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Evidence showed that failed asylum seekers were at no risk if returned to the Democratic Republic of Congo. By contrast, however, those deported on the basis of criminal conduct in the UK were at real risk of ill-treatment and ought not to be deported until this risk was removed.
9 December 2013
(1) This case concerned the issue of whether persons removed to the Democratic Republic of Congo (‘DRC') against their will were at risk of ill-treatment contrary to Article 3 ECHR by reason of their status as
(a) a failed asylum seeker or
(b) a criminal deportee.
(2) The proceedings were brought by a failed asylum seeker, R, who argued that the country guidance set out in BK (Failed Asylum Seekers) DRC CG  UKAIT 00098, which supported deportation, should not be followed, and that more recent evidence should be relied upon. P, the second Claimant, was subject to deportation, pursuant to section 32 of the UK Borders Act 2007, as a consequence of his criminal convictions in the UK. He also had a failed asylum claim.
(3) The new information sought to be relied upon in preference to the country guidance was a statement by a DRC Ambassador who stated that those who committed offences in the UK had to be suitably punished when they return to the DRC. The DRC Ambassador clarified his statement on in August 2012, stating that what he had meant was that families would be reunited where asylum claims had failed, but where individuals were deported for having committed offences, they would be held in custody while the justice system clarified their situation.
(4) A Fact Finding Mission followed this, and a County Policy Bulletin was issued in November 2012, which confirmed that removals to the DRC could take place. The Bulletin referred to the United Nations, Amnesty International and Human rights Watch, which had facilitated over 400 returns between 2009 and 2012, and had not been aware of any mistreatment of returnees. It was thus concluded that there was no real risk of persecution or serious harm.
(5) The Defendant treated R's claims for judicial review as fresh considerations, but held that he could not be considered to be at risk and rejected the submissions. The claim for judicial review thus proceeded as a challenge against the refusal to treat the submissions as a fresh claim.
(6) P's claim proceeded as a challenge to certify his submissions as clearly unfounded, so that he did not have any right of appeal from within the UK.
(7) HELD: The Court noted that the evidence used to challenge the country guidance in BK had been superseded by the clarification issued by the DRC Ambassador. The UK Border Agency relying upon the Fact Finding Mission report in concluding that there was no risk to failed asylum seekers was held to be neither irrational nor justified. The decision to act in accordance with the country guidance in BK was held to be difficult to fault, and seemed to be entirely reasonable. R's claim for judicial review was dismissed.
(8) In relation to P's claim, the Court acknowledged that those deported due to criminality rather than a failed asylum claim would be likely to be treated differently. They would be detained for an indeterminate period of time, and the detention would be likely to be in conditions which contravened Article 3 ECHR. These concerns were discounted on the basis that the UK Borer Agency's re-documentation process does not identify returnees as criminal deportees, and so there was no real risk to them unless there had been sufficient publicity around the offence so ass to identify the offender as a DRC national. However, if asked why he was being returned, the Court held that there was an obvious and serious risk that P would not be able to hide his convictions when faced with interrogation designed to elicit such information. Further, there was a risk that where an offence attracted a least a 12 month custodial sentence, it may have been reported and could be discovered during an internet search.
(9) Whilst acknowledging P's criminal record in the UK, the Court held that P's application to revoke the Deportation Order against him could not be considered to be clearly unfounded. There was a real risk that P would be subjected to imprisonment and ill-treatment if returned to the DRC. The Court commented that convicted criminals who the Defendant sought to deport to the DRC would be likely to have strong claims for asylum and should not be deported until there was a clear basis for determining that the risk of ill treatment no longer arose. The Court thus quashed the Defendant's decision certifying P's application as clearly unfounded.
P's claim succeeded
R's claim was dismissed
 - Evidence superseded
 - Border Agency decision justified.
 - Discounting concerns.
 - Obvious risk.
 - Not clearly unfounded.
 - Not deport criminals to DRC.
- - Conclusions.
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