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

Country-guidance risk categories do not operate automatically. A tribunal must give full regard to the guidance while assessing the particular applicant’s ethnicity, background, profile and evidence as a whole. Terms such as Rwandan connections and Rwandan origins require factual analysis. For mixed ethnicity, the relevance of the ethnic identity of the applicant’s parents should be considered. A lack of past persecution is relevant evidence about future risk, but does not determine it. Where a tribunal has failed to consider material evidence bearing on risk, and factual assessment remains necessary, the Court of Appeal should remit the case rather than grant asylum itself.

This was an appeal from an Asylum and Immigration Tribunal determination dated 19 June 2007, following an earlier determination dated 8 February 2006 and an order for reconsideration. The tribunal rejected most of the appellant’s account of detention and threats, but accepted that he was a citizen of the Democratic Republic of Congo and had a Tutsi father.

The appellant argued that his father’s Rwandan nationality and Tutsi identity automatically brought him within a country-guidance risk category. The Secretary of State accepted an error of law but submitted that individual risk assessment and remittal were required. The central issue was whether the guidance required an automatic grant of asylum or a broader assessment of the particular applicant.

Lord Justice Pill gave the judgment. Lord Justices Keene and Maurice Kay agreed.

1. Disposition. The appeal was allowed, but only to the extent of remitting the case to the Asylum and Immigration Tribunal. The tribunal had failed to address significant evidence that, on return, the immigration authorities would know that the appellant’s father was Rwandan and Tutsi. That information could materially affect the assessment of risk. The Court of Appeal could not grant asylum because the factual assessment remained necessary.
2. Country guidance. AB and DM (Risk Categories Reviewed – Tutsis added) DRC CG [2005] UKIAT 00118 identified continuing risk categories, including persons with Rwandan connections or origins. The guidance was not to be read mechanically. The expressions connections and origins required analysis in the context of the individual applicant. The guidance also required consideration, in cases of mixed Tutsi ethnicity, of the ethnic identity attributed to the applicant’s father or mother. The requirement for careful analysis of ethnicity, background and profile applied to the first category as well as the second.
3. Risk assessment. Evidence had to be considered as a whole. The appellant’s life before departure, including the absence of harassment or prior persecution, was relevant evidence bearing on future risk. It was not determinative. The tribunal had to reassess the risk in light of all the accepted facts and the information available to the authorities.
4. Remittal. Although only the first ground had been argued at the hearing, the Secretary of State agreed to remittal on all three grounds. In fairness to the appellant, who had understood the other grounds to remain live, the court remitted all three grounds for reconsideration and made no further order. The later decision in BK (Failed asylum seekers) DRC CG [2007] UKAIT 00098 showed that the guidance had still been applied, but it was not for the Court of Appeal to determine whether updated guidance should be issued.

• Court of Appeal (Civil Division) [2008] EWCA Civ 457: appeal allowed and remitted to the Asylum and Immigration Tribunal on all three grounds.
• Asylum and Immigration Tribunal: determination dated 19 June 2007, following an earlier determination dated 8 February 2006 and an order for reconsideration. The tribunal made adverse credibility findings, accepted the appellant’s DRC citizenship and Tutsi paternal connection, and assessed risk by reference to country guidance.