DRC Political Asylum and Navigating the 2023 Country Guidance Update

27 Jun 2023

Andréa Hounto is a current pupil in our Immigration and Family teams. She has had success in the First-tier Tribunal  on the issue of political asylum from the DRC.

Background

A new Country Guidance Case for the Democratic Republic of Congo (“DRC”) was handed down on 22 May 2023 by the Upper Tribunal (Immigration and Asylum Chamber). The Country Guidance case of PO (DRC – Post 2018 elections) (CG) [2023] UKUT 00117 (IAC) seeks to provide an update on the current political landscape in the DRC, following the general elections of 30 December 2018.

In short, the new CG sets out that the change of presidency from former President Kabila to current President Felix Tshisekedi has led to a “durable change to the risk of persecution to actual and perceived opponents” of both the former and current president [headnote paragraph 1].

The main changes set out by the new Country Guidance can be summarised as follows:

1. Upon return to the DRC, actual or perceived opponents of former President Kabila are not at real risk of persecution based on such opposition.
2. Rank-and-file members of current opposition political parties or political opponents of President Tshisekedi or the Sacred Union are not reasonably likely to be at real risk.

Furthermore, the new country guidance has led to two of the previous DRC CPINs being revoked:

1. Country Policy and Information Note, Democratic Republic of Congo: Opposition to government, Version 3.0, November 2019
2. Country Policy and Information Note, Democratic Republic of Congo: Unsuccessful asylum seekers, Version 4.0, January 2020

Impact on DRC Appellants

The new country guidance makes it more difficult for members and supporters of certain opposition groups to solely rely on their membership of an opposition group as the basis for their asylum claim, particularly when considering real risk of persecution upon return.

Importantly, political opponents of former President Kabila are deemed to no longer be at risk based on their opposition to Kabila. Further, those opposed to current President Tshisekedi will need to demonstrate, at the very least, that they have a sufficient profile such that they will be at risk upon return.

As such, the case of AB and DM Democratic Republic of Congo CG [2005] UKAIT 00118, endorsed in MK DRC CG [2006] UKAIT 00001 and re-affirmed in MM (UDPS members – Risk on return) Democratic Republic of Congo CG [2007] UKAIT 00023, as far as it relates to the risk of persecution of UDPS members and activists, should no longer be followed.

Relevant Evidence

Whilst the CG case does make it significantly harder for rank-and-file members of political opposition groups to demonstrate “real risk”, the term “sufficient profile” provides an element of subjectivity as to the evidence Appellants can rely upon.

Whilst having a high-profile role within a political group is advantageous, those with a lower profile may be able to cross the threshold (“sufficient profile”) by demonstrating that they are known to the DRC authorities for their political activity and on the lower standard of proof would consequently be at risk upon return. The perception by DRC state agents is the key factor. Pertinent evidence includes, amongst others:

1. Evidence of previous arrests. Previous interactions with the authorities increase the likelihood that an Appellant is already known to the authorities and will be arrested upon return, particularly if they escaped without being released.
2. Social media usage. Social media posts denouncing the DRC authorities, and/or photographs of the Appellant’s political activity in the DRC, may be relevant if they can be shown to have come to the attention of state authorities. Representatives will want to have regard to the requirements in XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 00023 relating to the need to provide the “full download” of social media evidence.
3. Continued political activity in the UK. If an Appellant can evidence that they have been politically active in the UK and that the DRC authorities are aware of those activities, this will add weight to their claim. APARECO is currently a group that is still being heavily surveilled. The country guidance states at paragraph 45: “… in November 2020, APARECO warned its members about 200 spies who had been recruited in the Congolese diaspora by the ANR to report.” There is evidence that those who have a significant and visible profile within APARECO (leaders, office bearers and spokespersons) may be at risk upon return to the DRC.
4. Corroboration from party leaders. Letters in support from high-profile members of the political group, either in the DRC or in the UK, confirming the Appellant’s membership will strengthen the Appellant’s position. Ideally, the person in question should also be available to attend the appeal hearing to give evidence.
5. Evidence of attendance in a prominent role at protests outside the Embassy. If an Appellant can show that they would inevitably be seen by state security forces protesting in public, this may demonstrate that they have a sufficient profile.
6. Third-party evidence. Family members and friends who are still living in the DRC and have been threatened by the authorities due to the Appellant’s political activity – in the DRC or in the UK – provide another persuasive method for Appellants to demonstrate real risk upon return.

Monitoring of Political Opponents

As to paragraphs 2 and 3 above, the new CG suggests that there is insufficient evidence to suggest that political opponents are being monitored online by the authorities. At paragraph 100, the CG case sets out the following:

“Dr Kodi said that the ‘monitoring’ of individuals is, he imagines, undertaken by several people. He said that the Embassy may have some capacity to undertake monitoring and that supporters of the current regime are very active on-line and react to any opposition views

expressed. His evidence was that there are many YouTube channels that are critical of the regime and they regularly complain of attacks when they air criticism. He said that the DGM has a permanent presence at the Embassy and information is likely to be fed back to the authorities. Dr Kodi was unable to explain who it is that undertakes the monitoring, or how the targets for any monitoring are identified or chosen. He said that it would not surprise him if there was monitoring of the diaspora from the DRC. When pressed about his expertise to support his claim in his report that someone with a basic computer or even a smart phone and basic knowledge of the internet can carry out monitoring, Dr Kodi explained that when he refers to ‘monitoring’ , he is referring to an individual being able to watch an open forum like YouTube. He does not suggest that it is anything more sinister such as hacking of social media accounts or email.” [emphasis added]

The suggestion that the surveillance of social media activity and YouTube videos is not ‘sinister’ and does not put Appellants at risk is problematic. In contrast to the position in the country guidance, the Court of Appeal in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 36 established that repressive regimes have an interest in investigating their opponents. It was held at paragraph 18:

 “Where, as here, the tribunal has objective evidence which “paints a bleak picture of the suppression of political opponents” by a named government, it requires little or no evidence or speculation to arrive at a strong possibility – and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups.” [emphasis added]

There appears to be no reason that Appellants’ representatives should not continue to rely upon the proposition in YB Eritrea when making submissions about whether the protests that Appellants have undertaken have created for them a sufficient profile.

Prison Conditions

The objective evidence about prison conditions in the DRC has now changed with the revocation of the CPINs on failed asylum seekers and political opponents, respectively.

Nonetheless, Appellants may wish to rely on the objective evidence to highlight the situation prior to May 2023. For example, the evidence on returnees suggested that human rights violations remain a concern – particularly as Kabila retains some influence (see the withdrawn CPIN Opposition to Government, version 3.0, Nov 2019 at paras 4.3.7-4.3.9). Notably, it was held in the country guidance decision (BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293 (IAC) (2 June 2015), [at para 13]) that, “a period of detention in a DRC prison exceeding approximately 1 day would violate the detained person’s rights under Article 3 ECHR”.

Appellants may rely on this to persuade the Tribunal that returning an Appellant to the DRC would result in a breach of their Article 3 ECHR rights by way of inhumane prison conditions and torture including sexual violence at the hands of the authorities. The withdrawn CPIN on Opposition to Government provides pertinent evidence of this.

Conclusion

Ultimately, each case will continue to be assessed on the particular circumstances. However, the new country guidance undoubtedly makes it harder for Appellants to succeed in DRC asylum claims.

 

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