The decision

Heard at Field House

SK (Removal Directions) Democratic Republic of Congo [2003] UKIAT 00014
On 29 April 2003


Date Determination notified:



Mr G Warr (Chairman)
Mr A Jordan
Rt Hon the Countess of Mar







1. The appellant, a citizen of the Democratic Republic of Congo appeals the determination of an Adjudicator, Mr G D Birt who dismissed his appeal against the decision of the Secretary of State to refuse his application for asylum.

2. The appellant was represented by Miss G Oliso of the Refugee Legal Centre while Miss J Sigley appeared for the Secretary of State.

3. The appellant said he worked as a driver in Kinshasha from 1995 until his departure on 21 September 1998. He applied for asylum on arrival in the United Kingdom. He said that his employer had been an editor of a newspaper and had encountered difficulties under the regime of President Mobutu which had continued under the regime of Laurent Kabila. The appellant’s employer had had problems with Kabila because Kabila was against the Tutsis of which he was one. The appellant’s employer had accordingly gone to Brazzaville. The employers colleagues including the appellant were then all accused of treason because it was thought they were behind their employer’s escape. The appellant was summons to go to the police station in Kinshasha. He was questioned about his employer but was released without charge and went home. The following day 6 soldiers ransacked his house and beat the appellant and his brothers.

4. The appellant gave evidence before the Adjudicator who did not accept that the appellant was a credible witness. In paragraph 18 of his determination he gives his reasons:

“I do not regard the appellant as a credible witness. There were a number of matters, concerning which he was not telling the truth. He would well know how many brothers and sisters he had. First he had said he had seven brothers then altered it to three brothers and three sisters. He was asked after his house had been ransacked where his girlfriend had gone. He said that she had remained in their home at all times and then said that she had returned to her mother. Regarding the document requiring him to go the police station he said he had received this through the post. It is very doubtful that such an important document would be sent in this manner. Further if it was thought the whereabouts of [the appellant’s employer] to be of such importance the authorities would have raided his house, searched it and then taken him to the police station. I have to look at the testimony of the appellant on the basis that he did not tell the truth on those matters. It can be said that none of them are of importance and are possibly relatively trivial. However, it cast doubts upon other matters on which he gave evidence which go to the core of his case. That is he was taken to the police station and beaten to try and elicit information about the whereabouts of his employer. Because I do not accept his evidence on the other matters I do not regard this incident as having happened. He said he had marks on his face which were the injuries sustained during the beating. I do not accept that the marks on his face were injuries as a result of the beating. One significant matter that was not said to him when he spoke to his brother on the telephone was that the authorities had come to their home in order to look for him. If this had been said the appellant would have clearly remembered it and the fact that his brother had not told him on the telephone that the authorities had been to his home meant they had not which can only mean they were no longer interested in him.”

5. The Adjudicator noted that the appellant had been in this country since September 1998 and there was no evidence to show anyone was interested in him in the DRC. He also dealt with human rights issues.

6. Miss Oliso submitted that the Adjudicator had erred in relying on the discrepancies when none of them were of importance and were indeed as the Adjudicator found relatively trivial. She relied on the grounds of appeal in which reference is made to the case of Chiver (10758), a case decided on 10 March 1994.

7. Miss Oliso submitted that the Adjudicator had erred in relying on trivial matters and had failed to have regard to the objective material before him. She referred to the state of those arrested and executed because of suspected involvement in Kabila’s execution. It was pointed out that the appellant had left his country long before this event. Miss Oliso referred us to the objective material concerning the war in August 1998 when Laurent Kabila had tried to expel Rwandan military forces that had helped him overthrow Mobutu.

8. Miss Sigley submitted that it was clear from paragraph 17 that the Adjudicator had referred to the Country Information Reports before him and in particular to the events in August 1998 where the government security forces had systematically arrested and detained Tutsis throughout the country. The Adjudicator had found that there were discrepancies in the appellant’s account and he was entitled to make the finding that he had made in the circumstances of this case. The appeal should be dismissed.

9. We have carefully considered the points made on both sides. In ground 2 of the grounds of appeal settled by the Refugee Legal Centre it is accepted that an Adjudicator is entitled to find that minor discrepancies cast doubt upon other aspects of an account. However, it was not accepted “that an Adjudicator is entitled to reject the entire account because of minor discrepancies without giving further consideration to the core of the account. This approach is inconsistent with Chiver (10758) 10 March 1994. It is submitted that the Adjudicator has not given adequate consideration to the core facts of the appellant’s claim.”

10. The case of Chiver is often relied on by appellants. It is of course perfectly correct that a story should not be rejected solely on the basis of minor discrepancies. A truthful witness may make mistakes because of nerves or forgetfulness or because of the experiences that have been suffered, for example. However, it does not follow that a witness who falters over what might appear to be peripheral matters is in all cases a witness of truth. A person who has made up his story may get the central elements right. An Adjudicator will have to use his common sense and experience to make his findings. He will need to consider whether an account which frays at the edges from time to time is nevertheless a truthful one or alternatively whether the witness has got himself into difficulties in unplanned departures from a pre-rehearsed and unreliable script.

11. We have no doubt that the Adjudicator was very conscious of the dangers of making unfair adverse credibility findings. He had indeed been alerted during the course of submissions, as we pointed out to Miss Oliso, that any mistakes made by the appellant had not gone to the core of his claim. On any fair reading of paragraph 18 of the determination it is clear that the Adjudicator had this submission in mind. He had the advantage of hearing and seeing the witness give evidence and it was for him to decide what kind of witness this appellant was. The Adjudicator relies on discrepancies and implausibilities as well as the conversation the appellant had with his brother on the telephone.

12. We feel that the Adjudicator’s findings were properly open to him and are not unfair or unsafe. Miss Oliso also relied on the objective materials and submitted that the Adjudicator had not had regard to them. This was not a complaint made in the grounds of appeal and we do not see any foundation for it. As Miss Sigley pointed out, the Adjudicator had indeed referred to the objective material.

13. We see no reason to interfere with the Adjudicator’s findings in this matter. This appeal is dismissed.

G Warr
Vice President