News

Judgment today was handed down in the most important cases on the Democratic Republic of Congo [DRC] since the country guidance case of BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098. P(DRC) and R(DRC) [2013] EWHC 3879 (Admin) was the test case on whether it is safe to remove criminal deportees and failed asylum seekers to the DRC in light of the current evidence concerning these two categories of returnees.

P(DRC) and R(DRC) [2013] EWHC 3879 (Admin)

Initially these two cases concerned individual challenges to the decision to remove to the DRC in July 2012. P was a criminal deportee and R a failed asylum seeker. A third case of D, which P replaced in the listing, was granted an injunction staying removal by Collins J pending investigation and clarification of the Ambassador’s comment, that all returnees to the DRC would be held in custody for a period of time to allow the Congolese justice system to clarify their situation.

Following these allegations a flurry of claims for judicial review were lodged by Duncan Lewis to prevent removal to the DRC, whilst the Ambassador’s comments were investigated. They included both criminal deportees and failed asylum seekers, all of which claimed they would be risk of ill-treatment, amounting to a breach of Article 3, upon return.

Hamblen J, followed the stance of Collins J, and granted further stays on removal pending the investigation of the comments made by the Ambassador.

Thereafter in November 2012, the Home Office published their Fact Finding Mission lead by members from the Home Office and Country of Origin Information Service. This mission was carried out in June 2012, the purpose of which was to reassess the country conditions for returnees – both failed asylum seekers and criminal deportees.

Following the FFM and the Country Bulletin, also published in November 2012, new decisions were made in the cases of P and R. Based on the Fact Finding Mission, the Home Office issued two further refusal letters – both of which maintained their earlier refusals upholding the decision to certify the fresh claim in P and refusing to treat the further submission as a fresh claim under Immigration Rule 353 in R.

The Administrative Court linked the cases of R and D [also a criminal deportee] to be heard together as a test case in respect of the issue of risk upon return to both failed asylum seekers and criminal deportees respectively. This was due to be listed for February 2014; however the Secretary of State made an urgent application for an expedited hearing in August 2013 in order for the case to be heard before a similar case in the Scottish Courts, which had a listing for November 2013.

This application was strongly resisted by the Claimants, to no avail and the matter was listed for the 15 October 2013. At the same time the case of P replaced the case of D in respect of the risk upon return to criminal deportees.

The hearing was listed for a full day and judgment was reserved. Argument for the Claimants concentrated on the risk to failed asylum seekers and criminal deportees upon return at the airport, supported by both the Ambassador’s statement and the evidence in the Fact Finding Mission. Significantly it was argued for the Claimants that the country guidance case of BK, should not be followed in light of the recent evidence and further in P it was argued that criminal deportees constituted a new risk category.

The Secretary of State argued to the contrary that R’s submissions did not create a realistic prospect of success [whilst admitting in the refusal letter that only criminal deportees would be at risk of detention]. And further arguing in P that there would be no risk to criminal deportees as information regarding criminal offences would not be exposed during the removal process.

Judgment was handed down on the 9 December 2013. The case of P was granted and that of R was dismissed. The judgment will have a significant impact on all criminal deport cases as the Judge found that the position of criminal deportees to be significantly different to failed asylum seekers. The Secretary of State did not dispute this and indeed made several concessions during the course of the hearing. It is telling that the Secretary of State’s own Fact Finding Mission contained evidence that supported the Claimant’s case.

With regards to failed asylum seekers, the judge found that at the consensus, that there is no real risk per se these category of risk to failed asylum seekers, would seem to be justified and not irrational [on the basis that the British, French, Belgium and Swiss embassies found no evidence of risk to this category of returnees].

Conversely, the Judge found criminal deports to constitute a new risk category not previously considered in BK. With regards to the evidence, the Fact Finding Mission and objective evidence supports the position that criminal deportees will be subject to questioning on return and that criminal deportees will be imprisoned. Further this is in line with the comments made by the Ambassador. It was accepted that detention and prison conditions were such that they breached Article 3.

It was further contended by the Secretary of State that as P was found to have been incredible in his initial claim for asylum, one should consider how he would answer such questions about his status upon return. However the Judge was not enamoured with the suggestion that a criminal deportee would lie when interrogated simply because they had been found incredible in their claim for asylum.


As such P claim was allowed and R’s was dismissed. The Judge expressed his reluctance in allowing the claim in P, and expressed with considerable regret that he finds, based on the evidence before him, that such persons as P [a criminal deportee] have a strong claim for asylum and should not be deported to the DRC unless there is a clear basis for believing that the risk indicated no longer arised generally or in a particular case.The Judge also indicated that the Upper Tribunal may want to consider such a matter for country guidance in the near future.

The case is a great success for all criminal deportees, however the matter is clearly a contentious one and the Judge was very weary of issuing a judgment which results in the Secretary of State being unable to deport people whom have committed serious crimes once they have completed their sentences.

The judgment having been handed down, the Secretary of State then sought permission to appeal on three grounds: that the Court of Appeal may take a different approach in respect of different levels of criminality. Similarly the Court of Appeal may take a different approach regarding the publicity of someone’s offences and third a different conclusion may be reached in respect of the conditions in detention.

Although the Judge indicated that he was not greatly impressed by their submissions on permission to appeal, permission was granted essentially on the basis that there was a wider public importance point and that there was no reason that the Court of Appeal would not come to a different conclusion.

As such, the matter will continue to a hearing in the Court of Appeal in the New Year; for the time being there is no reason why the implications and findings in this judgment can not be relied upon in the interim for criminal deportees.

“Although a controversial success for criminal deportees, it is a success nonetheless. Based on the Secretary of State’s own fact finding mission, individuals who have committed a crime, and served their sentences should not be returned to a country where there is a real risk of their Article 3 rights being breached”.

Kat Hacker and Toufique Hossain of Duncan Lewis Solicitors acted for Claimants, Chris Jacobs of Landmark Chambers was appointed as barrister.