The decision

Heard at Field House

MS (Risk on Return - Relocation) Congo -Democratic Republic of [2004] 00010
Date: 15 January 2004


Date Determination notified:

.....10th February 2004.....


Mr J Perkins
Mr A A Lloyd JP






1. Before us Mr J Dutton, a solicitor with O’Keefe Solicitors, appeared for the appellant and Mr A Hutton, a Home Office Presenting Officer, appeared for the respondent.
2. The appellant is a citizen of the Democratic Republic of Congo. She was born on 15 September 1962. She appeals the decision of an Adjudicator, Mr D S Corke, who in a determination promulgated on 25 February 2003 dismissed the appellant's appeal against the decision of the Secretary of State that she was not entitled to refugee status and that returning her to the DRC was not contrary to her rights under the European Convention on Human Rights.
3. The Adjudicator summarised the appellant's evidence at paragraph 8 of his determination. He said that the appellant comes from Bukavu which is the provincial capital of south Kivu in the east of the country and she is a member of the Bashi tribe. Her husband was involved with the FEC which the Adjudicator described as a legal organisation similar to a Chamber of Commerce. The rebel group RCD controlled the area and banned meetings. After a meeting on 4 August 2002, when the appellant had served refreshments but was not otherwise involved, rebels came to the house and arrested her husband and eldest son. They returned and two rebels raped the appellant. She was then arrested and held for several days. She was raped daily in detention before being released by a corrupt officer who was bribed by her brother-in-law. She was interrogated during detention about the meeting, firearms, and FEC links with the anti-RCD Maimai group. She left the country after she had been released. She could not return to an RCD area as she would be killed. The appellant could not get protection from the government as the government viewed everyone from the east as a rebel.
4. The Adjudicator accepted the appellant's account of what had happened to her in the past. Nevertheless he concluded from the fact that the appellant was released from custody on payment of a bribe that the rebel forces had no lasting interest in her.
5. The Adjudicator saw no risk in the event of the appellant being returned to Kinshasa. He found no reliable evidence to support a contrary conclusion.
6. With respect to the Adjudicator, we cannot agree that he gave proper reasons at paragraph 20 for concluding that the appellant would be safe in the event of her return to her home area. In accepting her account the Adjudicator accepted that the appellant was detained by the rebels even though she had done little or nothing to oppose them. She was then subjected to the most appalling brutal treatment. She had been raped daily. That is a truly terrible way to treat a person. Whilst it may be the case that she was only released on the payment of a bribe because the rebels had no immediate interest in her we find that it was not open to the Adjudicator to conclude that the appellant would be safe in the future if she returned to that part of the DRC. The rebels had shown their ruthless nature and if she were available they could return and ill-treat her any time they were so minded.
7. We considered if it was open to the Adjudicator to conclude that the appellant could be returned safely to Kinshasa. Mr Dutton argued that it was not. He submitted that the appellant was at risk for three reasons. She is a woman, she came from a notorious "rebel area" and she is a member of the Bashi ethnic group. This is associated with Rwanda and members of that group were implicated in the murder of the late President Kabila in January 2001. Some support for this proposition comes from a translated newspaper article that appears at page 11 of the appellant's bundle.
8. Mr Dutton showed us a copy of a letter from the UNHCR dated 9 October 2003. This shows that people returned to the DRC "may face serious problems following possible interrogation conducted by security services upon arrival in Kinshasa." People with a political or military profile or people who had sought asylum because of a political or military background may risk arbitrary detention and ill-treatment. There have also been reports that Immigration Officers in Kinshasa abuse their powers and extort money from returnees. The UNHCR identified problems arising in the case of people who were not Congolese nationals but had acquired a DRC passport properly. In such cases there had been reports of people suspected of being nationals of countries considered as unfriendly, such as Uganda or Rwanda, being arbitrarily detained and ill-treated. It has always been this appellant's case that she is a national of the DRC.
9. We were also shown a letter from Mr T Baster of the organisation called Bail for Immigration Detainees dated 25 November 2003. This letter set out the story of "AB" who was returned from Heathrow in October 2003. The returned person's partner received a message on a Saturday morning to say that he had arrived at Kinshasa Airport but was being detained. For reasons that are not clear his escort provided him with a phone. It was reported that AB was beaten by the police when "the English Police were not there." AB was later seen by a person described as "a reputable witness, known to a number of international human rights organisations" who reported that AB was interrogated by airport security and then brought to the Penitentiary Centre at Makala where he was held in inhuman conditions without family visits or assistance. He had been persecuted during his detention for having pursued subversive activities abroad against the regime of President Kabila. Mr Baster very honestly added that there had been an uncorroborated report that AB had now been released. The letter also detailed a report from "DE" who was detained when he returned to Kinshasa.
10. In a reply dated 5 December 2003 the Director General of the Immigration and Nationality Directorate said that there had been a clear and significant improvement in the human rights and political situation during the year. There was no objective evidence to support allegations of either systematic or arbitrary detention or ill-treatment of returnees and the British Ambassador in Kinshasa had not seen evidence that local human rights organisations have concerns about the safety of people returned. Belgium and the Netherlands have found no evidence that returnees face ill-treatment. He did not accept that there was a general problem.
11. We have to say that we do not find either of these documents to be of any great assistance. Whilst we are confident that the letter from the Home Office sets out honestly the information received there is no reason to suppose that the British Ambassador in Kinshasa has made any particular effort to look for evidence of ill-treatment of returnees or concerns about their safety from human rights organisations. We do conclude from this letter that there is not a general problem. It is not the case that everyone who is returned to Kinshasa is routinely ill-treated. If that were the case it would have come to the attention of the British Ambassador either directly or through his contacts, particularly those representing the interests of Belgium and the Netherlands.
12. Similarly, Mr Baster is well known to Adjudicators and the Tribunal and we are confident that he will have set out honestly the information reported to him. However, the fact that he knows of cases where people have complained that they have been ill-treated does not help us on its own. We do not know what sort of case those people had presented and so we cannot use their experiences as an indication of the kind of categories of people who may be at risk. It is worrying to know that anybody has been ill-treated on return to the DRC but it does not take matters any further.
13. We have been referred to several cases. In Sinanduku v Secretary of State for the Home Department [2002] UKIAT 05060 promulgated on 31 October 2002 Mr Latter's Tribunal considered the risks of a woman being raped in the event of her being returned to the Congo. He said at paragraph 9, "The background evidence certainly shows there is a possibility and to that extent a risk of rape in the Congo but because the general risk exists for all, it does not follow that there is a real risk for each individual." With respect we adopt that analysis of the background material and that reasoning. We do not do this lightly. We accept that serious violence against women is a frequent event in the DRC but that does not establish a real risk for this particular appellant. We conclude that the appellant is not at risk simply because she is a woman.
14. An appellant's appeal was allowed in the case of Diavova v Secretary of State for the Home Department [2002] UKIAT 01474 decided by the Tribunal chaired by His Honour Judge P M Lakin. It was a particular feature of that case that the appellant there was a Hutu and is thus specifically identifiable as a Rwandan. It was an important element in a series of cumulative factors that led to her appeal being allowed. We have been shown the case known as [2003] UKIAT 00012 B (DR Congo). The Tribunal in that case accepted that the appellant would be detained in the event of his return. We see no reason to make such a finding in this case.
15. We were then shown Kabua v Secretary of State [2002] UKIAT 07457 notified on 28 March 2003. This case turns on its own particular facts including the fact that the appellant was going to be interrogated on his return when incriminating aspects of his background could be expected to emerge. That is very far from the case here. It is this appellant's account that she was in trouble in the east of the country because her husband was involved with a pro-government group, the Maimai. We were then shown the case known as [2003] UKIAT 00071 M (DR Congo) where the Tribunal said at paragraph 43(b), "In order to run a real risk of being taken into detention, following the screening of the detainee at Kinshasa Airport, there must be something further in the returnees background, such as past political or military activities or nationality that the state regarded hostile to the DRC". With great respect we adopt that position. Nothing has been shown to cause us to take a different view.
16. We have also been shown the case known as [2003] UKIAT 00058 L (DR Congo) which emphasised that some people can be returned safely to Congo.
17. We have given careful consideration to the unidentified newspaper article that claims that people from south Kibu are associated with the attack on General Major Joseph Kabila. According to that article, "Latest from Kibu said that most people accused are from Dashi ethnic group associated to Rwandan not only because they share the same border but they are also often to get married each others and vice versa". Clearly the document has been imperfectly translated. Its provenance is not clear. However, there really is no reason to find this appellant would be associated with the Rwandans.
18. We accept that the summary given in 00071 M is not intended to have statutory force. Neither does it purport to set out an exclusive list. However we cannot see any reason for concluding that a person who is not linked with Rwanda or any kind of rebel activity and who has been in trouble in the east because she was related to someone who took a modest stand against rebel activity would be at risk in the DRC. As indicated above it is not the case that everyone detained there is routinely tortured. We cannot see why the authorities would have any adverse interest in this appellant.
19. It follows that we see no material error in the determination and we dismiss this appeal.
Jonathan Perkins
Vice President
27 January 2004