P (DRC), R (On the Application Of) v Secretary of State for the Home Department

Country guidance does not have an implied expiry date. A later court must assess whether subsequent evidence undermines its continuing reliability, having regard to the specialist status of country guidance and the passage of time. Anonymous and untested accounts may carry limited weight when compared with an objective fact-finding report and evidence from experienced international organisations. A criminal deportee returned to the DRC faces a real risk of detention and Article 3 ill-treatment where the authorities are likely to identify the person’s criminal status. It is irrational to treat the absence of documentary identification as eliminating that risk when returnees are questioned and may be investigated. A claim presenting that risk cannot be certified as clearly unfounded.

R, a failed asylum seeker, challenged the refusal to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. He relied principally on evidence concerning the treatment of failed asylum seekers returned to the DRC and sought to displace the country guidance in BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098.

P, who was subject to automatic deportation following criminal convictions, challenged a certificate under section 94(2) of the Nationality, Immigration and Asylum Act 2002. The central issues were whether failed asylum seekers generally, or criminal deportees in particular, faced a real risk of Article 3 ill-treatment on return.

1. R’s claim was dismissed. The Administrative Court must approach a request to depart from country guidance with caution because such guidance is produced by a specialist tribunal following review of the available country material. It has no automatic expiry date, but the passage of time is relevant when assessing whether later evidence has made it unreliable. The evidence did not justify departing from BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098.

2. The anonymous accounts in the Unsafe Return report were insufficiently detailed and had not been independently tested. The later fact-finding mission was objective, transparent and based on identified sources. Properly assessed, it showed that the substantial risk of ill-treatment concerned persons perceived to be political or military opponents of the DRC government, rather than failed asylum seekers as such. The Secretary of State’s decision to maintain the existing country guidance was rational.

3. The correct approach to a fresh claim under paragraph 353 was that stated in WM (DRC) [2006] EWCA Civ 1495. The Secretary of State had to ask whether an adjudicator applying anxious scrutiny would consider that the claimant faced a real risk on return, and had to evaluate the facts and legal conclusions with anxious scrutiny.

4. P’s position was materially different. The evidence established that criminal deportees, if identified, would be detained for an indeterminate period and that detention conditions were likely to contravene Article 3. Returnees were questioned about their status, and the DRC authorities were specifically seeking to identify criminal deportees. The absence of documentary identification in the re-documentation process therefore did not remove the risk.

5. It was irrational to assume that P could safely conceal his convictions by lying. The practical difficulty of predicting whether interrogation would expose the truth created a real and substantial risk of further imprisonment and ill-treatment. Applying RT (Zimbabwe) [2013] 1 AC 152 and the practical considerations identified in that decision, P’s claim could not properly be certified as clearly unfounded.

6. The decision of 24 April 2013 certifying P’s application to revoke the Deportation Order as clearly unfounded was quashed. The court expressed the view that criminal deportees to the DRC had a strong claim for asylum and should not be deported unless the risk was shown no longer to arise generally or in the individual case.

The judgment records no earlier appellate decision in this litigation. R’s claim was transferred to the Upper Tribunal and heard with P’s claim by Mr Justice Phillips sitting also as a Judge of that Tribunal.