Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02246/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 April 2017
On 19 April 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Tibo Mayele
(no anonymity order made)
Respondent

Representation:

For the Appellant: Mr D Clarke, a Senior Home Office Presenting Officer
For the Respondent: Mr I Palmer, instructed by Camden Community Law Centre

DECISION AND REASONS

1. The applicant is a foreign criminal who was involved in a very significant fraud, for which he was imprisoned and is the subject of a deportation order. The Secretary of State appeals with leave against the decision of the First-tier Tribunal allowing his appeal on Article 3 ECHR grounds, having dismissed it under the Refugee Convention and humanitarian protection by reason of the respondent’s certification of the claim pursuant to section 72(2) of the Nationality, Immigration and Asylum Act 2002 (as amended), which regulates the process of exclusion from Refugee Convention protection under Article 33(2) of the Refugee Convention.
2. The First-tier Tribunal held that, pursuant to section 72(11), the applicant was excluded from the protection of the Refugee Convention. The Judge then considered whether the applicant could be returned to the Democratic Republic of the Congo, having regard to the United Kingdom’s obligations under Article 3 ECHR, and concluded that his public profile as an oppositionist had increased on a sur place basis while he was in the United Kingdom such that the country guidance in BM and others (returnees – criminal and non-criminal) DRC (CG) [2015] UKUT 293 (IAC) indicated that the applicant could not be returned to the Democratic Republic of the Congo, despite his criminality. So far as relevant to this appeal, that guidance is as follows:
“1. A national of the Democratic Republic of Congo ("DRC") who has acquired the status of foreign national offender in the United Kingdom is not, simply by virtue of such status, exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR in the event of enforced return to the DRC.
2. A national of the DRC whose attempts to acquire refugee status in the United Kingdom have been unsuccessful is not, without more, exposed to a real risk of persecution or serious harm or proscribed treatment contrary to Article 3 ECHR in the event of enforced return to DRC.
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. ...”
3. At [46] and [49] in the First-tier Tribunal decision, the judge made the following factual findings, which informed her decision on the human rights element of the appeal:
“46. In making my decision in respect of the appellant’s human rights I make the following findings. The appellant is a national of the DRC born in Kinshasa. He was involved in a protest about low or lack of wages in his employment and was detained for a short period by the Garde Civil. He left the DRC in February 1996 and claimed asylum. The appellant’s account of how and why he arrived in the UK are full of inconsistencies. The appellant returned to the DRC briefly in 1998 to see his mother and his brother again. The reason for his travel there and the means of his return to the UK are also full of inconsistencies and contradictions. …
49. In respect of the appellant’s claim under Article 3 I note that the appellant has become much more involved in DRC diaspora politics recently. There is evidence of his support for APARECO and a more high profile involvement with video interviews on Congolese television and a position called Activist Mobilisation with the Alliance of Congolese Forces [AFC]. There are photographs of the appellant protesting in 2011 and 2016.”
4. There is no challenge in the respondent’s grounds to the First-tier Tribunal’s findings of fact and credibility. I bear in mind the guidance given by Lord Justice Brooke at [90] in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 of the basis on which the Upper Tribunal may interfere with the findings of fact in the First-tier Tribunal. The standard for interference with findings of fact is a high one, and it must be properly pleaded. At the hearing today, and without notice to the appellant, Mr Clarke sought to go behind those conclusions of fact. I am not seised of that issue: if the respondent disputed the factual findings, she would have said so in her grounds of appeal or applied on notice to amend them. I refused to entertain the extempore challenge to the factual findings and limited the hearing to the respondent’s grounds of appeal, on which permission to appeal had been given.
5. The respondent’s challenge is limited to the First-tier Tribunal Judge’s application of the country guidance to her factual findings. The respondent argues that it was not open to the First-tier Tribunal to draw the conclusions which the Judge did draw, on the basis of the facts found, and that accordingly BM and others has been incorrectly applied. The grounds rely on the penultimate sentence of (3) of the country guidance and contend that the applicant is ‘mere rank and file’ at best and not at risk for that reason. The Secretary of State asserts that the “[First-tier Tribunal Judge] has been misdirected in concluding the appellant had a significant profile in [APARECO] and as such his conclusion on risk is in error”. The respondent asserts that the appellant is neither a leader, office bearer nor a spokesperson and as such would not be at risk.
6. The First-tier Tribunal Judge was satisfied that the appellant had been involved in oppositionist video interviews on Congolese television, protest photographs and held the position of Activist Mobilisation with the AFC. I am satisfied that it was open to the Judge to find that those, and in particular the television interview, were sufficient to bring the applicant within the risk categories in the country guidance, and to conclude that Article 3 ECHR, which is unqualified, was engaged and the applicant could not be removed. The decision of the First-tier Tribunal is upheld.
Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I do not set aside the decision.

Signed: Judith A J C Gleeson Date: 13 April 2017
Upper Tribunal Judge Gleeson