Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05505/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 20th September 2013
On 30th September 2013

Before

DEPUTY UPPER TRIBUNAL JUDGE LINDSLEY

Between

[G K]
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Ms B Poynor, Counsel, instructed by Hammersmith & Fulham Community Law Centre
For the Respondent: Ms A Everett, Home Office Presenting Officer

Interpreter:

Ms Jocelyne Ngassa, in the Lingala language

DETERMINATION AND REASONS
Introduction
1. The appellant is a citizen of the DRC born on [ ] 1962. She arrived in the UK on 5th January 2007. On 24th March 2007 she travelled to Belfast on a false passport and was arrested, and claimed asylum. She had her full asylum interview on 24th June 2010, and was refused asylum by the respondent on 21st July 2010. She appealed, and her appeal was dismissed on all grounds by Immigration Judge Wallace in a determination promulgated on 6th September 2010. The appellant made a fresh asylum claim on 7th March 2011. The respondent once again refused the appellant but accepted she was entitled to appeal this decision on 16th May 2012. Her appeal against the fresh asylum decision was dismissed by First-tier Tribunal Judge Balmain in a determination promulgated on the 30th July 2012. The appellant appealed to the Upper Tribunal, and an error of law was found by Upper Tribunal Judge Storey in a decision dated 22nd February 2013. This determination is appended as annex A to this determination. The determination of Judge Balmain was set aside.
2. The matter came to me pursuant to a transfer order to re-make the decision de novo. The appellant confirmed she understood the interpreter. Ms Poynor provided evidence that due to High Court litigation that there were currently no removals to the Democratic Republic of Congo, and that this was likely to be the case until 2014.
Evidence
3. The appellant confirmed her name and provided her new address. She adopted her four witness statements (dated 29th July 2010, 3rd March 2011, 3rd July 2012 and 31st May 2013 updated in July 2013) as her evidence. She confirmed that they were true to the best of her knowledge and belief.
4. In summary in her statement's the appellant's claim is as follows. The appellant has a total of eight sisters and one brother living in the DRC. The appellant had a good education, and studied accountancy at university. She worked for a company called [P] from 1986 to 2006 when she was forced to flee to the UK. She started as a secretary and became treasurer of what was the [P] group by the time she left the DRC. The appellant married and three children in the DRC. She also took responsibility for her brother's two children and brought them up as her own. Her husband died in a car accident in 1999, and she brought her five children up alone from this time.
5. From 2003 the appellant became a member of an organisation called League of Voters (Ligue des Electeurs), an organisation which challenged corruption and wanted more rights for the people. She attended meetings (particularly women's groups) and worked as an election observer for this NGO. She has provided documentary evidence of this work including her membership card and a letter from the vice president, Mr Sabin Banza, dated 19th December 2006. She has also indicated that she knows [N], former president of this organisation who now has refugee status and resides with his family in Brussels. He now works for the International Federation of Human Rights.
6. On 26th October 2006 the appellant applied for and was granted a visit visa to come to the UK before she had any problems there. She had a good job, money and wanted to travel. The appellant gave the impression on the visa application form that her husband was still alive as she believed it was difficult to obtain a visa if you did not do this.
7. On 29th October 2006 the appellant witnessed massive fraud in the second round of elections by the supporters of Mr Joseph Kabila. Her two fellow observers had taken money from the Kabila party. The appellant was offered a bribe of 1000 US dollars by Francis Kalombo, a powerful person in Kabila's party whom the appellant recognised from the television, to ensure that Kabila got more votes than Bemba (his opponent) at her polling station. There was footage of Mr Kalombo bribing people shown on the television, and everyone knew he was doing it. The appellant refused to take the bribe, and called the vice president of her NGO, the League of Voters, Mr Sabin Banza. A complaint was lodged by Mr Banza; and the appellant was told not to worry but that she might have to give evidence before a tribunal.
8. On the way home that night the appellant was stopped by the armed soldiers of the presidential guard (who had been with Mr Kalombo) as she left the polling station. They found her voting calculations in her bag and retained it. They were also threatening. The appellant called Mr Banza when she got home, and he said not to worry and the matter would go to a tribunal.
9. On 30th October 2006 the appellant went to work as normal. After work she took a taxi home, and sensed that a car was following her taxi. She got out of taxi, and was kidnapped by four men in a Peugeot car with blacked out windows. She was hand-cuffed and blindfolded and taken straight to a detention centre, which she understood was Camp Tshatshi, a political prisoner camp. She was told she would be held there until "they made their decision", and understood she was likely to be killed.
10. She was held in a cell with no light. There were about six to eight women in the cell, and no toilet. The appellant was severely beaten and not given food or water whilst in the cell. She was held in the cell for a number of days and became disorientated. Whilst there the appellant was taken with another women to another cell and raped by two soldiers. She finds it difficult to recall what happened to her in Camp Tshatshi because she was tortured, and it brings back "bad memories". Whilst she was in the cell, a guard asked her if she was related to a man who worked as a guard to the colonel who had the same name as her. She said he was her cousin. Her cousin came to see her in the cell but said he could not help her except may be to get her moved to another camp or get her seen by the doctor at the surgery. With persuasion from the cousin the leader of the guards agreed to let the appellant go to the doctor's surgery.
11. At the medical facility the appellant waited to see the doctor. Whilst she was waiting the guards came and went, going outside to smoke. At 5pm the appellant saw a group of women, and one gave her a piece of material (a pajne) to cover herself as she was shaking with cold. The women were leaving the surgery so the appellant made the decision to join them when her guards were not there. She then went around the back of the surgery and climbed over a concrete wall taller than herself; fled over a piece of land used as a shooting range in the day; and escaped from the detention centre. She was in a poor medical condition, but she managed to do this despite feeling extremely unwell and weak.
12. The appellant escaped from camp Tshatshi on 5th November 2006. She saw a Catholic church, St Cyprien, and claimed refuge there for two days. She then made contact with Mr Banza, who took her to a medical facility where she remained for two weeks receiving treatment for the beatings, rape and stitches to her face and foot, which she had hurt getting over the wall. Mr Sabin Banza has provided a letter dated December 2006 regarding what happened to the appellant which is based on the account she gave to him and which he wrote down at this point. It is for this reason his account is so precisely similar to her own, and contains things that only she observed first hand. The letter from Mr Banza was sent to the appellant by the League of Voters when she was in Belfast. After her escape from camp Tshatshi her house was raided and one of her son's was beaten. The authorities left a "wanted notice", to say they were looking for the appellant. At this point the appellant's sister took the appellant's children, and also the appellant's documents (including her passport) to her house.
13. The appellant went to stay with a cousin in Kingasani to await the outcome of the elections. During this period the appellant was very careful about her movements, and remained in hiding from the authorities. The appellant did not return to work. The appellant was called one day in January 2007 on her mobile phone whilst out of her cousin's home and told not to come home as the authorities were looking for her.
14. The appellant went to stay with a friend in Kingasani, and called Mr Banza for help leaving the DRC as she was unsafe to remain. Mr Banza collected the appellant's passport from her sister and found an agent. The appellant provided Mr Banza with $5000 to pay the agent.
15. On 4th January 2007 the appellant left the DRC on her own passport with a valid visa but with the assistance of an agent to go through immigration controls. The agent used bribery and corruption to allow the appellant through immigration control. She was able to get straight on the plane without having her passport checked. She flew to Ethiopia, spent the night there, and then boarded another plane and arrived in the UK on 5th January 2007. A friend of Mr Banza's ([A]) met the appellant at Heathrow, she stayed one night in a hostel, then a week with a lady from the DRC and then in other places for a period of two months.
16. In the UK she was advised by the friend of Mr Banza in London that she could not claim asylum as she had visa for the UK. So the appellant paid him to provide her with a false Belgian identity document and a ticket to the Republic of Ireland, and she travelled intending to claim asylum there. She remained in touch with [A] for a while, and he told her Mr Banza had died, but she has since lost his number.
17. On 24th March 2007 the appellant arrived in Belfast airport and was arrested for having a false instrument: she formally claimed asylum on 25th March 2007. She was very distressed, and attempted suicide with a bed sheet in police custody. She was sentenced to a term of imprisonment for travelling on a false document. She remained in Belfast for two and a half years. She told her lawyer she had been raped, and he told the Home Office. She had therapy with Lorna Kavanagh at the Family Trauma Centre. The appellant returned to London as she needed more help than was available in Belfast. The appellant made contact with Daniel at the Notre Dame Refugee Centre. The Notre Dame Refugee Centre dealt with the appellant's case for a while as her solicitor in Belfast left the country. She went to Birmingham in 2009, and was sent to Scotland in 2010. She told her lawyer in Scotland she had been sexually abused in custody but he said she had to speak to a specialist organisation about this, and she was referred by Daniel to the Medical Foundation.
18. The appellant's asylum interview took place on 24th June 2010. She found this very traumatic and there were issues with the interpreter who was Spanish although she spoke in French. At points in the interview record it says "silence" which was because the appellant was crying. The appellant found it difficult to explain her history to the male interviewer. She obtained some of her documentary evidence after this interview as her lawyer explained to her at this stage it was important to do this, although the letter from Sabin Banza had been sent to her in the UK in 2008. The letter from Sabin Banza contained information from the appellant because she reported to the organisation and to him after she was detained and told him what had happened to her.
19. The appellant believes she will be arrested and killed by those loyal to Joseph Kabila if she is returned to the DRC. She has received, and provided to the Home Office, the wanted notice served on her family. Francis Kalombo is still in power in the DRC. Further her leader, Mr Banza, has died in suspicious circumstances, and the former leader [N] is a refugee in Belgium. Those who stand up against government in the DRC are still killed, and women are still abused. The appellant speaks to her sister in Kinshasa about once a month, and has also spoken to her oldest child since leaving the DRC. She does not want to create problems for them by contacting them too often.
20. The appellant does not claim asylum on the basis of her medical problems, but submits medical evidence from her GP, from a consultant psychiatrist (Dr Hajioff) and from Ms Barbara Gehrells, Notre Dame Refugee Centre counsellor, in support of her claim. This evidence shows that she suffers from post traumatic stress disorder. The evidence also shows that the appellant receives medication to treat diabetes, HIV and is on antidepressant medication. She was very shocked by her HIV diagnosis. It came about because she felt unwell, collapsed at her GP surgery in 2010 after receiving her asylum refusal and was taken to hospital when she was diagnosed with TB and HIV. The appellant is an educated woman who knows to use a condom if she has sex, and therefore believes she contracted HIV because of being raped. It will be an additional problem to return to Congo with HIV as she would not be able to live secretly in hiding trying to escape her political persecutors and receive treatment for HIV.
21. The appellant has also integrated herself into the community in the UK. She has been a member of various churches in the UK, she has worked whilst she had work permission and studied. She has provided evidence of this, along with letters from friends and a petition supporting her being able to remain in the UK.
22. The appellant is also a member of two DRC political organisations in the UK, namely Apareco and Congo Support, which she joined in 2010 and 2009 respectively. She joined these organisations out of a genuine belief in changing DRC politics. She believes that the DRC authorities will be aware of these activities, particularly as her photo can be seen on the internet and as the DRC is known to use spies to watch UK political meetings and demonstrations. The appellant has supplied letters from these two organisations.
23. In cross-examination the appellant added the following. She said she had originally planned to visit the UK to see a friend. She knew she needed to be a married woman to get a visa. She had got other visas to travel whilst she had been living with her husband. Her original plan was to return to the DRC to her home, good life and job there. The wanted notice document had come to her in the UK via DHL. It had been sent by Mr Banza as proof for her case. She had shown it to her original solicitors - Hamilton - but they had not sent it to the Home Office, or put it in evidence to the Tribunal before the first Immigration Judge. The document was then shown to the second solicitor - Fadiga & Co - who sent it to the Home Office. She was unaware of any complaint about the first solicitor. The appellant speaks occasionally to her sister who cares for her children. She does not know much about how they survive, or whether her children are in school. She knows that her sister studied but is not able to find a job. When she was in the DRC her children went to school as she paid for their tuition. They had a good life at that time. The appellant does not like to ask her sister about their difficulties as she cannot offer any support. The appellant does not currently work as she has no work permission, and because she is too depressed. She is more stressed now than in the past when she worked.
24. Ms Barbara Gehrels attended the Tribunal and gave evidence for the appellant. She confirmed her name and her work address at the Notre Dame Refugee Centre. She confirmed that she adopts her three letters submitted in support of the appellant as her evidence. In these documents she sets out her full curriculum vitae which shows she holds an advanced diploma in therapeutic counselling. She has worked for the Notre Dame Refugee Centre since February 2007. In her letters she sets out also that she is fluent in French and Swahili, and has lived and worked in Kenya. The appellant has presented to her as an asylum seeker from the DRC who is deeply traumatised with typical symptoms of post-traumatic stress disorder (numbness, paranoia, chronic headaches, lack of concentration, hyper-arousal, high anxiety, nightmares, and insomnia). In 2009 the appellant provided a history of persecution and ill-treatment in the DRC including imprisonment and rape. She was initially reluctant to speak of her experiences in prison because she felt they were shameful because of the enormous stigma attached to rape victims in the DRC. The appellant still finds it painful to speak about the rapes. In Ms Gehrels' opinion the appellant is extremely depressed and vulnerable with frequent suicidal thoughts. She confirms that after being homeless and sleeping rough she was hospitalised in December 2010 and tested positive for TB and HIV. The prolonged uncertainty over her legal status has made the appellant more insecure and vulnerable. In September 2013 Ms Gehrels re-assessed the appellant and found her to be still suffering from acute and chronic PTSD. She still assesses the appellant as highly vulnerable. The counselling sessions she provides to the appellant are to help her cope with the symptoms of trauma, and her depression and anxiety. She cannot hope to recover from the trauma of her rape and violence whilst her immigration status is insecure. Being street homeless in 2009, attending Tribunal hearings, and the appellant's physical ill-health have all had a large and negative impact on the appellant's mental health.
25. In cross-examination Ms Gehrels explained that her diagnosis of PTSD for the appellant was formed on the basis of her own work but also on the basis of other medical evidence, for instance from Freedom from Torture (formerly the Medical Foundation). Ms Gehrels explained that she works in a drop-in environment so has referred the appellant for in-depth counselling with other organisations such as Freedom from Torture and a rape counselling centre in Kentish town. She sees her role as containing the situation and helping the appellant to cope. She explained that she does make a credibility assessment of clients. She looked at how clients presented in the sense of non-verbal signs of trauma such as confusion, discomfort, chronic aches and pains. She believed as a trained, listening therapist that it would become apparent if a client was not genuine. If there was dissonance she would challenge the client and explore the issue. It was her job to question any gaps in the history provided to see if the client was credible, and to challenge anything inconsistent and incongruent. She said that she accepted that the appellant's separation from her home country and children, her detention in the UK, her homelessness in the UK and diagnosis of TB and HIV had all made, and continue to make, recover extremely difficult for her, but she did not believe that these things were the initial trigger for her PTSD. She felt there was strong medical evidence supporting the appellant's rape and detention in the DRC.
26. Ms Gehrels explained that she had not read the 2010 determination but she had attended the hearing in 2012, and she had read that determination which summarised the 2010 findings. She had attended all the appellant's hearings since 2012. She had also attended hearings with other clients. She said there was a lot of psychological literature and studies, for instance one produced by Kings College, that showed that it was difficult for rape clients to be accurate in their evidence after trauma. Giving evidence was difficult because people shut down when reminded of their experiences; were intimidated; and because of the stigma and shame attached to being a rape victim especially for those from Africa.
27. In re-examination Ms Gehrels said that changing country could be traumatic but being in prison and experiencing torture produced a different level of symptoms. In her opinion there was significant medical evidence which showed this appellant had been raped. She had read the Women Against Rape report regarding the appellant, and seen that of Dr Hajioff at the 2012 hearing.
Submissions
28. Ms Everett submitted that she relied upon the refusal letter of 24th May 2012, and also on the asylum reasoning in the 21st July 2010 letter and the 23rd August 2010 determination of Judge Wallace.
29. The letter of 24th May 2012 sets out that Judge Wallace had not believed the appellant was detained and tortured. She had rejected the letter from Mr Banza because it was an identical account to that given by the appellant, and was thus "hearsay" evidence which could be given little evidential weight. Further the detention and escape of the appellant were not plausible because she had referred to financial constraints and information on the internet about the state of prisons in the DRC when asked to explain why prisoners were not given food and water; and because she was not able to describe the size of her cell or the number of people held within it; and because despite her ill-health she was able to climb over a wall and escape to a Catholic church. There was an inconsistency as to whether the women the appellant escaped with had been detained with her (see her witness statement) or whether she had not seen them previously (her interview). The fact that the appellant was able to go out to eat when she was living with her cousin indicated that she was not at risk whilst in the DRC. It was also considered implausible that the appellant would be able to leave the DRC with her passport and would not claim asylum in the UK on arrival but use a false document to attempt to travel to the Republic of Ireland. The new documents supplied with the fresh claim were viewed in the round in accordance with Tanveer Ahmed [2002] UKIAT 00439, and must be seen in the context of the credibility findings against the appellant in the determination of Judge Wallace, in accordance with Devaseelan [2002] UKIAT 000702. As Judge Wallace had rejected the validity of the letter from Mr Banza then it was held that the new documents did not advance the appellant's claim. The appellant was not at risk as a result of her sur place activities because it was not accepted that she had any history of political engagement in the DRC.
30. It was accepted that the appellant had private life in the UK but found that her removal would be proportionate to the legitimate aim particularly as she had established her private life without leave to remain whilst pursuing her asylum claim. The evidence of Ms Gehrels regarding the appellant's medical issues should not be given any weight as she had not followed the Istanbul protocol.
31. The refusal letter of 21st July 2010 set out that it was accepted that the appellant was a national of the DRC as claimed. It was also accepted that she had correctly named the vice-president Mr Sabin Banza and the president [N] of the League of Voters. It was also correct that the League of Voters was involved with monitoring elections in 2006 in the DRC. It was considered detrimental to the appellant's claim that she had only submitted her membership card and a letter from Mr Banza after her asylum interview in 2010 despite having claimed asylum in 2007, despite the appellant having been represented in this time. The letter from Mr Banza was not considered plausible because it was too similar to the appellant's account in her asylum interview, and contained information that he would not be privy to such as the make of car in which the appellant was abducted. Further there was no evidence that drinking water was not given to prisoners in the DRC. The appellant had not been able to describe Camp Tshatshi, except for knowing the commune in which it was situated despite having escaped from it. It was not a good enough reason for not being able to describe the cell simply to say it was dark. It was also inconsistent that the appellant would be offered medical care, but starved of food and water whilst in detention.
32. No medical evidence had been provided to corroborate mistreatment or explain why the appellant could not describe her torture in detention. It was not plausible that the appellant had managed to escape from detention in the way she described with a number of women she had just met. It was not plausible that the appellant was able to escape as she described after a five day period with no food or drink. Further the appellant stayed for two months in Kinshasa after her escape before travelling to the UK, which indicates that she was not at risk particularly as she went out. Further the appellant's account of the use of her agent was muddled and unclear. The appellant's claim was damaged in accordance with s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as the appellant did not claim asylum on arrival, and did not claim until after she had been arrested suing a false identity. The appellant had supplied no evidence that her NGO had given her the wrong advice about claiming asylum in the UK. As the appellant's account was not considered credible or coherent little weight was given to the documents.
33. It was not believed the appellant had been an election monitor for the League of Voters, but even if she had been this would not have put her at risk. If the appellant had been a monitor it is plausible that she would have witnessed fraud as there were many reports of this taking place. Even if the appellant's history was believed it was not accepted that she would remain at risk after more than three years. The appellant could have got evidence of any current risk to her through Mr Banza or her family as she was in contact with them, and had failed to do so.
34. Ms Everett submitted that the key issue in this case was credibility. If the appellant was found to be credible then she accepted that she was a refugee. She argued however that the appellant was not to be seen as credible. She relied upon the OGN regarding risk, and said that the appellant was not at risk if returned simply as an asylum seeker. The fact that removals had been suspended until 2014 due to litigation did not mean that asylum seekers were at risk simply as failed asylum seekers if removed.
35. Ms Everett submitted that no weight should be given to Dr Hajioff's report because he had failed to deal with the issues of credibility raised in Judge Wallace's determination or to look for other causes even though he had received the determination of Judge Wallace. She accepted that the evidence of Ms Gehrels should be given greater weight as she had described her methods of assessing the credibility of what she was being told. Ms Everett said that the wanted notice should not be given weight as there was no evidence it had been shown to the first solicitors. This should not been seen like the issue of rape where there could be good reasons why an appellant might not tell her solicitors straight away. Further the appellant could have mentioned it herself at the interview. Ms Everett submitted that putting forward a wanted notice which is not genuine seriously damages the appellant's credibility. Ms Everett submitted that it should also be noted that the appellant had lied to get a visit visa when she had no particular need to visit the UK.
36. Regarding Article 8 ECHR Ms Everett submitted that the appellant had family in the DRC and so would be cared for if she went back there and had lived the majority of her life in that country.
37. Ms Poynor relied upon the three skeleton arguments submitted to date in the case, and also on her own note on issues and evidence. She accepted that in accordance with Devaseelan the determination of Judge Wallace remained of relevance. The appellant's claim was that she was at real risk of persecution if returned to the DRC on three grounds: as a failed asylum seeker; because of her actual and imputed political opinions and because she is a victim of rape. To return her would thus be a breach of the Refugee Convention and Article 3 of the ECHR. In addition it would be a breach of Article 8 ECHR to return her due to her private life in the UK and on the basis of her medical and psychiatric condition, particularly given the stigma and discrimination she would suffer as an HIV positive victim of rape.
38. The appellant had submitted evidence that she was politically active in the DRC and in DRC politics in the UK as follows: letter from League of Voters dated 19.12.2006, membership card of League of Voters dated 2003, Congolese Support Group membership card, letters from Congolese support group dated 1.12.10 & 29.5.13, photos of the appellant campaigning in the UK, appellant's DRC election observer card, DRC wanted notice from the Ministry of Defence, letter from the Committee Human Rights Now in DRC dated 15.11.2010, letter from Apareco UK dated 25.2.2011 and ID card.
39. The wanted notice shows she remains of interest to the authorities. There is objective evidence of the risk to returned DRC asylum seekers, see report of Justice First (UK), Unsafe Return: Refoulement of Congolese Asylum Seekers 24.11.2011, which looks at risk to those involved with Apareco; and also in the current High Court litigation that has led to there being a stop on all removals to the DRC. Her fresh claim relies upon sur place activities which also indicate that the appellant would be likely to continue to engage in such political activity in the DRC and so would be at risk, in accordance with HJ (Iran)v SSHD [2010] UKSC 31.
40. The appellant has submitted substantial evidence of her medical condition from Women Against Rape (4.7.12 & 3.6.13), Notre Dame Refugee Centre (6.8.09, 5.8.10, 9.2.11, 20.3.12, 13.6.12, 17.1.13 & 9.13), Medical Foundation (4 letters), Dr Hajioff (4.7.12), Dr Reid (8.6.12), Dr Cooke (3.7.12 & 31.1.13), Wharfside Clinic (2012), Student counsellor (14.6.12) and other medical letters and records.
41. The evidence of Dr Hajioff is that the appellant has scars which are consistent with her account of her ill-treatment in detention. His evidence cannot just be dismissed for taking the appellant's evidence at face value, see AM, R (on the application of) v SSHD [2012] EWCA Civ 521. This is particularly the case given the evidence that many women do not admit to rape because of stigma and shame. He was also supplied with a copy of the determination of Judge Wallace. The evidence of Ms Gehrels was based on four years of contact with the appellant, and was clearly also from a witness who took a critical approach.
42. It is submitted that the appellant would not have access to treatment to healthcare for her HIV and trauma if returned to the DRC. This is consistent with the information in the USAID HIV/AIDS Country Profile for the DRC dated September 2010.
43. In the light of the medical evidence the appellant should be treated as a vulnerable witness, in accordance with the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance. In particular paragraph 10.3 on assessing evidence was of relevance and should be considered in relation to late disclosure, inconsistency and discrepancies. Someone with mental health problems is defined as vulnerable, and it is specifically noted that PTSD can make someone vulnerable.
44. If it is accepted that the appellant was raped in the DRC then it must be considered as to whether the are good reasons that it will not be repeated, in accordance with paragraph 339K of the Immigration Rules.
45. It is submitted that if it accepted that the appellant was raped in the DRC this forms a particular social group as in Re B; R v Special Adjudicator ex p Hoxha [2005] 1 WLR 1063, Baroness Hale had identified that women who had been subject to sexual violence used as a military strategy to humiliate their community and who were ostracised by that community could in principle be recognised as refugees.
46. There is evidence of the appellant's private life in the UK: see letter of Jane Gleaves, letters from Rev Leston Blackburn and letters from Sr. Oonah Harahan and Fr. Stephen McBrearty and the petition from the appellant's church with 226 signatures.
47. In oral submissions Ms Poynor added that the appellant had claimed asylum on the day of her arrest, the 24th March 2007. At this interview she had also said she had private health problems and refused to say how they were caused, and clearly had medications with her. Judge Wallace had seemingly not understood that there was an EB Kosovo [2008] UKHL 41 point because the respondent had delayed more than three years before interviewing the appellant substantively (on 24th June 2010) and processing her claim. At the appellant's full asylum interview she had referred to being torture in detention at questions 79, 94 and 95 but had simply been unable to answer when asked for details - hence the silence - see questions 75 and 143.
48. At the end of the hearing I reserved my determination.
Conclusions
49. The parties both agree that if the appellant's history is true then she qualifies for refugee status. The key matter to be determined is whether the appellant's history is credible.
50. My starting point in deciding the issue of credibility must be the determination of Judge Wallace promulgated on 6th September 2010, in accordance with Devaseelan. Judge Wallace finds that the appellant could have worked for the League of Voters and also that she could have witnessed bribery in the elections, but finds the rest of her account not to be credible. She does not find the letter of Mr Banza as further evidence of the appellant's claim because it is hearsay: he simply repeats what the appellant told him. Her account of detention and escape is implausible. It was implausible to say that food and water were denied in prisons in the DRC due to financial constraints; the appellant managed to escape from prison despite her poor health and being under guard; she was inconsistent about who the women were that she left the prison with; she was able to go out when leaving with her cousin whilst she was wanted in the DRC; she was inconsistent about the agent who brought her to the UK and whether they travelled together.
51. In accordance with s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 I must also find that the appellant's credibility is damaged by the fact that she did not claim asylum on arrival, and that she did not claim until after she had been arrested for using a false identity. Ultimately whether the appellant is found credible is a matter to be assessed in the round however. I also note that the appellant did say that her husband was still alive when making a visa application prior to her difficulties in the DRC, and thus has accepted that she has told untruthful facts to the immigration authorities.
52. Since the determination of Judge Wallace a substantial amount of additional evidence has been presented in support of the appellant's asylum claim. The appellant has supplied medical evidence regarding her rape and ill-treatment, and post-traumatic stress disorder. She has supplied a wanted notice from the DRC, a letter from the Committee Human Rights Now in the DRC and evidence of her UK political activities with the Congolese Support Group and Apareco UK. She has also provided a more extensive witness statement. I must consider all of this evidence in the round with the findings of Judge Wallace and the negative s.8 finding.
53. I will start with the medical evidence as if this is accepted then it follows that the appellant is a vulnerable witness on account of being a rape victim with mental health problems including post-traumatic stress disorder, and that I must assess her evidence generally in accordance with the Joint Presidential Guidance Note 2.
54. I find that the appellant has produced medical evidence which satisfies me that she is a victim of rape, and suffers from post-traumatic stress disorder as a result. I come to this finding primarily on the basis of the written and oral evidence of Ms Barbara Gehrels. This evidence was not available to Judge Wallace. Ms Gehrels has seen the appellant regularly over the past four years. She has been provided with a consistent account by the appellant which has stood up to her critical assessment, and which has been found over this period of time to have been resonant with non-verbal signs of trauma. Ms Gehrels has read and considered the opinion of Judge Wallace that the appellant was not presenting a truthful account (set out in the subsequent determination of Judge Balmain) but found that it did not accord with the evidence before her from her own work with the appellant. She has also placed reliance upon the very detailed reports of Women Against Rape (who also diagnose the appellant as being a rape survivor, suffering from post-traumatic stress disorder and depression), and has referred the appellant to the Medical Foundation / Freedom from Torture for in-depth group therapy. Ms Gehrels has also considered whether the appellant's condition could have been caused by the other stresses in her life: her exile from her home country, her separation from her children, her homelessness in the UK, her insecure immigration status and her physical ill-health. She concludes that these are significant factors which inhibit the appellant's recovery but that they could not have caused the depth of trauma that she has identified in the appellant.
55. The evidence of Ms Gehrels is also supported by other evidence. Prior to her asylum interview, and soon after she arrived in the UK, the appellant disclosed she had been victim of rape and torture to her first solicitors in Belfast, P Drinan Solicitor and they wrote to the Asylum Support section of the Home Office about this and to the Legal Services Commission in 2007. In 2008, whilst still in Belfast awaiting interview and progressing of her asylum claim , the appellant approached Women Against Rape for assistance after she heard a talk they gave at refugee week, and she has attended their rape victims self help therapy group since February 2011. She also sought medical help from the Medical Foundation and the Notre Dame Refugee Centre for rape trauma in 2009 prior to being interviewed substantively about her asylum claim.
56. Further I find that the responses the appellant gave when the issue of her torture was raised in her interviews to be typical of a person suffering from the shame of rape and sexual abuse, and who therefore found it difficult to give a description either at all - hence the silent crying responses - or limited "they tortured me" type responses when the issue was raised in the asylum interview. I also note that the appellant is on anti-depressant medication from her GP, Dr Philip Reid. In addition Dr Hajioff provides an evaluation of three scars on the appellant's body which he finds consistent (in accordance with the Istanbul Protocol) with the appellant's history of beatings and injury whilst escaping over the wall.
57. The appellant's claim should be put into the context of the country of origin materials which indicate that women face extremely high levels of domestic violence including rape, and that reports that the security forces continue to use torture, see for instance UK Foreign and Commonwealth Office, Human Rights and Democracy: The 2012 FCO Report: Democratic Republic of Congo. There is also the fact of the appellant's HIV infection. This was not diagnosed at the time of hearing before Judge Wallace. The appellant was diagnosed in the UK in December 2010 (confirmed by medical letters and notes in the appellant's bundle), which the appellant says must have been caused by her rapes, and clearly would have been a risk of forced unprotected sexual abuse in the DRC where there is a very high rate of infection - the DRC being in the 20 nations with the highest percentage of HIV/AIDS cases. (see Voice of America News: Flawed Distribution Impedes HIV/AIDS Treatment in DRC 10th July 2012).
58. Considering all of the evidence, I find that the appellant is a vulnerable witness as a victim of rape who suffers from post-traumatic stress disorder. I am therefore to view issues in the appellant's evidence with respect to late disclosure, inconsistency and discrepancies with care as these may be a reflection of her mental state, and not reflective of any attempt to mislead the Tribunal or a lack of credibility on her part. I find this of particular relevance to the appellant's initial reluctance to remember and describe the dark cell where she was housed at the time of her rape, and to issues of how long she might have been held there in this disorientating environment without food and water - the fact that food and water were not supplied being something that ultimately was found by Judge Wallace to be supported by the country of origin material.
59. I also find that the appellant has coherently explained how she was taken to the medical unit at the detention centre with the influence of her cousin who was working with the military. I note the case of MM (plausibility) (DRC) [2005] UKIAT 00019 which, in a discussion of the use of the word, offers the following guidance: "A story may be implausible and yet may properly be taken as credible; it may be plausible and yet properly not believed." Alone, the assessment that the appellant's account was implausible cannot suffice to find the appellant not to be credible. I find that it is in no way incredible or implausible that the appellant was able to escape her guards mixing in with a group of women would were legitimately leaving the detention centre (who exactly they were and why they were leaving the appellant is quite naturally unclear about) whilst her guards were smoking outside; nor that despite her ill-treatment she summoned the strength to climb over a wall and run across a piece of land used as a firing range. Prior to her detention of a few days she had been a well nourished, healthy and able woman. I also note that the appellant's claim that she used an agent to bribe officials so she did not pass through immigration control at the airport to escape from the DRC is consistent with the country of origin evidence that corruption is rife in that country, for instance at paragraph 2.3.2 of the OGN dated 10th May 2012 the security forces are described as: "undisciplined, corrupt, lacked training, were grossly underfunded and received little pay."
60. The respondent has questioned the value of the supporting evidence the appellant has produced in respect of her political activities in the DRC on the basis of its late production and on the basis that the letter from Sabin Banza was hearsay evidence, telling the appellant's account and not being a first hand account. The appellant says that she sent in her documentary evidence after her interview because she was not advised to do anything prior to her interview, and that only certain pieces of evidence were selected by her representative at the time of her interview, Hamilton Burns Solicitors, and they did not select the wanted notice.
61. I cannot understand the criticism of the Sabin Banza letter dated 19th December 2006 made by the respondent, which is repeated by Judge Wallace. It was never the appellant's case that Mr Banza witnessed any of the abuse she suffered: his letter has to be based on what the appellant told him. Naturally his account would be the same as the appellant's as this is his only source of information. Judge Wallace found that it was quite possible that the appellant was a member of the League of Voters and had been involved with election monitoring. She would seem therefore to have accepted, on the lower standard of proof applicable, that the membership card and observer cards were genuine documents reflecting these activities. No particular challenge or criticism is made to the documents relating to the appellant's membership or activities with the League of Voters by either the respondent or Judge Wallace. It is agreed by the respondent that Mr Banza was the vice president of the League of Voters at that time; and none of the documents is said to be in a wrong format or be otherwise doubtful in form.
62. I do not accept the respondent's argument that the documents are to be seen as doubtful for not having been produced prior to the appellant's asylum interview. They had not requested the documentation, and she had not been advised to send it by any solicitor and no solicitor had made representations. Documents are routinely requested and submitted at this point in the asylum process. The wanted notice was not submitted until the fresh claim was made. Ms Everett has said that I should view this document with doubt because the appellant could and would have submitted it earlier if it truly had existed. The appellant says this document was not disclosed because her Scottish solicitors, Hamilton Burns, did not "choose" that document for translation and submission. In support of this is the fact that these same solicitors clearly did not choose to disclose evidence of the appellant being a victim of rape, which there is clear evidence existed at that time and when any reasonable representative would have known that it would support the appellant's asylum claim. I also note that the wanted notice does correspond to a visit to her home by the security forces at which such a piece of paper was served, which she described as having taken place in her asylum interview. For these reasons I am satisfied that the appellant had produced this document to Hamilton Burns in connection with her first asylum claim as she claims, but that they chose not to submit it to the respondent at that time.
63. The DRC documentation must also be seen in the context of the appellant having shown herself to be a committed political activist in anti-Kabila politics in the UK. Prior to her asylum interview, in 2009, she joined the Congo Support Group in London and started to participate in demonstrations. On 10th June 2010 she joined Apareco-UK, and has taken part in their activities. She has provided letters, membership cards and photographs of herself on demonstrations and at meetings in support of this. This material was not available to Judge Wallace.
64. In the light of the medical evidence; the consistency of the appellant's history with the country of origin material(including that set out below in my analysis of risk on return); the consistency of the core history she has presented; the documents from the DRC which supports her claim of involvement with the League of Voters, election monitoring and her history of being detained and abused, and being wanted, as well as the appellant's on-going political activities supported by documentation I come to a different conclusion to that of Judge Wallace. I find that the appellant is a credible witness, who has shown that she has been persecuted in the DRC for her political opinions. In this respect I note what is said in paragraph 339K of the Immigration Rules, HC 395, as amended:
"The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."
65. I note that Ms Everett conceded for the respondent that it was accepted if the appellant was credible that she had a well founded fear of future persecution. The Operational Guidance Notes: DRC May 2012 and the DRC Country Policy Bulletin November 2012 accepts that there are incidents of politically motivated detention, ill-treatment and killings of opponents of the Kabila regime in the DRC. There are on-going complaints of severe election irregularities by international organisations, and Congolese civil society and human rights organisations. It also records that members of NGOs may be at risk; and that the state force detain, beat and intimidate NGO workers, with cases of death threats and killings of activists. I note that this appellant is a committed political person, and has continued her political work in the UK and would, at least but for any fear of persecution, continue it if returned to the DRC, HJ(Iran). In accordance with AB and DM (Risk categories reviewed, Tutsis added) DRC CG [2005] UKIAT 00118 being a political opponent to the government may found an asylum claim but it must be assessed on the basis of the individual profile. In the light of the wanted notice, and the background country information I am satisfied that there is no good reason to believe that persecution or serious harm will not be repeated with respect to this appellant. This is a case of state persecution, and I am satisfied that there is no sufficiency of protection or actors of protection in the DRC for the appellant.
66. The respondent has not suggested that the appellant could relocate safely internally, and I find that there is no evidence she could do so. I note that the Operational Guidance Note finds under the internal relocation section at 2.4.6 that: "The significant risk of rape by soldiers and non-governmental armed entities, couple with government inability to secure eastern territories, effectively restricted freedom of movement by women in many rural areas, particularly in the east of the country." In addition relocation is made difficult and unsafe by the lack of a reliable public transportation system even in Kinshasa, and state security placing arbitrary checkpoints. Further I find such internal relocation would be unduly harsh, considering that all of the appellant's family live in Kinshasa and its environs where she would be unsafe, and given her HIV diagnosis and her severe post-traumatic stress disorder for which she would need their support and care.
67. On consideration of all the evidence I find that the appellant has a well founded fear of persecution for reason of her political opinions if returned to the DRC and is thus entitled to refugee status, and for the same reasons is also at real risk of torture, inhuman and degrading treatment if returned there and thus that her return would breach Article 3 ECHR.
68. As I have found that the appellant is a refugee, and cannot be removed due to the protection of Article 3 ECHR I will deal with Article 8 ECHR very briefly. I find that the appellant has an extensive private life in the UK (which includes her friends from church, politics and her relationships with her counsellors, particularly Ms Gehrels and Ms Sian Evans from Women Against Rape), enhanced by the significant initial delays in processing her asylum claim by the respondent, and that it would be a disproportionate breach of her right to respect for moral and physical integrity to remove her from the UK for the reasons set out above. Further in the light of the real risk of persecution which would make any family and private life in the DRC impossible I find that removal would also amount to a disproportionate interference with her private life in the UK.
Decision
69. The decision of the First-tier Tribunal involved the making of an error on a point of law.
70. The decision of the First-tier Tribunal is set aside.
71. The decision re-made allowing the asylum appeal and the human rights appeal.
Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008) and consequently, this determination identifies the appellant by initials only.

Fee Award

There can be no fee award as no fee was paid or payable.

Deputy Upper Tribunal Judge Lindsley
25th September 2013

Annex A:
DECISION AND DIRECTIONS

1. The appellant is a national of the DRC. Her original asylum claim was refused and then dismissed on appeal by an immigration judge on 6 September 2010 who made adverse credibility findings. Following further representations the respondent eventually decided to accept these as a fresh claim, but rejected them on 16 May 2012. The appellant appealed raising asylum and human rights grounds. In a determination sent on July 2012 First-tier Tribunal Judge Balmain dismissed his appeal on Article 3 and 8 grounds. The judge considered further documentary and oral evidence but decided that these did not cast any doubt on the adverse credibility findings of the first judge. The new evidence before the second judge included the claim that when in the DRC the appellant had been detained and raped twice whilst in detention.

2. I am grateful to both representatives for their careful and full submissions.

3. Having heard these I have decided that the FtT judge materially erred in law. The principal difficulty arises from what she said at para 56 whose text I shall set out in full.

"The appellant's evidence regarding her rape while in detention and the evidence of scars on her body was not before the judge who heard her asylum claim, nor referred to in her Home Office interviews. Whilst there is no specific evidence from her as to why she did not mention the rape or the scarring before, I accept that many women do not admit to having been raped because of the shame and the associated stigma. Background country evidence contained in the reports before me confirm that rape is endemic in the DRC. It is therefore plausible that the appellant could have been subjected to rape prior to her departure but given her inconsistent evidence in relation to other matters I have referred to above, I am not satisfied that even if she were raped it was while in detention as she described, nor do I accept, for reasons I shall deal with later, that the recent diagnosis of Post Traumatic Stress Disorder or indeed the existence of scars on her body would lead me to reach a decision with regard to the core of her claim which differs from that of the judge who heard her first appeal."

4. From this and subsequent paragraphs it is clear that the judge was prepared to accept that the appellant had been a victim of rape in the DRC. That being the case, it was incumbent on the judge to consider the potential impact of Joint Presidential Guidance Note No 2 of 2012: Child, vulnerable adult and sensitive appellant guidance" and the section dealing with "Assessing evidence". In this Note judges are enjoined when assessing evidence to be aware that "the order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability and "[c]omprehension of questioning may have been impaired. At para 14 it is stated:

"Consider the evidence, allowing for possible different degrees of understanding by witnesses and appellant compared to those who are not vulnerable, in the context of evidence from others associated with the appellant and the background evidence before you. Where there are clear discrepancies in the oral evidence, consider the extent to which the age, vulnerability or sensitivity or the witness was an element of that discrepancy or lack of clarity.

The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable, or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or human rights case to the relevant standard of proof ..."

5. There is nothing to indicate that the judge bore this guidance in mind. In particular there is nothing to indicate that when reviewing the findings of fact made by the previous judge, Judge Balmain asked herself the question "Would the judge's findings of material inconsistencies have been different if he had known she had been a rape victim?"

6. There is a further reason which reinforces my view that I should set this decision aside. Unusually in my experience the respondent sought when accepting the appellant's further representations as a fresh claim (and then issuing a fresh refusal) to restrict the grounds of appeal as being "limited though to Article 3 (Medical) and Article 8 grounds". Absent any decision to certify the claim, that was not something that was within the power of the respondent to do. Whilst Judge Balmain appears to a considerable extent to have properly disregarded the respondent's apparent attempt to restrict grounds to ill-health grounds arising under Articles 3 and 8 (clearly the judge considered whether the decision would pose a real risk of ill-treatment to the appellant on the basis of her claimed past ill-treatment and also her sur place political profile), it remains that she did not address the asylum grounds of appeal which were before her and which she was required by s.84 of the Nationality, Immigration and Asylum Act 2002 to consider. There is nothing therefore to refute the impression that the judge (wrongly) saw herself as dealing with an appeal which she records at para 2 as being one which the respondent had "rejected with a limited right of appeal".

7. In light of the above I set aside the decision of the FtT.

8. Whilst in view of the above it is unnecessary for me to deal with the further grounds relied on, I would comment that I do not consider in isolation that the judge erred in law in her consideration of the medical evidence. In line with the Court of Appeal judgment in AM [2012] EWCA Civ 521, she plainly considered that the medical report constituted independent evidence. She did not consider, however, that it was evidence that withstood analysis and she gave several reasons for this assessment, one of which related to the strong reliance placed by the doctor on the appellant's own account. I consider they were valid criticisms and indeed I would agree with Mr Jarvis that it is also doubtful whether the doctor engaged with the adverse credibility findings of the first judge, despite stating she had read the determination.

9. Plainly at the next hearing the medical evidence will continue to be relevant both as regards the asylum-related and Article 8 grounds. In relation to the evidence about the appellant's claim to have been raped in detention, it may become important for her representatives (i) to clarify when she first informed the respondent of this claim; (ii) why, if it was not until July 2012, she or those representing her had not informed the respondent sooner given that it would appear she had had assistance from a number of medical professionals from 2010 (if not earlier) onwards.

10. For the above reasons, the FtT judge materially erred in law. Her decision is set aside. The appeal is adjourned to be heard at a date to be fixed.

Signed Date

Upper Tribunal Judge Storey