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United Kingdom Asylum and Immigration Tribunal
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Cite as:  UKAIT 00098,  UKAIT 98
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BK (Failed asylum seekers) DRC CG  UKAIT 00098
Date of hearing: 3-5 July, 17- 25 September 2007
Date Determination notified: 31 October 2008
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Mr C Jacobs & Miss J Frances, of Counsel, instructed by Biscoes Solicitors
For the Respondent: Miss L Giovannetti, of Counsel, instructed by Treasury Solicitors
On return to the DRC failed asylum seekers do not per se face a real risk of persecution or serious harm or treatment contrary to Article 3 ECHR. In so finding this decision updates and reaffirms existing country guidance.
The appeal 
Procedural history  – 
The "objective" parts of the case
Witnesses who gave oral evidenceW1  – W2  – W3  – The IK and Observer 16 September 16, 2007 evidence Miss Jenny Cuffe's BBC report and evidence  – Evidence of Miss Elizabeth Atherton  – 
Evidence of DW  – Evidence relating to AB (including that from Miss CC) June 2004 VSV report  – Evidence from OCDH etc  – Evidence of E1  – Evidence of E2  – Tribunal country guidance cases  – The background evidence  – Submissions  – 
Legal framework  – 
Our assessment: specific mattersIdentification as failed asylum seekers  – Asylum seekers as traitors  – Risks specific to failed asylum seekers from the UK/Europe  – The "airport witnesses"Witness W1  – Witness W2  – Witness W3  – The IK article and the Observer 16 September 2007 evidence and additional comment on W1,W2 and W3  – Miss Jenny Cuffe's evidence  – Miss Elizabeth Atherton's evidence DW's evidence E1's evidence  – E2's evidence  – 
Overview DRC EU Report on Illegal Migration  – UNHCR position statements  – Individual embassy and EU government assessments -VSV and ASADHO evidence  – Evidence of E1 ("Position B")  – Other evidence -The case of WY  – The appellant's central submissions Witnesses who did not materialise  – 27 February 2007 charter flight  – Evidence of specific cases of abuse of returnees  – 
The "subjective" parts of the case -The appellant's case  – The appellant's mother's evidence  – Evidence of JK  - Evidence of E1 regarding the appellant's case  – Submissions relating to the appellant  – 
Our assessment: the appellant's case  – 
Appendix: Background materials before the Tribunal Appendix
The "objective" parts of the case
(a) Witnesses who gave oral evidence
"From the time that I spent at the airport, each time there were deportees, I can say that there was never a possibility that any individual deportee would be exempt from ill-treatment. They will be physically and morally abused….In every office while the deportees are questioned or interviewed, their money or belongings are taken by force and nearly all the time they are subjected to torture".
"…that it is not safe for people to return to Kinshasa Airport, especially if they are wanted by the government and also if it is known that a person has claimed asylum. People are detained, tortured, killed. I know that this has happened on many occasions".
"52. … If the individual lies to us or if we feel that he is lying to us, we use force to get the person talk. We punch them to get them to talk, we kick them, slap them and threaten to send them to prison or threaten to kill them. We tell him that we will kill traitors and that if they did not want us to kill him then he should tell the truth. We beat them with batons, chairs, electrical wires and other things. A lot of the time when we finish with them they are severely beaten, bruised, cut, swollen and in pain. We record all of the information that we can get from the interrogation and give it to our team leader. An average interrogation lasts about two hours. I find that a lot of people do not talk and force is necessary…"
"It is commonplace at the airport during the interrogation process for women to be sexually abused and/or raped. Many of the Immigration Officers are not from good background and are from a background where it is acceptable to treat women that way."
The IK and the Observer 16 September 2007 evidence
Miss Jenny Cuffe's BBC report and evidence
"He denied any ill-treatment of returning asylum seekers under his watch, but he did confirm that the ANR was operating in the airport and he said that sometimes the DGM let returning failed asylum seekers leave the airport, only for the ANR to arrest them outside." (Emphasis added)
"While the European Commission plans for the future we discovered that there are failed asylum seekers in this city [who] were beaten and locked away in prison without trial or hiding in fear and no one seems to accept the responsibility for checking if they are safe."
Evidence of Elizabeth Atherton
"…particularly worried about the accounts I was receiving from people who had been removed to the DRC and tortured. I was particularly concerned that the people I met said that they felt that at the airport they would be harmed and arrested".
Evidence of DW
"Often having assessed the claim we find out that the person (sic) asylum claim was invariably handled very poorly by non-specialist immigration solicitors."
"had sources that would place people that they knew and trust (sic) at the airport to find out what happened to the person, once they were returned. We would also contact the family members or friends and ask them to confirm the safety of the individual once they arrived in the DRC".
"I have also used similar methods of asking people to contact me once removed or detained who are removed to Angola, Nigeria, Kenya and India. On the majority of occasions I receive communications from people removed to these countries. In relation to people removed to the DRC no one has contacted me."
Evidence Relating to AB (including that from Ms CC)
June 2004 VSV Report: "Narrative Report, Programme of Observation, Information and Reception of Persons Expelled from Europe and America"
"With regard to the follow-up of persons expelled, the person in charge of the programme uses an information sheet on which he records all relevant information relating to this category of person, including their identity, address, date of repatriation, the country from which they are arriving, and the opinion and consideration of VSV."
"For the person responsible for the programme of observation, information and reception of expellees from Europe, contact is made straight after the immigration formalities (disputes service). Gaining the trust of the expellee is the primary objective before doing anything else. Once the bona fides of the observation and reception group have been presented and described, the head of the programme or other person involved has a conversation with the expellee in which he tries to find out the maximum amount of information on the reasons and conditions of the expulsion. Some people are so reserved that they are reluctant to open up easily".
"Whenever an international flight arrives and passengers disembark, if a case of repatriation is announced, the immigration officers wait for the expellee alongside the aeroplane on the tarmac. After a brief exchange, they take delivery of the person in question and any documentation linked to the expulsion. The expellee is then taken to the immigration bureau, where he is held in a room or cell, before being questioned by immigration officers. If he faces any charges, he is taken straight away to the police special services office, which has a branch at N'Djili airport, where he is also questioned and then transferred to another place to be detained, if required."
"Expellees suffer degrading treatment as subjects without rights and have no sure way of recovering their assets and other personal belongings that have been wrongly taken. After spending time in the West, they sometimes feel disconnected and often lose their ability to adapt to the living conditions in their country of origin. The situation is particularly difficult in the case of forced repatriation. It should be stressed that family ties and other relationships count for little in large urban centres in countries rocked by political and socio-economic crises. Forced repatriation is a form of persecution because it obliges asylum seekers to return empty-handed, something which is seen as a serious failure not only by the individuals concerned but by their home countries."
Evidence from Congolese Observatory on Human Rights (OCDH) etc
Evidence of E1
E1's May 31, 2006 Report
"any return under the present circumstances means exposure to unbearable suffering for many Congolese. The country is simply in ruins".
"Asylum seekers are, in a number of cases, sent by an 'asylum seeker emigration network' with the complicity of officials (even high level politicians) in the government administration, in the immigration services and officials in the embassies of foreign countries…"
"When failed returned asylum seekers are not returned collectively, high level officials of the ministry for foreign affairs are in charge. At the international airport of N'Djili and at Beach Ngobila (entry points for travellers from Congo Brazzaville), their passports are confiscated and they are subjected to an official investigation made by the immigration services at the airport. Afterwards they are normally transferred to the central administration of the immigration services.
This category of person (i.e. failed returned asylum seekers without known political charges against them) is, in a sense, 'held hostage' by these services. They are kept in detention in irregular places of detention (often offices) and are released upon payment of 'fines' that disappear into the pockets of state officials."
"If these services have elements at their disposal about the particular case of the asylum seeker, they run a serious security risk and may even disappear".
"The rules are applied according to the "political conjuncture" and their effect may vary considerably. One element is permanent: because of endemic poverty, everything can be settled by paying money."
"The information given by the UNHCR and other sources confirms what I have been able to gather through my own research: namely those returnees without valid travel documents are at risk on return. When they have outstanding charges against them, they will be imprisoned and probably tortured. When they don't have such a charge, they will be imprisoned by the security services who will try to get money from the family."
"That risk of being detained and imprisoned in case of non-payment is a very real one and not just a hypothetical risk …
… it is important to realise that a person is kept in a detention centre when he/she is not able to pay. This is a means to put pressure on the family and relatives of the returnee, to force them to collect the money to free their relative."
E1's May 17, 2007 Report
"A specific person who is a member of the ANR or the immigration services DGM when with a specific returnee's case may have a relatively important space for decision making. He /she will make a risk assessment as to the income he may generate from this particular case. The normal course of action will be to ask for a bribe in exchange for letting the returnee go. A part of the bribe will normally go to his/her hierarchal superiors. However, reliance [on] a returnee may entail a risk in some particular cases, if e.g. this person is specifically targeted for judicial or political reasons or both … If this risk is too high, the ANR or DGM officer will not accept a bribe but put the returnee in detention. This signifies that is it very difficult to foresee the course of action from the DGM/ANR offices at the airport or Beach Ngobile". (emphasis added)
"It is essential to realise that failed returned asylum seekers are not ordinary travellers. When they are identified (and this is mostly the case); they constitute a group directly or indirectly engaged in a form of political activity. They are, in all cases, the object of careful scrutiny by the immigration or security services. In many cases, they are released against payment of a bribe; when a risk factor is involved they are detained for shorter or longer periods."
'The treatment of this category of persons is greatly determined by one element: money (however: see also the following sections). The DGM and/or ANR services at the airport will ask [for] money [from] any failed asylum seeker returning from Europe or the United States. Local belief holds it that anyone returning from those continents must have relatively considerable financial means at his/her disposal, making them an interesting prey for badly paid officials who also must 'redistribute' something to their hierarchical superiors. The requested sums may be considerable, varying from US$200 to US$1,000. The sum put forward by VSV in the UNHCR letter referred to above [US$5 to US$10] is not accurate.'
"As the Congolese community in the UK is very active and aggressive, and because of the action taken against She Okintundu and Jaynet Kabila, all returnees from the UK is [sic] the object of a very specific attention from the relevant services at the airport. They are very thoroughly interrogated and run a higher risk that they would not be believed than returnees from other countries."
"It is also important to stress that any failed asylum seeker from the UK will be treated with much suspicion as all returnees are considered to be anti-Kabila and adherents of N'Gbanda's APARECO movement."
"There is indeed no evidence that asylum seekers as such are persecuted. But they all have to pay a bribe for their release. If they refuse to pay or are unable to pay, they are detained as a way of pressurising them. The authorities are concerned about emigration networks, whether a person has committed a crime and particular attention is currently paid to those from the UK. The authorities assume that people are lying and use the methods of obtaining information as described throughout the report …"
"consistent with the contents of this report, although I have some doubts about the thoroughness of the mentioned sources of information … I agree that there is no persecution of returned asylum seekers per se. On the other hand, all returnees are interrogated (on minutes) and the persons who may face criminal prosecution are those with individual travel documents or who are the object of criminal investigation/arrest warrant. It is important to note, however, that this is a general statement that does not exclude the existence of specific categories of person who are at risk …"
"I do not think that there is any embassy or NGO that has undertaken an in-depth investigation of the fate of failed returned asylum seekers, including contacts with DGM/ANR officers on return. I also would like to stress the existence of specific risk categories."
"I totally disagree with this paragraph if it wants to assert that failed returned asylum seekers are as much or as little harassed as ordinary travellers. There is ample evidence that all failed asylum seekers are interrogated, some specific cases detained, and all subjected to the payment of bribes for their release."
Evidence of E2
"In 75% of cases we were successful and discovered that none of them had ever had contact with the VSV. In general people reacted very angrily to this malpractice."
"The consequence at a lower level is that the Congolese people who were involved in these activities will undoubtedly lose their lives as they fall into the hands of the Congolese security service ... Their revenge will be terrifying."
Tribunal Country Guidance
"We would emphasise first of all that the use of the word 'profile' highlights the fact that this category is intended to mark out those whose actual perceived military or political activities or involvements are likely to have brought them to the adverse attention of the Kabila regime. The mere membership of an opposition political party will not demonstrate that a person has such a profile". (Our emphasis).
"… those having or being perceived to have a military or political profile in opposition to the government.
" the risk fluctuates in accordance with the political situation. On the basis of the evidence before us, the current position is as follows. The Tribunal accept there is a real risk at present for UDPS activists."
"201. Looking at the objective situation as a whole, and mindful of the past history of the DRC, we have concluded that despite what appears to be a dramatic change in the political landscape, that carries with it the hope that it will result in much needed stability in this vast and previously divided country, it would be premature to hold that these prospects have yet translated to adequate improvements on the ground, so as to justify a revision at this stage of the Tribunal's view of risk to UDPS members, as held in AB and DM , endorsed in MK and which we thus re-affirm.
It follows that we continue to believe that low level members/sympathisers of the UDPS for that reason alone, will not be at real risk on return to the DRC in the current climate, but conclude that it is too early in the process of the transition of the DRC to democratic rule, to find that there is no continuing threat on the part of the current Kabila regime to persecute UDPS activists. As the Tribunal in AB and DM rightly observed, the risk category to those having or being perceived to have a military or political profile in opposition to the government is one that "fluctuates in accordance with the political situation." (See paragraph 51(iii)) of their determination)."
The background evidence
"10.01 The US State Department Report on Human Rights Practices in 2005 published on 8 March 2006 (USSD 2005) reported as follows:
"The security forces consist of a national police force, including the Rapid Intervention Police unit, which the Ministry of Interior oversees; an immigration service under the Ministry of the Interior; the National Intelligence Agency (ANR) overseen by the National Security Advisor; the military intelligence service overseen by the Ministry of Defense; and the GSSP, which reports directly to the presidency. The national police have primary responsibility for law enforcement and maintaining public order. The ANR is responsible for internal and external security. The FARDC was responsible for external security but also had domestic security responsibilities."
10.02. A Fact-Finding Mission Report on the DRC by the Documentation and Research Service, Refugee and Nationality Commission of Belgium (CEDOCA) dated October 2002 noted that there are a number of security agencies. [24a] (p9) These include DEMIAP (Detection Militaire des Activités Anti-Patrie / Military Detection of Anti-Patriotic Activities). DEMIAP is formally answerable to the staff of the Congolese armed forces (Forces Armées Congolais/Congolese armed Forces (FAC)) [renamed FARDC in 2003] It is subdivided into internal and external departments. The internal section has a prison known as Ouagadougou. [24a] (p9)
10.03. The same report advised that the ANR was set up in 1997 to replace SNIP (National Service for Intelligence and Protection) and has made efforts to remedy the worst abuses. Most of the ANR's illegal prisons have been closed in recent years, except for those at ANR/Fleuve and ANR/Lemera. This service is subdivided into a Department for Internal Security (ANR/DSI) and a Department for External Security (ANR/DSE), both run by a Director General... [24a] (p9)
10.04. Regarding the GSP (Garde Spéciale Présidentielle/Special Presidential Guard, also known as GSSP), the CEDOCA report stated "This special department consists of President Kabila's Praetorian Guard and was set up to replace the no less infamous Special Presidential Division of former President Mobutu. Starting off with the name GSSP, this Guard has had several name changes." [24a] (p9)
10.05. CEDOCA also stated that the General Migration department (Direction Génerale de Migration) (DGM) was responsible for border control, among other things. It succeeded the former National Immigration Agency (ANI). [24a] (p10)
10.06. CEDOCA also stated that the Special Intervention Forces (Forces d'Intervention Spéciale) (FIS) were formed from part of the GSP and part of the former 50th Brigade, now the 7th Military Region and their headquarters were in the military camp of Kokolo. [24a] (p10)
10.07. A situation report issued via the Institute for Security Studies in January 2005 titled 'Summary Overview of Security Sector Reform Processes in the DRC' detailed plans for the reform and restructuring of civilian and military security forces and stated that police reform was an integral part of SSR [Security Sector Reforms] efforts in the DRC. [27f] (p11)".
"10.08 A Fact-Finding Mission Report on the DRC by the Documentation and Research Service, Refugee and Nationality Commission of Belgium (CEDOCA) dated October 2002 stated that the Congolese National Police (Police Nationale Congolaise) (PNC) was formed on 7 June 1997 to replace the National Guard and the Gendarmerie, and was run by the Police General Inspectorate (l'Inspection Génerale de Police). [24a] (p9) The PNC is made up of Communal Police (Police Communale) (PC); Rapid Intervention Police (Police d'Intervention Rapide) (PIR); Internal Police (Police des Polices) (PP); Special Transport Police (Police Speciale de Roulage) (PSR). The uniform of the PNC and the PIR was reported as all blue or all black, and the uniform of the PP and PSR as yellow shirt and blue trousers (often with a yellow line). [24a] (p10)
10.09. The US State Department Report on Human Rights Practices in 2005 published on 8 March 2006 (USSD 2005) reported as follows:
"by year's end the national police force was increasingly integrated. On November 8, the government—with financial support from foreign governments—opened a $1.3 million police facility in Kinshasa to bring the country's disparate police units under central command and control. In addition during the year the government worked with MONUC and members of the international community to train police. There was some police improvement, specifically among the rapid police force, following the training by a foreign country of three thousand officers for riot control and emergencies. These officers were properly armed with tear gas and rubber bullets to handle volatile situations and significantly reduce human rights violations. At year's end the international community was training and professionalizing traffic police."
The report continued, "…although the overall level of professionalism increased during the year, police forces generally remained ineffective and corrupt. During the year members of the police, military, and security forces attacked, detained, robbed, and extorted money from civilians. The government prosecuted and disciplined some abusers; however, the vast majority acted with impunity. Although there were mechanisms available to investigate human rights violations by police, they were used sporadically." [3h] (1d)
10. 10. A report by the International Crisis Group titled 'Security Sector Reform in the Congo' dated 13 February 2006 states in relation to the police:
"The Congo police have never been able to provide basic law and order and have themselves ranked among the top abusers of citizens' basic human rights. [39f] (page 4) It continues, police reform has gone forward on an ad hoc basis driven by what individual donors are willing to provide rather than on the basis of a long term strategic plan. These reforms have not been without success; for example, when the elections were postponed in June 2005, demonstrations in Kinshasa were handled well for the most part. However there is little co-ordination among the main donors – France, EU, South Africa, Angola and MONUC police – on the training and nature of the force. The bulk of the effort has focused on Kinshasa, and there is virtually no long term plan. A police reform reflection group (groupe de reflexion) was only recently established to improve co-ordination between MONUC, the European Commission, The EU police mission (EUPOL) and bilateral donors." [39f] (page 6)
10.13. The twenty-first report from the UNSG in June 2006 reported that while the national police in Kinshasa had demonstrated an ability to control political demonstrations without violating human rights, there was a tendency to use excessive force. [54i]
10.14. In June the UNSG's special representative Mr. William Swing announced that 46,000 police officers had been trained so far 14,000 of them by MONUC. The majority were trained by partners such as South Africa, Angola, France, the European Union and Japan. According to Mr. Swing the aim was to train 50,000 police by the date of the election. [71d]
10.16. On 16 December 2006, Radio France International reported that a police academy, funded by France, had been inaugurated in Kinshasa. The academy will receive 270 trainees each year. [95ak]
10.17. On 15 January 2007, Angola Press reported that over 2,700 DR Congo policemen had been trained by the Angolan National Police (PN) since 2004. Since 2004 the PN have organised the Mbakana Training Centre, and trained a police battalion and other units in anti-riot, and anti-terrorism. In Angola, they have held a course for trainers in public order, and trained 80 staff in the motorbike brigade for special anti-terrorism units. [34a]".
"14.01 Articles 19 and 20 of the current draft transitional constitution of 23 March 2003 (published by the Institute for Security Studies) provided for all citizens to have the right to be detained or arrested only in accordance with the law and within 24 hours, to be permitted contact with their family and a legal adviser, informed of the reason for the arrest, their legal rights, and any charges. Article 20 also states that police custody should not exceed 48 hours; after this period the detainee should be brought before a competent judicial authority. The same Article states that treatment should be in accordance with maintaining life, physical and mental health, and dignity. [27a]
14.02. A report compiled by the Canadian Immigration and Refugee Board in February 2005 also stated that in theory, the Congolese constitution guarantees impartial justice, defendants have the right to appeal in most cases, and the right to defence is recognized by all courts. [43s]
14.03. Several reports indicated that although the law provides for a speedy process, access to family and lawyers, and prohibits arbitrary arrest and detention, these provisions were not followed in practice. [3h] (Sections 1d, 1e, 1f) [11f] (Torture and Illegal detention) [55b] [56a] They included the US State Department Report on Human Rights Practices in 2005 published on 8 March 2006 (USSD 2005) [3h] which also stated:
"Police often arbitrarily arrested and detained persons without filing charges, often to extort money from family members. When authorities did press charges, the claims were rarely filed in a timely manner and were often contrived or overly vague. Reportedly security forces regularly held alleged suspects for varying periods of time before acknowledging that they were in custody or allowing the detainees to have contact with family or legal counsel." [3h] (Section 1d)
"Throughout the country, there were credible reports that authorities sometimes arrested or beat a close family member of the person they sought but were unable to locate. For example on August 5, police in Lubumbashi arrested and severely beat Mimi Balela Mbayo in place of her husband, who was wanted for stealing 24 thousand dollars from a former employee. Ms. Mabyo's buttocks were flayed, tearing off large pieces of flesh and muscle. At year's end no action had been taken against OPJ Donat Atwena, the police officer who ordered the beating." [3h] (Section 1f)
14.04. A report in April 2004 by the United Nations Mission for Congo (MONUC) on Detention in the Prisons and Detention cells of the DRC, based on a series of visits in 2002 and the first six months of 2003, stated that:
"The lawfulness of the arrest and detention is often an infringement of the law linked to the serious disfunctions [sic] in the police force and in the legal system. It is clear that the fundamental rights of persons arrested are not respected, in particular:
? The period in police detention, which may not exceed forty-eight hours,
? The right for any person arrested to be informed immediately or at the latest within twenty-four hours of the reasons for his/her arrest and of any accusation made against him,
? The right to a just and fair trial within the legal periods." [56a] (p4)
14.05. The MONUC report recommended a number of measures to improve the situation of illegal detention, and to reduce the number of people held in preventive detention and limit its duration. [56a] (p39-44)
14.06. The Amnesty International (AI) Annual Report in 2005, reporting on events in 2004, stated that "Arbitrary arrest and illegal detention remained frequent across the DRC. Many people spent long periods in detention without charge or trial. A number were reportedly ill-treated or tortured. Human rights defenders and journalists engaged in legitimate investigation and criticism were also threatened and unlawfully detained." [11f] (Torture and Illegal detention)
A report by the United Nations (UN) Special Rapporteur for the DRC in March 2004 also stated "Crime generally goes unpunished in the Democratic Republic of the Congo and arbitrary detention is practised on a wide scale." [55b] (p16) The same report also stated "The lack of security for the civilian population is one of the impediments to the realization of human rights in the Democratic Republic of the Congo. The civilian population is subject to violence by the military and police, often for financial reasons; most such offences go unpunished. Since bribery is ubiquitous, the guilty parties can buy off the justice system and the police, and justice officials often help victims and perpetrators to make deals in exchange for part of the compensation paid…"
"Last year's successful national elections and the establishment of democratic institutions are important steps on the road to recovery, and to the re-establishment of state and government authority. The successful completion of the local elections planned for next year should be a vital next step. This progress, and the end of major fighting in most of the country, has had a positive effect on the humanitarian situation. Over the last four years, the total number of internally displaced has decreased from 3.4 to 1.2 million. In Katanga Province alone, some 350,000 people returned home last year. Most of the country is beginning to experience greater calm and stability, even if MONUC should not yet even start to contemplate leaving.
Nevertheless, serious humanitarian problems remain, particularly in the east, for hundreds of thousands of civilians are still displaced and more continue to flee fighting and violence, and where illegal armed groups terrorise large parts of the population. While the position in Ituri has improved significantly, continuing insecurity in north and south Kivu has particularly severe humanitarian consequences. These two provinces account together for close to 1,000,000 of the internally displaced, or 90% of the total national caseload. North Kivu alone represents almost two-thirds of this number, including about 300,000 more since November last year."
"32.26 On 10 January 2007 the UNHCR reported that although the long-standing refugee crises in the Great Lakes region continued to ease last year, problems still remain. The DRC remains the UNHCR's biggest Great Lakes operation. The refugee agency helped more than 26,000 of last year's almost 37,000 Congolese returnees go home. Slightly more than 47,200 people were repatriated to DRC in 2005, including some 14,000 assisted by UNHCR. DRC also hosts some 220,000 refugees from neighbouring countries; some 30,000 of them went back last year, 13,200 helped by UNHCR. [21ah]
32.38…On 13 April 2007 Relief Web quoting the UNHCR as a source…said that so far 7,000 refugees had returned in 2007 and 96,000 in total since 2004."
The report records repatriation in significant numbers of refugees back to the DRC from Angola, Rwanda, Burundi, Uganda, Sudan, Tanzania, the Central African Republic, Mozambique, Malawi and Zambia.
In response to a request from the Tribunal for figures of asylum-related returns from the UK to the DRC, the respondent furnished us with figures covering the period January 2004 – September 2007. The covering letter stressed that whilst figures from January 2004 to June 2007 are from published information, those from July-15 September 2007 have yet to be verified by auditing processes. Headed "Unsuccessful Asylum Seekers", these figures are broken down into A ("enforced removals, persons departing voluntarily after enforcement action has been initiated against them and those who have left the UK without informing the immigration authorities"); and B ("persons leaving under Assisted Voluntary Return Programmes run by the International Organisation for Migration [and which may include cases where enforcement action has been initiated])". The total of unsuccessful asylum seekers given for 2006 is 105 and for Jan-15 September 2007 it is 97. The information on returns also states that in the period January 2004 until December 2006 there were 45 non-asylum cases concerning nationals of the DRC removed to the DRC.
"36. Treatment of failed asylum seekers returned to the DRC
36.01. In comments to the Advisory Panel on Country Information on 8 March 2006, UNHCR stated a BBC report published on 1 December 2005 completely contradicted the COI report of October 2005, and operational guidance. [15y] [60f]
36.02. The USSD Country Report on Human Rights – 2005 published on 8 March 2006 gave an account of the BBC programme but concluded: "During the year there were no other reports that corroborated the accounts contained in the BBC article." [3h] (Section 2d)
36.03. The view of the Foreign and Commonwealth Office (FCO) was given in two letters dated 6 February 2006 from the British Ambassador to the DRC. The first letter confirmed the letter of 9 December 2004 which stated that the FCO had no evidence that DRC nationals face persecution from DRC authorities on being returned to Kinshasa after a failed claim for political asylum in a third country. It stated: "Our sources in researching the treatment of failed asylum seekers include local non governmental organisations, press and lawyers, Ministers from all parties forming the transitional government and colleagues in other Embassies based in Kinshasa." The same letter noted that "other EU governments continue to make regular supervised returns of failed asylum seekers to Kinshasa, for which DRC Immigration requires a suitable identification document. Flights carrying returnees from Schengen countries are met by a French Airport Liaison Officer who ensures that, on arrival, the returnee holds a satisfactory document before passing them on to be landed by DRC Immigration officials." It also stated: "All passengers arriving at N'djili airport are liable to be questioned by DRC immigration officials. We have no evidence that returned failed asylum seekers are specifically targeted for adverse treatment." The letter continued: "It is possible that some returnees may face criminal prosecution upon their return to the DRC if it were established on their return that they had departed the DRC with invalid travel documents or were already the subject of an arrest warrant or criminal investigation." [22l]
36.04. The second letter from the embassy states that the Ambassador had met with the Vice-Minister for the Interior in late December 2005 to discuss the return of failed asylum seekers from the UK to the DRC. During the discussions the Ambassador relayed concern over reports that failed asylum seekers, on return to the DRC, had been investigated or persecuted by the DRC authorities and enquired what the DRC Government's official position was. According to the letter the Vice Minister "said categorically that there was no official policy to target failed asylum seekers upon their return to the DRC. He could not guarantee that individual failed asylum seekers had not been harassed by individual members of immigration or security services. But they had definitely not been ordered to do so by the Interior Ministry." [22m]
36.05. In response to an information request on the subject of the treatment of rejected asylum seekers in the DRC the UNHCR stated on 19 April 2006, that after the press coverage following the BBC programme their officials in Kinshasa had contacted various organisations and institutions in an attempt to gather more information. This included organisations such as the Congolese Immigration Authorities (DGM), the National Committee for Refugees (CNR), IOM, MONUC, and national human rights NGOS. In addition, it sent staff to the airport on days of arrival of flights from Europe. The following were its findings:
1. According to the DGM and CNR, the usual procedure for any person returning through Kinshasa airport in case they do not hold proper documentation, including current DRC passports, and/or when they have been absent for a long time, is to be interrogated by immigration officials at the airport. In the best case scenario, they are freed within one to three hours. In the worst case, they are sent to a detention facility in the centre of town, and released after further verification.
2. The Congolese human rights NGO 'Voix des Sans Voix' informed the office that rejected asylum-seekers are received upon arrival at the airport by agents of DGM, who question them about why they left and applied for asylum. The NGO have an office at the airport and are closely monitoring the situation. They mentioned that there were many failed asylum seekers who are sent back by western European countries, but they are not aware of any of these persons detained and/or tortured upon return. They reported that some of the failed asylum seekers had to pay some money to the police (5 to 10 US$).
3. IOM Kinshasa advised the office that they have no information of returnees who were mistreated and/or tortured upon return.
4. According to MONUC's human rights section, which is also monitoring the prisons in the DRC, they did not receive concrete indications that individual failed asylum-seekers were arrested upon their return.
5. According to ASADOH (Association Africaine de Defense des Droits de l'Homme), no cases of detention, abuse or torture of failed asylum-seekers were known to their office.
6. As reported above, UNHCR staff were at times present at the airport, but they have not witnessed arrests made at the airport. However, it has to be kept in mind that arrivals at the airport are difficult to monitor, and UNHCR does not have a regular presence at the airport. The UNHCR Kinshasa office has only details on the forced return of three persons, of whom two were from African countries and one from Sweden. The latter person was, upon arrival, interrogated for some three hours and then released without further problems.
7. In general, the situation in the prisons and detention centres in DRC are extremely dire, and detainees have to rely on relatives to bring them food.
8. With the limited information available to UNHCR, it does not have evidence that there is systematic abuse, including detention and mistreatment, of failed asylum seekers returned to the DRC through Kinshasa airport. It wishes to highlight, however, that it advises against the forced return to Kinshasa of persons of Banyamulenge ethnic origin. [60h]
36.06. An EU Report on Illegal Migration published in June 2006 dealing with the subject of returned asylum seekers states that the majority of failed asylum seekers (particularly in the UK) do not take up the offer of voluntary repatriation. Member states therefore mostly rely on forcible repatriation.
36.07. The report goes on to state that no EU member state has run charter flights of failed asylum seekers to the DRC since 2003. The DRC authorities have resisted attempts by member states to restart them. However, many member states have signed or are hoping to sign agreements to allow charter flights and guarantee a minimum level of service from Congolese embassies and immigration directorate. Some who have signed agreements have not been satisfied with their results.
36.08. The report continues to say that there is no reliable evidence of failed asylum seekers being specifically targeted for harassment by the security services. Although some returnees have been harassed, this is seen as part of a trend of opportunistic crime against random civilians by unpaid or underpaid officials. Harassment is experienced by the majority of travellers, both Congolese or foreign. [22n]
36.09. The Belgian and Dutch governments stated that, like the FCO, they have not seen any evidence to indicate that returned failed asylum seekers are persecuted. A letter from the Belgian Embassy in London of July 2003 stated that the Belgian Government enforced the return of failed Congolese asylum seekers to the DRC. Both the Belgian Embassy in Kinshasa and the Belgian Immigration Department monitored the treatment of returned failed asylum seekers to the DRC from Belgium and had not seen any evidence to indicate that returned failed asylum seekers were at risk of persecution. 
36.10. A letter from the Dutch Embassy in London of July 2003 stated that the Dutch Government also enforced the return of failed Congolese asylum seekers to the DRC, and that the Dutch Embassy in Kinshasa had not seen any evidence to indicate that returned failed asylum seekers were at risk of persecution. The Dutch Government did not monitor the treatment of returned failed asylum seekers to the DRC.  Further information about the return of failed asylum seekers from The Netherlands was reported by a BBC News report of 24 June 2005 which stated that, following a media programme report, "The Netherlands [had] suspended the return of failed asylum-seekers to the Democratic Republic of Congo following reports of documents being leaked. Congolese officials are reported to have obtained confidential documents on several deportees and then abused them.… She said an independent inquiry would investigate how Dutch files may have ended up with Congolese immigration.… On a number of occasions in the past she has reassured parliament that failed asylum-seekers' files were kept secret. Dutch media reports that human rights organisations had also warned that deportees faced the serious risk of imprisonment, extortion and assault if unmasked as asylum-seekers." [15r]
36.11. A report from Justitie Netherlands reported on 9 December 2005 that "The Dutch Government has concluded that the Havermans Committee report indicates that no information on the content of asylum files was provided to the Congolese authorities. The report also shows that the current affairs programme Netwerk did not find any such information in the Democratic Republic of Congo". …"The findings of the report prove that the relevant executive bodies did not supply any detailed data from the asylum files to the country of origin, something that Immigration Minister Rita Verdonk repeatedly told the Lower House of Parliament in its debate of 23 February 2005." 
36. 12. Further information about the attitude of European countries on this subject was set out in a country report of January 2004 by the Netherlands Ministry of Foreign Affairs as follows:
"4.3 Policy of other countries:
"All applications for asylum from Congolese are dealt with on an individual basis. Asylum is generally granted to Tutsis, but not to persons of mixed origin. In principle, failed Congolese asylum seekers are returned to the DRC.
"Most applications for asylum from Congolese are dealt with in the usual way. There is a freeze on taking decisions on applications by persons giving their place of origin as Ituri. In principle, failed Congolese asylum seekers are returned to the DRC.
"Applications for asylum from Congolese nationals are assessed individually. Congolese asylum seekers who have exhausted all legal remedies are returned to Kinshasa.
"All applications for asylum from Congolese are assessed individually. Congolese asylum seekers who have exhausted all legal remedies are de facto deported.
"Asylum is granted to Tutsis in some cases. Tutsis and persons who were in close contact with the Mobutu government are not deported. Congolese asylum seekers who have exhausted all legal remedies are deported to Kinshasa."  (p22)
36.13. During the course of a country of origin information seminar in June 2002, sponsored by UNHCR and the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), which was addressed by representatives from Amnesty International and UNHCR, the subject of the involuntary return of unsuccessful asylum seekers was discussed at length. It was stated that caution should be exercised and a case-by-case approach was necessary in dealing with these individuals.  (p122-127)
36.14. In a report by the Danish Immigration Service in 1999 a spokesman for the NGO, TOGES NOIRES, Association Internationale des Avocats et Magistrats Défenseurs des Droits de l'Homme, Kinshasa, (BLACK TOGAS, International Association of Lawyers and Magistrates Committed to Defending Human Rights, Kinshasa) offered the cooperation of his organisation in helping refused asylum seekers who were to be repatriated to return home safely without difficulty 
36.15. On 26 February 2007 the UK sent a charter flight to the DRC with 40 failed asylum seekers (FAS) on board. The plane arrived in Kinshasa at 0600 hrs local time. All 40 FAS had been certified as Congolese by the DRC Embassy in London prior to departure. Despite this two of the FAS were declared non-Congolese by the Congolese migration authorities (DGM) following interviews, in which they said they were respectively Mozambican and Senegalese. After about half an hour of processing, the remaining 38 of the FAS were allowed to leave, where the majority were met by family and/or friends. Two of the FAS even reached the embassy to enquire about appeals and visas later that morning. The Embassy who observed the process stated that there were no obvious abuses of human rights. [22w]"
"18.10 The journalist killed was Franck 'Ngyke' Kangundu, 52, who headed the political section of the independent Kinshasa-based daily La Référence Plus. He and his wife were shot outside their home in Kinshasa. [7d] Three policemen and two accomplices were arrested for the killings. During a news conference the suspected ringleader, Second Lieutenant Mungande Kimbao Joel, denied having any part in the murders and said he only confessed under torture. [18bw] Subsequently members of the Congolese NGO, Journaliste En Danger (JED) received death threats following an article about their investigations into the killings. [74c] During a meeting with Reporters sans Frontieres (RSF) on 9 March 2006 President Kabila gave an undertaking that a 'public trial' would be held "before the presidential election." [74d] The trial of three suspects, two policeman and a soldier, commenced on 12 July 2006 before a military tribunal. The six judges did not read out the charges. One of the lawyers representing Ngyke's family said it was just the opening of the trial which involved the presentation of the three suspects who had refused to recognise the lawyers assigned to them, saying they had no earlier contact with them. A spokesman for Journaliste en danger (JED) alleged that Ngyke was killed because of an article on embezzlement of government funds. [18cr]".
"18.51 Freedom House stated in the Freedom in the World report 2005 that "At least 30 independent newspapers are published regularly in Kinshasa but are not widely circulated beyond the city."  (Political Rights and Civil Liberties) The EIU 2005 Country Profile also stated:
"There are many newspapers in Kinshasa, but only a handful are regularly printed and read. The main opposition newspapers are Le Potentiel, Le Phare, Tempête des Tropiques and La Référence Plus. Le Palmares and L'Avenir are the two main pro-government newspapers. Le Potentiel has the largest circulation, at 4,000 copies a day. There are few newspapers in the rest of the country. However, since the resumption of national air traffic, the Kinshasa newspapers are getting to cities in the rest of the country, if only in small quantities." [30b] (p21)
18.52. The USSD 2006 report further reported:
"A large and active private press functioned throughout the country, and a very large number of daily newspapers were licensed to publish. The transitional government required each newspaper to pay a $500 …licensing fee and complete several administrative steps before it could publish legally. While many newspapers remained critical of the transitional government, many showed bias towards it or particular political parties. Although there was no official newspaper, the government press agency published the Daily Bulletin, which included news reports, decrees and official statements" [3i] (Section 2a)".
Our Assessment: Specific Matters
Identification as failed asylum seekers
Asylum seekers as traitors
"The 'Ngulu' networks organising unofficial migration from the DRC to Europe benefit from complicity by individuals with the Congolese authorities. This problem is exacerbated by the low and irregular salaries received by civil servants, who seek to supplement their income by taking bribes from "Ngulu" networks or individuals seeking to leave the DRC.
'Ngulu' networks are generally seen in a positive light by the Congolese population, as despite their exorbitant fees, they are helping people to achieve a widely held dream. Naturally the government is reluctant to take what would be unpopular action against them. Likewise remittances sent back from Europe by Congolese form an important part of the DRC's economy, and the government is reluctant to interrupt this flow."
Risks specific to failed asylum seekers from UK/ Europe
The "airport witnesses"
The IK Article and the Observer 16 September 2007 evidence and additional comments on W1,W2 and W3
Miss Jenny Cuffe's Evidence
Miss Atherton's Evidence
"There is indeed no evidence that asylum seekers as such are persecuted. But they all have to pay a bribe for their release. If they refuse to pay or are unable to pay they are detained as a way of pressurising them."
"Our approach was as follows: we wanted to listen to people who had themselves been expelled. To do this we had to overcome their mistrust of us, as up to this point, they had been only bullied, first in Europe, then again during the journey and finally yet again in the Congo."
DRC: EU Report on Illegal Migration, 12 April 2006
"The principal reasons for migrating from the DRC remain economic. The shattered economy and lack of employment opportunities mean that there are large numbers of Congolese who wish to seek a better life in Europe. Whilst cases of genuine asylum do exist on occasions, for the most part this is used as a cover for economic migration.
Some resort to increasingly sophisticated and desperate measures to enter the EU in order to claim asylum, including forgery, using clandestine migration networks and overland travel to North Africa and attempting to cross the Mediterranean.
The Congolese authorities are not able to rein in this problem, and in some cases individual migration officials are complicit. High level contacts do show though those senior Congolese politicians are aware of the issue's importance to EU states.
Voluntary repatriation is not widely taken up by failed asylum seekers. Current methods of forcible repatriation are unsatisfactory.
Charter flights of failed asylum seekers back to the DRC have not taken place since 2003 [NB. This was written before the UK's February 2007 charter flight]. The DRC authorities have resisted attempts by member states to restart them. However many member states have signed or are hoping to sign agreements to allow charter flights and guarantee a minimum level of service from Congolese embassies and immigration directorates. Some who have signed agreements have not been satisfied with their results.
There is no reliable evidence of failed asylum seekers being specifically targeted for harassment by the security services. Some returnees have been harassed, this is seen as part of a trend of opportunist crime against random civilians by unpaid or underpaid officials. Harassment at N'Djili airport is experienced by a majority of travellers, both Congolese and foreign.
Some claims of abuse have been manufactured by so-called NGOs linked to clandestine migration networks and then picked up by more reputable NGOs."
"EU embassies present in Kinshasa have investigated those allegations and have found no objective evidence of those returning to the DRC being specifically targeted for abuse simply because they sought asylum. In investigating these allegations, members of EU embassies spoke to lawyers, human rights activists and members of the local press as well as members of the political parties represented in government. They also paid visits to detention facilities and N'Djili airport.
Allegations of arbitrary detention were found to be false, and in some cases, the NGOs that made the allegations of ill-treatment and detention had links to the Ngulu ("pig") networks that facilitate illegal immigration."
"continue to monitor the conditions experienced by returning failed asylum seekers through airport and prison visits, contacts with NGOs and sharing information with local embassies."
UNHCR Position Statements
"… after the press coverage in the UK late November 2005 about the reported problems faced by failed asylum seekers who were forcibly returned to the DRC, the UNHCR Office in Kinshasa contacted various organisations and institutions in an attempt to gather more information. This included organisations such as the Congolese Immigration authorities (DGM), the National Committee for Refugees (CNR), IUM, MONUC and national human rights NGOs. In addition, it sent staff to the airport on days of arrivals of flights from Europe"
(see also UNHCR comments to the Advisory Panel on County Information on 16 October 2005 Home Office Country Report for DRC, 8 March 2006 www.apci.org.uk).
Individual Embassy and EU Government Assessments
"Following investigation, the updated 'Ambtsericht' (the Dutch MFA's, general country information on the DRC) of September 2005 confirmed that, according to independent and reliable sources, returned Congolese asylum seekers from Europe, whose request for asylum was rejected and whose judicial appeals were exhausted, have encountered no problem with the DGM upon arrival in Kinshasa."
VSV and ASADHO Evidence
"VSV say they are paying a rent of $96 pcm to the RVA (Congolese airport authority) to maintain a small office on the first floor of the airport building above the check-in area (known as "la rotunde"). They also have an access pass given by the RVA to enable them to carry out the monitoring more effectively."
"… they gave an account of the return process which matched my own recollections, so personally I believe that they were monitoring on that particular day …"
"tendency to exaggerate some abuses for maximum impact in its initial declarations before being able to verify whether they are true or not. This has led to some climb-downs on their part in the past. All respondents also noted that VSV automatically take a de facto position of opposition against the government despite its stated independence."
"occasionally receive threats and criticisms from other NGOs and people connected to clandestine migration, because VSV refuses to help asylum claims by writing human rights appeals on behalf of paying individuals."
"Allegations of arbitrary detention [of failed returned asylum seekers] were found to be false, and in some cases the NGOs that made the allegation of ill-treatment and detention had links to the Ngulu networks that facilitate illegal immigration."
Evidence of E1 (Position B)
"… do face low-level harassment at N'Djili airport, such as being asked for bribes and having items 'confiscated' (stolen) from their luggage. However, such behaviour from the authorities is not confined to this particular group – most regular travellers through N'Djili experience this at some time. Travellers arriving from Europe are sometimes assumed to be better off financially and therefore an easy target. There are also some security agents who abuse their power and target civilians, this generally has opportunist crime as its primary motivation."
"…weak financial controls and lack of a functioning judicial system encouraged officials to engage in corruption with impunity. Many civil servants, police and soldiers had not been paid in years, received irregular salaries, or did not earn enough to support their families, all of which encouraged corruption. For example, local authorities continued to extort "taxes" and "fees" from boats travelling on many parts of the Congo River."
By contrast with developed states such as the countries of Western Europe, therefore, it can be seen that there is often a blurred line drawn by state officials between official and unofficial taxes and fees and this is understood by citizens and others who have dealings with them.
The Case of WY
"… two steps outside the gate, under the eyes of the Embassy staff, I was abducted. A jeep came after me and another one from the other side, and they blocked the road, and I was picked up and thrown into one of them. The staff at the Embassy can tell you what they saw."
"My brother arrived. I said: Alert that J.P. from the NGO, and alert the family. Explain also to the Red Cross what has happened."
"hereby wishes to convey you its indignation on the issue of the case of [W], expelled from Great Britain and detained in your institution at Kin Maziere since yesterday 27/02/07 …
Our organisation objects forcefully to the (use of) torture you apply in your institution, because this unfortunate (individual) bears traces of torture on his body." (emphases added).
"Movements and events directly outside the Embassy grounds are monitored 24 hours a day by CCTV and by Ghurkha Guards. Any such events would have been reported to the post security manager."
The Appellant's Central Submissions
Witnesses Who Did Not Materialise
27 February 2007 Charter Flight
"The interviews were mercifully free of the extortion that is sometimes a reality for ordinary Congolese returning to N'Djili after foreign trips. DGM staff mainly sought to confirm the nationality of the returnees.
They also asked questions about the returnees' time in the UK and their treatment during the return. All of the Congolese complained about the security before and during the flight, particularly the use of handcuffs and pre-flight detention times. Many said they had been forced to leave large quantities of personal belongings in the UK. Some of the DGM staff, though remaining helpful, questioned UK policy – referring to alleged cases within the 40% of children who had been sent back with one parent whilst the other remained in the UK and two (confirmed) cases of children born in the UK.
After about an hour and a half processing, 38 of the FAS were allowed to leave, where the majority of them were met by family and/or friends. We were not able to witness all of them departing, but at least 25 of the group were definitely able to leave the airport terminal unmolested. DGM staff assured us that all 38 were at liberty. Two even reached this Embassy to enquire ambitiously about appeals and visas before midday."
"In my time in Kinshasa, the vast majority of evidence I have seen suggests that returnees to the DRC are not abused – and the only claims we ever receive that this is not the case from the UK, not from within the DRC."
"About the arrival of the charter plane we received a witness statement from a reliable partner of ours who observed the arrival from beginning to end. The formalities at N'Djli airport took place without obvious rough treatment, though those leaving the plane were very stressed, according to his report."
Evidence of Specific Cases of Abuse of Returnees Generally
The "subjective" parts of the case
"You were born in Lumbumbashi and are of Muluba ethnicity. You are a practising Catholic.
Both of your parents were active members of the Union for Democracy and Social Progress (UDPS). Your father was President of the Yolo district of Kinshasa. Your parents were kidnapped by soldiers and detained. In 2001 your father was killed and your mother released.
After being arrested a second time your mother decided to flee and came to the United Kingdom (UK) and the family went into hiding. As far as you know, you are the only member of your family supporting the UDPS now, although you were all brought up with the beliefs.
You were married with a traditional wedding in December 2002. You have two step daughters.
When you left school in 2001 you enrolled at University to study for a nursing degree, but you did not have the opportunity to complete it.
You joined the UDPS in 2003 as an active member, before that you only attended meetings on a weekly basis. Your role was to work with and mobilise the young female members in your section. Your husband was President of the district of Makala where you lived. His role was to report to the National President Mr Tshisekedi. He was often away dealing with party activities.
You and your husband were arrested on 30 June 2005 during a march. You were both taken to IPK [Inspection de police de Kinshasa] (formerly Circo). Lots of people were arrested from different political parties. You were detained until 4 July 2005 as the National President of UDPS and other groups put pressure on the government.
You were told to stop your activities by the authorities. On 7 July 2005 you attended a huge meeting in the second stadium called Tata Raphael in Kinshasa and you continued your activities.
On 3 August 2005, 8-10 men entered your house, you assumed they were soldiers as they carried guns. They knocked on the door, and said if you did not let them in they would kill you. You hid in a room under the bed, but when your step daughter cried they found you and started to beat you, with their guns and long batons.
You and your sister were stripped and raped, whilst your husband was beaten as he was attempting to prevent the rape. Your husband collapsed and did not move. You and your husband were taken away to IPK detention centre, you knew your husband was dead. You have not seen him since.
You were detained for four days, on the second day you were questioned by the Police Chief in charge of IPK about your husband and Frank Kangundar [sic]. After four days you were taken to another prison and raped again, you then became ill from the treatment you had received and the lack of food and bad hygiene.
At the beginning of October 2005 you were taken to Mama Yemo Hospital and you had two guards accompany you at all times. On 6 November 2005 you escaped with help from the UDPS members. You asked for a nurse you knew  to help you. You went for a test in the laboratory and on the way back to your room, [the nurse] and other members of the UDPS created a disturbance, and as the guards went to sort it out you got taken outside to a car, and you were driven to Kinsuka.
You remained in hiding. Your brother in law arranged for you to flee the DRC via an agent. You left Kinshasa on 1 February 2006 and you landed in Congo Brazzaville and stayed in the airport with the agent. You fled to the UK via an unknown African country. You arrived in the UK on 3 February 2006. You claimed asylum at the Home Office in Croydon on 3 February 2006.
You have stated that if you return you fear the government, because you are wanted by them."
The Appellant's case
The appellant's mother
Evidence of E1 Regarding the Appellant's Case
"I have some reason to doubt the credibility of these answers, as none of the UDPS members that I or my colleagues spoke to had ever heard of these names before now – at which point the Makala branch became involved. The members we spoke to (prior to this point) have frequent dealing with many UDPS branches, particularly in Kinshasa (Makala is a suburb of Kinshasa) and would be in an excellent position to know branch Presidents; The fact that four middle-ranking and senior interlocutors did not know these names at all suggests to me that this could be an entirely local initiative."
Submissions Relating to the Appellant
Our assessment: the appellant's case
DR H H Storey, Senior Immigration Judge
Approved for electronic distribution
1) January 2004 Report By Former Congolese Immigration Officers About
Treatment Of Asylum Seekers Once They Are Returned To The DRC.
2) 16 April 2004 Voix des Sans Voix (VSV) Report: Programme Of
Observation, Information And Reception Of Persons Expelled From Europe And America.
3) 2 December 2004 Institute of Race Relations News (UK): The Grim Fate That
Awaits Those Deported To Congo.
4) 14 January 2005 Human Rights Watch: DR Congo: Army Should Not Appoint
5) 7 March 2005 Human Rights Watch: DR Congo: Tens of Thousands Raped,
6) 18 May 2005 HJT Research: Dead And Injured Reported At UDPS
Demonstration In Mbuji Mayi.
7) 18 May 2005 Integrated Regional Information Networks News (IRIN):
DRC: Police Impose Curfew On Mbuji-Mayi After Protests.
8) 28 June 2005 Amnesty International: Democratic Republic Of Congo:
Further Violence Feared As Clashes Erupt.
9) 30 June 2005 Inter Press Service News Agency (IPS): Politics-DRC:
Bullets, Not Ballots.
10) 30 June 2005 Integrated Regional Information Networks News (IRIN):
DRC: Seven Killed In Demonstrations, Hundreds Arrested.
11) 1 July 2005 Voice of America News: Congo Opposition Maintains Pressure.
12) 3 July 2005 Radio Okapi net: Dialogue Entre Congolese.
13) 4 July 2005 Reporters Sans Frontieres (Reporters Without Borders): Several Privately-Owned Stations Suspended; Journalists Rounded Up, Harassed And Assaulted: Reporters Without Borders And Journaliste En Danger Write To Kabila.
14) 1 August 2005 Human Rights Watch: DR Congo: Prominent Human Rights Defender Assassinated.
15) 12 August 2005 Immigration and Refugee Board of Canada: Treatment By
Government Authorities Of People Sent Back To The
Democratic Republic Of Congo After Their Application
For Asylum Abroad Has Been Rejected.
16) 1 November 2005 UK Home Office Science and Research Group Country of Origin Information Service: Democratic Republic Of The Congo COI Report October 2005.
17) 30 November 2005 Joint Council for the Welfare of Immigrants (JCWI): New
Evidence Of Abuse, Halt All DRC Deportations
Campaigners Tell Home Office.
18) 1 December 2005 BBC News (report by Jenny Cuffe): Asylum Questions For DR Congo.
19) 1 December 2005 BBC News (World Service transcipt): Assignment – Message From Mavembo.
20) 1 December 2005 HJT Research: BBC Reports On The Fate Of Asylum Seekers Returned To The Democratic Republic Of Congo.
21) circa 2006 Journalist in Danger: Franck Ngyke: The Mystery.
22) 3 January 2006 Integrated Regional Information Networks News (IRIN): DRC: Opposition Politician Ends Boycott Of Upcoming Polls.
23) 6 January 2006 Voice of America News: Congo Conflict Called Deadliest In The World.
24) 26 January 2006 UK Parliament House of Commons: Commons Hansard Written Answers Thursday 26 January 2006: Democratic
Republic Of The Congo (Prison Conditions).
25) 10 February 2006 United Nations High Commissioner for Refugees (UNHCR): Civilians Caught Up In DRC Fighting Tell UNHCR Of Atrocities Committed Against Them.
26) 15 February 2006 Office of the United Nations High Commissioner for Human Rights (OHCHR): Report Submitted By The Independent Expert On The Situation Of Human Rights In The Democratic Republic Of The Congo.
27) 17 February 2006 Immigration and Refugee Board of Canada: The Constitutional Referendum From 18 To 19 December 2005, Particularly The Conditions Of The Referendum, Its Results, And The Reactions Of Independent Observers And Opponents.
28) 21 February 2006 Human Rights Watch: DR Congo: End Illegal Exploitation Of Natural Resources.
29) 22 February 2006 Amnesty International: Democratic Republic of Congo (DRC): Time To End Threats Against Human Rights Defenders.
30) 27 February 2006 United Nations High Commissioner for Refugees (UNHCR): High Commissioner Guterres Warns Of Huge Risk For Conflict Again In DRC.
31) 1 March 2006 Integrated Regional Information Networks News (IRIN): DRC: Hundreds Flee Fighting In Ituri District.
32) 8 March 2006 US Department of State: Country Reports On Human Rights Practices 2005: Congo, Democratic Republic Of The.
33) 11 March 2006 HJT Research: UDPS Protestors Beaten, Arrested.
34) 20 March 2006 Immigration and Refugee Board of Canada: The Union For Democracy And Social Progress (UDPS), Particularly Whether Internal Factions Exist; The Attitude Of Government Authorities Toward UDPS Leaders And Members.
35) 22 March 2006 Integrated Regional Information Networks News (IRIN):
DRC: Tshisekedi Supporters In Demo For Inclusion In Electoral Bodies.
36) 30 March 2006 Voice of America News: Congo Militias Regroup, Recruit And Attack Army, UN.
37) April 2006 UK Home Office Country of Origin Information Service: Democratic Republic Of The Congo COI Report April 2006 [extracts].
38) 13 April 2006 Amnesty International: Urgent Action 91/06 – Democratic Republic Of Congo: Fear For Safety (Human Rights Activist Receives Death Threat).
39) 19 April 2006 United Nations High Commissioner for Refugees (UNHCR): Response To Information Request: Subject: DRC - Treatment Of Rejected Asylum Seekers.
40) 21 April 2006 Voice Of America News: Congo Election Date Slips As Officials Wade Through Tasks.
41) 25 April 2006 Voice of America News: Situation Deteriorates in Congo's Lawless Northeast.
41) 26 April 2006 HJT Research: Daily Telegraph: DRC National Army Soldiers Are A Threat And A Liability.
43) 27 April 2006 International Crisis Group: Congo's Elections: Making Or
Breaking The Peace.
44) 8 May 2006 Amnesty International: Urgent Action 126/06 - DRC:
Ill-Treatment And Torture/Harsh Conditions Of Detention / Medical Concern (Detainees At The Kinshasa Provincial Inspectorate Of Police Ill-Treated, Conditions Inhumane).
45) 18 May 2006 United Nations High Commissioner for Refugees (UNHCR): A 'Tsunami' In The Democratic Republic Of Congo Every Six Months: Guterres Urges Help For One Of The World's Most Under-Funded Emergencies.
46) 9 June 2006 Human Rights Watch: DR Congo: Journalists And Human Rights Defenders Under Fire.
47) 12 April 2006 European Union Heads of Mission: DRC: EU Report on Illegal Migration.
48) 4 July 2006 Amnesty International: Democratic Republic Of Congo (DRC): Acts Of Political Repression On The Increase.
49) 4 July 2006 Congoscopie: A Former DGM Officer Accuses Kanambe.
50) 21 July 2006 Human Rights Watch: DR Congo: As Vote Nears, Abuses Go Unpunished In Katanga.
51) 28 July 2006 Human Rights Watch: DR Congo: Violence Threatens Elections In North Kivu.
52) 16 October 2006 Human Rights Watch: DR Congo: Army Abducts Civilians For Forced Labor.
53) 30 November 2006 UK Home Office Immigration and Nationality Directorate (IND): Operational Guidance Note: Democratic Republic Of Congo.
54) 4 December 2006 UK Home Office Immigration and Nationality Directorate
(IND): Removals To The Democratic Republic Of Congo.
55) 6 December 2006 Voice of America News: Kabila Sworn In As DRC's Elected President.
56) 3 January 2007 Financial Times: Transparency Fears Lead To Review Of Congo Contracts.
57) 11 January 2007 Human Rights Watch: World Report 2007: Democratic
Republic of Congo.
58) 24 January 2007 Amnesty International: Further Information On Urgent Action 319/06 - DRC: Prisoner Of Conscience/Fear Of Torture Or Ill-Treatment And New Concerns: Possible Death Sentence/Unfair Trial/Health Concern (Marie-Therese Nlandu And Associates Put On Trial).
59) 25 January 2007 Amnesty International: Democratic Republic Of Congo:
Disarmament, Demobilization And Reintegration (DDR) And
The Reform Of The Army.
60) 1 February 2007 Integrated Regional Information Networks News (IRIN): DRC: Up To 20 Killed In Political Protest.
61) 1 February 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Violent Unrest In Matadi Leaves 10 Dead And Many Injured.
62) 5 February 2007 Committee to Protect Journalists: Attack On The Press 2006: Democratic Republic Of Congo.
63) 5 February 2007 HJT Research: Election Violence Leaves Nearly 100 Dead.
64) 5 February 2007 United Nations News: UN Steps Up Police Presence In Troubled Province Of DR Congo Following Violence.
65) 7 February 2007 United Nations Mission in the Democratic Republic of Congo
(MONUC): MONUC Demands Of The Authorities To Respect The Law.
66) 8 February 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): The Human Rights Situation In The Democratic Republic Of Congo (DRC) During The Period Of July To December 2006.
67) 13 February 2007 Integrated Regional Information Networks News (IRIN): DRC: Prisoners Endure Appalling Conditions.
68) 14 February 2007 UK Home Office Science and Research Group Country of Origin Information Service: Democratic Republic Of The Congo COI Report February 2007.
69) 16 February 2007 Oxfam: A Fragile Future: Why Scaling Down MONUC Too Soon Could Spell Disaster For The Congo.
70) 20 February 2007 United Nations Mission in the Democratic Republic of Congo
(MONUC): Monthly Human Rights Assessment: January 2007.
71) 21 February 2007 United Nations News: DR Congo: Army And Police
Continue To Violate Civilians' Human Rights, Says UN
72) 21 February 2007 Office of the United Nations High Commissioner for Human Rights (OHCHR): Report Of The Independent Expert On The Situation Of Human Rights In The Democratic Republic Of The Congo.
73) 22 February 2007 Amnesty International: Urgent Action 43/07 - DRC: Death Threat/Fear For Safety/Fear Of Arbitrary Arrest (Lawyer Threatened With Death After Calling For A Judge To Be Removed From A Case).
74) 27 February 2007 Refugee Council (UK): Colin Firth Voices Outrage At Deportations To Congo.
75) 6 March 2007 US Department of State: Country Reports On Human Rights Practices 2006: Congo, Democratic Republic Of The.
76) 8 March 2007 Amnesty International: Democratic Republic Of Congo: No Justice For Rape Victim Bitondo Nyumba.
77) 12 March 2007 UK Parliament House of Commons: Commons Hansard Written Answers Text 12 March 2007: Democratic Republic Of Congo: Asylum.
78) 19 March 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Monthly Human Rights Assessment: February 2007.
79) 20 March 2007 UK Parliament House of Commons: Commons Hansard Debates 20 March 2007: Democratic Republic Of The Congo.
80) 20 March 2007 United Nations: Twenty-Third Report Of The Secretary-General On The United Nations Organization Mission In The Democratic Republic Of The Congo.
81) 22 March 2007 Voice of America News: Gunbattles Rage In DRC Capital.
82) 22 March 2007 World Organisation Against Torture (OMCT)/International Federation for Human Rights (FIDH): Steadfast In Protest: 2006 Annual Report Of The Observatory For The Protection Of Human Rights Defenders (Democratic Republic Of Congo).
83) 23 March 2007 HJT Research: Second Day Of Fighting Between Government Troops And Forces Of Ex-Rebel Leader In Kinshasa.
84) 23 March 2007 Immigration and Refugee Board of Canada: Democratic Republic Of Congo: The State Security Forces, Including Their Name, Mandate And Organization; Whether Members Of These Forces Are Involved In Human Rights Violations.
85) 23 March 2007 Immigration and Refugee Board of Canada: Democratic Republic Of Congo: The Union For Democracy And Social Progress, Particularly Its Current Status, Its Relationship With The Government And The Treatment Of Its Members By The Government Authorities And Security Forces.
86) 23 March 2007 Integrated Regional Information Networks News (IRIN): DRC: Echoes Of The Past As Bemba Guards Fight Government Forces.
87) 24 March 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Calm Returns To Kinshasa.
88) 27 March 2007 HJT Research: EU Believes That Up To 600 May Have Died In Kinshasa Fighting.
89) 28 March 2007 Reporters Sans Frontieres (Reporters Without Borders): Bemba-Owned Media Ransacked, Broadcasts Suspended, Staff Gone Into Hiding.
90) 29 March 2007 Voice of America News: Former VP Bemba Expected To Leave DRC.
91) 4 April 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): MONUC: One Must Not Establish A Climate Of Persecution Against The Opposition.
92) 11 April 2007 Voice of America News: Congo's Bemba Leaves For Portugal While Supporters Feel Persecuted.
93) 12 April 2007 Voice of America News: Congo Prosecutors Ask For Removal of Bemba's Immunity.
94) 16 April 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Monthly Human Rights Assessment - March 2007.
95) 1 May 2007 Amnesty International: Democractic Republic Of Congo (DRC): Marie-Therese Nlandu Case Demonstrates Need For Urgent Reform Of Police And Security Sector.
96) 8 May 2007 UK Home Office Country of Origin Information Service: Democratic Republic Of The Congo COI Report.
97) 9 May 2007 United Nations High Commissioner for Refugees (UNHCR): UNHCR Fears For Congolese Civilians Caught In Violence.
98) 10 May 2007 Committee to Protect Journalists: In DRC, Journalist Jailed After Seeking Comment From Official.
99) 17 May 2007 Integrated Regional Information Networks News (IRIN): DRC: Accelerate Prison Reforms, Urges UN Human Rights Commissioner.
100) 17 May 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Monthly Human Rights Assessment: April 2007.
101) 17 May 2007 United Nations News: Intimidation Hampers Probe Into Post-Election Violence In DR Congo – UN.
102) 23 May 2007 Amnesty International: Amnesty International Report 2007: Democratic Republic Of Congo.
103) 24 May 2007 Office of the United Nations High Commissioner for Human Rights (OHCHR): Preliminary Note Of The Special Rapporteur On The Independence Of Judges And Lawyers On His Mission To The Democratic Republic Of The Congo.
104) 28 May 2007 Integrated Regional Information Networks News (IRIN): DRC: Massacred Villagers Found Dead In Their Beds.
105) 31 May 2007 United Nations News: UN Human Rights Chief 'Appalled' By Sexual Violence In DR Congo, Burundi.
106) 1 June 2007 Committee to Protect Journalists: In DRC, Police Disrupt Media Group Meeting, Assault Journalists.
107) 11 June 2007 Voice of America News: Congo Opposition Wants Solution To Bemba Problem.
108) 14 June 2007 Le Potential (Allafrica.com): The Lieutenant Kayembe General Bandaged Kulu, New Chief Of Staff General Of The FARDC.
109) 14 June 2007 Reporters Sans Frontieres (Reporters Without Borders): Leading Congolese Journalist Employed By UN-Backed Radio Gunned Down In Bukavu.
110) 15 June 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): MONUC And Radio Okapi Condemns The Murder Of Its Bukavu Journalist Serge Maheshe.
111) 15 June 2007 Voice of America News: Congo Soldiers Charged With Killing UN Journalist.
112) 18 June 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Tshikapa Prison - A Mortuary.
113) 19 June 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Monthly Human Rights Assessment: May 2007.
114) 23 June 2007 Docu Congo: A Report About Congolese Who Have Been Refouled To Kinshasa.
115) 27 June 2007 Committee to Protect Journalists: In DRC, A Nationwide Pattern Of Attacks Raises Alarm.
116) 28 June 2006 Le Potential Le Palmores News Item.
117) 4 July 2007 Office of the United Nations High Commissioner for Human Rights (OHCHR): High Commissioner For Human Rights Concerned At Kilwa Military Trial In The Democratic Republic Of The Congo.
118) 10 July 2007 United Nations News: DR Congo: UN Envoy Deplores Murder Of Politician In Volatile East.
119) 24 July 2007 Speech to UK APPG GL Parliament by Ms Marie Therese Nlandu.
120) 13 July 2007 United Nations High Commissioner for Refugees (UNHCR): DR Congo: UNHCR Increasingly Concerned By Spiralling Displacement And Atrocities.
121) 27 July 2007 United Nations News: DR Congo: UN Report Deplores Excessive Use Of Deadly Force, Impunity In Poll Clashes.
122) 30 July 2007 Office of the United Nations High Commissioner for Human Rights (OHCHR): UN Expert On Violence Against Women Expresses Serious Concerns Following Visit To Democratic Republic Of Congo.
123) 31 July 2007 UK Home Office: Country Of Origin Service Report: Democratic Republic Of Congo.
124) 2 August 2007 Integrated Regional Information Networks News (IRIN): DRC: Calm Returns After Anti-Banyamulenge Demo - UN.
125) 2 August 2007 United Nations News: Continuing Attacks On Congolese Journalists Draw Concern From UN Mission.
126) 3 August 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): MONUC Concerned About The Incitement Of Inter-Communitarian Hatred In DRC.
127) 6 August 2007 Integrated Regional Information Networks News (IRIN): DRC: Starving Detainees Escape South Kivu Prison.
128) 6 August 2007 Journal of Humanitarian Assistance: Hell On Earth - Systematic Rape In Eastern Congo.
129) 6 August 2007 United Nations Children's Fund (UNICEF): V-DAY, UNICEF Call For End To Rape, Sexual Torture Against Girls In Eastern DRC.
130) 6 August 2007 United Nations Mission in the Democratic Republic of Congo (MONUC): Monthly Human Rights Assessment: June 2007.
131) 7 August 2007 Committee to Protect Journalists: In DRC, Journalist Jailed For Not Airing Politician's Interview.
132) 7 August 2007 Office of the United Nations High Commissioner for Human Rights (OHCHR): Committee On Elimination Of Racial Discrimination Considers Report Of Democratic Republic Of Congo.
133) 10 August 2007 Committee to Protect Journalists: In DRC, Photojournalist Assassinated.
134) 21 August 2007 [S] Family Must Stay: Campaign Open Letter.
135) 24 August 2007 HJT Research: UK Court Orders Halt On Returns Of Failed Asylum Seekers To DRC.
136) 29 August 2007 Voice of America News: Journalist Rights Group In DRC Outraged Over Death Sentences.
137) 31 August 2007 Amnesty International: Health Professional Action: Enforced Disappearance Of Medical Doctor: Democratic Republic Of The Congo (DRC).
138) 31 August 2007 United Nations News: Spiralling Violence In Far Eastern DR Congo Leads UN Mission To Send Troops.
139) 2 September 2007 Voice of America News: Dissident Congolese General Warns Of War As Troops Move.
140) 4 September 2007 Office of the United Nations High Commissioner for Human Rights (OHCHR): Written Statement Submitted By The Society For Threatened Peoples (DemocraticRepublic Of Congo: No End To Sexual Violence Against Women And Children).
141) 5 September 2007 Voice of America News: Congolese Accuse UN Of Failing To Halt Fighting.
142) 6 September 2007 United Nations Office for the Coordination of Humanitarian Affairs (OCHA): DR Congo: UN Humanitarian Chief - "Stories That Go Beyond The Imagination".
143) 7 September 2007 United Nations News: As Tens Of Thousands Flee In Eastern DR Congo, Fighting Hampers UN Food Aid.
144) 8 September 2007 Voice of America News: Humanitarian Group Says Tens Of Thousands Displaced By Violence In Eastern Congo.
145) 9 September 2007 All African com: British Justice Will Rule On Fact Of The Congolese Immigrants.
146) 10 September 2007 Amnesty International: Democratic Republic Of Congo (DRC): Escalating Violence In North-Kivu Deepens Risk Of Mass Ethnic Killings.
147) 10 September 2007 HJT Research: Washington Post: UN Official Says Rape Is Worse In DRC Than Anywhere Else In The World.
148) 11 September 2007 United Nations Office for the Coordination of Humanitarian Affairs (OCHA): Briefing To The Security Council By John Holmes, Under-Secretary-General For Humanitarian Affairs And Emergency Relief Coordinator On Mission To DR Congo, 03 - 08 Sept 2007.
149) 13 September 2007 Institute for War and Peace Reporting (UK): Storm Gathers Over Eastern Congo.
150) 13 September 2007 Voice of America News: AIDS Activist Accuses UN, Western Nations Of Ignoring Congo Sexual Abuse.
151) 16 September 2007 The Observer: Torture Fate Awaits UK Deportees.