BM v The Secretary of State for the Home Department

The use of a false passport or similar document to leave the Democratic Republic of Congo does not, without more, bring an asylum claimant within the risk category in BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] UKUT 293 (IAC). The guidance must be applied to the individual facts.

The decisive inquiry is whether the claimant is likely to come to the attention of the DRC authorities as a suspected offender. The assessment requires sustainable findings or inferences about matters including publicity, prominence, passport possession and emergency travel document arrangements. The listed matters are not exhaustive.

The appellant appealed against the First-tier Tribunal’s dismissal of his protection appeal. In the earlier country-guidance proceedings, determination of his individual appeal had been left incomplete pending a further hearing.

He claimed that he had left the DRC and entered the United Kingdom using a borrowed French passport supplied by an agent. The First-tier Tribunal had rejected as fabricated the core of his account that he had been persecuted because of his support for the UDPS.

The Upper Tribunal received further evidence about his asserted use of a false passport and the process by which a returning DRC national obtains an emergency travel document. The central issues were whether he had used a false passport and, if so, whether he fell within the document-fraud risk category in the country guidance.

1. Appeal dismissed. The Upper Tribunal affirmed the First-tier Tribunal’s decision. It found that the appellant’s claim to have left the DRC using a false passport was fabricated.

2. The passport account was an integral part of the asylum narrative, not a free-standing issue detached from the allegations of ill-treatment. Although the account had been consistently repeated, the First-tier Tribunal’s emphatic finding that the core claim was fabricated substantially undermined it. The appellant continued to advance the rejected account before the Upper Tribunal, which found that his deception tainted the whole story.

3. On the probabilities, the appellant’s departure from the DRC had been regular and effected with a valid passport. He was therefore unlikely to be questioned about a false passport on return, or to incriminate himself. He would not face detention or treatment contrary to Article 3 ECHR on that basis.

4. In any event, the mere use of a false passport or comparable document does not automatically engage paragraph 119(iv) of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] UKUT 293 (IAC). The expression “suspected offenders” requires a fact-sensitive assessment of whether the DRC authorities are likely to know of the alleged document offence and whether the claimant is likely to come to their attention on return.

5. The fact-finder should make sustainable findings and predictions from primary evidence, inferences or concessions. Relevant matters include publicity, individual prominence, possession of a passport and the ordinary emergency travel document process. These matters are illustrative, not exhaustive.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and affirmed the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the protection appeal, finding the core account of persecution and ill-treatment to be fabricated. No citation was stated in the judgment.