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

In assessing risk on return, the question is not whether a person was once associated with an opposition party, or is merely a failed asylum seeker or low-level member. The material question is whether the evidence shows that the person is currently perceived as an activist, including through activities undertaken in the United Kingdom. Where return is likely to involve scrutiny of the person’s background, the risk depends on what that scrutiny reveals. An immigration judge may place particular weight on the absence of specific evidence of demonstrations, declarations or other activities said to have brought the person to the attention of the foreign authorities, provided the evidence is assessed in context. Findings that are open on the evidence and are not perverse do not disclose an error of law.

The appellant, a citizen of the Democratic Republic of Congo, claimed asylum after arriving in the United Kingdom in April 2006. His account of past UDPS activity and detention was partly accepted, but the immigration judge found that he had not been active in the UDPS in the DRC since about December 1998 and had lived in Kinshasa without incident until departure.

The Asylum and Immigration Tribunal ordered reconsideration but concluded in July 2007 that the first immigration judge had made no error of law. The appellant renewed his application for permission to appeal, arguing that the judge had failed to distinguish risk in the DRC from risk on return and had inadequately assessed evidence of renewed UDPS activity in the United Kingdom. The central issue was whether the evidence established a real risk on return arising from his current perceived political activity.

1. Application refused. There was no properly arguable point of law and no real prospect of a successful appeal.
2. Risk on return depended on whether the appellant would be regarded as a current UDPS activist. That assessment turned principally on evidence of his activities in the United Kingdom, because the findings that he had not been active in the DRC since 1998 were unchallengeable.
3. The immigration judge was entitled to emphasise the absence of evidence that the appellant had made declarations or participated in demonstrations in the United Kingdom. Those matters were not the sole possible indicators of activity, but they were the particular indicators identified in Dr Kennes’s evidence concerning monitoring by the DRC embassy.
4. The evidence of United Kingdom activity was sparse and unspecific. It did not explain the alleged awareness campaigns, their nature, duration, timing or location, or show that the appellant had come to the embassy’s attention. The judge was entitled to find that the evidence did not establish genuine current activity on behalf of the UDPS.
5. The country guidance required more than failed-asylum-seeker status or low-level UDPS membership before a real risk on return arose. The AIT had applied the correct test, its findings were open to it on the evidence, and they could not properly be characterised as perverse.

The application was dismissed. Order: Application refused.

• Court of Appeal (Civil Division): refused the renewed application for permission to appeal from the Asylum and Immigration Tribunal.
• Asylum and Immigration Tribunal: after an order for reconsideration, Immigration Judge Grant concluded in July 2007 that Immigration Judge Cox had made no error of law.
• Immigration appeal: Immigration Judge Cox rejected the asylum claim on the evidence, accepting some past UDPS activity and detention but finding no activity in the DRC since about December 1998 and no real risk on return.