The decision

Heard at Field House BL (Failed Asylum Seekers - Membership of Political Group) DR Congo [2003] UKIAT 00046
On 22 July 2003
Written 22 July 2003


Date Determination Notified

. . . . . . . . . . .06/08/03 . . . . . . . . . . . .


Mr J Barnes (Chairman)
Mr S L Batiste
Mr R Chalkley





1. The Appellant, a citizen of the Democratic Republic of Congo, appeals, with leave, against the determination of an Adjudicator, Mr T R Jones, dismissing his appeal against the decision of the Respondent on 3 May 2002 to issue removal directions and refuse asylum. Before us, Mr F Gaskin represented the Appellant and Mr L Parker, a Home Office Presenting Officer, represented the Respondent.

2. The Appellant claimed that he was a student at the University of Kinshasa and was a member of FONUS, a political lobbying group. He was the organiser and a leading light in a student demonstration on 11 and 12 December 2001 at the University over the level of university fees. On 11 December they marched to the University but were stopped by the police who shot into the air to disperse them. The following day there was a meeting with various officials but the students were dissatisfied and a riot ensued. Three policemen were killed in the fighting and many arrests were made, including the Appellant. Between 12 and 14 December 2001 he was interrogated under torture and held in inhumane and unhygienic conditions. When it was discovered that he was a ringleader he was told he would be shot. However he escaped by climbing through a window with the help of one of the other detainees. There was a residential house next door and the people there provided him with money. He went on to hide in a friend's house in Kinshasa. His family raised money to pay for an agent to enable him to come to the UK. He left by air on 24 March 2002 and arrived in London the next day. The agent abandoned him the airport. He claimed asylum two days later.

3. The Adjudicator reached an adverse credibility finding concerning the claim, which was fully reasoned in paragraphs 19a-19g. He went on to dismiss the Appellant's asylum and associated human rights appeal. Permission to appeal was sought on various grounds but was granted only so that the Tribunal could assess the risk on return in the light of another decision by the Tribunal in Mozu [2002] UKIAT 05308.

4. At the hearing before us, Mr Gaskin as a preliminary issue invited the Tribunal to allow him to challenge the adverse credibility finding by the Adjudicator on the basis that a medical report was not properly taken into account. This issue was raised in the grounds of appeal and rejected when permission was granted on the limited basis described above. The Tribunal noted that the medical report was by a GP and contained no diagnostic tests. The GP nevertheless concluded, on the basis that the Appellant was telling the truth, that he had some psychological symptoms that were consistent with his claim. The Tribunal considered that this report could be of no material value in assessing credibility as the GP did not consider what other matters the symptoms described could be consistent with, and indeed offered no diagnostic testing in relation to his symptoms. Moreover he based his conclusions on the Appellant’s account, which the Adjudicator properly held to lack credibility. The Tribunal therefore refused to extend the grounds of appeal.

5. We were left with a very restricted basis for appeal. The decision in Mozu was made in October 2002 and was relatively brief. It related to an appeal by a female asylum seeker. Essentially it accepted an expert report by Dr Kenne, prepared in July 2002. Dr Kenne stated that the Director General of the Immigration Service in the Democratic Republic of Congo and the Minister of the Interior had said that failed asylum seekers would be arrested at the airport on return and imprisoned. Dr Kenne offered the opinion that returnees from the UK would be under greater suspicion because of support given to the RCD by the British government. He also indicated that there was a specific risk of rape for women in prisons. Consequently the Tribunal concluded that "the Democratic Republic of Congo is in a very unsettled condition and the evidence of the reception of returned asylum seekers, particularly from the UK, is such that her return does indeed expose the Appellant to a serious risk of imprisonment and with rape. The conditions in prisons are clearly inhuman and degrading anyway. This would be a breach therefore of Article 3."

6. Mr Gaskin before us acknowledged that Dr Kenne’s report was now a year old and had been produced in response to a specific claim. He was unable to say whether permission had been sought or obtained from Dr Kenne to produce the report in this appeal, after such a lapse of time. In our view the passage of time and this failure to obtain permission and current revalidation undermines the present value of the report, as described by the Tribunal in Ali [2002] UKIAT 03472 and Kuldip Singh (20762), which we adopt. It follows also that the determination in Mozu, made in October 2002 and based upon this report, is of little if any present value in assessing the current risk on return.

7. This view is reinforced by the fact that in the year that has followed since the report was written by Dr Kenne, no objective evidence has emerged of arrests of returning failed asylum seekers at the airport. To the contrary, the UK Ambassador in DRC has indicated that he is not aware of any problems for returning asylum seekers at the airport. Mr Gaskin has been wholly unable to point us to any direct objective evidence to show that the UK Ambassador is wrong. Whilst we accept that there are problems in DRC, we consider that if there were any significant number of arrests of returnees from those countries which have been returning failed asylum seekers over the past year, it would by now be apparent from the objective material. The absence of such information, together with the report from the UK Ambassador suggest that this problem has not arisen in practice to the extent of establishing a real risk to returnees.

8. We also note that on 2 April 2002 UNHCR indicated that it was not opposed to the return of failed asylum seekers to the DRC insofar as they have had access to a full and fair hearing of their claims. Mr Gaskin has referred us to two further letters from UNHCR in May 2003, which he suggests have materially changed the nature of the UNHCR advice. These letters state that there are reports that some individuals may face serious problems following possible interrogation by the security services on return, should it be discovered that they have a military or political profile or have sought asylum abroad owing to a political or military background. We do not know what these reports were and we note that the Respondent is seeking clarification. However, we do not consider that this is a material change in the UNHCR advice insofar as it relates to this appeal. The Adjudicator has found that the Appellant does not have a military or political profile, nor does he have a political or military background. His asylum claim was a fabrication. The authorities in the Democratic Republic of Congo would not be aware of the basis of his fabricated claim.

9. In the circumstances, there is no error in the Adjudicator's findings or his dismissal of the Appellant's asylum and associated human rights appeal.

10. For the reasons given above this appeal is dismissed.

Spencer Batiste