Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000033

First-tier Tribunal No: HU/59325/2023
LH/03986/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 April 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE WEBB

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

LOLMENA MBUTSHU (aka JOHN KIN)
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Rushforth (Senior Presenting Officer)
For the Respondent: Ms King (Counsel)

Heard at Cardiff Civil Justice Centre on 21 March 2025

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribuanl Judge Boyes made on 08 December 2023, allowing Mr Mbutshu’s appeal on refugee, humanitarian protection and article 8 grounds. Permission to appeal was refused by Judge Grimes, but granted on renewal by Upper Tribunal Judge Owens, who sits on this panel.
2. Before the First-tier Tribunal there was an anonymity order in place. That was because some of the appeal grounds related to UK obligations under the refugee convention and the interests in those obligations being properly met outweighed the need for open justice. We have concluded that in light of the decision of Mr Mbutshu not to pursue those protection claims it is appropriate that there should not be anonymity in relation to his appeal.
The hearing
3. We had before us the consolidated bundle that consisted of the grounds, decisions on permission, along with the evidence that was before the First-tier Tribunal.
4. We heard submissions from Ms Rushforth and Ms King in relation to the grounds of appeal.
5. At the conclusion of those submissions we indicated that we were satisfied that the Judge had made errors of law and that the decision would need to be set aside.
6. We also indicated that we were satisfied that the factual findings of the Judge could be preserved as they had not been challenged in the grounds of appeal, and on that basis, we felt we had sufficient information to remake the decision allowing the appeal in relation to Mr Mbutshu’s article 8 grounds.
7. After taking instructions from her client, Ms King indicated that in light of our indication Mr Mbutshu was content that he did not wish to pursue the appeal on refugee or humanitarian protection grounds.
8. At the conclusion of the hearing, we reserved our decision which we now give in writing.
Errors of Law
Ground 1
9. The Secretary of State’s first ground is that the Judge failed to consider the country guidance case of PO (DRC – Post 2018 elections) DRC CG [2023] UKUT 00117 (IAC). This case had been promulgated in April 2023, before the hearing in the First-tier Tribunal. In PO, the Upper Tribunal found that there had been a durable political change in DRC so that opponents or perceived opponents of the previous regime were no longer at risk of persecution.
10. Whether the change of circumstances in DRC was of such a significant and non-temporary nature that Mr Mbutshu’s fear of persecution could no longer be regarded as well-founded was the only issue between the parties in respect of the refugee grounds before the First-tier Tribunal (CB 72 and 390).
11. On her part Ms King submitted that PO was not relevant to Mr Mbutshu’s situation. He had been granted refugee status as a dependent. His father had not been politically active per-se, but because of his relationship with Rwanda as a diamond trader was instead perceived as anti-state, rather than specifically against the Kabila government. She asked us to find that as the case was not relevant to Mr Mbutshu’s claim it was not an error of law for the Judge to fail to take it into account, or alternatively that it was not a material error.
12. The Judge found at paragraph 39 and 40, that contrary to the findings of the Upper Tribunal in PO, that the changes in the DRC were not durable. In doing so he relied on evidence from the UNHCR specifically referencing the appellant but did not reference PO anywhere in his determination.
13. With respect to Ms King’s submission PO was plainly relevant to the issues that the Judge was required to consider. As Ms Rushforth pointed out in her response, the arguments about Mr Mbutshu’s father being anti-state rather than anti Kabila were not put before the First-tier Tribunal and the focus was on the general country conditions. A failure to consider a country guidance case that is relevant to an issue in the appeal is an error of law and in this case we find it was material to the Judge’s decision to allow Mr Mbutshu’s appeal on refugee grounds.
Ground 2
14. The Secretary of State’s second ground is essentially that the Judge failed to provide sufficient reasons for finding that Mr Mbutshu’s living conditions on return to DRC would lead to intense suffering so that he would qualify for humanitarian protection.
15. Ms King submitted that the Judge found facts about the country situation and about the appellant that were sufficient to support his conclusion about the serious harm he would face on return and that there was no error of law disclosed by the grounds.
16. We acknowledge that in article 3 cases the test is that set out in Paposhvili v Belgium [2017] Imm AR 867:
183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
17. This Tribunal in OA (Somalia) CG [2022] UKUT 00033 (IAC) confirmed that in respect of article 3 cases involving living conditions, the threshold remains very high and that there must be a clear link between the removal and any intense suffering that is said to arise:
127. To summarise, in an Article 3 "living conditions" case, 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. This reflects the requirement in Paposhvili for intense suffering to be "serious, rapid and irreversible" in order to engage the returning State's obligations under Article 3 ECHR. 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, for to do so would be speculative.
18. We find that despite Ms King’s submission, the Judge in analysing the question of humanitarian protection failed to adequately address why the situation Mr Mbutshu would find himself in, taking account of the characteristics the Judge identified and the country situation, would result in him experiencing intense suffering. In short, an informed reader of the determination cannot understand why Mr Mbutshu in particular would face intense suffering.
19. We find that ground 2 is made out and that the Judge made inadequate findings linking the personal circumstances, the country situation and the serious harm he found Mr Mbutshu would suffer. We find this error was material to the decision on humanitarian protection made by the Judge.
Ground 3
20. The third ground relied upon by the Secretary of State relates to the decision of the Judge to allow the appeal on the basis that Mr Mbutshu met exception 1 of section 117(c).
21. The grounds refer only to the third limb of that exception. There was no challenge to the finding that Mr Mbutshu had lived in the UK for more than half his life, or that he was socially and culturally integrated. We are of the view that the Secretary of State was right not to challenge these findings as the Judge properly directed himself about these issues.
22. In her submissions Ms Rushforth sought to persuade us that the findings of the Judge in respect of the third limb of the exception were infected by the same errors as the humanitarian protection reasoning. There was no challenge to the findings of facts made by the Judge.
23. We reject that submission. As Ms King argued, the Judge correctly directed himself about the appropriate test that applies when assessing if there are very significant obstacles to a person’s integration in the country of return:
16. I consider that a similar approach should apply to the question, in section 117C(4)(c) and paragraph 399A(c) as to whether there would be very significant obstacles to a foreign criminal’s integration into the country to which he is proposed to be deported. In delivering the judgment of the Court of Appeal in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813; [2016] 4 WLR 152 Sales LJ stated at para 14 that:
“… the concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”
24. There is a difference between the ability of someone to integrate and create a meaningful private life in a particular country and a finding that they would experience intense suffering because of their living conditions in that country.
25. The unchallenged factual findings made by the judge were clearly sufficient to amount to very significant obstacles to Mr Mbutshu’s integration in DRC:
45. Would there be very significant obstacles to his reintegration into life in DRC? Yes there would. The appellant left DRC when he was a child. He has never been back. He holds little if any memory of life there other than ones of trauma and hurt. He does not know anyone there. He does not speak any language routinely used in DRC. He does not know the way of life having left as a child. He has not friends or family who can help him. He has no accommodation. I am satisfied that if the appellant were deported to DRC then there would be very significant obstacles to his reintegration. The appellant does not know anywhere near enough of life in DRC to be even remotely close to being considered an insider.
26. It is evident that the Judge took into account all the evidence before him, see [35] of the decision, and that the decision when read a whole demonstrates the Judge accepted Mr Mbutshu’s’s evidence. That evidence included that his mother had passed away in 2015, that in 2017 his younger siblings were taken into foster care, that Mr Mbutshu had been receiving counselling and had been referred for a PTSD assessment.
27. We find that the reasoning of the Judge in relation to article 8 in adequate and sustainable, and not infected by the errors in his approach to refugee status and humanitarian protection. We find that ground 3 does not disclose an error of law.
Conclusions on errors of law
28. We find for the reasons set out above that the decision of Judge Boyes contained material errors of law that means the decision must be set aside.
29. We further find that the grounds do not undermine Judge Boyes’ finding that the appeal should be allowed on article 8 grounds, and those findings are preserved.
30. In light of the preserved findings, and Ms King’s confirmation that the appeal was no longer being pursued on refugee or humanitarian protection grounds, we are of the view that we are able to remake the decision without hearing further evidence from the parties.
Notice of Decision
31. The decision of Judge Boyes, dated 08 December 2023, contains material errors of law and is set aside with preserved findings as above.
32. The decision on the appeal is remade.
33. The appeal is dismissed on refugee and humanitarian protection grounds on the basis these grounds were not pursued by Mr Mbutshu.
34. On the basis of the preserved findings the appeal is allowed on human rights grounds (article 8).

N Webb

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

09 April 2025