ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
REF: AA02413/2011 + AA15716/2010
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
Lord Justice Moore-Bick
Lord Justice Rimer
| (1) KS (Burma) &
|(2) NL (Burma)
|- v -
|Secretary of State for the Home Department
Mr Philip Nathan and Mr Richard Moules (instructed by Messrs Scudamores) for the Appellant (2)
Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Respondent
Hearing date : 17 January 2013
Crown Copyright ©
Lord Justice Maurice Kay :
The country guidance
"92 We take the view that participation in demonstrations outside the Burmese Embassy by Burmese nationals is likely to be recorded by the Burmese authorities in London and made known to the Burmese authorities in Burma; we express the view that those Burmese nationals participating on a regular basis are likely to have been photographed by the Burmese authorities and identified. We are satisfied that if such a person is returned to Burma and there is an additional factor which would trigger the attention of the Burmese authorities such as the lack of a valid Burmese passport or the absence of permission to exit Burma or previously having come to the adverse attention of the authorities as an opponent of the authorities or having a connection with known political opponents there is a real risk of persecution and Article 3 ill-treatment on return to Burma. It may well be that a pro-democracy demonstrator outside the Burmese Embassy known to the authorities to have a real commitment to the cause without an additional risk factor would equally be at risk but each case must be determined on its own facts.
93. Nevertheless despite Mr Morland's view that the Burmese authorities were unpredictable in their treatment of individuals and would regard demonstrations outside the Embassy in London as an affront to the regime, we find it difficult to accept that the Burmese government would persecute someone whom they know to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum. As the Tribunal in HM found, if the Burmese authorities had reason to believe that a returnee had made a claim for asylum in the United Kingdom which had failed, that in itself was unlikely to attract the adverse interest of the Burmese authorities. That suggests that the Burmese authorities would be aware that the returnee had advanced some criticism of the regime in order to mount a claim for asylum yet even then would not be inclined to persecute him unless there were some other evidence of opposition. We think it reasonable to draw a distinction between demonstrations in Burma, where it is inconceivable that a person would demonstrate unless he opposed the regime and demonstrations in the United Kingdom, in which a hanger on with no real commitment to the oppositionist cause might participate in the hope of creating a false entitlement to refugee status. We are not prepared to accept that the Burmese government with their spies in the Burmese community would not appreciate the difference between a genuine opponent and a hanger on. We therefore take the view that it is unlikely that a hanger on would be at a real risk of persecution on return to Burma on account of merely having participated in demonstrations but each case must be decided on its own facts."
The Qualification Directive
"It is necessary to introduce common concepts of protection needs arising sur place."
"The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country "
Thus, motive is a material consideration but it is not automatically dispositive.
2 "A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on activities which have been engaged in by the applicant since he left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin.
3. Without prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall normally not be granted refugee status, if the risk of persecution is based on circumstances which the applicant has created by his own decision since leaving the country of origin."
Article 5.3 is, in terms, limited to a "subsequent application".
"A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activities which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return."
The words "in particular" point to the provision being non-exhaustive.
YB (Eritrea) v Secretary of State for the Home Department
" I do not accept that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered."
"13. A relevant difference is thus recognised between activities in this country which, while not necessary, are legitimately pursued by a political dissident against his or her own government and may expose him or her to a risk of ill-treatment on return, and activities which are pursued with the motive not of expressing dissent but of creating or aggravating such a risk. But the difference, while relevant, is not critical, because all three formulations recognise that opportunistic activity sur place is not an automatic bar to asylum. The difficulty is in knowing when the bar can eventually come down. To postulate, as in Danian, that the consequence of a finding that the claimant's activity in the UK has been entirely opportunistic is that 'his credibility is likely to be low' is, with respect, to beg the question: credibility about what?. He has ex-hypothesi already been believed about his activity and (probably) disbelieved about his motive. Whether his consequent fear of persecution or ill-treatment is well-founded is then an objective question. And if it is well-founded, then to disbelieve him when he says it is a fear he now entertains may verge on the perverse.
14. The Directive does not directly confront this problem by, for example, simply shutting out purely opportunistic claims. Its sole permitted purpose is to set common minimum standards for the implementation of the Geneva Convention, and it could probably not have adopted such a rule consistently with the governing definition of a refugee in Article 1A of the Convention. But by Article 5(3), perhaps oddly, it does allow 'subsequent' that is, presumably, repeat-applications to be excluded if these are based on activity sur place, whether opportunistic or not.
15. For the rest, it is evident from the way Article 5(2) is formulated that activities other than bona fide political protest can create refugee status sur place. What then is the purpose of Article 4(3)(d)? The answer is given in the text itself: it is 'to assess whether these activities will expose the applicant to persecution or serious harm if returned'. This would seem not to be the purpose identified in Danian. It suggests that what will initially be for enquiry is whether the authorities in the country of origin are likely to observe and record the claimant's activity, and it appears to countenance a possible finding that the authorities will realise, or be able to be persuaded, that the activity was opportunistic and insincere. In that event which can only in practice affect opportunistic claimants the fear of consequent ill-treatment may be ill-founded."
The decisions of the UT in the present appeals post-dated YB. It is next necessary to set out the approach of the UT to these appeals.
The approach of the UT
"92. In my judgment it is reasonably likely that those 'anti-regime activities' which I accept that the appellant has participated in in this country have been undertaken in 'bad faith', that is undertaken with the motive not of expressing dissent but of creating or aggravating any risk on return to strengthen his case for remaining in the United Kingdom.
93. Of course, the fact that relevant activities have probably been carried out in 'bad faith' is by no means the end of the matter, as per YB (Eritrea). But even taking the appellant's case at its highest, I cannot find that a real risk of persecutory ill-treatment on return is established from those elements of his evidence that I have accepted. In reaching that conclusion I have particularly taken into account the point in the following paragraphs.
94. I consider it inherently unlikely that agents of the Burmese regime would be so interested in someone at the appellant's level that they would be troubled to monitor what he is doing and/or would be troubled to persecute him on return to Burma apart from anything else, it must be obvious to the regime that there are some asylum seekers, such as this appellant, who are undertaking their relevant activities in 'bad faith'. The appellant cannot properly be considered to be a prominent or high profile campaigner vis-ΰ-vis the Burmese government.
95. To put it in the relevant jargon, the evidence overall very strongly suggests that the appellant and his sister are no more than the sort of 'hangers-on' referred to in paragraph 93 of TL.
96. the appellant himself indicated that he was no more at risk than the 'thousands' of other people who have attended demonstrations in this country in a similar way."
The UT found no error of law in this approach.
"51. I did not find that the appellant is genuinely interested or committed to political opposition to the current regime in Burma. I found that her attendance at the demonstrations and meetings is caused by the desire to enhance her asylum claim.
52. I accepted that TL is authority for the proposition that the Burmese authorities will know her name. Having not accepted the appellant's evidence that she was arrested and detained on the two occasions in Burma I did not find that there was a real risk that she will be regarded by the Burmese authorities as anything other than a 'hanger on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum'. The appellant will be able to truthfully tell the Burmese authorities, if questioned on return, that she had run out of money to pay for her college fees and therefore had to claim asylum in order to avoid being removed."
In finding that the FTT had not fallen into legal error, the Deputy Judge sitting in the UT stated:
"22. I find that the Immigration Judge has asked himself the right questions. He has considered how the appellant will be perceived by the authorities on return. He was entitled to take into account the appellant's motive in coming to his conclusions. The Immigration Judge considered the appellants' activities as a whole and properly applied the case of TL to the facts of the appellants' case as he found them."
The grounds of appeal to this court
"12.2 A reported determination bearing the letters CG shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence As a result, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.
12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law."
"The system of political control that they set up endures to the present day and was said to be based on the East German Stasi. It relied on random persecution of the civilian population who never knew whom they could trust because of the belief that the MI had thousands of informers. Any sign of dissent, even minor, was savagely punished. There was no evidence that a distinction between minor and major actions would be made for those Burmese citizens returning home who had engaged in anti-government activity abroad
In his opinion pro-democracy demonstrations outside the Burmese Embassy were anathema to the regime.
His opinion was because of the generally effective suppression of dissent inside Burma activity outside assumed disproportionate importance. Security cameras were attached to the Embassy and were capable of covering demonstrations; additionally, Mr Morland referred to photographic evidence of officials within the embassy taking pictures of demonstrators and to the testimony of U Khin Maung Kyi, a former diplomat who defected from the Burmese Embassy in London after the national uprising of 1988, given in a number of asylum cases. His evidence was that during every demonstration, without exception, military intelligence staff would video and take photographs of demonstrators and copies of these pictures were then sent to Rangoon. Efforts were also made to identify each demonstrator by the security personnel of the Embassy. This was done by consulting records of Burmese passport holders and also informants. there was no evidence that a distinction between minor and major actions, which was evidently not observed inside Burma, should come into play when Burmese who had opposed the government to one degree or another while abroad returned home into the Burmese jurisdiction.
The evidence indicated that demonstrators outside the Embassy were photographed, that security staff had the means to identify demonstrators, and that the information was relayed back to Rangoon. Any manifestation of opposition was punished by the government which exercised a policy of zero tolerance.
It was not inevitable that anyone who had demonstrated in London would be punished on return but he was certain that the authorities had the capability to identify people in photographs and that this information was then sent to Rangoon, where people would be treated in the same way as they would have been had the 'offence' been committed in Burma.
The government was irregular in its habits; it was arbitrary in its actions either for reasons of incompetence or because 'they wanted to keep people guessing'. Either way, it was difficult to predict the actions of the authorities.
He was not aware of any expert opinion which expressed views contrary to those he had set out.
The Burmese authorities regarded demonstrating in front of the Embassy as an affront which brought the country into disrepute and therefore it was likely they would act against those participating in such activities."
"The conclusion we have reached in relation to how we should approach Mr Morland's evidence is that similar evidence by him was accepted by the tribunal in HM, the respondent has not commissioned a report from an expert herself and, for reasons which we have given, the matters which have been advanced by [counsel for the Secretary of State] do not detract from the value of Mr Morland's evidence as an expert witness."
" we take the view that it cannot yet be said that there is a real likelihood of change in the attitude of the Burma government towards respecting human rights and the freedom of political dissent. We accept the view of Mr Morland that recent events upon which the respondent relies to assert that changes for the better in Burma are no more than 'window dressing' and that it remains to be seen whether any enduring changes are made."
" we find it difficult to accept that the Burmese government would persecute someone whom they knew to be a hanger on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum if the Burmese authorities had reason to believe that a returnee had made a claim for asylum in the United Kingdom which had failed, that in itself was unlikely to attract the adverse interest of the Burmese authorities. That suggests that the Burmese authorities would be aware that the returnee had advanced some criticism of the regime in order to mount a claim for asylum yet even then would not be inclined to persecute unless there were other evidence of opposition. We think it reasonable to draw a distinction between demonstrations in Burma and demonstrations in the United Kingdom, in which a hanger on with no real commitment to the oppositionist cause might participate in the hope of creating false entitlement to refugee status. We are not prepared to accept that the Burmese government with their spies in the Burmese community would not appreciate the difference between a genuine opponent and a hanger on."
This led to the conclusion that it is unlikely that a hanger on would be at a real risk of persecution on return to Burma on account of merely having participated in demonstrations but that "each case must be decided on its own facts".
Lord Justice Moore-Bick:
Lord Justice Rimer: