NCADC would like to thank Eric Fripp barrister and co-ordinator of the immigration practice group at Mitre House Chambers for this briefing.

The Asylum and Immigration Tribunal, successor of the Immigration Appeal Tribunal on 21st July 2005 in the case of AB and DM (Risk categories reviewed-Tutsis added) DRC CG [2005] UKIAT 00118 notified new guidelines as to classes of person(s) who should be accepted as facing risks of persecution or of inhuman or degrading treatment or torture if returned to the Democratic Republic of Congo. This establishes new categories of individuals who should or may be entitled to refugee status and/or humanitarian protection. Current Tribunal country guidance is binding on immigration judges and the Home Office if it applies to individual cases.

The decision can be found online at
http://www.ait.gov.uk/judgmentsfiles/j1771/00118_ukiat_2005_ab_dm_democraticrepublicofcongo_cg.doc

In summary the Tribunal found the following:

-it confirmed the risk of persecution or inhuman or degrading treatment or punishment facing “those with nationality or perceived nationality of a state regarded as hostile to the DRC and in particular those who have or [are] presumed to have Rwandan connections or are of Rwandan origins.” (para 51(i));

-recent events have caused the situation to deteriorate for Tutsis/Bamyamulenge facing return to DRC so that the Tribunal accept that (contrary to the former position in its caselaw) “with the exception of high level officials of RCD/Goma, returnees of Tutsi ethnicity or believed to be of this ethnicity could be at real risk on return” (para 39). The Tribunal found that it was relevant to consider whether a particular individual had physical characteristics which would tend to identify them as Tutsi or otherwise was known/would be known on return as a Tutsi. It accepted that the importance given to “Tutsi” physical appearance meant that some people who were in fact not Tutsi but were/would be perceived as such because of their appearance would also face risk because of suspected Tutsi ethnicity (para 40);

-the Tribunal treated with general respect the evidence of Dr Kennes, a country expert from the Africa Institute, Terveuren, Belgium, who gave evidence before them. They recorded his evidence that individuals from Kivu region of eastern DRC if returned to Kinshasa would tend to be seen as Rwandan and to face risks of persecution or inhuman or degrading treatment or punishment but did not fully accept this, although they accepted that origin in Kivu could be a factor leading to risk on the facts of specific cases (paras 42-43);

-there continued to be a real risk for “those with a political or military profile” (para 44). “Mere membership” of an opposition political party did not bring an individual within this category (para 45). The Tribunal further analysed the position:

… we accept that at the present time it is very dangerous to be an active member of the UDPS. The success of the ville morte action in bringing much of Kinshasa to a standstill in January 2005 has threatened the Kabila leadership. We accept Mr Kennes' evidence that UDPS militants abroad returning now would be at risk of detention. There is a much lesser risk for PALU members although this changes from time to time. According to Mr Kennes they tend to be released more easily than UDPS members. There is a potential risk for DPS members who are considered to be potential or actual collaborators or spies for Bemba and his MLC movement. The danger for high ranking MPR officials and their families has considerably diminished since the creation of the Transitional Government and depends on the position of persons held under the Mobutu regime. Those involved or believed to be involved in the assassination of President Kabila continue to be at risk of imprisonment and torture. The immigration and security services are still convinced that only part of the network that planned the assassination has been discovered and arrested.

The Tribunal reiterated that failed asylum seekers as such without additional complicating factors were not considered at risk of persecution/inhuman or degrading treatment or torture sufficient to trigger entitlement to protection in the UK.

Another relevant recent change is that the Court of Appeal has said that in certain circumstances individuals should have asylum and/or humanitarian protection if the alternative is forcing them to return to a situation in which they have to conceal certain core characteristics to avoid persecution: Hysi v SSHD [2005] EWCA Civ 711; The Independent 17th June 2005; The Times 23rd March 2005.

Effect of Changed Guidance

Anyone dealing with appeals should be aware of the changed guidance.

Additionally, where claimants have failed previously within the appeals system but because of changes in the Tribunal guidance have now come within a category potentially identified with an “at risk” group, they should seek advice in particular as to whether they can raise a fresh claim to asylum or human rights protection: the legal test is whether because of changed circumstances an individual possesses a “realistic prospect” of success: R v SSHD ex p. Onibiyo [1996] QB 768; [1996] 2 WLR 490; [1996] Imm AR 370; R otao Senkoy v SSHD [2001] EWCA Civ 328.

*Eric Fripp is a barrister and co-ordinator of the immigration practice group at Mitre House Chambers, 15-19 Devereux Court, London WC2R 3JJ.  He regrets that he cannot advise individuals save through solicitors or other appropriate professional representatives.

Mitre House Chambers
http://www.mitrehouse.co.uk/immigration.html