Duncan Lewis Solicitors: judgment handed down for P(DRC) and R(DRC) [2013] EWHC 3879 (Admin)(Admin)

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Judgment 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."

Duncan Lewis Kat Hacker

Kat Hacker

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

P(DRC) and R(DRC)–09/12/2013- High Court of Justice, Queen's Bench Division- Administrative Court- EWHC 3879

P(DRC) and R(DRC) 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.

Initially the two cases concerned individual challenges to the decision to remove the claimants 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, 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 led 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.*

Furthermore, 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, Belgian 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.*

Court documents state that 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 arises 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 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.*

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.

Duncan Lewis Immigration Public Law solicitors Kat Hacker and Toufique Hossain acted for the claimants. Kat Hacker said of the judgement;

“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”.

Chris Jacobs of Landmark Chambers was instructed as barrister for claimants by Duncan Lewis.

*P(DRC) and R(DRC)–09/12/2013- High Court of Justice, Queen's Bench Division- Administrative Court- EWHC 3879

About Duncan Lewis

Duncan Lewis, established in 1998, is the largest civil legal aid practice in the UK and one of the country's fastest growing firms of solicitors, serving both corporate entities and private individuals from offices across London and throughout the UK. A recommended leading law firm by Law Society Lexcel, Legal 500; Duncan Lewis employs over 500 members of staff and was the first law firm to achieve the Investors in People Gold Quality Standard Mark in 2009. Representing over 25,000 clients per year, the company has an excellent reputation in the Administrative Court, High Court and Court of Appeal in the Immigration, Public law and Family/Child Care jurisdictions.

Established areas of law are: business immigration, child care, civil liberties, clinical negligence, community care, crime and fraud, dispute resolution, debt and insolvency, employment, family and divorce, housing, asylum and immigration, litigation, mental health, personal injury, prison law, professional negligence, public law and administrative law, regulatory matters and welfare benefits.

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