Kalombo, R (on the application of) v Secretary of State for the Home Department

For paragraph 353 of the Immigration Rules, a claimed Rwandan connection is a relevant risk category, but it is not a hard-edged rule that every person with any such connection faces persecution or Article 3 ill-treatment on return to the Democratic Republic of Congo. The decision-maker must assess the nature and extent of the connection as part of the claimant’s whole profile and ask whether the claimant would be perceived as hostile to the regime or as Rwandan. A fresh-claim decision must apply the country guidance correctly. The question is whether there is a realistic prospect that an adjudicator, applying anxious scrutiny, would find a real risk of persecution or Article 3 ill-treatment, rather than whether the Secretary of State considers the claim likely to succeed.

The appellant, a Congolese national of mixed Congolese and Rwandan family background, challenged the Secretary of State’s refusal to treat further submissions as a fresh asylum and human rights claim under paragraph 353 of the Immigration Rules. His original asylum claim had been rejected by an adjudicator in 2003 on credibility grounds.

The further submissions relied on subsequent country guidance, including VL (DRC) and AB and DM (DRC), concerning risks to persons with Rwandan connections or origins. The Secretary of State concluded that Rwandan connections alone did not create risk and that the appellant lacked additional political or military factors. Cranston J dismissed the judicial review application, holding that this was a permissible interpretation of the guidance. The central issue was whether that interpretation was correct.

1. The appeal was allowed, judicial review was granted, and the Secretary of State’s decision dated 25 January 2007 was quashed.
2. The country guidance did not establish that every person with any Rwandan connection or origin automatically faced a real risk of persecution or Article 3 ill-treatment. The expressions Rwandan connections and Rwandan origin were broad and required assessment of the nature and extent of the connection within the claimant’s whole profile. The critical question was whether the person would be perceived as hostile to the regime because of being Rwandan or perceived as Rwandan.
3. Equally, the guidance did not require a claimant to establish two separate factors, with Rwandan-ness being insufficient unless accompanied by political, military or another additional factor. Rwandan-ness was recognised as a risk category, although its application depended on the claimant’s profile and perception by the authorities or local community.
4. The Secretary of State’s letter wrongly stated that a claimant would not face adverse attention purely as a result of Rwandan connections. That misdirected the assessment by treating an additional political or military factor as necessary. Cranston J therefore asked the wrong question in treating the issue as whether the Secretary of State’s interpretation was permissible rather than whether it was correct.
5. On reconsideration under paragraph 353, the relevant question is whether there is a realistic prospect that an adjudicator, applying anxious scrutiny, would find a real risk of persecution or Article 3 ill-treatment. The court declined to declare that the solicitors’ letter itself constituted a fresh claim, leaving the Secretary of State to make a fresh decision.

Sullivan LJ agreed, emphasising that the question was whether the nature and extent of the appellant’s Rwandan connections would cause him to be perceived as Rwandan and exposed to generalised hostility from local communities against which the authorities were unlikely to protect him. Sir Anthony Clarke agreed with both judgments.

• Court of Appeal (Civil Division): Appeal allowed; permission to apply for judicial review granted; judicial review granted; the Secretary of State’s decision of 25 January 2007 quashed.
• Administrative Court, Queen’s Bench Division: Cranston J dismissed the application for judicial review.
• Adjudicator: The appellant’s original asylum appeal was dismissed in a determination promulgated on 5 February 2003.