M. v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant is a male national of the Republic of Congo who was born in 1973. The applicant, who was granted legal aid, is represented by Gillman-Smith Lee, a firm of solicitors practising in Middlesex. The Government are represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office. The facts of the case, as submitted by the applicant, may be summarised as follows. Between 1994 and 1997 the applicant worked for President Lissouba (see below) as a bodyguard and martial arts trainer for his children. The applicant had also been a chief sergeant in the Congolese military. He was in charge of soldiers who fought for President Lissouba and organised defence when the President had to flee into exile. In 1998 he joined the National Council of Resistance (CNR) and its military branch the Autodefence Force of Resistance (FDR). He was closely involved in training fighters for the CNR. On 15 October 2000 he was arrested along with 31 other soldiers and detained until 17 November 2000. He was subjected to torture in detention, including, inter alia, being subjected to electric shocks. The applicant submitted medical evidence in support from the Medical Foundation which attributed multiple scars on his person to torture. He claimed that on 1 January 2001 a senior Congolese army officer opposed to the regime helped him escape. The applicant was shot trying to escape. The applicant arrived in the United Kingdom on 22 January 2001 via the Democratic Republic of Congo, Zambia and South Africa and claimed asylum on arrival. After arrival he was diagnosed with AIDS. In 2001 or 2002 the applicant married a British national who had five children from a previous relationship. The Home Office and the Adjudicator rejected the applicant’s asylum claim on 12 March 2001 and 18 June 2003 respectively. They emphasised that there was no risk in returning Congolese citizens unless they had been heavily implicated in anti-government activities and that a UNHCR report suggested that only the most senior members of the Lissouba regime would be at risk. As to his medical condition, the Adjudicator noted that the applicant had family in the Congo who could care for and support him. The Adjudicator also noted that at the time the applicant and his wife married she already had five children and they were aware of his precarious immigration status. On 18 August 2003 the Immigration Appeal Tribunal (IAT) granted the applicant permission to appeal in relation to lack of suitable medication in the Republic of Congo and in relation to the Adjudicator’s acceptance of core elements of the applicant’s account whilst making a broad negative credibility finding. On 1 October 2004, following a hearing at which the applicant was represented, the IAT rejected the applicant’s appeal. Whilst the IAT accepted that he had been detained and ill-treated, it found that the applicant had been a low-level supporter of the CNR and that he would therefore be able to benefit from the 1999 amnesty for acts committed during civil conflicts. It noted the applicant’s own evidence that since May 2003 the peace process had advanced significantly and an amnesty had been offered, and concluded that even on the applicant’s own evidence he would not be at risk merely because of his past association with the defunct CDR party, the successor of which was a legal opposition party taking part in the political process. As regards the applicant’s medical condition, the Tribunal found that he had “full-blown AIDS” and was receiving anti-retroviral treatment. It noted that in his Home Office interview the applicant had accepted that there was medical treatment available in the Congo, the question being the adequacy of that treatment. It referred to a Tribunal determination in 2003 that in Congo anti-retroviral drugs were available, although expensive. It noted that as of 27 February 2003 the applicant’s CD4 count was 370 and his viral load 73,800. It noted that as at 28 January 2004 the applicant’s viral load was less than 50 (down from just under 80,000) and his CD4 count above 500 (from less than 400) and observed that he was clearly making progress. It noted his doctor’s report that he was taking medication with three components one of which (Abacavir) was not available anywhere in Africa. The applicant submitted a medical report dated 28 January 2004 in support. However the IAT also referred to a further letter dated 17 March 2004 which it found indicated that, contrary to the previous impression, some appropriate treatment might be available after all and was sold cheaply, although patients who took Abacavir generally did much better. It concluded that even on the applicant’s evidence some treatment for his AIDS was available although it might not be the consultant’s treatment of choice and that it was available at a reasonable cost. The applicant sought leave to appeal to the Court of Appeal as regards the IAT’s findings about his illness and the prospects of receiving adequate treatment in the republic of Congo. Leave to appeal was refused by the IAT on 15 November 2004. On 5 July 2006 the Home Office maintained its refusal of the applicant’s asylum claim. It also noted that as the applicant had spent all his formative years in the Congo he would have an adequate support network at home. It concluded that in his present condition, with the treatment available in the Congo and his support network at home, his removal would not breach Article 3. It also noted that he had separated from his wife. The applicant is now divorced from his wife. In 2006 he formed a relationship with a British citizen, with whom he has a child born in February 2008. It is not known whether either his present partner or the child are infected with HIV. It does not appear that he has sought leave to remain in the United Kingdom on the basis of his current relationships. A medical report dated 7 May 2008 stated as follows: “The patient is under our care at North Manchester. He has an HIV chronic infection well controlled with antiretrovirals. His last CD4 count was 752 (34%) and viral load is undetectable. Recently he has had to change his antiretroviral regimen because of a problem with lipodystrophy. He was on Trizivir and changed to Kivexa and Efavirenz. He is tolerating his treatment relatively well. If he can not get the treatment his life expectancy would be 2-3 years because of the possibility of opportunistic infection. If he continues to take his antiretrovirals he can have a life expectancy similar to a normal person but he will be more prone to cardiovascular events like heart attacks or strokes.” A medical report from the applicant’s general practitioner, dated 13 May 2008, recorded that the applicant was also receiving treatment for moderate depression and diabetes. According to the United Kingdom’s Foreign and Commonwealth Office Country Profile on the Republic of Congo dated September 2006, in 1992 multi-party democratic elections took place and Pascal Lissouba’s party won the majority of seats in both the National Assembly and Senate. This shift in power destabilised the country and led to conflict between the army and militia groups. Civil war broke out between the militia forces loyal to Mr Lissouba and Mr Kolelas, on one side, and Mr Sassou-Nguesso, on the other, one month before the next elections were due to take place, in July 1997. The war continued for five months, and was finally won by Mr Sassou-Nguesso. The ousted President Lissouba and Prime Minister Bernard Kolelas fled. The planned elections did not take place, the constitution was suspended, and a transitional government was set up. The militia forces, however, fought on sporadically for another two years. A peace agreement was finally reached in November 1999. A new constitution was adopted in 2001 and endorsed by a referendum in January 2002. The provisions of the constitution provided for a strong executive president, with a limit of two terms, with the length of the term extended from five years to seven years. The provisions also provided for a bicameral legislature to be elected every five years. The constitution banned political parties organised on regional, ethnic or religious identity. In March 2002, renewed violence began in the Pool region, instigated by members of the Ninja militia group. The conflict slowly spread to other parts of the country and intensified as it did so. A peace agreement between the Ninja militia group and the government was signed in March 2003 and ended the fighting. In August 2003, the National Assembly formally approved an amnesty for the former Ninja militia fighters. Presidential elections were held in March 2002. Most of the key candidates were banned from participating in the elections or withdrew from the election. This left Mr Sassou-Nguesso to win the election virtually unopposed. A peace agreement between exiled former Prime Minister Kolelas and President Sassou-Nguesso was signed in March 2003. In January 2005, President Sassou-Nguesso appointed a new government made up exclusively of members of his PCT party. In October 2005, clashes between Ninja fighters and government forces occurred, following the return of Mr Kolelas to the country to attend the funeral of his wife. President Sassou-Nguesso subsequently requested that the legislature grant an amnesty to Mr Kolelas in the interests of national reconciliation. This was duly approved, and the death sentence issued in absentia against Mr Kolelas in May 2000, was overturned. Several days after the amnesty was granted, Mr Kolelas apologised to the Congolese people for his role in instigating the 1997 civil war. According to the United States State Department 2007 Country Report on Human Rights Practices in the Republic of Congo, published 11 March 2008, the government’s human rights record remained poor; although there were fewer documented abuses during the year, serious problems remained. Citizens’ right to peacefully change their government was limited. In addition, the following serious human rights problems were reported: killings of suspects by security forces; mob violence, including killing of suspected criminals; security force beatings, physical abuse of detainees, rapes, looting, solicitation of bribes, and theft; harassment and extortion of civilians by uncontrolled and unidentified armed elements; poor prison conditions; impunity; arbitrary arrest; lengthy pre-trial detention; an ineffective judiciary; infringement of citizens’ privacy rights; limits on freedom of the press; restrictions on freedom of movement; official corruption and lack of transparency; domestic violence and societal discrimination against women; trafficking in persons; discrimination on the basis of ethnicity, particularly against Pygmies; and child labour. The State Department Report further stated that the government did not prevent the return of citizens, including political opponents of the president. By year’s end, former president Pascal Lissouba, who was sentenced in absentia in 2001 to 30 years in prison for “economic crimes,” had not returned to the country, despite a November announcement that President Sassou-Nguesso had agreed to allow his return and pardon him. In August a former prime minister, Joachim Yhombi-Opango, returned to the country after the Council of Ministers granted him an amnesty in May for a 2001 conviction in absentia for allegedly improperly selling the country’s oil while in office. The Country Progress Report for 2005, submitted by the government of the Republic of Congo to UNAIDS in January 2006, stated that at that time the Congo had two outpatient treatment centres, one at Pointe-Noire and the other in Brazzaville. These centres were the main structures providing global treatment for people living in the country. The active list of HIV-positive patients in these two centres in December 2005 numbered 3,478, of whom 1,230 were receiving antiretroviral drugs (ARVs). According to the same report, the total number of patients taking ARVs in the Congo rose from 850 in 2003 to 1,900 in 2004 and 2,550 in 2005, giving an increase in recruitment rate of 33% over the past three years. At the end of 2004, the regular monitoring of patients taking ARVs was 88%, the percentage lost to follow-up was estimated at 10% and the specific mortality rate at 3%.