SA and IA (Undocumented Kurds) Syria CG  UKAIT 00006
Date of hearing: 10-11 November 2008
Date Determination notified: 02 February 2009
|SA and IA
|Secretary of State for the Home Department||RESPONDENT|
1. The discrimination and deprivations experienced by Syrian Kurds are not such as to amount to persecution or breach of their human rights if returned to Syria.
2. A person with an actual or perceived profile of being anti-regime would be at real risk of persecution by the authorities on return to Syria. The greatest risk is to Islamists but the risk extends to other groups such as Kurdish or human rights or democracy activists.
3. There is no internal relocation option for a person who is perceived by the Syrian authorities to have an anti-regime political profile.
4. Anti-regime activities undertaken by Syrians abroad, which are held to be credible and of which the Syrian authorities are aware, will contribute to their risk profile on return and will be taken as seriously as prior anti-regime activity in Syria.
5. A rare attendance at a crowded demonstration outside the Syrian Embassy by a person with no other political involvement or activity from which he might be identified (for example by a person who is simply seeking to bolster an otherwise weak asylum claim) will not constitute a real risk of coming to the adverse attention of the Syrian authorities. However regular attendances at such demonstrations over a lengthy period of time would increase the risk profile, as would membership of and active involvement in other overt political activities and/or organisations which might be penetrated by informers. The greater and more varied the activity, the greater the risk. The extent of the risk is fact sensitive in each case
6. There is no real risk that leaving Syria illegally would, in the absence of additional aggravating factors, result in ill-treatment on return amounting to persecution or a breach of human rights.
7. A failed asylum seeker will not be perceived as being an opponent of the regime simply by reason of having claimed asylum abroad and will not as such be at real risk of persecutory ill-treatment on return.
8. A stateless, undocumented, Kurd who left Syria illegally and is a failed asylum seeker but is not perceived by the Syrian authorities as having an anti-regime profile, will not be at real risk of persecutory ill-treatment or a material breach of his human rights on return
COUNTRY GUIDANCE IN AR
"88. Taking these matters together we have concluded that the deprivations experienced by Syrian Kurds are not such as to amount to persecution or breach of their human rights if returned to Syria. It is not without significance in this regard that the appellant at interview said that he had experienced no problems as a Kurd prior to the events of 2004 which were disbelieved by the Adjudicator. Clearly he would have had to put up with deprivations of the kind we have set out above but we do not consider that these materially damaged or would damage the quality of his life and nor could anything different be said with regard to the situation of any other person living as a stateless Kurd whether Ajanib or Maktoumeen in Syria.
92. We assess risk to the appellant on return on the basis first of all that he has no political history in the light of the Adjudicator's findings in this regard which were not effectively challenged. There is no evidence to indicate that the authorities would be aware that he has applied for asylum in the United Kingdom. As Mr Ouseley suggested, Dr George's views on this were essentially speculative as to the ability of the security services in Syria monitoring the activities of Syrians in the United Kingdom. In our view the evidence shows that the appellant would face no more than a risk of imprisonment potentially up to a period of three months. We do not consider that the evidence shows a real risk of ill-treatment giving rise to a breach of his protected rights on return in that regard. Accordingly we do not consider that the risk factor with regard to this aspect of his claim is such as to place him at a real risk of persecution or breach of his human rights. We see no reason to disagree with the earlier conclusions of the IAT in SY (Kurd – No Political Profile) Syria CG  UKIAT 00039 to similar effect, and this decision should be understood as updating SY, therefore.
1. All appeals were for reconsideration on the basis of the findings of fact made by the original Immigration Judges.
2. Mr Stanage maintained that the Court of Appeal had identified the material errors of law in the appeals of SA and IA as the failure to consider adequately the objective evidence. This would apply also to AK. Ms Donnelly was inclined to agree but this was subject to confirmation after she had had the chance to read all the files. Ms Donnelly was directed to inform the Tribunal and the Appellants' Representatives within 7 days if the Respondent agreed that the material error of law in each case is inadequate consideration of the objective material. If it is not so agreed, then there will need to be another CMR hearing.
3. As there were no challenges to the respective Immigration Judges' credibility findings and therefore there will be no need for oral evidence from any of the Appellants except possibly for IA on the refugee sur place claim as he claims he has continued his political activity in the UK. The direction was made that IA's Representative shall provide within 14 days to the Respondent and to the Tribunal an updated written statement and the Respondent's Representative shall indicate within 14 days after receipt, whether it is intended to challenge the facts as set out in the statement..
4. Subject to this, the oral evidence will come from the expert witness, Mr George, as per his written report. There may be a second witness on the propensity of the Syrian Embassy to photograph demonstrators. This is not yet certain but will not involve any substantial increase in hearing time. It was further directed that if such a witness were to be called a full written statement capable of standing in place of evidence in chief shall be served not later than 14 days before the hearing and that if this witness is a refugee, his Home Office number shall be indicated on the statement.
THE APPELLANTS' CLAIMS
"2. The Appellants, SA and IA, both come from Syria and are of Kurdish ethnicity. Kurds are the largest non-Arab minority in Syria, comprising approximately 10% of the population of 18.5 million. Many are denied Syrian nationality by the Syrian Government. The Appellants are both stateless, and unable to obtain travel documents for travel outside Syria.
3. SA arrived in the UK on 22 March 2005, and claimed asylum the next day. His application was refused. He appealed to the AIT, which dismissed his appeal. He claimed to have taken part in anti-government activities and to have fled from Syria when he knew that security forces were on his track. His account of those matters was disbelieved by the AIT, and there is no appeal against that finding. The basis of his appeal, in summary, is that the Tribunal fail to deal properly with the risks he would face on return as a Kurd who had left Syria unlawfully and made an unsuccessful claim for asylum.
4. IA arrived in the UK on 11 February 2004 and claimed asylum five days later. His claim was rejected and he appealed. He claimed that he had been threatened by officials of the Ba'ath party with torture unless he joined the party. Under threats, he agreed to report on the activities of fellow Kurds in the area, but instead he fled the country. At the first hearing of his appeal, this account was rejected and the appeal was dismissed. Reconsideration was ordered because the Tribunal had failed properly to consider the risk to him on his return as a failed asylum seeker.
5. A further matter was raised on the reconsideration. From 2005, IA took part in a number of anti-government demonstrations outside the Syrian Embassy. It was argued on his behalf that this would heighten the risk to him if he were returned to Syria. The AIT on reconsideration dismissed his appeal. The basis of his appeal to this court is that the Tribunal failed to deal properly with the risk he would face on return both (as in SA's case) as a Kurd who has left Syria unlawfully and made an unsuccessful claim for asylum, and also on account of his political activities in the UK."
"22. I am troubled by the points raised by both Appellants, and I regret that the Respondent has not been able to put those troubles to rest, in my judgement. In relation to SA I accept that there is substance in both the main criticisms advanced by Ms Plimmer. To treat the Amnesty International letter as if it was simply a letter written with no identifiable foundation was not a satisfactory way of approaching the document. Amnesty International is a body of high repute and the document did indicate, in broad terms, its sources of information.
23. Inevitably, in the areas that such bodies are investigating, there may be difficulties in obtaining evidence from fully identifiable sources, but Amnesty International are well aware of that. It does not follow that a Tribunal was bound to share their opinions on any particular matter, but the substance of that report did require the Tribunal properly to engage with it. The way in which the determination dealt with the report of Ms Laizer was so cursory as not in substance to engage with its content on the relevant point at all.
24. In the case of IA there is again, in my judgement, substance in both the main points made by Mr Stanage. The evidence put forward by Dr George, about the likelihood of IA being identified by the Syrian authorities as someone hostile to the regime for his activities outside the Syrian Embassy, contained enough substance to require the Tribunal to address it properly. It could not simply be dismissed as not amounting to evidence. Similarly the letter from Amnesty International did apply to IA, and its cogency needed to be evaluated. It was not.
25. For those reasons, I would allow both appeals, and direct that they be remitted for reconsideration. I do so with some regret, because the process has already been protracted. I am conscious in the case of IA that this is the second occasion on which the case will have to be sent back for further consideration. Nothing that I have said in this judgement should be taken to indicate any view on my part that the appeals are likely to be successful in the final analysis. I am far from saying that on the material before either Tribunal the appeals ought necessarily to have been allowed, but I regret that there were, in my judgement, serious errors in the way in which the Tribunals dealt with the issues, for the reasons that I have set out.
26. There is further material before this Court to suggest that the position in Syria may have been changing. There is a report from the Foreign Office, which suggests that although the picture is not wholly good or wholly bad, in some material respects things have become worse since 2006. We are told that there is another country guidance case, supposedly due to be heard in the not too distant future. I am aware that Tribunals are overburdened with cases, but it does seem to be highly desirable that there should be a fresh look at the position of the state of Syrian Kurds who applied unsuccessfully for asylum, as soon as possible. The issues which have been raised in the Amnesty International report need to be evaluated. The sooner they are fully evaluated the better."
THE SUBSTANTIVE HEARING
1. The trial bundle for AK
2. The trial bundle for SA
3. The trial bundle for IA
4. The country guidance case of AR Syria
5. The Court of Appeal judgement in IA(Syria) and SA (Syria)
6. AK's bundle
7. SA's bundle
8. IA's bundle
9. Appellants' objective bundle
10. AK's further bundle
11. Skeleton argument for SA and AK
12. COI letter
14. Home Office statistics on returnees
15. Originals of the copy photographs in bundle 8
16. Written submissions for SA and AK
17. Written submissions for IA
18. Written submissions for the Respondent
19. Supplementary written information from Dr George in response to questions raised at the hearing
20. Further written submissions by way of reply for IA
THE REPRESENTATIVES' WRITTEN SUBMISSIONS
"1 At a hearing at Bradford AIT on 10.11.08, SIJ Batiste and SIJ Taylor directed, following oral evidence from Dr Alan George and Appellant IA, that written submissions should be provided by the parties to the appeals.
2 The Tribunal resolved that the appeal of AK will be heard and determined solely by SIJ Taylor, as a 'follower' case, as matters of credibility arise in that appeal such that it should not be determined jointly with SA and IA. Oral evidence from AK is to be heard by SIJ Taylor on 11.11.08. However, there is evidence submitted in the appeal of AK relevant to the Country Guidance issue (Kurd; illegal exit from Syria; failed asylum seeker); not least the updated expert report of Dr. Alan George dated 5.11.08. It is presumed that whilst the AK's case is to be determined separately from SA and IA, such evidence (specified in more detail below) in AK's case relevant to the Country Guidance issue will be taken into account.Previous Tribunal consideration of risk on return to Kurds, exiting Syria illegally and having claimed asylum in the United Kingdom.
3 It is clear that Kurdish ethnicity may be an exacerbating factor for those who come to the adverse attention of the Syrian state authorities (see para 8 ZB and AK (Kurds - Article 3 - Risk - IFA) Syria  UKIAT 00217). The Tribunal noted in that case the reasons for the Respondent conceding the appeals:"11. It was on the basis of this filed evidence that in the case of both B and K and having regard to their characteristics which we have identified earlier in this determination, the Secretary of State conceded that each would be likely to be identified as a failed asylum seeker who had left the country illegally and was being returned on the basis of temporary papers obtained for that purpose from the Syrian Embassy. This would lead to a real risk that each would be stopped and detained on return. The real possibility of prosecutory [sic] treatment for the combined reasons of ethnicity and perceived or imputed political opinion contrary to the Refugee Convention 1951, and of treatment prohibited by Article 3 of the European Convention of 1950, must be accepted to exist.12. On the basis of the concessions made by Mr Morris it accordingly follows that in the case of B the Secretary of State's appeal is dismissed and B's cross appeal is allowed; in the case of K his appeal is allowed on both asylum and human rights grounds." (emphasis added)
4 In SY (Kurd-No Political Profile) Syria CG  UKIAT 00039, it was held:"21. It would seem to us to be implicit in the concession made on behalf of the Secretary of State in ZB and AK that a Syrian citizen of Kurdish ethnicity who has an accepted past political profile and who left Syria illegally may be at risk on return on account of those factors. Equally it is clear to our mind from RS that a person who left Syria with their own passport and with a proper exit stamp would not be at risk on return as there would be no reason to suspect any opposition to the Syrian state by dint of that departure and subsequent return. The relevant risk issues are well set out in the Canadian document at page 122 of the Appellant's bundle. Clearly the nature of the departure and the profile and background of the individual are of importance. It seems that an application would have to be made either by the Appellant or on his behalf for documentation from the Syrian authorities in order for him to be returned. There must be a risk that a Syrian who approaches the Syrian Embassy or on whose behalf an approach is made for documentation might be regarded by the authorities as somebody who had sought asylum in the United Kingdom. Equally it is clear that no information to that effect would be made available to the Syrian authorities.22. We do not consider that it can properly be said that there is a real risk of an inference of this kind being drawn. The Appellant, on the Adjudicator's adverse credibility findings, is a person who has no political profile in Syria. Any check of Syrian records that might be made by the authorities as a consequence of an application being made for travel documents would reveal nothing to his discredit. It is in our view purely speculative and indeed fanciful to suggest that nevertheless there would be inferred to him an attitude adverse to the interests of the Syrian state by the fact that he was in the United Kingdom and needed travel documentation in order to return. It may be that it would come to light that he had left the country illegally in which case he would face up to three months' imprisonment, but on the one hand that would involve prosecution and on the other hand would not to our mind, given that it is unclear whether such a person would be sentenced at all, quite apart from how long within the three months maximum they might be in prison, be such as to give rise to a real risk of breach of Article 3 rights. ..." (Emphasis added)
5 The Appellants would not necessarily agree with the observation within paragraph 21 of SY that the concession made in ZB and AK was dependent upon those appellants having (some limited) past political profile - it appeared to be on the basis merely that they would be identified as failed asylum seekers who had left Syria illegally and were being returned on temporary travel documents.
6 Certainly, in SY, the proposition that there would be a risk of serious harm to Kurds who had left illegally and were failed asylum seekers was not rejected by the Tribunal - the reason for the appeal failing was that the accepted risk that a Syrian approaching the Syrian Embassy or on whose behalf an approach was made for documentation might be regarded by the authorities as somebody who had sought asylum in the United Kingdom was not, in the assessment of the Tribunal on the basis of the evidence before it, a real risk (para 22).
7 The issue was revisited at paragraphs 89-92 of AR (Kurd: not risk per se) Syria CG  UKAIT 00048. It was asserted in a letter from the British Embassy in Damascus inter alia that it was 'important not to assume that the Syrian authorities would automatically know that an individual had applied for asylum in the United Kingdom' (para 89). Dr Alan George gave evidence in that appeal (summarised at paragraph 90 of AR), citing various reports including a September 2003 Canadian IRB document that if it became known that a person had applied for asylum abroad the consequences to a returnee may be severe.
8 However, it is clear that the Tribunal's reason for dismissing the appeal in AR is contained in paragraph 92, wherein the Tribunal recorded their view that there was 'no evidence to indicate that the authorities would be aware that he has applied for asylum in the United Kingdom", and the Tribunal were of the view that the appellant would face no more than a risk of imprisonment potentially of up to three months for illegally exit, which would not result in Article 3 mistreatment.
9 The Appellants aver that there is now further evidence before the Tribunal establishing to a reasonable degree of likelihood that a past claim for asylum in the United Kingdom would come to the attention of the Syrian authorities either due to enquiries made at the Syrian embassy in London or on return to Damascus.
10 Such evidence is contained inter alia within the expert report of Dr Alan George in AK dated 5.11.08 (bundle 10, pages 8-38), supported by his oral evidence.
11 When the appeal of AK was first heard by SIJ Drabu, IJ T Jones and Dr J O de Barros on 7.2.07, the Tribunal had ' no hesitation in finding (Dr George) as being a man of specialist knowledge. His credentials of expertise are impeccable, and we found him to be measured and objective in his oral evidence" (para 18). (Regrettably, the Tribunal then proceeded to err in law by failing to have sufficient regard to his evidence and a letter dated 4.10.06 from Amnesty International, resulting in the present reconsideration of AK's case).
12 Dr George's expertise is such that the UK Foreign Office have on several occasions invited him to attend briefing sessions for new British Ambassadors to Middle Eastern countries, including Syria, prior to their posting (bundle 10, page 10 para 12).
13 In AR at paragraph 78 the Tribunal questioned the efforts made by Dr George to confirm the truth or lack thereof of suggestions that significant numbers of stateless Kurds were to be granted citizenship. Dr George respectfully addresses this issue at paragraph 46-50 of his report of 5.11.08, confirming his earlier evidence (that there was no real sign of such grant of citizenship on the horizon) as having been accurate. He addresses the Syrian government's current position on this issue at paragraph 52-54 (no progress). Further, the progress of these reforms has been repeatedly 'suspended' or 'stopped' by the government (see quotations from speech made by President Basher al-Assad on 17.7.07 at paragraph 45 of Dr George's report).
14 The Tribunal is therefore invited to conclude that Dr George is an appropriately qualified expert, and to give his evidence significant weight. It is further contended that weight ought not be given to his evidence merely on the basis that his evidence is consistent with other objective evidence - this would miss the point of calling expert evidence - Dr George clearly has sources available to him that are not available to others (eg his contacts within the Syrian embassy in London itself).
15 The Appellants refer in particular to the following passages within Dr George's report of 5.11.08:
Paragraph: Issue: 20 One mukhabarat secret policeman for every 153 adult Syrians 23 Nature of secret police 24-25 Human rights abuses and trends in 2007 - downwards - (quoting from various sources) 27 Numbers of political arrests - 1500 34 onwards Position of Kurds 36 Torture and ill-treatment is routinely inflicted on Syrian Kurdish political detainees whilst they are held incommunicado in Syrian prisons and detention centres. 37 Oppression of Kurds escalated sharply since March 2004 38 Oppression of Kurds continues 40 Fatal shootings of Kurds at Newroz 20.3.08 42-54 No real progress on issue of citizenship (and see para 13 above) 55 Syrian political leaders stated situation on Kurds more difficult 56 Effect of new law Decree 49, effective from 10.9.08; restrictions on construction disproportionately discriminating against Kurds 58 Demonstration against Decree 49 on 2.11.08 leading to 200 arrests 71 Authorities' view of asylum seekers: critique of Amnesty International report of January 2004. Dr George's firm view (middle of paragraph 71) that a Syrian who has applied for asylum will be perceived to be an oppositionist; the authorities are highly unlikely to make a consistent distinction between 'government opponents', and 'government opponents who are politically active', and a claim for asylum would be quite sufficient cause for him to be detained and maltreated on return to Syria, regardless of whether that person has a history of anti-government political activity.
Reference to Canadian IRB report of September 2003: "If it becomes known that they have applied for asylum, the consequences may be severe." This opinion remains valid, according to Canadian IRB report of 1.5.08 (as to which, see further below)
72-73 Same issue 74 Dr George's anonymous contact within the Syrian embassy, a senior and respected official, who is personally involved in matters concerning the return of Syrians to Syria from the UK said ..."however, the Syrian security authorities often continued to view such individuals (i.e. those motivated by economic considerations) with suspicion. Old attitudes died hard ..." (Emphasis added) 75 Assessment of risk as a returned asylum seeker. NB Dr George's oral evidence was that this assessment was purely on the basis of failed asylum seeker status alone. It specifically did not represent his assessment of risk for persons with additional risk factors such as Kurdish ethnicity and illegal departure from Syria. 76 Monitoring of suspected dissidents (insofar as relevant to SA and AK - but more specifically relevant for cases involving an element of UK political activity)
NB The document at page 195 of Bundle 9 (the common objective bundle) clearly shows in the colour copies handed up at the hearing that a tripod is being used (top photo) - the video camera was not hand-held. This would clearly provide steady images even when the camera was zoomed in close to the subjects, facilitating the process of identifying those filmed.
77 Dr. George observes that the British police are able to identify offenders from footage of individuals attending demonstrations in the UK. (And the Appellants observe that this is achieved with substantially fewer (one hopes) than 1 secret policeman for every 153 adult Britons.)
Further NB. The removals statistics provided by present Counsel were for failed asylum seekers (not other immigration categories), and for the last three quarters reported, were 5 per quarter (not per month) (to the nearest 5!). Dr. George suggests that it is reasonable to suppose that the Syrian authorities might apply some of their substantial resources to compare 'their photographic and film records to those relatively few individuals being returned. It would therefore be a relatively easy matter for them to establish whether a particular individual had taken part in an anti-regime demonstration whilst in London.' See also Paragraph 18 of YB (Eritrea) v Secretary of State for the Home Department  EWCA Civ 360.
78 Obtaining travel documentation for return to Syria
An application for a travel document to Syrian embassy in London not only requires that the application be referred to the Foreign ministry in Damascus, but clearance from General Intelligence, one of Syria's key intelligence agencies. 'Even a Syrian without a past political profile will be required, on return to Syria, to report for questioning to the intelligence agencies so that the latter can satisfy themselves that the returnee is not an opponent of the regime. I obtained these details of the procedure from the same Syrian official that I mentioned in Paragraph 74 of my Report.' (Emphasis added)
80 Dr George provides his observations on the finding within the case of SY (Kurd-No Political Profile) Syria CG  UKIAT 00039 that if a Kurd applied for documents at the Syrian embassy in London there would be no real risk of an inference being drawn that he or she had sought asylum in the UK. This is refuted by Dr George's source at the Syrian embassy; Syrian authorities 'might indeed' suspect such a person of being a failed asylum-claimant. As Mr Stanage argues at paragraph 15 of his written submissions in IA, the use of the word 'indeed' strengthens the word 'may' (or here, 'might') such that the phrase as a whole expresses a degree of risk which would found a successful claim for refugee or humanitarian protection. 82-83 Further, and importantly (the Appellants aver), Dr George refers to the Canada IRB report of 1.5.08 (full text at pages 39-41 Bundle 9 - common objective bundle). This provides that, in the context of a person returning to Syria as a person who left illegally, that they will have to report to the immigration department for new documentation; this comprises a visit to the Political Security branch by which the person will be interrogated regarding the earlier motives and reasons for the illegal departure from Syria. Should this arise, it will be very difficult for the returnee to keep the information on a potential asylum application abroad confidential. (Emphasis added) 84 onwards Consequences for illegal exit from Syria 88 " ... it is standard practice for a returnee to be interrogated by the mukhabarat. Bearing in mind the habitual brutality of Syria's security agencies, I would assert that an individual subjected to mukhabarat interrogation would be at real risk of maltreatment. Likewise, I would assert that a person sentenced to imprisonment for leaving Syria illegally would also face a real risk of maltreatment in prison." 89 Arrests of forcibly returned asylum seekers
92 "The Amnesty report noted: 'Scores of Syrian returnees over the last few years, including several juveniles, have been arrested, held in prolonged incommunicado detention and unfairly tried. Many have reportedly been tortured. In the past four years, at least 10 returnees appear to have "disappeared" and several have died, apparently as a result of torture or ill-treatment." 94 Details of persons arrested on arrival in Syria. Whilst their ethnicity is by and large not known, this evidence clearly establishes the Syrian authorities' practice of such detentions 96 Personal record keeping in Syria 98 "The same Danish Refugee Council report cites diplomatic sources in Damascus as stating 'that the exit-entry procedure in Syria has been considerably tightened in recent years."
16 The Appellants also rely on the report of Sheri Laizer dated 1.7.05 (bundle 7, page A11 - A21 (please excuse markings on copies provided to Tribunal).
17 Ms. Laizer should also be accepted an expert entitled to comment on the risk of harm to returnees to Syria - see her cv at page A11-A12. She observes the deterioration in the position of Kurds in Syria at the time of writing (paras 4(i) - (xi), page A13-A18) (and there is no evidence of any improvement in their lot since then; the reverse, in fact).
18 She assesses the risk of harm to SA, as a Kurdish failed asylum seeker who had left Syria illegally, at paragraph 5 (A18-A20). She provides specific evidence of her own experience of the operation of the security services at Damascus airport. See paragraph 5 generally, and in particular, paras 5(ii), (iv), (v), (viii), and (ix). Her conclusion at A21 (iii) that the Appellant SA (and others in his position) would have a political opinion imputed in him is entirely sustainable.
19 The Appellant also relies on the Amnesty International letters dated 4.10.06 (bundle 6 page 165-166, document 26), and of 25.1.08 (bundle 7, page 160-163) which fully support the Appellants' cases. Amnesty's assertions are on the base of sourced material; they set out the nature of the sources at, eg page 160 bundle 7. See specifically the paragraph at the top of page 162; risk on return.
20 The Appellants further refer to the list of essential reading within their original skeleton argument dated 5.11.08.Conclusion
21 Even in paragraph 21 of SY the Tribunal accepted that there was a risk of a previous asylum claim becoming known on return to Syria. On the basis of the current evidence - not all available to earlier Tribunals - it is apparent that the risk is real. The Court of Appeal in MH (Iraq) v SSHD  EWCA Civ 852 recently restated the principle that the burden of proof in relation to future events is discharged 'by showing that there is a real as opposed to a fanciful risk that they will happen (paragraph 22 of that judgement). There is nothing fanciful in the Appellants' fears.
22 The evidence available to the Tribunal also establishes that there is a real risk that where a previous claim for asylum in the UK becomes known to the Syrian authorities on return, a real risk of harm will result (and indeed this does not appear to be disputed in any earlier reported case). In the alternative, a real risk of serious harm will result where additional risk factors of either Kurdish ethnicity or illegal exit from Syria are present, or in the further alternative, where both are present.
23 The Appellant SA requests that his appeal be allowed on the basis set out in paragraph 22 above….
"Introduction and summary
1. IA's appeal was today adjourned part-heard for written submissions after the conclusion of his evidence as to sur place activities and live evidence from Dr Alan George.
2. The Tribunal invited the parties to exchange submissions electronically and gave liberty to the Appellants to respond thereafter to any submissions drafted by the Respondent.
3. IA's main submission is that the real risk of persecution or breach of Art 3 ECHR arising from the cumulative factors set out at paragraph 4 of his skeleton argument [bundle 8, section C, page 3] is proved all the more clearly as a result of the evidence heard today.
Submissions on law
4. IA relies upon the submissions in the aforementioned skeleton argument.
5. IA further and gratefully adopts the submissions made in the skeleton argument submitted on behalf of his fellow Appellants [bundle 11]. The Tribunal's attention is particularly invited to paragraphs 23 and 25 in which principles of law directly relevant to an assessment of risk in the instant case are extracted from Court of Appeal decisions in Batayav v SSHD and YB(Eritrea) v SSHD .
Submissions on objective evidence
6. As to objective evidence, IA again gratefully adopts the extracts already set out in the skeleton argument for SA and AK [bundle 11] at paragraph 30.
7. Those extracts confirm the ever more marked propensity of the Syrian authorities to deploy systematic/frequent/common arbitrary detention, torture, malicious prosecution and imprisonment against oppositionists.
8. To that summary of relevant objective evidence [drawn from bundle 9] IA would advance the following extracts from his own bundle 8, section C as corroboration for his well-founded fear of persecution:
page 83: Freedom House, October 30, 2008: para 3, line 3: the State may charge opponents with "spreading false information";
page 84: Human Rights Watch, October 30, 2008: para 3: the State convicted 12 political activists on vaguely defined charges of "weakening national sentiment" and "spreading false or exaggerated news which would affect the morale of the country" in an attempt (according to the headline) to 'silence critics';
page 85: ibid, line 8: a further charge exists which, says IA, may be particularly easy to level against him, namely "communicating with a foreign country and inciting it to initiate aggression against Syria";
page 113: Human rights Watch, February 5, 2008, para 1: eight out of the twelve opposition activists (NB: apparently not Kurds but rather Syrian nationals-see page 115- and activists within an umbrella group of pro-democracy groups) claim to have been beaten in detention;
page 123: Human Rights Watch, October 2007, at page 154, penultimate paragraph: 'Syrian security agencies frequently arrest activists following their return from trips overseas, apparently as a form of punishment for the activists' discussion of Syrian human rights issues abroad'.
Submissions on expert evidence
9. IA relies upon all reports submitted by Dr George in respect of all three Appellants.
10. It is further submitted that Dr George's oral evidence today has helpfully clarified, and fortified, his conclusion that IA is reasonably likely to face risk of persecution on return.
11. In particular, IA invites the Tribunal to recall the following elements of the oral evidence today:
(a) All of Dr George's sources indicate that the situation for Syrian Kurds has deteriorated since 2006. None says that it has improved;
(b) Dr George only days ago spoke to two Kurdish party leaders who confirm that view;
(c) It is probable that the authorities would be aware of the YouTube video broadcast [reproduced in print at Bundle 8, section C, pages 58-59];
(d) 'Certainly' they are hyper-sensitive to internet activity. An example from Dr George's book was given. A political cartoon critical of Syrian involvement in Lebanon was emailed to the wife of a businessman. Within half an hour of transmission security services arrived at her home;
(e) Email communications are monitored. A's email correspondence with the SHRC is extensively documented and covers a long period of time. Please see bundle 8, section C, pages 14-45 [It is submitted that although translations have not been provided, there can be no doubt that the sender is the SHRC and the recipient therefore in contact with them];
(f) It is 'extremely probable' that filming of demonstrators is undertaken so as to have a record as to who is an oppositionist so that they or their families may be targeted;
(g) There is a hard core of people to attend all demonstrations and there will be at demonstrations faces that become known to the Embassy personnel filming/photographing from within. It is submitted that, notwithstanding a change of hairstyle, IA by his regular attendance at a total of nine demonstrations is reasonably likely to have become a 'known face' easily capable of identification as an oppositionist;
(h) For a stateless Kurd resident in Syria the only type of exit available is an illegal one because a Syrian Kurd will have no passport, therefore cannot apply for an exit visa and is in effect forbidden to travel. It is therefore submitted that the fact of illegal exit, an accepted fact in IA's appeal, would raise suspicion that he is a Kurd and therefore an oppositionist;
(i) The relatively low number of forced returnees (less than 5 per month in recent years) would enable the authorities to search for and root out oppositionists among them;
Submissions on IA's own evidence
12. It is submitted that insofar as it is important to evaluate the genuine nature of IA's political commitment, he has:
(i) travelled a significant distance from Newcastle upon Tyne to London on the nine occasions that he has publicly demonstrated his opposition to the government;
(ii) corresponded by email with the Syrian Human Rights Committee (SHRC) over a prolonged period;
(iii) been less politically active than he would like to be in the Kurdish cause because few Kurds live on Tyneside, many more live in London and IA is therefore prevented by circumstance/NASS from the fuller political involvement which he would choose if resident in London.
Submissions on Home Office evidence
13. Although there was no need to consider in detail the COI information request [bundle 12] at the hearing today, it is significant that its final paragraph appears to corroborate IA's fear of persecution on return.
14. Information from the Immigration and Refugee Board of Canada in May 2008 notes that those who have participated in demonstrations against the Syrian government outside Syrian Embassies 'may indeed have to face prosecution upon return'.
15. It is submitted that the use of the word 'indeed' strengthens the word 'may' such that the phrase as a whole expresses a degree of risk which would found a successful claim for refugee or humanitarian protection. 'May indeed' means 'is reasonably likely to' or 'runs a real risk of'.
16. If a risk of 'prosecution upon return' is thus established then it is submitted that IA's appeal can only succeed because the risk of torture or beatings or disproportionate punishment on politically-motivated charges is plain from all on the objective and expert evidence.
17. IA's appeal is supported by an abundance of:
1. well-sourced objective evidence;
2. well-documented photographic evidence;
3. well-reasoned, recent and researched expert evidence
and should therefore be allowed.
1. The Secretary of State's representative submits that both appeals should be dismissed on the basis that neither appellant would face a real risk of persecution on return to Syria on the basis of being failed asylum seekers of Kurdish origin.
2. In the case of SA, the original finding that he had not made a credible claim about the events before he left Syria stands. His case is therefore that of a failed asylum seeker with no accepted profile with the Syrian authorities.
3. In the case of IA, his claims surrounding events in Syria were not accepted, but he claims risk on return as a result of attending demonstrations in London which he claims have been filmed by the Syrian authorities – a refugee 'sur place' argument.
Submissions on credibility (IA)
4. This appellant has produced photographic evidence of attendance at a number of demonstrations in London (bundle 8A pp 35-47 and 8C 47-73). It is submitted that IA's evidence about why he was attending the demonstrations to the effect that it was his duty as a Kurd to do this, does not sit with his earlier evidence (bundle 8A p4 para 11) that he was not interested in politics. In addition, the appellant has not in fact been involved in Syrian or opposition groups in the United Kingdom. It is submitted that it is therefore speculation that the Syrian authorities might have a record of his name even if they have filmed demonstrators (bundle 8C pp 76-79). The fact that the appellant may be on a mailing list of the Syrian Human Rights Commission is not something that is reasonably likely to be known to the Syrian authorities, notwithstanding the comments made by Dr George about the case of e-mail monitoring which he says takes place within Syria. The Tribunal's attention is also drawn to the fact that the number of hits on the YouTube clip (bundle 8C pp 57-59) is 210 on one printout (p 58) and 297 on another (p 59). These hit counts do not suggest the clip has been very widely viewed.
5. It is noted that the medical report (bundle 8C pp 81-82) submitted in support of IA's claim is undated, and refers to him having flashbacks to torture that he experienced. It is submitted that little weight should be given to this report on the basis that IA never claimed to have been arrested or ill-treated in Syria.
Dr George's reports:-
6. In relation to the updated report on IA (bundle 8C pages 76-79) it is argued that IA's activities will have been monitored and his photograph taken, or he has been filmed. It is submitted that not all those being filmed (if this is the case) are Syrian or Kurdish, and Dr George acknowledged that some of those demonstrating are people resident in the United Kingdom for many years.
7. Dr George quotes from 'indymedia' (bundle 8C p 77 para 6) who assert that the filming may be used to intimidate the families of demonstrators in Syria. In cross examination he acknowledged that he had not been told of any occurrences of this in the individuals he had interviewed or done reports on.
8. In relation to the updated report on AK whose case is being dealt with separately, Dr George deals with the general situation of failed asylum seekers, and submissions are being made on this report in the context of the more general information for the two appellants IA and SA (rather than the sections relating to AK). This report is at bundle 10 pp 8-38.
9. Dr George's brief is set out at paragraph 17 (bundle 10 p 11). It is notable that the instances he cites of those who have faced problems in paragraphs 89 to 93 (bundle 10 pp 32-34) take place between 2002 and the end of 2006. Many have connections with the Muslim Brotherhood, and are clearly distinguishable from Syrian Kurds. The cases cited in paragraph 94 (bundle 10 p 34) are taken from a Syrian Human Rights Committee report and are not broken down as to Kurds and non Kurds; only one of these incident Patricia Dabbour is said to have taken place in 2007.
10. In the penalties section (bundle 10 pp 30 – 32) Dr George cites the penalties for illegal exit, which could be a prison sentence of 7 years hard labour if the seal of Syria is falsified (para 87), but it is clear that none of the appellants have claimed that they used false Syrian documents or falsified these themselves. Any penalty for these appellants therefore would be at the lower end of the scale.
Comments on Country Guidance issue on risk on return:-
11. It is submitted that the material put forward both in terms of Dr George's opinion and the objective material does not demonstrate that the situation for Syrian Kurds on return having left illegally has become any worse. See above comments in relation to the cases cited. It is submitted that the Country Guidance on this issue should follow the same principles as AR Syria CG  UKAIT 00048.
Objective material to which the Tribunal's attention is specifically drawn:-
(Bundle 9 pp 68-91) Danish Refugee Council – report from a fact finding mission to Damascus 15-22 January 2007
18.104.22.168, Mistreatment of Detainees:
"An Embassy in Damascus (2) informed the delegation that there were no reports of slapping, beating or torture of people detained because of illegal departure from Syria. It was assumed that slapping, beating or torture was not used against people detained for minor crimes as for instance illegal departure."
Deals in detail with penalties for illegal departure and quotes a number of sources, in only one of which is there a reference to the possibility of abuse:
Embassy 2 Their source had no knowledge of cases where a Syrian cit returning from Sweden has been subject to a fine or prison sentence due to illegal exit….Knew of cases where returning cit interrogated about the reasons for loss of PPT by Immig Ser & detained 2/3 days by Security Services (SS) Embassy 1 persons who have exited S illegally will be detained & questioned on return. Source had no knowledge of the penalties for illegal exit and knew of no cases where illegal exit lead to a penalty……….detained & questioned by SS, but most often released after a short period of detention" Embassy 3 "no knowledge of cases where a Syrian cit …had been sentenced to a fine or prison due to illegal exit…" …indicated that the regulations in the Syrian Penal Code regarding illegal exit may have been abolished, but not poss to confirm this information yet." …not normally a problem to leave for economic reasons or to apply for asylum abroad…..(which) is not regarded by the Syrian authorities …as an expression of anti-govt activities. The authorities have a certain understanding for the fact that Syrians may choose to go abroad due to unemployment etc." …2 cases of FAS Syrians "In one the returnee was detained by SS and held for I month without trial. The reason for the detention was unknown. In another case the returnee admitted having participated in anti-govt demonstrations abroad…referred to the court but eventually released with a suspended sentence of 2 months imprisonment." Local Lawyer "normally illegal exit …is not punished. Persons who have left illegally & re-enter …holding a laissez-passer will be interrogated in order for the authorities to establish the identity of the person."…person interrogated first by Immigration authorities and after that referred to SS, who decide if a new PPT can be issued….most cases SS decides can be issued even in cases where person originally left illegally. The official range of penalty for illegal exit is 6 months imprisonment." Embassy 4 Alternative source "generally persons who left illegally and then return…will be kept by the intelligence agency from a few days to 2-3 weeks and interrogated. During this period of time mistreatment may happen" Local Lawyer "having applied for asylum abroad does not in itself lead to detention or imprisonment upon return…re-entry…in general is not a problem." Local Lawyer Military Service deserters "will be arrested and sent to complete their military service." HR Org "re-entry can lead to problems for HR activists and political activists, including Kurds who are politically active, if the concerned persons are already known by the Syrian authorities." Kurdish rep 4 returning Kurds "may face arrest due to illegal exit from Syria …risk depends on how much the authorities know about the activities of the returning person." Referred to a Syrian Kurd sentenced by Syrian court for separatist activity on return from Germany…2 Kurds detained on ret from Iraq, one for 9mths without trial, the other being tried by court. Another case where Kurd & his son arrested on return from Norway." Attorney 1 …"usual penalty for illegal exit …is a fine".
Commentary on the Amnesty International letter (of 26 Jan 2008)
(Bundle 9 p 160 – 166). It is submitted that the letter does not cite instances of failed asylum seekers being arrested or detained on their return (p162 final paragraph). The report (p 161 2nd para)) refers to systematic persecution of Syrian Kurds, particularly those who are members of Kurdish organisations. By contrast the Amnesty International report for Syria for 2008 published 28 May 2008 (bundle 10 page 1-4) refers to identity based discrimination for Syrian Kurds and denial of equal access to social and economic rights.
US State Department Report (bundle 9 pp12-37).
It is submitted that whilst the situation for Kurds (pp 34-35) may be discriminatory, the instances cited are not of widespread persecution solely for being a Kurd. The arrests cited mostly refer to leaders of opposition parties rather than widespread persecution of all Kurds.
It is submitted that for both IA and SA the risk as a Syrian Kurdish failed asylum seeker would be at worst the possibility of a fine or a short term of imprisonment. It is submitted that this is not a real risk of persecution or a breach of Article 3. With regard to IA the risk needs to be assessed in relation to whether or not it is accepted that his UK activities have been monitored by the Syrian authorities and that he would as a result be identified on his return.
It is respectfully submitted that the appeals should be dismissed on all grounds."
18. Counsel has within the last hour had sight of written submissions on behalf of the Respondent in this matter.
19. The Respondent, no doubt inadvertently, therein invites the Tribunal to err in law. A brief rebuttal of certain submissions is therefore necessary.
20. As to the Respondent's paragraph 4:
Counsel cannot find a bundle 8A but in any event recalls that it has been IA's case throughout that he has no desire to join any Kurdish nationalist political party but to promote the Kurdish cause free from political party restrictions. Such was his oral evidence before Mr Aitken at North Shields.
IA's oral evidence yesterday made abundantly clear his commitment to that cause:
He explained that he attended demonstrations because
'I am Kurdish; the world knows how much Syrian Kurds suffer; We face unbelievable difficulties; They take our properties, belongings, not giving us our ID cards; If we don't go to defend Kurdish rights whatever the Syrian government does to Kurds no-one would know about it. I am trying by going to demonstrations to stop the injustices being done to the Kurdish people'.
21. Further, as to the Respondent's paragraph 4, it is potentially misleading to suggest that 'the appellant has not in fact been involved in Syrian or opposition groups in the United Kingdom'. It is right that he is not a member of any group but the Tribunal has seen the overtly political and oppositionist nature of the demonstrations and has heard from Dr George that they are mainly organised by the Western Kurdistan Association.
It would therefore be misconceived to suggest that A, if he came to the attention of the authorities at all, would be deemed apolitical by them.
22. Further, as to the Respondent's paragraph 4, the number of hits on the YouTube site if more than, say, 10 would, in IA's submission, lead to the conclusion that there is a real risk that someone from the Embassy was one of the ten viewers.
23. As to the Respondent's paragraph 5, IA confirms that he does not rely on the contents of the medical report. Counsel has made no reference to it and had not advised that it be before the Tribunal on this occasion.
24. As to the Respondent's paragraph 6, it is submitted that the fact that not all demonstrators are Syrian or Kurdish only increases the likelihood that the Embassy staff will focus their attention on those who are or appear to be Kurdish such as IA.
25. As to the Respondent's paragraph 7, it is submitted that, in law as in logic, absence of evidence is not evidence of absence.
26. As to the Respondent's paragraph 10, IA is unsure what is meant by a penalty 'at the lower end of the scale'. Torture in detention is systematic/common i.e. reasonably likely to attend even a 'short' custodial sentence where cumulative risk factors, as in IA's case, are present: see skeleton argument for IA, para 4, factors (a)-(e).
27. As to the Respondent's extracts from objective material, IA asks the Tribunal to note the information attributed to 'Kurdish rep 4': a Kurd returned from Iraq was detained for 9 months without trial i.e. persecuted.
28. As to the Respondent's 'closing summary' if imprisonment is an alternative to a fine it is a real risk, with the attendant risk of breaches of Art 3 ECHR.
29. IA's appeal should be allowed."
THE EVIDENCE OF DR GEORGE
"9…. Dr George said that whilst it is true that in the past there was a greater likelihood of failed asylum seekers being at risk on return to Syria the conditions are not as bad now, but the improvement is "not by much", and the authorities at the airport may sometimes not assume economic motivation having caused a person to leave…."
"I would add that in 2006 a senior and respected Syrian official who is based at the Syrian Embassy in London and is personally involved in matters concerning the return of Syrians to Syria from the UK told me that there was now some realisation on the part of the Syrian authorities that Syrians who claimed asylum might have done so for purely economic reasons, rather than because they genuinely opposed the regime. He also stated however that the Syrian security authorities often continued to view such individuals (ie those motivated by economic considerations) with suspicion. Old attitudes and died hard, he said."
"The available information on the Syrian authorities' attitude towards asylum applicants is clearly somewhat contradictory. In my opinion however it would be imprudent to assert categorically the claiming asylum abroad in and of itself would never cause adverse attention from the Syrian authorities. I say this because several of the reports on this question cite specific cases where individuals have been targeted solely for having applied for asylum. Evidently, it is something that does happen, albeit that it does not happen routinely or even often. In my view, especially bearing in mind the arbitrary manner in which the Syrian security services conduct themselves, unsuccessful asylum claimants do run the risk, at least, of attracting adverse official attention on their return to Syria."
Dr George added that this passage related specifically to people who claimed asylum and not to those who left Syria illegally. That would be a cumulative risk factor.
"Syrians seeking political asylum abroad are perceived to be government opponents by the Syrian authorities. The very fact of leaving the country to seek asylum abroad is imputed to be a manifestation of opposition to the Syrian government. If in addition the asylum seeker has been affiliated with an unauthorised political party will group, he/she risks arrest and torture upon return to Syria. This is done by the authorities to attempt to extract information about the group and its members."
"Under law 42 of 31 December 1975… any Syrian national who departs his country illegally faces judicial consequences that may in principle result in up to three months imprisonment… the penalties for leaving Syria using false documents or a false identity are much stiffer: ranging from one month to two years…"
"Asad's cult operates as a disciplinary device, generating a politics of public dissimulation in which citizens act as if they revere their leader. A politics of "as if", while it may appear irrational or even foolish at first glance, actually proves politically effective".
"I would add that I have no information as to precisely how Syria's security services identify individual anti-regime demonstrators who had been photographed or filmed. I presume however that they would use a variety of techniques and sources of information, including information from informants….. Far more pertinent would be the risk of identification attendant on unavoidable encounters with the Syrian authorities in the course of his return. To the best of my knowledge, meanwhile, only a small number of Syrian Kurds are returned forcibly to Syria from the UK each year. I would assert that it is reasonable to suppose that the Syrian authorities will apply their photographic and film records to those relatively few individuals being returned. It would therefore be a relatively easy matter for them to establish whether a particular individual had taken part in an anti-regime demonstration whilst in London."
THE EVIDENCE OF IA
OTHER OBJECTIVE EVIDENCE
THE RELEVANT LAW
"It has to reach a well-rounded decision as to whether, in all the circumstances, there is a serious possibility of persecution for a Convention reason…This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending variously on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum-seeker's welfare if they should, in the event occur…..
What is relevant in the present context is the methodology they adopted. Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely. In my judgment, the tribunal's technique in Sayandan of evaluating both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate demonstrates a correct approach. It was also correct for it to assess the cumulative effect of the matters it was considering, particularly if there was a likelihood that they would all affect the applicant at the same time. It will be seen that that tribunal, whose decision predated Manohoran by three months, seems to have experienced no difficulty in deciding whether in the conditions it had evaluated it would be unduly harsh to expect the appellant to live in Colombo. The tribunal in the present case adopted a similar approach when it said that a common-sense approach, rather than a legalistic or formulaic approach, should be adopted (as opposed to considering whether it was more likely than not, or only a serious possibility, that conditions in Colombo would be unduly harsh).
The fact-finder must be careful, however, to evaluate each of the considerations suggested on behalf of the applicant. In my judgment it was completely wrong for the tribunal in the present case to dismiss considerations put forward by experts of the quality who wrote opinions on this case as "pure speculation". It was also quite wrong for it to say that certain matters were "not considerations which we should take into account" merely because in Robinson this court said that such considerations would not in themselves be enough to satisfy the requisite test. It was also wrong for it to consider each matter in isolation as opposed to considering their potential cumulative effect: see now Gnanam  INLR 219 per Tuckey LJ."
"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
"In deciding whether a person has a well founded fear of being persecuted, it is immaterial whether he actually possesses the racial, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecution."
"(1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).
(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;
(b) a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7.
(3) An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention."
OUR GENERAL CONCLUSIONS
1. Is the conclusion in AR - that the likely penalty for illegal exit coupled with prison conditions in Syria would not in itself give rise to a real risk of a breach of protected rights - sustainable in the light of the current evidence?
2. Would a stateless, undocumented Syrian Kurd, who had no real or perceived political profile in Syria, who left Syria illegally and who is a failed asylum seeker, be at real risk of persecution on return? We acknowledge Dr George's view that each of these components is a separate aggravating factor, and shall take that into account. Nevertheless we have aggregated the factors together in posing the question in this way because it appears that they cannot in practice be separated. Dr George maintained, without contradiction, that a stateless, undocumented Kurd is not entitled to a passport and cannot therefore obtain a proper exit visa. Thus if he is a failed asylum seeker he must by definition be outside Syria and have left illegally.
3. To what extent would anti-regime political activity by such a person only after his arrival in the UK, be likely to come to the adverse attention of the Syrian authorities, and with what consequences in terms of risk on return?
The Objective Context
"12. To set the context requires a brief exposition of the nature of the Syrian state. In 1963 the Arab Ba'ath (Renaissance) Socialist Party seized power in Syria in a military coup. One of the coup-makers was Hafez al Assad, who at the time was a captain in the air force. A protracted series of intra-regime struggles culminated in November 1970 with the seizure of power by Assad, who at the time was defence minister. Assad at once set about extending his personal control into every niche of public life.
13. Under Assad, the armed forces and a series of intelligence agencies were expanded and became key agencies of the regime's survival… The multiple and overlapping intelligence agencies employ perhaps 100,000 people. As the country's total population is 16.7 million, there is one secret policeman per 257 Syrians. However 59.5% of Syrians are aged over 15 years and if only these adults are counted the ratio is one secret policeman per 153 Syrians.
14. Since the initial coup of March 1963, a state of emergency has been in force which effectively gives unlimited powers to the security agencies. Although Syria has a constitution which theoretically guarantees human and other rights, the reality is that it is a police state in which citizens have no meaningful recourse to the law, and no protection from abuse by state agencies..
17. Syria's security services are notorious for their casual disregard of human rights… The role of the security services extends far beyond strict security matters and they operate independently and generally outside the control of the legal system. Abuses included arbitrary or unlawful deprivation of life; torture in prison; poor prison conditions; arbitrary arrests and detentions; absence of rule of law; severely restricted civil liberties; discrimination against the Kurdish minority…
21. In the late 1970s Hafez al Assad's regime faced domestic opposition which escalated into a widespread armed rebellion. Although they were not the only parties involved, the Islamic fundamentalist Moslem Brotherhood played the central part in the rebellion. The regime countered with extreme violence…
22. During and in the years after the Islamist-led rebellion, repression by the regime was especially fierce, involving arbitrary arrests, disappearance, torture and murder…
23. To understand the significance of the Moslem Brotherhood involvement in the rebellion it is important to grasp that Syria is a patchwork of ethnic communities and religious groups. Approximately 74% of Syria's 16.7 million population are Sunni Muslims and about 15% are Shi'a (divided into several sub-sects notably the Alawi, Druse and Ismaili). Most of the rest are Christians (mainly Greek Orthodox). Although the country's various religious communities generally live together harmoniously, there is a marked tendency for each to limit interaction with the others. This tendency has a noticeable geographical expression… The Ba'athist regimes that have ruled since 1963, have been dominated by the Alawis - a traditionally low status minority considered by many Sunnis to be heretics… Of the Muslim minorities, the biggest are the Alawis, accounting for some 12% of the population…
26. The Kurds, almost all Sunni Muslim other than the small number of Yazidis, are the largest ethnic/linguistic minority, accounting for about 9% of the population. As non-Arabs in this explicitly Arab nationalist estate and as members of a nation (divided between Turkey, Syria, Iraq and Iran) which has presently unworkable dreams of independent statehood, the Kurds have been subject to much discrimination. As a part of a program to Arabise the North-East it was decreed in 1962 that Kurds who could not prove that they had lived in Syria at least since 1945 would lose their citizenship. A special census in Hassakeh province (adjacent to the Turkish and Iraqi borders) identified about 120,000 as "alien infiltrators" who allegedly had arrived illegally from Turkish Kurdistan. At a stroke they were rendered status, losing their civil and political rights, including the ability to hold a passport, to own land, to work for the government and to be admitted to public hospitals. They and their descendants now number at least 200,000 although estimates ranged as high as 360,000…
29. Oppression of Kurds has escalated sharply since March 2004 when violence at a football match in the north-eastern town of Qamishli sparked rioting that developed into large demonstrations against the Syrian regime by Kurds. Security forces opened fire on demonstrators, killing and wounding many. Hundreds were arrested.. Those detained were maltreated and tortured in several died as a result.. All but about 200 is thought to have been released by December 2004. Amnesty International has received many allegations of torture and ill-treatment from those released…
33. President Hafez Al Assad died in June 2000 and was succeeded as president by his son, Bashar. Although the political atmosphere has lightened in the period since Bashar's assumption of the Presidency, the apparatus of repression remains firmly in place."
"The deprivations experienced by Syrian Kurds are not such as to amount to persecution or breach of their human rights if returned to Syria."
"Persons who have engaged abroad in political activities (eg demonstrations in front of Syrian Embassies against the Syrian Government) may indeed have to face prosecution upon return."
"According to information available to the UNHCR representation in Damascus, and confirmed by a number of European embassies in Syria, the mere unsuccessful application for asylum abroad will not lead per se to prosecution or other forms of persecution in Syria.
1. However, persons who left Syria may have to face prosecution because of illegal departure and this is in many cases most probable.
The Syrian authorities have indicated to the different embassies that mere illegal departure is not considered as a serious crime. This does not apply if there should be any person who is suspected on matters related to terrorism. The same is the case if there is any indication that the person was involved in trafficking activities.
2. Persons who have engaged abroad in political activities (e.g. demonstrations in front of Syrian embassies against the Syrian government) may indeed have to face prosecution upon return…
4. The procedure upon return of the unsuccessful asylum seekers as Syria is the following:
a. The person has to report to the Immigration Department in order to apply for new documentation.
b. The procedure also comprises a visit to the Political Security Branch by which the person will be interrogated regarding their earlier motives and reasons for the illegal departure from Syria. Should this arise, it will be very difficult for the returnee to keep the information on a potential asylum application abroad [sic] confidential. Inquiries on the reasons for an asylum application abroad may follow.
c. Should there be no problem then the person will obtain in about three months new identity documents.
d. Should the authorities come to the conclusion that the person may be considered as an opponent against the regime, the consequences may be very serious."
"Syrians seeking political asylum abroad are perceived to be sympathetic to movements opposed to the Syrian authorities. The act of leaving the country to seek asylum abroad is imputed to be a manifestation of opposition to the Syrian government. According to Amnesty International's information, asylum applicants who have left Syria in an illegal manner are also at risk of arrest, detention and torture upon their return. This applies to the following three categories of returnee.
(j) Those who departed Syria without official authorisation. Government employees are required to obtain permission to leave the country. Men who are leaving the country have to show that they have completed military service or if not, that they have permission to leave.
(k) Those who have used/are using false documentation. Article 428 of the Syrian penal code defines this as documentation "which carries real or false stamps or seals of the Syrian or foreign country for illegal purposes.
(l) Those who are not in possession of a valid Syrian passport.
In instances in which a request for asylum has been refused and the asylum seeker is expelled, he/she may risk imprisonment in Syria ranging from one month to two years if he/she is found to have used false documents or a false identity pursuant to article 452 of the Syrian penal code. In accordance with article 427, a person is punishable by seven years imprisonment with hard labour (though Amnesty International has never heard of any case in which hard labour has been enforced if the seal of the Syrian authorities has been falsified. Falsifying seals of public authorities is punishable by one to three years imprisonment according to article 428 of the Syrian penal code.
Syrian Kurds returning to Syria in the manner described above would face a heightened risk on return due to institutionalised discrimination against Kurds in Syria together with the routine practice of torture and cruel, inhuman and degrading treatment in Syrian detention centres.
Amnesty International can confirm that asylum applicants who have applied for a new passport at the Syrian Embassy for any reason will have been brought to the attention of the Syrian authorities. The fact that they are outside Syria would, by itself, evoke the authorities' interest in them. The Syrian government is known to employ people to carry out surveillance on Syrians living abroad.
I hope this information is understood to be a strong statement that Amnesty International opposes the enforced return of Syrian Kurds of the above profiles to Syria."
Amnesty International also provided a further letter to the Greater Manchester Immigration Aid Unit on 25 January 2008 offering essentially the same opinions.
"There is no evidence to suggest that individuals who have been absent from Syria for any period of time or who are returning failed asylum seekers are liable for adverse treatment by the authorities solely for those reasons. Moreover there is no evidence that an application for asylum abroad, should the authorities become aware that one has been made, will in itself put a Syrian national at risk of state-sponsored ill-treatment amounting to persecution. The grant of asylum or humanitarian protection in such cases is therefore not likely to be appropriate."
OUR CONCLUSIONS ON THE SPECIFIC APPEALS
1. SA's appeal is dismissed on asylum, humanitarian protection and human rights grounds.
2. IA's appeal is allowed on asylum grounds and under Article 3.
Signed Dated 8 December 2008
Senior Immigration Judge Batiste
|2008/11/05||Report of Dr George|
|2008/10/30||Freedom House Release|
|2008/10/17||Reporters Sans Frontieres Release|
|2008/10||Amnesty International Report|
|2008/06/10||Supplemental Report of Dr George|
|2008/05/28||Amnesty International Report|
|2008/05/06||Freedom House Report|
|2008/05/01||IRB of Canada Report|
|2008/03/25||UK FCO Report|
|2008/03/13||Indymedia - 21 pages of photographs at demonstration|
|2008/03/11||US State Department Report for 2007|
|2008/01/25||Amnesty International Letter|
|2008||UK Asylum Statistics Q1|
|2007/06/16||UK Home Office OGN|
|2007/05/23||Amnesty International Report|
|2007/05/09||Freedom House Report|
|2007/01||Danish Refugee Council Report|
|2007||Photographs of Demonstrations|
|2006/11/21||Amnesty International Further Information|
|2006/11/15||Amnesty International Release|
|2006/11/07||Report by Dr George|
|2006/10/17||Amnesty International Further Information|
|2006/10/12||UK FCO Report|
|2006/10/07||Letter from Dr Mella of Western Kurdistan Association|
|2006/10/04||Amnesty International Letter|
|2006/09/06||Freedom House Report|
|2006/07/20||Report of Dr George|
|2006/07/18||Society for Threatened People Release|
|2006/07/18||Amnesty International - Sentence of Moslem Brotherhood returnee from US|
|2006/07/14||Amnesty International Update|
|2006/06/26||Amnesty International - Sentence of Moslem Brotherhood returnee from UK|
|2006/06/15||European Parliament Resolution|
|2006/05/23||Amnesty International Report|
|2006/05/23||Amnesty International Report|
|2006/04/05||Society for Threatened People Press Release|
|2006/04/04||Amnesty International Release|
|2006/03/10||Kurdish Community Statement in Britain|
|2006/03/08||US State Department Report on Syria for 2005|
|2006/02/14||Refugees International (US) Report|
|2006/02/14||Amnesty International Update|
|2006||Photographs of Demonstration|
|2005/12/09||SHRC Press Release|
|2005/11/28||Amnesty International Release|
|2005/09/19||Amnesty International Report|
|2005/07/01||Report of Ms Laizer|
|2005/05/13||Amnesty International Report|
|2005||Foreign Dispatches Report|
|2005||Amnesty International Report|
|2004||Amnesty International Report 2004|
|2003||Kurdish Media Report|
|2000||Kurdish Media Report|
Asylum and Immigration Tribunal
Heard at Bradford
On 10-11 November 2008
The Tribunal orders that the Appellants' costs in respect of the application for reconsideration, the preparation for reconsideration and the reconsideration are to be paid out of the relevant fund, as defined in Rule 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005
Signed Dated 8 December 2008
Senior Immigration Judge Batiste