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

Permission to appeal may properly be granted where there are substantial grounds for alleging that a reconsidering tribunal misunderstood the scope of the issues remitted to it. That may include reopening primary facts which had previously been accepted, substituting its own assessment for relevant expert evidence, and failing to account for a pending authoritative decision bearing directly on risk on return. The grant of permission does not determine the merits of those grounds.

The appellant, a national of the Democratic Republic of Congo with alleged mixed Rwandan or Tutsi origins, sought to challenge the refusal of her asylum and human-rights claims. Her primary factual history had previously been accepted, although her persecution claim had been rejected. Following an error of law and a second-stage reconsideration, Immigration Judge Lever appeared to have redetermined her immigration history and origins, and reached conclusions differing from the expert evidence.

The appeal also raised the significance of an impending decision in BK (Democratic Republic of Congo) v SSHD concerning the risk faced by failed asylum seekers returning to the Democratic Republic of Congo. The issue before the Court was whether permission should be granted.

1. Permission granted. The Court considered that there were strong grounds for challenging the reconsideration decision.
2. The reconsidering immigration judge may have misunderstood the effect of the earlier order and treated all aspects of the appellant’s immigration history and origins as requiring redetermination. The proper scope of the reconsideration appeared instead to concern the matters remaining in dispute, including risk on return by reason of the appellant’s origins and, alternatively, her Article 8 claim.
3. There were arguable grounds concerning the substitution of the immigration judge’s own view of the appellant’s ethnicity for that of the expert, particularly where the primary facts had previously been accepted.
4. The forthcoming decision in BK (Democratic Republic of Congo) v SSHD was potentially significant to the assessment of risk on return. Its outcome might affect whether it was proportionate to pursue the remaining grounds or whether a full reconsideration would be required.
5. The Court granted permission and permission for costs in court. Order: application granted.

• Asylum & Immigration Tribunal: Following an earlier decision accepting the appellant’s primary facts but rejecting her persecution claim, a later reconsideration decision rejected her revived asylum claim. The reconsideration decision was found to disclose an error of law.
• Court of Appeal (Civil Division): Permission to appeal was granted on grounds concerning the scope of reconsideration, the treatment of expert evidence, and the significance of the pending decision in BK (Democratic Republic of Congo) v SSHD.