Tribunal decisions

The decision

APPEAL No. CC55466-2001
KB (Article3- Health, Medical Facilities) Democratic Republic of Congo CG [2002] UKIAT 03571

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18 July 2002
Date Determination notified:

08/08/02

Before:

Mr. P. R. Moulden (Chairman)
Mr A. G. Jeevanjee

Between

KAMBU BATIA
Appellant
and

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

1. The Appellant is a citizen of the Democratic Republic of Congo. He has been given leave to appeal the determination of an Adjudicator (Mr M. E. J. Rush) dismissing his appeal against the Respondent's decision to refuse to grant him leave to enter the United Kingdom and to refuse asylum.

2. Mr C. Williams of Counsel, instructed by Edwards Duthie, Solicitors, appeared for the Appellant. Mr I. Graham, a Home Office Presenting Officer, represented the Respondent.

3. The Appellant arrived in the United Kingdom on 8 May 1999 and claimed asylum. The notice containing the decision against which he appeals is dated 7 April 2001. The Adjudicator heard the appeal on 8 March 2002 and leave to appeal was granted on 29 May 2002.

4. The appeal was certified but the Adjudicator discharged the certificate.

5. The Appellant claimed to fear persecution from the authorities in the DRC because his wife is Rwandan and his brother-in-law fought for the Rwandan rebels. He said he was a supporter of the UDPS. He also said that he was epileptic and was receiving medical treatment in the United Kingdom which would not be available to him in the DRC.

6. The Adjudicator found that the Appellant was not a credible witness. He did not believe his account of events. He found that the Appellant had not established a well-founded fear of persecution for a Convention reason or that his human rights would be infringed. In relation to the Article 8 claim, the Adjudicator found that the Appellant had established a family life with his sister in the United Kingdom, if he returned to the DRC there would be interference with this, but the interference was in accordance with the law, and had a legitimate public aim. Such interference would be necessary and proportionate.

7. The first and main thrust of the grounds of appeal was an attack on the adverse credibility finding and in particular that the Adjudicator erred in his conclusions that the Appellant's wife was not Rwandan. At the hearing Mr Williams informed us that the Appellant no longer intended to pursue his claim based on the risks arising from his wife’s Rwandan nationality and ethnicity. Mr Williams declined to say why the Appellant had done this. Specifically, the following grounds of appeal were abandoned, paragraph 4, 5, 6, 7, 8, 9, (except subparagraphs 3 and 4) and 10. These are the paragraphs which also attack the adverse credibility finding.

8. There are three remaining grounds. The first is that the Adjudicator failed to consider the full implications of the expert report from Mr Kennes, insofar as it supports the Appellant's claim to be at risk of having his Article 3 rights infringed because political opinions would be attributed to him. The second is that the detention of the Appellant in a Migratory Detention Centre upon return to the DRC would breach Article 5. The third is that the Adjudicator erred in his assessment of the Appellant's Article 8 claim.

9. Mr Williams sought leave to amend and add to the grounds of appeal in the terms of paragraph 3 of his skeleton argument. Mr Graham did not object and we granted leave. This ground relates to the Appellant's epilepsy and its effect on his Article 3 and 8 claims.

10. We have the Appellant's bundle containing 295 pages, Mr Williams skeleton argument, a note from the Appellant's caseworker and a letter to the Appellant's GP and, from the Respondent, the April 2002 Country Assessment.

11. Mr Williams informed as that his submissions would cover matters which were not dependent on the Appellant's credibility so that the adverse credibility finding would not have an adverse effect on them. He also said that, in the light of his instructions to withdraw many of the grounds of appeal, we would not need to consider the whole of the bundle, but only the information between pp 10 and 44.

12. Mr Kennes’ report states, at page 32 of the Appellant's bundle,

"During a telephone conversation with the author of this report, Mr Leyka make it clear that the "migratory detention centres" are not centres for imprisonment. The aim of the centres is the screening and identification of returned asylum seekers, with the view of their reintegration into society. Information is gathered about the individuals behind the underground networks, to be able to put them before justice. According to the assistant to the director-general, some of these centres are already operational. According to this official version, the "migratory detention centres" are just a screening agency. There is no problem with it as long as the returned asylum seekers are effectively members of an underground migration network. When the centres house returned asylum seekers who were entitled to political asylum that were unjustly refused, then the authorities immediately have their "rebels and affiliated" at hand to interrogate them and put them into jail. The real function of the detention centres is thus linked to the overall government policy towards real or imagined opponents. The government policy towards opponents cannot be considered without taking into account the workings of the judicial system, and more specifically the workings of the Military Court".

13. On pages 32 and 33 of his report Mr Kennes set out his conclusions in relation to the Appellant's case. The report is not just a generic report. It deals with the particular facts of the Appellant's case. However, it is clear that some of his conclusions can no longer apply, as a result of the withdrawal of the central plank of the Appellant's claim and the decision not to attempt to overturn the adverse credibility finding. Mr Williams relied on paragraph 3 of the summary as a freestanding argument. This states, "the fact that he is returning from the UK is an element that may be added to a charge against him, as the UK is considered by the Kinshasa government as a supporter for the Rwandan and Ugandan invaders".

14. Mr Williams submitted that if the Appellant were to be returned to the DRC he would be detained in a migratory detention centre for some time. He would be at risk of infringement of his Article 3 human rights. Even if he were not a real opponent the authorities might still regard him as one. Such detention would violate his Article 5 human rights. Mr Williams submitted that we should consider exception (f) which provided, "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition". The government line was that the migratory detention centres were for screening migrants. However, the reality was that they were to weed out political opponents. Mr Williams conceded that the Appellant would be an ordinary failed asylum seeker. However, he submitted that to detain anyone in the DRC would be any infringement of his Article 5 Human Rights.

15. As to the Appellant's Article 3 claim Mr Williams submitted that he suffered from epilepsy and it would infringe his rights to return him to a place where he would not be able to obtain the necessary medication and treatment, which he was receiving in the United Kingdom. He had been receiving medicine since December 2001. We were referred to the letters from his GP. He had not yet seen a consultant neurologist. The non-availability of necessary medication could amount to a breach of Article 3. Mr Williams accepted there was no evidence to show that the Appellant's condition was life-threatening or that the lack of medication would be life-threatening. According to Mr Kennes’ supplementary report (pp 40 and 41) the only medication he was likely to obtain in detention would be aspirin. Mr Williams conceded that there was no evidence to show how long the Appellant might spend in detention.

16. Mr Williams informed us that the Appellant was not pursuing his Article 8 claim in relation to his family life with his sister. He was doing so in relation to his epilepsy and the threat to his moral and physical integrity. Mr Williams relied on the same facts and arguments as those put forward in relation to Article 3. We were asked to allow the appeal but if not to remit for hearing afresh.

17. Mr Graham emphasised that there was no longer any attack on the Adjudicator's adverse credibility finding. The Appellant did not claim to have suffered any serious problems with his epilepsy whilst he lived in the DRC. He had epilepsy since childhood and was treated with traditional medicines. There was no evidence to show that these were inferior to Western medicines. There was no evidence to show that if he had to revert to this type of medication his Article 3 or 8 rights would be breached.

18. Even if the Appellant was held in a migratory detention centre and even if the government had a hidden agenda, on the facts they would have no interest in the Appellant. We were asked to give no weight to what Mr Graham submitted was pure speculation that the government had a hidden agenda. Under exception (f) to Article 5 the authorities were entitled to hold the Appellant in detention until they had checked and cleared him. Paragraph 5.29 of the Country Assessment stated, "no human rights organisations in the DRC had reported any difficulties for returning failed asylum seekers and, more importantly, the report made the point that it is not official government policy to harass or persecute returning failed asylum seekers. In individual cases, however, some returning failed asylum seekers to the DRC may encounter ill-treatment or harassment by members of the security forces. These incidents, however, would be due to the actions of undisciplined or corrupt individual officers and not as a result of official government policy".

19. Mr Graham submitted that there was no evidence that the Appellant would come to harm if he were detained in a migratory detention centre. There was no reasonable likelihood of any breach of his rights under Articles 3,5, or 8. The Adjudicator's findings were supported by the evidence and he had not erred. We were asked to dismiss the appeal

20. In reply to our question Mr Williams submitted that the Appellant's GP would be experienced in identifying the extent of the Appellant's symptoms of epilepsy. He had said that the Appellant's health would deteriorate. Mr Williams was not aware of any expert evidence referring to migratory detention centres, apart from that in the report from Mr Kennes.

21. We have to bear in mind that the Adjudicator found that the Appellant was not a credible witness. There are compelling reasons for this conclusion and all the grounds of appeal which go to credibility have been withdrawn. The Appellant fabricated a detailed account of events and we must view his evidence with suspicion, except to the extent that it is corroborated by more reliable evidence. Fortunately for the Appellant most of his outstanding claims can be determined by reference to independent objective evidence, although we must have some regard to his evidence in relation to his medical symptoms and the severity of his condition.

22. Mr Kennes’ qualifications are impressive. We give considerable weight to his opinions, particularly where these are truly objective, relying on his assessment of the situation in the DRC, rather than his assessment of the risks facing the Appellant. Mr Kennes has made his assessment of the risks facing the Appellant on the basis of the Appellant's claims, which are thoroughly discredited and, in most respects, no longer relied on. Notwithstanding that none of the other reports refer to migratory detention centres we accept, until better evidence becomes available, that one or more of them is likely to exist. The only evidence cited by Mr Kennes is a speech by the new director-general of the Congolese immigration services in which he indicates that centres would be set up and an assistant who said that some were already in operation.

23. We have no evidence as to conditions in such centres or how long individuals are likely to be detained. There is no suggestion that they are contained within Congolese prisons. As a result we cannot assess conditions as if they were a Congolese prison. What is clear is that the authorities have no adverse interest in the Appellant. They are not likely to attribute any political opinion to him. It is conceded that we must assess the risks purely as a returning failed asylum seeker from the United Kingdom. Even after taking into account the point at Page 33 of Mr Kennes’ report that the Kinshasa government looks on the UK as a supporter of the Rwandan and the Ugandan invaders, this would not put him at risk. Mr Kennes considered this as an additional element, together with far more serious reasons for hostility, which no longer apply. We find that, even if the Appellant were held in a migratory detention centre, there is no evidence that he would be held for an unreasonable period or ill treated. The authorities are entitled to detain him for so long as is needed to identify him and check his background. This would come within exception (f) to Article 5.

24. The Appellant claims that he suffered epilepsy from childhood. If this is true, and it is supported by the diagnosis of the GP that he does suffered from epilepsy, he has not explained the extent to which it had an adverse effect on him. He said that he was a law graduate and a successful businessman. It is clear that he has been treated with traditional medicine, some of which was provided for him by his sister. We do not have any further information as to the nature of the medicine, the period of the treatment, or how effective this was. The Appellant arrived in the United Kingdom in May 1999 but does not appear to have sought medical treatment until December 2001. He told his GP that he had about ten fits in 2001. The doctor herself comments, in her report of 14 February 2002, "this fit was not witnessed by another person". There is no evidence from anyone who has witnessed the Appellant having a fit. However, we accept the GP's diagnosis that he does suffer from epilepsy. She remarks that, because of the side-effects, nobody would take the medication which is being prescribed for him unless they were to prevent epileptic fits. We accept her expert opinion as to the side-effects of the medication. It does not require medical expertise to assess whether the Appellant would be prepared to undergo this if he thought that it would benefit his asylum claim. However, we do not consider that we have sufficient information to reach a conclusion about this.

25. The Appellant has been waiting for some time for an appointment with a consultant neurologist. At the date of the hearing no appointment had been given. We have no medical expertise, only a perception that the seriousness of the effects of epilepsy can vary enormously. Unless and until the Appellant is assessed by a consultant neurologist we do not know whether his current medication is the best or only medication required. We do not know what treatment the consultant neurologist may recommend, whether this will include medication and if so whether that medication is available in the DRC. We have no comparative assessment of the efficacy of traditional medicines, which appear to have controlled the Appellant's epilepsy for much of his life. Apart from our acceptance of the GP's diagnosis that the Appellant does suffer from epilepsy, we do not accept the Appellant's unsupported statements as to the regularity of the fits which he claims to have suffered, or the relative severity of his symptoms in the UK compared with his symptoms whilst he was living in the DRC. We place little weight on the Appellant's claims to be agitated and distressed because of the likelihood of his being murdered should he return to the DRC. He has withdrawn most of his claims upon which such fears were based and we have found that his outstanding fears are groundless.

26. Further consideration may need to be given to the Appellant's claims in relation to his epilepsy as and when there is specialist medical evidence, which may include authoritative tests showing the severity of his epilepsy, any requirement for long-term treatment, the nature of this treatment, its availability in the DRC, the consequences of not having the treatment and, if possible, the efficacy of traditional medicines. On the evidence before us the Appellant has not established that to return him to the DRC would infringe his human rights and specifically not under Articles 3, 5 or 8.

27. We dismiss the appeal.

........................................
P. R. Moulden
Vice-President.