The decision

BK (Failed Asylum Seekers) DR Congo [2003] UKIAT 00032


Date heard: 3 July 2003
Date notified.22ND July 2003








1. The appellant, a national of Democratic Republic of Congo, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr P S Aujla, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum. Mr D Blum of Counsel instructed by Lawrence Lupin Solicitors represented the appellant. Ms A Holmes appeared for the respondent.

2. The Tribunal has decided to dismiss this appeal.

3. The appellant claimed he went to Goma in November 1997. In 1999 rebel soldiers had abducted him when he was trading in the market there. He was taken to a camp where he was given training and made to do hard work. After 14 months he managed to escape. He returned to the market in order to raise money to fund his departure. After a while it became clear that rebel soldiers knew he had returned and that he was a wanted man.

4. The adjudicator found that the appellant had not given a credible account in materials respects. The grounds of appeal submitted that the adjudicator’s assessment was based on a series of misunderstandings. He had been wrong to find that no valid explanation had been given for why the appellant had been targeted by rebel soldiers at the market in Goma. He had been wrong to find the escape story inherently implausible. He had been wrong to discount the appellant’s explanation for why he had returned to the market after escaping from detention. Furthermore, the adjudicator should have considered that simply on the basis of being returned as someone who was in Goma in 1997 the appellant would be at risk upon return of adverse treatment from rebel soldiers against which the authorities could not protect him. In respect of all the shortcomings in the appellant’s evidence the grounds argued that the adjudicator had failed to take account of the medical evidence from Dr Sears which had found the appellant to have memory problems.

5. It is appropriate that we deal with the last-mentioned ground first. It is significant in our view that this point has been raised for the first time in the grounds of appeal to the Tribunal. It was not raised before the adjudicator despite Mr Blum being the representative on that occasion also. That is particularly surprising given that there was a specific challenge made to the accuracy of the appellant`s interview record based on the quality of the interpretation. If the appellant’s representatives had considered the interview was a misleading record for other reasons, they should have said so prior to or at the hearing.

6. Mr Blum has submitted that in any event the adjudicator should have taken account of the appellant’s poor memory even if not raised before him. The adjudicator, said Mr Blum, had before him the report of Dr Sears which found at paragraph 13 that “[h]e forgets things easily such as the date of an appointment”. We would agree that an adjudicator must consider salient evidence that is before him. In our view that is what the adjudicator did in this case. It is true he made no specific mention of this aspect of the report, but he clearly gave the report careful consideration and we do not consider it can be said that he overlooked this aspect.

7. However, even had we considered that the adjudicator overlooked this aspect of the report, we would not have taken a different view of credibility as a result. Firstly, the passage cited does not indicate whether the claimed memory difficulties are pervasive and so affect ability to recall even life-changing events in an interview or hearing situation. Secondly, the passage is simply a report of the claimant’s own answers. In the evaluative sections of the report, the conclusion is drawn that the degree of PTSD is quite moderate and at paragraph 18 a comment is made which indicates that to what extent the PTSD went beyond a “verbal instrument” depended crucially on “the learned Adjudicator’s view on credibility”. Hence the doctor himself gave an indication that credibility as assessed by the adjudicator would be decisive. Thirdly, if the doctor had any concerns as to the ability of the claimant due to memory problems to deal with questions concerning his asylum claim at an interview or in a courtroom, we would expect to have mentioned them. He did not. Finally, whilst the appellant was vague about some matters in his interview, it was clear that he was able to give specific particulars on other matters. We therefore reject this point as raised in the grounds in its entirety.

8. As regards the other grounds, we would accept that at paragraph 29 the adjudicator did not give adequate reasons for doubting why the rebels had targeted the appellant in the first place. The appellant had said the rebels had picked him out as someone to forcibly conscript because of his physique. We would agree, going by the appellant’s evidence at least, that this was a sufficient motive.

9. We would also accept that in paragraph 34 the adjudicator did not deal specifically with the appellant’s reasons for returning to the marketplace where he had been abducted earlier. The appellant had said he had done so because he could not leave the area without earning money. He also said he used disguise. The adjudicator should at least have addressed these explanations.

10. However, we do not think that either of these shortcomings in the adjudicator’s treatment significantly flawed his assessment of credibility. We say that because the adjudicator identified a number of serious difficulties in the appellant’s evidence. In our view the grounds of appeal singularly fail to address these.

11. The main difficulties were these. At his interview the appellant could not remember the date or month of his arrest or his escape. He could not name the rebel group who kept him in detention for 14 months. He could not furnish adequate details of the place from which he escaped. Yet by the time of his second statement he was able to give these details. We consider that the adjudicator was fully justified in concluding that no credible explanation had been given as to why the appellant could not give the crucial information as interview. We bear in mind in this regard that at this interview the appellant had his own representative and interpreter present and that no complaint was made about the accuracy of the interview or other aspects of the interview until the appellant’s second statement.

12. A further difficulty with the appellant’s evidence was his own chronology as eventually supplied. On the one hand he said he was held for 14 months; on the other hand he spoken of being abducted in November 1999 and then escaping from detention in mid-2000.

13. The adjudicator also found the appellant’s escape account implausible, particularly the claim that the guards would have let him go to the toilet unaccompanied. Mr Blum contended that the appellant gave a credible explanation for this, namely that the appellant time had managed to convince the guards for some time that he could be trusted. However, if the appellant had won the guards` trust earlier, it is not easy to understand why he did not seek to escape earlier. We see nothing unsustainable in the adjudicator’s findings on this aspect of the appellant`s claim.

14. Rightly in our view the adjudicator counted heavily against the appellant the lack of credibility in the appellant`s account of going back to the marketplace in Goma after his abduction. Mr Blum has submitted that the adjudicator failed to address the main explanations. We have already noted that we agree the adjudicator did fail here. However, we do not find the appellant’s explanation at all convincing. On his own account his disguise was minimal and it had not stopped rebels identifying him. We do not think that the need to raise money would have led the appellant in truth to return to this particular market. On his own account it was the very place where he had been picked out before because of his physique. On his own account it was the area where rebel soldiers came looking for recruits. Yet on his own account he returned to work there for around 6 months. Given the account he gave of ill treatment whilst in detention, a return to this marketplace was equivalent to putting himself back again in the lion’s mouth. Mr Blum has not persuaded us that in fact the appellant had “no choice” but to go back to this market.

15. We need finally to deal with Mr Blum`s submission that even if the appellant had failed to give a credible account the adjudicator should still have allowed the appeal. This submission appeared two-pronged. The first prong was that the appellant would be at risk because upon his return the authorities would know he had been in Goma in 1997. However, the adjudicator made clear at paragraph 37 that he did not accept that the appellant ever went to live in Goma. He did not accept either that the appellant was of mixed ethnicity. On the adjudicator’s principal findings, which we have found entirely sustainable, the appellant would be in no different position upon return than any other failed asylum seeker.

16. The second prong of Mr Blum`s submission was that the appeal should have been allowed purely because the appellant would be returned as a failed asylum seeker. He relied in this regard on the Tribunal determination in Mozu and a London UNHCR letter of 16 May 2003 in which reference is made to London UNHCR`s belief that the validity of their earlier view that return was safe for failed asylum seekers “has been brought into question by the recent serious deterioration in the protection and security situation in the DRC”.

17. As regards Mr Blum`s reliance on Mozu [2002] UKIAT 05308, a decision of the Tribunal dated 20 November 2002, we deplore the practice of representatives who simply select one Tribunal determination seemingly in their favour without showing that any effort has been made to produce other Tribunal determinations which have dealt with the relevant issues in detail. That was particularly called for in this case because Mozu is clearly confined to the specific situation of the appellant in that case: someone in poor mental health at risk of imprisonment and rape who would have to return with small children. Mozu, furthermore, undertakes no detailed or reasoned assessment of the objective evidence.

18. As regards the London UNHCR letter, it does not purport to replace one UNHCR position statement with another. It simply announces that London UNHCR is keeping the situation under review and is asking its Headquarters to provide an updated position on returns, which takes account of the most recent developments.

19. This letter was dated 16 May 2003. It is now early July 2003. In our view, had UNHCR headquarters considered there was sufficient evidence to justify a change in its previous position, it would have said so publicly before now.

20. Mr Blum has also referred in passing to the expert evidence of Dr Kennes. However, the Tribunal has considered this evidence in other cases and not found that it demonstrates a real risk of serious harm for failed asylum seekers per se. A principal reason why the Tribunal has taken this view consists in what is said in recent CIPU reports. The recent CIPU position as set out in the April 2003 Assessment is now represented by paragraph 5.41 which notes:

“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 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 is valid travel documents.”

21. For the above reasons this appeal is dismissed.