NA (risk categories, Hema) Democratic Republic of Congo CG

NA (risk categories – Hema) Democratic Republic of Congo CG [2008] UKAIT 00071

Date of hearing: 30 June 2008

Date Determination notified: 29 September 2008

This is the reconsideration of an appeal against the respondent's decision made on 23 March 2005 refusing to vary the appellant's leave to remain following the refusal of his claim for asylum.

The appellant is a citizen of the Democratic Republic of Congo (DRC) born on 12 April 1986. He arrived in this country on 28 May 2003 claiming asylum on 15 July 2003. His application was refused on 12 August 2003 but he was granted limited leave to remain until 11 April 2004. On 19 February 2004 the appellant applied for further leave to remain on the grounds that he would be at real risk of persecution on return to the DRC because he belonged to the Hema ethnic group. The respondent did not believe the appellant's account of events in the DRC taking the view there were grave doubts about the appellant's claim to be a member of the Hema and did not accept that he would be at real risk of serious harm on return or that there would be a breach of Article 8. On 23 March the respondent refused the appellant further leave to remain.

The appellant's claim was that he had been forced to flee the DRC following an attack on his home village in which his father had been killed, his mother raped and his brothers and sisters had fled. He also claimed to be at risk because he was a member of the Hema which was in dispute with the Lendu. There had also been an attempt to recruit him to the Union of Congolese Patriots (UPC) by a man (T) who used to take boys of the appellant's age to join in order to fight the Lendu.

The respondent set out his reasons for refusing the application in the original reasons for refusal letter of 12 August 2003 as follows:

These reasons were adopted in the reasons for refusal letter of 23 March 2005 and the respondent's view was that the appellant had not give a truthful account of events in the DRC.

The hearing before the Immigration Judge

At the hearing before the Immigration Judge the appellant relied on a witness statement in which he confirmed his description of the attack on the houses in the village, the fact that T had tried to force him to join the UPC and there had been an occasion when he had been chased by them to conscript him. He said in his oral evidence that the Hema were still being killed by the Lendu because of their ethnicity and that his life would be in serious danger if he had to return to the DRC. He was a member of the Hema from the south and could speak some Kihema but not fluently. His parents had moved to Bunia before he was born. He had now built a new life for himself in this country and had worked hard to educate himself and become a responsible person.

In cross-examination he said that when the RCD men came to their house he was in the living room. He repeated the description of the attack on his father and mother and said that during the fracas he was able to flee out of the back door. There were no rebels at the back of the house and he was able to join other villagers who were running away. He accepted that in the DRC he had never been arrested or detained. He said that he could not return to live in another part of the country because it would be known that he was Hema from his accent.

The findings of the Immigration Judge

The immigration judge believed that the appellant's account was true. He said that he kept in mind that when the appellant had arrived in this country he was only 17, he had immediately sought the assistance of the Red Cross here and been put into the care of Social Services. The judge accepted this explanation for the delay in claiming asylum. At his interview he had been questioned in English as a Swahili interpreter was not available and the judge accepted that this adequately explained any discrepancies. He found that the appellant's account was consistent with the objective evidence for 2003. He accepted that the appellant was at his home when RCD rebels attacked the village and his father was killed and mother raped. He found that everything the appellant said happened in May 2003 was amply supported by the objective evidence which showed that at that time there was a conflict between the Lendu and Hema and that the RCD, on behalf of the Lendu, had carried out horrific attacks on Hema including killings and rapes.

However, the judge said that the appellant's evidence must be seen in the context of a civil war and there was no evidence that the appellant and his family were specifically targeted. As the judge expressed it, in paragraph 103 of his determination, they were simply caught up in the ethnic frenzy that was going on at the time. He found that the situation in the Ituri area and around Bunia had substantially improved and, although there may well still be isolated incidents, the situation was not what it was in 2003. He commented that the appellant had not been personally harmed and had never suffered physical harm. He found on the evidence before him that there was no real likelihood of the appellant being persecuted on return to the DRC on account of his ethnicity or his actual imputed political beliefs. He accepted that the appellant had no family in the DRC but found that he was a fit young man who was well able to return to the DRC. The appeal was dismissed on asylum and human rights grounds.

Reconsideration was ordered on the appellant's application and the Tribunal (Senior Immigration Judge Perkins, Ms P L Ravenscroft and Mr F T Jamieson) found that the judge had materially erred in law as follows:

The Tribunal directed that the existing findings of fact on the appellant's evidence were to stand and reconsideration was limited to arguments about the risk, if any, that the appellant would face in the event of his returning to the DRC on account of his ethnicity whether he could avoid such risks by relocating.

The parties were subsequently notified that this appeal would be listed for potential country guidance on the issue of whether there was a risk on return to members of the Hema tribe from Ituri and on whether re-internal relocation was available. The matter is listed for us to consider these issues. It was also accepted that we should reconsider the Article 8 appeal in the light of the opinions of the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 .

Evidence at this hearing

The appellant's documentary evidence is set out in a bundle indexed and paginated 1– 445 including an expert report from Erik Kennes dated 12 June 2008 (A5) with a further supplementary report dated 25 June 2008 and a report from Claudia Seymour dated 18 June 2008 with a supplementary report of 25 June 2008. The appellant and his partner have filed further witness statements both dated 27 June 2008. Mr Henderson has produced a skeleton argument. The respondent's documents are contained in a bundle R (1-28 together with the COI report for the DRC February 2008 and May 2008). A full list of the background evidence before the Tribunal is set out in the appendix. The appellant, his partner and Ms Seymour gave oral evidence.

The evidence of the appellant

In his further witness statement the appellant said that he had no family in the DRC that he knew of. He was born in Bunia and lived there with his parents. He had never left that area or lived in any other part of the country. It would not be safe for him in Kinshasa because he was a member of the Hema. The Hemas were farmers, keeping cattle and cultivating the land. His father had a small farm and a shop selling produce. He had tried to find his family through the Red Cross in this country but to no avail. He now lived with his partner. They had a daughter born on 13 September 2005 and his partner was now some ten weeks' pregnant. She also had a son who had been born to her in Kenya.

The evidence of the appellant's partner

The appellant's partner said that she was in fear of returning to Kenya. She is a Kenyan citizen who has applied for asylum. Her appeal has been dismissed. The judge accepted her account of events but came to the view that she would be able to relocate in a non-Kikuyu area. She did not accept that this was the case and her representatives had made further submissions to the respondent. She was afraid of going to the DRC with the appellant. She was pregnant. She had one son settled at school and a young daughter. If she was allowed to marry the appellant, she would. She could not put her children or her unborn child at risk by taking them to the DRC.

In cross-examination she confirmed that her daughter had been born when she was living in a hostel. She had been anxious for her son to be happy with her relationship with the appellant. He used to come to stay with her at weekends and sometimes in the middle of the week. They had now started living together.

The evidence of Claudia Seymour

Ms Seymour has served as a Child Protection Officer with the United Nations Department of Peacekeeping Operations (MONUC) in the DRC from February 2006 to June 2007. She has personal and professional experience of the Eastern DRC and has carried out doctoral research on children's experience of violent conflict in North Kivu. In her report dated 18 June 2008 she provides evidence about the situation in the Ituri district of the Eastern DRC and an assessment of the potential dangers that the appellant might face were he to be returned there.

She says that the situation in Ituri district although safer than it was when the appellant initially claimed asylum, remains highly insecure. There are inter-communal tensions and the government does not exert effective control anywhere in the district. Dissident militias remain active and local communities are heavily armed. There is considerable political uncertainty in the lead-up to the local elections planned for 2009. She warns that caution should be used when discussing terminology such as "the Hema" and "the Lendu": these are ethnic classifications over-simplifying the complexity, history and politics of group dynamics in Ituri. However, these classifications are real and it is her view that there is the possibility that the appellant will be targeted for his Hema ethnicity in acts of retributory violence.

She says that the current levels of insecurity in Ituri should not be underestimated where there remains serious concern about the presence of armed groups and militias. Most of the armed groups in Ituri have been brought under control but dissident factions of the FRPI, FNI and FARDC have caused large scale civilian displacement. There are high levels banditry and criminality particularly in the urban centre of Bunia. There is a local perception that Hema men are being targeted by soldiers and police in reprisal killings and since the beginning of 2008 six Hema taxi drivers have been killed. Young men in Ituri are at real risk of forced recruitment to local militias or conscripted labour in the mining and timber industries on behalf of militia commanders or by FARDC.

In her supplementary report dated 25 June 2008 Ms Seymour comments on the appellant's situation were he and his family to return to Kinshasa. A young family returning there without a family or support network would in her opinion struggle to survive as there are effectively no state provisions. Young children would be especially at risk of serious malnutrition, illness and death. According to UNICEF, under-5 mortality rates in the DRC were 205 per 1,000 births in 2006 making it the ninth highest country in the world for under 5 mortality rates.

In her oral evidence she confirmed that in her view young children would be particularly at risk in Kinshasa, particularly new arrivals, as they would not have built up any natural immunity. There was evidence of prevalent sexual violence in the DRC which could be described as an epidemic. It had been used as a weapon initially by the military but now, it was happening in a civilian context.

In cross-examination she said that in the DRC, the perception was that the Hema were cousins of the Tutsi and came from Rwanda. In Kinshasa there was a xenophobic attitude to Rwandans. Hema would be recognised from their facial and body structure although she accepted that it was right to be cautious about such generalities. On return to Kinshasa survival would be extremely difficult. Even if the appellant had money he would targeted for extortion. Survival would be difficult. She accepted that there were wealthy Tutsis in Kinshasa who were able to obtain protection and had the resources to leave in case of trouble. She said that she had not met the appellant before the hearing, but she could see immediately from his appearance that he would be recognised as a member of the Hema.

In re-examination she referred again to the fact that since the beginning of 2008 six Hema men had been killed in what appeared to be acts of retribution. There was a generalised risk in the DRC but in addition a risk arising from being a member of the Hema. There was a particular problem in Kinshasa for internally displaced people. She had no experience or knowledge of someone being returned to the DRC who had been able to obtain work.

The expert report of Erik Kennes

In his report dated 12 June 2008 Mr Kennes deals with the general situation in the DRC and then turns to the situation in Ituri and Bunia (A27ff). The basis of his expertise on the DRC is set out at pages 1-2 of his report. For the purposes of this determination we need only set out the briefest of summaries of Mr Kennes' comprehensive account. He says that there were a number of structural conflicts in the Ituri region which were more or less kept under control before the war started in 1998. Basically two ethnic groups are pitted against each other: the Lendu, who are of Sudanese origin and mainly agriculturalists and the Hema, of Bantu origin and mainly pastoralists. He says that even if this parallel is not entirely correct it is constantly used to explain the support of the Ugandan army for the Hema whereas the Kinshasa government is generally accused of supporting the Lendu. His view is that the Hema, Lendu and other ethnic groups in the area have constantly been manipulated by Ugandan army officers and in a later phase by the Rwandan government and that the conflict is kept alive by outside forces to gain access to the huge gold reserves in the region. At times the conflict has run totally out of hand, the only constant element being the strategies by the Ugandan and Rwandan governments for control of the natural resources in the region.

The conflict abated to a certain extent in May 2003 when the leaders of the different factions signed a peace agreement in Dar-Es-Salaam. In June 2003 a military intervention of the European Union calmed the situation down and in September 2003 MONUC forces took over that mission. They settled the situation to a certain extent but left free space for armed factions in the areas uncontrolled by MONUC. By way of example Mahigi was a battleground between the FNI (Lendu) and the FAPC in a struggle for control of customs posts and goldmines. However, some civil administration has been restored and the arrest of some 30 leaders of armed groups has made a significant impact on the region. However, there continued to be fighting between various armed groups but by November 2006 the remaining Ituri armed groups had signed a comprehensive peace agreement with the government agreeing to surrender their weapons and to enter the process of disarmament, demobilisation and reintegration. The only movement that refused to carry out an agreement was Peter Karim's against whom decisive military action was taken. He surrendered with his main officers in April 2007. It is Mr Kennes' view that although the situation has calmed down in Ituri, the armed conflicts between a myriad of armed factions continues not always along ethnic lines but mainly for the control of lucrative natural resources.

When dealing with the position of those with a Hema profile Mr Kennes says (at A56):

Mr Kennes says that the relevant authorities in the DRC regard the Hema as close to the RDC and Kigali. He continues:

Insofar as the appellant is concerned Mr Kennes makes the point that he has an ethnic Hema profile and is physically recognisable as a member of the Hema. His opinion is that if left on his own in Kinshasa the appellant would run a security risk and he would also be at risk as a failed asylum seeker coming from this country. He would run the risk of being perceived as a member of an anti-government movement linked to the Tutsi groups in Kivu. This would warrant further interrogation in the Kin Maziere detention centre where he would be at risk of cruel, inhuman and degrading treatment. The risk to him as a member of the Hema is based on the association made by the Congolese between Hema and Tutsi. The Hema-Hima-Tutsi are put "in the same bag" by the Congolese and regarded as enemies. This cultural factor must be taken together with the social background. The Hema were advantaged by the Belgian colonisers just as the Tutsi were considered to be. The Hema had a higher social status and possessed much of the land in Ituri. Finally there is also a political element; some Hema groups (as for example the militia of Thomas Lubanga) have been supported by the Rwandan regime thus reinforcing the association between Hema and Tutsi. Mr Kennes sets out in his report how he forwarded a picture of the appellant to four different people from the east of the DRC, one of whom specialised in the Ituri region. Their reply was unanimous: the form of the appellant's face, his nose and lips portrayed a Hema physiognomy. This was not the same as a Tutsi physiognomy but in Kinshasa and the western part of the country the Hema tribe was associated with the Tutsi even if they were physically different. He says that the appellant is clearly identified as a member of the Hema and would be so identified by the relevant immigration and security services on arrival.

Submissions

In her submissions Mrs Tanner accepted that the issue was whether the appellant would be at real risk as a member of the Hema on return to Kinshasa. She submitted that he would receive protection in government controlled areas. She relied on the OGN of August 2007 and in particular paragraphs 3.10.6 and 9. She submitted that much of Mr Kennes' report was historical and that the situation had now improved in Ituri. The evidence about the appellant's physical appearance should be treated with caution. The views expressed by Mr Kennes were not his own but those of anonymous sources. There was no adequate evidence that the appellant would be at risk because of his appearance. She submitted he was not entitled to asylum or humanitarian protection nor would he be at risk of a breach of Article 3. However, she accepted in the light of the opinions of the House of Lords in Beoku-Betts that removal would be a disproportionate interference with the appellant's family and private life. She accepted that family life existed between the appellant and his partner and her son, that they had one child and that his partner was expecting another child. It would not be reasonable to expect her to return with him to the DRC or for him to return to make an application for entry clearance.

Mr Henderson submitted that the appeal should also succeed on asylum grounds. He argued that the appellant would be at risk not only in his home area but also in Kinshasa. Even if the question of internal flight did arise, in the light of his family circumstances, it must follow that it would be unduly harsh to expect him to relocate. There would be no adequate protection in Ituri and it would not be reasonable for him to return to Kinshasa. There was clear evidence to show that in the eyes of the DRC authorities the Hema were associated with Rwandans and Tutsis. It was accepted that the appellant was a member of the Hema and this alone would put him at risk. In any event there was cogent evidence that he would be identified as a member of the Hema and would be at risk in Kinshasa.

Article 8

Mrs Tanner conceded that the article 8 appeal should succeed and we need deal no further with that matter save to make it clear that this concession was properly made. The appellant's partner is a Kenyan citizen whose own claim for asylum was refused and her appeal dismissed in a determination issued on 22 November 2007. The Immigration Judge accepted that there was a real risk of FGM in her home area but found that she would be able to relocate. He also found that it would not be a breach of Article 8 for the appellant and her family to relocate in Kenya. We were told that further representations have been made to the respondent and they must be for her to consider. However, the question for us is not whether the appellant's partner and family should be returned to Kenya but what the position would be on return to the DRC. In the light of the evidence of Ms Seymour it would be unreasonable to expect the appellant's partner with her children to return with the appellant to the DRC and for the appellant to be separated from her and their daughter.

The Asylum Appeal

We remind ourselves that the appellant is entitled to asylum if owing to a well-founded fear of persecution for a Convention reason he is outside his country of nationality, the DRC, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. He has to show there is a reasonable degree of likelihood that he faces such persecution. This test can also be expressed as whether there is a real risk of persecution. We have taken into account the provisions of the Refugee or Persons in need of International Protection (Qualification) Regulations 2006 which, together with amendments to the Immigration Rules, have brought into effect the provisions of the Qualification Directive 2004/83/EC.

The Situation in the DRC

We do not need to deal at any great length with the background situation in the DRC which has already been covered extensively in previous country guidance determinations and in particular AB and DM (Risk categories reviewed – Tutsis added) DRC CG [2005] UKIAT 00118 and BK (Failed asylum seekers) DRC CG [2007] UKAIT 00098 . This appeal has focused on the situation in Ituri in the eastern DRC and in particular the conflict between the Hema and the Lendu. The general position has been summarised in the Human Rights Watch Report 2008 in para 8.23 of the COI Report May 2008 as follows:

This summary confirms in more general terms the description given by Mr Kennes.

In the OGN of 20 August 2007 (A138-9) it is accepted that serious incidents of violence between the Lendu and Hema ethnic groups in the Ituri area in Orientale province have been occurring since 2002 and serious human rights abuses have been perpetrated by both sides. It records the gains made on the military front in 2005 but accepts that the overall security situation remains fragile. Dealing with the issue of sufficiency of protection, para 3.10.6 reads as follows:

The OGN goes on to deal with the issue of internal relocation. It accepts that movement between the different areas in the DRC can be hazardous but concludes as follows:

The Current Country Guidance

As we have already indicated, the current country guidance on the issue we are concerned with is found in AB and DM (Risk categories reviewed – Tutsis added) DRC CG [2005] UKIAT 00118 . The Tribunal summarised its findings in paragraph 51 as follows:

The Tribunal gave further guidance in paragraphs 53 and 54 as follows:

The Risk to the Hema

The issue raised in this appeal is whether there is a risk on return to the DRC for members of the Hema tribe from Ituri and whether internal relocation is a viable option. In the light of the current situation in Ituri and the history of conflict between the Hema and the Lendu, even though the situation is being brought under some control, a member of the Hema tribe may be potentially at risk of serious harm on return to the Ituri region. Whether any particular members of the Hema will in fact be at real risk must take into account not only his ethnicity but also his background and profile. The appellant's account accepted by the original Tribunal was that he was able to escape when his home was attacked by RCD rebels, an attack in which his father was killed and his mother raped. Taking into account the provisions of para 339K of HC 395 that the fact that a person has already been subjected to persecution or serious harm will be regarded as a serious indication of a person's well-founded fear of persecution or real risk of serious harm, unless there are good reasons to consider that the persecution or serious harm will not be repeated, although there has been some improvement in Ituri, in the light of what has happened to this appellant in the past we find that there is at least a real risk that the appellant will be at real risk of further serious harm as a member of the Hema. We also are satisfied that when this attack is looked at in the context of the violence in Ituri, the appellant was not simply a victim of the civil war but the attack was motivated by the ethnic conflicts in that region.

Internal Relocation

The must now consider whether the appellant in his particular circumstances is able to relocate in government controlled areas. It is the respondent's case that he can but it was argued on behalf of the appellant that members of the Hema are treated in the same way as Tutsis/Rwandans and for this reason he would be at risk in Kinshasa or any other government controlled area. On this issue there is ample evidence to show the hostility of the DRC authorities to those of Tutsi or Rwandan origin. This issue was explored at length in AB and DM . The issue for us is whether the Hema will be treated in the same light. We accept Mr Kennes' evidence on this issue. The authorities do associate the Hema with the Tutsi for the reasons set out in Mr Kennes' evidence. There are cultural, social and political reasons behind this perception which, whether justified or not, is real in the eyes of the DRC authorities. The respondent argued that the appellant would be able to look to the authorities for protection. It may be that some members of the Hema or persons perceived in the same way as Tutsis by reason of their official position or wealth may be able to do so but the appellant does not fall within any such category or otherwise have characteristics which could lead to a conclusion that he would not face the same risk as other members of the Hema.

The risk to the appellant arises from the fact that he is a member of the Hema but his appearance will in any event give him away. In Mr Kennes' report he says that he forwarded a picture of the appellant to four different people from the East of the DRC and that their reply was unanimous: the form of his face, his nose and lips betrayed a Hema physiognomy. Mrs Tanner rightly made the point that this evidence was second hand evidence from anonymous people and for this reason it must be treated with caution, but it was confirmed by Ms Seymour's evidence given at the hearing that although she had not seen the appellant before, she could see immediately from his appearance that he would be recognised as a member of the Hema. We accept that this view is genuinely expressed and that Ms Seymour has the experience of working in the DRC from February 2006 to June 2007 and for this reason is in a position to give an informed view. We also note that it was accepted in the evidence before the original Tribunal that the appellant spoke Kihema. We are therefore satisfied that the appellant not only is a member of the Hema but would be recognised as such and for this reason be at real risk in Kinshasa.

For the sake of completeness we make it clear that even if it was safe for the appellant to return to Kinshasa in our view it would be unduly harsh to expect him to relocate there because of his family and domestic circumstances as outlined when dealing with the Article 8 appeal.

So far as country guidance is concerned we confirm the guidance given in AB and DM amending it to the extent that the risk category in paragraph 51(2) should include those from the Hema tribe who are likely to be treated by the DRC authorities in the same way as Tutsis and Rwandans. We adopt and repeat the guidance in paragraph 53 of AB and DM that although the Hema come within a risk category, clan or tribal membership by itself is not determinative. Whether an appellant is at risk or is able to relocate depends not only on his ethnicity but also on his own background and circumstances looked at in the light of the country evidence as a whole.

In the light of our findings we do not need to deal with the humanitarian protection appeal or with the issues which arise particularly under paragraph 339C(iv).

Decision

The original Tribunal materially erred in law. We substitute a decision allowing the appeal on asylum, Article 3 and Article 8 grounds. The appeal on humanitarian protection grounds is dismissed.

We are satisfied that at the time when reconsideration was ordered, the appeal had substantial prospects of success. We order that the costs of the application for reconsideration, the preparation for reconsideration and the reconsideration be paid from the relevant found within the meaning of rule 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Signed Date: 4 September 2008

Senior Immigration Judge Latter

Schedule: Background Evidence before the Tribunal