Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11169/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 7 February 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
UPPER TRIBUNAL JUDGE STOREY

Between

N D O
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Dieu instructed by Duncan Lewis Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This appeal is subject to an anonymity direction made by the Upper Tribunal in its decision dated 22 September 2016. That anonymity direction remains in force.
Background
2. The appellant is a citizen of the Democratic Republic of Congo (“DRC”) who was born on 2 October 1980. He arrived in the United Kingdom on 22 November 2014 and claimed asylum. The basis of his claim was his involvement with the Movement Liberation of Congo Party which is opposed to President Kabila and, as a result, he claimed that he would suffer persecution on return to the DRC.
3. On 23 November 2014, the appellant’s case was admitted into the detained fast-track. The claim was processed and on 11 December 2014, the Secretary of State refused his claim for asylum.
4. The appellant appealed to the First-tier Tribunal and, in a determination promulgated on 16 January 2015, Judge J J Maxwell dismissed his appeal and his subsequent applications for permission to appeal were refused by the First-tier Tribunal and by the Upper Tribunal.
5. On 21 August 2015, the appellant’s solicitors made an application to the First-tier Tribunal to set aside Judge Maxwell’s decision on the basis that there had been a successful judicial challenge to the detained fast-track procedure. On 9 September 2015, the President of the First-tier Tribunal set aside the decision of Judge Maxwell and directed that the appellant’s appeal should be re-determined by a judge of the First-tier Tribunal.
6. The appeal was subsequently listed before Judge B Lloyd on 11 February 2016. In a determination sent on 23 February 2016, Judge Lloyd dismissed the appellant’s appeal. He rejected his claim based upon past political activities in the DRC. Further, he rejected the appellant’s claim that he was at risk as a result of his sur place activities in the UK due to his involvement with APARECO, a political organisation opposed to the current regime in the DRC.
7. The appellant sought, and was granted, permission to appeal to the Upper Tribunal.
8. The appeal was initially listed before UTJ Grubb on 13 September 2016. In a decision dated 22 September 2016, UTJ Grubb upheld Judge Lloyd’s decision rejecting the appellant’s asylum claim based upon his past political activities in the DRC. However, UTJ Grubb concluded that Judge Lloyd had failed properly to consider the appellant’s sur place claim on the basis of his involvement in the UK with APARECO and, to that extent, set aside Judge Lloyd’s decision and directed that the appeal be relisted before the Upper Tribunal in order to remake the decision solely in respect of the appellant’s sur place claim.
9. The appeal was subsequently listed for that purpose before a panel consisting of UTJs Grubb and Storey on 7 February 2017.
The Appellant’s Case
10. The appellant’s case before us was a straightforward one. He is at risk on return to the DRC because of his involvement with APARECO in the UK. He is the urban secretary of APARECO in Wales. He is actively and enthusiastically involved in the activities of APARECO of which he has been a member since May 2015. He takes minutes of meetings and represents APARECO in meetings that take place in London and around the country. He has responsibility for recruiting members through social media. He attends marches and meetings on behalf of APARECO including most recently in December 2016 giving a speech outside the DRC Embassy in London. The objective of that demonstration was to declare the need for the departure of President Kabila. His speech was around 30 minutes in front of a crowd of over 200 people with media present. He spoke opposing the regime. His speech was recorded and was shown on a number of You Tube channels such as Voice of Congo TV and Zaire-TV.
11. The appellant’s case is that evidence establishes that his involvement and he is likely to be known to the DRC authorities as a result of those activities. That profile will put him at real risk of persecution on return applying the Country Guidance decision in BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293 (IAC) at [112]-[117].
The Evidence
12. The evidence is contained in the original bundle before the FtT and also a supplementary bundle of evidence prepared for the UT hearing which we admitted, without object by Mr Duffy, under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
13. On behalf of the appellant, Mr Dieu relied upon a number of witness statements supporting the appellant’s involvement with APARECO in the UK, in particular three witness statements from the appellant (at pages 64-68 and pages 68 et seq of the FtT bundle and at pages 1-3 of the supplementary bundle – the latter dated 23 January 2017) which the appellant adopted in his oral evidence.
14. Mr Dieu also relied upon a witness statement of “J” who attended to give evidence but who Mr Duffy indicated he did not wish to cross-examine. As a consequence, her witness statement stood as her evidence. She speaks to her knowledge of the appellant and his involvement in APARECO in Wales as set out in his own evidence. She explains that it was the appellant who encouraged her to join APARECO and he was passionately involved with the activities of APARECO and its aims. She speaks of his role in mobilising and motivating people and in posting his opinion on Facebook.
15. In addition, Mr Dieu relied upon a witness statement of “L” who has been a member of APARECO since 2015 and holds an office in the national organisation. He too speaks of the appellant’s active involvement as the urban secretary of APARECO in Wales. He speaks of the appellant’s social media presence and states that such activity is monitored by the Congolese security forces. He refers to having met the appellant in 2016 at a meeting in London which he (“L”) headed.
16. Mr Dieu also relied upon a witness statement from “B” who states that she was an active member of APARECO but is no longer able to attend meetings because of her health. Nevertheless, she identifies the appellant and his role in APARECO in Wales and that he is an active member of APARECO with a very active social media presence such as Facebook on which he posts articles about the DRC and APARECO.
17. Finally, Mr Dieu, in the course of the appellant’s evidence, referred us to a number of photographs both in the First-tier bundle and in the further document submitted for the hearing before us, which showed the appellant attending the APARECO demonstrations and also at meetings on behalf of APARECO.
18. In his very brief submissions, Mr Duffy did not seek to dispute the factual basis of the appellant’s claim as put forward in his, and the other witnesses’, evidence. Further, Mr Duffy did not seek to persuade us that the appellant’s claim should not succeed based upon his sur place activities for APARECO applying BM and Others at [112]-[117].
Discussion
19. Given the stance that Mr Duffy took in his submissions, it is unnecessary for us to set out in detail the evidence: a summary of our conclusions in relation to it will suffice. We have read and considered all the evidence to which we were referred. There is, in fact, an abundance of material relating to the appellant’s involvement with APARECO which supports his claim to hold an office in the Wales branch of APARECO as urban secretary and that he is actively involved in the political activities of APARECO including attending high profile demonstrations and meetings of the organisation.
20. Although Mr Duffy cross-examined the appellant, in his submissions he did not seek to challenge the evidence of the appellant and other witnesses as to the role played by the appellant in APARECO. Mr Duffy also, in the light of the country guidance in BM and Others at [112]-[117], did not seek to argue that the appellant did not fall within the risk category recognised by the UT. We agree that that the appellant succeeds in establishing he falls within that risk category and is a refugee at risk on return to the DRC because of his political opinion.
21. The risk category based upon sur place activities in the UK is set out in para 3 of the head note of BM and others as follows:
“A national of the DRC who has a significant and visible profile within APARECO (UK) is, in the event of returning to his country of origin, at real risk of persecution for a Convention reason or serious harm or treatment proscribed by Article 3 ECHR by virtue of falling within one of the risk categories identified by the Upper Tribunal in MM (UDPS Members – Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023. Those belonging to this category include persons who are, or are perceived to be, leaders, office bearers or spokespersons. As a general rule, mere rank and file members are unlikely to fall within this category. However, each case will be fact sensitive, with particular attention directed to the likely knowledge and perceptions of DRC state agents.”
22. In order to succeed in his asylum claim, the appellant must establish that there is a real risk that he will be subject to persecution for a Convention reason, namely his political opinion if he is returned to the DRC.
23. We have no hesitation in accepting the evidence we heard and which we have read concerning the appellant’s role in APARECO. We accept that the appellant is the urban secretary of APARECO in Wales. We accept that he is active in that organisation in Wales and more widely in the UK and that his role includes recruitment and, at times, posting on the APARECO website or on his Facebook pages. There is an abundance of evidence to establish the appellant’s active and enthusiastic involvement with APARECO. His role is visible and prominent. We have in mind the photographic evidence to which we were referred of the appellant’s involvement in demonstrations and APARECO meetings at a high, and visible, level. The appellant holds a high profile office and is involved in high profile activities for APARECO in Wales and in the wider UK. He is much more than a mere ‘rank and file’ member. We accept that the appellant falls within the risk category identified in BM and Others and we particularly bear in mind the approach taken by the UT in [112]-[117] to an individual whose profile within APARECO was not as high as that of the appellant as she was not a holder of a main office in the organisation. The appellant holds such an office in Wales being directly responsible, as he told us in his evidence, to the President of the organisation in Wales.
24. Further, we accept that the appellant and his activities are such that there is a real risk that he will be known to the agents of the DRC government and hence would be of interest to them on return. The prominence of the appellant both through his role in the organisation and as clearly demonstrated in the photographs of demonstrations and meetings which are available on social media and which are accessible to all, are aspects of his political activities in the UK which likely to have been monitored by those agents and so he will be known to them as an opponent of the regime on return. Most recently, the appellant’s attendance and speech at an anti-government rally in front of the DRC Embassy in December 2016 is one which is highly likely to have been monitored by the agents of the DRC government and to have made the appellant known (or further known) to them.
25. In our judgment, the appellant’s activities for, and association with, APARECO in the UK creates a real risk that he will be persecuted for his political opinion on return to the DRC.
Decision
26. The decision of the First-tier Tribunal was set aside for the reasons stated in the UT’s decision dated 22 September 2016.
27. For the reasons we give above, we re-make the decision allowing the appellant’s appeal on asylum grounds on the basis of his sur place activities in the UK.

Signed

A Grubb
Judge of the Upper Tribunal
Date: