Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000521

First-tier Tribunal No: HU/01452/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th January 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

AC
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford of Counsel, instructed by Turpin Miller LLP
For the Respondent: Ms S Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 17 October 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

1. The appellant is a citizen of the Democratic Republic of Congo (DRC) born on 13 August 1993. He appeals against the respondent’s decision dated 3 January 2023 to refuse his protection and human rights claim, made in the context of deportation proceedings. His most serious conviction, in 2017, was 10 years’ imprisonment for two counts of wounding/inflicting GBH.
2. The appellant’s appeal was dismissed by a judge of the First-tier Tribunal (the judge) on both protection and human rights grounds, in a decision and reasons dated 2 December 2024. The appellant appealed to this Tribunal, which found that the judge’s decision did indeed involve the making of an error of law. That error of law decision is annexed below.
3. The Upper Tribunal found that the judge failed to have regard to extant country guidance on the risk in the DRC to those who have Rwandan connections and failed to give adequate reasons for rejecting expert evidence.
4. The Upper Tribunal set aside the judge’s decision but retained the appeal from remaking, preserving the following findings:
a. The Appellant is a citizen of the Democratic Republic of Congo.
b. The judge’s findings concerning the public interest and the circumstances of the Appellant’s criminality set out at [41]-[48].
c. The judge’s findings on the Appellant’s private life established in the UK set out at [51]- [52], but not the judge’s findings at [53].
d. The FtT’s findings on the Appellant’s family life established in the UK set out at [55]-[56].

5. The issues to be determined at this remaking were recorded as being:
a. Whether the Appellant has rebutted the presumption under s.72 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) that he presents a danger to the community.
b. Subject to the finding on the issue above, whether the Appellant has a well-founded fear of persecution on return to the DRC for a Refugee Convention reason.
c. Whether the Appellant’s return to the DRC is in breach of his rights under Article 3 ECHR.
d. Whether the Appellant’s return to the DRC is in breach of his rights under Article 8 ECHR, given the preserved findings recorded above.

6. In her skeleton argument, Ms Radford confirmed that the appellant no longer challenges the s72 presumption. Consequently, he accepts that he has been convicted by final judgement of a particularly serious crime and constitutes a danger to the community of the United Kingdom. It follows that issues a) and b) are resolved against the appellant and that the only remaining contentious issues are whether his return would breach Articles 3 and/or 8 ECHR.
7. The appellant was delayed in arriving at the hearing without any reliable indication of when he would arrive. However, it was agreed that his evidence could be taken as read, that the matter would consequentially proceed on the basis of submissions only and that, because he was professionally represented, the hearing could commence (and even conclude if necessary) in the appellant’s absence. As it was, the appellant did arrive part-way through submissions.
8. Whilst I refer below on to such matters as are necessary to understand my decision, I took the evidence to which I was directed and the submissions into account in their entirety.
9. The appellant’s protection case in a nutshell is that he would be at risk of Article 3 mistreatment on return because of his Rwandan ethnicity/lineage. Further or alternatively, the emergency travel document he has been issued with would be inadequate to secure a nationality document in the DRC, and no other evidence existed upon which he could rely. His inability to acquire a nationality document exacerbated the risk arising from his Rwandan connections and/or created of itself a real risk of Article 3 mistreatment.
10. His Article 8 case in brief is that he satisfies many of the statutory exception criteria and further that there were very compelling circumstances making deportation disproportionate, in particular given his rehabilitation.
11. The respondent argues that any problems faced by the appellant would not reach the Article 3 threshold. There were no real grounds to doubt that his nationality would be recognised by the DRC, and he would not be at real risk of sufficiently serious harm on return. He did not meet the statutory exceptions prescribed in s117C of the 2002 Act and the public interest in deporting an individual with the appellant’s criminal record outweighed his personal rights.
Article 3
12. My starting point is not only the preserved finding that the appellant is a citizen of the DRC but also the undisputed fact that his parents are citizens of Rwanda (in respect of his mother, as a consequence of an earlier judicial finding).
Country Guidance
13. The appellant relies on the country guidance case of VL (Risk-Failed Asylum Seekers) Democratic Republic of Congo CG [2004] UKIAT 00007 as authority for the proposition that the appellant would be at real risk of serious harm because of his Rwandan origins. The relevant passages are:
‘93. Our essential focus in this determination has been on the issue of failed asylum seekers. However, the adjudicator in allowing this appeal made reference to one further risk factor, namely, being a woman with a very young child: see paragraph 22. In view of the analysis set out in M and in preceding paragraphs of this determination, we also have to consider whether there was another possible risk category into which she would fall, with reference to identification by the Tribunal in M of two definite risk categories as follows:

a) Nationality or perceived nationality of a state regarded as hostile to the DRC (in particular those who have or are presumed to have Rwandan connections or are of Rwandan origin);
b) having or being perceived to have a military or political profile or background.

94. As explained earlier, we consider that M 00071 reached sound conclusions and we adopt its conclusions in this respect as well as others…’

14. The relevant conclusions from M 00071 (MM (risk- failed asylum seekers) Democratic Republic of Congo [2003] UKIAT 00071) are set out at [43]:
‘43. The Tribunal’s conclusions are, accordingly, as follows:

a) On the information available to it, as at 9 July 2003, it is not the fact that a person returned to the DRC is, by reason only of being a failed asylum seeker, at real risk of persecution or Article 3 ill treatment;

b) In order to run a real risk of being taken into detention, following the screening of a returnee at Kinshasa airport, there must be something further in the returnee’s background, such as past political or military activities or nationality of a state regarded as hostile to the DRC;
…’

15. In short, YL is not authority for the proposition that an individual is at risk on return to the DRC because of mere familial connection to Rwanda per se. Instead, it is authority for the proposition that a returnee is at real risk of detention (from which it does not appear to be controversial that a real risk of Article 3 mistreatment would follow if for any substantial period) if screening discloses something in the returnee’s background such as past political or military activities or nationality of Rwanda.
16. The appellant does not allege past political or military activities on behalf of Rwanda (or any other state hostile to the DRC). Whilst he does allege Rwandan nationality, it has been found as a preserved fact that the appellant is a national of the DRC. I conclude therefore that YL does not in itself require me to find that the appellant is at real risk on return.
17. Of course, that is not the end of the matter. The appellant relies on the reports of Alex Ntung and Bronwyn Manby. I accept their relevant expertise and so place weight on their evidence.
The Expert Evidence
18. Per paragraph 8 of Ms Radford’s skeleton argument, the appellant specifically relies on paragraphs 48-56 and 60-61 of Mr Ntung’s report dated 30 July 2023. However, in the preceding paragraph 47, Mr Ntung opines:, ‘As [the appellant’s] parents are Rwandan nationals, he is too a national of Rwanda. The authorities in the DRC will not see him as a DRC national. [The appellant] is a Rwandan national based on his parents' citizenship. I want to describe the issues he will likely face when he returns to the DRC.’
19. It would appear, therefore, that the conclusions relied upon of Mr Ntung in his first report are predicated on the appellant having Rwandan nationality. Indeed, the same is evident from many of the conclusions themselves, explicitly so in paragraph 60.
20. That said, in a supplementary report dated 31 January 2024, Mr Ntung has given consideration to the fact that the DRC have issued the appellant with an ETD. Both he and Dr Manby are of the view that the ETD will not be sufficient in itself to persuade either national or local authorities of the appellant’s Congolese nationality. Regrettably, neither have reported on whether the preserved judicial finding that the appellant is in fact Congolese affects their opinions. However, it is difficult to see how it would. If the DRC authorities might doubt a document issued by an official of the state, they are hardly likely to be persuaded by the views of a foreign judge.
21. Dr Manby refers to relatively recent reports of returnees to the DRC being detained and subjected to extorsion. The source dated 23 May 2019 reports 4 of the 15 returnees interviewed being detained in military prison for between 2 and 55 days. I do not understand it to be controversial that detention for such periods gives rise to a real risk of Article 3 mistreatment.
22. Both Mr Ntung and Dr Manby are of the view that an individual not able to prove his Congolese nationality, especially one not obviously indigenous with face exceptional day-to-day difficulties in the DRC as well as the risk of persecutory investigations by state security organs. Locals would be extremely suspicious of a newcomer, especially one with no obvious linguistic or cultural connections to the area. I accept that evidence.
23. I was unable to rely on all of Mr Ntung’s conclusions in his first report. For instance, Ms Radford asserts that Mr Ntung states at paragraph 48 that Rwandans are targeted in the DRC because of their ethnicity. In fact, he states (my emphasis), ‘However, in some areas of the country, such as Kinshasa and the eastern provinces of South Kivu, North Kivu and Ituri, members of some Kinyarwanda speakers or Rwandans, specifically the Tutsis, are targeted because of their ethnicity.’ The appellant and his parents are all Hutus.
24. Ms Radford relies on paragraph 49 when asserting that the then president appeared on television with a machete and called on the population to exterminate all Rwandans. In fact, Mr Ntung states, ‘In 1998, when the second war broke out, opposing the RDC forces and the former rebels of the Congolese Rally for Democracy (RCD), the late president Laurent Désiré KABILA appeared in Media in Kinshasa with a machete calling the population to exterminate all Rwandans or specifically those viewed as Tutsi wherever they were in Congo.’ Consequently, neither the fact that President Kabila’s foreign affairs minister ‘declared the Congolese Tutsi community to be vermin that must be eradicated’ nor the population’s murderous compliance, recorded in paragraph 50 of the report takes the appellant’s case any further.
25. Similarly, paragraphs 52 and 53 of Mr Ntung’s report (relied upon on paragraph 9 of Ms Radford’s skeleton argument), opine on risks to ethnic Tutsis and Rwandan nationals thus (my emphasis):
52. Armed groups' hostilities in the eastern DRC have increased violent attacks on civilians in the last two years. Furthermore, diplomatic relations between Rwanda and the DRC have severely deteriorated. The DRC authorities believe that Rwanda supports the resurgence of M23 rebels. Rwanda accuses the DRC security services of arming Rwandan rebels operating on the DRC territory. Such a dynamic has threatened regional security and hatred against Rwandan people in the DRC. Key drivers of the recent waves of violence are hate messages and conspiracy theories on social media targeting the Tutsi population of the DRC or Rwanda nationals.

53. The current main drivers of the armed mobilisation and violence in the DRC are hate speech and conspiracy theories targeting the Banyamulenge (Congolese Tutsi of South Kivu) and Banyarwanda populations of the DRC or Rwandan nationals (either Hutu or Tutsi). If [the appellant] is to be returned to the DRC as a Rwandan national, he will be persecuted or likely killed.’

26. Again, Mr Ntung’s principal conclusion in paragraph 53 is predicated on the appellant having Rwandan nationality.
27. Nevertheless, the hatred reported in paragraph 52 against ‘Rwandan people’ in not expressed as limited to Rwandan nationals.
28. In any event, the risk in the DRC to individuals associated with Rwanda is dealt with expressly in Mr Ntung’s addendum report. At paragraph 48, whilst he reports discrimination against Rwandan speakers, mainly Tutsis and Banyamulenge, he opines that the appellant as a Hutu would be would still be at risk because of the current political situation arising from internal conflict believed by the DRC and its nationals to be backed by Rwanda. Mr Ntung concludes, ‘The DRC accuses Rwanda of supporting the rebels. People associated with Rwanda are persecuted in the DRC.’ I accept this evidence.
Conclusion on Article 3
29. All in all, I accept that there is a real risk that the appellant’s ETD will not be accepted as satisfactory proof of his Congolese nationality, that he would face a real risk of detention on return with an attendant real risk of Article 3 mistreatment and that there is a real risk in any event of persecution in the DRC arising from his Rwandan/Hutu ethnicity, which would be reasonably likely to be discovered through the attention of suspicious locals. The appellant cannot be expected to hide his ethnicity in order to avoid persecution (HJ (Iran) v SSHD [2010] UKSC 31).
30. The protection of Article 3 is an unqualified right. It arises irrespective of the public interest in an individual’s removal from the United Kingdom. It follows therefore that the appellant’s removal would be unlawful under s6 of the Human Rights Act 1998 and that the appeal must succeed on that basis.
Article 8
31. The protections of Article 8 are, on the other hand, qualified. The rights of the individual must be weighed against the public interest in their removal.
32. The legal framework is uncontroversial. Section 117C of the 2002 Act provides that the deportation of foreign criminals is in the public interest and that the more serious the offence the greater the public interest, but that there is no such public interest for offenders sentenced to at least 12 months’ but less than 4 years’ imprisonment if certain exceptions apply or there are very compelling circumstances over and above those exceptions to render deportation disproportionate.
33. The private life exception requires the individual to have spent most of his life in the United Kingdom, to be socially and culturally integrated and to face very significant obstacles to reintegration into his home country. The family life exception requires unduly harsh consequences on a qualifying partner (British or settled), or child (British or resident for at least 7 years) whom it would be unreasonable to expect to leave the country.
34. Where the foreign criminal has been sentenced to a period of imprisonment of at least 4 years, the public interest requires deportation unless there are very compelling circumstances over and above those exceptions such as to render deportation disproportionate.
35. The following findings of the judge on that public interest were preserved:
‘41. I start by considering the level of public interest which must be outweighed for the appeal to be successful. There is a public interest in the need to deter foreign criminals from committing serious crimes and also in maintaining public confidence in the deportation system. I have had regard to the nature and severity of the appellant’s convictions which are for serious offences.

42. In 2017 the appellant was sentenced to 10 years imprisonment for 2 counts of wounding/inflicting GBH. The Sentencing Judge commented that it was a joint enterprise to enforce a drug debt. The appellant along with others, having issued threats against the victim, attended an address where the appellant ‘proceeded to use a knife, and stabbed him in the back, whilst he was being pinned down’. He goes on ‘this knife was plunged in with some force, causing life threatening injuries’. In a separate incident for which the appellant was also sentenced the Judge stated that the appellant was ‘a willing participant in violence’ having struck the victim repeatedly with a bottle and then stabbed him in the chest with a bottle when he was on the ground. He entered guilty pleas to what the Judge classified firstly as a Category 1 offence with a starting point of 12 years had there been a trial, and the second offence 3 years . There was no appeal against the sentence.

43. The appellant appeared before the courts again in September 2021 for an offence committed whilst in prison. On that occasion the Sentencing Judge said of the appellant ’ he is a man with an appalling record; 23 previous convictions which include burglary, thefts, aggravated vehicle taking, further burglaries and thefts. It is a rotten record, an absolutely dreadful record. It’s perfectly obvious from his behaviour that he has learned nothing’.

44. The offences for which he is currently imprisoned occurred after the appellant had appeared before TJ Maxwell and declared himself a reformed character in 2012. In refusing the previous appeal TJ Maxwell described the appellant as a ‘violent criminal who preys upon innocent members of the public and steals their property. He appears to have no compunction about using violence to obtain his ends’.

45. I heard that the appellant has made attempts to attend courses whilst in prison to address his offending but has been moved on many occasions preventing any continuity. Whilst this may be the case, based on the appellant's own evidence, his repeated moves appear to be primarily due to his behaviour and lack of co-operation. The OASys report from 2022 details the many moves. His behaviour was described as bizarre with concerted indiscipline with multiple adjudications.

46. I find little evidence that the appellant has made any real commitment to rehabilitation. I have no current OASys report but have a brief assessment of the risk of his reoffending from February 2024 from his probation officer. He is assessed as being a high risk to the public, medium risk to staff, prisoners and a known adult, and low risk to children. It is suggested that he is a risk to members of the public with whom he gets in an altercation or those from whom he is able to steal for financial gain. The probation officer also states that his compliance was good in attending appointment, but that was not borne out by his subsequent recall.

47. I heard that the appellant is close to his family who may be considered to be protective factors but find that they were unable to influence him previously in terms of his offending behaviour. TJ Maxwell gave consideration to the protective factors of family and found his parents to be ‘wholly unable to influence or control the appellant and, to a large extent, seek to minimise his criminal activities’. The oral evidence from his mother and partner at the hearing suggests that they are unaware of the extent of his offending behaviour whilst in prison and did not persuade me that the level of influence had changed. The appellant may now have become a father, but this did not prevent him from breaching the terms of his release.

48. Clearly there is a very significant public interest in deporting the appellant. He has a protracted and violent offending history and is a persistent offender.’

36. There is little more I need say about the public interest, save to note that, having chosen not to contest the s72 presumption, the appellant accepts that he has been convicted by final judgement of a particularly serious crime and constitutes a danger to the community of the United Kingdom.
37. As for the appellant’s family and private life in the United Kingdom, the following findings were also preserved:
‘Family and Private Life

51. I acknowledge that the appellant has been in the UK for many years, he is now aged 31, having come to the UK aged 10. The fact that the appellant has been in the UK for many years is a factor when conducting the balancing exercise against the significant public interest. However, the fact that much of that time has been spent in prison, as he has been a persistent offender is also a factor, to the extent that I question how much he has actually integrated as he clearly has a blatant disregard for the law. The nature and seriousness of his offending behaviour has escalated in its violence, and he was unable to comply with the terms of his release, despite having a partner and child. He has no regular employment history.

52. It was submitted that the appellant is socially and culturally integrated in the UK as he attended secondary school and is close to his family, all of whom are now British citizens. I found little evidence of a close knit family as submitted. He has little contact with his siblings who he is reported to be close to. Only his mother from his immediate family provided a witness statement and attended court to give evidence in support of his appeal. I do not find anything above normal family ties to outweigh the public interests. Contact can be maintained on his return via modern means of communication.
…

55. The appellant is now a father as a result of a relationship with Ms Bafranga. Whether or not the relationship is genuine and subsisting is unclear. Their friendship was formed whilst the appellant was in prison and lasted only a short period before he was recalled. They appear to have lived together only for a few months. He gave evidence that they had broken up whereas she suggested that they were still a couple.

56 Regardless of the stability of the relationship the appellant has a child who I heard is a British citizen. It is generally accepted that it is in a child’s best interests to be with both parents. In this case the child has spent very little family time with the appellant as she was only a few months old when he was recalled to prison. The child’s welfare is a primary consideration but it must be balanced against other factors. She is still under 1 year old and although their separation may be difficult and harsh I do not find it to be unduly so. She will remain in the care of her mother who has been a consistent figure in her life and who is her primary carer. Given her young age, she will soon adapt to the situation. On return to DRC the appellant can maintain contact with his family by phone and video as now. It may be in the child’s best interests to be with both parents but I do not find that her interests outweigh the significant public interest.’

38. Ms Radford acknowledges that the appellant cannot benefit from the statutory exceptions prescribed in ss117C(4) and (5). However, she correctly submits that the extent to which the appellant satisfies their criteria is still relevant when considering whether there are very compelling circumstances which outweigh the public interest in deportation.
39. The appellant was born on 13 August 1993 and so is now 32 years old. He arrived in the United Kingdom on 26 November 2004 and has remained ever since. He has, therefore, resided in the country for 21 years. However, his stay was only lawful between 7 June 2007 and 21 September 2012. I recognise that the appellant was a minor when brought to the country by his mother and so do not hold against him his unlawful presence between entry and grant of leave. Nevertheless, he falls far short of having lived lawfully in the United Kingdom for most of his life.
40. I accept that the appellant faces very significant obstacles to reintegration into the DRC. He has not lived there for over 20 years. I accept that he and his family have no links to the country beyond his citizenship and a step-sister living in Kinshasa. He does not speak any native Congolese language (although I understand that he does speak French, the official language of the country) and has no knowledge of Congolese culture. He will face hostility from the locals. I accept that these factors alone are sufficient to amount to very significant obstacles.
41. However, I reject any suggestion that the appellant is socially and culturally integrated into the United Kingdom. I note that the judge touched on this issue but came to no express conclusions. For myself, I take into account all of the matters advanced by Ms Radford, in particular those in paragraph 24 of her skeleton argument. However, I also take into account the judge’s individual preserved findings above. Irrespective of how close the appellant’s ties are with his family, his appalling criminal record, culminating in extremely serious violent crimes and attacks against custody officers, demonstrates quite how unintegrated he is.
42. Given the judge’s preserved findings, Ms Radford did not argue that the appellant satisfied the family life exceptions, although I do take into account the appellant’s family life as found by the judge when considering the entirety of his circumstances in the proportionality assessment.
43. Ms Radford also urges me to find that the matters found above to constitute Article 3 mistreatment also amount to very significant obstacles to reintegration (or at least contribute to very compelling circumstance). I cannot, for the simple reason that, whilst I accept that there is a real risk of them occurring, I am not persuaded that it is more likely than not.
44. Even if I had accepted that these matters were established on the balance of probabilities, they must be weighed against the public interest.
45. I take into account all of the matters above. I also take into account the appellant and family’s claims that he has reflected on his behaviour and has matured. Frankly, I do not accept that he has demonstrated a significant change in behaviour; as recently as 2021 he assaulted an officer with bodily waste. Moreover, as noted above, he no longer argues that he is not a danger to the community of the United Kingdom. However, even if the appellant is on a rehabilitative trajectory, taking into account all of the matters advanced by Ms Radford, I find that they fall well short of outweighing the extremely strong public interest in the appellant’s deportation.
46. It follows that the appellant’s appeal does not succeed with respect to Article 8 ECHR.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside with facts preserved as recorded in the Annex.
2. The decision is remade and the appeal allowed on human rights grounds (with respect to Article 3 ECHR but not Article 8 ECHR).

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 January 2026

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000521

First-tier Tribunal No: HU/50430/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 06 June 2025

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

A C
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford, Counsel instructed by Turpin Miller LLP.
For the Respondent: Mr N Wain, Senior Presenting Officer.

Heard at Field House on 29 April 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
1. The Appellant appeals the decision of the First-tier Tribunal (‘the FtT’). On 2nd December 2024, the FtT dismissed the Appellant’s appeal against the Respondent’s decision of 3rd January 2023, in which the Respondent refused the Appellant’s human rights claim made on 30th September 2022.
2. We have maintained the Anonymity Order in favour of the Appellant. We consider that, on the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant having raised a claim to international protection are such that an Anonymity Order is a justified derogation from the principle of open justice.
Factual and Procedural Background
3. In brief, the Appellant’s parents are Rwandan citizens and they fled Rwanda in 1994 when the Appellant was aged one year old, on account of the ethnic conflict and ensuing genocide. The Appellant’s father travelled at the time to the Democratic Republic of Congo (‘DRC’) and then to the UK, claiming asylum in 1999. The Appellant’s mother remained with the Appellant in a number of refugee/displaced person camps on the borders of Rwanda, DRC and Tanzania until 26th November 2004, when they both joined the Appellant’s father in the UK. The Appellant was granted a period of three years’ leave to remain in line with his mother on 7th June 2007.
4. Thereafter, the Appellant committed a number of criminal offences in the UK. The Appellant’s criminal history is not in dispute and is recorded in detail in the Respondent’s decision of 3rd January 2023 at paras 5-27 as well as in the FtT’s decision at [3]-[12]. The Respondent issued the Appellant with a decision to make a deportation order on 6th December 2011. The Appellant’s appeal against that decision was dismissed on 17th February 2012 and he became ‘appeal rights exhausted’ on 21st September 2012 when his application to the Upper Tribunal of permission to appeal was refused. The Respondent served the Appellant with the Deportation Order signed by the Respondent on 5th November 2012.
5. As part of the Respondent’s efforts to deport the Appellant, the Respondent received notification in 2013 from the Rwandan authorities that they did not accept that the Appellant was a Rwandan citizen. The Respondent then liaised with the DRC authorities, which culminated in the Appellant being issued with an emergency travel document (‘ETD’) issued by the DRC on 20th December 2020.
6. In the intervening period, the Appellant was further convicted in 2017 of two counts of wounding with intent and was sentenced for both counts to eight and two years’ imprisonment to run consecutively.
7. On 30th September 2022, the Appellant made further submissions responding to the Respondent’s efforts to deport him to the DRC and these were refused with a right of appeal on 3rd January 2023. As part of this decision, the Respondent maintained her position that the Appellant is a DRC national and not Rwandan.
The decision of the First-tier Tribunal
8. The Appellant pursued his appeal before the FtT on the basis that the Respondent’s decision and his deportation breaches his rights under both Articles 3 and 8 ECHR. He did not pursue his appeal on protection grounds as he maintained that he is a Rwandan citizen. The FtT Judge (‘the Judge’) identified at [26] the issues for them to determine: the Appellant’s nationality, whether the Appellant’s deportation to the DRC would breach his rights under Article 3 ECHR and similarly under Article 8 ECHR.
9. The Judge found against the Appellant on the issue of nationality and agreed with the Respondent that the Appellant is a citizen of the DRC. Her consideration of the evidence and her findings on this issue are at [30]-[40] and the Appellant has not sought to appeal those findings before this Tribunal.
10. In respect of the Appellant’s Article 3 claim, the Judge confirmed at [50] having considered the country guidance of BM and others (returnees – criminal and non criminal) DRC CG [2015] UKUT 00293 (IAC), extracting the conclusion of the country guidance panel that DRC nationals who have been convicted of offences in the United Kingdom are not at real risk of being persecuted for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR in the event of returning to their country of origin. At [51], the Judge stated as follows:
“Alex Ntung (one of the Appellant’s country experts relied upon before the Judge) considers that due to his convictions the appellant ‘is likely to be discriminated against or unwelcome…he is most certainly likely to be stigmatised and considered mentally unstable.’ I do not doubt that the appellant will face difficulties on return but I am not persuaded that he would be at risk of persecution or serious harm. I have found the appellant to be a Congolese national therefore any risk as a Rwandan national is irrelevant.”
11. The Judge then went on to consider the Appellant’s Article 8 claim at [51]-[57] finding against the Appellant, namely that he had not demonstrated ‘very compelling circumstances’ under s.117C(6) which were capable of outweighing the significant public interest in his deportation. The Appellant has not sought to appeal against those findings either.
12. Accordingly, the FtT dismissed the Appellant’s appeal.
The Appeal Hearing in the Upper Tribunal
13. The Appellant was granted permission to appeal against the FtT’s decision by a different Judge of the FtT on 27th January 2025. The Appellant pursues two grounds of appeal, both of which attracted permission to appeal.
14. The first ground is that the Judge arguably erred in law by failing to consider relevant country guidance authority on the risk arising for those returned to the DRC, who have Rwandan connections.
15. The second ground of appeal overlaps, in that it concerns the same issue but is premised on the Judge’s arguable failure to give adequate reasons for rejecting relevant expert evidence.
16. The reasons for granting permission are that the Judge noted that it was not in dispute that the Appellant’s parents are Rwandan and the Judge referred to previous judicial findings that the Appellant’s mother is Rwandan ([31]-[32]). The Judge granting permission considered that whilst the Judge found the Appellant to be a DRC national, the Judge did not arguably make a clear finding on the claimed nationality of his parents and the grounds of appeal are at least arguable. The Judge added that given relevant country guidance in VL (risk, failed asylum seekers) DRC [2004] UKIAT 7 and the relevant country expert evidence before the Judge, it was arguably incumbent upon the Judge to consider the extent to which Rwandan connections may give rise to risk or make clear that the Judge did not accept he has any such connections, having found that he is a DRC national.
17. In response, the Respondent did not file and serve a Rule 24 reply.
18. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued and Mr Wain, on behalf of the Respondent, defended the FtT’s decision. At the end of the hearing, we were able to indicate to both parties that we were satisfied that the Judge had made material errors of law and that the FtT’s decision in respect of the Appellant’s Article 3 ECHR claim should be set aside. We provide our reasons for this in detail below, where we have addressed the Appellant’s written pleadings and the parties’ respective oral submissions when setting out our analysis and conclusions. We have also included below directions for the re-making of the Appellant’s appeal against the Respondent’s decision of 3rd January 2023, to which both parties should have particular regard.
Analysis and conclusions
The Appellant’s first grounds of appeal
19. The Appellant submits that he relied on country guidance, in particular the case of VL (Risk, Failed asylum seekers) DRC [2004] UKIAT 7, which concluded that failed asylum seekers with “(n)ationality or perceived nationality of a state regarded as hostile to the DRC (in particular those who have or are presumed to have Rwandan connections or are of Rwandan origin)” are at risk of persecution – see [93]-[94] of that decision.
20. The Appellant adds that it was undisputed that the Appellant’s parents are Rwandan and this was noted by the Judge at [31]. Thus, since the country guidance applies to persons who “have Rwandan connections or are of Rwandan origin”, the Appellant submits that the Judge was obliged to apply it unless there was good reason to depart from it - R (Iran) and ors v SSHD [2005] EWCA Civ 982, endorsing NM and Others (Lone women - Ashraf) Somalia CG [2005] UKIAT 00076 at [140-142], and Practice Direction 12, published on 10 February 2010 with specific reference to paras 12.2 - 12.4. The Appellant further notes that the Respondent had not argued before the Judge that there was any reason to depart from the country guidance.
21. In response, Mr Wain submitted that the issue raised by the Appellant was not argued before the FtT. In this respect, Mr Wain relied on the authority of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) and maintained that the Appellant was seeking to raise an issue not argued at first instance. Mr Wain also relied on the authority of SA v Secretary of State for the Home Department [2025] EWCA Civ 357 in support of an alternative submission that the Appellant should not have been permitted to pursue a claim grounded in a risk of serious harm as a national of the DRC.
22. We are satisfied that the issue of the Appellant’s ethnicity was raised at first instance, with regards to the claimed risks that this would place him under on any return to the DRC. This is clear from para 14 of the Appellant’s skeleton argument dated 4th July 2024. We extract the reference therein in its entirety as it is relatively short and is in our view self-explanatory (emphasis added):
“14. In DRC, A would be at risk of persecution and serious harm as a Rwandan citizen and/or as a person of Rwandan background. A relies on the expert opinion of Alex Ntung, paras 48-53 [AB/38-40] and VL (Risk, Failed asylum seekers) [2004] UKIAT 7. A would also face problems if he is returned without the most up-to-date identity documents and given that he cannot prove his place within an indigenous community. He will therefore struggle to prove his citizenship to local authorities, placing him at risk of ill-treatment: paras 54-56, 60-61 [AB/40-43]. This opinion is corroborated by Dr Manby, although she was only commissioned to comment on A’s nationality. She explains at §§24-27 [SAB3/10-11] how the status of descendants of Rwandan immigrants has been a contentious issue underlying conflict in DRC since independence, how the Rwandan speaking minority has suffered from ‘vicious xenophobia’ and the government have even incited racial hatred, and how those suspected of Rwandan connections are subject to denial of nationality. People without official identity documents whose nationality is doubted on account of their mixed ancestry or Rwandan connections have suffered detention and extortion: §§28, 33 [SAB3/12-13]. Any lengthy period of detention would also expose A to a real risk of torture and/or inhuman and degrading prison conditions (BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293 (IAC), para 88).
23. Returning to the Judge’s decision, as can be seen from the extract above at para 10, there is no reference in the Judge’s consideration of the Appellant’s Article 3 claim to the country guidance of VL nor to the specific argument raised in para 14 of the Appellant’s skeleton argument. We are satisfied that this amounts to a material error of law: it was incumbent on the Judge to decide a ground pursued by the Appellant before them and the Judge did not do so. The Judge limited themselves to considering whether or not the Appellant’s criminal convictions would place him at risk on return to the DRC under Article 3. The Judge also appears to have narrowed the Article 3 assessment to whether or not the Appellant was a Rwandan national, as opposed to someone who has Rwandan ancestry, heritage or ethnicity. On the particular facts of this case, it not having been disputed that at least one of his parents is Rwandan, the finding against the Appellant that he is a national of the DRC, as opposed to his claimed Rwandan nationality, was not therefore fully dispositive of this Appellant’s claim under Article 3 ECHR.
24. We would also briefly add that if the Respondent seeks to raise a Lata point, it would be, at the very least, best practice to do so in the form of a Rule 24 reply so as to give advance notice to the other party of any such issue being disputed. In this appeal, we were assisted by the issue very clearly having been raised in Counsel’s skeleton argument – the same Counsel who appeared before us - and so the lack of notice did not impede on these proceedings. However, this may not always be the case and the lack of notice on other occasions may therefore give rise to unfairness or delays.
25. Lastly, with regards to the Respondent’s reliance on SA, this appeal can be distinguished. As is clear from our consideration of the Appellant’s argument raised at first instance set out above at paras 22-23, the Appellant did raise an alternative argument in the event that the FtT found against him on the issue of his nationality. This was that he would be at risk in the DRC as a person of Rwandan background.
The Appellant’s second ground of appeal – the expert reports
26. As referred to above, the Appellant’s second ground largely overlaps with his first since it concerns the same issue of the Appellant’s Rwandan background through the prism of the country expert relied upon by the Appellant at first instance.
27. The Appellant argues that the Judge failed to consider or failed to give adequate reasons for rejecting the expert evidence concerning the risks that the Appellant would face in the DRC due to his Rwandan background. The Appellant points to the expert evidence that was before the Judge:
◦ In a report, Alex Ntung had opined that Rwandans are targeted because of their ethnicity (para 48), and that armed militia and regular armed forces commit mass atrocities (ibid.), the late president had called for all Rwandans to be exterminated wherever they were found in Congo (para 49), killings of Rwandans were committed live on camera and the perpetrators not brought to justice (para 50), diplomatic relations between the DRC and Rwanda have recently deteriorated and violence against civilians had increased and fuelled hatred of Rwandan people (para 52).
◦ Alex Ntung had concluded that the Appellant would “be persecuted or likely killed” if returned to the DRC. Further, as someone without up-to-date ID documents, the Appellant would be viewed with suspicion and expected to prove his nationality for local security authorities (para 55). If unable to prove his nationality, he would be vulnerable to ill-treatment (ibid., and para 56). The Appellant would be affected because of “his association with Rwanda.”
◦ In a report, Bronwen Manby also explained that even with an ETD, the Appellant would need to prove his nationality to the responsible minister in the DRC, and it is “very likely that AC’s nationality would be frequently questioned in Congo itself, given that both his parents were born in Rwanda and he speaks no national language.” (para 68).
◦ In her view, there was no documentary evidence which would enable the Appellant to establish his nationality in the DRC (ibid., and also paras 28 and 60). If he could not establish his nationality in the DRC, A would be “vulnerable and unable to establish a life in Congo” (para 59).
28. Ms Radford emphasised that Mr Ntung’s opinion and conclusions were all consistent with the Upper Tribunal’s findings in VL. In contrast however, Ms Radford submitted that the closest the Judge came to engaging with this evidence is at [38]-[39] where the Judge stated as follows:
“I accept that the ETD alone may not be sufficient for the issue of identity documents but, as detailed in the addendum report from Alex Ntung; evidence would have been included with the ETD request indicating that the appellant is from the DRC, which has been accepted by the DRC authorities as sufficient to conclude that he is a Congolese national. In contrast I must assume that similar documents were presented to the Rwandan authorities which were rejected.
39. The issue of nationality is one which is subject to ancestry and the laws or codes of the individual countries which are open to interpretation. Alex Ntung states categorically that the authorities in the DRC will not see him as a DRC national as he is a Rwandan national based on his parent's citizenship. However, the DRC authorities have done so in issuing the EDT. Conversely Bronwyn Manby suggests that the appellant may be entitled to both nationalities or indeed may be stateless, but both suppositions are theoretical. ”
29. Ms Radford argues that this does not address the issues raised in Mr Ntung’s report. Whatever evidence may have been disclosed by the Respondent to the DRC authorities – which has not been disclosed to the Appellant – would not necessarily be evidence that would be available to the Appellant on return, nor amount to up-to-date identity documentation.
30. Mr Wain in response argues that the Judge had considered and fully engaged with the evidence of the two country experts and had effectively rejected this at [35]-[40]. Here the Judge confirmed having considered the expert reports ([35]) and the Judge found that whilst both reports provided useful background they had relied on the facts as presented by the Appellant when reaching their respective conclusions ([36]). Further, Mr Wain emphasised that the Judge had given adequate reasons for rejecting the experts’ conclusions at [37], where the Judge noted that two of the sources cited for the issue of the ETD - and whether this would be evidence that the Appellant is Congolese - were not current (2002 and 2019).
31. Whilst Mr Wain is correct that the evidence in the form of the expert reports has been engaged with by the Judge, it is clear from the Judge’s decision that this is in the context of the Judge considering and determining the issue of the Appellant’s nationality, which was in dispute before the Judge. It is not evidence that the Judge returns to when considering the Appellant’s Article 3 claim grounded in a risk on return on account of his Rwandan background, despite its relevance. This is save for the single reference to Mr Ntung’s report at [50] which we have extracted above at para 10.
32. For the reasons above, we are also satisfied that the Appellant’s second ground of appeal is made out. In the circumstances, we are satisfied that the FtT has materially erred in law and the FtT’s decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
33. Both parties agreed that were we to find in the Appellant’s favour in respect of his grounds of appeal, it was appropriate for the Appellant’s appeal to be retained in the Upper Tribunal for re-making. Having considered and applied the guidance in paragraph 7 of the Senior President's Practice Statement as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), we are satisfied that retaining the appeal for re-making in this Tribunal is appropriate considering the limited nature of the remaining fact-finding that is required.
Notice of Decision and Directions
34. The decision of the FtT dated 29th November 2024 contained material errors of law and is set aside.
35. This matter is retained in the Upper Tribunal with the following findings preserved:

(a) The Appellant is a citizen of the Democratic Republic of Congo;
(b) The FtT’s findings concerning the public interest and the circumstances of the Appellant’s criminality set out at [41]-[48];
(c) The FtT’s findings on the Appellant’s private life established in the UK set out at [51]-[52] – for the avoidance of doubt, the FtT’s findings at [53] is not preserved;
(d) The FtT’s findings on the Appellant’s family life established in the UK set out at [55]-[56].
36. The issues that remain to be determined by this Tribunal are:

(a) Whether the Appellant has rebutted the presumption under s.72 of the 2002 Act that he presents a danger to the community;
(b) Subject to the finding under (a) above, whether the Appellant has a well-founded fear of persecution on return to the DRC for a Refugee Convention reason – this flows from the FtT’s finding that the Appellant is a national of the DRC;
(c) Whether the Appellant’s return to the DRC is in breach of his rights under Article 3 ECHR;
(d) Whether the Appellant’s return to the DRC is in breach of his rights under Article 8 ECHR, with the preserved findings set out at para 35 above.
37. Directions were given orally at the hearing on 29th April 2025 and these are replicated below with some amendments to the timeframes provided to each party:

(a) The Respondent is to file and serve, within 21 days (3 weeks) of this decision being sent, copies of the ETC applications in respect of the Appellant to each Consulate (Rwandan and the DRC), together with any documentary evidence and correspondence in respect of the Appellant sent in support of each application;
(b) The Appellant is to file and serve, within 42 days (6 weeks) of the Respondent’s evidence being filed and served as provided for at (a) above, any evidence upon which he wishes to rely in response to any disclosure from the Respondent provided for at (a) above. This is to include whether the Appellant seeks to rebut any presumption under s.72 of the 2002 and the Appellant’s skeleton argument for re-making;
(c) The Respondent is to file and serve, within 21 days (3 weeks) of the Appellant’s evidence being filed and served as provided for at (b) above, a skeleton argument for re-making;
(d) In the event that the Appellant is to attend the re-making appeal hearing, the Appellant’s solicitors are to make any applications that may flow from his planned attendance (e.g. for an interpreter or a production order) no later than 4 weeks before the hearing;
(e) The appeal is to be re-listed for re-making, before UTJ Pinder and DUTJ Howarth, with a time estimate of three hours, on the first available date after 12 weeks from the date of this decision.

Sarah Pinder
Judge of the Upper Tribunal
Immigration and Asylum Chamber
03.06.2025