RD (Democratic Republic of Congo) v Secretary of State for the Home Department

Lord Justice Moses:

1. I ought, since I am differing from the decision of Tuckey LJ, to explain the basis upon which I am giving permission. The primary question is whether this appellant, on a second-stage reconsideration, would be at risk on return to the Democratic Republic of Congo by reason of either her mixed ethnic origins, a mixture of Rwandan or Tutsi, or Rwandan origins. The difficulty has arisen that originally the primary facts relating to her life before she came to the United Kingdom were accepted by Immigration Judge de Haney in a decision which ought to be in the main bundle but was dated 17 February 2005, although her claim of risk of persecution was rejected. She was allowed to stay as a matter of discretion until she was 18, and she then sought to revive her claim to asylum. This was rejected, but that rejection disclosed what was found to be an error of law; the Secretary of State did not dispute that.

2. As the case continued, there remained a proper basis for contending that the primary facts were not in dispute, and that all that needed to be considered was the evidence relating to risk on return by virtue of her origins, or alternatively her Article 8 claim. But unfortunately by the time the matter came for consideration by Immigration Judge Lever, he appeared to be under the impression that all the aspects of her immigration history and her origins were to be redetermined. There are strong grounds for believing that that was an error, no doubt induced by the somewhat ambiguous order of Immigration Judge Conway ordering the reconsideration. Certainly Tuckey LJ seems to have been under the impression that it was agreed that all matters should be redetermined, and, as I have said, there are grounds for believing that he was misled in that respect.

3. There are grounds for challenging on that basis the fresh findings that were made; further, the substitution of the immigration judge’s own views as to ethnicity for those of the expert; and finally, and significantly, that the question of the risk on return of failed asylum seekers is due to be heard in a case called BK (Democratic Republic of Congo) v SSHD later this month.

4. For all those reasons I shall give permission. Should BK prove successful from the applicant’s point of view, then those advising this appellant will have to consider whether it is worth pursuing the other matters or whether, if everything has to be reconsidered, then all the matters that remain in dispute can be redetermined. I give permission for costs in court. Order: Application granted.