Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04869/2014

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 15th March 2017
On: 20th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

FK
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Nicholson, Counsel instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of the Democratic Republic of Congo born in 1968. He appeals with permission1 the decision of the First-tier Tribunal (Judge DN Harris) dated 9th May 2016 to dismiss his appeal2 on asylum and human rights grounds.

Anonymity Order

2. This case concerns a claim for international protection involving, inter alia, allegations of sexual assault and torture. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Matters in Issue before the First-tier Tribunal

3. The Appellant claimed asylum on the 20th March 2012 alleging a well-founded fear of persecution for reasons of his political opinion, that being membership of the Congolese opposition group the UDPS. He stated that he had been arrested on five occasions and subjected to serious ill-treatment including rape and torture. These arrests took place in July 2006, January 2008, July 2011, October 2011 and December 2011. All of these detentions arose in the context of his political campaigning for the UDPS, ie attending demonstrations. The Appellant was threatened about what might happen to him if he continued his support for the UDPS, but he was released without charge on each occasion bar the final detention, when he was released from an unofficial detention facility following intervention by his nephew, a Major in the Republic Guard.

4. The claim was rejected on the 25th June 2014. The Secretary of State found there to be internal inconsistencies in the account and did not accept that the Appellant’s description of life in a Congolese jail was supported by the country background material. Nor did the Secretary of State accept, in the absence of evidence, that the Appellant had returned to the DRC after a visit to the UK in 2007.

5. By the time that the appeal came before Judge Harris the evidence had developed on both sides.

6. The Respondent had produced evidence from the Metropolitan Police which indicated that the Appellant had been in the UK in 2009. This was significant because the Appellant had not previously disclosed that he had returned to this country after his claimed departure in 2007. The Respondent submitted that this went to the Appellant’s general credibility, and relied on this material to bolster her argument that the Appellant had never in fact left.

7. In turn the Appellant had produced an additional witness statement in which he admitted to having entered the UK illegally in January 2009 and to having returned to Congo in January 2010. He states that he had not previously mentioned this trip because it was not connected to his asylum claim. He had been asked about previous visas which he had declared but he had not directly been asked whether there had been any other periods of stay.

8. The Appellant further relied on a medical report written by a Dr Ashley Dawson under the auspices of the Medical Foundation. That report is dated the 11th February 2015 and was prepared after eight consultations with the Appellant. It is a very detailed and comprehensive report but it suffices here to note that Dr Dawson identifies 89 lesions on the Appellant’s body, of which 72 are attributed to torture. Of these lesions Dr Dawson finds 31 to be ‘diagnostic of’ him having been deliberately burned with a lit cigarette. That term is defined in the Istanbul protocol as “there is no other possible cause”. Dr Dawson specifically notes that the positioning and pattern of the injuries is out of character with self-harm; some are in places which would mean it would not have been possible for the Appellant to have inflicted them himself. Dr Dawson finds the deformities to the Appellant’s right hand to be ‘typical of’ the ill treatment he describes including having his finger broken by truncheon blow and a type of torture where the fingers are forced together with sticks; injuries to his ankles ‘typical of’ having been manacled; his anal tags and fissure ‘typical of’ male rape. The designation “typical of” is defined in the Istanbul Protocol as “this is an appearance that is usually found with this type of trauma, but there are other possible causes”. It is one from the top of the hierarchy set out in the Protocol, the only designation above it being the aforementioned “diagnostic of”. The remaining lesions, including a significant head wound said to have been caused by a blow from a rifle butt, are all found to be ‘highly consistent’ or ‘consistent’ with the claimed ill-treatment. Having had regard to the position and pattern of all of the scars Dr Dawson was satisfied that they were “strongly supportive of an overall picture of an individual who has been subjected to torture”. Dr Dawson further conducted a psychological evaluation of the Appellant and found him to be severely depressed with symptoms strongly suggestive of complex PTSD.

9. It appears that it was accepted by the Secretary of State that a claim would be made out if the Appellant’s historical account were to be accepted on the lower standard of proof. The question before the First-tier Tribunal was therefore one of credibility.

The Findings of the First-tier Tribunal

10. The Tribunal accepted that the interview transcript from the Appellant’s substantive asylum interview does imply that he opposes the current regime in Congo. It further accepts that he has taken part in sur place opposition activity in the UK and that the “report of the Medical Foundation is also supportive of his contention to have been beaten and received certain injuries and insofar as it is accepted that beatings could cause the injuries which they Appellant claims to have sustained”. That is the extent of the findings in the Appellant’s favour. The crux of the reasoning is found at paragraph 23:

“23. Against this as a starting point is the failure of the Appellant to disclose until such time until it is proven by the police that he was in the UK between 2009 and 2010. Mr Nicholson states that the Appellant has not said that he was in the DRC throughout that period. I think that is a convenient use of words. The Appellant has not claimed to be anywhere else other than the UK and he has quite clearly failed to state that he came to the UK during a period in which he contends that events supportive of his claim for asylum have taken place. It is the Appellant’s case that the reasons that he came to the UK at that time were not for asylum reasons but for personal reasons due to difficulties he was experiencing in Congo. I do not find such a contention credible or helpful. It casts a very considerable doubt on the overall credibility of the Appellant’s testimony”.

11. The Tribunal gave substantial weight to the failure to disclose the earlier trip, finding that the fact that he managed to leave and return to the DRC without difficulty on that occasion would appear to indicate that he is not of interest to the authorities. On that basis the appeal was dismissed.

The Appeal to the Upper Tribunal

12. The matter first came before me on the 2nd November 2016. The single ground of appeal upon which permission was granted was that the First-tier Tribunal failed to have proper regard to the very detailed and lengthy medical report.
13. The Respondent was that day represented by Senior Presenting Officer Ms R. Petterson. I need not deal with the medical report, nor the determination, in any great detail since Ms Petterson accepted without hesitation that the evidence of Dr Dawson is not properly addressed in the reasoning.

14. I agree that this was a concession properly made. Paragraph 22 of the determination reads:

“and the report from the Medical Foundation is also supportive of his contention to have been beaten and received certain injuries and insofar as it is accepted that beatings could cause injuries which the Appellant claims to have sustained”.

15. Ms Petterson considered, and I agree, that this reference to “beatings” would tend to indicate that the Tribunal has not apprehended the full force of Dr Dawson’s findings. The report meticulously recorded of the Appellant’s very detailed evidence about his ill-treatment. Dr Dawson conducted a physical examination and concluded that the Appellant has sustained 31 injuries diagnostic of having suffered multiple burns by lit cigarettes and other objects, distributed in a pattern strongly suggestive of torture; that his hand is deformed due to deliberate actions; he has scars typical of manacle wounds and physical and psychological symptoms typical of rape. Although the Respondent through Ms Petterson maintained a challenge to the Appellant’s credibility, specifically in respect of his whereabouts between 2007 and present, she conceded that the Tribunal cannot have conducted a lawful and holistic appraisal of it without having had regard to the totality of Dr Dawson’s findings. I agree. This report contained not only a minutely detailed schedule and analysis of the Appellant’s many physical scars but Dr Dawson’s observations, made in eight separate consultations lasting over twelve hours in total, as to his demeanour and emotional state. The psychological symptoms mentioned in the report were not simply based on self-reporting by the Appellant, but upon Dr Dawson’s clinical observations. For instance, at paragraphs 149-150:

“Whilst describing certain aspects of his experiences, he became physically anxious, distressed and labile (close to tears, or crying). At one point he was unable to continue with his disclosure due to the severity of these negative feelings elicited by the disclosure itself. At other times he was solemn on recording elements of his history and when describing the disgusting conditions of his detention, he appeared physically revolted.

Despite this, at times when he was discussing his political beliefs and the importance he felt in fighting against the perceived injustices of the government in the DRC, he was impassioned and animated. At these times he discussed in great detail the political situation in his country with rare confidence. During his discussion of early life. In contrast the visibly relaxed and appeared briefly unburdened”.

16. The report also made reference to the fact that the Appellant was receiving ongoing care from the Medical Foundation and Freedom from Torture. None of this evidence is reflected in the determination. Ms Petterson conceded that for that reason the entire decision would need to be remade. Given the lengthy history of the proceedings thus far, it was agreed that this would be in the Upper Tribunal.

The Re-Made Decision

17. The hearing resumed before me on the 15th March 2017. I heard brief evidence from the Appellant, and submissions on the evidence from Mr Nicholson and Mr Harrison. At the end of the hearing I indicated that I would allow the appeal. I now give my reasons.

18. In reaching my decision I placed reliance on the express concession by Mr Harrison (and the HOPO in the First-tier Tribunal) that the central matter in issue is whether the account is true: the Respondent’s suggestion in the refusal letter that the Appellant was not at risk of persecution if he was being released without charge from these multiple detentions is not therefore a submission that I need deal with. The burden lay on the Appellant to establish, to a reasonable degree of likelihood, that the account was true, and that he would face a current risk as a result.

The Evidence

19. The Appellant’s case is set out in the following documents:

Witness statement dated 17th February 2012 [at annex D Respondent’s bundle]
His screening interview dated 20th March 2012 [at annex B Respondent’s bundle]
The substantive interview record dated 29th March 2012 [at annex C of Respondent’s bundle]
Addendum to witness statement of the 17th February 2012, dated the 2nd April 2012 [annex D Respondent’s bundle]
Witness statement dated 23rd February 2015 [page 8 of the Appellant’s bundle A]
Witness statement dated 29th February 2016 [page 3 of the Appellant’s bundle B]
Witness statement dated 2nd March 2017 [page 1, Appellant’s bundle C]

He has also given extensive evidence to the Medical Foundation, reproduced in Dr Dawson’s report of the 11th February 2012.

20. In summary, the historical account is as follows.

21. The Appellant left university in 1990 and set up his own business importing goods into the DRC. He travelled to Nigeria, the UAE, China and the UK in the course of running this business. It joined the UDPS in 2006. He did so in protest against the government’s policies, the human rights abuses taking place in the Congo, and the high cost of living. The first brush with the Congolese authorities came in July 2006. He attended a demonstration organised by the UDPS. They were calling for a proper census to be conducted so that the electoral register would be accurate. This protest was broken up by riot police who attacked the crowd. The Appellant was arrested and rounded up with about 30 other people. They were shackled with metal cuffs and brutally treated. They were held for about a week in a cell so cramped the men were forced to defecate and urinate where they stood. Each day they were served ‘morning coffee’, a euphemism for ritualised beating and humiliation. After approximately one week the prisoners were released without charge, after being told not to attend any more protests. After his release the Appellant learned that a UDPS lawyer had helped to secure their release. The Appellant contracted typhoid during this detention and was treated for this, as well as the injuries caused by his ill-treatment. The Appellant told Dr Dawson that he was able to cope psychologically because he knew that the leaders of the movement, such as Etienne Tshisekedi, had also been subjected to such tortures and yet they stood their ground.

22. In January 2008 the Appellant was again arrested whilst attending a demonstration. This protest was organised to accuse the government of complicity in the mass rape of women and girls in Kivu. Many foreign journalists were present at these protests. This led the protesters to believe that they had a certain degree of protection, but in fact it made the government want to quash them immediately. Significant numbers of riot police were deployed to block the route of the demonstration. They fired tear gas. The Appellant had received training from the UDPS about what to do in this situation. He stayed low and looked for water, but felt himself being grabbed from behand by the waistband of his trousers. He was taken to Camp Lofungala Police Station. This was a particular worry since he knew that the man in charge of this station was having an affair with his wife (see paragraph 31 below). In fact his treatment was no worse than that suffered by other detainees. They were beaten with sticks and stripped on arrival. They were placed in very small cells. They were held for approximately two weeks. He was beaten each day, sometimes after being soaked in water, since that increased the pain. Generally the ‘interrogation’ took the form of threats and being told to leave the UDPS. Before his release, he was made to sign something that said he would take no further part in any protests. After his release he was taken to hospital by fellow UDPS members and his sister. He was treated for “many” linear marks all over his back and buttocks. He could not work for approximately one month after this.

23. The Appellant was not arrested again until July 2011. He was attending a demonstration in respect of the upcoming elections when he was apprehended by the PIR (Rapid Intervention Police). It was held for two weeks at their centre on Rue de la Victoire. On this occasion he was not beaten every day. Instead the methods used included being forced to stare at the sun until his eyes burned, and being made to kneel on metal bottle tops. He was threatened and intimidated. The police told him that they knew where his shops were. The Appellant decided to close his business after this event. The Appellant told Dr Dawson that he found it harder to cope after this detention. Although he was strongly politically motivated he began to live in fear of being abducted or poisoned, like an uncle of his had been. The elections were due to take place on the 28th November 2011 and he knew that the authorities would be cracking down.

24. His concerns proved justified as in October he was arrested for a fourth time. On this occasion the Appellant was taken, with other protestors, to Police Headquarters near the parliament building, a place with a particularly fearsome reputation. Dr Dawson records the Appellant’s distress and agitation as he described the conditions in the cells in this place. He was there subjected to a particular torture where his fingers were squeezed together using wooden sticks, and again to the routine of ‘morning coffee’. He has scars on his ankles from where his raw ligature wounds became infected in the disgusting conditions. The UDPS took immediate action to try and get these prisoners released. They believed that the government were deliberately cramming the jails and police stations full of UDPS supporters and would keep them there until after the election, thus depriving them of a chance to vote. Amnesty International inspectors managed to get into the prison. Before they arrived the guards told the prisoners to tell them they had been arrested somewhere else, not on a protest (ie that they were simply criminals). They threatened them with death if they refused. The Appellant did refuse. He told the inspectors who he was and why he had been arrested, and encouraged others to do so. This seemed to work because the violence stopped and one week later they were released. He had been held for approximately one month in total.

25. Kabila was returned to power. The UDPS refused to accept the result. On the 23 December 2011 they decided to call an alternative Presidential swearing in ceremony. The government reacted with severe repression. The military opened fire on protestors on Sandwe Boulevard and everyone ran. The Appellant was grabbed and hit over the head with what he thinks was a rifle butt. He briefly lost consciousness and when he woke he was in a military jeep. These were not normal policemen. They were soldiers speaking in Swahili and English. They drove at high speed and eventually pulled up outside a building. He can recall seeing dirty swimming pool as he was led inside. This was the ‘Palais de Mabre’, or Marble Palace, an unofficial prison notorious for the torture and murder that took place there. It was being run by the Katanga Republic Guards, an elite presidential guard. When he saw them he knew that this detention would be different. He told Dr Dawson that he had “felt death coming”. He believed that there were also soldiers there from other countries, who were backing Kabila. The Appellant described one of the forms of torture that he was subjected to there as follows:

“Whilst we in that place, every night they would take us from the cell and take us to a swimming pool. The guards would urinate or defecate in a swimming pool and then throw us in and tell us to swim there until morning”3.

Three men that he entered the water with did not come out. The extent of the ill treatment that the Appellant claims to have suffered during this detention is set out in Dr Dawson’s report. Whilst being interrogated by soldiers smoking cigarettes and marijuana they would extinguish the cigarettes and joints on his skin. He was kicked and beaten. He was forced to stare at the sun. He was tied up and left outside all day in the rain. One day he was taken alone for interrogation. He was placed in a room with four soldiers who were taunting him. They were drinking and smoking marijuana. He was hit with a rifle butt and raped. He was semi conscious and he does not know if he was raped by all of them. The Appellant was returned to his cell. He defecated and it had blood in it. He was ashamed and could not look at his fellow prisoners. They consoled him. They told him that it is better to be raped than killed.

26. The Appellant has consistently stated that he did not expect to escape this detention alive. When one night a guard approached him and called him by name, he expected to die. In fact, the guard was there to help him escape. The Appellant later learned that this has all been arranged by his nephew. The Appellant escaped from prison on 29 January 2012 and was taken out of the country by an agent arranged by his family. He travelled to the United Kingdom via Kenya using a fake Belgian passport. He claimed asylum. He claimed asylum a few days later, on the 9th February 2012.

27. The Appellant was referred to ‘Freedom from Torture’ in April 2012. The manager of that organisation wrote to the Tribunal in March 2016 to confirm that since his initial assessment the Appellant has received fortnightly physiotherapy, and that every week he attends a counselling session with Mr Robin Brightwell. Before me the Appellant confirmed that this arrangement continues. He showed me his physio record folder (containing his appointment cards and exercises he has been given) and the various painkillers and antidepressants that he has been prescribed by his GP.

28. Although consistent in his core account, the account that the Appellant has given, to numerous people over the last four years, is not free of problems. There has been for instance some discrepancies with the dates of his detentions, but these are not significant and Mr Harrison did not pursue that point. In the circumstances, some inaccuracies are to be expected. The most fundamental issue is the trip to the UK in 2009, to which I return below, but that was not the only matter which gave the Respondent cause for concern when she considered the claim in June 2014. The ‘reasons for refusal letter’ raised the following matters:

i) It is the Appellant’s claim that after his arrests in 2008 and 2011 he was made to sign a document promising to take no part in any further political activity. The Respondent questions why these disclaimers were never raised in the following arrests;

ii) The Appellant’s evidence was that after he was arrested in December 2011 he was held at an illegal detention facility called the ‘Palais de Mabre’ where he was subjected to inhumane treatment and conditions, but was fed: he said that he received a piece of bread each day and 2-3 days per week the prisoners would be given beans. The Respondent considered that to be inconsistent with the country background information which states that food is not provided in Congolese prisons;

iii) The Appellant believes that he escaped death in the ‘Palais de Mabre’ because of an intervention by his Nephew in the army. It is not considered to be credible that this man, a Major in the Republican Army, would be able to locate the Appellant if he had not known which facility he was being held in. Country Background Evidence pointing to the “disarray” in the prison system is relied upon;

iv) In his screening interview the Appellant was asked “have you ever been arrested, charged with or convicted of an offence in any country?” to which he replied “no”. The Respondent contrasts this with the Appellant’s subsequent evidence that he was arrested and detained on numerous occasions.

29. The Appellant responds to these points in his statement dated 23 February 2015. In respect of i) the Appellant says that he cannot speak for the actions of the Congolese security forces. He believes that they conduct these campaigns of harassment and relatively short term arrest as a means of intimidating and disrupting the activities of the opposition. He points out that since the arrests themselves were arbitrary and unlawful, the authorities tend not to rely on any evidence obtained as a result. As for ii), the Appellant is again unable to comment. He states that sometimes the prisoners would receive a little bit of food, and sometimes they would not. He speculates that the guards were perhaps taking pity on them. The Appellant maintains that his nephew was able to locate him because he physically visited each of the detention centres that he knew of in Kinshasa looking for the Appellant. The Appellant does not resile from the answers he gave at his screening interview (iv): he maintains that he has never been arrested for a criminal offence. He regards his detentions following legitimate political protest to be acts of persecution.

30. The issue about the 2009 trip emerged as follows. When the Appellant claimed asylum he had submitted to the Secretary of State a witness statement dated 27 February 2012. In that witness statement he mentions visits to the UK that he made in 2007. Although that statement offers a chronology of events from his birth in 1968 to his escape from the DCR in January 2012, he makes no mention of having returned to the UK in 2009-2010. At Question 2.9 of the screening interview [B5] the Appellant was asked “have you applied for or been issued a UK visa before coming to the UK?” to which he replies yes, and gave details of a visit between the 13th December 2006 and 28th February 2007, and a second trip which took place between the 23rd September 2007 and the 25th October 2007. Again, he made no mention of the trip in 2009. The Respondent was not happy about that evidence. In the refusal letter the Respondent expressly rejected the Appellant’s claim that he had left the UK in 2007. The Respondent suggests that the whole account can be rejected on the grounds that the Appellant has never in fact been back to the DRC. In response to that refusal letter the Appellant submitted a further witness statement, that dated 23rd February 2015. Therein he goes into some detail about the efforts that he has made to obtain confirmation from Kenya Airways, the airline that he allegedly travelled with in 2007, that he did leave this country. Again, he makes no mention of having returned to the United Kingdom in 2009.

31. In July 2015 the Respondent produced some evidence from the Metropolitan Police which indicated that the Appellant was in the United Kingdom in 2009-2010. They believe that to be the case because during their investigation into an offence alleged to have taken place in that time period, the Appellant admitted having been living with a girlfriend in Tottenham, London.

32. It was only after this evidence emerged that the Appellant made the same admissions in the context of these proceedings. In his witness statement of 29 February 2016 the Appellant explained that he had not previously mentioned this trip because he did not believe it had anything to do with his current asylum claim. He said that he had travelled to the United Kingdom using a French passport with the help of an agent from Guinea. He flew from Brazzaville. The trip was arranged by an agent. Although he had experienced persecution in Congo before he arrived in London that was not the primary reason for that trip. He explains that he had been having problems in his marriage at the time. He discovered that his wife had been having an affair with a man named Colonel K, who subsequently became the head of the police in Kinshasa. When he confronted her she confirmed that it was true and that she was leaving him to live with K, who had already bought a house for her. The Appellant states that he was depressed and humiliated. The affair caused problems for K because there were others in the security services who disapproved of his conduct, or at least it was something that could be used against him in the context of an internal power struggle. As the pressure on K increased, the Appellant became increasingly fearful for his safety. K would send police officers to his business premises to harass him. He thought it best to leave the country for a period, until everything had calmed down. After he arrived here Congolese friends advised him that these personal issues could not found a claim for asylum so he did not approach the authorities. He claims that he returned to the United Kingdom in January 2010 after receiving assurances that he would no longer face any problems from K.

33. The second limb of the Appellant’s case is that since his arrival in the UK he has continued to take part in political activities against the government in the DRC. This evidence was implicitly accepted by the First-tier Tribunal [at paragraph 24] and expressly by the Respondent before me. It is nevertheless worth summarising what that evidence shows.

34. In his statement of 29th February 2016 the Appellant explains that during May 2015 he was interviewed on camera on behalf of the ‘RCK’. This stands for the ‘Resistant Combatant du Kongo‘. the RCK are a group of Congolese opposition activists brought together in protest against the rigging of the elections. The interview has since been posted on ‘youtube’. Another clip posted to the same site depicts the Appellant speaking at a RCK meeting in London, called to organise protests against the arrest of two activists in the DRC, Christopher Ngoyi and Diomi Ndongala. The Appellant has also participated in demonstrations in London, and helped to organise a social media campaign aimed at fomenting a general strike in the DRC. I was provided with letters written in support of the Appellant from Lutete Kasongo of the RCK, dated 16th March 2015, and from Theophile Ngombo of the UDPS dated 27th May 2015. On a more personal level he is involved in a music therapy group organised by ‘Freedom from Torture’. They have performed at a number of public events.

My Findings

35. This is an exceptionally detailed historical account, as I hope the summary I have made above adequately reflects. It has been recounted on several occasions over the past five years, and in respect of events in the DRC it has remained consistent at its core. I am satisfied that it is entirely consonant with the country background evidence. The fact that the Appellant received small pieces of bread and rations of beans whilst held at the Marble Palace does not in my view undermine his claim. There could be many reasons why those guards gave out those meagre scraps, not least to keep the prisoners alive long enough to get information out of them.

36. The Appellant’s testimony is supported, in generous measure, by the findings of Dr Dawson. As Mr Harrison agreed, this is a medical report quite exceptional in its length, scope and detail. The evidence of Freedom from Torture/the Medical Foundation is marked by three important features. First, Dr Dawson has, in accordance with the Istanbul Protocol, not simply accepted what he has been told. He has based his findings on his clinical observations, collected over a 12-hour period. Second, the findings of extensive scarring and injury diagnostic/typical of the claimed cause can rationally only be considered to be supportive of the Appellant’s case. Thirdly Dr Dawson’s conclusions are in keeping with the fact that this notoriously oversubscribed organisation has considered it necessary to see the Appellant six times a month for the past five years in order to administer psychological and physical treatment.

37. Finally, if there was any doubt about the Appellant’s involvement in politics in the DRC that must surely be dispelled by the accepted fact that he has continued to play an active role in the diaspora, with two organisations being moved to write to confirm his participation and commitment to the cause of overthrowing Kabila.

38. All of those features of the evidence weigh very heavily in the Appellant’s favour.

39. What weighs against him is this. That the Metropolitan Police have a record of the Appellant being in London in 2009-2010. In evaluating that evidence I must weigh the likelihood of two competing scenarios. One, that the Appellant’s explanation as to his arrival and departure from the UK is true; second that the entire account is a fiction and that he has been living illegally in the UK since 2007 without ever having returned to Congo.

40. I reject with very little hesitation the latter. I do so because the medical evidence shows that this is a man who continues to bear the scars of what would appear to be deliberately inflicted torture and sexual assault. Whilst I cannot discount the possibility that these injuries were inflicted in the UK it seems unlikely as it is unpalatable. If they were inflicted prior to his arrival, then it begs the question why he would not have claimed asylum sooner. Indeed the Appellant would have to be a storyteller of some skill to have invented this entire claim, particularised and meticulous as it is. If he was a storyteller of such skill there would again appear to be no good reason why he would wait five years until 2012 before coming forward and claiming asylum.

41. I am therefore minded to accept the Appellant’s explanation for his presence in UK in 2009-2010. Importantly for him there was a definite gap in the chronology of persecution which fits with his claimed sojourn in London. This account does not, of course, go to his credit. He has, if it is true, shown a blatant disregard for immigration control, having travelled to and fro on a passport to which he was not entitled, and although he was not asked about this, presumably working illegally to support himself whilst here. There is little doubt in my mind that the Appellant deliberately chose to conceal that trip when he claimed asylum. I agree with the First-tier Tribunal that it was dishonest to attribute this omission to ‘not having been asked the question’. I have weighed those matters against the Appellant.

42. Having done so I am unable to reach any other conclusion than this. The Appellant has, for the reasons set out above, discharged the burden of proof. He has demonstrated that he was a UDPS activist in the DRC and that he suffered atrocious persecution as a result.

43. It follows that the appeal must be allowed. The Appellant has demonstrated not just a historical involvement in opposition politics in Congo, but a continuing commitment to his cause. I accept that he would likely continue that work should he be returned to that country. I am quite satisfied, as was the Respondent, that to do so would expose him to further real risk of persecution.

Decision

44. The decision of the First-tier Tribunal contains an error of law such that it must be set aside.

45. The decision is remade as follows:

“The appeal is allowed on asylum grounds.

The Appellant is not entitled to humanitarian protection because he is a refugee.

The appeal is allowed on human rights grounds”.

46. There is an order for anonymity.

Upper Tribunal Judge Bruce
17th March 2017