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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kibiti v Secretary of State for the Home Department [2000] EWCA Civ 3022 (21 July 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/3022.html Cite as: [2000] EWCA Civ 3022, [2000] Imm AR 594

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2
		21st July 2000

Friday, 21st July 2000

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment.
2. LORD JUSTICE BUXTON: The appellant in this case, Mr Romaine Kibiti, is an asylum seeker who comes from the Congo. The issues in the appeal concern the current state of affairs in that country and the conclusions and reasoning of the Immigration Appeal Tribunal in relation to Mr Kibiti's claim for asylum, particularly in the light of the Immigration Appeal Tribunal's application of the case of Adan v Secretary of State [1999] AC 293 (which I shall refer to as "Adan").
3. It is necessary at first to say something briefly about the history.
4. In August 1992 President Lissouba came to power in the Congo by democratic election after a lengthy period of one party rule. There was an almost immediate outbreak of very serious violence, and, according to an Amnesty International report which was before the Tribunal and is before us, 2,000 people are reported to have been killed and many thousands more displaced from their homes by the end of the year. The fighting appears to have degenerated into attacks on ethnic grounds.
5. Sporadic violence continued thereafter. But in 1995 President Lissouba and his opponents, particularly Mr Sassou, signed an agreement to end the hostilities. Militias attached to various political parties continued in existence, despite Government attempts to disband them, and there were disabling flare-ups of violence over the following year.
6. In June 1996 the appellant left the Congo, travelling through Zaire and Belgium to the United Kingdom. I will return shortly to his account of what had happened to him when he was in the Congo and to the grounds upon which, on arrival in this country, he sought asylum.
7. In 1997 there were about to be elections in circumstances that apparently gave rise to further violence. A group called the Cobras, who were the supporters of Mr Sassou, were suspected of planning a coup d'etat. The President, Mr Lissouba, attempted to arrest Mr Sassou and fighting broke out between the supporters of the two parties. In October 1997 Mr Sassou took over power, with assistance from outside forces, and Mr Lissouba was overthrown. What happened thereafter in the state of affairs in the country is a matter of controversy in this appeal. I shall have to revert to it.
8. When he made his application to the Secretary of State and when he appeared before the Special Adjudicator, who upheld the Secretary of State's decision not to grant Mr Kibiti asylum, Mr Kibiti gave an account of attacks on him and violence towards him prior to his leaving the Congo. The Special Adjudicator was not prepared to accept more than a small amount of what Mr Kibiti said because he did not find Mr Kibiti to be a witness of uniform credibility. It is not, however, necessary to go over those matters because the basis of Mr Kibiti's application, at least before the Immigration Appeal Tribunal, and certainly the exclusive basis of the argument before us, has related to what is likely to happen to him should he be returned to the Congo in the light of the present state of disruption in that country. True it is that the Special Adjudicator did, nonetheless, consider in some detail Mr Kibiti's reasons for coming here, and held that he had come here for economic rather than Convention reasons. But the centrality of the case as put by Mr Kibiti throughout his applications is to be found in the account of it given by the Special Adjudicator at page 6 of his adjudication. He said that he had a Convention reason and, to quote the special adjudicator:

"The Convention reason was because he was a Bebembe and his ethnic background. The fear was reasonable. If there was a civil war Adan would apply and there would be no case. Those then representing Mr Kibiti conceded. But there was not a civil war going on. The Appellant was persecuted because of his ethnic background".

9. On Mr Kibiti's behalf attention was drawn to various reports setting out the situation as it existed at the date of the Special Adjudicator's hearing in December 1998.
10. Before passing on, I should make it clear that the concession that appears to have been made before the Special Adjudicator that if there was a civil war there would be no case on Mr Kibiti's part, is not a concession made either before the Immigration Appeal Tribunal or before this court, and, although I do not think that any application has ever been made to withdraw that concession, it would clearly not be right to hold Mr Kibiti to it. It was not, I should say, made by any advocate who now represents him.
11. The Special Adjudicator turned to consider what the documentary evidence revealed about the situation then in the Congo. He recorded the ousting of the democratically elected President, Mr Lissouba, by Mr Sassou and said this as a finding: which, I interpose, was plainly justified by the documents:

"During the fighting government forces killed individuals because of their ethnicity and also beat and detained individuals. As a result of the violence thousands of people, most of them civilians, were killed in Brazzaville. Both Lissouba and Nguesso militias killed people for political reasons during the fighting. The legal and judicial system virtually broke down."

12. Further, that Mr Nguesso was not in a position to launch a full-scale counter offensive, but the adjudicator said:

"...the Congo is an unpleasant place where there is fighting and people are being targeted for their ethnic origin."

13. Nonetheless, he found that the applicant had not established a well-founded fear of persecution for a Convention reason. He was not satisfied that the appellant had suffered. It is to be inferred that he therefore found that he was not satisfied the appellant would suffer what the adjudicator described at page 51A as:

"... a differential impact compared to all the other people in the Congo who have been affected by the civil war to justify refugee status under an international agreement. I find as a fact that a civil war has been and is going on in the Congo, with thousands of deaths."

14. That was the position according to the Special Adjudicator in December 1998.
15. Mr Kibiti appealed, with leave, to the Immigration Appeal Tribunal. They heard his appeal in August 1999. Before turning to what the Immigration Appeal Tribunal found, and in order to make clear the basis of their reasoning, it is necessary to turn to the guidance given by the House of Lords in the case of Adan, because this was plainly a case in which the issue of the relationship between the presence of a civil war and the right to Convention protection was raised. As we have already seen, the Special Adjudicator made a finding of fact that there was a civil war in progress in the Congo at the time at which he was considering the matter.
16. The House of Lords' conclusions are to be found in the speech of Lord Lloyd of Berwick, with which the majority of the House agreed. It is important to turn first to the issue that Lord Lloyd saw himself as addressing, which is set out at page 308 D of the report:

"Can a state of civil war whose incidents are widespread clan and sub-clan based killing and torture give rise to well-founded fear of persecution for the purposes of the 1951 Convention and the 1967 Protocol thereto, notwithstanding that the individual claimant is at no greater risk of such adverse treatment than others who are at risk in the civil war for reasons of their clan and sub-clan membership?"

17. The argument put to the House on behalf of the Secretary of State by Mr David Pannick QC was that when there was a civil war between clans what was in effect a special rule had to be applied to persons seeking Convention protection. As Lord Lloyd explained, if it were otherwise both sides in the civil war would be entitled to protection under the Convention; provided, of course, that the reason why they were being persecuted was a Convention reason. Lord Lloyd said at page 308 G, that that reflection "drives me to the conclusion that fighting between clans engaged in civil war is not what the framers of the Convention had in mind by the word persecution." He followed that observation by accepting, at page 309 A that:

"If an asylum seeker can show that he is being targeted for Convention reasons, other than his membership of one of the warring clans, then he might qualify for refugee status."

18. Lord Lloyd then reviewed a number of authorities, not only cases in other jurisdictions, but also academic works that are properly given weight in this area of the law. Then in two paragraphs at page 311 A he set out his conclusion as to the state of the law:

"I conclude from these authorities and from my understanding of what the framers of the Convention hand in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show what Mr. Pannick calls a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.

What I have said so far applies only so long as the state of civil war continues. Once the civil war is over, and the victors have restored order, then the picture changes back again. There is no longer any question of both sides claiming refugee status. If the vanquished are oppressed or ill-treated by the victors, they may well be able to establish a present fear of persecution for a Convention reason, and in most cases they would be unable to avail themselves of their country's protection."

19. Then, in a later but important short passage at page 311 E, Lord Lloyd referred to:

"... the principle that those engaged in civil war are not, as such, entitled to the protection of the Convention so long as the civil war continues, even if the civil war is being fought on religious or racial grounds."

20. From those passages I venture to draw the following guidance:

(1)The first question is whether in a given country there is a Civil War in progress.

(2)If the answer to that question is yes, a person who suffers the incidents of that war as a member of one or other of the participating parties cannot claim that he is persecuted thereby for a Convention reason, even if the clans or parties are divided on what would otherwise be Convention grounds. That latter point is the thrust of what Lord Lloyd said at page 113 E.

(3)In a civil war situation, a person can only claim the protection of the Convention if he has a fear of persecution over and above that attaching to his involvement in, or with, the civil war and, further, that that persecution is for a Convention reason.

(4) If there is no civil war, then it necessarily follows that the usual Convention rules apply, that is to say, a person can claim persecution on Convention grounds if that persecution emanates from the State, as established, or is a persecution which the State is unable or unwilling to protect him from.

21. I have given that somewhat lengthy background because it is necessary in order to understand the comparatively brief passages in which the Immigration Appeal Tribunal dealt with Mr Kibiti's case.
22. We have seen that his case was that he feared persecution on grounds of ethnic origin, that is to say, that he was a member of a particular tribe. He reinforced that claim by saying that his fear was linked to the fact that he had the same ethnic origin as the former President, Mr Lissouba. That was clearly set out in paragraph 8 of Mr Kibiti's statement to which particular reference is made in the skeleton argument advanced on his behalf in this court. He said this:

"I am now afraid to return to the Congo. I fear persecution on the basis of my ethnic origins, a Babembe as I share the same ethnic origin as the former President Lissouba. Since fleeing my country Sassou N'guesso (the leader of the PCT) has taken power by force with support from the Angolans. The situation is very unsafe and unstable in Congo. The Mboshi ethnic group led by Sassou N'Guesso are massacring members of the Larri and Babembe ethnic group. Over the past year hundreds of thousands of Laris and Babembes have fled Brazzaville for reasons of safety."

23. He mentions that Mr Lissouba has in fact now found exile in the United Kingdom.
24. Looking at that case, the Immigration Appeal Tribunal said (at page 3 of its adjudication:

"We accept that we must weigh the situation in Congo according to the guidance in Adan. If the situation is that 'the war is over, and the victors have restored order' as envisaged by Lord Lloyd in that case, then the vanquished 'may well be able to establish a present fear of persecution for a Convention reason...'. So it is right that the Special Adjudicator, and we, must look closely at the evidence as to current circumstances in Congo.

The most recent report available to us, the Amnesty International report of 25 March 1999, outlines events in 1998 and early 1999. It speaks of conflict between groups described as Ninjas, Cocoyes and Cobras. It reports descriptions of Government forces, including the Cobras, killing unarmed civilians and looting Ninja strongholds. Ninjas targeting unarmed civilians suspected of being government supporters. Tens of thousands of civilians fleeing. Fighting between government forces and Cocoyes, where Cocoyes temporarily occupied towns and as many as 200 unarmed civilians were reportedly killed by both sides.

In our judgment the current situation in Congo is properly to be described as 'civil war', and within the ambit of that description in Adan. Risk of violence and danger there undoubtedly is, and this has been recognised by the Country and Policy Unit of the Home Office in their Urgent Advice of 12 July 1999: that rejected asylum applicants should be granted exceptional leave to remain in the United Kingdom. But these risks we find to be the incidents of civil war.

We are not persuaded that there is evidence of risk of danger to the Appellant for reason of his being a Babembe. We are not persuaded to the standard of proof appropriate to these cases, that he has a well-founded fear of persecution in Congo for a Convention reason.

The Tribunal agrees with the assessment made by the Special Adjudicator and finds no sufficient reason to interfere with his findings."

25. There were therefore two findings of fact in that determination. The first was that currently in the Congo there was a situation of civil war within the ambit of the description given within Adan, and that, therefore, the guidance given in Adan, which I have already set out, applies to this case; and secondly, that there was no risk of danger to the applicant on the Convention ground that he claimed.
26. Mr Manjit Gill QC, who has argued the case here on behalf of Mr Kibiti, accepted that the question before this court must be whether the Immigration Appeal Tribunal were wrong in law. In addressing what appears to be findings of fact, it could only be established that the Tribunal had committed an error of law if, for instance, they had not taken evidence into account at all, wholly misunderstood the evidence, or, in an asylum case, had not applied the test of anxious scrutiny. That was the test to which Mr Gill eventually addressed himself.
27. In dealing with the principal matters in the finding, he first of all argued that the finding, crucial or at least important to the Immigration Appeal Tribunal's decision that there was a civil war in the Adan sense, had been wrong: not only wrong, but so wrong as to indicate an error of law of the type that I have just outlined. This argument was based principally on the fact that there was in the Congo a discernible structure of government, the details of which Mr Gill set out in some detail: referring to the government structure obtaining under Mr Sassou. When such a structure applied, it could not be said that there was a civil war in progress in the sense that that expression was used in Adan, Mr Gill rightly pointing out that in Adan itself it was accepted that a civil war was in progress and, therefore, the parameters and definition of such a war did not have to be looked at.
28. I do not agree. Indeed I did not understand Mr Gill to argue that it was in itself an error, or an error of law, to consider the a civil war could be in progress even when there was a government with the theoretical structure at least of a recognisable government action in position. Rather, Mr Gill said that all that the evidence established with regard to the position in the Congo was that there was uncertainty, conflict and volatility; and that was not enough for it to be said that a civil war was in progress.
29. Miss Eleanor Grey, however, in her persuasive submissions on behalf of the Secretary of State, took us to the evidence that had actually been before the Immigration Appeal Tribunal, the most important part of which being a report by Amnesty International dated March 1999, and therefore, as the Immigration Appeal Tribunal said, the most up to date evidence available to it. At page 11 of that report a graphic account is given of widespread and extensive fighting between what are described as two sides of a conflict, with the intervention of forces on either side from neighbouring countries. Both parties appeared to be targeting unarmed civilians: both the Ninja and Cocoyes groups supporting the opposition and President Sassou's forces who included a militia or force of that nature called the Cobras. Amongst other things, Amnesty International reported that some 40,000 civilians living in or near the capital, Brazzaville, had been forced to flee their homes; and many others, someone 150,000, fled into the countryside in other regions. As Miss Grey cogently has said, if that was a situation in the capital, it was difficult to think that a conclusion that a civil war was in progress was not a conclusion open to the tribunal of fact.
30. Those submissions seem to me to be well-founded. Both the adjudicator and the Immigration Appeal Tribunal considered this matter, saw the evidence that I have referred to and (in the case of the Immigration Appeal Tribunal) specifically analysed the evidence in terms of conflict between opposing groups, each of which attacked civilians on each side. In those circumstances, no criticism can be made of the finding that a civil war was still in existence in the sense that the phrase is used in Adan in 1999. It was therefore appropriate for the Immigration Appeal Tribunal to apply the guidance in Adan.
31. The applicant relied on further evidence set out in the Amnesty report that I have already referred to which, he said, demonstrated that there was persecution and violence attributed to the parties on one side or another on the basis of their ethnicity. That, he said, should have led the Immigration Appeal Tribunal to consider that, despite the fact that the civil war was in progress, a persecution for a relevant Convention reason was in fact taking place.
32. I do not agree. In my judgement, the Immigration Appeal Tribunal was entitled to conclude on the evidence that the ethnic targeting was on the basis of the actual or perceived alliance or association of the members of particular tribes with one or other of the contesting parties. That is demonstrated by, or at least it was open to the Tribunal to conclude from it, two passages in particular that were relied upon by Mr Gill in the Amnesty International report. The first is at page 11 of the report:

"Government forces, particularly the Cobras, were reportedly killing unarmed civilians they perceived to be supporters of Ninjas. Thousands of civilians in southern Brazzaville were forced to flee to northern Brazzaville".

33. That is killing by reason of support of the opposite party. At page 16 the passage particularly relied on by the applicant reads as follows:

"More significantly from June 1997, members of the various armed groups, together with members of the security forces, targeted unarmed civilians. The victims were suspected, usually on the basis of their ethnic or linguistic group, of supporting opponents of their leaders."

34. That again demonstrates a legitimate basis for concluding that ethnic targeting was a direct incident of the civil war, that is to say, persons were ethnically targeted because their ethnicity was thought to reveal or necessarily to imply support for one side rather than the other. That brings the case within what might be termed the exception recognised by Lord Lloyd in Adan: that is to say that, if an incident was an incident of a civil war, it does not lead to protection on Convention grounds even though the civil war itself is being conducted on ethnic or religious bases.
35. However, even if that argument were wrong and even if the Immigration Appeal Tribunal were wrong that this was a case of civil war, Mr Kibiti still has to demonstrate that he was being persecuted on grounds of his ethnicity as a Babembe. That point is dealt with briefly in the Immigration Appeal Tribunal's finding; and the one sentence that they devote to it:

"We are not persuaded that there is evidence of risk of danger of the appellant for risk of him being a Babembe"

36. was criticised by Mr Gill as showing lack of reasonable consideration. It is, however, important to note that that sentence immediately followed a sentence in which the Tribunal had concluded that such dangers and threats that they had found were risks and incidents of the civil war. The next sentence, in my judgement, is in that context and follows on from it, that is to say that Mr Kibiti had not established a risk to him over and above that incumbent upon the presence of the civil war. Even, however, if that is not so, it was clearly open to the Tribunal to conclude that nothing had been established to show that merely by being a Babembe he was exposed to a relevant Convention risk. It could well be that that point could have been argued out at some greater length; but the Tribunal had already referred to the evidence that they relied on and which they had clearly read carefully, that is to say, the Amnesty International report; and although, as I say, they might have expanded on this point at slightly greater length, there is nothing in this finding properly understood in the light of the guidance in Adan to lead to the conclusion that the reasoning in this case was inadequate to the extent that this court should intervene.
37. As I said earlier, and as Mr Kibiti said in his statement which have I read, his fear was that he would be targeted as a Babembe because of his common ethnic origin with President Lissouba. That claim directly engaged the question of whether his fear was on ethnic grounds alone or whether it was as part of the incidence of the civil war being conducted between the supporters of President Lissouba and President Sassou.
38. The Immigration Appeal Tribunal rightly applied the guidance in Adan to that question and, in my judgement, did not err in its assessment or method of assessing the facts.
39. For those reasons therefore I would dismiss this appeal.
40. LORD JUSTICE CHADWICK: I agree.
41. LORD JUSTICE PETER GIBSON: I also agree. I only have a few words on one point which arose in the course of the hearing.
42. Mr Gill sought to rely on a report by Dr Andrew Manley, who describes himself as a London based journalist and consultant specialising in the political economy of francophone Africa. That report had not been written by the time of the determination of the Special Adjudicator, nor, it seems, by the time that the Immigration Appeal Tribunal gave its decision. But it was provided for the Immigration Appeal Tribunal when asked to give leave for Mr Kibiti to appeal to this court, and the Immigration Appeal Tribunal commented on it.
43. Miss Grey for the Secretary of State objected to this material being received by this court. She submitted that it was inappropriate for fresh evidence to be presented to this court in the context of an appeal under section 9 of the Asylum and Immigration Appeals Act 1993. That provides that the appeal is "on any question of law material to the determination". This court is limited by that: it is confined to looking to see whether the Tribunal erred in some manner in relation to the facts and material which were before the Tribunal. It is obvious that material not put to the Tribunal could not be used to identify an error of law on the part of the Tribunal.
44. In my judgment, Miss Grey's objection was entirely right. It is inappropriate for new material to be presented to this court which could not in any way have affected the decision of the Tribunal below. It is, of course, open to an applicant to present such new material to the Secretary of State once the appellate process relating to the earlier decision has been exhausted; and I do not doubt that the Secretary of State would take into account material such as that from Dr Manley, as an expert in the relevant field.
45. For the reasons given by my Lord, Buxton LJ, I too would dismiss this appeal.
Order: Appeal dismissed. Detailed assessment of Applicant's costs. Leave to appeal to the House of Lords refused.