granting refugee status, Mr Byaruhanga [Central Africa Researcher, Amnesty International London] stated that he was not aware that people had been detained solely for seeking asylum. Usually they are accused of some offence, like alliance with the enemy, as e.g. in the case of people from Kivu, having fled to Nairobi and subsequently to Europe and then being deported to Kinshasa."

27. Mr Byaruhanga went on to state that if the returnee was alleged or known to be a supporter of the opposition "arrest, and possibly torture and persecution, are likely". There then follows a passage describing the difficulties which have occurred

    "when countries of asylum have deported someone and handed over all the information about this asylum seeker to the home government. Informing them that the applicant has e.g. claimed that he was imprisoned and beaten could cause serious problems for the individual."

    The seminar appears to have agreed that this "is something that must in all cases be avoided" and that

    "reporting to the authorities of the country of origin about the asylum claim obviously could create serious trouble for a person who may not have problems otherwise."

28. The Tribunal observes that there is no evidence before it to show that the United Kingdom government has had such a practice in the past, as regards returnees to the DRC, nor that it intends to follow such a practice once negotiations with the DRC Embassy are completed, on the question of travel documentation for those not possessing current DRC passports.

29. At pages 4 and 5 of the bundle is to be found a letter dated 23 January 2002 from UNHCR to Mr Baster of Bail for Immigration Detainees. This letter is in reply to an enquiry made by Mr Baster regarding one of his bail clients. The letter states that the information available to the UNHCR in 2002 "was that DRC nationals returning to Kinshasa by air, including unsuccessful asylum seekers, were liable upon arrival to be interrogated, and in some instances detained and abused by government agents". This comment appears to be a reference to the passages quoted above from the ACCORD/UNHCR Final Report.

30. The letter goes on to note the peace agreement signed in Pretoria in December 2002 and ends by expressing concern about the attention which might be attracted if asylum seekers were "returned en masse by chartered plane".

31. The question as to the precise means whereby the appellant might be returned to Kinshasa was not canvassed before the Tribunal. Nevertheless, the obvious point to make about the return of a group of failed asylum seekers, by means of a chartered plane, is that it would clearly be in the interests of the United Kingdom government to have representatives at the airport to monitor what is likely to be such a high-profile return and that such monitoring would be likely to result in the DRC authorities wishing to be seen to do what they say they do at Kinshasa airport (as to which, both the passages at the top of page 125 of the bundle and the letter of 5 June 2003 are relevant- see paragraph 23 above and 34 below).

32. The next document to be considered is the Home Office Country Assessment on the DRC of April 2003. At para 5.41 we find the following:

    "The British Ambassador to the DRC stated in November 2002 that he has not seen any evidence to indicate that failed asylum seekers are persecuted on arrival in Kinshasa. He has also stated that the French, Belgian and Dutch governments return failed Congolese asylum seekers to the DRC without any problems. The only formal requirement needed to allow the returns of failed asylum seekers are valid travel documents."

33. As can be seen, this statement by the British Ambassador is supported by the comments of Mr Byaruhanga of Amnesty International (paragraph 26 above).

34. We turn now to the letter of 5 June 2003 from the UNHCR to Mr Behbahani. This is in reply to a letter of 4 June 2003 from him in which he requested guidance on the return of failed asylum seekers under present circumstances. Mr Behbahani also supplied the Tribunal with a copy of his letter to the UNHCR. Because of its recent nature, the Tribunal considers that it is necessary to set out the substance of the letter of 5 June in full:

    "The humanitarian situation in the DRC continues to be of concern to UNHCR, mainly due to human rights violations, epidemic outbreaks, major nutritional and health problems and restrictions on humanitarian access that are exacerbated by the ongoing hostilities. Over 2.5 million of the estimated 50 million Congolese citizens are now displaced. Over 500,000 were displaced in 2002 alone, mainly due to intensified violence and renewed fighting. Almost a million of them have not received any aid because of the unstable security situation, especially in the eastern provinces of DRC.

    With regard to the treatment of persons returned to the DRC, first hand accounts and reports from local human rights NGOs suggest that certain individuals who are deported (regardless of whether they sought asylum abroad), or even repatriated voluntarily, may face serious problems following possible interrogation conducted by security services upon arrival in Kinshasa. Should the authorities in Kinshasa discover that a deportee has a political or a military profile, or has sought asylum abroad owing to a political or military background, such person may be at risk of arbitrary detention and ill treatment. There have also been reports of abuse of power by security officers at Ndjaili International Airport (Kinshasa). It is alleged that they intimidate deportees to extort money, and send them to detention centres in cases where neither they nor their families can pay.

    However, the DRC authorities maintain that the deportee who returns with a travel document "tenant lieu de passport" is required to complete immigration formalities upon arrival in order to confirm his or her Congolese nationality. He is not detained and is allowed to leave immigration premises once Congolese nationality is confirmed. The problem in the deportation procedure may occur when the deportee is not a Congolese national and has acquired a DRC passport in a fraudulent manner. In such cases, there have been reports of persons suspected of being nationals of countries considered as "unfriendly" (e.g. Uganda, Rwanda) may be arbitrarily detained and face ill treatment. Nationals of other countries would normally be released after interrogation. It is therefore recommended that the nationality of rejected asylum seekers be carefully ascertained before they are processed for return to the DRC.

    DRC authorities maintain that the information in the preceding paragraph correctly reflects the procedure in place to receive deportees, the UNHCR (UN High Commissioner for Human Rights) has nevertheless received reports about deportees transferred to the DRC security services such as ANR (Agents Nationale des Resignaments) and DEMIAT (Detection Militaire des Actives en Anti Patrie) for interrogation. The Minister of Interior recently announced that these two security services no longer officially operate at Ndjauli International Airport. Officially, only the police and the DGM (Direction Generale des Migrations) are currently operating at this airport. Reports suggest, however, that the remaining security services have not in fact ceased their operations and continue to maintain an unofficial presence at Kinshasa airport.

    The above-mentioned observations, combined with the serious deterioration of the protection and security situation in the DRC, raises questions as to whether unsuccessful DRC asylum seekers may be returned without undue risk. You may be aware that as recently as March of this year, UNHCR's view was that it was, generally speaking, possible for unsuccessful asylum seekers to return to the DRC provided that they had been found in fair procedures not to have international protection needs. UNHCR believe that the validity of that view has been brought into question by the recent events in the DRC. Therefore, we are keeping the situation under review and are asking our headquarters to provide us with an updated position on returns, which takes into account the most recent developments.

    Please keep us informed of the outcome of this appeal."

35. The penultimate paragraph of this letter suggests that the information contained in its preceding paragraphs is in the nature of new material, coming to light since March 2003, and that this new material throws into question the previous view of the UNHCR that "generally speaking, [it is] possible for unsuccessful asylum seekers to return to the DRC".

36. However, a close comparison of the letter of 5 June 2003 with the passages from the ACCORD/UNHCR Final Report quoted at paragraphs 19 to 23 above, demonstrates that the substance of the letter of 5 June is, in fact, drawn from that Final Report which, as has been stated, derives from a seminar held in Vienna in June 2002, although the first page of the report notes that amendments were made in September and November of that year.

37. As far as the Tribunal can see, the passage in the letter of 5 June relating to instances of extortion by security officers at Kinshasa airport is something that may have been identified subsequent to the preparation of the Final Report. There is, however, no information as to where such reports have originated, let alone how prevalent is the practise of extorting money. In any event, the problem of corrupt officials, who require bribes in order to remove difficulties from the paths of members of the public whom they encounter, is, regrettably, a common problem for the populations of very many of the world's countries. With respect to the writer of the UNHCR letter, it is difficult to believe that such a problem has only recently arisen in the DRC. In any event, the question is not whether such a practice is morally and legally opprobrious but, rather, whether its existence is such as to result in a real risk of this appellant being subjected to persecution or Article 3 ill treatment, if returned. There is no evidence at all to show that the appellant, if returned to Kinshasa, would go there without any funds of his own. Furthermore, we note from paragraph 18 of the determination that he has family in Kinshasa, with whom he is still in contact. If the sums of money sought to be extorted by the corrupt officials were set at levels which returnees were unable to pay, there would be no point in the practice. In short, if faced with the option of paying a bribe or being sent to a detention centre, the appellant is likely to do the former.

38. The next passage in the letter which appears to have no counterpart in the Final Report is the reference to people from "unfriendly" countries facing the possibility of arbitrary detention and ill treatment. Given that this appellant is not from any such country but is indisputably a citizen of the DRC, that problem does not arise.

39. The next "new" piece of information is that relating to the Minister of the Interior announcing that the security services no longer officially operate at the airport but that reports suggest that they maintain an unofficial presence. In fact, this passage, upon analysis, has nothing new to say, compared with what is set out at page 125 of the bundle (paragraph 23 above). At the time of the publication of the Final Report, there were reports available to the UNHCR that certain persons may have been transferred from the airport into security service detention. The Final Report, however, indicates that such persons are likely to be those with a political or military profile. This appellant has none.

40. The final passage in the letter of 5 June is the reference to "the serious deterioration of the protection and security situation in the DRC". What is meant by this is unclear. It would, however, appear to relate to the recent upsurge in the conflict in the northeast of the DRC which, of course, is not under DRC government control.

41. The Tribunal finds, accordingly, that the letter of 5 June 2003 does not materially assist the appellant. It should also be noted that, were it the case that the UNHCR considered that there had been a significant deterioration in the position regarding returnees, since the end of 2002, it would have specifically and authoritatively stated that, in its view, no failed asylum seeker should be returned to the DRC. It has not done so.

42. The final letter, to which reference needs to be made, is that of 15 June 2003 from Human Rights Watch to Mr Behbahani. This refers to

    "continued threats and difficulties faced by those who have, or are presumed to have, Rwandan connections or are of Rwandan origin in Kinshasa and other parts of the DRC."

    Reference is then made to a continued threat

    "for those individuals who are suspected by the Kinshasa authorities of having close links to Rwanda."

    Given the findings of the Adjudicator, to the effect that even whilst he was married, the problems described by the appellant did not occur, and given that he is not at present married to anyone who has Rwandan connections, Mr Behbahani appeared to accept that this letter could be of little assistance to the appellant.

43. The Tribunal's conclusions are, accordingly, as follows:

    a) On the information available to it, as at 9 July 2003, it is not the fact that a person returned to the DRC is, by reason only of being a failed asylum seeker, at real risk of persecution or Article 3 ill treatment;

    b) In order to run a real risk of being taken into detention, following the screening of a returnee at Kinshasa airport, there must be something further in the returnee's background, such as past political or military activities or nationality of a state regarded as hostile to the DRC;

    c) There is nothing in the circumstances of the appellant in this case to suggest that he would be of any adverse interest to the DRC authorities.

44. Leave to appeal in the present case was granted against the background that "there may be contrasting Tribunal determinations" on the question of risk on return to the DRC as a failed asylum seeker. At the hearing, the Tribunal had before it a helpful case law bundle prepared on behalf of the appellant, comprising the following determinations of the IAT:

    Mozu [2002] UKIAT 05308

    Mansende [2002] UKIAT 05052

    Kabuya [2002] UKIAT 07457

    B (DR Congo) [2003] UKIAT 00012.

45. In Mozu the Tribunal apparently had before it a report of a Dr Kenne. This appears to have contained a reference to the DRC Minister of the Interior saying that returning asylum seekers "would be arrested at the airport and imprisoned" (determination, paragraph 9). The Tribunal in the present case has not seen any similar report. In any event, the supposed statement of the Minister runs directly contrary to what the government of the DRC has said to the UNHCR, both in 2002 and (as it would appear) more recently. More importantly, if there were any evidence to suggest that the DRC authorities were imprisoning returnees on a wholesale basis, such information can have been expected to have come to the attention of the UNHCR and, indeed, the United Kingdom government. It has not.

46. Overall, it would appear that the Tribunal in Mozu did not have before it the extensive information available to the Tribunal in the present case.

47. In Mansende, the Tribunal concluded that "There is no objective material to indicate that a person simply returning to the DRC, who is of no interest to the authorities, is at real risk of persecution". Whilst the Tribunal in the present case has reached the same conclusion, this is based upon materials which were not available to the Tribunal in Mansende.

48. Kabuya was heard by the Tribunal on 16 October 2002. In that case, the Tribunal allowed the appeal of the claimant. In doing so, it appears to have placed emphasis upon a UNHCR letter of 20 November 2001. This noted that agents of the security forces frequently interrogate Congolese returning to Kinshasa from abroad, particularly those who are known to have sought asylum. It further states that UNHCR is aware of instances where interrogation at the airport has been followed by arbitrary detention and serious ill treatment by DRC security agencies.

49. The Final Report of ACCORD/UNHCR had not been published at the time of the Tribunal hearing in Kabuya. Furthermore, as is apparent from paragraph 5 of the determination, the appellant in that case clearly did have a political profile in DRC. Accordingly, he had a background which could well be revealed during any questioning he would have received at Kinshasa airport, with the result that he would be identified as of adverse interest to the authorities, who would be likely to place him in detention, with all that that entails. Kabuya, accordingly, cannot in the view of the Tribunal be read as authority for the proposition that a returning failed asylum seeker is at risk, purely as a result of being such.

50. Likewise, the appellant in B (DRCongo) had, whilst in the United Kingdom, produced an article which had apparently been published in Kinshasa, which appears to have been critical of the DRC government, and he had also been active in "dissident politics of the DRC" whilst in the United Kingdom (determination, paragraph 3). Again, any questioning of Mr B at Kinshasa could well reveal this background, with the result that he would be placed in detention.

51. Upon proper analysis, it would, accordingly, appear to the Tribunal that the cases to which we have referred are, with the exception of Mozu, not authorities for the proposition that a person being returned to the DRC faces a real risk of persecution solely by reason of being a failed asylum seeker. As we have said, the Tribunal in Mozu involved had before it a report of what transpires to have been doubtful validity. Be that as it may, this Tribunal's conclusions are as set out in paragraph 43 above.

52. One final matter deserves mention. At the conclusion of his submissions, Mr Behbahani requested that, in the event of the Tribunal dismissing his client's appeal, something should be included in the determination, to the effect that risk on return could arise if, contrary to what was currently anticipated, the travel documentation negotiated between the United Kingdom government and the DRC Embassy were to reveal that the holder of the documentation had been in the United Kingdom as an asylum seeker.

53. As will be apparent from this determination, the UNHCR do not appear to place significance on the question of whether the authorities at Kinshasa airport discover that a returnee is a failed asylum seeker. The point is, rather, whether the authorities regard the person concerned as having an anti-government past (whether in the DRC or abroad). As is apparent from page 127 of the bundle (paragraph 27 above), what concerns the UNHCR is where a returning government informs the DRC government about the details of the asylum claim, for example, that the claimant said "he was imprisoned and beaten" which "could cause serious problems for the individual". Clearly, if the United Kingdom government were to divulge to the DRC Embassy any salient details about the nature of the asylum claim, that could in itself lead to "serious trouble for a person who may not have problems otherwise" (page 127).

54. The Tribunal sees no reason why it should not accept the information given (on instruction) by Ms Hanrahan in the present case. However, if, once the agreement with the DRC Embassy is in place, it transpires that the DRC authorities will in fact be made aware of the details of the appellant's asylum claim, it would be open to the appellant to take legal steps to prevent his removal, were it the case that, in the circumstances then prevailing, he would be likely to be at real risk as a result of that disclosure.

55. This appeal is accordingly dismissed.

    P R Lane

    Vice President