Case No: C5/2007/2477
Neutral Citation Number: [2008] EWCA Civ 339
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/08609/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 13th March 2008

Before:

LORD JUSTICE KEENE
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Between:

	MK (DEMOCRATIC REPUBLIC OF CONGO)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr P Lewis (instructed by TRP Solicitors) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Keene:

1.	This is a renewed application for permission to appeal from a decision of the Asylum and Immigration Tribunal (AIT).  The applicant is a male citizen of the Democratic Republic of Congo (DRC) who arrived in this country on 26 April 2006.  His asylum claim was rejected by the Secretary of State but he then appealed.  

2.	He claimed to have been a member of the UDPS and to have attended marches and demonstrations in the DRC in the period 1996 to 1998.  The immigration judge who heard the appeal in September 2006 accepted that he was active in the UDPS during this period and that he had been detained in the DRC twice, though for shorter periods than he had alleged.  Immigration Judge Cox found that the applicant had been active at a “relatively low level up to 1998”.  The judge rejected the applicant’s evidence of having been arrested and beaten in 2001, charged with involvement in the killing of President Kabila, sentenced to life imprisonment but then let out in 2006 by a guard who befriended him.  The judge specifically found at paragraph 37 that the applicant had not been active in the UDPS in the DRC since about December 1998, and that he had lived without incident in Kinshasa from then until he left in April 2006.  

3.	The judge referred to expert evidence from Dr Kennes who is an acknowledged expert on conditions in the DRC and who has given evidence before the AIT in country guidance cases.  Amongst other things his report dated 13 September 2006 referred to the DRC embassy in London monitoring opposition activities in the United Kingdom.  He said in that report:

“They may write a file on (the applicant) saying he is a UDPS activist.  This file would then be based on his own declarations in the UK or on participation in demonstrations in the UK.”

4.	Much of Dr Kennes’ report was based on the applicant’s account of having been sentenced to life imprisonment but having been let out.  Immigration Judge Cox noted that Dr Kennes’ comments about the DRC embassy in this country seemed to be “speculative” because the word which he had used was “may”, and the judge went on to say:

“In any event, there is no evidence before me that the Appellant has made any declaration or participated in any demonstrations during his short time here in the UK.”
 
5.	The judge concluded that there was not a real risk of persecution of the applicant, were he to be returned.  An order for reconsideration was then made by the AIT but in July 2007 Immigration Judge Grant concluded that there was no error of law in Judge Cox’s decision.  That of course was the critical first step, and that conclusion was fatal to the reconsideration.  Immigration Judge Grant referred to a more recent country guidance case, MM (UDPS Members -- Risk on Return) Democratic Republic of Congo [2007] UKAIT 00023, which concluded that low level members or sympathisers of the UDPS would not be at real risk on return to the DRC for that reason alone.  That country guidance case, I note, post-dates Dr Kennes’ report, being dated 13 March 2007.  

6.	Those decisions in respect of the applicant are now sought to be challenged in this court, principally on the basis that Immigration Judge Cox failed to distinguish between risk to the applicant while in the DRC and risk on his return, having, it is said, resumed UDPS activities while in the United Kingdom.  Mr Lewis on behalf of the applicant rightly notes the AIT conclusions in the case of AB and BM (DRC) CG [2005] UKIAT 00118 that UDPS activists would be at risk on return.  I note that in the same case the AIT emphasised that the risk on return arises because of the scrutiny of a returnee’s background which then ensues, but that the outcome and consequently the risk ultimately depends on what that background consists of.  It is said that Judge Cox did not give adequate reasons and that the applicant was on the evidence sufficiently active in the United Kingdom.  Mr Lewis accepts that the evidence of his activities here is somewhat limited but he submits that it shows that the applicant is a member and involved in an awareness campaign amongst the Congolese community. 

7.	Mr Lewis criticises the judge’s references to the absence of evidence about attending demonstrations.  He submits that there was sufficient evidence to show in the light of Dr Kennes’ report that the applicant would be at risk.  He would be scrutinised by the authorities on his return and questioned about his activities in the United Kingdom, about which, on the authorities, he cannot be expected to lie.  

8.	I regret to say that I am not persuaded that there is any properly arguable point of law in this case.  First of all, whether the applicant would be regarded as a current activist must depend on the evidence about his activities since his arrival in the United Kingdom.  I say that because the immigration judge’s findings about the applicant’s non‑activity in the DRC since 1998 are unchallengeable and of course that is now some ten years ago.  The judge was entitled to stress the absence of any evidence about the applicant making any declaration or participating in any demonstration in the United Kingdom, not because that was the sole issue about those activities but because that was how Dr Kennes has phrased his point about the embassy’s monitoring in the passage which I have quoted earlier.  It is quite understandable that the judge placed emphasis upon that particular criterion.  

9.	The reality is that the evidence produced before Immigration Judge Cox as to the applicant’s activities in this country was sparse indeed.  Neither the applicant in his own statement in the 2006 hearing nor his brother nor his sister‑in‑law referred to him having been involved in any demonstrations in the United Kingdom or having any sort of profile as an activist.  Mr Kayembe, the regional president of the UDPS in Birmingham, refers to the applicant as being “an active member” but he frankly says he got his information from other senior members in this country and gives no detail whatsoever.  His evidence was wholly unspecific, and I note that he is in Birmingham whereas the applicant is in Sheffield.  The best that can be said on behalf of the applicant about his activities here is that there was a passing reference in a letter from Mr Kalenga.  That letter does refer to the applicant “carrying out awareness campaigns in the Congolese community living in the United Kingdom”.  It is no more specific than that.  Yet Mr Kalenga actually gave oral evidence before Immigration Judge Cox without apparently mentioning this or giving any more detail.  There was nothing therefore before the judge to explain what the applicant was doing, what these awareness campaigns consisted of., for how long they had been going on or when they had been going on or where they had been going on, and nothing to indicate that the applicant might in reality have come to the attention of the DRC embassy.

10.	All the country guidance cases on the DRC make it quite clear that a person has to be more than a failed asylum seeker for there to be a real risk for him on return, and indeed more than just a low level member of the UDPS.  In Dr Kennes’ own words, a person will be at risk if he is perceived as a UDPS activist.  So while it is clear, and I accept, that this applicant will be questioned on his return, the existence or absence of a real risk to him then turns on whether he truly has been active in the United Kingdom on behalf of the UDPS.  It seems to me that the immigration judge was entitled to see the evidence as failing to establish that he truly had been.  In those circumstances the AIT applied the right test and its findings were ones which were open to it on the evidence, and which cannot properly or conceivably be categorised as perverse.  

11.	I conclude that there is no real prospect of a successful appeal in this case and the application must therefore be dismissed.

Order: Application refused