CO/2663/2004
Neutral Citation Number: [2005] EWHC 1952 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 21st July 2005 
B E F O R E:

MR JUSTICE OUSELEY
 
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THE QUEEN ON THE APPLICATION OF JEAN PIERRE MUKDELAVI OKOKO
(CLAIMANT)

-v- 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR A PRETZELL (instructed by Sheikh and Company, London N4 3NX) appeared on behalf of the CLAIMANT
MR J JOHNSON (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
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J U D G M E N T 

1.	MR JUSTICE OUSELEY:  This is an application for permission for judicial review following the grant of permission at an oral hearing by Crane J.  The claim is brought by a citizen of the Democratic Republic of Congo against a decision of the Secretary of State made on 24th May 2004.  
2.	The brief history is that on 8th March 2004 the claimant arrived in the United Kingdom and claimed asylum.  It was established, through fingerprint evidence, that this was not the first time he had claimed asylum.  He had in fact made a claim for asylum in France on 27th June 2000.  It was refused on 30th August 2002 by the OFPRA and the Commission of Appeal for Refugees upheld that decision on 15th September 2003.  Accordingly, a request was made to the French authorities for them to accept responsibility for the asylum claim, which was accepted on 29th March 2004.  The claim was then certified on 13th April 2004.
3.	The challenge to the Secretary of State's decision is based upon human rights matters.  On 24th May 2004, the Secretary of State referred to his satisfaction that the French authorities would not return the claimant to the DRC in breach of his human rights and that they would adhere to their obligations under the ECHR.  The claimant would be able to raise concerns under the ECHR if his removal to DRC was proposed when in France.  It was said that it was open to the claimant to make a further asylum application to the French authorities on arrival in France.  In paragraph 8 the letter said:  
"The Secretary of State hereby certifies that in his opinion the allegation that your client's return to France would breach his human rights under Article 3 of the ECHR is clearly unfounded.  Your client will have a right of appeal against this decision under S.82(1) of the Nationality, Immigration and Asylum Act 2002 but under S.93(2) of the Act this may only be exercised from outside the united Kingdom.  
4.	The claim for judicial review has been limited by the order of Crane J to human rights matters.  It was dismissed in relation to asylum matters.  
5.	On 14th April 2004, the claimant, through his solicitors, had sent certain material to the Secretary of State for his consideration. That material included the details of the consideration of the asylum claim in France, and fresh material which the claimant had sent to the French authorities asking them to reconsider their rejection of his asylum claim.    
6.	On 25th May 2004, the claimant's solicitors sent further material to the Secretary of State emphasising the unwillingness of France to consider further the fresh material which the claimant wished to place before the Secretary of State and wished to have considered by France in relation to the asylum claim.  It was said that the refusal of France to consider that further material meant that returning the claimant to France would risk his return from France to the DRC without further consideration of his case, thereby exposing him to a real risk of a breach of Article 3 ECHR.  The claimant said that he faced a clear risk, as someone with a military background, of a breach of either Convention on return to France because he would be returned from France to DRC.
7.	It is important to understand what exactly the French authorities considered.  This starts with the decision of 30th August 2002 taken by the OFPRA, the French Office for the Protection of Refugees and Stateless Individuals.  That decision recounts briefly the claim by the claimant to have been an officer in the FAZ during the rule of Mobutu.  When Laurent Kabila took power in 1997 he remained an official and had various appointments with the judicial police.  In November 1998, he was accused of a negligent failure to prevent a rebellion occurring within his jurisdictional area.  He presented a report demonstrating that others were responsible.  He expected that to be met unfavourably and accordingly fled.  
8.	The OFPRA then says that on 15th January 1999 the claimant's desertion was officially recognised and he became wanted on the grounds of desertion in times of war.  He fled the country with help from a former FAZ colleague and entered France illegally on 18th April 2000.  The OFPRA found his written and oral statements consistent and convincing, establishing his military and police activity for the Congolese State.  It continued:
"Nevertheless, although the facts have been verified, they are not covered by article 2 of the modified 25 July 1952 act, as they refer to a desertion. 
The interested party can therefore not be granted the status of refugee." 
9.	His claim was rejected.  In other words, and there is no challenge to the lawfulness of this under the Refugee Convention, the French accepted the truth of what he was saying but denied that they gave rise to refugee status either because of the want of a Convention reason, or because of an exception.  
10.	There was then an appeal against that decision supported by substantial written submissions which went to the Commission of Appeal for Refugees.  Although there has been no translation of the written submissions, it is clear from the summary of the case that the main point being made in those written submissions was by way of answer to the OFPRA point, that he failed, not because he lacked a well-founded fear of persecution, but because of the absence of Convention reason for it or the existence of an exception.  Therefore, the argument was to the effect that the claimant was a member of a particular social group comprised of those who were opposed to the Kabila regime by reason of the functions which they had undertaken in the service of Mobutu. Accordingly the claimant was entitled to be recognised as a refugee.  Essentially it was being said that the attitude of the Kabila regime to him had been coloured by his past Mobutu service, which is a not uncommon point to have been made.  
11.	The Commission of Appeal from Refugees, in its decision, set out the facts. The passage upon which Mr Pretzell for the claimant relies is this:
"Nevertheless, considering that neither the documents in the dossier nor the declarations made during the public session before the Commission allow us to consider the facts presented as established and to consider the fears  mentioned as founded.  In particular, the appellant's certificate from the School of Officers at the National Police dated from the 12 of December 1982 and his diploma from the School of Training for Officers dated from the 23 June 1989, both testify on the appellant's success in these trainings.  These are not sufficient to prove the reality of the persecutions mentioned; and the photographs produced do not justify the declarations of the appellant; accordingly the appeal cannot be accepted." (expert translation.) 
12.	It is reasonably clear that the CAR was not rejecting the facts that were found by the OFPRA.  It was instead rejecting the new formulation of the asylum case put forward by the claimant in relation to a particular social group.  He had not been persecuted when he was in the DRC.  That did not affect the question of his desertion in time of war and the likely consequence of severe treatment whether death penalty or less, which a country like DRC would inflict on such a person.
13.	After that decision the appellant came by an arrest warrant which indicated that he would face the death penalty were he to be returned to DRC and tried and convicted for desertion from his position.  There was an expert report which demonstrated that that warrant was indeed a genuine DRC warrant.  This matter was then sent to the OFPRA asking for them to reconsider their position on refugee status.  
14.	On 11th December 2003 (and this is a document much relied on by the claimant) the OFPRA pointed out that the claimant had now declared that he would be subject to the death penalty by a military court now supported with an arrest and search warrant.  It accepted that these were new elements of proof, but said that they referred to facts which had been previously asserted.  Consequently it concluded: 
"This application, which subject is the same and which does not have any judicial cause distinct from the previous one; the 0ffice can only confirm the previous decision of refusal." 
The appeal procedure was enclosed at the back, but the court has not been provided with any material which related to that, nor indeed whether an appeal to the CAR could be mounted in substance.
15.	The point made by that letter is that all that the claimant was doing was demonstrating that he would indeed be persecuted were he to be returned to Congo and that his fears were indeed well-founded.   However, that is a matter which had already been accepted by the OFPRA in its decision of 30th August 2002, but it had been held not to qualify him for refugee status.  It is entirely understandable, therefore, that they would regard this as not changing any point of substance about the refugee claim.
16.	Mr Pretzell, for the claimant, submits that it is precisely that attitude which puts his client at risk if returned to France in relation to human rights.  The Secretary of State had simply failed to grapple with the impact of the refusal of the French authorities to consider these matters afresh and he could not therefore, on those grounds, say that it was obvious that the French would not return the claimant to DRC in breach of his human rights.  
17.	It is perfectly clear that the conclusion in relation to  reconsideration of refugee status by the French authorities was that they would not look at this new material and it is perfectly clear that, looking at it, it could not alter the decision which they had reached.  Their decision in relation to that seems to me to be precisely the same as the one which would have been reached by the United Kingdom.
18.	The real point, however, in this case, and the only point which can be argued, is the question of whether if the claimant were to be returned to France, France would remove him to DRC in circumstances which breached his Article 2 or 3 ECHR rights.  There is no evidence at all before the court to suggest that France, a signatory country to the ECHR, would behave in such a way, or that it would not have in place procedures which could permit any decision which risked such an outcome to be challenged before its courts and, if necessary, its effect stayed whilst an application was made to the European Court of Human Rights.  
19.	To provide to this court merely the result of the consideration of the asylum claim tells us nothing about how the French would approach the risk of a breach of Articles 2 or 3 upon a proposed removal of the claimant to DRC.  It is a surprising absence of material.  It is clear that in the United Kingdom the question of whether someone's removal would breach their human rights is a matter which arises upon a decision being made to remove someone.  The United Kingdom does not have a prospective means whereby human rights matters on removal can be considered before someone's arrival in the United Kingdom, or before their removal is contemplated or threatened.  The French may well be the same.
20.	Accordingly, the mere fact that the French are refusing to reconsider the asylum claim, in circumstances in which the United Kingdom would also refuse to reconsider the asylum claim, tells one nothing about how the French, as a matter of procedure, substance or other rights would consider any claim that removal would breach the ECHR.  That was something which would have required evidence to establish it and there is simply no evidence to establish that there are no procedures available which would enable the matter to be raised.  
21.	There is nothing to suggest that the French authorities would treat a refusal of asylum as of itself amounting to the green light for a removal if there were a separate human rights claim to be made.  It is perfectly clear that there are circumstances in which a different conclusion can be reached on human rights claims from those which are reached on asylum claims.  Those are particularly pertinent where someone has a well-founded fear of persecution, but cannot make out an asylum claim either for want of a Convention reason or because an exception applies.  In those circumstances evidence that someone would be executed would be potent evidence as to the existence of a risk of breach of human rights which would not be relevant to an asylum claim.  In the absence of evidence which suggests that the French ignore the reality of those differences, I do not propose to assume that they are unaware of those potentially significant factors. 
22.	Therefore, there is nothing which would lead me to suppose that they would not consider either their past conclusion, or any fresh material when considering whether or not removal of the claimant to the DRC would breach his human rights.  Indeed, even absent the evidence in relation to capital punishment, there is significant evidence which would suggest that they have already accepted that he would be persecuted.  The very language of the first decision of the OFPRA suggests that they accept that he would be persecuted rather than that he would not be persecuted and that he failed, as I have said, for reasons not associated with the severity of treatment which he might face.  
23.	The decision of the CAR is to the like effect, that it is not refusing refugee status because of the prospective severity of treatment which he might receive.  They do not take issue with the OFPRA analysis.  The CAR rejects a claim that he had already been persecuted by reason of his state service and somehow had become a member of a particular social group.  
24.	For those reasons the claim that the Secretary of State could not lawfully reach the decision which he did in the letter of 24th May 2004 is one which I reject.  The decision of the Secretary of State, on the evidence before me, is perfectly sound.
25.	I should point out that there has been an assertion, before me, as apparently there was before Crane J, that the claimant had repeatedly sought an undertaking from the French Government that they would not remove the claimant in breach of the ECHR and would consider any fresh evidence.  This was not an undertaking which they had, as I understand it, refused, but there was simply a request they had not replied to.  Either way that is not material which is before me.  For any such request to bear the significance which Mr Pretzell sought to give it,  the request cannot be for fresh evidence to be considered because that simply takes one back to the  original asylum claim.  As I said, I do not, on the present material, doubt that France will honour its international human rights obligations.  This application is dismissed. 
26.	MR JOHNSON:  I understand that the claimant is not publicly funded.  I seek an order that the claimant pays the defendant's costs in the proceedings. 
27.	MR PRETZELL:  This is not a publicly funded matter.   
28.	MR JUSTICE OUSELEY:  Do you resist the order? 
29.	MR PRETZELL:  I resist the order.  Leave was granted in this particular matter on a very narrow point of some complexity.  Because of the lack of funding those instructing me were only instructed yesterday at 4 o’clock in the afternoon.  I had not had sight of the papers since October 2004.  Understandably, or not, my solicitors did not undertake any work because they had no funds on the file and they were not going to get public funding.  Therefore, in my respectful submission, such an order would not be appropriate, my Lord.   
30.	MR JUSTICE OUSELEY:  Do you want to say anything about that?   
31.	MR JOHNSON:  My Lord, no.  
32.	MR JUSTICE OUSELEY:  There will be an order for the costs by the claimant to the defendant to be assessed if not agreed.  I appreciate that there may be real problems about enforcing that, but the claimant has persisted in the claim.  There is no reason for the normal rule not to apply.