The Secretary of State for the Home Department v Lokola Lokombe

A tribunal may attach significant weight to careful and comprehensive judicial fact-finding on country conditions in judicial review proceedings, even though such findings are not country guidance and must be approached with caution.

Evidence from several returning states that substantial numbers of foreign national offenders have been returned without substantiated complaints of ill-treatment is highly significant. Its probative value is not negated merely because those states, governments or NGOs do not monitor every returnee at the airport.

The claimant, a national of the Democratic Republic of Congo, appealed against the refusal to revoke a deportation order made against him as a foreign criminal. The First-tier Tribunal allowed his appeal on Article 3 grounds, finding that he faced a real risk solely because he would return as a criminal deportee.

The Secretary of State appealed. The challenge concerned the First-tier Tribunal’s reliance on R (on the application of P) v SSHD [2013] EWHC 3879 (Admin) and its treatment of the February 2014 country bulletin and the August 2013 information from other states about returns to the DRC.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal had materially erred in law. Its decision was set aside and the Upper Tribunal re-made the decision by dismissing the claimant’s appeal.

2. The First-tier Tribunal was entitled to give significant weight to the careful country-conditions findings in R (on the application of P) v SSHD [2013] EWHC 3879 (Admin). Although a judicial review decision was not country guidance and had been reached under a public-law fresh-claim test, the findings were based on a comprehensive assessment of relevant evidence. The judge in P had also recognised their interim and cautious character.

3. However, the First-tier Tribunal’s treatment of the February 2014 bulletin was legally flawed. The August 2013 material recorded replies from eight states. They disclosed returns of significant numbers of foreign national offenders without allegations of problems on return, save unsubstantiated Belgian allegations. The First-tier Tribunal incorrectly treated the absence of airport monitoring as determinative and overlooked the Belgian investigation.

4. The absence of formal airport monitoring did not deprive that evidence of substantial weight. It was reasonably likely that a deportee encountering problems would communicate them to family, representatives, NGOs or relevant authorities. The First-tier Tribunal had made clear that a different assessment of this evidence would have led it to dismiss the appeal; the error was therefore material.

5. On re-making the decision, the Upper Tribunal applied BM and Others (Returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293 (IAC). There was no rational basis to distinguish the claimant from other foreign national offender returnees and no basis to depart from that country guidance.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and the claimant’s appeal was dismissed on re-making.
• First-tier Tribunal: The claimant’s appeal against the refusal to revoke a deportation order was allowed on Article 3 grounds in a decision sent on 19 September 2014.