AB (Democratic Republic of Congo) v Secretary of State for the Home Department

In an Article 8 family-life claim, a third party’s refugee status may support the conclusion that the person could not reasonably be expected to return to the country of origin. That is the appropriate starting point unless the tribunal has some basis for supposing otherwise, whether from its own knowledge or material supplied by the respondent. The approach applies even where refugee status was granted as a dependant. It does not transfer the legal burden of establishing the Article 8 claim to the respondent. A tribunal must investigate the significance of the status once properly raised, including any evidence of changed country conditions.

The appellant, a citizen of the Democratic Republic of Congo, appealed against an Asylum and Immigration Tribunal decision dismissing his Article 8 claim. His asylum appeal was not pursued. He was married to a Congolese woman who had refugee status, apparently as a dependant of her sister, and who suffered serious psychological problems following the death of their child. The tribunal concluded that her refugee status and health did not prevent her return to the DRC and applied the pre-existing test requiring truly exceptional circumstances. The central questions were whether the material established a potential interference with family life and how the claim should be reconsidered following Huang.

1. Appeal allowed. The tribunal’s decision on the Article 8 claim was set aside in practical effect by directing a fresh hearing. The appellant’s wife’s refugee status and state of health meant that Article 8 was potentially engaged.
2. The burden of establishing an Article 8 claim remained on the appellant. However, where an appellant relied on a third party’s established refugee status to contend that the person could not reasonably be expected to return to the country of origin, the tribunal should begin from that position unless it had some basis to suppose otherwise. That basis might arise from the tribunal’s own knowledge or from material provided by the respondent.
3. The same approach applied where refugee status had been granted to the third party as a dependant. The basis of the grant might or might not apply to the dependant in her own right. Its significance could be determined only by examining the available material.
4. Fairness and practicality supported this approach. The respondent held the record of the reasons for granting refugee status and could raise any material change in country conditions. An appellant should not ordinarily have to re-prove the third party’s original entitlement, establish its precise basis, or prove positively that conditions had not changed, particularly where the respondent did not suggest otherwise.
5. The tribunal therefore erred by disregarding the wife’s refugee status without further investigation. The evidence concerning her status and health required the Article 8 claim to be reheard under the law laid down by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11.

• Court of Appeal (Civil Division): allowed the appeal and directed a fresh hearing of the Article 8 claim.
• Asylum and Immigration Tribunal: at the fourth hearing, promulgated its decision on 30 November 2006 and dismissed the asylum and Article 8 claims. No appeal was pursued on asylum.