On 22^nd May 2023 the Upper Tribunal published a new country guidance on case on Democratic Republic of Congo, PO (DRC – Post 2018 elections) (CG) [2023] UKUT 00117. PO considers the risk of persecution for political opponents following the election of Felix Tshisekedi in 2019, significantly narrowing the scope for those claiming asylum based on their fear of political persecution. 

As far as it relates to the risk of persecution this new case replaces 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.

The case makes two key findings which will impact political claims:

1. Actual or perceived opponents of former President Kabila are not at real risk of persecution;
2. Rank-and-file members of opposition political parties or opponents of President Tshisekedi and/or the Sacred Union are not reasonably likely to be at real risk. Although this must be distinguished from high-profile opponents who may be at risk in some circumstances.

That said, as always, an assessment of individual circumstances should be carried out by looking at the particular characteristics of that person and their political involvement. The Upper Tribunal has given further guidance on factors which might impact point 2, above. These include but are not limited to:

1. Their role and profile, including involvement in activity that is likely to have brought them to the adverse attention of the Tshisekedi regime.
2. The political party of which the individual is an officer or member, or to which the views of the individual are aligned.
3. The political party’s position or the individual’s views towards President Tshisekedi and the Sacred Union.
4. The nature and frequency of the individual’s activities in opposition to Tshisekedi’s Sacred Union and to what extent the authorities know about him/her.

It is unlikely that a regular member of any opposition party or group will have a sufficient profile such that they will be at real risk upon return without more.

The Upper Tribunal also reached several other new conclusions which will restrict those claiming asylum from the Democratic Republic of the Congo. Members of the Movement for the Liberation of the Congo and Ensemble pour le Changement are no longer at risk of being targeted. Members and activists associated with the Congolese Support Group are not at risk upon return to the country on account of their actual or perceived political opinion or sur place activities in the UK.

Journalists, media workers or bloggers are also not likely to face treatment that amounts to persecution or serious harm unless they are considered to be sufficiently high-profile opponents of President Tshisekedi. People with a significant and visible profile within the Alliance of Patriots for the Refoundation of the Congo (leaders, office bearers and spokespersons) may be at risk upon returning to the DRC. Rank-and-file members are unlikely to fall within this category.

Failed asylum seekers are not at risk on return simply because they are failed asylum seekers and there is no basis in the evidence before us to depart from the guidance set out in BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293. There is also no credible evidence that the current authorities in the country are interested in monitoring the diaspora community in the UK.

This judgement marks a tighter approach towards political claims from the Democratic Republic of the Congo, limiting the scope of risk to those with a demonstrably ‘high profile’.