The decision

Heard at Field House

On 14 June 2004

VK (Risk on return- Rwandan heritage) Democratic Republic of Congo [2004] UKIAT 00337

Date Determination notified:

29 September 2004


Mrs J A J C Gleeson (Vice President)
Dr J O de Barros
Mr G F Sandall







For the appellant: Mr S Vokes, of Counsel, instructed by
MacLaren Britton, Solicitors
For the respondent: Mr J G Jones


1. The appellant appeals with leave against the determination of an Adjudicator, Mr I F Taylor, who dismissed his appeal against the refusal to recognise him as a refugee and the setting of removal directions.

2. Leave to appeal was granted based on paragraphs 19, 20 and 42 of the Tribunal’s decision in the country guidance case of M (DR Congo) [2003] UKIAT 00017 M (DR Congo).

3. The core facts as found by the Adjudicator are as follows. The appellant was born on 12 May 1976 in Kinshasa DRC. He is married with no children; his wife is still in Kinshasa although he has had no news from her. The appellant is from the Luba tribe as was his father. His mother however was Rwandan and a Hutu. His father died in 1986 and his mother was killed in 1998 by the Tutsis.

4. On 15 February 2002 at the age of 26 the appellant joined the Association D’Entr’Aide des Congolais Orphelins (AECO), a self help group of people having one or both parents from Rwanda (either Hutu or Tutsi) intended to assist at times of difficulties or bereavement. The appellant became the Secretary of that organisation, which attracted suspicion from the DRC authorities because of its obvious Rwandan connections: it was accused of communicating with the rebel forces from the east of the DRC. A meeting was disrupted in around October 2002; on 20 January 2003 soldiers came to the appellant’s house about a warrant and arrested him taking him to the notorious group Litho Moboti Prison (GLM Prison).

5. The Adjudicator found that on a true construction of evidence about the AECO, it was irrelevant whether a person’s parents were Hutu or Tutsi, so long as they were Rwandan. It was the nationality identification which was crucial. He also accepted that the authorities would have been suspicious of the organisation and felt that the AECO was lending assistance in rebels in the east. He considered that the appellant suffered some mistreatment (paragraph 10 of the determination) but that his account in connection with this appeal was exaggerated. He accepted the account of the detention in the GLM Prison for a short period after which, no doubt having been mistreated, the appellant was released as of no further interest to the authorities. That is as high as the appellant can put his case.

6. The question for the Tribunal is whether if this appellant were returned today that profile is sufficient to put him at risk.

7. The Tribunal has the benefit of two skeleton arguments, one prepared by instructing solicitors and one prepared and served by Mr Vokes on the Friday before the hearing. Mr Vokes indicated that he would only be relying on his own skeleton argument; accordingly we have not delved into the skeleton argument which appears in the bundle of documents filed on the appellant’s behalf.

8. Mr Vokes’ skeleton is most helpful. It sets out the facts which we have just summarised ; it draws the Tribunal’s attention to [2003] UKIAT 00017 M (DR Congo) which says this:

“16. At page 62 of the objective evidence bundle there is a letter dated 27 June 2002 from the UNCHR 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 UNCHR emphasises “the need for a case by case approach in examining all asylum applications; in assessing whether or not an asylum seeker may be returned in safety. Within a particular country context each case should be examined on its own merits with due weight being given to the specific background; 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; 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 forced or prominent among the armed elements ranged against the Kinshasa authorities”.”

9. Mr Vokes also relied upon page 85-6 of his bundle, a passage in the expert’s report of Mr Kennes -
“I have no specific information about this case and cannot confirm whether or not his story is true. However, the story of [ ] seems on the whole consistent with the state of affairs in the DRC as it is known to me. Several elements may be pinpointed:
- the general aggression against anybody considered to be Tutsi. It is very important to note that the name Tutsi refers to anybody considered to be a collaborator of Rwanda or the RCD/Goma rebel movement. A Hutu or even a Congolese may be called “Tutsi”. Supporters of the UDP are called “Tutsi” because their party made an alliance with the Rwanda-dominated RCD movement. The name Tutsi may already trigger aggression: it is sufficient for somebody to be considered as Tutsi to experience problems independently of his/her real ethnic affiliation…
- The general suspicion against anybody who is thought to have contacts with the rebel movement especially the ones linked to Rwanda. If an organisation for orphans helps Congolese and Rwandan children it will certainly be met with great suspicion in the parts of the country under government control. Its leaders may be suspected of having contacts with movements.
– The use of the GLM Prison. This was officially closed in March 2001 but according to a research carried out by a collaborator in Kinshasa (during my trip in Kinshasa in May 2003) the GLM has never really been closed it is still in use especially for the imprisonment of “sensitive” (political) detainees.”
At page 86 there are comments on the Home Office Refusal letter on similar lines.

10. Mr Vokes submitted that if the Adjudicator had the benefit of the decision in M, he would certainly have reached a different conclusion. The Adjudicator’s determination was written in September 2003; the M decision had been promulgated by 15 August 2003, but apparently was not argued before the Adjudicator.

11. Mr Vokes also relies on paragraph 42 and 43 of the M decision:

“42. The final letter, to which reference needs to be made, is that of 156 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.”

12. He relied also on decisions in L DRC and I Democratic Republic of the Congo, (considered below), both recent country guidance decisions intended to give guidance on the risks to returning asylum seekers in the DRC. Finally, Mr Vokes referred to a newspaper report dated 4 June dealing with increased tensions in relation to round-ups. He argued that there was a background of instability; there had been a failed coup attempt in Kinshasa on Friday 11 June 2004. Mr Vokes asked us to allow the appeal.

13. For the Secretary of State, Mr Jones reminded us that it was a question of particular facts and circumstances; the Adjudicator found the appellant’s account of the treatment meted out to be exaggerated (paragraph 10) although he accepted that there was some risk. The Adjudicator disbelieved the whole of the appellant’s account in relation to his escape; he found that in September 2003 there was no current interest in the appellant.

14. In reply, Mr Vokes pointed out that it was the membership of the Orphan Association which delineated this appellant from any normal returning asylum seeker; his position with that organisation gave rise to a present and future risk. The act of returning him would bring him to the attention of the authorities; there was a current climate of suspicion in relation to Rwandans as a whole and the intentions of Rwanda towards the DRC. The new CG cases were pertinent and should be taken into account. He asked the Tribunal to allow the appeal.

15. We have therefore considered the passages to which we have taken in L (DRC) paragraphs 93-94:

“93. Our essential focus in this determination has been on the issue of failed asylum seekers. However, the Adjudicator in allowing this appeal made reference to one further risk factor, namely, being a woman with a very young child: see paragraph 22. In view of the analysis set out in M and in preceding paragraphs of this determination, we also have to consider whether there was another possible risk category into which she would fall, with reference to identification by the Tribunal in M of two definite risk categories as follows:

a) nationality or perceived nationality of a state regarded as hostile to the DRC (in particular those who have or are presumed to have Rwandan connections or are of Rwandan original);

b) having or being perceived to have a military or political profile or background.

94. As explained earlier, we consider that M 00071 reached sound conclusions and we adopt its conclusions in this respect as well as others. We note that both the latest UNHCR evidence and the latest report of Dr Kennes lend further support to the identification of these two categories. They also lend support to inclusion of a third category, being without travel documents, but this does not arise in the UK context for reasons already given”.

In I (DRC), the relevant paragraphs are paragraphs 24-5 -

“24. The predecessor UNCHR letter which was in the same terms and the position of returning failed asylum seekers to DRC was considered at length in the determination of the Tribunal, [2004] UKIAT 00007 L (DRC). That case was particularly concerned with whether there was a risk to those who returned merely because they were failed asylum seekers. It concluded that there was not. It recognised that there were possible risk categories, including those who had or were perceived to have a military or political profile or background, or who came from rebel held areas or who were a family of mixed ethnicity or were perceived to be Tutsi. There was however no significant risk arising from the fact that a returned failed asylum seeker was a woman, nor indeed from being as in that case, a low level IDPS member. At paragraph 100 it pointed out that the UNCHR description of “military or political profile or background” did not draw a distinction between high had low level individuals, nor did it suggest that merely being a member of an opposition party such as the UDPS sufficed to place on in a risk category. Nor did the UNCHR letter state that persons in that category were necessarily at risk but rather that they were likely to be at risk and therefore deserved particular and careful consideration.

25. The Tribunal concluded that although the category was of a broad definition, it could only apply to those whose activities had brought themselves to the adverse notice of the authorities so they acquired a certain profile in their eyes before they left.”

16. In relation to the newspaper report the relevant passage appears in the fourth column:

“In Kinshasa President Joseph Kabila used belligerent language to condemn both the UN and neighbouring Rwanda raising the political temperature and sparking fears of Congo’s third major war in less than 10 years.

Rwanda which started the 1996 and 1998 wars was behind the attacks on Bukavu he said “Once again Rwanda has made it clear it does not want peace” he told the BBC “If war is imposed on us we will most definitely fight back”.

Rwanda’s Foreign Minister Charles Muligande denied the accusation. The UN spokesman in Bukavu said “We have had reports of [Rwanda troop movements in Congo] but for now we cannot confirm them”. Some UN military observers also reported seeing UN military aircraft in Congolese airspace west of Bukavu.

The South African and Uruguayan peacekeepers started patrolling the streets of Bukavu last night the UN mission was tumbling in disarray. Some UN officials blamed the lack of resources and the lack of political world from the international community for the swelling fiasco and recriminations have already started. “Quite frankly [this chaos] was coming for a long time. Nobody was willing to take the hard decision to prevent it. It is no surprise to us at all.” said one official in Bukavu. ” (Independent, 4 June 2004)

17. The Tribunal retired at the end of the hearing to consider its determination which was given orally at the hearing. We accept that each case turns on its individual facts. In this particular case, this young man at the age of 26 publicly identified himself with his Rwandan heritage and as a war orphan. The Adjudicator found that he was detained and ill-treated, however briefly; the authorities will be aware of his Rwandan heritage and his position as Secretary of that organisation.

18. The appellant left the DRC on 29 January 2003, very shortly after his release. As Mr Justice Ouseley said in I, before leaving in January 2003 this appellant established “a certain profile” in the eyes of the authorities. We do have regard to the present situation in the DRC ; we consider that it is at least reasonably likely, alternatively that there is a real risk, that on return the profile which the appellant has in the eyes of the Democratic Republic of the Congo authorities would cause him to be identified and detained again.

19. Accordingly, although as Mr Jones pointed out it may well be that his past treatment was not at a level which amounted to persecution, we find that he has established a reasonable degree of likelihood of future persecution by the Congolese authorities, or alternatively, a real risk of a breach of Article 3 and 8 of the ECHR.

20. For all the above reasons, this appeal is allowed.

Mrs J A J C Gleeson
Vice President

Date: 16 June 2004