Kibiti v Secretary of State for the Home Department

In an asylum claim arising from civil war, exposure to the ordinary incidents of conflict does not ordinarily establish persecution for a Convention reason. The claimant must show a differential impact: persecution for a Convention reason over and above the risks attaching to involvement in the civil war. Ethnic or religious divisions do not, by themselves, alter that approach where ethnic targeting reflects actual or perceived support for one side. Once civil war has ended and order has been restored, ordinary Convention principles apply again. On an appeal limited to a question of law, the Court of Appeal must assess whether the tribunal ignored, misunderstood or inadequately scrutinised the evidence. Fresh evidence which could not have affected the tribunal’s decision cannot be used to establish an error of law.

Mr Kibiti, a Congolese asylum seeker, appealed against the Immigration Appeal Tribunal’s dismissal of his challenge to the Special Adjudicator’s refusal of asylum. He feared return because he was Babembe and shared the ethnic origin of the former President, Lissouba. The Tribunal found that continuing conflict in the Congo amounted to civil war within the guidance in Adan v Secretary of State for the Home Department [1999] AC 293, and that Mr Kibiti had not shown a distinct risk to him on a Convention ground.

The central issues were whether the Tribunal had erred in law in classifying the Congo as being in civil war, in treating ethnic targeting as an incident of that conflict, or in applying anxious scrutiny. The Court also considered whether fresh expert material could be relied on under section 9 of the Asylum and Immigration Appeals Act 1993.

1. Appeal dismissed. The Immigration Appeal Tribunal had been entitled to find, on the Amnesty International evidence, that a civil war continued in the Congo. The existence of a recognisable governmental structure did not make that conclusion legally unavailable. The evidence described extensive fighting between opposing groups, intervention by neighbouring forces, attacks on civilians and large-scale displacement.
2. Buxton LJ treated the guidance in Adan v Secretary of State for the Home Department [1999] AC 293 as requiring four questions: whether civil war was in progress; whether the claimant’s harm was an ordinary incident of that war; whether the claimant faced persecution over and above those ordinary risks for a Convention reason; and, if no civil war existed, whether the ordinary Convention rules applied.
3. The Tribunal was entitled to conclude that ethnic targeting reflected actual or perceived support for one of the opposing parties. Such targeting could therefore be an incident of the civil war, rather than persecution for the claimant’s ethnicity independently of the conflict. The Tribunal also adequately considered the evidence and was entitled to find no risk to Mr Kibiti merely because he was Babembe.
4. On the statutory appeal under section 9 of the Asylum and Immigration Appeals Act 1993, the Court was confined to identifying a material error of law. Fresh material that was not before the Tribunal and could not have affected its decision could not establish such an error. Peter Gibson LJ stated that the material could instead be presented to the Secretary of State after the appellate process.
5. Chadwick LJ and Peter Gibson LJ agreed with Buxton LJ’s reasons on the appeal. Leave to appeal to the House of Lords was refused, and detailed assessment of the applicant’s costs was ordered.

• Court of Appeal (Civil Division): appeal from the Immigration Appeal Tribunal dismissed; leave to appeal to the House of Lords refused.
• Immigration Appeal Tribunal: appeal from the Special Adjudicator dismissed, the Tribunal finding that the Congo remained in civil war and that no Convention-based risk to the appellant had been established.
• Special Adjudicator: Secretary of State’s refusal to grant asylum upheld.