In R (on the application of P (DRC) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin), handed down on 9 December 2013, Mr Justice Philips held that P would be at risk of treatment in breach of Article 3 of the ECHR if deported to the Democratic Republic of the Congo. He stated that he reached this conclusion “with considerable regret” [paragraph 54] but was persuaded by the objective material. The risk does not extend to failed asylum seekers for whom the position remains the same as in BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098.

The judge preferred the Home Office Fact Finding Mission to Kinshasa conducted on 18 – 28 June 2012 to Catherine Ramos’ November 2011 report Unsafe Return commenting at paragraph 34 that “the contrast between the nature and status of these two reports is noteworthy”. He is unfortunately fairly scathing about the report at paragraph 35 stating “what is clear is that her report approached matters from a subjective and even emotional perspective” and

“far from addressing the warning given in BK about the need to provide relevant particulars of failed asylum seekers so that the truth of their claims could be gauged, the report provides neither the Defendant nor the court with any basis for assessing the veracity of the anonymous accounts which it collated”.

Catherine Ramos’ second report dated 3 October 2013 Unsafe Return II was not treated as being part of the evidence.

Philips J set out the risk to criminal deportees at paragraph 44:

It is clear, and Mr Blundell [counsel for the SSHD] did not dispute, that the position with regard to criminal deportees is significantly different from that of failed asylum seekers. In the first place, the starting point is different because the position of criminal deportees was not considered in BK (although certain of the evidence may have related to “deportees”). Further, the following two propositions are not seriously in dispute:

i) First, that criminal deportees to the DRC, if identified as such, will be detained on arrival for an indeterminate period. The DRC Ambassador’s official statement makes the unequivocal statement that “people who are being deported for having committed crimes in the UK are held in custody for a period of time to allow the Congolese justice system to clarify their situation“. Further, there is ample evidence in the FFM report, most convincingly in the response from the French Embassy (see paragraph 16 above), that the DRC Ambassador’s statement reflects what occurs in practice. Another interlocutor reported that returnees with a criminal record “are taken straight to prison“. It is clear that the ‘detention’ referred to in this content is not merely a short period of administrative detention at the airport for immigration purposes (several interlocutors confirming that there are no detention facilities at the airport), but incarceration in a prison or detention facility in or around Kinshasa.

ii) Second, such detention is likely to be in conditions which contravene Article 3 of the ECHR. The Bulletin acknowledges (paragraph 11.8) that prison conditions in the DRC are severe and likely to reach the Article 3 threshold. This was more than confirmed by a US State Department Report dated 19 April 2013 which records that conditions in most prisons remained severe and life threatening: “Serious threats to life and health were widespread and included violence, particularly rape; food shortages; and inadequate food, potable water, space, sanitation, ventilation, temperature control, lighting and medical care. Death from starvation or disease was not uncommon”. Mr Blundell advanced an argument that such concerns do not extend to DGM detention facilities in which deportees are likely to be held. However, the same Report goes on to state: “Even harsher conditions prevailed in small detention centres, which were extremely overcrowded; had no toilets, mattresses, or medical care; and provided detainees with insufficient amounts of light, fresh air and water”.

Whilst the judge did not order a general stay on deportations to DRC he did comment as follows at paragraph 55:

I cannot bind the Defendant in relation to other cases involving the deportation of convicted criminals to the DRC, but I should indicate my view, again expressed with regret, that, on the basis of the evidence I have seen, such persons have a strong claim for asylum and should not be deported to the DRC unless and until there is clear basis for believing that the risk indicated above no longer arises generally or does not arise in a particular case. In this regard the Upper Tribunal may wish to consider giving further country guidance in relation to the DRC in the near future to deal with the position of criminal deportees.

The Home Office was granted permission to appeal to the Court of Appeal, which will be heard in the New Year.

P was represented by Chris Jacobs instructed by Kat Hacker at Duncan Lewis.