Case No. UKUT-00627(IAC)

RATION ACTS Before UPPER TRIBUNAL JUDGE STOREY UPPER TRIBUNAL JUDGE CANAVAN Between THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant and LOKOLA LOKOMBE (ANONYMITY DIRECTION NOT MADE) Respondent Representation : For the Appellant: Mr T Melvin, Home Office Presenting Officer For the Respondent: No appearance, by or on behalf of the respondent The fact that there was an August 2013 report providing the answers given by 8 EU/Western countries documenting the return of a significant number of FNOs to the DRC without there having been any allegations of problems on return (except ones from Belgium, none substantiated) was a very significant piece of evidence that was not negated by the fact that in Kinshasa there is no airport monitoring carried out by outside governments or NGOs. DECISION AND REASONS 1. The respondent (hereafter the claimant) is a national of Democratic Republic of Congo (DRC). His appeal against a decision refusing to revoke a deportation order against him as a foreign criminal was allowed by First-tier Tribunal Judge Miles on Article 3 grounds in a decision sent on 19 September 2014. The appellant (hereafter the Secretary of State or SSHD) was granted permission to appeal. Despite being notified of the hearing of this appeal the claimant did not attend. Over an hour after the time fixed for the hearing (14.00 hours) Customer Services received a call saying the claimant would arrive in 20 minutes. He failed to arrive either within that time or later (a subsequent check revealed he had made no further contact or effort to explain his failure to attend). In such circumstances we decided to exercise our discretion to proceed with the hearing. We took into account that the claimant's representatives had submitted a “Rule 24 Response” so we were apprised of both sides of the argument. There is no challenge in this case to the dismissal by the FtT judge of his case based on his particular history and political profile. These were resoundingly rejected by the judge at [31] and [55] – [56]. The only basis on which the judge allowed the appeal was that he considered the claimant to be at risk on return simply because he was a criminal deportee: see [31] and [54]. 2. The reasons the judge gave for allowing the appeal on Article 3 ECHR grounds were essentially (1) that in R (on the application of P) v SSHD [2013] EWHC 3879 (Admin), Phillips J had concluded that criminal deportees would be at risk on return to the DRC and had done so after a comprehensive assessment of the evidence before him; (2) that Phillips J found that the evidence before him made clear that criminal deportees would be interrogated upon arrival and it would come to light that they had criminal convictions which would in turn lead on to ill treatment; (3) the SSHD had not appealed against Phillips J’s judgment; (4) the further evidence available (which included the February 2014 Home Office DRC Policy Bulletin 1/2014), although not identifying that there had been any problems for returned deportees known to have criminal convictions outside the DRC, continued to show that there was a real risk to such persons in practice; (5) there was no evidence that the statements made by the Congolese Ambassador to the UK in his letter to Mary Glindon MP in August 2013 had been withdrawn and they disclosed there would be a real risk on return for Foreign National Offenders ( FNOs). 3. In her written grounds of appeal the SSHD maintained that the judge had incorrectly interpreted the case of P and the February 2014 Bulletin. In relation to the judge’s purported reliance on P , he failed to note that it was a judicial review decision about whether P’s further representations could be accepted as a fresh claim, not a decision on the merits and that it should have been known to the judge that the Upper Tribunal had a pending country guidance case to seek to resolve the issues raised by P . 4. In relation to the February 2014 Bulletin, it was argued that the judge was wrong to place excessive or determinative weight on the fact that none of the countries that had replied to the questionnaire monitored returnees at the airport. 5. In the claimant’s Rule 24 Response the point is made that even though P was not country guidance that did not prevent the judge from attaching weight to its findings and the judge had in any event evaluated the further evidence to hand. The fact that there was pending country guidance did not disqualify the judge from proceeding to decide the appeal on the evidence before him. As regards the judge’s treatment of the February 2014 Bulletin, the quote at paragraph 4.13 which the SSHD herself set out in her grounds of appeal (“With regards to returnees with criminal records and/or outstanding warrants of arrest, if the authorities are aware that the person is returning they will be detained”) demonstrated that the Bulletin was not at variance with the judge’s assessment. 6. In written submissions produced for the hearing Mr Melvin relied on the original grounds and drew attention to the fact that the Upper Tribunal had now promulgated country guidance on this issue in BM and Others (Returnees – criminal and non-criminal ) DRC CG [2015] UKUT 00293 (IAC). Analysis 7. As we pointed out to Mr Melvin, our initial task is confined to deciding whether the First-tier Judge materially erred in law and in that context we cannot have regard to the post-decision findings of fact made by the UT in BM & Others . 8. As regards the SSHD’s first ground, we consider it may have had force if the judge had simply sought to rely on the findings made by Phillips J or had treated those findings as authoritative in the same way as a country guidance case, especially since Phillips J himself emphasised that his judgment was not country guidance. However, the judge did not treat P in that way. The judge’s reason for attaching significant weight to Phillips J's findings – namely that they were based on comprehensive evidence relating to the general issue of risk on return to FNO deportees – was an entirely rational one. 9. The SSHD avows that to have attached significant weight to P was to overlook that it was a decision on a further representations being examined on public law grounds only. There is of course a clear distinction between findings of fact in a statutory appeal on the merits and findings of fact in a judicial review case dealing with a challenge to the legality of a decision where all that has to be established is that there is a realistic prospect of success of a hypothetical tribunal judge, taking the new materials together with the old, finding in the applicant’s favour. There is also higher court authority for the view that in addressing matters relating to risk factors or categories facing returnees to other countries a judge hearing a judicial review application should proceed with caution: In