[2004] UKIAT 308
- Case title: LK (Adjudicators: "anxious scrutiny" / public interest)
- Appellant name: LK
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Democratic Republic of Congo
- Judges: Mr J Freeman, Mr M J Griffiths, Ms V S Street
- Keywords Adjudicators: "anxious scrutiny" / public interest
The decision
KH
Heard at Field House
On 1 November 2004
LK (Adjudicators: “anxious scrutiny”- public interest) Democratic Republic
of Congo [2004] UKIAT 00308
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 01.11.2004
Issued: 25th November 2004
Before:
Mr JG Freeman (vice-president)
Mr M J Griffiths
Ms V S Street
Between
Secretary of State for the Home Department
appellant
and
respondent
Representation:
For the appellant: Mr D White
For the respondent: Mr J Bild, IAS (London)
DETERMINATION AND REASONS
This is an appeal by the Home Office in the case of a citizen of the Democratic Republic of Congo, whose appeal was allowed on both asylum and human rights grounds by an adjudicator, Mr D N Bowen, sitting at Birmingham on 30 May 2003. The adjudicator’s decision did not go out until 13 June; so it follows that the provisions of the 2002 Act by then applied, and (as the Court of Appeal made clear in CA [2004] EWCA 1165) the Home Office need to persuade us that there was an error of law on the part of the adjudicator, if we are to allow their appeal.
2. Regrettably, in far flung Birmingham, no presenting officer was available to help the adjudicator and this appears to us to be at the root of a number of things that went wrong. The relevant part of the adjudicator’s decision is as follows:
48. This appellant has a fear of the government because of her religious beliefs that she is a follower of the Bundi Dia Kongo this is a religious organisation which is seen to be a threat to the government and to which the government is opposed as is clearly outlined in the objective evidence which has been placed before me.
49. There was a religious festival which took place on 20 July 2002 which is well reported in the objective material there is evidence of violent outbreaks and killings. The appellant claims that far more people died and has been recorded in the objective evidence.
50. The appellant was criticised in the reasoins for refusal letter for not having attended the celebrations, however she explained that she was required to stay at home to look after her infant siblings who could not be left alone to fend for themelves. She cannot be criticised for that.
51. I believe the account that this appellant has given of herself. It is clear that the objective evidence points to the fact that the public prosecutor views the supporters of the Bundu Dia Kongo as having publicly committed offences against the head of state in the Province of Bascongo sometime during the year 2002.
52. This appellant is as a returned asylum seeker to the DRC would clearly be interrogated at Kinshasa and I sure that it would easily come to light that she was a supporter of Bundu Dia Kongo, I suspect then that she would be detained and ill-treated and possibly tortured.
53. Even if I am wrong given the objective evidence in so far as it relates to young single females and having regard to the views of the Immigration Appeal Tribunal in Ramazani even if the appellant were to escape ill-treatment at the hands of the authorities I suspect that she would find that she had nothing in the DRC and in all probability would have to turn to prostitution.
54. I am satisfied be the appellant has fear of the authorities that the internal flight relocation is not a viable option in this application's case.
3. Mr Bild realistically concedes that the adjudicator’s reasoning at paragraph 53 cannot be supported and his decision on that point needed a good deal more investigation. No more need be said about that, and the appeal turns on what the adjudicator said at paragraph 52. The main piece of evidence that Mr Bild has pointed us to on the appeal comes from the report of a seminar organised by the UNHCR on 28 and 29 June 2002, which was compiled by one of their officials and one of Amnesty International's. The relevant passage appears at page 123 of the report,
Against this background it can no longer be said that only those deportees who are discovered by the authorities to have sought asylum abroad undergo interrogation sessions upon arrival at Kinshasa Airport. In fact reports from local human rights NGOs victims and eye witnesses show that groups of individuals who are deported having or not having sought asylum or repatriated voluntarily may face serious problems following possible interrogation conducted by security services upon arrival at Kinshasa. Should the authorities in Kinshasa discovered that a deportee has a political or military profile or has sought asylum abroad owing to a political or military background such person may be at risk of arbitrary detention and ill-treatment. People who are returned without any assurances that the government does not hold any grudge against them could be in serious trouble and get detained as prisoners of conscience or could even be at risk of the death penalty always depending on their activities.
4. The adjudicator accepted that this claimant was a member of the BDK: although there was no evidence that she had gone through the initiation procedures (described at some length in the CIPU Report at paragraphs 6.52 to 6.55), nothing turns on that, because Mr White’s point is that the authorities had no means of knowing that she was a BDK member. Mr Bild relies first on the fact that she was from a town with a substantial BDK membership and history of trouble with the authorities for that reason. The second point on which he relies is that this appellant's own father had been killed in a BDK disturbance there, on 20 July 2002, at the same demonstration as she did not attend, through having to baby-sit at home.
5. We accept that the claimant would no doubt have to give the details of her place of origin during the questioning described in the UNHCR Report we have read. There is nothing to link her with the disturbance of 20 July, except for being her father’s daughter. It is not a question of blaming her, or not, for staying at home baby-sitting: the question is whether the authorities would have any reason to elicit from her any information about her father having been killed during a BDK demonstration there. Mr Bild’s point is that this would be bound to come out during any questioning of a young single woman on return, in which the authorities might be expected to ask her about her family background. He accepts that there is no reasoning to that effect by the adjudicator; but he asks us to infer it as being reasonable.
6. We accept that, if there were a clear inference to be drawn that the process of questioning described in the UNHCR report would lead to the father's manner of death coming to light, then on the evidence before us that might possibly lead to some risk on return for this claimant. However, there was no investigation by the adjudicator who was, as we say, not helped by the absence of a presenting officer, as to what questions were likely to be asked of someone with no record herself of any hostile contact with the authorities at all; or how the answers the claimant would be obliged to give to such questions as she was likely to be asked would lead to the revelation of her father’s manner of death.
7. We think there should have been such an investigation. We have to say that, in the unfortunate absence of a presenting officer, the very experienced adjudicator on this occasion failed in the duty of what, in rather old-fashioned language, has been called “anxious scrutiny”. That is just as important in the interests of the public as in those of the claimant, especially where the organization appointed to represent those interests has fallen down in its duty by not even being present at the appeal hearing.
8. For the reasons we have given, we have to say that the adjudicator did go wrong in law on this point: the result is that there will have to be a fresh hearing before another adjudicator.
Appeal allowed
Case “remitted”, not to Mr Bowen
John Freeman
(approved for electronic distribution)
Heard at Field House
On 1 November 2004
LK (Adjudicators: “anxious scrutiny”- public interest) Democratic Republic
of Congo [2004] UKIAT 00308
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 01.11.2004
Issued: 25th November 2004
Before:
Mr JG Freeman (vice-president)
Mr M J Griffiths
Ms V S Street
Between
Secretary of State for the Home Department
appellant
and
respondent
Representation:
For the appellant: Mr D White
For the respondent: Mr J Bild, IAS (London)
DETERMINATION AND REASONS
This is an appeal by the Home Office in the case of a citizen of the Democratic Republic of Congo, whose appeal was allowed on both asylum and human rights grounds by an adjudicator, Mr D N Bowen, sitting at Birmingham on 30 May 2003. The adjudicator’s decision did not go out until 13 June; so it follows that the provisions of the 2002 Act by then applied, and (as the Court of Appeal made clear in CA [2004] EWCA 1165) the Home Office need to persuade us that there was an error of law on the part of the adjudicator, if we are to allow their appeal.
2. Regrettably, in far flung Birmingham, no presenting officer was available to help the adjudicator and this appears to us to be at the root of a number of things that went wrong. The relevant part of the adjudicator’s decision is as follows:
48. This appellant has a fear of the government because of her religious beliefs that she is a follower of the Bundi Dia Kongo this is a religious organisation which is seen to be a threat to the government and to which the government is opposed as is clearly outlined in the objective evidence which has been placed before me.
49. There was a religious festival which took place on 20 July 2002 which is well reported in the objective material there is evidence of violent outbreaks and killings. The appellant claims that far more people died and has been recorded in the objective evidence.
50. The appellant was criticised in the reasoins for refusal letter for not having attended the celebrations, however she explained that she was required to stay at home to look after her infant siblings who could not be left alone to fend for themelves. She cannot be criticised for that.
51. I believe the account that this appellant has given of herself. It is clear that the objective evidence points to the fact that the public prosecutor views the supporters of the Bundu Dia Kongo as having publicly committed offences against the head of state in the Province of Bascongo sometime during the year 2002.
52. This appellant is as a returned asylum seeker to the DRC would clearly be interrogated at Kinshasa and I sure that it would easily come to light that she was a supporter of Bundu Dia Kongo, I suspect then that she would be detained and ill-treated and possibly tortured.
53. Even if I am wrong given the objective evidence in so far as it relates to young single females and having regard to the views of the Immigration Appeal Tribunal in Ramazani even if the appellant were to escape ill-treatment at the hands of the authorities I suspect that she would find that she had nothing in the DRC and in all probability would have to turn to prostitution.
54. I am satisfied be the appellant has fear of the authorities that the internal flight relocation is not a viable option in this application's case.
3. Mr Bild realistically concedes that the adjudicator’s reasoning at paragraph 53 cannot be supported and his decision on that point needed a good deal more investigation. No more need be said about that, and the appeal turns on what the adjudicator said at paragraph 52. The main piece of evidence that Mr Bild has pointed us to on the appeal comes from the report of a seminar organised by the UNHCR on 28 and 29 June 2002, which was compiled by one of their officials and one of Amnesty International's. The relevant passage appears at page 123 of the report,
Against this background it can no longer be said that only those deportees who are discovered by the authorities to have sought asylum abroad undergo interrogation sessions upon arrival at Kinshasa Airport. In fact reports from local human rights NGOs victims and eye witnesses show that groups of individuals who are deported having or not having sought asylum or repatriated voluntarily may face serious problems following possible interrogation conducted by security services upon arrival at Kinshasa. Should the authorities in Kinshasa discovered that a deportee has a political or military profile or has sought asylum abroad owing to a political or military background such person may be at risk of arbitrary detention and ill-treatment. People who are returned without any assurances that the government does not hold any grudge against them could be in serious trouble and get detained as prisoners of conscience or could even be at risk of the death penalty always depending on their activities.
4. The adjudicator accepted that this claimant was a member of the BDK: although there was no evidence that she had gone through the initiation procedures (described at some length in the CIPU Report at paragraphs 6.52 to 6.55), nothing turns on that, because Mr White’s point is that the authorities had no means of knowing that she was a BDK member. Mr Bild relies first on the fact that she was from a town with a substantial BDK membership and history of trouble with the authorities for that reason. The second point on which he relies is that this appellant's own father had been killed in a BDK disturbance there, on 20 July 2002, at the same demonstration as she did not attend, through having to baby-sit at home.
5. We accept that the claimant would no doubt have to give the details of her place of origin during the questioning described in the UNHCR Report we have read. There is nothing to link her with the disturbance of 20 July, except for being her father’s daughter. It is not a question of blaming her, or not, for staying at home baby-sitting: the question is whether the authorities would have any reason to elicit from her any information about her father having been killed during a BDK demonstration there. Mr Bild’s point is that this would be bound to come out during any questioning of a young single woman on return, in which the authorities might be expected to ask her about her family background. He accepts that there is no reasoning to that effect by the adjudicator; but he asks us to infer it as being reasonable.
6. We accept that, if there were a clear inference to be drawn that the process of questioning described in the UNHCR report would lead to the father's manner of death coming to light, then on the evidence before us that might possibly lead to some risk on return for this claimant. However, there was no investigation by the adjudicator who was, as we say, not helped by the absence of a presenting officer, as to what questions were likely to be asked of someone with no record herself of any hostile contact with the authorities at all; or how the answers the claimant would be obliged to give to such questions as she was likely to be asked would lead to the revelation of her father’s manner of death.
7. We think there should have been such an investigation. We have to say that, in the unfortunate absence of a presenting officer, the very experienced adjudicator on this occasion failed in the duty of what, in rather old-fashioned language, has been called “anxious scrutiny”. That is just as important in the interests of the public as in those of the claimant, especially where the organization appointed to represent those interests has fallen down in its duty by not even being present at the appeal hearing.
8. For the reasons we have given, we have to say that the adjudicator did go wrong in law on this point: the result is that there will have to be a fresh hearing before another adjudicator.
Appeal allowed
Case “remitted”, not to Mr Bowen
John Freeman
(approved for electronic distribution)