Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003252
UI-2024-003922

First-tier Tribunal No: PA/52141/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th May 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

H I
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A. Mughal, of AMB Advocates
For the Respondent: Ms H. Gilmour, Senior Home Office Presenting Officer

Heard at Field House on 05 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because the case involves consideration of a protection claim. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant or the witnesses. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This a statutory appeal brought by the appellant against the respondent’s decision dated 14 April 2021 to refuse a fresh protection and human rights claim. Following the error of law decision of Upper Tribunal Judge Kamara sent on 25 November 2024 (annexed), only a narrow aspect of the decision is being remade by the Upper Tribunal.

2. This decision considers whether the removal of the appellant would breach the United Kingdom’s obligations under the Refugee Convention for reasons of his political activities in the UK.

Background

3. In order to place our decision in context, it is necessary to set out the background to this appeal in some detail.

4. The appellant is a citizen of the Democratic Republic of the Congo (DRC). He entered the UK on 10 January 2019 and claimed asylum. The respondent refused the protection and human rights claim in a decision dated 25 June 2019.

The first appeal (October 2019)

5. An appeal to the First-tier Tribunal was dismissed by First-tier Tribunal Judge S.L.L. Boyes in a decision sent on 23 October 2019 (‘the first appeal’). The basis of the appellant’s claim at this stage was that he claimed to be at risk on return to the DRC as a result of his work for the Independent National Electoral Commission (‘CENI’) during the 2018 election. The judge found the appellant’s evidence lacked detail. She noted inconsistent and implausible aspects of his account and had concerns about the credibility of some of the documentary evidence produced in support of the appeal.

6. The appellant answered ‘no’ when specifically asked during the screening interview whether he had ever been detained, but later claimed to have been detained and ill-treated. The judge also considered a medical report from a clinic in Kinshasa, which was said to relate to treatment given to the appellant’s mother on 02 April 2019. The judge said that the report stated that she ‘suffered sexual abuse and torture by unidentified police officers following the disappearance of the Appellant who is abroad and who is in danger in the DRC.’ The judge found it incredible that the appellant did not mention this incident when interviewed in June 2019. When asked what the authorities did when they came to his mother’s house, he replied: ‘they are just making her life hell’. In assessing what weight could be placed on this evidence, the judge also took into account the fact that it was unusual for a medical report to include a recitation of the circumstances of the appellant’s asylum claim. For this reason, she placed little weight on the evidence.

7. Having considered the evidence in the round, the judge concluded that the appellant had not given a credible account of past events. She concluded that there was insufficient reliable evidence to show that the appellant would have a well-founded fear of persecution if he returned to the DRC. A subsequent application for permission to appeal to the Upper Tribunal was refused and the appellant’s appeal rights became exhausted on 02 January 2020.

Further submissions (October 2020)

8. The appellant made further submissions to the respondent on 08 October 2020. He maintained that he would be at risk because of his work for CENI during the 2018 elections. He produced several documents dating from 2018 to show that he worked for CENI.

9. The appellant also produced documents said to be from a legal representative in Kinshasa who had acted on behalf of the appellant’s mother when she was arrested on 02 November 2019. A letter from the firm dated 04 November 2019 was addressed to the Attorney General of the Public Prosecutor’s Office in Kinshasa. The document was said to be an application for the ‘provisional release’ of the appellant’s mother. Another document from the same firm was dated 15 November 2019. It was said to be a ‘Certificate of Service’ and was not addressed to anyone in particular. The advocate purported to ‘certify’ that he obtained the provisional release of the appellant’s mother who was detained at the General Prosecutor’s office from 02-07 November 2019. The translation of the document stated that she was accused ‘for undisclosed information about the location of her son… a CENI agent reported missing since the end of the December 2018 elections.’ The documents were accompanied by a copy of the advocate’s business card.

10. At this stage, the appellant also said that he had become an active member of the Alliance des Patriotes pour la Refondation du Congo (‘APARECO’). The appellant’s witness statement dated 01 October 2020 said little about his reasons for joining the organisation save to say that he joined ‘after realising that the current president was only able to come to power after Kabila allowed him to take control.’ Nor did he give any detailed account of how or when he joined APARECO.

11. The appellant produced a letter from the General Secretary dated 19 September 2020, which stated that the appellant joined the organisation on 16 January 2020 i.e. a year after his arrival in the UK but only 2 weeks after his appeal rights had become exhausted. Another document was said to be a ‘Membership Form’ dated 05 February 2020. The membership form was signed by the Deputy Territorial Representative, but had no signature under ‘Member Signature’. The representations also included what appeared to be a photocopy of a printed page of a single Facebook post from 15 March 2020. The post was said to be of a branch meeting of APARECO that took place on 14 March 2020. It showed 12 people standing and sitting together in a posed photograph holding the DRC national flag. The further submissions also included three photographs of the appellant holding an APARECO flag outside a building. The date and purpose of the demonstration was unclear. Those photographs appeared to be taken on the same day.

12. The respondent treated the further submissions as a fresh claim but refused the application in a decision dated 14 April 2021. The respondent found that there was no adequate explanation as to why the new documents relating to CENI dated 2018 were not produced earlier. In any event, they only showed that he might have worked for the organisation. They did not lend any weight to his claim to have had problems as a result of his work for CENI, which was rejected by the First-tier Tribunal judge.

13. The respondent observed that the documents relating to the claimed arrest of his mother were not translated professionally. It was accepted that the advocate was likely to be a lawyer based in Kinshasa. However, the respondent noted that both documents appeared to have been stamped and signed by the advocate himself. The first letter was a request for her release, but there was no evidence relating to the initial arrest. The second letter was a statement from the advocate. There was no official documentation relating to her release. The respondent found that the appellant had failed to explain why his mother might have been arrested and detained in November 2019 given that he fled the country in January 2019. The respondent referred to background evidence which indicated that false documents are commonplace in the DRC. For these reasons, she concluded that the appellant had failed to demonstrate that the evidence relating to his mother’s arrest on 02 November 2019 was reliable.

14. When considering the documentation relating to APARECO, the respondent noted that the appellant had produced a letter from the organisation, a print out from Facebook, and some photographs of him attending a protest. She accepted that the relevant country guidance in BM and Others (returnees – criminal and non-criminal) DRC CG [2015] 293 (IAC) (02 June 2015) indicated that certain high-level individuals within APARECO might be at risk, but concluded that rank and file members were unlikely to face persecution on return to the DRC. Although the respondent accepted that the evidence showed that he was likely to be a member of the group, she found that the appellant had failed to explain why he waited until January 2020 to join APARECO. The respondent concluded that the appellant had produced limited evidence relating to his activities for APARECO. For this reason, she concluded that he did not have a significant profile and would not be at risk if returned.

The second appeal (January 2023)(May 2024)

15. An appeal to the First-tier Tribunal was dismissed by First-tier Tribunal Judge Dieu in a decision sent on 27 January 2023. The judge heard evidence from the appellant and a witness, ‘X’, who said that he was the ‘Urban Deputy Representative’ of the appellant’s local branch of APARECO. The judge summarised the appellant’s evidence. The appellant continued to assert that he was detained following the election as a result of his work for CENI. He said that his mother was arrested in November 2019 (but there is no mention of the earlier claim that she had problems in April 2019). The appellant confirmed that he was still in contact with his mother. The appellant accepted that the APARECO membership card was not issued until 16 January 2020, after the previous appeal was dismissed. He claimed that he had been ‘visiting APARECO’ before that date but ‘he could not recall when he started visiting them’.

16. Witness X told Judge Dieu that he first met the appellant on 19 January 2019 at a demonstration at the Excel Centre and had seen the appellant at APARECO meetings since then. He said that the appellant was ‘a leader in front and takes charge’. It was put to him that he had not said that the appellant had a leadership position in his witness statement. X said that was because he knew he would be attending court and could give evidence.

17. Judge Dieu took Judge Boyes’ decision as his starting point. He went on to consider the additional evidence that had been produced since the first appeal was dismissed in October 2019. He shared the respondent’s concerns about the weight that could be placed on the evidence produced with the further submissions. The judge found that neither the appellant nor X were credible witnesses. The judge found that the appellant did not have a genuine motivation for joining APARECO. The appellant did not give a credible explanation as to why he joined in January 2020. He concluded that the timing, just after his asylum claim was rejected, was damaging to his credibility. He also considered that the evidence given by X was simply an attempt to bolster the case. Nevertheless, Judge Dieu accepted that there was evidence to show that the appellant was involved to some extent with APARECO in the UK. However, he concluded that it was only as a low level member and that his activities would not give rise to a risk on return.

18. The appellant was granted permission to appeal to the Upper Tribunal to challenge Judge Dieu’s decision. In a decision sent on 29 September 2023 the Upper Tribunal found that the First-tier Tribunal decision involved the making of an error on a point of law. The judge had not engaged adequately with the fresh evidence and he failed to give adequate reasons for some of his findings. The decision was set aside.

19. The case was reheard in the First-tier Tribunal by Judge Chinweze who dismissed the appeal in a decision sent on 31 May 2024. On this occasion, the judge heard oral evidence from the appellant, X, and an additional witness, ‘Y’, who was said to be associated with APARECO.

20. Judge Chinweze found no good reason to depart from Judge Boyes’ credibility findings relating to the claimed problems arising from the appellant’s work with CENI. By the time the appeal was reheard, the appellant claimed that his mother had been the subject of a further arrest on 20 February 2023 i.e. only 3 weeks after Judge Dieu’s decision. The judge recorded that the appellant’s statement dated 21 November 2023 (this might be a reference to a statement dated 03 November 2023 because we can see no statement of that date) said that his mother was arrested because of his involvement in APARECO. The judge recorded that the appellant said that Y told him about his mother’s arrest on 04 March 2023.

21. Y told Judge Chinweze that he was informed by a colleague in the DRC intelligence service that the appellant had come to the attention of the authorities. He also received information relating to the arrest of the appellant’s mother when security agents discovered a photograph of the appellant and his half-sister at an APARECO meeting.

22. When X spoke to Judge Chinweze, he explained the appellant’s role in APARECO. He stated that the appellant was a youth leader. X is recorded to have said that the appellant attended demonstrations on 19 January 2019, September 2022, 19 October 2022 and 10 June 2023. The appellant’s picture had been published on APARECO’s website, in YouTube videos and on social media.

23. Judge Chinweze went on to consider the evidence from the advocate in Kinshasa, which included an additional letter addressed to the appellant’s UK legal representative dated 12 October 2023. The translation said that his client, the appellant’s mother, was arrested on 20 February 2023 and was placed under a ‘provisional arrest warrant by the National Intelligence Agency [ANR], following the publication of a photo of her aforementioned son together with his step-sister [MI] wearing an outfit of the APARECO, a political party hostile to the regime in place in the Democratic Republic of Congo.’ He said that following his intervention his client was released on bail of US$ 3,000 in April 2023. Judge Chinweze found that, even allowing for the different ways in which criminal justice systems might operate, he would have expected there to be some form of official documentation relating to the arrest and release on bail. The fact that there was no surrounding official documentation undermined the reliability of this evidence.

24. Judge Chinweze went on to assess whether the evidence relating to the appellant’s political activities in the UK was likely to place him at risk if returned to the DRC. He accepted that the appellant became a member of APARECO on 16 January 2020 because there was a membership card of that date. This date was consistent with evidence contained in the letter from the General Secretary dated 19 September 2020 and the evidence given by X and Y. He also accepted that there might be some vetting before becoming an official member. The judge accepted that there was some evidence to show that the appellant had attended some meetings and demonstrations. However, he observed that there was limited evidence of his political activities. There was little evidence to support the appellant’s other claimed activities, such as being a youth leader and producing and distributing leaflets and videos. The Facebook evidence only showed limited engagement.

25. Judge Chinweze considered the country guidance decision of PO (DRC – Post 2018 elections) DRC CG [2023] UIUT 00117 (IAC) and extracts form the Home Office CPIN report for the DRC (November 2023). He noted what was said about the size of the DRC embassy in the UK and the likely limitations on their ability to monitor opposition activities in the UK. He concluded that there was some evidence to show that the ANR carries out surveillance of some groups who are suspected of subversive activities but there was no evidence to suggest that this extended to those who were not in the DRC. The judge concluded that the evidence showed that the appellant engaged in some political activity as a member of APARECO, but he did not have a significant and visible political role. For this reason, he would not be at risk on return.

Upper Tribunal proceedings

26. The appellant applied for and was granted permission to appeal to the Upper Tribunal because it was considered arguable that Judge Chinweze failed to engage adequately with the evidence given by Y. There was evidence to show that Y had succeeded in his own asylum appeal in 2008, where it was accepted that he had been a member of the intelligence service.

27. The appellant’s grounds of appeal made clear that, even at the hearing before Judge Chinweze, the appellant only relied on the risk arising from his political activities for APARECO in the UK. This was reiterated at the error of law hearing on 13 November 2024. It seems that there was a level of agreement that Judge Chinweze had not given adequate consideration to the evidence given by Y. Judge Kamara set aside the part of the First-tier Tribunal decision which dealt with post-flight activities and decided that part should be remade in the Upper Tribunal at a resumed hearing. The First-tier Tribunal’s findings relating to the appellant’s pre-flight account were preserved.

28. The appeal was listed before this panel on 05 March 2025 for the decision to be remade.

29. The appeal was poorly prepared. Despite Judge Kamara having given detailed directions, the bundle filed by the appellant’s representative did not include all the relevant documents and did not comply with the directions. Even though further directions were made to re-file the bundle, it was still not filed in the correct format. A third set of directions made shortly before the hearing date were ignored. Nor was the bundle properly served on the respondent. Time was wasted at the beginning of the hearing checking that all those involved in the case had the relevant documents. These included the Home Office bundle before the First-tier Tribunal and three bundles filed by the appellant during the course of this second appeal.

30. Even though it was clear that the Upper Tribunal was making a fresh decision in relation to risk on return, those representing the appellant had not provided any background evidence relating to the current situation in the DRC. As a result, the parties agreed that the Upper Tribunal should consider publicly available information contained in the most recent of the standard country reports that were available at the date of the hearing. In addition to the documents relating to the appellant’s claim, the Upper Tribunal has considered the Home Office’s Country Policy and Information Note (CPIN) ‘DRC: Opposition to the government’ (Version 4.0) (November 2023) and the US State Department Report on Human Rights Practices on the DRC 2023 (issued 22 April 2024).

31. We have also considered the country guidance decisions of the Upper Tribunal in BM & Others (returnees – criminal and non-criminal) DRC CG [2015] 00293 (IAC) and PO (DRC – Post 2018 elections) DRC CG [2023] UKUT 00117 (IAC).

32. We heard oral evidence from the appellant, X, and Y. They gave evidence with the assistance of a Lingala speaking interpreter. Y had given a preference for a French interpreter. Unfortunately, one had not been booked to attend. Y confirmed that he was content to speak in Lingala. He confirmed that he understood the interpreter. Y did not highlight any difficulties in understanding, nor did we observe any, during the course of his evidence.

33. We have considered the oral evidence given by the witnesses, the documentary evidence before us, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral evidence and submissions because they are a matter of record, but we will refer to any relevant aspects in our decision.

Decision and reasons

34. The issue for remaking is narrowed to the question of whether there is a reasonable degree of likelihood that the appellant’s activities for APARECO in the UK would give rise to a well-founded fear of persecution for reasons of his actual or imputed political opinion.

35. The respondent has accepted that there is some evidence to show that the appellant has conducted limited activities with APARECO in the UK. The key issue for determination is the nature and extent of those activities and whether his profile in the organisation is such that it might give rise to a real risk of serious harm if he returned to the DRC.

36. Although there is a level of acceptance by the respondent, the credibility of aspects of the appellant’s account is still in issue. In particular, it is not accepted that the appellant’s activities are genuine or that they are of a sufficiently high profile. Nor is it accepted that there is reliable evidence to support the appellant’s claim that his mother was arrested on 20 February 2023 because of his activities for APARECO in the UK.

37. In assessing the overall credibility of the appellant’s account the starting point is the decision made by First-tier Tribunal Judge Boyes in October 2019 (see [5]-[7] above): see Devaseelan v SSHD [2002] UKIAT 702. Judge Boyes did not find the appellant to be a credible witness and found that his claim to have been arrested because of his work for CENI was unreliable. The judge found that there was insufficient detail relating to the appellant’s claim that his mother had problems on 02 April 2019. The appellant failed to produce evidence that could reasonably have been obtained, such as documents from the authorities or from his mother.

38. Judge Boyes’ findings were not appealed. They formed the starting point for First-tier Tribunal Judge Chinweze’s decision in the second appeal in May 2024. Having heard evidence from the appellant, and having considered further evidence relating to his claimed work for CENI, Judge Chinweze found that there were no good reasons to depart from Judge Boyes’ findings on the risk arising from this aspect of the appellant’s claim. He was not satisfied that the appellant worked for CENI or that he was arrested in January 2019.

39. Although the appellant’s evidence is vague, and the evidence before us is incomplete, it seems that he only ever claimed that his mother’s problems in April and November 2019 were linked to his work with CENI. Despite the fact that Ms Mughal of AMB Advocates was recorded as the appellant’s legal representative at an early stage, having signed the Preliminary Information Questionnaire (PIQ) on his behalf on 29 March 2019, no copies of the evidence that was before Judge Boyes seems to have been included in the bundle prepared for this hearing.

40. It seems that the appellant did not mention that his mother had problems in April 2019 either in interview or in any subsequent statements. The only mention of any problem that she might have had seems to have come from a medical report that was before Judge Boyes, which does not appear to be included in the evidence before us. Again, beyond the vague assertion that ‘my mother has been arrested in the DRC’ made in a witness statement dated 01 October 2020, which was sent with the fresh claim, the appellant has provided no detailed account of his mother’s claimed arrest on 02 November 2019. The letter dated 04 November 2019, which was said to have been prepared by her lawyer, only suggested that she was detained on 02 November 2019 to find out the location of her son who was an ‘agent of the Independent National Electoral Commission.’ Again, there is no suggestion that those claimed arrests were linked to political activities undertaken in the UK. It follows from the preserved aspects of Judge Chinweze’s decision relating to pre-flight work for CENI that it is not necessary for us to make a fresh decision in relation to those aspects of the appellant’s account.

41. Although we are remaking the decision on a narrower issue, the previous findings relating to the credibility of other aspects of the appellant’s account are still relevant to our overall assessment of the appellant’s reliability as a witness. Nevertheless, we bear in mind the fact that just because some aspects of a person’s account have been found to be incredible or unreliable does not mean that the whole account should be rejected. Consideration will be given to the facts and evidence relating to each aspect of the case.

Level of activities for APARECO

42. We begin our assessment with a similar observation to other judges who have considered this case. Despite being interviewed and having prepared witness statements in March 2019 (PIQ statement – missing), October 2020 (further submissions), September 2022 (appeal statement), and November 2023 (appeal statement), the appellant has failed to provide a coherent chronological account of events. The appellant’s written accounts are brief, disjointed, and highly generalised, both in relation to his account of pre-flight events and in relation to his post-flight activities for APARECO. This was mirrored in the way he gave his oral evidence, which was often vague and lacked any meaningful detail.

43. None of the appellant’s witness statements provide a clear account as to how or why he decided to become involved with APARECO in the UK. Nor did they provide a detailed description of his activities. The first time the issue was raised seems to have been in a witness statement sent with the further submissions made in October 2020. In that statement, he said that he had become a member of APARECO and was an ‘active member’ of the organisation. Beyond that generalised assertion, the statement did not explain how or when he became involved with APARECO.

44. The further submissions made in October 2020 were accompanied by a letter dated 19 September 2020, which was said to be from the General Secretary of APARECO in the UK. The letter was framed in general terms, stating that the appellant had been an active member since he joined the movement on 16 January 2020. The letter did not explain what activities the appellant carried out for the organisation. In one of the generalised paragraphs the letter stated: ‘whether your authority shall decide freely in this case, the trial is involving greater than minimal risk to the incumbent exposing her life to the predators occupying the country through their proxy natives.’ [our emphasis].

45. The letter from APARECO dated 19 September 2020 was consistent with the date given on the appellant’s original APARECO membership card, which was produced in the appellant’s bundle for the first hearing in the second appeal (pg.9-10 of 37 AB ‘C’). The photocopy of the card contained in the bundle is unsigned and does not give a date for the issuing of the card. The appellant’s role is described as ‘Membre’ (member). The membership date is recorded as 16 January 2020. The card stated that it would expire on 04 May 2024.

46. The appellant’s appeal statement dated 14 September 2022 said that he had become a member of APARECO, but failed to say when he joined the organisation. He said that he was passionate about supporting the organisation because ‘Felix’ (Felix Tshisekedi) had ‘let the Congolese people down by agreeing to become a puppet regime for Kabilia.’ The appellant said that he continued to attend APARECO meetings and demonstrations and also delivered speeches. He did not give any examples of particular demonstrations nor of any speeches he had given. The appellant also stated that he was involved in distributing leaflets and sending messages to mobilise members. He said that he attended churches and other places to encourage people to join APARECO. Again, no details were given about his activities beyond these generalised statements. The statement dated 14 September 2022 does not mention the appellant’s subsequent claim that he was a youth leader for his local branch of APARECO in the UK.

47. The witness X first gave evidence to support the appellant’s claim to be a member of APARECO in a statement dated 12 September 2022. In that statement X said that he was the ‘Urban Deputy Representative of APARECO [local branch]’. The statement was written in generalised terms stating that the appellant was an active member of the organisation. He did not say how long he had known the appellant or how long the appellant had been a member. Even though the appellant now claims that he was appointed as the Deputy Youth Mobiliser for his local branch in June 2021, X did not make any specific reference to this role in the statement he prepared in 2022. X’s statement asserted that the appellant was supporting the organisation with ‘additional leadership role included (sic) steward during our political meetings, sharing our vision and working with other organisations.’ His statement went on to include a fairly general paragraph in which the appellant’s name appears to have been inserted in capital letters before a gap in the text:

‘Previously Guardian, the Observer and BBC published a top secret and highly sensitive document, confirming that the authorities in DRC are targeting political activists living in the UK, and other parts of Europe who are forcibly removed to the Congolese capital, Kinshasa. They are referred to as “combatants”, or traitors considered to be fighting against the government , Mr [HI] he has attended a lot of demonstration and meeting with APARECO UK , clearly showing that he has been recorded by Congolese authorities spies ; he’s at serious high risk in DRC , he have significant visibility within our organisation. (sic)’ [our emphasis]

48. The appearance of this paragraph gives the impression that the name might have been inserted into standard text. Even if the formatting is just an error, X failed to provide any detail as to what demonstrations or meetings the appellant might have attended or what his role was at those events.

49. The first time X gave evidence to say that he met the appellant at the Excel Centre on 19 January 2019 was when he gave oral evidence at the hearing before Judge Dieu in January 2023. However, none of the appellant’s statements say that he met X at the Excel Centre on 19 January 2019. Nothing was recorded to this effect in Judge Dieu’s summary of his evidence at that hearing. The highest his oral evidence seemed to go at that stage was to tell Judge Dieu that he had been ‘visiting’ APARECO before he became a member on 16 January 2020.

50. The first time that the appellant suggested that he joined APARECO at a much earlier stage seems to have been at the hearing before Judge Chinweze in April 2024. Judge Chinweze recorded that the appellant told him that he first joined APARECO on 19 January 2019. The appellant gave similar evidence at this hearing. However, he did not elaborate on how or why this particular date might be significant. We observe that it was the same date that X claims to have first met the appellant. The appellant belatedly said that he met X at the Excel Centre ‘when Tshisekedi here’, only when this panel asked a few questions to clarify some issues at the end of his oral evidence.

51. If the appellant’s more recent evidence were to be believed, he first became involved with APARECO only 8 days after his arrival in the UK, yet it seems that he made no mention of any activities for the organisation in his initial asylum claim or at interview in June 2019. Aside from X’s vague reference to having first met the appellant on 19 January 2019, none of the other correspondence that is said to come from people in official positions in APARECO dated 19 September 2020 (General Secretary), June 2021 (Urban Representative), or 17 June 2024 (Regional Representative) have mentioned the appellant being involved in any activities for APARECO during 2019. They are consistent in stating that he became a member on 16 January 2020. For these reasons we conclude that there is insufficient reliable evidence to show that the appellant became involved with APARECO during 2019. However, there is sufficient evidence to show that it is likely that he joined the organisation on 16 January 2020.

52. The evidence before us indicates that the first time that any claim was made that the appellant had become a youth leader for a local branch of APARECO was in X’s second statement dated 01 November 2023. The appellant’s own statements dated 14 September 2022 and 03 November 2023 failed to mention this potentially important fact.

53. Due to the poor preparation of the documentation, it is difficult to tell when certain bundles were produced during the course of this appeal. However, it is reasonable to infer that the evidence contained in appellant’s bundle ‘A’ (53 pages) was prepared after the error of law hearing in November 2024 because it contains copies of articles that the appellant claims to have written on 23 December 2024.

54. A letter from the Urban Representative for the appellant’s local branch seems to have been produced for the first time in the most recent bundle (pg.2 AB ‘A’). The letter is dated ‘June 2021’ but does not give a full date. Nor is it properly addressed to the appellant. Nor is there any evidence to show whether it was posted or emailed to him. The letter purports to appoint the appellant as a ‘Youth Deputy Mobiliser for APARECO [local UK branch]’. If the appellant was appointed as a deputy youth mobiliser in June 2021, no explanation has been offered as to why this letter was not produced for the hearing before Judge Dieu in January 2023 or Judge Chinweze in April 2024. No explanation has been offered as to why the appellant did not mention this important fact in the witness statements prepared in 2022 and 2023. The only other reference to the appellant being a ‘youth mobiliser’ was in the most up to date letter from the ‘Regional Representative’ dated 17 June 2024. This evidence also post-dates Judge Chinweze’s decision and seems to have been produced for the first time in the bundle prepared for this hearing. The late claim that the appellant was appointed as a deputy youth mobiliser in June 2021, when the evidence could have been produced earlier, significantly reduces the reliability of the letters dated June 2021 and 17 June 2024.

55. The most up to date bundle also contains a colour copy of what is said to be a renewed APARECO membership card, which expires on 04 May 2026. Again, the card is unsigned. The appellant’s role continues to be recorded as ‘Membre’ (member).

56. The appellant also produced copies of Whatsapp messages that were said to support his claim that he is a youth mobiliser for his local branch of APARECO. However, nothing on the face of that evidence actually shows that he is an administrator for the Whatsapp group or that he has personally arranged any meetings as claimed. The messages are in French and are untranslated. However, it is easy to discern that the details of some meetings were being shared by a person with the same name as the Urban Representative who is said to have prepared the letter dated June 2021. At highest, the evidence shows that the appellant might have added one copy of a poster for a demonstration that was to take place on Friday 31 January 2025 in protest against the Rwandan involvement in Eastern Congo. The date of the post is unclear although it is reasonable to infer that it was likely to have been posted shortly before the protest.

57. During the hearing, the appellant was asked questions about his role as a youth mobiliser. His evidence was as vague and generalised as his earlier statement. He said that he attended meetings, distributed leaflets, and talked to people at Church. No meaningful detail was given as to what these activities actually involved or how often he undertook them.

58. The evidence produced by the appellant at a late stage to support his assertion that he was been appointed as a deputy youth mobiliser for his local branch is extremely limited. If he had been appointed as a deputy youth mobiliser in June 2021, and had been active in that role on a regular basis for nearly 4 years arranging meetings and distributing leaflets as claimed, it is reasonable to expect that more evidence could and should have been produced. The late timing of the appellant’s and X’s assertions that he was appointed as a youth mobiliser also gives rise to concerns about the credibility of their claim that he plays a significant role in the organisation. It is not disputed that there is some photographic evidence which indicates that the appellant may have attended occasional meetings and demonstrations, but given that he claims to have been an active member since at least 16 January 2020, the evidence is very limited.

59. The initial evidence sent with the further submissions made in October 2020 was scant. There was a single printout which was said to be from the APARECO UK Facebook page, showing a posed photograph of 12 people with the DRC national flag. This was said to be a photograph of a branch meeting on 14 March 2020 posted on 15 March 2020. None of the people in the photograph were identified by name. The copy in the Home Office bundle is incomplete and cuts off a second photo. The document looks like it might have been copied askew on a photocopier because it also has a line through the centre of the page similar to other documents sent with the further representations e.g. the NHS letter dated 10 March 2020. In the gap where the document is skewed at the top left there is a date of 10/1/20 and a heading ‘Apareco UK – Posts / Facebook’. The meaning of this information, which appears to pre-date the copy of the post, is simply unclear.

60. Also sent with the further submissions were 3 unidentified photographs seemingly taken at the same demonstration. No information was provided to explain when the photographs were taken or what that evidence was intended to show. There was no evidence to show that the photographs had been disseminated in a public place. Other photographs of a similar nature have been produced in various bundles at different times. Some of them are just copies of photos put in the bundle and others are said to be posts from the APARECO UK Facebook page. At the hearing, the appellant was asked to clarify where and when some of these photographs were taken because there was no contextual evidence, either in his witness statements or on the face of those documents, to understand what they were intended to show.

61. The Facebook evidence was not prepared in the way recommended by the Upper Tribunal in the case of XX (PJAK, sur place activities, Facebook) CG [2022] UKUT 00023. In oral evidence the appellant claimed that he ran the APARECO UK Facebook page. Even though this could have been supported by a print out from the account, this evidence was missing. The appellant said that he did not know how many followers the page had, but since 2006 ‘it could be millions’. There is no evidence to substantiate this claim. At highest, the evidence only shows the following:

(i) 11 April 2021
A staged photograph of 12 unnamed meeting participants;

(ii) 16 October 2021
A staged photograph of about 15 unnamed meeting participants;

(iii) 10 September 2022
Photographs of a demonstration involving no more than about 20 unnamed people outside Arsenal stadium At the hearing, the appellant said that they objected to the Arsenal t-shirts containing sponsorship to ‘visit Rwanda’.

(iv) 24 January 2024
Photographs of a demonstration outside the Rwandan Embassy showing no more than about 9-10 unnamed people wearing t-shirts stating ‘Rwanda is killing in Congo. Britain is enabling. This needs to stop now.’ In 2 photographs the appellant is shown holding the DRC national flag and in 1 photograph he is holding (but not speaking into) a megaphone.

(v) 10 November 2024
A staged photograph of around 11 adults at a meeting said to be held on 09 November 2024. Another post of the same people wearing the same clothes is dated ’10 November’ with the text ‘The guardians of the APARECO Saturday 09/11/2019.’

(vi) The most recent bundle includes copies of about 4-5 other posts of a similar nature relating to private APARECO meetings which give the day and month but not the year when they were posted (March, April, June, August, October). They form part of a set of copies of Facebook posts including one said to be from 10 November 2024. For this reason, they might be intended to show attendance at meetings during that year.

62. X’s second statement dated 01 November 2023 belatedly said that the appellant had been a youth leader in the local branch since 2021. In this statement he also said that the appellant helped to organise meetings, ‘appears in public places e.g. train stations’, and that he helped to distribute leaflets (which he also designs) in churches and universities. The statement went on to say:

‘5. Mr [HI] has (sic) attended prominent meetings, conferences and demonstrations. As I have mentioned above, Mr [HI] has (sic) shown he (sic) face in different APARECO events, and her (sic) pictures being published on APARECO’s official website and Facebook page APARECO UK, which are monitored by the Congolese secret services. ….
…..
7. In addition, [HI] does a lot of mobilizing and encouraging people to join APARECO UK, he has been in many videos which have been posted on YouTube and also contributes and is part of social media posts promoting APARECO…

8. [HI] regularly shares news posts on WhatsApp, between other members of APARECO. … [HI] and I have attended several events and meetings on behalf of APARECO in London, I recall the most recent fourth (sic): In June 10 the 2023 (sic) in London he attended open day Conference with APARECO UK where he’s in the video and pictures on our Facebook page AparecoLondonNgbanda.’ [our emphasis]

63. X’s second statement goes on to say that the appellant demonstrated in front of Arsenal stadium on 19 January 2022. The pictures were published on the APARECO website. He also demonstrated at the Excel Centre on 19 January 2019 when Tshisekedi came to visit London. X also claimed that the appellant attended a demonstration in Parliament Square on 01 November 2020, but did not say what the demonstration was about. The appellant failed to mention any of these events in his witness statements and only mentioned the first and second events in response to questions at the hearing.

64. The rest of X’s statement appears to be generalised paragraphs setting out his views on the political situation in the DRC. We have made observations about aspects of the statements given by X which give the impression of templated elements. Some standard paragraphs relating to the situation in the DRC might be expected. However, other elements relating directly to the appellant’s claimed activities give an impression that the appellant’s name has been inserted or he has been misgendered when a standard paragraph has not been properly amended. Even taking into account the fact that the statements are not written in X’s first language, these anomalies serve to weaken the weight that can be given to X’s assertions about the extent of the appellant’s activities in the UK.

65. At the hearing, X said that he has assisted more than 100 members of APARECO with their asylum claims and sometimes attends hearings. Much of his statements are highly generalised and elements are likely to have been repeated in many other cases. We have found that those bits relating to the appellant himself are either vague, unsupported, or have some question marks over their reliability.

66. Given the claimed extent of his activities, we conclude that the limited evidence produced by the appellant is insufficient to support his claim that he is the deputy youth mobiliser who runs the youth Whatsapp group or the Facebook page. Nor does it support his claim that he organises meetings.

67. Aside from this limited set of documents, very little of what X said about the appellant’s activities is supported by reliable evidence even though it would be reasonable to expect the appellant to have produced evidence from the sources he outlined e.g. from the APARECO website. Apart from generalised assertions about the appellant’s activities, in fact, X has only been able to give 2-3 examples of events that the appellant might have attended.

68. When asked, several times, in oral evidence whether he knew about any problems the appellant might have had, X did not mention the key event now relied on by the appellant i.e. the arrest of his mother on 20 February 2023. This also casts some doubt on how well X might know the appellant and to some extent the reliability of the account given by the appellant about his mother’s arrest, which we will come on to consider in more detail.

69. In the most up to date bundle produced for this hearing, the appellant included 2 articles that he claims to have written in December 2024. First, the appellant has never claimed to write any articles before now. Second, the date of these articles follows a pattern of producing new claims and evidence following a dismissed appeal. Third, the articles themselves are written in English. The appellant used an interpreter for the hearing. When asked about this, the appellant claimed that he is learning English and wanted to make an effort to write the articles in English because he ‘didn’t want to stop in our community.’ We find this to be a weak explanation for writing articles in English when he claims to mobilise people mostly from the Congolese community. Fourth, there is no evidence to show that the articles have ever been disseminated or published. They are simply inserted into the most recent bundle.

70. Fifth, the articles themselves appear to cover the topics in a fairly anodyne way. The first article dated 23 December 2024 includes a general discussion about constitutional reform. Randomly, pictures of the appellant at the demonstration outside the Arsenal stadium are inserted throughout the article. These photographs appear to have no relevance to the subject of the article. The second article, also dated 23 December 2024, relates to the M23 rebel group advance in Eastern Congo. The background evidence shows that the M23 group is likely to be supported by Rwanda. The article is interspersed with photographs of rebels in uniform, but again includes photographs of the appellant at the demonstration outside the Arsenal stadium. That demonstration was ‘anti-Rwanda’ in nature and ties in a little more with the subject of the article.

71. Taken as a whole, the late production of these articles, the way in which they have been presented, and the lack of any evidence of dissemination, tends to suggest that they have been prepared solely to bolster this appeal rather than as part of any genuine political activity.

72. In his witness statement, the witness Y asserted that the appellant was an ‘active member’ of APARECO, his evidence of the appellant’s activities went no higher than that generalised statement. At the hearing he told us that he had known the appellant since 2021. Beyond stating that the appellant was responsible for ‘mobilisation and propaganda for the youth’ he did not offer any detail concerning the appellant’s activities. Y did not claim to be a member of the appellant’s branch of APARECO. The main purpose of his evidence was to support the appellant’s most recent claim relating to the arrest of his mother on 20 February 2023. When the evidence relating to this issue is considered in the round, we find that Y’s evidence does not take the appellant’s claim to be a youth mobiliser in APARECO much further.

73. For the reasons given above, we accept that there is sufficient evidence to indicate that the appellant joined APARECO on 16 January 2020. We share the concerns of an earlier judge that the timing of this interest in APARECO, only a couple of weeks after his appeal rights became exhausted, does cast doubt on whether the appellant has a genuine political interest in the group or is using APARECO to embellish the original asylum claim, which had been rejected.

74. We have outlined a number of pieces of evidence that have been produced by the appellant to show that he is an active member of APARECO. However, the evidence has been produced in a piecemeal and incoherent fashion over a period of time. Some of the evidence, such as the letter dated June 2021, which purports to appoint the appellant as a deputy youth mobiliser, could and should have been produced at a much earlier stage, but seems to have made its first appearance in the bundle prepared for this hearing. A similar pattern of late disclosure of his claimed role as a deputy youth mobiliser is seen in other aspects of the evidence. Other evidence, such as the Facebook posts and Whatapp evidence is limited in nature and does not reflect the level of activity claimed by the appellant over a period of years. Other evidence, which would have been reasonable to expect the appellant to produce, is simply absent or not even mentioned by the appellant himself e.g. YouTube videos, appearances on the APARECO website, attendance at a conference, administration of social media groups, or copies of leaflets. Other evidence is simply weak and unreliable e.g. the recent articles.

75. We find that the evidence only demonstrates limited and sporadic political activity by the appellant in the UK, most of which seems to be directed towards protesting against the Rwandan government rather than the government of the DRC. For these reasons, we are not satisfied, even on the low standard of proof, that the evidence produced by the appellant is sufficiently reliable to show that he is an active member of APARECO to the extent that he claims.

76. Even if the combined evidence of the appellant and X were to be taken at its highest, the appellant claims to be a deputy youth mobiliser in a local branch of APARECO UK. On his own evidence, he mobilises no more than about 50 people in an organisation that X estimated contained at least 1000 members in the UK. Although there is some limited evidence of political activity for APARECO, we find that the evidence falls far short of showing that the appellant has any significant profile in the organisation.

Attention of the DRC authorities

77. We go on to consider whether, despite his low profile and limited activities, the appellant might have attracted the adverse attention of the DRC authorities. The key element is the appellant’s latest claim that his mother was arrested on 20 February 2023 because of his connections to APARECO.

78. The context of our assessment in relation to this aspect of the claim is the fact that the appellant’s previous claims relating to his mother’s problems in April 2019 and November 2019 were rejected as vague and unsupported by sufficiently reliable evidence. Similarly, the evidence that has been provided about the most recent arrest is somewhat confused and lacking in any coherent detail.

79. The history of the case, as set out above, indicates a tendency for the appellant to make new claims shortly after negative decisions have been made in relation to his asylum claim. The appellant failed to mention any problems that his mother might have had in April 2019 until after the claim was refused by the respondent on 20 June 2019. The appellant later claimed that his mother was arrested on 02 November 2019, which was 9 days after Judge Boyes dismissed his first appeal on 23 October 2019. He also claimed to join APARECO on 16 January 2020, 14 days after his appeal rights became exhausted on 02 January 2020. He then claimed that his mother was arrested again on 20 February 2023, only 24 days after Judge Dieu dismissed his appeal.

80. In his witness statement dated 03 November 2023 the appellant said that his mother was arrested on 20 February 2023. He did not offer any detail about what happened to his mother. He did not say how long she was arrested for, where she was detained, or what might have happened to her during the course of her detention. Although the appellant has been in contact with his mother since he arrived in the UK, there appears to be no evidence from her giving the details of any of the problems the appellant claims she had as a result of his activities for CENI or APARECO.

81. In his witness statement the appellant said that his half-sister, ‘M’, who is also in the UK, sent a message to a friend in the DRC called ‘R’ with a photo of her and the appellant at an APARECO meeting. A photograph of the message seems to be included in bundle ‘B’ (pg.9 of 44 pages). All it shows is a telephone with a message to someone with the name of R dated 10 March 2022 attaching 2 photographs. One photograph is of the appellant in a staged photograph of a meeting (as described above) with 4 other people and another photograph is of the appellant with a woman who features in both photographs. It is reasonable to infer that this might be the appellant’s half-sister.

82. A photocopy of another message is dated 12 March 2022 (pg.10-15 AB ‘B’). It is said to be from a person called ‘V’ to a person who we are asked to infer is the appellant’s half-sister although this is not apparent from the face of the evidence. V is said to be R’s sister. The photograph was attached to the message. The message says that the photograph caused R trouble. He had been arrested. V asked M not to contact R anymore.

83. However, the copy of the photograph attached to the message dated 12 March 2022 is a different photograph to the one attached to the message dated 10 March 2022. Although it is difficult to discern the detail from the grainy image contained in the appellant’s bundle, the photograph sent by V, although appearing to show the appellant and the same woman, shows 7 people in a staged photograph of the kind seen elsewhere in the evidence, not 5 people as shown in the photograph attached to M’s message to R dated 10 March 2022.

84. Neither the appellant’s statement, nor any of the evidence given at the hearing, explains how this incident might be connected to his mother’s arrest on 20 February 2023, nearly a year later. All the statement from November 2023 said was that ‘she was arrested due to my involvement with APARECO.’

85. Another letter from the same advocate in Kinshasa, whose evidence was given little weight previously, purports to set out further information about the arrest. In a letter addressed to the appellant’s UK legal representative dated 12 October 2023 (obtained by the appellant), the advocate said:

‘….the biological mother of your client [HI], has been arrested on 20th February of the current year and placed under a provisional arrest warrant by the National Intelligence Agency (ANR) …, following the publication of a photo of her aforementioned son together with his stepsister [M] wearing an outfit of the APARECO, a political party hostile to the regime in place in the Democratic Republic of Congo.

Following this publication, the ANR issued an arrest warrant against my client on the grounds that the two of her children… are real full effectives (sic) members of the APARECO.
…..
In addition, it is appropriate to specify that this arrest of my client follows the recent contact that happened between [M] and [R]. This last man who was recently arrested and imprisoned by the ANR, is suspected not only of belonging to the same political party, but also of being in permanent and regular contact with your client as well as [M].
…..
Finally, following my intervention in April of the current year, my aforementioned client was provisionally release (sic) on bail of 3000 USD (US dollars three thousand).’

86. This piece of evidence is of a similar kind to the letters previously sent about the alleged arrest in November 2019. Again, the only evidence is from the advocate himself. Despite mentioning an arrest warrant and a grant of bail, there is no official paperwork to support the account. The exact date of his mother’s release is not given. While taking into account the fact that some accuracy might be lost in translation, the account in the letter is slightly different in describing the ‘publication’ of the photograph (the same word is used in the original French version of the letter). At highest, the appellant’s own evidence is that the photograph was sent by a private message from M to R. The description of the photograph of the appellant and his half-sister wearing ‘an outfit of the APARECO’ also contrasts with the photograph attached to M’s message, which shows the appellant and his sister both wearing plain black jackets.

87. The other evidence relied on to support this aspect of the appellant’s claim is the account given by witness Y. In his statement, he said that he began working for the government intelligence agency (SNIP) in 1992. This means that he spent at least 5 years working as an intelligence officer for the regime of Mobutu Sese Seko. The corruption and abuses carried out by the authorities during those years is well documented. Y says that when Laurent-Désiré Kabila came to power in 1997 he was transferred to the new intelligence agency (ANR). Sadly, the human rights position in the DRC did not change and widespread abuses continued to be carried out by the authorities. In evidence at the hearing, Y said that he worked in counter-espionage i.e. protecting the intelligence agency from external threats.

88. A copy of a First-tier Tribunal decision from 2016 relating to Y’s asylum claim indicates that Y entered the UK in December 2008. His initial claim for asylum was refused and an appeal dismissed. Further representations were made in 2013, which were accepted as a fresh claim, but the application was refused. The judge was hearing an appeal against the second decision.

89. Y said that he was a member of the UDPS. Following an arrest in 1992 he was subsequently recruited into the SNIP and transferred into the ANR in 1997. The judge summarised the claim as follows: ‘Between 1997 and 2002 he was arrested on a number of occasions on suspicion of taking money from people on whom he was supposed to be spying, but he was each time released.’ In 2002 he was arrested and detained for 2 years on a charge of sharing information with his wife, who was a member of the UDPS. Y said that he joined APARECO in 2005. At this stage he was working in a transport business with his brother. In 2006 he was sent on a trip to Uganda by a general he knew even though he was banned from leaving the country. He was arrested again in 2007 but escaped from custody in 2008. He was active with APARECO in the UK.

90. The Secretary of State and the judge who heard Y’s first appeal rejected the credibility of his account. The Secretary of State did not think that it was plausible that a person who was arrested for supporting the UDPS would then be recruited into the intelligence service. Perhaps because the Secretary of State rejected Y’s claim to have been a member of the intelligence service, the issue of exclusion did not appear to be considered at the time.

91. The judge who heard the second appeal in 2016 acknowledged that there were some reasons to be concerned about Y’s credibility. However, the second judge found that significant new evidence, including medical evidence of scarring, was produced. The judge was satisfied that there was sufficient evidence to show that Y was arrested and ill-treated on at least one occasion in the past. There was also supporting evidence from a person who knew him from the intelligence service and from APARECO. For this reason, the appeal was allowed.

92. It seems that the First-tier Tribunal accepted that Y worked in the intelligence service under both the Mobutu and the Kabilia regimes. The details of his asylum claim indicate that he eventually ran into problems with the latter regime.

93. In the witness statement prepared for this appeal, Y says that APARECO was formed by Honoré Ngbanda Nzamo Ko Atumba. Y said that he worked with Ngbanda, who was Head of Security when the country was known as Zaïre. This is consistent with information provided by the country expert who gave evidence to the Upper Tribunal in BM (DRC). Dr Kennes confirmed that APARECO was ‘founded in 2005 by the former security advisor to the deposed President’ i.e. President Mobutu [48]. In the same paragraph, the Upper Tribunal summarised Dr Kennes’ evidence. It was believed that the organisation had infiltrated the security and defence services, although this could not be substantiated. Later in the decision the Upper Tribunal’s conclusions were that APARECO is an organisation that ‘is implacably opposed to the regime of President Kabila. Its overarching aims are the defeat of this regime and the re-establishment of the state on a different basis.’ [87].

94. The information in the country guidance decision indicates that when it was first founded APARECO was likely to include Mobutuist elements from the security service who were opposed to Laurent Kabila’s son, Joseph Kabila. It is well documented that the Rwandan government supported Laurent Kabila’s Alliance des Forces Démocratiques pour la Libération du Congo (AFDL), which led the advance that finally overthrew Mobutu Sese Seko. This might also explain why APARECO seems to be strongly opposed to Rwandan support of armed groups in Eastern Congo. Indeed, all of the evidence produced by the appellant of demonstrations in the UK are in opposition to Rwandan involvement in the DRC rather than in direct opposition to the current government of the DRC.

95. The fact that APARECO was founded by a senior member of the security service is also consistent with Y’s claim to have worked for the SNIP. If his loyalty remained with the founder of APARECO, this might also explain why he might have run into difficulties with the authorities during the early part of Laurent Kabila’s regime. On the evidence that seems to have been given by Y in his own asylum claim, he was arrested on several occasions after Kabila took power on suspicion of taking bribes from people who he was supposed to be investigating.

96. We turn to consider the substance of the evidence given by Y in this appeal. In light of the evidence set out above, we find that it is plausible that Y might continue to have personal connections with individual members of the intelligence service in the DRC. In his statement he said that he received information from a colleague who still worked in the ANR to say that the appellant had come to the attention of the DRC authorities. With a little reluctance, he named a person during the course of his evidence. It is not necessary to repeat their name in this decision. The fact that he was able to name someone who might be a current member of the ANR is unsurprising given his background. We have no way of knowing whether the person named is a member of the ANR or not.

97. Y has given little detail as to when he was provided with this information or how the conversation came about. His statement went on to say that in March 2023 he also ‘received further information related to the arrest of her (sic) mother when the agents discovered the applicant with his sister on the APARECO Facebook, because one of his sister friend was arrested.’ [our emphasis]. Again, there is little surrounding detail to explain the circumstances in which he came to know this information. We also note that the description given by Y of the photograph being published on a Facebook page contrasts with the appellant’s account of his sister sending a photograph to a friend by private messaging.

98. Y provided more detail about his role in APARECO. He said that the President of the organisation wanted to surround himself with intelligence people so that he could know what was happening in the country. He had close connections with the President of APARECO in France. He also acted as a liaison with ‘the Kinshasa service’. He collects information from there about what they planned towards members of APARECO. Y said that he spoke to people in the intelligence agency ‘from the top down’. A contact in the ANR was the one who informed him about the arrest of the appellant’s mother. He had worked with this contact since 1992. Y said that they had an office ‘with so many screens and they follow up on Facebook and WhatsApp and all of these things.’ Y said that they do not use their own phones to contact one another.

99. When asked whether it was this contact who told him about the arrest of the appellant’s mother Y said: ‘he did not know that she was his mother, but I saw the photo on the Facebook and the comments that they made.’ When asked to clarify how he found out about her arrest Y said that they monitored the comments on Facebook. He said: ‘His sister’s friend had commented.’ He went on to say that ‘the photos of the children were on the APARECO site.’

100. Y said that there were more than 10 people that he kept in contact with. When the panel sought to clarify if they were current members of the intelligence service he said: ‘People don’t quit. Even here I am an agent and salary.’ He was then asked to clarify whether he still worked for the ANR. In response to this question Y said: ‘I am saying that they don’t sack anyone from the intelligence agency. Even while I am here I am still on the list. Tomorrow the regime could change and I could go back there and continue my position.’ Y repeated that the ANR monitored APARECO Facebook and meetings. That is why the appellant’s mother was arrested. They know who is who in the organisation.

101. Y repeatedly suggested that the reason why the appellant’s mother was arrested was because there was a post on the APARECO Facebook page, which was likely to depict the appellant with his sister at an APARECO meeting. On its face, Y’s evidence that he might have received third party information from a colleague in the ANR is plausible. However, his account lacks supporting evidence, such as a copy of the Facebook post that, on his version of the events, might have caused the problem.

102. Although we accept that Y might continue to have personal connections with members of the intelligence service, the account he has given lacks detail and contrasts with other aspects of the evidence relating to this claimed event. When taken with the appellant’s evidence, the letter from the advocate in Kinshasa, and the messages to R and V, the account of what happened remains vague and confused. The appellant’s statement did not suggest that the photograph that M sent to R was posted on Facebook. Nor was there any explanation as to how a photograph sent by a private message might have got R into trouble in the DRC. Nor was there any attempt to explain how this might be connected to his mother’s arrest nearly a year later. If his mother was arrested because the photograph was published online, no copy of the Facebook or other post has been produced or identified.

103. Other matters undermine the credibility of this part of the appellant’s claim. The appellant has a history of asserting that his mother has had problems shortly after a negative decision in relation to the asylum claim. This aspect of his account is no different. Even after we step back and consider the evidence as a whole, we find that the account of what happened lacks any coherent or consistent detail. It also lacks supporting evidence which might have been reasonable to expect the appellant to produce e.g. the Facebook page in question, official evidence of the arrest/bail, or evidence from his mother. No background or other evidence has been produced or highlighted to show that family members in the DRC might be arrested in this way as a result of a person’s political activities for APARECO abroad.

104. For these reasons, we conclude that the appellant has failed to produce sufficient reliable evidence to show on the low standard of proof that his mother was arrested on 20 February 2023 because he was depicted in a photograph at an APARECO meeting in the UK.

Risk on return

105. We have found that the evidence only shows that the appellant has carried out limited and sporadic political activity for APARECO in the UK. The evidence does not support the appellant’s claim to have any significant profile in the organisation. The timing of his interest in the organisation, and the lack of any meaningful detail as to why he supports APARECO, also suggests that his motivation for joining was, at least in part, to found a fresh claim for asylum following a dismissed appeal. Nevertheless, we go on to consider whether there is any evidence to show that low level membership of APARECO is likely to give rise to a risk on return.

106. The Upper Tribunal in BM (DRC) considered the situation for APARECO members at a time when Joseph Kabila was still in power. The evidence in 2015 was that APARECO was implacably opposed to the Kabila regime. The Upper Tribunal received expert and other evidence relating to the situation for APARECO members. Even though the tension between the Kabila regime and APARECO was likely to be higher at the time, the Upper Tribunal still concluded that the monitoring of APARECO members abroad was likely to be focussed on the most prominent members, ‘that is to say their leaders, office holders and spokespersons.’ [87(v)]. The Upper Tribunal concluded that it was only those who have ‘a significant and visible profile within APARECO’ who were likely to be at real risk if returned. While recognising that each case will turn on its fact, as a general rule, ‘mere rank and file members are unlikely to fall within this category’ [88(iv)].

107. We bear in mind that significant political changes occurred in the DRC in 2018, when Félix Tshisekedi (former leader of the UDPS, but leader of the CACH at the time) won the presidential election. The election was not without difficulties. The CPIN report says that Tshisekedi set up an alliance with Joseph Kabila. However the alliance was dissolved in December 2020 after disagreements. A new coalition called the Sacred Union of the Nation (USN) was set up, led by Tshisekedi [9.1.1].

108. The focus of the Upper Tribunal’s decision in PO (DRC), which was heard in June 2022, was to consider the general position in the DRC following the 2018 elections. After considering evidence that was available at that time, the Upper Tribunal concluded that there had been a durable change in circumstances for certain categories of people. Actual or perceived opponents of former President Kabila were no longer at real risk of persecution upon return to the DRC. Even rank or file members of opposition parties that were opposed to President Tshisekedi or the Sacred Union were not reasonably likely to be at risk. The exception was that high-profile opponents might be at risk in certain circumstances. Those cases required a fact-sensitive analysis of the person’s profile.

109. The Upper Tribunal briefly considered whether members of APARECO might be at risk. However, it appears that the panel had very little up to date evidence and was unable to make any detailed findings in relation to this issue. The Upper Tribunal relied on the previous decision in BM (DRC), which it quoted in detail at [145]. The panel noted that, in general terms, opponents of former President Kabila, were no longer at risk [146]. The highest their findings went were:

‘148. We accept, as Mr Hansen submits that three is a lack of clear information or cogent evidence as to what, if any, opposition to President Tshisekedi APARECO UK is currently engaged in and how the organisation is viewed by the authorities in the DRC. Whilst we acknowledge that the overall political environment has improved in the DRC, we cannot rule out the possibility that a member of APARECO may still be at risk on return depending their role, profile and activities on behalf of the group. We accept the information available from the Belgian authorities as being credible and we find that person who have a significant and visible profile within APARECO (leaders, office bearers and spokespersons) may be at risk upon return to the DRC. Rank-and-file members are unlikely to fall within this category.’

110. It is clear from this finding that the Upper Tribunal in PO (DRC) did not have much up to date evidence relating to risk to APARECO members at the time. The Upper Tribunal appeared to take a precautionary approach in maintaining the broad terms of the previous country guidance given in BM (DRC), which was decided at a time when President Kabila was still in power.

111. The CPIN states that further elections were due to be held in November 2023 [9.1.1]. The US State Department report for 2023 says that the election was widely reported to be free and fair but not free of abuses and irregularities. The provisional results, at the time of writing the report, were that Tshisekedi was leading by a large majority. Given the failure by either party to produce any background evidence, we find that it is reasonable to take judicial notice of the fact that publicly available information shows that Tshisekedi won the election by a large margin albeit opposition parties reportedly complained of unfairness.

112. Neither the CPIN report nor the US State Department Report say much about the potential risk to APARECO members in the period they cover during 2022-2023. The CPIN report repeats the general position from the country guidance, that members with a ‘significant and visible profile’ might still be at risk [3.2.1]. The CPIN also said that the Upper Tribunal in PO (DRC) noted that there was no credible evidence that the authorities in the DRC had any interest in monitoring the diaspora community in the UK [3.2.3]. The US State Department report does not appear to mention any incidents involving APARECO members or their family members.

113. We are conscious of the fact that we have not been provided with any information relating to the political situation in the DRC following the 2023 election up to the date of this hearing. Our first observation is that it is unclear from the limited evidence before us what, if any, opposition APARECO has to the current government. The evidence produced by the appellant, and repeated in evidence by him and his other witnesses, primarily indicates a continued opposition and hostility towards former President Kabila. Most of the appellant’s activities in the UK have been in opposition to the government of Rwanda for the support it had given in the past and continues to give to armed groups largely operating in Eastern Congo. Aside from oblique references to Félix Tshisekedi having agreed to become a ‘puppet regime for Kabila’, the appellant has not particularised how or why APARECO might be opposed to the current government. The background evidence shows that any initial alliance between Félix Tshisekedi and Joseph Kabila broke down at the end of 2020.

114. Although the background evidence continues to report that there are concerning levels of human rights abuses taking place in the DRC, most of the difficulties still seem to be concentrated in conflict areas in the east of the country. Neither report covers the situation following the 2023 election. At the date they were written, there were continued reports of some arbitrary arrests and detention of opposition supporters and there continued to be problems with conditions of detention and abuses carried out by security forces. These have been long standing problems in the DRC over many years. However, we have been pointed to no evidence which might support the appellant’s claim that APARECO members would be at risk (or their family members for merely being associated with someone conducting activities abroad).

115. What we are left with is an assessment based on little current evidence. We can only rely on the findings made in BM (DRC) and PO (DRC). The first of these decisions was made on evidence relating to the situation when APARECO was clearly in opposition to the regime of President Kabila. The second of these decisions seems to have taken a precautionary approach in the absence of any significant new evidence to show what the risk might be post the 2018 election. There is no evidence before us to show what the position might be post the 2023 election.

116. At best, the evidence shows that the appellant is a low level rank and file member of APARECO who has conducted sporadic activities in the UK, which are primarily focused on his opposition to the Rwandan government. Even if he is known to be a member through general monitoring of the APARECO Facebook account, he does not have a ‘significant or visible profile’ that is likely to be of interest to the DRC authorities. We have found that there is insufficient reliable evidence to show that he has already attracted the adverse interest of the DRC authorities. We have rejected his claim that his mother was arrested on 20 February 2023 because of his activities for APARECO in the UK.

117. On is own evidence the appellant was not involved in political activities in the DRC in the past. We have expressed doubts about the genuine nature of his activities for APARECO in the UK, which are, at least in part, likely to have been conducted as a means to found a fresh asylum claim. For these reasons, we are not satisfied that it is reasonably likely that he has the commitment to continue such activities if he returned to the DRC. Having considered the evidence before us in the round, we conclude that it is not reasonably likely that the appellant has a well-founded fear of persecution for reasons of his actual or attributed political opinion if he returned to the DRC.

118. The human rights claim stands or falls with the asylum claim. No specific human rights arguments were made. The appellant does not rely on a family life in the UK and falls far short of any of the private life requirements of the immigration rules.

119. For these reasons, we conclude that the decision would not breach the United Kingdom’s obligations under the Refugee Convention and would not be unlawful under section 6 of the Human Rights Act 1998.

Notice of Decision

The appeal is DISMISSED on Refugee Convention and Human Rights grounds

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 May 2025

ANNEX

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003922

First-tier Tribunal No: PA/52141/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

HI
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms M Mughal, counsel instructed by AMB Advocates
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer

Heard at Field House on 13 November 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge Chinweze who dismissed his appeal following a hearing which took place on 29 April 2024.
2. Permission to appeal was granted by Upper Tribunal Judge Lodato on 6 September 2024.
Anonymity
3. An anonymity direction was made previously and is maintained because this appeal concerns a protection claim.
Factual Background
4. The appellant is a national of the Democratic Republic of Congo now aged twenty-seven. He arrived in the United Kingdom during January 2019 and applied for asylum immediately. In brief the appellant’s protection claim concerns his work for the Independent National Electoral Commission (CENI) in the DRC in the run-up to the December 2018 presidential elections. The appellant discovered that votes had been pre-entered onto the electronic voting machines and he and his colleagues subsequently deleted this data. Following a fire at CENI headquarters, new voting machines were installed and the deletion of the previous data came to light. The appellant was arrested during January 2019 and physically ill-treated to the extent that he was hospitalised. Upon being discharged from hospital and learning that his colleagues had also been seized by the authorities, the appellant made prompt arrangements with his family to leave the DRC with the assistance of an agent.
5. By way of a decision dated 25 June 2019, the Secretary of State refused the appellant’s protection claim. The appellant’s appeal to the First-tier Tribunal against that decision failed and his appeal rights were exhausted on 2 January 2020.
6. The appellant submitted further submissions on 8 October 2020 which relied upon his previous claim as well as UK-based political activities and were accompanied by documents which had not been before the First-tier Tribunal. That claim was treated by the respondent as a fresh protection claim, albeit it was refused in a decision dated 14 April 2021. In essence, the respondent made reference to the decision of the First-tier Tribunal judge who had rejected the appellant’s claim on credibility grounds. The new documents relating to pre-flight events were considered to be unreliable whereas the evidence relating to the appellant’s sur place claim was not accepted as evidence that the appellant would be at risk on return to the DRC as he did not have a ‘significant and visible profile.’
7. The appellant’s appeal against this second decision to refuse his asylum and human rights’ claim was dismissed by First-tier Tribunal Judge Dieu following a hearing which took place on 6 January 2023. That decision was set aside by the Upper Tribunal following a hearing on 19 September 2023 and the matter was remitted to the First-tier Tribunal for remaking.
The decision of the First-tier Tribunal
8. The appellant and two witnesses gave evidence at the hearing before First-tier Tribunal Judge Chinweze. The main feature of the appellant’s claim involved his sur place activities on behalf of APERECO. In making his findings, the judge noted that the previous judge had found the appellant’s account of persecution in the DRC to lack credibility and did not depart from those findings. As for the diaspora activities, the judge concluded that the appellant would not be at risk of persecution.

The appeal to the Upper Tribunal
9. The grounds of appeal made the following points.
• The appeal was based solely on the appellant’s sur place activities
• The judge made unfair findings relating to evidence of the appellant’s employment
• The judge failed to note that the appellant was a youth leader and high profile
• There was a failure to consider the evidence of the appellant’s witnesses which went to risk on return
10. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.
I am satisfied that the challenge set out at paragraph four of the grounds is arguable. The judge summarised oral evidence he heard from (M), at [25], that he formerly worked for the Congolese intelligence services and was the subject of an asylum appeal decision in 2008. At [27], the judge referred to his evidence that he had been informed by a contact in the Congolese intelligence community that the appellant had come to their attention. In an otherwise detailed decision, this evidence is not considered in the findings section and it is impossible to know what the judge made of M’s account. There is nothing to indicate that the judge had regard to M’s appeal determination which is said, in the grounds, to support the proposition that he formerly worked with the intelligence services.
It is arguable that it was necessary for the judge to reach findings of fact about M’s evidence because, if credible and reliable, it went to the appellant’s credibility and risk profile on return. If this evidence was accepted as credible and reliable, it may have provided the necessary evidential platform to depart from the previous adverse decision of Judge Boyle and/or may have conferred a sufficient evidential foundation to conclude that his sur place activity had come to the attention of the Congolese authorities. It is arguable that this gap in the decision discloses inadequate reasons or the failure to consider material evidence in the fact-finding process.
The remainder of the of the grounds are not as persuasive as the point in paragraph four, but they are all arguably interconnected to the suggested failure to address the evidence of M in the judge’s reasons.
11. The respondent filed no Rule 24 response.
The error of law hearing
12. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
Discussion
13. Ms Mughal’s brief submissions related only to the complaint made at paragraph 4 of the grounds which concerned the evidence of the witness M. She confirmed that the focus of the appellant’s case was now his sur place activities.
14. While Mr Lindsay resisted all grounds of appeal he accepted that the evidence of M was not dealt with in any detail, in that there was no express reference to his evidence in the section of the decision which related to the judge’s findings.
15. I have taken into consideration that the judge demonstrates that he was aware of the content of the oral evidence of M because it is set out in some detail at [25-30]. Elsewhere in the decision, the judge correctly directs himself to consider all the evidence in the round and indicates that he has done so [37-39].
16. The content of the witness statement and examination of M was a potentially strong piece of evidence which directly addressed the risk to the appellant owing to his sur place activities in the United Kingdom. M’s evidence was that he had intelligence that the appellant had come to the attention of the Congolese security services and the witness had information regarding the arrest of the appellant’s mother. The findings on the appellant’s sur place claim are set out between [64-78] of the decision and contain no reference to M’s evidence.
17. The judge concluded at [77] that the appellant would not be at risk of persecution owing to his political activities in the United Kingdom without any consideration of evidence pointing in the opposite direction. In this he materially erred. It follows that the decision of the First-tier Tribunal as far as it concerns the appellant’s post-flight activities is set aside. There was no effective challenge to the judge’s findings on the appellant’s pre-flight claim and those findings are preserved.
18. Having canvassed the representatives regarding future disposal of this case, I decided to retain the matter in the Upper Tribunal for remaking. I considered this to be appropriate given that the bulk of the First-tier Tribunal decision has been preserved. In addition, this matter has been previously remitted to the First-tier Tribunal owing, in the main, to a failure to adequately consider the evidence of a different witness.
Conclusions
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision to be re-made.
Notice of Decision
1. The decision of First-tier Tribunal Judge Chinweze is set aside.
2. I consider it appropriate to remake the decision in the Upper Tribunal. The parties will be notified of a hearing date in due course not before six weeks from the date of the error of law hearing.
3. In readiness for the hearing, the appellant’s representatives must, no less than 15 working days before the hearing provide to the Upper Tribunal and the respondent a composite electronic bundle which complies with the Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC).
4. The composite bundle must contain the following documents and must be structured in the following way:
Part A: The relevant decisions of the First-tier and the Upper Tribunal, including any other decision or direction made by the First-tier or Upper Tribunal which is relevant to the appeal.
Part B: Any evidence that the appellant will rely upon at the hearing of the appeal before the Upper Tribunal that was not before the First-tier Tribunal.
Part C: All documentary evidence relied upon by the Appellant before the First-tier Tribunal.
Part D: All documentary evidence relied upon by the Respondent before the First-tier Tribunal.
5. NO LATER THAN 5 WORKING DAYS of receipt of this decision, the appellant’s representatives will make any request for the services of an interpreter in writing, stating clearly the language and any specific dialect required.
(vii) NO LATER THAN 5 WORKING DAYS before the hearing, the appellant is to provide to the Upper Tribunal and the respondent any skeleton argument upon which he intends to rely. Any skeleton argument must:
a. Contain sequentially numbered paragraphs
b. Be in not less than 12-point font
c. Be as concise as possible, and not exceed 20 pages of A4
d. Not include extensive quotations from documents or authorities
e. Be cross referenced to the composite bundle thus: [CB/x]

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 November 2024