Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da008382014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 25 April 2016
On 14th June 2016

Before

UPPER TRIBUNAL JUDGE COKER
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

XX
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Simon Harding, counsel instructed by Migrant Law Partnership on 16 March 2016 and
Mr Richard Bartram, solicitor of the Migrant Law Partnership on 25 April 2016

For the Respondent: Mr David Clarke, Senior Home Office Presenting Officer

DECISION
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant/parties in this determination identified as XX. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. This case came before us to decide whether there had been an error of law by the First-tier Tribunal on 24 June 2015. For the reasons given in our decision of 30 July 2015 we found an error of law, set aside the decision of the First-tier Tribunal and adjourned the appeal for a resumed hearing [Appendix A]. The resumed hearing of this appeal subsequently came before us for hearing on 21 January 2016 when it was adjourned with directions [Appendix B] to 16 March 2016, due to technical difficulties with the evidence. On 16 March 2016, Mr Harding again applied for an adjournment on the basis that 3 dvds provided by the Appellant to his solicitors had been overdubbed in English, albeit not by a professional translator and the Lingala under the English was drowned out. All 3 dvds were now available in undubbed form but his solicitors had been unable to comply with directions as the dvd's had not translated and served in time. Mr Clarke accepted that the Appellant had done all he needed to do and the fault fell upon his solicitor, for failing to comply with the directions. We agreed to an adjournment on the basis that the Appellant's solicitor provided an affidavit as to his actions in relation to when he obtained the DVDs; the dubbing; the removal of the dubbing and their translation. Directions were issued to this effect [Appendix C] and the appeal was adjourned until 25 April 2016. The further evidence was directed to be sent in the form of a USB stick by 4pm on Monday 11 April 2016.
2. A USB stick was received by the Upper Tribunal on 13 April 2016, along with a letter offering an explanation for the delay in adducing it. A bundle of 72 pages and a short skeleton argument were received on Thursday 21 April 2016 by fax in accordance with the directions. Prior to that, an affidavit from the Appellant's solicitor dated 25 March 2016, in which he set out the actions he had taken in respect of translating the DVDs, was received by the Upper Tribunal on 29 March 2016.
Hearing
3. At the commencement of the hearing, the Appellant's solicitor attended on the Appellant's behalf, as his representative, as counsel had not been booked for the hearing. He did not seek an adjournment.
4. The Appellant gave evidence and adopted his statement of 12 April 2016. He was briefly cross-examined by Mr Clarke, when he confirmed that he had given the DVDs of his political activities taken from the internet and cable TV to his solicitor himself. He was asked about a YouTube video on 8 March 2016 and was asked to recall the subject matter. The Appellant stated that he believed it is a video programme called Congo Bololo, which had also gone out on Sky channel 590, Faith TV which is a live channel. He was asked whether there was anything to demonstrate that it was broadcast on Sky, such as a schedule from the channel showing the programmes and he stated that everything is organized and is there; the programme goes out every Thursday at 5pm live until 5.30 pm. Mr Clarke put to the Appellant that page 19 of the bundle does not refer to either him or the programme, to which the Appellant responded that the programme was live, but if you go on the internet, to the Faith World TV website it is there. He confirmed that it was also on Youtube and this was at page 18 of the bundle. In response to Mr Clarke, the Appellant confirmed that he was also relying on a B1 TV show and also Africa Vision and that he had obtained this from the internet and given it to his solicitor. This was the Africa Vision website at page 55 of the bundle. The Appellant confirmed that all the internet sites were available in the DRC. The Appellant was not re-examined. In response to questions from us, the Appellant confirmed that the transcript for Congo Bololo is a transcript of the live TV interview and this is on the memory stick.
5. In his submissions, Mr Bartram sought to rely on his skeleton argument of 21 April 2016. He also relied upon the CG decision of the Upper Tribunal in BM (returnees- criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [87] to the effect that the Embassy in the UK and DRC agents monitor the diaspora for anti government elements. He submitted that the evidence in this case is crucial; that the interviews with the Appellant are lengthy: the 1 hour show begins at 1.30 and concludes at 4 minutes 40 seconds. The Appellant is in panel discussions with the interviewer and this is not a one off programme but has many episodes. There are weekly discussions and the interviewer is well known within the community and was likely to be monitored by the DRC authorities. In response to the skeleton argument drafted by Ms Isherwood for the Secretary of State dated 19 January 2016, Mr Bartram submitted that matters had moved on in that the Upper Tribunal and the Secretary of State have been presented with further evidence and the Appellant's case is that he now has a high profile compared to even a year ago and that it was a refugee sur place claim.
6. In response, Mr Clarke relied upon Ms Isherwood's skeleton argument and submitted that she advances an argument whereby their position is that the Appellant has contrived a sur place claim. He submitted that whilst a considerable amount of evidence had now been served, it is clear from the witness statement that the Appellant only joined Apareco in April 2015. He accepted that the DRC government are looking at Apareco UK and someone who is a spokesperson will be at risk, if they are aware of internet channels and broadcasts. Whilst this may be at fever pitch now it does not indicate a long term political activity. Mr Clarke stated that he appreciated that someone may not be politically active but may become so.
Our findings
7. We reserved our decision which we now give with our reasons. The starting point is set out at [17] of Appendix A and is a narrow one viz whether the level of the Appellant's sur place political activity against the DRC regime is likely to have come to the attention of that regime.
8. The evidence in this respect is, as Mr Clarke accepted, considerable. The evidence before the First tier Tribunal Judge is set out at [8] Appendix A
9. The evidence before us at the resumed hearing comprised:
(i) the Appellant's additional statement of 12 April 2016 and his oral evidence at the hearing;
(ii) a transcript of his appearance, amongst other panelists, on the Congo Bololo show on 7 January 2016;
(iii) a transcript of his appearance, amongst other panelists, on the "Une heure avec JGK" (Jean Guy Kikamba) show in January 2016;
(iv) a transcript of his appearance on the Congolese B-one TV show, where he is the only interviewee in December 2015;
(v) his appearance on Africa Vision, BEN TV in July 2015, when he was filmed at home;
(vi) photographs of the Appellant sitting next to the leadership at Apareco meetings; holding the microphone at a CSG march and as one member of a small delegation attending 10 Downing St with a petition;
(vii) two letters from Apareco UK dated 4 April 2015, confirming his membership and a further letter dated 24 June 2015 confirming that the appellant attends all events and meetings of Apareco and is in charge of mobilization;
(viii) a letter from the Congo Support Group (CSG) dated 19 January 2016, confirming that he is an active member.
10. In BM and Others (returnees - criminal and non-criminal) DRC CG [2015] 00293 (IAC) the Upper Tribunal made findings in respect of Apareco at [86] [87] and concluded at [88]:
"88. (iii) Persons who have a significant and visible profile within APARECO (UK) are 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 and 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.
11. Bearing fully in mind the findings of First tier Tribunal Judge Ferguson that the Appellant "is an unreliable witness whose evidence cannot be accepted on the basis of his word alone", we do not accept the evidence submitted on the basis of his word alone, but considered his evidence in the context of visual and documentary evidence before us. Having considered the totality of the evidence before us and the CG decision in BM (op cit) we are satisfied that the Appellant is an active member of the CSG and of Apareco, for whom he has acted as a spokesperson at events and interviews with the media. We find that the transcripts at (ii) - (v) above are genuine and are available to be viewed on the internet, both on YouTube and on Congolese websites. We further find, based on the photographic evidence, that the Appellant has been photographed at Apareco public events.
12. We find that this Appellant has a profile within Apareco and this can properly be termed significant and visible in light of his role as a spokesperson to the media on behalf of the organization since July 2015, having joined the organization in April 2015. There have been four appearances on TV shows between July 2015 and January 2016, broadcasts of which are accessible on the internet via YouTube and the websites of the TV shows in question. We have also taken account of the photographs in the Appellant's bundle showing the Appellant engaging in activity with Apareco at demonstrations and meetings, some of which are from 2016 and post date the TV appearances. Whilst the Appellant has not demonstrated long term political activity on behalf of Apareco, we find that one year is of sufficient length and extent to have brought him to the attention of the DRC authorities, given that some of that activity has been high profile and is published on the internet.
13. In light of the evidence and the country guidance decision, we find that there is a real risk or a serious possibility that the Appellant would be persecuted on account of his perceived political opinion and that he would similarly risk being subjected to treatment in breach of Article 3 of ECHR if he were to be returned to the DRC. For these reasons we allow the appeal on refugee and human rights grounds (article 3).
Conclusion
There is an error of law in the decision of the First-tier Tribunal decision and we set aside the decision to be remade.
We remake the decision and allow the appeal on protection and human rights grounds (Article 3).

Deputy Upper Tribunal Judge Chapman 24 May 2016

APPENDIX A

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00838/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 24 June 2015

?????????????

Before

UPPER TRIBUNAL JUDGE COKER
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

XX
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Simon Harding, counsel instructed by Migrant Law Partnership
For the Respondent: Ms Julie Isherwood, Senior Home Office Presenting Officer

ERROR OF LAW & REASONS

1. The Appellant is a national of the Democratic Republic of Congo (DRC), born on [ ] 1972. He arrived in the United Kingdom on 22 January 1999 and claimed asylum. This application was refused in November 2000 and his appeal against this decision was dismissed in April 2001. On [ ] 2003, the Appellant married JB, a national of the DRC who was an asylum seeker in the United Kingdom. Their eldest son was born on [ ] 2002. The Appellant's wife subsequently gave birth to their daughter on [ ] 2003 and their youngest son on [ ] 2007. On 20 February 2004, the Appellant was convicted of possessing a false instrument with intent to use and sentenced to 9 months imprisonment. On 7 April 2008, he was convicted of four counts of converting criminal property contrary to s 327 of the Proceeds of Crime Act 2002. He was sentenced to 18 months imprisonment and recommended for deportation. On 28 May 2008, the Appellant was served with a liability to deportation notice and a notice of decision to make a deportation order was made on 3 July 2008. A Deportation Order was signed on 14 August 2008 and he appealed against this on 1 May 2009 but this appeal was dismissed on 28 July 2009 and the Appellant became appeal rights exhausted on 3 September 2009.
2. On 25 March 2011, the Appellant's wife and children were all granted Indefinite Leave to Remain. On 18 November 2011, the Appellant's previous representatives applied for the deportation order to be revoked. This application was considered and refused on 29 May 2013 without an in-country right of appeal but following a judicial review the Secretary of State agreed to reconsider the application and on 23 April 2014 made a decision refusing to revoke the deportation order with an in-country appeal.
3. The appeal came before First Tier Tribunal Judge Ferguson on 19 December 2014 and in a determination promulgated on 21 January 2015 he dismissed the appeal. He found the Appellant to be "a wholly unreliable witness [41]." He accepted that the Appellant is a member of the Congo Support Group (CSG) but found that the evidence did not establish that he had an active political role or a political profile that would cause him to be at risk of persecution on return to the DRC [43]. The Appellant claimed to have been interviewed on a cable TV programme but it was not clear why any organisation would choose to interview him and because of his consistently poor credibility his evidence that the broadcast is available in the DRC cannot be accepted as true and there is nothing to establish that the cable television programme was available in the DRC or that it would bring him to the attention of the authorities there [44]. In respect of the risk to the Appellant on return as a foreign national offender, the new evidence set out in the Respondent's Country Policy Bulletin does not establish that he would be at risk on return to the DRC simply on the basis that it may become known that he is a convicted criminal in the United Kingdom [50].
4. The Appellant's representatives applied for permission to appeal to the Upper Tribunal on the basis that: (i) the Judge's credibility findings were unreasonable/perverse; (ii) the objective material clearly indicates that mere association with APARECO and other overseas groups are reasonably likely to lead to a violation of Article 3 upon return to the DRC; (iii) the most recent Country Guidance report indicates that it must be read in conjunction with the fact finding mission report, a copy of which was before the Judge and which clearly indicates a credible risk on return for known members of APARECO and for the Judge to suggest the recent background evidence has greater probative value misunderstands the Respondent's own report; (iv) the appropriate standard of proof was not applied to risk on return in light of the third party evidence from a party member, confirming the Appellant's activities and the evidence of his wife, a British national of good character; (v) the Judge failed to follow the country guidance decision in BK (DRC) [2007] UKAIT 00098; (vi) in respect of Article 8 of ECHR the Judge failed to consider the best interests of the family unit or the impact of removal on the Appellant's children.
5. Permission to appeal was granted by First Tier Tribunal Judge Brunnen on 11 February 2011 in inter alia the following terms:
"3. I note in passing that the Judge applied the version of the Immigration Rules in force prior to 28th July 2014. Arguably, in the light of paragraph A362, the version to be applied was the current version. I also note the absence of any reference to S.117A-D of the Nationality, Immigration and Asylum Act 2002. If these provisions are applicable they may affect how the balance between the private and public interests is to be struck but they do not detract from the need to consider the best interests of the children.
4. The grounds also assert that the Judge's findings on the issue of risk on return to the DRC are unreasonable or perverse. This assertion appears to relate to risk arising from the Appellant's claimed sur place political activities, as opposed to risk arising from being returned as a "foreign national offender." The threshold of perversity is high and demanding. The Judge found that the Appellant had not established, even to the low standard of proof, that he had been engaged in any political activities in the UK that would put him at risk on return. He gave clear and cogent reasons for this finding and I see no merit in this part of the grounds or in the submission that the wrong standard of proof was applied. Nevertheless permission to argue this part of the grounds is not refused."
6. In a rule 24 response dated 20 February 2015, the Respondent stated at 3. that in respect of the Judge's failure to apply the new version of the Rules and s.117 of the 2002 Act these set a higher threshold for the Appellant and there can be no material error of law in his findings in this respect. At 4, the Respondent asserts that the best interests of children are not a trump card and paragraph 399 clearly codifies how decision makers should approach their consideration when there is a child involved and at 5, that there was insufficient evidence that the Appellant had engaged with sur place activities and the Judge gave clear and cogent reasons for his findings.
The hearing
7. Mr Harding requested and was provided by Ms Isherwood with a copy of the handwritten witness statement of the third party witness, Mr N, the Director of the Immigration Commission for the Congolese Support Group. Mr Harding submitted that this was a key document and no findings had been made in respect of it. He was reminded by the panel that this point had not been pleaded in the grounds of appeal and he submitted that it was encompassed by grounds 2, 3 and 5 of the grounds of appeal and if not, it was Robinson obvious. He submitted that the witness statement of Mr N suggests that the Appellant has a wider political role and he pointed out evidence in the bundle viz the handwritten statement from Mr N; photographs of the Appellant at a demonstration and the evidence from the Appellant's wife that the Judge does not appear to have considered. Ms Isherwood made reference to the current country guidance BM (returnees - criminal and non-criminal) DRC CG [2015] 00293 (IAC) and Appellant AA at paragraph 112 and headnote 3 to the effect that it is not membership alone but a person's political profile and the Appellant does not have a significant role. In respect of Article 8 of ECHR, Mr Harding submitted that the Judge had failed to engage with the best interests of the Appellant's children. Ms Isherwood responded by referring to SS Nigeria (2013) EWCA Civ 550 that there are circumstances where the children's best interests will be outweighed following the actions of a person, especially in criminal matters.
The evidence it is asserted the Judge failed to consider
8. We have had regard to the evidence concerning risk on return before the First Tier Tribunal Judge which comprised:
(i) the handwritten statement from Mr N in which he states that he met the Appellant in 2008 through Congolese political activities in the United Kingdom and he can confirm that the Appellant is an active member of the group, giving advice and raising awareness of the political situation particularly regarding the ongoing abuses by the regime and that the Appellant spoke against the Kabila regime on TV and this has been uploaded on to the organisation's website;
(ii) a letter from the Congolese Support Group dated 8.1.14;
(iii) a photograph of the Appellant at a demonstration;
(iv) a photograph of the Appellant with an APARECO banner;
(v) the evidence of the Appellant's wife.

The findings of the First Tier Tribunal Judge
9. The Judge noted at 40 that the Appellant's evidence was that he had been a member of the CSG since 2008, which was before his appeal hearing in May 2009, but failed to mention that fact at that hearing either because he was not in fact a member, in which case the credibility of his political activism is damaged or he was part of the group but did not consider that fact to be relevant in establishing a fear of return.
10. At 41, the Judge held that that the Appellant "still has very poor credibility such that nothing which he says can be accepted on the basis of his word alone" and that the Appellant "is a wholly unreliable witness."
11. At 43 the Judge expressly accepted that the evidence available before him established that at the date of the hearing the Appellant is a member of the Congolese Support Group and that: "Although he tried to highlight the significance of his role within that group, the evidence did not establish that he had an actual political role." The Judge referred to the letter of support from the CSG dated 8.1.14 which states that the Appellant is an active member but essentially disregarded the corroborative effect of the letter on the basis that it did not provide details of his role. He also referred to the previous CSG letter of support of 17.12.14 which concerned the Appellant's role with the CSG's immigration commission. He found that the Appellant's account of his activities: "do not establish that he has participated in any political activity which will cause him to have a profile which might place him at any real risk of persecution on return to the DRC."
12. At 44, the Judge stated that it was not clear why any organization would choose to interview the Appellant on a cable TV programme and went on to find that: "because of his consistently poor credibility [the Appellant's] evidence that the broadcast is available in the DRC cannot be accepted as true and there is nothing to establish to the low standard of proof that this cable channel programme was available in the DRC or that it would bring him to the attention of the authorities."
Error of law decision
Risk on return
13. The grounds of appeal could have been more clearly drafted but we find that paragraph 5, read with paragraphs 2 and 3 are sufficiently wide to encompass a challenge to the Judge's findings based on a failure to have regard to material evidence in assessing credibility and risk on return. We find that First Tier Tribunal Judge Ferguson materially erred in law in his assessment of the risk on return to the Appellant in that he failed to fully engage with and make findings in respect of the evidence before him. Whilst at 40 the Judge noted the Appellant's evidence that he had been a member of the CSG since 2008 he appears to place little, if any weight on this fact due to the failure by the Appellant to refer to it at his previous appeal hearing in 2009 "either because he was not in fact a member, in which case the credibility of his political activism is damaged or he was part of the group but did not consider that fact to be relevant in establishing a fear of return." We do not find that this either/or method is at all clear in establishing what the Judge actually found on this issue.
14. In finding at 41 that nothing the Appellant says "can be accepted on the basis of his word alone" we find that the Judge failed to take account of the evidence before him which was capable of corroborating the Appellant's evidence, including the witness statement and evidence of Mr N, from the Congolese Support Group, the photographs of the Appellant at demonstrations and the evidence of his wife. We find this is a material error as he was not being asked to accept the Appellant's evidence on the basis of his word alone but in light of other potentially corroborative evidence.
15. We also find that the failure by the Judge to refer to this evidence at 43 and 44 as part of his consideration of the Appellant's political role and activities is also a material error of law. Whilst Mr N does not state in terms that the cable channel programme in which the Appellant was interviewed was available in the DRC, his evidence was that it was on the CSG's website and this evidence should have been addressed by the Judge as part of his overall consideration of the risk factors.
16. Since the First Tier Tribunal Judge's determination was promulgated on 21 January 2015, the Upper Tribunal have on 2 June 2015 promulgated the new Country Guidance decision in BM and Others (returnees - criminal and non-criminal) DRC CG [2015] 00293 (IAC). Headnote 3 provides:
"3. 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."
It is clear that the reference to APARECO is in addition to the risk categories previously found by the Upper Tribunal in MM (UDPS Members - Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023:
"110. The issue of 'profile' was a matter that the Tribunal in AB and DM referred to at paragraph 34 of their determination. There continued to be a real risk for those with a political or military profile. Each case was to be judged on its own facts, but it was possible now to provide a little more detail at least about those who fell within the 'political profile' sub-category. The Tribunal continued at paragraph 45 as follows:
"We would emphasise first of all that the use of the word 'profile' highlights the fact that this category is intended to mark out those whose actual perceived military or political activities or involvements are likely to have brought them to the adverse attention of the Kabila regime. The mere membership of an opposition political party will not demonstrate that a person has such a profile". (Our emphasis).
111. We would emphasise in that regard, the Tribunal's reference to those whose actual perceived military or political activities or involvements were 'likely to have brought them' or to bring them in the future to the adverse attention of the Kabila regime."
17. Consequently, the key issue remains whether the level of sur place political activity against the DRC regime is likely to have come to the attention of that regime. We do not consider that the findings of the First Tier Tribunal Judge are safe or sustainable in this respect.
Article 8 of ECHR
18. Paragraphs 13 and 14 of the grounds of appeal assert that the Judge failed to consider the best interests of the Appellant's family. At 32, the Judge noted that there was no attempt in the skeleton argument, evidence or submissions to address paragraphs 399 and 399A of the Rules. He concludes at 33, based on the former Rules, that the Appellant cannot succeed under the Rules. Whilst the Judge applied the incorrect Rules, as the Respondent pointed out in her Rule 24 response, the threshold is now higher and if the Appellant was unable to qualify under the old Rules then he would be unable to qualify under the new Rules. In the absence of any material argument or evidence put forward on his behalf by the Appellant's representatives we cannot find that the Judge erred materially in law in respect of this finding.
19. The Judge went on at 34 to consider whether there were exceptional circumstances that the public interest in deportation will be outweighed by other factors. At 36 he took into account what was put forward by the Appellant's representatives which was the Appellant's family life and his children's absence of ties with the DRC and he concluded at 37 that these issues did not amount to sufficiently compelling circumstances to outweigh the strong public interest in deporting the Appellant as a foreign criminal, as a deterrent.
20. Consequently, we find that whilst the Judge did fail to consider the best interests of the children this was not a material error as there was no evidence before him as to the children's best interests and in the absence of evidence, submissions and arguments on this issue he could not have reached any conclusion other than the one he did.
Conclusion
21. We are satisfied that the First Tier Tribunal erred in law in his assessment of the risk to the Appellant on return to the DRC such that the decision is set aside to be re-made on this issue only. We are not satisfied that there is a material error of law in respect of the Judge's failure to consider the best interests of the Appellant's children and the determination is not set aside on this basis.
Directions
22. We make the following directions:
22.1. The resumed hearing will take place on the first available date with a 3 hour listing. Any oral evidence and witnesses will be confined to the issue of the Appellant's political role and profile as an opponent of the DRC regime;
22.2. The question of whether or not the anonymity order should continue should be addressed by both parties.
22.3. The following findings of fact are preserved:
(i) the Appellant is a member of the Congolese Support Group (CSG);
(ii) the Appellant has been interviewed by a cable channel TV station and the broadcast of this interview is available on the CSG website;
(iii) the Appellant is an unreliable witness whose evidence cannot be accepted on the basis of his word alone;
(iv) the Secretary of State's decision was in accordance with paragraphs 399 and 399A of the Rules and no sufficiently compelling circumstances have been put forward to outweigh the strong public interest in deporting the Appellant as a foreign criminal, as a deterrent.
22.4. Any further evidence is subject to the requirement to apply under the provisions of paragraph 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended. Any witness statements relied upon are to stand as evidence in chief.
22.5 Skeleton arguments, which should focus on the issue of risk on return to the DRC, are to be submitted 5 working days before the hearing.

Deputy Upper Tribunal Judge Chapman

30 July 2015

APPENDIX B

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00838/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 21 January 2016

?????????????

Before

UPPER TRIBUNAL JUDGE COKER
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

XX
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Simon Harding, counsel instructed by Migrant Law Partnership
For the Respondent: Ms Julie Isherwood, Senior Home Office Presenting Officer

__________________

DIRECTIONS
__________________
1. Following the adjournment of the hearing of today's date we made the following oral directions, effective from today's date:
(i) the hearing of the Appellant's appeal is adjourned to 16 March 2016 at 10 am. To be listed for 2 hours before Upper Tribunal Judge Coker and Deputy Upper Tribunal Judge Chapman;
(ii) permission to admit further specified evidence is granted. The Appellant is to serve a clean and uninfected copy (in the form of a memory stick) of two TV programmes and a march;
(iii) a certified translation of this evidence (whether it supports or adversely affects the Appellant's claim) is to be served 14 days before the resumed hearing viz by 4pm on 2 March 2016.
(iv) the Appellant is to file and serve a witness statement to stand as evidence in chief 14 days before the resumed hearing viz by 4pm on 2 March 2016. The Upper Tribunal will entertain oral evidence only if the Respondent wishes to cross-examine the Appellant;
(v) skeleton arguments to be served 2 days before the hearing viz by midday on 14 March 2016;
(vi) any failure to comply with these directions will result in the hearing proceeding on the basis of the evidence currently before the Upper Tribunal.
(vii) a Lingala interpreter to be booked, unless there has been a failure to comply with these directions.

Deputy Upper Tribunal Chapman

21 January 2016

APPENDIX C

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00838/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 16 March 2016

?????????????

Before

UPPER TRIBUNAL JUDGE COKER
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

XX
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Simon Harding, counsel instructed by Migrant Law Partnership
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

__________________

DIRECTIONS
__________________
1. Following the adjournment of the hearing of today's date by reason of the failure by the Appellant's solicitor to comply with the previous directions made on 21 January 2016, we make the following directions, effective from today's date:
(i) the hearing of the Appellant's appeal is adjourned to Monday 25 April 2016 at 10 am. To be listed for 2 hours before Upper Tribunal Judge Coker and Deputy Upper Tribunal Judge Chapman;
(ii) the Appellant's solicitor is to file and serve an affidavit setting out a detailed chronology of the actions he took to comply with the directions of 21 January 2016 and further to provide an explanation as to what steps he took to remove the dubbing on the DVDs provided to him by the Appellant and (ii) how and when he obtained undubbed versions of the DVDs. This is to be provided by 4pm on Friday 25 March 2016;
(iii) on the basis that (ii) above is complied with, permission to admit further specified evidence is granted. The Appellant is to file and serve a clean and uninfected copy (in the form of a memory stick) of extracts from two TV programmes and a march by Monday 11 April 2016;
(iv) a certified translation of this evidence (whether it supports or adversely affects the Appellant's claim) is to be served 14 days before the resumed hearing viz by 4pm on Monday 11 April 2016.
(v) the Appellant has leave to file and serve a witness statement if so advised to stand as evidence in chief 14 days before the resumed hearing viz by 4pm on Monday 11 April 2016. The Upper Tribunal will entertain oral evidence only if the Respondent wishes to cross-examine the Appellant;
(vi) skeleton arguments by both parties to be served 2 days before the hearing viz by midday on Thursday 21 April 2016;
(vii) any failure to comply with these directions will result in the hearing proceeding on the basis of the evidence currently before the Upper Tribunal.
(viii) a Lingala interpreter to be booked, unless there has been a failure to comply with these directions.

Deputy Upper Tribunal Chapman

16 March 2016