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

This is a country guidance decision regarding the risk on return to the Democratic Republic of Congo (“DRC”). For clarity, this decision is set out in 15 parts.

The appellant is a national of the DRC. We are able to adopt much of the background to the appeal before us from the Agreed Statement of Facts that was filed at an earlier stage in the appeal.

The issues that we consider in this decision have been refined and are agreed by the parties.

In readiness for the hearing before us, the parties provided the Tribunal with a wealth of background material that is set out in a Consolidated Hearing bundle that comprises of some 2705 pages. We were also provided with a further ‘Addendum bundle’ page numbered 2706 to 4364. We have had regard to all of the material relied upon by the parties when coming to our conclusions, whether referred to specifically in the body of this decision or not.

The risk on return faced by political opponents and failed asylum seekers has been considered by the Tribunal previously. As we are invited to depart from the extant guidance, it is helpful for us to set out the relevant guidance in chronological order.

The two appeals in AB and DM (Risk categories reviewed – Tutsis added) DRC CG [2005] UKIAT 00118 (“AB and DM”), raised common issues of fact relating to the situation in the DRC as to the risk categories at that time (July 2005) and in particular, whether and to what extent those of Tutsi ethnicity were at real risk of persecution and more generally what the current risks were for failed asylum seekers. The Tribunal concluded that essentially the risk categories were those with an ethnic, political or military profile in opposition to the government. The assessment of risk in an individual case will depend upon a careful analysis of that individual’s origins, background and profile.

To put that guidance in context, as far as those with a political or military profile are concerned, the Tribunal said:

“44.

We confirm that there continues to be a real risk for those with a political or military profile. Each case must be judged on its own facts but it is possible now to provide a little more detail at least about those who fall within the "political profile" subcategory.

45.

We would emphasise first of all that use of the word "profile" highlights the fact that this category is intended to mark out those whose actual or perceived military or political activities or involvements are likely to have brought them or to bring them to the adverse attention of the Kabila regime. Mere membership of an opposition political party will not demonstrate that a person has such a profile.

46.

Bearing this point in mind, we accept that at the present time it is very dangerous to be an active member of the UDPS. The success of the ville morte action in bringing much of Kinshasa to a standstill in January 2005 has threatened the Kabila leadership. We accept Mr Kennes' evidence that UDPS militants abroad returning now would be at risk of detention. There is a much lesser risk for PALU members although this changes from time to time. According to Mr Kennes they tend to be released more easily than UDPS members. There is a potential risk for DPS members who are considered to be potential and actual collaborators or spies for Bemba and his MLC movement. The danger for high ranking MPR officials and their families has considerably diminished since the creation of the Transitional Government and depends on the position of persons held under the Mobutu regime. Those involved or believed to be involved in the assassination of President Kabila continue to be at risk of imprisonment and torture. The immigration and security services are still convinced that only part of the network that planned the assassination has been discovered and arrested.”

As far as ‘failed asylum seekers’ were concerned, the Tribunal said:

“47.

The evidence presently before us does not satisfy us that there is any adequate evidential basis for taking a different view from current Tribunal jurisprudence that returned failed asylum seekers are not at real risk of persecution for that reason alone. We accept that while there might be attempts to extract money from returnees the authorities are only interested in those who have or are perceived to have an ethnic, military or political profile identifying them as opponents to those in power. Mr Kennes confirms in his evidence that a person returning with valid, ordinary travel documents will not be at risk unless of interest to the authorities for these reasons.

48.

If someone is identified as a failed asylum seeker but there are no known political charges against him, there is a risk that they may be required to pay a “fine”. Those who do not have charges against them or are otherwise not of interest to the authorities will be released upon payment of the fine….”

In MK (AB & DM confirmed) Democratic Republic of Congo CG [2006] UKIAT 00001 (“MK DRC”), the Tribunal concluded that reports of an announcement made by the Dutch Immigration Minister in June 2005 of a temporary halt of returns of failed asylum seekers to the DRC did not afford a sufficient basis for modifying the conclusions on failed asylum seekers reached in AB & DM.

In MM (UDPS members – Risk on return) Democratic Republic of Congo CG [2007] UKAIT 00023 (“MM (UDPS members)”), the Tribunal summarised the guidance in its headnote in the following way:

“Despite indications from recent political events in the DRC that the UDPS is perceived as less of a threat than previously, the guidance given in AB and DM Democratic Republic of Congo CG [2005] UKAIT 00118 and confirmed in MK DRC CG [2006] UKAIT 00001 remains correct.”

The Tribunal was concerned, in particular, with what had happened in the DRC since the start of 2006 with particular regard to the activities of the UDPS. The Tribunal concluded that despite what appeared to be a dramatic change in the political landscape, it would be premature to conclude that the UDPS were no longer a political force or perceived as a threat to the regime. The Tribunal said:

“202.

… we continue to believe that low level members/sympathisers of the UDPS for that reason alone, will not be at real risk on return to the DRC in the current climate, but conclude that it is too early in the process of the transition of the DRC to democratic rule, to find that there is no continuing threat on the part of the current Kabila regime to persecute UDPS activists.  As the Tribunal in AB and DM rightly observed, the risk category to those having or being perceived to have a military or political profile in opposition to the government is one that “fluctuates in accordance with the political situation.” (See paragraph 51(iii)) of their determination).

Finally, in BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293 (“BM and Others”), the Tribunal considered whether the deportation or removal of any of the appellants from the UK to the DRC would expose them to a real risk of persecution within the framework of the Refugee Convention or serious harm contrary to Article 3. The Tribunal summarised the guidance in its headnote:

“1.

A national of the Democratic Republic of Congo (“DRC”) who has acquired the status of foreign national offender in the United Kingdom is not, simply by virtue of such status, exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR in the event of enforced return to the DRC.

2.

A national of the DRC whose attempts to acquire refugee status in the United Kingdom have been unsuccessful is not, without more, exposed to a real risk of persecution or serious harm or proscribed treatment contrary to Article 3 ECHR in the event of enforced return to DRC.

3.

A national of the DRC who has a significant and visible profile within APARECO (UK) is, in the event of returning to his country of origin, at real risk of persecution for a Convention reason or serious harm or treatment proscribed by Article 3 ECHR by virtue of falling within one of the risk categories identified by the Upper Tribunal in MM (UDPS Members – Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023. Those belonging to this category include persons who are, or are perceived to be, leaders, office bearers or spokespersons. As a general rule, mere rank and file members are unlikely to fall within this category. However, each case will be fact sensitive, with particular attention directed to the likely knowledge and perceptions of DRC state agents.

4.

The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in the DRC or in respect of whom there are unexecuted arrest warrants in the DRC or who allegedly committed an offence, such as document fraud, when departing the DRC. Such persons are at real risk of imprisonment for lengthy periods and, hence, of treatment proscribed by Article 3 ECHR.”

The relevant legal framework was set out in the respondent’s opening skeleton argument. Mr Bazini did not express any disagreement. We do not burden this decision with a recital of the 1951 Convention Relating to the Status of Refugees, Article 3 ECHR, and the relevant immigration rules. For present purposes it is now well established that the treatment of country guidance as a presumption of fact means that it is for the parties seeking to persuade the Tribunal to depart from it, to adduce the evidence justifying a departure. An assessment as to whether to depart from a CG decision is to be undertaken as to: (i) whether material circumstances have changed; and (ii) whether such changes are well established evidentially and durable.

We add for the avoidance of doubt that a genuine fear of persecution, subsisting at the date of determination, must be behind the asylum seeker’s absence from their country of nationality. This is referred to as the subjective element. The fear of persecution must not only exist but must be objectively well-founded. In order for a fear to be well-founded for the purposes of the Refugee Convention, there must be a reasonable degree of likelihood that the applicant will be persecuted on return: R v SSHD, ex p Sivakumaran [1988] AC 958. We have throughout our consideration of the issues, adopted this lower standard.

We confirm that we have considered all the evidence before us in the light of the evidence available to previous Tribunals in the series of CG cases we have already referred to. For that reason it is not necessary to repeat the undoubtedly turbulent history here and observe that those at risk are likely to fluctuate in accordance with the political situation – see [202] of MM (UDPS members). Central to the issues before us are the 2018 elections in the DRC. The respondent’s CPIN, Democratic Republic of Congo: Opposition to government, published in November 2019 provides a helpful summary:

“4.2.1

The UNHRC in its May 2019 report on the situation of human rights in the Democratic Republic of the Congo before, during and after the elections of December 2018 stated that: ‘On 30 December 2018, the Democratic Republic of the Congo held presidential elections and national and provincial legislative elections. The Independent National Electoral Commission [CENI] announced partial and provisional results on 10 January 2019, which the Constitutional Court confirmed on 20 January 2019.

4.2.2

The 3 lead contenders for the presidency were:

• Felix Tshisekedi (opposition, UDPS and Cap pour la Changement platform)

• Martin Fayulu (opposition, Lamuka coalition)

• Emmanuel Ramazani Shadary (Minister of Interior, ruling Front commun pour le Congo (FCC) platform)

4.2.3

The May 2019 report of the Secretary General to the UN Security Council, ‘The situation in Central Africa and the activities of the United Nations Regional Office for Central Africa’, stated:

‘… the country’s [DRC] presidential, national and provincial legislative elections of 30 December [2018] took place in a relatively calm atmosphere and resulted in its first peaceful transfer of power. On 10 January, the Independent National Electoral Commission announced the provisional results of the presidential election and declared the opposition candidate, Félix Tshisekedi, the winner. A legal challenge presented by the runner-up, Martin Fayulu, was rejected by the Constitutional Court and, on 24 January [2019], Mr. Tshisekedi was sworn in as President.’

4.2.4

The CIA Factbook, updated 21 August 2019, observed: ‘Opposition candidate Felix Tshisekedi was announced the election winner on 10 January 2019 and inaugurated two weeks later. This was the first transfer of power to an opposition candidate without significant violence or a coup since the DRC's independence.’

4.2.5

The same source also reported the presidential and parliamentary election results: ‘[Presidential election] Felix Tshisekedi elected president; percent of vote - Felix Tshisekedi (UDPS) 38.6%, Martin Fayulu (Lamuka coalition) 34.8%, Emmanuel Ramazani Shadary (PPRD) 23.9%, other 2.7%...’

The question whether the change in Presidency following the election of President Tshisekedi has led to a durable change in the risk on return is at the heart of this decision. To that end, we have focused in particular upon the wealth of material before us regarding the events that have followed the election, but viewed that against the context of the DRC’s turbulent political history.

To assist us to address the issues identified, the appellant instructed Dr Muzong W Kodi (“Dr Kodi”), a British citizen of Congolese origin to prepare a ‘Country Expert Report’. Dr Kodi made himself available to provide oral evidence, albeit after a witness summons was served upon him requiring his attendance at the hearing before us. Dr Kodi has prepared three reports. The first is dated 23 March 2021. The second is dated 19 July 2021and provides his written responses to questions raised by the respondent arising from his first report. The third report is dated 8 June 2022 and follows a review of three more documents, in particular:

Dr Kodi’s background, qualifications and experience are set out in his first report and were confirmed in his oral evidence before us. In her closing submissions the respondent accepts Dr Kodi’s general expertise in relation to the DRC, but she does not accept his opinions and conclusions on a number of the central issues in the appeal.

Dr Kodi conducted research missions to the DRC in October and December 2019 that pre-date his instructions to provide expert evidence in this appeal. The purpose of those missions in 2019 was to collect as much information as possible on the new regime of President Tshisekedi. Dr Kodi wanted to assess whether the new regime’s practices in terms of upholding human rights, freedom of speech, freedom of association and the rights of the opposition parties were different from those of the previous regime. Dr Kodi told us in his oral evidence that through his work as an academic and as a manager in Continental and International Investigations, he maintains contacts in academic and government circles.

The first report of Dr Kodi is dated 23 March 2021 and was prepared a little over two years after the presidential elections and the confirmation of the elections results by the Constitutional Court on 20 January 2019. We mean no disrespect to Dr Kodi by setting out a summary of his first report below. He quite properly acknowledges there have been new developments on the political scene in the DRC between his first and second reports.

At the time of writing his first report Dr Kodi was of the opinion that in spite of the change of leadership in the DRC in December 2018, there had not been any significant change in terms of the political structure and state apparatus,with President Kabila and his supporters maintaining control and influence in all the institutions, the economy, the security apparatus and armed forces of the country. Dr Kodi said the role and practices of the police and security forces had not improved under President Tshisekedi. He cited the Amnesty International, “Democratic Republic of the Congo 2019 report’ which documented some of the abuses that the police continued to commit after Tshisekedi was sworn in as President in early 2019.Dr Kodi said the violations of human rights by the police and other security forces, which was the norm under former President Kabila, had continued under the new regime of President Tshisekedi. He said the ability of political opponents to exercise free speech, to organise and to demonstrate, continued to be constrained by the Tshisekedi regime which was as intolerant of dissent and criticism as the previous regime.

Dr Kodi confirmed APARECO does not have an official presence in the DRC. It was for a long time, the most radical opposition political grouping against the regime of former President Kabila. It is one of the best organised of all the Congolese groups in the UK who oppose President Tshisekedi’s regime. Its leader, Honoré Ngbanda, who died on 21 March 2021, had continued to speak and mobilize Congolese citizens against President Tshisekedi.Dr Kodi said the views of APARECO are regularly articulated on its website, its internet radio and on various media platforms, including Facebook and YouTube. Following the death of Honoré Ngbanda, a new leader, Alphonse Djoko Ebama was elected on 27 June 2021. He has vowed to continue the work that Honoré Ngbanda undertook to liberate the DRC from Rwandan occupation.

Dr Kodi said the CSG had over many years campaigned for the removal of former President Kabila from power. He said that since Tshisekedi became President, the CSG has been campaigning against both Kabila and Tshisekedi. On their website, they clearly state: “Tshisekedi must resign because he is working with Kabila, a criminal, he must be arrested with his regime.”

Dr Kodi expressed the opinion that the guidance provided by the Upper Tribunal in BM and Others, that persons who have a significant and visible profile within APARECO (UK) are at real risk of persecution or serious harm contrary to Article 3 ECHR, would apply equally to the members of the CSG who are equally hostile and opposed to the present regime in power in the DRC.

Dr Kodi referred to the report entitled “Unsafe Return III ‘Removals to the Democratic Republic of the Congo 2015 – 2019 (“UR III”)’” compiled by Catherine Ramos, a member of a UK-based NGO, Justice First. Drawing upon that report he said that the ‘Direction Générale de Migration’ (“DGM”), the National Immigration Authority in the DRC in Kinshasa, are informed about the sur place activities of returned failed asylum seekers by former UK residents, thus increasing the risk for returnees.

Dr Kodi also referred to an extract from the respondent’s CPIN – Democratic Republic of Congo: Unsuccessful Asylum Seekers, Version 3.0, January 2019, which quotes a blog on the website of the Faculty of Law of the University of Oxford in November 2016 by Dr. Jill Alpes, a migration researcher at the Vrije Universiteit Amsterdam. The blog raises the possibility of leakages of information to the DRC authorities.

As far as the risk upon arrival is concerned, Dr Kodi statedfailed asylum seekers (“FAS”) are usually interviewed by the Immigration Attaché of the DRC Embassy in order to establish whether their claim of Congolese nationality is genuine. He claims that during the interview, the Immigration Attaché as an agent of the DGM, would be remiss if they did not ask about the political activity of the interviewee as the UK harbours some of most radical opposition parties to President Tshisekedi and former President Joseph Kabila. Dr Kodi stated it is quite reasonable to think that the Immigration Attaché would also ask about whether the interviewee has claimed asylum and the reasons for the failure of the claim.

In response to written questions put by the respondent, Dr Kodi accepted that since he had prepared his first report, there had been new developments on the political scene in the DRC. He accepted:

Dr Kodi also highlighted other developments in the DRC that demonstrate the difficulties faced by President Tshisekedi:

Dr Kodi maintained his view that the treatment of the opposition political leaders and rank-and-file members of their parties, has not improved since January 2019. He maintains that over the last two years scores of them have continued to be arrested, detained and prosecuted for exercising their rights to freedom of expression and peaceful assembly which are guaranteed by the Constitution of the DRC.

Dr Kodi said that in spite of the announcement by President Tshisekedi, in his inaugural speech, that his government will not tolerate human rights violations, there are reports that some peaceful demonstrators continue to be arbitrarily detained or beaten by security forces. He cites:

Dr Kodi states the exact number of leaders and rank-and-file members of political parties who have been arrested since 2019 is not available. He does not have the statistics for the arrests of members of opposition parties. Dr Kodi said that he does not have any evidence of the numbers of opposition parties’ demonstrations stopped/dispersed by State security forces in Kinshasa and the DRC generally. However, well informed observers of the political scene in the DRC, including Amnesty International, Human Rights Watch and the US State Department note that a large number of demonstrations have taken place in Kinshasa and the rest of the country, and have been dispersed with disproportionate violence by the national State security forces since President Tshisekedi was inaugurated in January 2019.

Dr Kodi was asked how the level of arrests of actual or perceived political opponents now compares with 2018 and/or the period when Kabila was President. Dr Kodi states that there is generally a perception of a deterioration of the human rights situation since President Tshisekedi came to power in January 2019, and with this, at least a comparable level of arrests to the one that obtained under former President Kabila. Dr Kodi said that in spite of the change of leadership in the DRC there has been a deterioration in terms of the serious human rights violations committed by national security forces and militias in the country. This is due to the fact that there is no change but continuity in the leadership of the security forces, as former President Kabila’s appointees continue to hold key positions in these institutions and have proven to be beholden to him.

When asked whether the treatment of opposition groups by state forces has stayed the same, regressed or improved since Jan 2019 under the Tshisekedi Presidency in the DRC generally, and Kinshasa specifically, Dr Kodi said that from the assessments made by the various sources (e.g. Human Rights Watch, Amnesty International, official foreign government publications e.g. the Bureau of Democracy, Human Rights and Labour of the US Department of State, and assessments by Congolese politicians and civil society organisations, e.g. the Catholic Church), he believes the situation has remained the same. He states that all those sources, except the Bishops of the DRC Catholic Church (who deplored the increase in human rights violations and observed that after an improvement in terms of the treatment of demonstrations in the early months of President Tshisekedi’s rule, there has been a noticeable return to the practices of the former regime), state that the treatment of opposition groups has remained the same.

Dr Kodi was asked to identify the current targets of the state in terms of arbitrary arrest and detention and their political affiliation. He said the President of the Bill Clinton Foundation for Peace (“BCFP”), in an email sent to the research centre of the Belgian Commissioner General for Refugees and Stateless Persons dated 4 August 2019, was of the opinion that that the main targets of the State were the members of LAMUKA platform of opposition political parties. Dr Kodi states the situation has evolved since then as LAMUKA has split and the state focusses now on those members of LAMUKA who have chosen to continue their opposition to President Tshisekedi and his Sacred Union. This group includes members of Martin Fayulu’s ECIDé party and Adolphe Muzito’s Nouvel Elan. Dr Kodi cites the following examples:

Dr Kodi addresses the other political parties in his report. He states that the other two leaders of LAMUKA, Jean-Pierre Bemba and his party, MLC, as well as Moïse Katumbi Chapwe and his party, Ensemble pour le Changement (“Ensemble”), have joined Tshisekedi’s Union Sacrée and have had their party members appointed to key positions in the Government. Dr Kodi statesMLC and Ensemble members are no longer at risk of being targeted.

Dr Kodi states that since the break-up of the FCC, some members of the FCC have been harassed and even arrested. For instance, Daniel Ngoy Mulunda, the former President of the National Electoral Commission (CENI) and a close ally of former President Joseph Kabila, was arrested on 18 January 2021 for having criticised President Tshisekedi and his followers. His sermon was considered seditious and a hate speech by a Tribunal which sentenced him to four years imprisonment.

Dr Kodi also cites the arrest of Henry Maggie, the Vice-President of the Youth League of former President Kabila’s party, PPRD, the main component of the FCC. He was sentenced to 18 months imprisonment for insulting President Tshisekedi in a TV interview claiming President Tshisekedi did not win the 2018 presidential election. A third example is that of Ardent Kabambi, also a member of PPRD, who was arrested and detained in August 2019 on his return from Europe for having posted on social media a video in which he criticised President Tshisekedi in the presence of Boketshu Premier, a radical opponent and outspoken critic of the current regime. He was released in October 2019 without any charges.

A minor party called Bundu dia Kongo (“BDK”) is described by Dr Kodi as a religious-cum-political party founded and led by Zacharie Ne Muanda Nsemi (“Nsemi”), and a constant critic of both former President Kabila and his successor President Tshisekedi. Following clashes with national security forces, the Government banned BDK. Nsemi renamed the movement Bundu dia Mayala (“BDM”). Dr Kodi cites incidents on 30^th March 2020, 22^nd April 2020 and 24^th April 2020 when BDM members were targeted and on occasion, killed by the national security forces and the national police. Dr Kodi states that in January 2021, the Vice President of BDK, Ne Mpuna Nsosani, requested that scores of BDK members who continued to be arbitrarily detained for many months in prisons in Kinshasa and several locations in the Kongo Central Province, be immediately freed.

Dr Kodi states that at times, members of the Sacred Union have been arrested for criticising the President or his Government. The latest example is Jean-Bosco Assamba, a member of the Provincial Assembly of the Ituri Province and member of the RDPR party which has joined the Sacred Union. He was arrested on 27 June 2021 for calling President Tshisekedi a liar because he had not delivered on the numerous promises that he had made to the people of the province. Dr Kodi notes Jean-Bosco Assamba was arrested for a statement he made on 23 April 2021 well before the declaration of the state of siege in the Ituri and North Kivu Provinces.

Dr Kodi was asked whether apart from one statement on the CSG website opposing President Tshisekedi, there is other evidence that the group is opposed to the current government. Dr Kodi respondedthat according to the website, the CSG organised a conference in London on 29 February 2020 at which its leader Okito Tongomo advocated for the end of impunity in the DRC and of what he called the “illegal gentlemen’s agreement between Kabila and Tshisekedi”. He urged the Congolese diaspora to save the country from the current regime.

Dr Kodi statesthat according to United Nations Joint Human Rights Office (UNJHRO) in the DRC, besides opposition political parties and their members, civil society activists, journalists and other media professionals have also been targeted by the State. Between January and June 2019, it recorded 316 cases of human rights violations against members of civil society organisations, and 85 cases for journalists and other media professionals. Members of citizen movements, such as LUCHA and Filimbi have been harassed, beaten and even arrested during the peaceful marches or sit-ins they have organised to make demands of a political or social nature. According to LUCHA, for instance, its members were arrested at demonstrations organised in Mbuji-Mayi on 2 April 2019, in Tshitenge on 9 April 2019, in Beni on 14 August 2019, and in Rutshuru on 23 August 2019. Dr Kodi states that more recent instances of arrests of LUCHA members include the ones that took place in January 2021 in Beni where eight youths faced the prospect of spending 10 years in jail for calling for peace and criticising the United Nations Peacekeeping Mission in Congo. They were released after spending one month in jail.

Dr Kodi also states there is some evidence that political opponents are monitored by the Tshisekedi regime and are at risk on return. In support of that claim, Dr Kodi points to the arrest of Ardent Kabambi, a member of PPRD, who was arrested and detained in August 2019 on his return from Europe for having posted on social media a video in which he criticised President Tshisekedi in the presence of Boketshu Premier, a radical opponent and outspoken critic of the current regime. Dr Kodi states the judges who tried him, showed him the video which had been provided to them by DRC intelligence agents. According to media reports, Ardent Kabambi’s wife has claimed the arrest was ordered by François Beya, the Special Adviser to President Tshisekedi, and former Director-General of DGM. Dr Kodi states François Beya’s services might have provided the video to the judges.

Dr Kodi states the findings made by the Upper Tribunal in paragraph [87] of BM and Others about the monitoring of political opposition, from his own experience and knowledge of the DRC, applies to “all radical opponents in the DRC and in the UK”. Dr Kodi cites an extract from the report compiled by Catherine Ramos, UR III, and saidthat it has been alleged that DGM authorities in Kinshasa are informed about the sur place activities of returned failed asylum seekers by former UK residents, thus increasing the risk for returnees. Dr Kodi states he has no concerns about the reliability of UR III and in his view, Catherine Ramos used a sound methodology in her research and in writing up the results of her research.

Dr Kodi saidthat immigration officials and human rights activists he interviewed while doing research for his reports, reported that they had witnessed or were informed about cases of returnees. Each one of them separately advised that they knew of between 2 and 18 cases of arrests since January 2019. They, however, declined to share the names of the returnees for fear of reprisals for themselves and the returnees. He said that in November 2020, APARECO warned its members about 200 spies who had been recruited in the Congolese diaspora by the ANR to report on the activities of APARECO and other opposition parties abroad. The very popular YouTube channel TeleTshangu123 announced on 3 December 2020 that they had been informed that two Congolese who had returned on holiday to the DRC were arrested on arrival in Kinshasa. According to their relatives, the two arrested returnees were told by the ANR agents who arrested them that they had been informed about their anti-Tshisekedi activities and of their return flight by a UDPS member who had returned to work for President Tshisekedi’s Office. Dr Kodi claims the continued monitoring of the Congolese diaspora by the Congolese authorities is evidenced by comments or threats made following political discussions or criticisms of President Tshisekedi and his government on the diaspora’s numerous social media channels. Dr Kodi claims the social media forums on which these discussions take place make it easier for the Congolese national intelligence agencies to monitor the diaspora, and especially political opposition parties.

Dr Kodi confirmed that the two immigration officials he had spoken to, held the rank of Senior Inspector. The two individuals had been recommended by a friend of Dr Kodi who taught them at the University of Kinshasa and who had known them for many years. Dr Kodi said that his friend whom gave him the names of the immigration officials, is a trustworthy person who he has known since secondary school. He did not therefore need to double-check the identities of the immigration officials. He asked them about the redocumentation process of failed asylum seekers and the role of the DGM Attaché to the DRC Embassy in London. Dr Kodi refers to the questions he asked and summarises their response:

“What do you know about the redocumentation process of FAS and the role of the DGM Attaché to the DRC Embassy in London?

The redocumentation process has been agreed between the British and Congolese authorities and is mandatory for all returnees. It allows to establish the genuineness of the returnees’ Congolese nationality and the collect related information on their asylum application, their involvement in opposition political activities and any criminal record. The DGM Attaché is the one who interviews all the FAS and sends a report on each one of them to the headquarters in Kinshasa.

What kinds of questions does the DGM Attaché ask the FAS?

He usually asks questions about the origin of the FAS in the DRC, where they lived, what schools they attended, crimes and convictions in the DRC, the reasons why they decided to leave the country and when, their asylum claim and the reasons for the failure.

Does he ask questions about the FAS’s involvement in political activities in the UK?

Yes, he asks questions about the FAS’ involvement in political activities, especially their participation in the activities of the radical opposition parties in the UK.

Does he ask questions about the reasons why they applied for asylum in the UK?

Yes, he asks why the FAS applied for asylum in the UK and what their claim was as well as whether they had any problems with the current regime. H also asks whether they had any pending legal cases before leaving the DRC.

Does he share the information so collected with DGM colleagues in Kinshasa?

Yes, this information is usually sent to the Director General who shares it with all the relevant DGM units, including those at ports of entry like Ndjili airport in Kinshasa where most FAS return.”

Dr Kodi said the information provided by the immigration officials was confirmed separately by the human rights activists he consulted. He saidthe human rights activists he consulted worked for well-known human rights organisations that he has worked with, for more than 20 years. He confirmed that all the conversations with the five people took place the same day, 3 March 2021 over the phone. He clarified that he had spoken to the same interviewees on two occasions, in January 2019 and in March 2021. He had taken notes but they had been discarded immediately.

Dr Kodi also referred to the January 2020 CPIN on the DRC – Unsuccessful Asylum Seekers, which summarises the redocumentation process and said that the information set out does not contradict the information provided by those he interviewed. Dr Kodi said the footnote in the CPIN indicates that Home Office staff do not attend redocumentation interviews and the respondent is not therefore aware of the type of information that is gathered and sent to his/her superiors in Kinshasa by the DGM Attaché. Dr Kodi refers to the information on the redocumentation process provided in Annex F of the CPIN which is a Home Office note dated 15 October 2014 of meetings with the DGM secondee on 13 August and 15 August. The Secondee provided the following information:

“1.

When conducting interviews he refuses to speak in English and will try all Congolese languages to see which the subject speaks. It’s usually Lingala or French.

2.

He asks the interviewees to write their names down so that he can check the spelling with the Emergency Travel Document (ETD) application form and he asks them to explain the meaning of their names.

3.

He also checks their date of birth and place of birth against the application form.

4.

He asks when they came to the UK and how they travelled here and if they were helped to enter the UK. He asks if they hid their passports.

5.

He asks them whether or not they are Congolese and asks for details of where they lived – the address / province / schools attended / first language of parents / tribe.

6.

He asks why they are detained / in prison. He said some volunteer this information and others don’t.

7.

He added that he tries to convince interviewees that they should prepare to go home and says that if they have committed an offence and been sentenced to 12 months or more in the UK then they will not be allowed to stay in the UK. He tells them about DRC and that it’s not a bad place to return to. All the information is fed back to DGM Head Quarters in Kinshasa including, where supplied by the interviewee, details of criminality in the UK.”

Dr Kodi claims it is particularly noteworthy that an individual is asked why they are detained / in prison because it provides important information as far as foreign national offender (“FNO”) returnees are concerned. He states that whilst the respondent has asserted time and again that they do not inform the DRC authorities about the criminal records of the returnees, the DGM Attaché, a highly trained professional in interrogation techniques (as he himself reveals in the Home Office note cited above), is likely to obtain valuable information from the returnee on the crimes they committed in the UK and the related convictions. Therefore, by the time the returnee FNO arrives in Kinshasa, this information is already in the hands of the DGM staff at Ndjili airport.

Dr Kodi states that social media, on which lively discussions of the diaspora take place on YouTube, WhatsApp, Facebook, etc., make it easier for the Congolese national intelligence agencies to monitor the diaspora, especially political opposition parties. He states the Covid-19 pandemic with all the related restrictions made it difficult for opposition groups in the diaspora to meet and organise protests, and they express their criticism of the current regime on social media.

When asked what evidence he has that the DRC government is capable of, and does monitor Congolese nationals online, Dr Kodi said thatconsidering the fact that the DRC Government allocates substantial means to its intelligence services which are some of the best operating agencies of the country, it is quite reasonable to imagine that they would have the capacity to monitor Congolese nationals online. It takes just a basic computer or even a smart phone and basic knowledge of the internet to carry out monitoring on the web of the websites, social media accounts and internet radios and television channels.

In the third of his reports, ‘Addendum 2 dated 8 June 2022’, Dr Kodi reviewed a ‘Response to an information request, Democratic Republic of Congo: Political update: November 2021 to April 2022’, that was compiled and researched by the respondent’s Country Policy and Information Team. The document includes a timeline of events between November 2021 to April 2022. In response, Dr Kodi states that several observers of the DRC political, economic and social scene, have already taken stock of President Tshisekedi’s more than three years in power. He states one of the most recent examples is the statement made by the Head of the Catholic Church, Cardinal Fridolin Ambongo, the Archbishop of Kinshasa on 29 May 2022:

“The situation is presently bad in the country, nothing is working. The Congolese are among the most miserable people on Earth. If you look closely at what is going on in our country, around us, the Congolese people, in spite of the immense wealth of the country’s soil and sub-soil, of its waterways, of it trees and forests, in spite of all this, the Congolese people are classified among the most miserable people of planet Earth. In any case, the country is in dire straits, nobody should lie to you. Some people will tell you that you are in paradise. If today’s Congo is paradise, I do not want to go to paradise. Should we then do nothing. No! We must act, we have to take ourselves seriously, we must take charge of ourselves. The sovereignty of our country is in danger. And while the country is in danger, we spend our time discussing posts, money and a few dollars.”

Dr Kodi states this assessment of the performance of President Tshisekedi by Cardinal Ambongo is all the more important since the Catholic Church is the only institution in the country that is represented in the entire country and is able to give a reliable and accurate evaluation of the political, economic and social situation of the country.

Dr Kodi also refersto criticisms of the performance of President Tshisekedi and his government by Joseph Olengankoy, the President of the Conseil National de Suivi de l’Accord de la Saint Sylvestre (CNSA) or National Council for Monitoring the Agreement of Saint Sylvester. On 24 May 2022, Joseph Olengankoy published a press release which included, among others, the following remarks on the developments in the country which prevented President Tshisekedi to bring about the institutional changes and benefits expected by the people of DRC:

“- the upsurge of political intolerance by the regime , which has driven opinion and political leaders to flee the country or hide;

- the existence in the country of political and opinion prisoners, even those who have benefited from a presidential amnesty;

- dysfunctional State institutions, characterised by among others, the re-appearance of illegal prison cells and detention centres;

- brutal repression by the National Police of non-violent protest marches; and

- lack of appropriate policies to re-establish people’s trust in State institutions.”

Finally, Dr Kodi consideredmaterial from a specialist in African affairs working for the US Congressional Research Service relating to the possibility of the survival of President Tshisekedi’s coalition in the lead-up to the next elections in December 2023. Dr Kodi states there are signs that the next few months will see the dislocation of the Sacred Union coalition that President Tshisekedi has succeeded in putting in place with a majority made up of defectors from President Kabila’s FCC. He refers to Moise Katumbi having already announced his intention to stand in the Presidential election in 2023. Dr Kodi refer to the steps taken by President Tshisekedi to disqualify Moise Katumbi from running in the presidential election by tabling a bill in Parliament which would exclude all candidates who do not have a Congolese parent. Moise Katumbi, whose father was originally from Cyprus, would not therefore be eligible for the top office in the country. Dr Kodi states that in a move that clearly indicates a final break between President Tshisekedi and Moise Katumbi, the latter has recently reconciled with former President Joseph Kabila and most of the political leaders of the former Katanga Province.

Dr Kodi statesthat although President Tshisekedi has succeeded in placing his loyal allies in key positions in the institutions that will run, announce and confirm the provisional results of the elections, (i.e. the National Independent Electoral Committee (CENI) and the Constitutional Court), President Tshisekedi does not appear confident about his hold on power and there is evidence of nervousness in the presidential camp. Dr Kodi states the fear of losing fair and transparent presidential and parliamentary elections because of the mounting unpopularity of the President and his regime, has led the incumbent and his allies to the same tactics as the former President as noted by a Professor at the University of Mons in Belgium who was interviewed by the Research Directorate, Immigration and Refugee Board of Canada. The Professor observed that President Tshisekedi’s regime has adopted the “logic of Kabila’s government whereby non-supporters of the regime who raise sensitive issues are subjected to repression.”. Dr Kodi states similar observations have been made by Cardinal Ambongo and Joseph Olengankoy. Both of them were subjected to retaliation by members of the UDPS, and other entities close to the President.

Dr Kodi also notes the security situation in the Eastern provinces of the DRC was dire last year (2021), prompting President Tshisekedi to call on the President of Uganda, Yoweri Museveni, to send troops to help defeat the numerous militia that roam the Ituri, North and South Kivu Provinces. Dr Kodi states that neither the state of siege declared in the region, nor the assistance of the Ugandan troops have succeeded in reducing the threat of the militias but have been used by the regime as an excuse to crush all dissenting voices in the region. Dr Kodi states that on the contrary, according to observers, the situation has significantly worsened, with more civilians being killed and displaced within and outside the country since the state of siege was declared in March 2021.

In cross-examination Dr Kodi accepted that it is fair to say that since 2010 he has not spent more than two to six weeks in the DRC during each of his visits. He said that he does not consider himself to be a human rights advocate despite his professional career including a substantial period working for Amnesty International and Transparency International. He said his views are not unduly impacted by his previous experience in human rights advocacy, but are informed by that experience.

Dr Kodi accepted in his oral evidence that the DRC spans over 2 million square kilometres and has a population of about 105 million people. He accepts there are regional variations and the position in the east of the country is different to the position in the west. He accepted the mineral reserves are in the east of the country and that is where much of the ongoing violence and human rights violations occur. He acknowledged there has been a state of siege in the area that is extended every 15 days. It was put to Dr Kodi that there were not only more human rights violations in the east, but about 90% of the violations occur in the conflict areas. He said the east is the area that is the most monitored but accepted that is where the vast majority of human rights violations take place.

In his oral evidence, Dr Kodi candidly accepted that in the four months between his first report (23 March 2021) and his response to written questions put by the respondent (19 July 2021), there had been significant changes in the DRC as set out by him in writing. He accepted that although President Tshisekedi and his ally, the Deputy Speaker of the National Assembly had to convene meetings with the “rebels” to promise them positions in the State enterprises and in key jobs, that is part and parcel of ‘politics’. He said that what was untoward here, is that ‘bribery’ was used, albeit, he accepted, he was unable to point to any hard evidence of that. Dr Kodi agreed President Tshisekedi has a Prime Minister allied to the UDPA and now controls a number of the key ministries including, the Interior, Finance and Defence such that the political landscape has been reshaped.

Mr Hansen referred Dr Kodi to the scepticism he had expressed in his first report and suggested Dr Kodi’s track record in speculating is not a good one. Dr Kodi said that at the time he prepared his first report, the reality on the ground had led him and most political analysts to that conclusion. He accepted that opportunities have been opened and seized by President Tshisekedi but said that must be qualified because the majority of the Sacred Union parliamentarians are from the FCC, and still describe themselves as the FCC. Dr Kodi accepted François Beya, an ally of former President Kabila and appointed by President Tshisekedi as Special Adviser in charge of security and sensitive matters, has now gone. Dr Kodi accepted it is therefore important to focus upon recent sources of background information because even background material from 2019 and 2020 is now “old news”.

Dr Kodi accepted that the evidence of violations against political opponents is limited. He was referred to the respondent’s ‘Response to an information request, Democratic Republic of Congo: Political update: November 2021 to April 2022’. At section 4.2there is some evidence that Government authorities and the state security forces prevented opposition parties from holding public meetings, assemblies, and peaceful protests. Dr Kodi accepted that in a country of 105 million people, there are very few examples of human rights violations against political opponents. He said however that the reality is that those in the west of the DRC do not report the violations because they do not know where to go, and they see no action taken against culprits.

Mr Hansen suggested to Dr Kodi that the evidence of a crackdown against political opponents is such that it is almost non-existent. Dr Kodi disagreed and pointed to his addendum reportin which he states that increasing numbers of journalists and political activists are being harassed, beaten, arrested and detained for expressing dissenting views. Mr Hansen pointed out that the focus in the addendum report is attacks upon journalists, and that apart from the data recording 116 cases of attacks against journalists, 75 cases of violation of press freedom, including 19 arrests of journalists and closure of 11 media outlets, there are no specific details of attacks on others, including political opponents. Dr Kodi responded that the problem with statistics in the DRC is that there are no centralised systems for recording such information. There are a number of secret detention centres that even consulate staff cannot access, so it is difficult to provide statistics. He accepted however that organisations such as Amnesty International and Human Rights Watch would have a keen interest in those that are harassed, beaten, arrested and detained for expressing dissenting views, but he did not know whether they have any statistics.

Mr Hansen referred Dr Kodi to the analysis of the human rights situation in 2021 prepared by the United Nations Joint Human Rights Office in the DRC (“UNJHRO”). Mr Hanson suggested the analysis records a decrease of nearly 12% in human rights violations compared to 2020, and a reversal of the trend of the previous year, which recorded an increase of 21%. This decrease reflects a reduction in the number of cases documented in the provinces affected by conflict, particularly Maniema, South Kivu, Ituri, Tanganyika and North Kivu, where the UNJHRO recorded less violations committed by State agents and abuses committed by combatants of armed groups, including conflict-related sexual violence, than the previous year. Dr Kodi said that he agrees with that analysis.

Mr Hansen also referred Dr Kodi to the information set out in that update from the Armed Conflict Location & Event Data Project (“ACLED”) that compiles and analyses data which is ‘derived from a wide range of local, regional and national sources by trained data experts. It is said, at [4.3.6] and [4.3.7], that in total there were 1,860 events (that is, protests (including peaceful protests, those where there is state intervention, and where excessive use of force was deployed against protestors) and riots, (mob violence and violent demonstrations) - of all types of actors for the whole country over the period 1 January 2020 to 22 April 2022. Dr Kodi agreed that demonstrates a downward trend, and he has no other independent statistics to undermine what is said. He accepted that generally, there are more human rights violations in the east because of the on-going conflict in that area, although he is unable to point to any figures or statistics. He was prepared to accept that the vast preponderance (over 90%) of the violations take place in the east of the country. He accepted that he has not dealt with any of those positive developments in the DRC in his written reports. He maintained the situation in the DRC is not good, and even if there is a downward trend, large numbers of people continue to be killed.

Dr Kodi accepted that President Tshisekedi has now decisively broken ranks with the former president following the formation of the ‘Sacred Union’. He accepted the net effect of the developments in the DRC since the end of the coalition, is that the influence of former President Kabila has diminished. It was suggested by Mr Hansen that at the moment, there is no credible sign of a political comeback by former President Kabila. Dr Kodi referred to the steps taken by President Tshisekedi to disqualify Moise Katumbi from running in the presidential election. He claims Moise Katumbi has recently reconciled with former President Joseph Kabila and most of the political leaders of the former Katanga Province. Dr Kodi said this may be a sign of former President Kabila coming back to the political scene, not to run as President, but to maintain some influence.

Mr Hansen suggested to Dr Kodi that his suggestion of a comeback by former President Kabila is based upon mere speculation. Dr Kodi referred to an article published in ‘Africa Continental’ on 4 March 2022. The article states:

“…Tshisekedi has been treading cautiously in his dealings with ex-President Joseph Kabila, whose profile has diminished over the past year. Rarely attending meetings of the Senate in Kinshasa, Kabila has shown little interest in a political comeback. In law, he could stand for the presidency next year; the constitution’s bar on multiple presidential terms applies only to consecutive terms.

Yet Tshisekedi is taking nothing for granted, given the mutual distrust between him and his predecessor…”

Dr Kodi accepted however that there is evidence that former President Kabila’s profile has diminished, that he has been marginalised and appears to have shown little interest in a political comeback.

When it was put to him by Mr Hansen that opponents of former President Kabila are not at risk upon return to the DRC, Dr Kodi agreed. He agreed that they are not at risk of persecution whether they are in the DRC or abroad.

Dr Kodi confirmed that the UDPS is now the ruling party and apart from those who have made dissenting remarks, UDPS members are safe and not at risk on return.

Dr Kodi accepted that following the death of Honoré Ngbanda, succession within APARECO has been problematic with internal squabbling. He accepted the diaspora that was previously active has now split, and that many members have now returned to the DRC and are part of the entourage of President Tshisekedi.

As far as the CSG is concerned, Dr Kodi said that the government in the DRC has had an interest in radical groups particularly those in the UK, and so it is likely that someone on the CSG website would be identified. He said organisations such as the CSG are keen to make themselves known and advertise widely. Time and again, the views set out are responded to by people who are close to the new regime in the DRC. These people are members of the President’s party, the UDPS. Dr Kodi said that time and again, the regime post videos in response to what the world is saying about the regime. They label as “combatants” all those that are members of opposition parties.

Dr Kodi said the CSG has expressed ‘strong views’ about the collusion between former President Kabila and President Tshisekedi. He accepted the CSG is not referred to by any EU Member state as an ‘opposition group’, and that the CSG website and Facebook account is rarely used. Dr Kodi denied that the focus of the group was on the former President Kabila and maintained the group focuses upon the former President Kabila and President Tshisekedi. He said that there are videos to show the group was previously active, although he claimed that with the pandemic during 2020 and 2021, the group did not appear to have had any meetings. He is not aware of any evidence of any meetings in 2022 either.

Dr Kodi accepted the Belgians have very close ties to the DRC. He said that the diaspora in Belgium is one of the biggest and the CSG undertakes activities in Belgium. Mr Hansen referred Dr Kodi to a document drafted by the Documentation and Research Centre (Cedoca) of the CGRS in Belgium with a view to providing information for the processing of individual applications for international protection. Dr Kodi accepted there is no reference whatsoever to the CSG in that report.

Dr Kodi was also referred to the website of the CSG ‘https://www.congolesesupport.com’ that is referred to in his report. It was put to him that the CSG in fact has two websites, but he refers only to one of them. The second is ‘https://www.congalesesupport.org’. Dr Kodi said that he was not aware of the second website ending .org.

Mr Hansen referred Dr Kodi to extracts from the Facebook account of the CSG. The website for the group is said to be: www.congolesesupportgroup.org. Dr Kodi said that he was not even aware that a website ending .org existed for the CSG and he has not looked at that website. The profile picture appears to relate to a march in 2016. Dr Kodi said that the web pages do not appear to be up-to-date and that in videos, the CSG express views against President Tshisekedi.

Mr Hansen also referred Dr Kodi to extracts from the Twitter account of Okito Tongomo, the leader of the CSG. Dr Kodi accepted that Mr Tongomo tweeted:

“06 December 2020

Excellent Speech, DRC President Felix moving forward to correct direction. Beboulonner en action. Justice for voiceless.

06 February 2021

Congratulations to President Felix Tshisekedi, the first DRC Congolese and 19^th African Union Chairman Chairperson…”

Dr Kodi accepted the ‘tweets’ are generally supportive of President Tshisekedi. Dr Kodi was unable to provide any information to us regarding the size of the membership of the CSG in the UK. Mr Hansen referred Dr Kodi to the appellant’s membership card [45], which is numbered below 500, suggesting a small organisation. Notwithstanding the evidence, Dr Kodi maintained the CSG is a credible ‘anti- President Tshisekedi’ organisation. He said the fact that its website may not have been updated may be a sign of ‘negligence’, but it is not a sign of a lack of activity. He suggested that it was always possible that members exchange messages using ‘WhatsApp’.

Dr Kodi accepted that the reference in his first reportto monitoring continuing under the new regime of President Tshisekedi because of the presence in the UK of radical and hostile opposition groups like APARECO and the CSG, that are openly campaigning to topple President Tshisekedi’s regime, is based upon the strapline as he described it, on the website of the CSG: “Tshisekedi must resign because he is working with Kabila, a criminal, he must be arrested with his regime.”.

Dr Kodi maintained the CSG is the type of organisation that the government in the DRC would be concerned about. He said that judging by the way the current governmenthas acted against individuals, an organisation like the CSG that is known to the UDPS, would be of interest to the current regime. He said that if one looks at the way in which other “combatants” that have returned home to the DRC are treated, they are in danger, and any person who is considered to have taken part in opposition activities abroad, will be of interest to the current regime.

Dr Kodi said he is not aware of the CSG having a presence in the DRC, although he said they claim to have branches all over the world. He accepted there is no evidence of the government in the DRC having made any adverse or critical comments about the CSG. He also said that he is not aware of any member of the CSG that has returned to the DRC having been arrested on return.

Mr Hansen reminded Dr Kodi that in BM and Others, the Tribunal concluded that a national of the DRC whose attempts to acquire refugee status in the United Kingdom have been unsuccessful is not, without more, exposed to a real risk of persecution or serious harm or proscribed treatment contrary to Article 3 ECHR in the event of enforced return to DRC. Dr Kodi was asked whether he agrees with headnote [2] in BM and Others. His answer was “yes and no”.

Mr Hansen referred Dr Kodi to his reports. He accepted, as he stated in his first report that on return, if the Immigration Officials and ANR agents have no information about the returnees’ sur place political activities in the UK and consider them as mere failed asylum seekers, the individual will usually be released the same day. He went on to claim however that for the authorities in the DRC, all failed asylum seekers are considered to be traitors, and so they are at risk upon return. The risk will depend on the way the individual is treated by officers at the airport. Dr Kodi said the treatment of individuals is haphazard and does not respond to any kind of logic.

Dr Kodi accepted that in BM and Others, the Tribunal had considered the two reports prepared by Catherine Ramos, ‘Unsafe Return I’ and ‘Unsafe Return II’, but nevertheless concluded, at paragraph [76], that there is no substantiated allegation of arbitrary arrest or ill treatment of any DRC national who is a FAS or a foreign national offender returning to the DRC. Dr Kodi said that he had no doubt that the decision of the Tribunal was based on sound information that was available and valid at that time, but things have now moved on, and the risks he refers to, must be considered in that light.

Dr Kodi accepted that in BM and others the Upper Tribunal considered evidence from the British Embassy in Kinshasa dating back to November and December 2014. At paragraph [43(ii)], the Upper Tribunal referred to first-hand information obtained from the Belgium Embassy relating to the return of 23 DRC nationals by air from Belgium to Kinshasa. The Tribunal noted the interest of the DRC Government was confined to “combatants”. Dr Kodi agreed with the conclusion of the Tribunal that the term “combatants” denotes those who have actively opposed the regime both historically and by their activities overseas.

Mr Hansen referred Dr Kodi to the request for information submitted to the IGC. Dr Kodi agreed that the response from Belgium is particularly important because of the large DRC diaspora living there, and the number of returns from Belgium, including FAS. The Belgian authorities confirmed that FAS are returned to the DRC using their passports and laissez-passers issued by the DGM. The documents do not identify the individuals as FAS. The Belgian authorities confirmedthat they do not share any information on asylum procedures with the Congolese authorities. They confirmed they never share any information about international protection requests with the national authorities of a third country national, regardless of nationality. They were asked whether representatives of their government attend returnees’ arrival in Kinshasa. The response was:

“Yes, EURLO is always at the airport when there is a special flight or a JRO (Joint return Operation). If individual returns occur, EURLO is not present, unless it is a special needs case. For example a person who needs medical or other special assistance upon arrival.”

Mr Hansen also drew Dr Kodi’s attention to what is said in the IGC response regarding the treatment of failed asylum seekers and those involved in sur place activities, by other countries that responded. It was put to Dr Kodi that the responses do not support his assertion that returnees are routinely held or that all failed asylum seekers are at risk upon return to the DRC. Dr Kodi acknowledged the responses recorded from various countries, but maintained his opinion as expressed in his reports, that all failed asylum seekers are at risk upon return to the DRC. He said that none of the countries that responded have a presence at the airport in the DRC and they therefore have no way of knowing how failed asylum seekers are treated on return. He rejected the suggestion that he is very much a lone voice and relied upon the sources that he quotes in his reports to support his opinion. Nevertheless, Dr Kodi accepted the evidence before us from the IGC is evidence to which this Tribunal should attach some weight.

Mr Hansen also referred Dr Kodi to the response from the ‘Projects and Migration Officer’ at the British Embassy in Kinshasa dated February 2021 that is at Annex A of the respondent’s ‘DRC: returns note’ prepared in respect of this appeal. The Projects and Migration Officer confirms he is not aware of any reports or allegations that voluntary or forced returnees have faced difficulties and/or been mistreated on return to Kinshasa. We asked Dr Kodi whether he accepts what is said by the Projects and Migration Officer that there have been significant changes to treatment on return of FAS since the change of presidency in January 2019. Dr Kodi said he could not accept that because he is not privy to the information provided by ‘respondents’.

Mr Hansen referred Dr Kodi to the June 2019 update written by the Cedoca, covering the period 2018/19. Dr Kodi accepted that the report refers, at [5.3], to the problems said to be encountered during repatriation of Congolese nationals from Great Britain to the DRC between 2012 and 2018 by Catherine Ramos in her reports, including Unsafe Returns III. The report noted Catherine Ramos is the only source to mention detention and ill-treatment following a forced repatriation of Congolese nationals (from Great Britain). The other sources consulted did not mention any such problems. Dr Kodi accepted that is evidence that weighs against the opinions he has expressed.

Mr Hansen also referred Dr Kodi to the Cedoca update dated 20 January 2020that is to the same effect. The report states, at [5.3]:

“… When asked about possible problems which Congolese nationals may have encountered at the time of repatriations organised by Belgium in the past, Geert Verbauwhede from the Immigration Office replied on 2 December 2019 that there had not been any. He had also explained in a previous reply in April 2019 that there was no specific factor affecting the reception they are given on their arrival (for example, the possession of a type of travel document - temporary pass or standard passport, the return arrangements - with or without escort, compliance with the applicable migration laws, or the fact that Belgium was the country they had come from).

The last repatriation of Congolese nationals from Brussels to Kinshasa took place on 26 March 2019 on a flight organised by FRONTEX54. The announcement of that collective repatriation was published on the website of the organisation Getting the Voice Out on 24 March 2019 (the website also mentions the return on this flight of Senegalese nationals), but the organisation did not publish any information on how the repatriation went or on the reception they were given in Kinshasa. The immigration officer in charge of monitoring the reception in N'jdili confirmed that there had been no problem on their arrival:

"After going through the Department of Migration procedures, they returned home […] there was no National Intelligence Agency control".

Three human rights associations working in the DRC had been contacted at the time of the previous COI Report on this subject. Those associations asked for their names and personal details not to be disclosed. The associations are well known for their human rights activities in the DRC. They said that they had not logged any problems at the time of repatriations made by the Belgian authorities.”

Dr Kodi said that the content of that update does not alter his opinion that all failed asylum seekers are at risk upon return to the DRC, and that he prefers the information he received from the enquiries that he carried out.

Mr Hansen referred Dr Kodi to the further update written by the Cedoca dated 23^rd July 2021 in which it is said:

“On 3 May 2021, Cedoca contacted the Bill Clinton Foundation for Peace (FBCP), a Human Rights NGO based in Kinshasa. Its president Emmanuel Cole said his organization conducts monitoring of returnee arrivals at Ndjili airport. He claims that since the change of regime, persons whose asylum has been rejected and repatriated to the DRC no longer have problems upon arrival. Unlike during the previous regime, there are no more cases of arrests by the ANR of returnees and there is no one belonging to this category in Kinshasa's places of detention.”

Dr Kodi said that the information that appears to have been provided by Emmanuel Cole, is not consistent with the information provided by staff of the Bill Clinton Foundation for Peace to him, and he has no reason to doubt anything that he has been told. The information has been provided to him by senior members of staff who he has known for a number of years, and who have no reason to lie.

Dr Kodi accepted his reference to allegations of difficulties/mistreatment on return only coming from persons who had been forcedly returned from the UK, is a reference to the claims made by Catherine Ramos in ‘Unsafe Return III’. Dr Kodi maintained his opinion that all failed asylum seekers are at risk upon return to the DRC. He said he had not simply relied upon the reports of Catherine Ramos but had made his own enquiries from other sources too.

Mr Hansen referred Dr Kodi to the report of Catherine Ramos, Unsafe Return III that he relies upon. Dr Kodi accepted Catherine Ramos refers to the period 2015 to 2019 and considered the position of 18/19 returnees monitored during that period. He accepted that the last returnee that was referred to as ‘case Study 18’in the report, was a female failed asylum seeker who had been removed on her own passport on 26 May 2018, before President Tshisekedi was elected. He accepted that in itself, is significant, but rejected the suggestion that Catherine Ramos is not an independent and dispassionate researcher.

Dr Kodi confirmed that in reaching his opinion in his first reportthat there have been no significant changes to the returns process and the risk to failed asylum seekers since President Tshisekedi came to power, he had had telephone conversations with two immigration officials and three human rights activists who had previously provided him with information about the treatment by immigration officials at Ndjili airport of returnees, while he was working on other DRC country expert reports. For fear of reprisals by the DRC authorities and given the sensitivity of the issue, they all talked on condition of anonymity. He had taken notes of the interviews but, consistent with the methodology adopted by many other researchers, he disposed of the notes to ensure the notes could not fall into the wrong hands. Dr Kodi claimed in paragraph [68] of his first report that as early as January 2019 he was informed that the treatment of returnees under the new Tshisekedi regime was a mere continuation of practices they had known under the former President Kabila.

When Mr Hansen suggested to Dr Kodi that the information he relies upon is already out of date because he has not returned to his sources for an update since March 2021, Dr Kodi said that he has no information that indicates there have been any changes since then. We asked Dr Kodi whether he had been provided with any information about the individuals that had been targeted or their profiles. Dr Kodi said that the view was that all people, whether leaders or rank and file members, are treated the same. Dr Kodi’s sources did not refer to the individuals’ activities.

We asked Dr Kodi to identify the risk now to failed asylum seekers and whether there is any evidence that he relies upon, that post-dates the information that was given to him in March 2021. Dr Kodi said he has not had any information that undermines or is contrary to what he had previously been told and so he believes the information provided to him is still valid. We asked Dr Kodi whether, having accepted that the formation of the Sacred Union and the side-lining of the former president is a significant development, which might impact on his assessment of the risk now. He said the culture in the security forces has not changed. He accepted the risk depends on the particular profile of an individual.

Dr Kodi accepted a FAS can return to the DRC using their passport and laissez-passers or emergency travel documents (“ETD”) issued by the DGM. He accepted an ETD is issued after a face-to-face interview and that the authorities do not at that stage, identify the individual as a FAS or the basis of any protection claim. He was not prepared to accept that the focus of the interview is upon the nationality of the individual and relied upon what he has been told as to what really happens. He maintained that the reality is that the DGM Attaché who is seconded to the DRC Embassy, interviews the individual and asks about the individual’s activities in the UK and the reason for any protection claim or any prison sentence imposed. He denied that his opinions are based upon speculation, and maintained his evidence is based upon the information provided by the sources that he consulted, which he takes seriously. He was prepared to accept that there is some distinction to be drawn between FAS and political opponents but maintained that all returnees who have claimed asylum are considered to be traitors. He said those with any political profile are at an increased risk.

Mr Hansen referred Dr Kodi to his evidence in his first report that the DRC scrutinises returnees from the UK more closely and treats them more harshly than those coming from other countries. Dr Kodi was referred to the reference in his first reportto the Bill Clinton Foundation for Peace confirming the existence of a “Wanted List” at the airport in Kinshasa against which the names of returnees are checked. It was put to Dr Kodi that although he confirms he is not privy to any information on how a DRC national can end up on a “Wanted List”, how it is disseminated, who has access to it, and how long a person will remain on that list, he was prepared to speculate in response to written questions thatfrom the information provided by BCFP, one can understand that it is the names of the persons who are considered as “dangerous” or “combatants” , i.e. persons who have actively opposed the Government that end up in the “Wanted List”. He accepted he does not know how an individual might come to be on a ‘wanted list’.

As far as the monitoring of the opposition and diaspora is concerned, Mr Hansen referred Dr Kodi to the evidence set out in his second reportof Ardent Kabambi, a member of PPRD being arrested and detained in August 2019 on his return from Europe for having posted on social media a video in which he criticised President Tahisekedi. Mr Hansen asked whether Dr Kodi was able to provide any other examples of people abroad having come to the adverse attention of the authorities and targeted since President Tshisekedi was elected. Dr Kodi said that news on a YouTube channel announced that two residents of the UK that travelled back to the DRC were arrested in December 2021 on arrival. Their families had informed the media and appealed to various people to intervene. Dr Kodi said they were held incommunicado for 7 days. Asked whether he had evidence of other incidents, Dr Kodi said that he had not covered the entire period following President Tshisekedi coming to power, and they were the only three incidents for which he has any concrete evidence.

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.

Dr Kodi was questioned about his claim in his report that between July 2019 and June 2020, the Congolese diaspora was about 12,000 people, 8000 of whom live in London. He accepted that is difficult to reconcile with the figure of 20,000 referred to in the respondent’s CPIN. He accepted however that there are five to ten members of staff at the DRC Embassy in London. When it was suggested by Mr Hansen that the staff would be unable to complete any large-scale monitoring of the diaspora in the UK, Dr Kodi said that there are only a handful of YouTube channels that are used by the diaspora. Dr Kodi confirmed that he is not aware of any recent demonstrations outside the Embassy. Dr Kodi said there have been demonstrations since President Tshisekedi came to power, but Dr Kodi did not have the dates.

The parties’ submissions are set out in the skeleton arguments that were provided to us in advance of the hearing. We were also provided with written closing submissions after we had heard the evidence and we heard brief oral submissions from Mr Bazini and Mr Hansen. We do not recite the submissions at any length in this decision and what follows is a summary.