Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004329

First-tier Tribunal No: PA/00334/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE JOLLIFFE

Between

JMM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Vanessa Delgado, Refugee Law Clinic
For the Respondent: Aley Everett, Presenting Officer

Heard at Field House on 4 February 2025

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 is a national of the Democratic Republic of Congo. She was born on 19 April 1960 and is now aged 64.
2. In order to define the issues for determination in this appeal, it is necessary to set out some of the history of her case.
3. On 5 May 2017 she claimed asylum in the United Kingdom because of her claimed membership of the Union for Democratic and Social Progress. She said that she had been detained and ill-treated following a march in Kinshasa on 19 September 2016. The respondent refused that application by a decision dated 10 August 2017 and identified inconsistencies in her account. She appealed against that decision, and First-tier Tribunal Judge Carroll refused the appeal by a decision promulgated on 5 January 2018. Judge Carroll found the appellant not to be credible – see the reasons specified at paragraph 14(a-i) of the judgment.
4. The appellant sought permission to appeal without success. From 13 July 2018 she was appeal rights exhausted, but nonetheless she did not leave the United Kingdom.
5. On 29 May 2020 the appellant made further submissions to the respondent. They were refused by a decision dated 4 February 2022. The appellant appealed that refusal to the First-tier Tribunal.
6. The issues for the First-tier Tribunal to determine were whether the appellant would be at risk on return as a failed asylum seeker; whether she was at risk as a member of a particular social group; whether the appellant would face very significant obstacles to integration on return to the DRC, and whether her removal would be in breach of Articles 3 and/or 8 ECHR.
7. First-tier Tribunal Judge Gibbs determined that the appellant was not at risk on return as a failed asylum seeker in light of PO (DRC – Post 2018 elections) DRC CG [2023] UKUT 00117, and that the appellant would not because of her mental health problems (depression and PTSD) be perceived as a member of an identifiable social group which is discriminated against in the DRC. The judge found that the appellant was not seriously ill as required by AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC) in that she suffered from depression and was being treated with a first line antidepressant.
8. The judge allowed her appeal on Article 8 grounds, finding that the appellant would be seriously inhibited from integrating on return because of her mental health conditions, the difficulties she was likely to face in obtaining employment, the fact she had no family support and the wider societal discrimination against women, particularly single women and those with mental health problems. She therefore met the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules.
9. Judge Gibbs made the following findings of fact:
a. The appellant was diagnosed with depression in May 2021 and treated with anti-depressant medication. The appellant did not behave bizarrely in public such that she would draw attention to herself, and she was able to exercise control and conduct herself appropriately during the hearing. She would not attract adverse attention in the DRC, although the difficulty in obtaining medication for her mental health might cause it to deteriorate and in turn impede her ability to integrate. She had physical health problems which led her GP to sign her off work and which would make it hard for her to obtain work in DRC (paragraphs 14-17, 23-30).
b. The appellant had lost contact with her family, and would not have a house to live in or family on return (paragraph 32).
c. The DRC has problems with gender inequality which would make it harder for the appellant to integrate, and would increase her vulnerability (paragraphs 33-35).
10. The appellant appealed that judgment to the Upper Tribunal. I allowed the appeal on the basis that the judge did not determine the appellant’s status as a member of a particular social group, and did not determine the cumulative factors relevant to that status i.e. that she would be returning as a woman, as a person with physical and mental health issues and as a person who faces difficulties in accessing treatment. I refused the appeal on the AM (Zimbabwe) health issue.
Issues and Legal Framework
11. The Appellant’s appeal was advanced on the basis that she is a member of a particular social group and that she would be at real risk of persecution in DRC as a member of a PSG such that she should be awarded humanitarian protection.
12. Her counsel’s skeleton argument at paragraphs 11 and 24 stated that the relevant PSGs in the appellant’s case were women in DRC, or lone women in DRC or lone women with disabilities or mental and/or physical illnesses.
13. In the further alternative, the appellant relied on Limbuela v SSHD [2005] UKHL 66 and submitted that if returned to DRC, there was a real risk she would experience treatment contrary to Article 3 or a real risk of serious harm for the reasons given in respect of her PSG claim. She was at risk of destitution due to the lack of family support, her inability to work due to health issues, and discrimination in accessing housing against single or widowed women and those with mental health issues.
14. The legal framework concerning refugee status due to membership of a particular social group is derived from Article 1(A)2 of the Refugee Convention and case law. In summary, membership of a PSG should not be seen in isolation. It can lead to the recognition of refugee status where there is also a well-founded fear of persecution, and it is established that there is a connection between the fear and the reason for that fear.
15. In Shah and Islam v SSHD [1999] 2 AC 629, the House of Lords held that an applicant had to show that for the purposes of Article 1A(2) they belonged to a particular social group which existed independently of the persecution. In that case it was determined that women in Pakistan suffered serious discrimination on grounds of their sex and the State either sanctioned that discrimination or did nothing to prevent it. It was possible to conclude that women in Pakistan were a particular social group for the purposes of the Convention and it was irrelevant that some Pakistani women were protected from persecution by reason of their own circumstances. Applicants also had to show that their fear of persecution was for reasons of their membership of that particular social group.
16. The Upper Tribunal recently considered mental health in the context of PSG status in DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC). It was held that a ‘person living with disability or mental ill health’ may qualify as a member of a Particular Social Group (“PSG”) either as (i) sharing an innate characteristic or a common background that cannot be changed, or (ii) because they may be perceived as being different by the surrounding society and thus have a distinct identity in their country of origin. The assessment of whether a person living with disability or mental illness constitutes a member of a PSG is fact specific. The key issue is how an individual is viewed in the eyes of a potential persecutor.
17. It was held in OA (Somalia) (CG) [2022] UKUT 33 that there must be a causal link between the Secretary of State's removal decision and any "intense suffering" feared by the returnee. This includes a requirement for temporal proximity between the removal decision and any "intense suffering" of which the returnee claims to be at real risk. A returnee fearing "intense suffering" on account of their prospective living conditions at some unknown point in the future is unlikely to be able to attribute responsibility for those living conditions to the Secretary of State, as that would be speculative.
18. The Upper Tribunal considered poverty and destitution for Article 3 purposes in Ainte (Material Deprivation – Article 3, AM Zimbabwe) [2021] UKUT 203. It was held that it was possible that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission. In cases where the material deprivation was not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe). The question was whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.
The hearing
19. Miss Delgado for the appellant argued that although the appellant had leave under Article 8, she should have been given refugee leave. Women in the DRC were a PSG for the purposes of the Convention because of high rates of violence and discrimination.
20. Her second submission was that the appellant was at risk on return as a single woman, a widow, someone with mental and physical health issues, and with no family/social support issues.
21. She accepted that the general level of discrimination against women in DRC was not sufficiently serious to amount to persecution. She noted that the CPIN and caselaw directed that decision-makers should consider whether there were particular factors relevant to the individual which might make the discrimination so serious as to amount to serious harm or persecution. These factors were being a single woman, being at risk of sexual violence, and because of her mental health problems.
22. She relied on the country information, including the report dated 3 July 2023 of Alex Ntung, who writes reports about central and east Africa and who had written about the availability and cost of medication and treatment in DRC, to show that because of her mental health problems the appellant would be subject to “physical abuse, ostracism, discrimination and severe stigmatisation.” She submitted that this would amount to persecution, and that there would be no effective protection from e.g. the police.
23. Regarding Article 3 she submitted that the Appellant would at risk of destitution if she had to return to DRC because of a lack of support, her inability to work, her health problems, and potential discrimination in accessing housing/against single women and those with mental health issues.
24. The presenting officer Ms Everett accepted that the evidence about the status of women in DRC was in some ways bleak, but she argued that it did not suggest that women were targeted as women - it was not the case that any woman would be targeted. She accepted that the appellant would face difficulty accessing work, and that many women worked in the informal economy. She accepted that the appellant would face real difficulties on return to DRC, but did not accept that they amounted to persecution.
25. She accepted that the appellant had medical problems, and in particular that she suffered from depression and was being treated with Sertraline. However, she distinguished between that as a comparatively minor and commonplace condition and those with more florid symptoms. There was no reason to think that her condition would come to anyone’s attention. She would likely experience difficulties on return to DRC, but although those difficulties were real and not to be underestimated, they nonetheless did not amount to persecution.
26. On behalf of the appellant Ms Delgado briefly replied to emphasise that the appellant’s church and support network were not agents of protection, and to emphasise the economic hardship which the appellant would experience, and that as a lone woman she would be at greater vulnerability.
27. There was an application to admit additional evidence made by a letter dated 21 January 2025. The evidence consisted of updated country information and a GP letter dated 26 November 2024. Neither party addressed this application orally. The Tribunal considered that the GP letter was more relevant to the health issue which the Tribunal had ruled upon previously, but nonetheless decided in the interests of completeness to consider the documents. Neither advocate focussed her submissions on those documents.
Findings
28. The starting point is the findings of First-tier Tribunal Judge Gibbs. They have been summarised above, and for convenience are restated here:
a. The appellant was diagnosed with depression in May 2021 and treated with anti-depressant medication. The appellant did not behave bizarrely in public such that she would draw attention to herself, and she was able to exercise control and conduct herself appropriately during the hearing. She would not attract adverse attention in the DRC, although the difficulty in obtaining medication for her mental health might cause it to deteriorate and in turn impede her ability to integrate. She had physical health problems which would lead her GP to sign her off work and which would make it hard for her to obtain work in DRC (paragraphs 14-17, 23-30).
b. The appellant had lost contact with her family, and would not have a house to live in or family on return (paragraph 32).
c. The DRC has problems with gender inequality which would make it harder for the appellant to integrate, and would increase her vulnerability (paragraphs 33-35).
29. The Home Office CPIN Democratic Republic of Congo (DRC): Gender Based Violence Version 2 dated September 2018 states at 2.2.1-2.2.2 that
“Women in Democratic Republic of Congo (DRC) form a particular social group (PSG) within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society.
2.2.2 Although women form a PSG, establishing such membership is not sufficient to be recognised as a refugee. The question in each case is whether the person will face a real risk of persecution on account of her gender.”
30. Although the CPIN has been withdrawn, it has not been replaced. Miss Delgado righty submitted that the situation has not materially improved since then, and Miss Everett did not submit to the contrary. Accordingly the Tribunal finds that women in DRC do form a PSG, and as a woman the appellant is a member of this PSG. The Tribunal also finds that the appellant would be a member of a PSG as a single woman with mental health problems.
31. At 2.4.3, the CPIN directed that generally the level of discrimination against women is not sufficiently serious to amount to persecution or serious harm. Each case should be considered on its merits, and some women such as the head of a household might be at greater than usual risk. There are risks of sexual harassment and violence but they vary regionally, with the lowest levels in Kinshasa and Bas-Congo and the highest in the southern and eastern provinces. The risk of domestic violence is fact and context-specific.
32. In the appellant’s witness statement dated 27 April 2023, she stated that she was a Christian and she spoke Lingala. Her family had been poor, and her parents had died when she was about 6 or 7 and then about 10 respectively. After that she had gone to live with her maternal grandmother. She was educated in a missionary school until the age of about 13 or 14, but her grandmother had been unable to afford the fees at that point.
33. She had worked making traditional napkins. She met her husband and when she was 23 they married. It took over a decade before she became pregnant. In 2007 her husband died.
34. She became politically active and in about 2009 or 2010 became a member of the UDPS. She supported its policies of gender equality, free education and building roads and hospitals.
35. The party sent her to travel from her village of Mweka to Kinshasa, a journey of several hundred miles (over 1,000 kilometres), in order to attend meetings. She was chosen to do this because she was one of the few members who was able to read and write.
36. She rose within the party and in 2011/2012 she put herself forward to be the Women’s President in Mweka. She was responsible for mobilising other women and help them to educate themselves in reading and writing. She arranged meetings and promoted the work of the UDPS. She said that she was detained and that she experienced torture and rape, and she saw other people being killed.
37. The Tribunal must consider whether the appellant’s membership of a PSG would cause her to face a real risk of persecution.
38. It is clear that DRC is a very poor country and that women there face discriminatory treatment. Miss Delgado did not make the submission that the general level of discrimination against women in DRC was so serious that it amounted to persecution, which was a realistic position to take.
39. The question for the Tribunal is whether there are particular factors in her case which would expose her to serious harm or persecution, bearing in mind that she would return as a single woman, potentially being at risk of sexual violence, and with her mental health problems.
40. It would undoubtedly be hard for the appellant to return to DRC as a single woman and with no family support. However, her personal history shows that she is literate and comparatively well-educated, and that she is a capable woman who has worked and been politically active to a high level. She has achieved a considerable amount in her life. In light of her history, she would be comparatively well-placed to return and restart her life in DRC. The Tribunal finds that she would not be at particular risk of serious harm or persecution on account of her gender.
41. There is a major problem with sexual violence in DRC. Its prevalence varies considerably across the country, and the level of risk is significantly higher in some places than in others. It was not suggested that she would return to an area with a high level of risk. She has in the past been able to travel the considerable distance from Mweka to Kinshasa over several days. On her own account she did this on a number of occasions. She has been able to associate with party members and other people in the capital city.
42. Her history of sexual violence is that she was raped while in detention, and that a man called Maxim helped her to escape detention and subsequently demanded sexual favours from her. This history is obviously very traumatic. However, it does not suggest that there are reasons to think she would be at particular risk of sexual violence on return to DRC.
43. The appellant’s evidence about her mental health was that she had been diagnosed in May 2021 with depression and had been treated with Sertraline since then, initially on 50mg per day and later on 100 mg per day.
44. She relied on the country information, including the report dated 3 July 2023 of Alex Ntung. His report stated show that the appellant would be subject to “physical abuse, ostracism, discrimination and severe stigmatisation”, and her case on appeal was that this would amount to persecution, and that she could not look to the police for any effective protection.
45. The most up to date medical evidence is the 26 November 2024 letter from Dr Rebecca Hall, a GP who specialises in refugee and asylum seeker services in the Guy’s and St Thomas’ Health Inclusion Team. She stated that the appellant has a history of low mood, anxiety, poor sleep, flashbacks and nightmares. She has at times felt suicidal. This is consistent with a diagnosis of PTSD with depression. Her medication has not helped much, and she has been referred for more specialised treatment.
46. Mr Ntung’s evidence was based on reading the appellant’s witness statement and the GP letter dated 3 May 2023, plus various documents relating to her appeal proceedings. His report is written at a generalized and high level regarding the availability of medication in DRC. He stated that Sertraline is available from pharmacies, based on an interview with Dr Junior Rubyutsa, a DRC national and medical expert. He went on to note that some pharmacies only sell it rarely.
47. The Tribunal finds that the appellant would be able to access Sertraline, although there might be difficulties and that that drug (and others) are less readily available than in the United Kingdom. Even if she was not able to access it and that loss of access caused her mental health to decline, her symptoms would be similar to those which she currently experiences – i.e. low mood and anxiety. There is no reason to think that any deterioration in her condition would be noticed by other people, nor is there any reason to think that this would lead to her experiencing treatment that amounted to persecution. She would face real difficulties and I do not underestimate those, but nonetheless they do not amount to persecution.
48. Miss Delgado submitted in the alternative that if returned to DRC the appellant would be exposed to poverty and destitution which crossed the threshold of Article 3.
49. The Tribunal has taken account of the judgment in Ainte [2021] UKUT 203 that Article 3 ECHR could be engaged by conditions of extreme material deprivation, as cited above. A core part of the reasoning in Ainte is that it is for the Tribunal to consider whether the material deprivation which is said to contravene Article 3 results from deliberate action or omission.
50. It was decided in Ainte that in an Article 3 "living conditions" case, there must be a causal link between the removal decision and any "intense suffering" feared by the returnee. This includes a requirement for temporal proximity between the removal decision and any "intense suffering" of which the returnee claims to be at real risk. A returnee fearing "intense suffering" on account of their prospective living conditions at some unknown point in the future is unlikely to be able to attribute responsibility for those living conditions to the Secretary of State, and doing so would be speculative – see OA (Somalia) CG [2022] UKUT 33 (IAC).
51. The Tribunal has already found that the appellant is a comparatively well-educated woman. She has lived for much of her life in DRC, she has worked and earned a living there as well as being politically active. She has on her own account been a senior figure within the UDPS with various important organisational duties, and in that capacity she has travelled long distances within DRC to attend political meetings.
52. The Tribunal found that she would be able to work if returned to DRC. While her circumstances might be uncomfortable for a time, she would not be at risk of material deprivation that would engage the Article 3 threshold. If her conditions did deteriorate to that level, there would not be temporal proximity so that responsibility for that deterioration could be properly attributed to the Secretary of State.

Notice of Decision
53. The appellant’s appeal on the PSG issue is refused.
54. The appellant continues to have Article 8 leave consequent to First-tier Tribunal Judge Gibbs’ judgment.

John Jolliffe

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 March 2025