PO (DRC) v The Secretary of State for the Home Department

Country guidance on risk on return to the Democratic Republic of Congo following the 2018 presidential election. Actual or perceived opponents of former President Kabila are not generally at real risk. Rank-and-file opponents of President Tshisekedi or the Sacred Union are not generally at real risk without more. Risk for opponents of President Tshisekedi requires a fact-sensitive assessment of profile, political alignment, activities, frequency and the authorities’ knowledge. High-profile opponents may be at risk. UDPS members and activists are no longer at risk on the former guidance. Significant and visible APARECO figures may remain at risk, but CSG members and activists are not at risk merely because of their association. Failed asylum seekers are not at risk simply because they are failed asylum seekers.

The appellant, a national of the Democratic Republic of Congo, claimed asylum in the United Kingdom after alleged political activity in the DRC and later sur place activity as President of the Women’s Liverpool branch of the Congolese Support Group. Her fresh claim was refused and her appeal was dismissed by the First-tier Tribunal. Upper Tribunal Judge Kebede set aside that decision for material error of law, preserving findings about the appellant’s activities and lack of genuine political conviction.

The Upper Tribunal reconsidered country guidance concerning the effect of the 2018 election and the formation of the Sacred Union, risk to opponents of former President Kabila and President Tshisekedi, UDPS activists, APARECO and CSG members, and failed asylum seekers.

1. Durable change. The Tribunal found that the change in Presidency following the 30 December 2018 election, reinforced by the formation of the Sacred Union in April 2021, constituted a durable political change. A departure from country guidance requires material circumstances to have changed and the change to be well established evidentially and durable.
2. Opponents of President Tshisekedi. Actual or perceived opponents of former President Kabila are not at real risk on return. Rank-and-file members of opposition parties or political opponents of President Tshisekedi or the Sacred Union are generally not reasonably likely to be at real risk. The relevant assessment is fact-sensitive and includes the individual’s profile, political affiliation, the position of the relevant party, the nature and frequency of opposition activity, and the extent to which the authorities know of it. Simply being a journalist, media worker or blogger is insufficient without a sufficiently high-profile opposition profile.
3. Specific groups. Members of the MLC and Ensemble pour le Changement are no longer at risk of being targeted. UDPS members, supporters and activists are no longer at risk, and the relevant guidance in AB and DM [2005] UKAIT 00118, MK DRC [2006] UKAIT 00001 and MM (UDPS members) [2007] UKAIT 00023 should no longer be followed insofar as it concerns UDPS risk. Persons with a significant and visible profile within APARECO may still be at risk; rank-and-file members are unlikely to be.
4. CSG and failed asylum seekers. Leaders, members and activists associated with the CSG are not at risk on account of actual or perceived political opinion or UK sur place activity. The guidance in BM and Others [2015] UKUT 00293 concerning failed asylum seekers remained applicable. A failed asylum seeker is not at risk merely because of that status. The evidence did not establish systematic monitoring of the UK diaspora or a risk arising from the absence of a voter card.
5. Disposition. The appellant’s preserved CSG activity did not establish a real risk on return. Her appeal was dismissed.

• First-tier Tribunal: The appellant’s appeal was dismissed by First-tier Tribunal Judge Devittie.
• Upper Tribunal: Upper Tribunal Judge Kebede found a material error of law and set aside the First-tier Tribunal’s decision, preserving specified factual findings. The present panel reconsidered risk and dismissed the appeal.