Upper Tribunal (Immigration and Asylum Chamber)

(xi)       There is evidence of positive changes in Burma which as they become embedded may result in the need for the present country guidance to be revisited by the Upper Tribunal in the short to medium term.

Determination of the Appeal

84.        As we have observed there is no dispute on the facts. The appellant has been able to demonstrate a high–profile in the UK, and also an active intention to protest and demonstrate on return. The authorities will know about him; it is not likely that he will be detained on arrival at the airport, but he will be monitored and, as he progresses politically in Burma, it is reasonably likely that he will be seen as vexing the authorities by espousing the separatist cause and he will be detained for questioning. He will thus be in need of protection. His appeal is allowed.

85.        We have all contributed to this determination.

Upper Tribunal Judge Dawson Dated 10 June 2013

Schedule one – the expert and other evidence in detail

Evidence of Ms Marcia Robiou

1.           Ms Robiou describes herself as a ‘Committed human rights specialist with a strong track record in writing, research and advocacy’. She was awarded a Bachelor of Arts in Anthropology and Politics at New York University in 2006. She worked as a teacher in Mandalay, Burma, between January 2010 and May 2010 and was thereafter employed as a Program Manager for an education network in Thailand. Since May 2011 she has been employed by the Assistance Association for Political Prisoners – Burma, [hereinafter ‘AAPP’] in Mae Sot, Thailand, as a Human Rights Research and Advocacy Adviser. In her oral evidence Ms Robiou described this organisation as having been founded in 2000 by two former Burmese political prisoners, being entirely staffed by former political prisoners from Burma, as having ten people working in headquarters in Mae Sot and as having an underground network of ’10 to 12 groups of 5 to 7 former political prisoners spread throughout Burma and in particular near major prisons’. As to her role within the organisation she described this, in her oral evidence, as involving briefing diplomats and government officials on the situation of political prisoners in Burma and writing urgent appeals based on dater collected by the networks inside Burma. Ms Robiou also currently acts as a ‘Researcher, Writer and Advocacy Consultant’ to an organisation called Minority Rights Group International’ also based in Mae Sot, Thailand. In that role she has authored a report on the denial of participation rights for ethnic minorities in Burma, as well facilitating training on ‘data collection for ethnic minority groups’.

2.           We were provided with a lengthy written report from Ms Robiou, dated 22 January 2013, as well as three written addenda to that report. The first and second addenda are dated 5 March 2013, with the third being undated. In addition Ms Robiou provided evidence by way of an e-mail dated 8 March 2013, to Mr Mullins.

3.           By way of a further e-mail dated 14 March 2013 Ms Robiou confirmed that she provided her evidence to the tribunal in her personal capacity and not on behalf of the AAPP.

Written Evidence

4.           Ms Robiou’s report of 22 January 2013 is largely drawn as a direct response to questions posited of her by the appellant’s legal advisers [check].

5.           Commenting on the attitudes and mind set of the Burmese regime she observes:

a.            Although the regime in Burma is slowly opening, characteristics commonly exhibited in authoritarian regimes still remain in place.

b.           Small scale reforms, such as legalising protests and increased space for political parties to operate, have taken place. There is now a greater sense of freedom in Burma that was not in existence under the previous regime. Genuine free and fair elections have yet to take place.

c.            There is no guarantee or respect for human rights. People are arrested and tortured whenever they are deemed a threat to the state. Legal reforms are undermined by vague and broad provisions making it clear that criticism of the regime is not tolerated. This conclusion is supported by reference to the arrest in March 2012 and re-arrest in December 2012 of the dissident monk Nyi Nyi Lwin (formerly known as U Gambira).

6.           Ms Robiou notes that there have been at least 52 politically motivated arrests in Burma since 17 September 2012. Many of the arrests have been of Kachin ethnic minorities or members of the All Burma Student Federation Union. Some of the 52 may have been released on bond but still face court proceedings. As of the date of the report there were 222 political prisoners in detention. The government continues to deny the existence of political prisoners, asserting such persons to have ‘committed criminal activities’.

7.           As to how the Burmese administration views the opposition in exile Ms Robiou considers that:

a.            The administration treats the opposition in exile with scepticism. They have extended an ‘olive branch’ to activists in exile for the purposes of gaining political capital in the eyes of the international community.

b.           The names of 2,082 people were removed from the blacklist; a list comprised of foreign and Burmese nationals regarded and threats to peace and stability. These names were made public in August 2012. 4000 names remain on the blacklist. Nobody knows whose name is on the blacklist, save for the President.

8.           Ms Robiou identifies the fact that the Burmese authorities have an institutionalised and sophisticated spy network throughout the world with Burmese embassies being staffed by Military Intelligence. It is common for Military Intelligence to go undercover and infiltrate protests, student unions and ‘known hangouts for dissidents’. These networks monitor and document information on individuals involved in oppositionist movement. The information held by the Burmese authorities is very detailed. Each month a report is compiled and sent to the Ministry of Foreign Affairs and the Military Strategic Command Centre.

9.           In answer to a question as to how the Burmese regime would treat persons returned to Burma who have demonstrated outside the Burmese embassy, but where there were no other records held of oppositionist activities within Burma, Ms Robiou responded by observing that it is difficult to comment on such matters given the unpredictable nature of the Burmese regime. She noted however that:

a.            A number of highly outspoken activists with foreign passports had returned to Burma with no incidences of arrest or major harassment, including senior figures for the AAPP;

b.           There have been accounts of returning exiles being forced to sign a form pledging they will not partake of any activities or engage in criticism that will ‘harm the state’;

c.            Risk levels are exacerbated by outstanding grave criminal charges such as for rape or murder, a long history of visible and outspoken political activism against the regime in Burma, being a member of an ethnic minority particularly Kachin, or living near a conflict area or a development project.

10.        Ms Robiou considers there to be a ‘real’, ‘real and high’ or ‘very high’ risk of detention (as variously stated) to anyone who publically demonstrates in Burma, regardless of their ethnic origin. She observes that there has been a dramatic increase in the number of public demonstrations in the past year and although peaceful demonstrations have been legalised, this is superficial and the repression of public demonstrations still takes place.  Ms Robiou supports this conclusion with reference to the arrest in September 2012 of 13 activists leading a peaceful march of 1000 demonstrators to commemorate International Peace Day and to call for an end to the civil wars in Kachin state and elsewhere in Burma, and the arrest and ill treatment of the leaders of an anti copper mine protest in Sagaing Division.  She notes that the length of time spent in detention after arrest varies widely.

11.        Ms Robiou further considers that the Burmese regime regards those who associate with suspected opponents with the same level of suspicion it regards genuine dissidents and activists, subjecting them to harassment, such as visiting the person at his/her place of residence to conduct a search of their home. Whilst the Burmese authorities previously followed and monitored suspects, she had only noticed such actions by the current regime in relation to prominent activists. She further acknowledged that she was unaware of any cases in the post Thein Sein regime where an individual was questioned merely for being associated with activists. She also acknowledged the practice of visiting a suspect’s house does not occur as often under the current regime.

12.        Suspects face being apprehended and taken to a detention centre. If the authorities believe the individual has useful information, such as the structure of an underground network, or where they are eager to attribute blame for a particular crime such as a recent bomb explosion, the suspect will be psychologically and physically tortured.

13.        Former political prisoners who have been released by the current regime have complained of being monitored and such persons are ‘not really’ free and are vulnerable to arrest at any time. Their criminal records remain intact. They are subject to harassment including denial of passports, being barred from employment opportunities, and denial of educational opportunities.

14.        Ms Robiou continues by observing that the regime acts in this manner because it is characterised by the paranoia of losing their hold on power. Associates of activists are monitored in order gather information on the activist/network so as to pre-empt something from happening, such as a large protest. Political prisoners are often charged with other serious offences.

15.        She considers that it is reasonable to draw a distinction between those who have demonstrated in Burma, where it is inconceivable that a person would demonstrate unless that person opposed the regime, and those who have attended demonstrations in the United Kingdom; where demonstrators run a very low risk of being arrested. She noted, however, that anyone who engages in oppositionist activity is viewed with mistrust and seen as the opposition.

16.        In response to being asked whether she agreed with the Tribunal’s assessment in TL (Burma) that ‘the regime would not persecute someone who they knew to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating in the United Kingdom merely to enhance a false claim for asylum’, Ms Robiou stated that she is unaware of any way in which the Burmese authorities would be able to determine a person’s motivation for demonstrating in the United Kingdom.

17.        Ms Robiou states that if a returnee, having demonstrated in the United Kingdom, is neither a prominent activist nor has a history of oppositionist activity in Burma, there would be a low risk of such person suffering serious harassment from the Burmese authorities, unless he/she continued to demonstrate in Burma. It is conceivable that a returning exile not well known on either the domestic of international scene for his/her oppositionist activity is at higher risk than a more prominent returning exile. Arresting exiles on return is seen to tarnish the administration’s reputation. It is therefore not in the interest of the regime to arrest a returned exile from the United Kingdom. She acknowledged that she is unaware of any returning exile having been arrested in Burma for their activism in the United Kingdom. Prominent leaders are subjected to harassment such as phone tapping and restrictions on their freedom of movement.

18.        Ms Robiou notes that two of her colleagues, former political prisoners, have returned permanently to Burma without official invitation and using their Burmese passports. One works on a mental health project for former political prisoners and the other for an exiled organisation that documents human rights abuses. Neither has faced any harassment or monitoring.

19.        She further confirms that bribery is endemic in Burma. She was unable to comment on the extent bribery plays in the issuing of passports and exit documentation, or as it relates to immigration officers at points of entry and departure from Burma.

20.        In respect of the appellant, Ms Robiou concludes that he would be at risk if he continues his oppositionist activity in Burma or travels to an ethnic minority region where there is open conflict. There are ongoing conflicts in Kachin, Shan, Karen, Karenni and Arakan State. She states that she cannot be certain that the appellant would be arrested simply as a consequence of the activities he has undertaken in the United Kingdom.

21.        She confirms that in order to better assess personal risk an individual could take the step of asking for an official invitation to visit the country from the government of Burma. She suggests that this is a path that the appellant may wish to take. However she also states that it is mainly exiled organisation and not individuals that are extended official invitations to return to Burma.

22.        In the first addendum to her report of 22 January 2013, Ms Robiou observes as follows:

a.            Low profile activists and dissidents are disproportionately targeted by the state security forces;

b.           High profile activists in the international arena are generally allowed to carry out their political and humanitarian activities with little or no incidences of harassment. This is a tactic the Government of Burma uses to ‘trick’ the international community that they are genuinely reform minded;

c.            Individuals with no history of activism are now fighting for their rights. The government, instead of responding to the concerns of the people, have responded in manners reminiscent of the ‘brutal military rule’;

d.           There has been an arbitrary application of the protest bill. Demonstrations that support government policy are allowed to proceed, whereas those which criticise government policy are not allowed to and participants in such demonstrations are the subject of arrests, detentions and ill treatment.

23.        In the second addendum, Ms Robiou cites examples of low profile demonstrators briefly detained (for several hours) for violating the Peace Assembly and Procession Bill but who have not faced formal charges. She refers to such individuals being questioned and a number being required to sign admissions that they did not have permission to protest.

24.        Ms Robiou further identifies that three activists who played a leading role in the copper mine protests were assaulted and treated in a degrading manner whilst in detention.  She also provides an example of a labour activist who spent 177 days on remand awaiting trial, his family members being refused permission to see him on at least two occasions. Annexed to the second Addendum are three lists; the first identifies the names of eight persons convicted and sentenced under the ‘Protest Bill’, the legal provision breached,  the date those persons were arrested (all in November or December 2012) and the sentence each received (either one month or six months imprisonment); the second lists 84 persons currently awaiting trial under for such crimes and includes the date of the persons arrest,  and the third list comprises of the names of 40 persons that have been arrested for ‘other’ criminal offences.

25.        In the third addendum to her report, Ms Robiou confirms that she is aware of low profile activists, who have not engaged in protests, demonstrations or processions who have returned to Burma and have not been harassed. These persons were engaged in lobbying activities against the Burmese government or were staff members of vocal exile organisations.  Her opinion is that this is ‘standard’ for low level activists seeking to return to Burma with no plans to partake in political activity.

26.        In her e-mail of the 8 March, Ms Robiou states:

a.            Low level protestors and demonstrators are arbitrarily and briefly detained. In detention they are subject to physical harm and verbal harassment.

b.           Critics in Burma are monitored, followed and harassed on a regular basis;

c.            Her colleagues, low level activists who have returned to Burma to obtain passports, have complained of having their telephone conversations tapped;

d.           The appellant will be subject to some sort of monitoring upon return. Depending on how much a threat the government perceives him to be, and his political activities in Burma, he could be subject to other repressive tactics such as restrictions on freedom of movement and denial of employment opportunities.

e.            The 120 arrests that AAPP have record is not a ‘small’ number. Each and every protest faces some level of repression.

Oral evidence

27.        In examine in chief Mr Robiou stated that the lists of those in detention attached to the second addendum of her report of January 2013 are incomplete. AAPP has a complete picture in relation to the Rangoon and Mandalay areas, but not for other areas. She expected the numbers to rise exponentially as other areas of Burma are accessed. She confirmed that AAPP has sent her a monthly list of those in detention, which shows 77 individuals facing trial under the Protest Bill, 48 face trials under miscellaneous Acts although many of these were arrested whilst protesting and 45 are on trial in Shan state.  In her further belief is that approximately 1000 persons are imprisoned in Rakhine state, having been involved in clashes in July and August. She considered that those persons who live in conflict states are disproportionately targeted, with innocent people being arrested and tortured. In response to being asked the numbers of innocent people detained, Ms Robiou acknowledged that it was difficult to access such information. She stated she was aware that 57 people are on trial in Kachin State and that many people are held in secret detention centres; not even family members knowing where they are detained.

28.        It is Ms Robiou’s opinion that the appellant would be monitored upon return to Burma. She agreed that the evidence given in her email of the 8 March 2013 was true, noting that low level protestors and demonstrators are arbitrarily briefly detained, without being told why, and suffer physical harm and verbal harassment during such a detention. She supported this conclusion by reference to the consequences suffered by a female copper mine protestor who was sexually abused by a policeman. She did not consider this to be an isolated incident and thought the risk of ill treatment during a brief detention to be ‘very high’.

29.        Finally in examination in chief, in response to being asked what she thought placed the appellant in a high risk category of a short term detention, Ms Robiou stated that the appellant’s previous political activity in the United Kingdom would put him at risk because the government would be monitoring who he is interacting with and what sort of activities he was undertaking in Burma. She ‘suspected’ that during interrogation or brief detention the interrogators would want to extract information about the appellant’s activist networks. The preferred tool for doing so is torture.

30.        In cross examination Mr Avery asked Ms Robiou whether her two colleagues who had returned to Burma had any evidence to support their belief that their phones were tapped. She responded by accepting that such beliefs were based on suspicion only, however each had heard the sound of typewriters in the background whilst on the telephone. This was something that often used to happen under the military rule. She accepted that this was the extent of the difficulties suffered by her colleagues.

31.        Mr Avery then drew Ms Robiou’s attention to a conflict between the evidence she gave in her e-mail of the 8 March 2013, in which it is stated that low level critics are monitored, followed and harassed on a regular basis, and the evidence given in her report of 22 January 2013, in which it is said that the practice of following and monitoring suspects continued only in relation to prominent activists.  Ms Robiou explained this by stating in the past couple of months more low level activists located in Thailand have gone back to Burma to apply for passports or visit family members. However, at the time of writing the report of 22 January 2013 only high level activists had gone back, and these were mainly at the invitation of the government.

32.        She then acknowledged that she is aware of only 13 of the 1000 Peace Day protestors having been arrested; although she believed that she had only 70% of the complete picture. When asked what evidence she had to support her contention that there is a high risk of being detained at a protest, Ms Robiou accepted that she had no statistical evidence to support her contention, but was nevertheless aware that there have been detentions at every protest in Burma. She observed that the Burmese government was very keen to give the impression to the international community that there are no political prisoners and that they are not arresting political activists.

33.        Ms Robiou was then invited to comment on a report authored by Amnesty International dated 23 May 2012, in which it was stated that the government had released 650 political prisoners between May 2011 and January 2012, and that many of these persons had told Amnesty International [during 2 visits by the organisation to Burma] that they had been relatively free to resume their political activity without harassment or intimidation. She stated in reply that she did not agree with Amnesty International’s statement, observing that if activists were free to pursue activities in Burma then AAPP would be in Burma.

34.        In response to questions from the Tribunal Ms Robiou confirmed that AAPP had been founded in 2000 and is funded primarily by the Open Society Foundation, National Endowment for Democracy, the Netherlands Embassy in Bangkok and the OAK Foundation. Of the ten people working the headquarters, 4 had returned to Burma in the past twelve months; 1 permanently and 3 on visits. Of the 3 persons who had returned on a visit, 2 had been at the invitation of the government. Each of three persons believed their telephones had been tapped and heard the sound of typewriters in the background when making a telephone call.

35.        Ms Robiou further confirmed that she was aware of 2 political prisoners who had been freed and then re-arrested – U Gambira and Nay Myo Zin, a charity worker who had been arrested twice since being released on October 2011.

36.        In re-examination Ms Robiou observed that an individual could contact the Ministry of Home Affairs in order to ascertain whether they were on the blacklist, although it was unclear how responsive they would be to such a request. Doing so would not offer any protection however.

Dr Zarni’s written evidence

37.        Dr Zarni’s initial report is dated 16 November 2011. He comes from a large military clan in Burma, having been admitted to the Officer Training Corp and has done extensive research on military affairs in the past 23 years.  He is a founder of the Free Burma Coalition and campaigned for the improvement of human rights conditions in Burma from 1995 to 2004 internationally.

38.        In his report he acknowledges that the appellant was not found to have been politically active in Burma and the focus of his report is therefore on the consequences of his activities in the UK [10].

39.        Commenting on recent developments in Burma he observes:

a.            That some critics and dissidents had begun to return and that the government was considering the release of jailed political activists at home. 

b.           On 25 August 2011 UN Special Envoy on Human Rights in Burma Professor Quintana said that he welcomed some positive developments but noted that there is still serious and ongoing human rights concerns that need to be addressed particularly the continuing detention of a large number of prisoners of conscience and the continuing allegations of torture and ill-treatment during interrogation. 

c.            UN Secretary General Ban Ki-Moon has said that a real opportunity for progress exists but the government must step up its efforts for reform if it is to bring about an inclusive – and irreversible – transition.  In particular the authorities must cultivate improved dialogue with all political actors and release all the many political prisoners. 

d.           The Prime Minister of Myanmar has referred in his statement to the General Assembly that an early amnesty is being considered.  [15]

40.        Dr Zarni refers to the latest report by the Assistance Association for Political Prisoners in Burma published in 2010 which says that there are more than 2,000 people behind bars without access of guarantees to due process.  There are 42 prisons in Burma, 109 labour camps and an unknown number of interrogation centres, and the deplorable conditions in these places are well-documented.

41.        Dr Zarni considers also that:

a.            Jailed political activists have no recourse to law, the single biggest obstacle in effective intervention of human rights being the absence of an independent judiciary.

b.           there is a difference between the role and function for law in Burma and any norm based judicial systems [19] this being characterised as the “un-Rule of law” which is differentiated from the rule of law in depending upon uncertainty rather than certainty by which citizens can organise their lives and arbitrariness rather than consistency as to how state institutions and personnel operate and it is concerned with the denial with rights in the absence of norms upon which rights can even be nominally established.

42.        Dr Zarni notes that there are signs that as at November 2011, Burma, may be at the point where changes become possible although:

a.            expectations that Burma’s human rights conditions were going to improve significantly once the Burmese government declared an amnesty on 12 October 2011 turned out to be misplaced, given the very low number of prisoners of conscience that were released;

b.           it has been argued that the political detainees were like hostages, being released at a trickle in exchange for deals being struck with various parties at home and abroad;

c.            There is a significant disparity between reality on the ground regarding human rights and governmental conditions and the officially stated aspiration of goals which the Burmese military government claims to be striving towards and which the UN and international human rights organisations are urging the Burmese government to move.

43.        The Burmese military rulers’ attitudes are comprehensible only through consideration of their mental/psychological make-up  whereby:

a.            Unquestioning loyalty and compliance from subordinates is required at all levels of the military; any disagreement and difference expressed by subordinates is seen as a sign of disloyalty and disorder and subordination;

b.           Military leaders at all levels do not tolerate any form of dissent; under military rule military leaders have come to accept the same from the non-military sections of society and government with a zero tolerance towards public political opposition and defiance pervading all aspects of the state;

c.            Citizens’ political protests are seen as unlawful acts of individual defiance and disloyalty to the nation, the official expression used in reference to Burmese opposition activists being “external destructive elements and lackeys of the alien powers”;

d.           No material distinction or difference is made between organisers of protests and those who merely join the anti-government discrimination demonstrations either at home or abroad.  

44.        Dr Zarni considered that it would be difficult for the military government to assess commitment to the opposition’s cause on the part of those Burmese nationals who turn up to demonstrate abroad outside diplomatic missions, but that there are certainly informers both within the country and outside who trade information for different purposes and the regime relies heavily on human intelligence in monitoring opposition of the activists inside and outside the country. 

45.        A person who had had contact with the opposition in exile would, on return, be likely to be interrogated about those contacts and torture is the norm during interrogation period when confessions are forcibly extracted. What would constitute real commitment can only be established over a period of time in assessing whether an activist has a real commitment to democratisation or the stamina to stick with the opposition’s cause.

46.        Protests by overseas communities in front of diplomatic posts do not immediately threaten to destabilise or disrupt the military controlled social order inside Burma, but because these protest demonstrations are usually headline news, the impact amongst the Burmese public is significant and for that reason the government views transmitted news of protests in front of its embassies abroad and other direct and practical instigations as having a contagious impact.  Exiled activists are commonly known amongst the Burmese public as well as the government to incite popular protests and mass revolt within Burma.

47.        Dr Zarni considers that Burmese military rulers attach disproportionate significance to peaceful protests by ex-patriots, exiles and émigrés in front of Burmese Embassies around the world, a significance attached to this being comprehensible only through consideration of the mental/psychological make-up of military leadership, in particular “loss of face”.  This is felt to an extreme degree by Burmese generals which is why they view the simple act of Burmese nationals demonstrating in front of Burmese Embassies abroad in such a negative light. Most of the news that has come out of Burma since the bloody crackdown of the people power uprising in 1988 has been grim and whilst the generals come to the negative news coverage of their military regime and since April 2011 constitution of military rule as a given, they remain extremely sensitive to Burmese nationals expressing negative views about the military and its rule.

The Military’s surveillance of citizens abroad

48.        The military government attaches much significance to monitoring Burmese nationals abroad even so far as to violate international policies and legal requirements such as placing Burmese military intelligence officials at the Burmese Embassy although the embassy in London is not supposed to have any military attaché.  It is the responsibility for these military intelligence officials operating as civilian diplomats to record and report dissident activities abroad including anti-government protests in front of their embassy.  Officials whom Dr Zarni met gave the impression that they were able to keep a watchful eye on the Burmese exiled communities in London and Washington through the frequent Burmese embassy functions and to Burmese monasteries.  In the Burmese Ministry of Foreign Affairs almost all officials at all levels are military or ex-military officers and in addition, military intelligence personnel from the Ministry of Defence intelligence are attached to all embassies.  There are numerous eyewitness accounts of Burmese Embassy staff photographing and recording protestors outside the embassies for the purpose of establishing their identities.  Video and photographic recording of virtually all dissident activities including protests inside and outside Burma for the purpose of establishing the identities of those, not just protestors and key participants, but also hangers-on and onlookers is a well-known intelligence/police practice by Burmese security organisations.  Dr Zarni has seen embassy officials in all venues photographing and recording demonstrations of his own contacts, it is clear that the Ministry of Foreign Affairs maintains a blacklist of both Burmese political activists abroad and foreign nationals who are regime critics.

Would Burmese failed asylum seekers upon return be subject to ill-treatment by the military and police intelligence

49.        Since the announcement in September 2011 by President Thein Sein that his government will consider leniently those political exiles and activists abroad who wish to return to Burma, a number of high profile dissidents have returned and so far are known to be left unharmed but can be arrested at any time.  The amnesty turned out to be of little significance when only ten percent of the 2,000 jailed activists were released and where well-known activists’ prominence may have afforded them a degree of protection, it not being in the interest of the government when it is trying to project a new image to be seen arresting or maltreating returning famous dissidents. 

50.        In Dr Zarni’s opinion, the government is trying to cultivate a new image as a benevolent constitutional government rather than trying to bring about genuine improvement on human rights and political fronts and the same induced personal protection from persecution is less likely to be available to face those activists whose records of political opposition rest only with the military government’s security agencies. 

51.        Because those who are labelled as “hangers-on” among protestors and organisers in front of British Embassies are not on the human rights and political radar of any major international human rights organisation, western embassies in Rangoon or even local Burmese media, there is no way of knowing whether they disappear upon arrival at Rangoon and other ports of entry into Burma. 

52.        Dr Zarni’s view is that, although it is not possible to be certain, the authorities in Burma will not make any distinction between those with a real commitment to democratisation by the opposition movement or those who may be merely be motivated in order to get asylum abroad.  The concept of “hangers-on” has absolutely no meaning for the Burmese authorities as no threat is to be tolerated and no amount of challenge to their authority is insignificant.  He does not think that any organisation could or would conceivably want to monitor so called hangers-on who are only known to the Burmese security agencies thanks to their participation in anti-government protests in front of Burmese Embassies in London etc.  In the absence of any definitive evidence either way one is left with only the human rights track record of the military government and the existing verifiable conditions in terms of the absence of independent judiciary and the essential due process, the continuing use of torture and other numerous forms of ill-treatment and that there is always the risk of detention and arrest for Burmese nationals politically active abroad when they return to Burma, regardless of whether they have a recorded and known history of political involvement inside the country.

Factors that can exacerbate the risk to the group of “hangers-on”

53.        There are a number of factors which would likely exacerbate the risk to “hangers-on” such as:-

a.            political arrests and upheavals inside Burma which erupt chronically;

b.           bomb explosions and other terrorist acts usually attributed to exiles and foreign-based Burmese organisations;

c.            increased military tensions with armed ethnic minority organisations which have a strong diaspora support; and

d.           Rumours and intelligence that some exile groups are planning or instigating popular unrest in the country around historically important dates. 

54.        Although it is not possible to predict when exactly such an enhanced risk might arise, there are some recurring occasions such as 2 March, 18 September and 8 August during which the surveillance of citizens while security forces would be tighter and surprise security sweeps would be more frequent than usual.

55.        At certain times there would also be enhanced checks on people arriving at an airport or on people who have recently returned from abroad given the carrying out of enhanced checks within the country. Also some irregularities in their passports and national ID cards which everyone is required to carry with them at all times or suspicious/nervous behaviour will attract immediate attention to activists on arrival Even if they encounter no trouble at security immigration booths on arrival, the fact that their identities are established and maintained in the government’s database of persona non grata the security agencies are in a position to track them down should they feel stricter surveillance is called for on the aforementioned occasions.  Should a so-called hanger-on be arrested on arrival or subsequently, he would be subject to arbitrary and ill-treatment at the hands of security agencies and reference is made to reports of those returned in particular the COI Report (17 June 2011) at 33.25 referring to an IRBD report indicating that two persons with apparently similar circumstances may be treated completely differently by the Myanmar authorities which do not operate according to rational methods. 

56.        So far as Dr Zarni is aware, the FCO in Rangoon does not devote any human or financial resources to the systematic monitoring of how the authorities handle Burmese deportees and returning Burmese nationals who may have demonstrated outside the Burmese Embassies abroad.  It is highly improbable that the FCO officials in Burma will know where, when, why and how arbitrary arrests and detentions of Burmese deportees and returning nationals from abroad take place.  The FCO is not in a position to make a definite judgment as to whether it is only rally leaders and individuals who also have histories inside Burma who would be particularly at risk as it appears to have done so without material evidence or a system of monitoring in place in order to be able to make that assessment and “particularly” does not rule out the possibility of risk to people who do not fall within the categories identified. In contrast the Burmese authorities have a well-documented system set up abroad to identify all demonstrators in front of their embassies abroad. 

57.        In his view the appellant, if returned, faces risks common to all political activists: arbitrary arrest, detention, interrogation which is usually through various means of torture starting with systematic sleep deprivation, beating and hitting and he would be treated as a political activist even if the reasons for his political activism were purely opportunistic.  Dr Zarni then refers to evidence showing that military intelligence search, arrest and interrogate without warrant anyone deemed political despite provisions to the contrary.  All prominent political prisoners interviewed were held longer than 48 hours without warrant and without being brought for judicial authority, their basic rights to due process were denied and there are instances in which military intelligence has passed sentences orally at the time of arrest before any trial has taken place.

58.        Dr Zarni notes that the Burmese military regime used to send its intelligence agents to East Germany for advanced training and continues to use the Stasi methodology of training citizens to spy on each other. From his own first-hand interactions with Burmese intelligence and diplomatic officials in the US and the UK, Dr Zarni is of the view focus and energies of Burmese intelligence personnel abroad  are directed at monitoring various anti-government activities of Burmese political exiles and activists and that they recruit informers through a few Burmese monasteries in the UK where Burmese exiles expatriates and émigrés congregate and business associates, foreign academics and those who need consular assistance for example passport renewal or Burmese entry visas may also volunteer information about what they consider anti-government activities. There is no way of ascertaining whether the UK based network of Burmese spies and informers are able to provide information on those who are genuine opponents or those who are not, that is who are hangers-on but even if they were able to provide categorical information to headquarters in Burma, Dr Zarni considers it to be unlikely to make a difference in the eyes of the Burmese authorities in light of the fact that the military or leadership views any and all imposition abroad as an act of national betrayal designed to tarnish the image of the country and hence inflict loss of face internationally. 

59.        Based on the appellant’s statement that he has participated in anti-government demonstrations in London and attended political meetings at the Burmese monastery in Colindale, Dr Zarni considers that he will in all likelihood be in the military government’s database of those Burmese nationals who publicly registered an opposition towards the government and this will rule out the possibility that the Burmese authorities will only regard him as a mere hanger-on even in the unlikely event they make such distinctions amongst anti-government activists abroad. 

60.        Given well-documented and pervasive rights abuses, Dr Zarni considers that it is important to understand that the nature of the state in Burma is highly arbitrary and therefore any decisions made concerning repatriation should be done with extreme caution and the Upper Tribunal should take extreme care before deciding it is safe to return TSs to Burma.  While it is not certain what exactly the authorities would do if he were forcibly returned, he is likely to be detained and interrogated either upon return or subsequently given the frequency of his protest demonstrations in front of the embassy and the fact that he would by now be well-known to the intelligence agencies inside Burma a chance of him being left unharmed by the authorities will diminish in times of high security alerts generally triggered by the occasions referred to above.

Summary of Transcript of Conference Call with Dr Zarni

61.        There is no other evidence to believe the regime has modified or changed its activity in taking photographs of those demonstrating at the embassy and there appears to be no change to the government’s priorities in terms of intelligence gathering. 

62.        The main concern of the regime is how the demonstrations may tarnish the good name of the country especially now that they have been welcomed back into the international community.  There is a renewed sense of importance attached to demonstrations around the world outside Burmese Embassies and Burmese Embassies coming from different communities, particularly the Kachin Christian minorities and the Rohinja Muslim minority 

63.        Given that the mindset of the authorities is security first, security second and security third this is virtually unchanged and human intelligence reliance may intensify, using and relying upon extensive formal and informal networks of voluntary informants as well as professional trained human intelligence officers.  Some 5,000 to 10,000 Burmese military officers have now received technical training in Pakistan, Russia, China and India and the trained officers are known to be expert at hacking emails of journalists, dissidents and other common figures in and out of the country and civil monitoring continues to monitor cyberspace and will continue to record and take photographs of demonstrations.  All the pictures are not taken for the purpose of keeping them in the embassies but transmitting them electronically to headquarters for further investigation and ID identification purposes.

64.        There is no crystal clear definition of what are genuinely suppressive anti-government activities and what are phoney subversive activities designed to establish one’s status as a dissident.  In Burma such things are not spelt out or even where the laws are clearly spelt out the application of laws concerning subversive activities is elastic in the sense that individual officers retain a large degree of discretion or discretionary part to deem a particular person a genuine dissident or phony who poses no threat to the regime.  The decision of whether a person is genuine or not is contingent upon which officer or agency is interpreting the matter.  The intelligence agency has improved its ability to rely on human intelligence because it has built up cyber intelligence networks with very well-trained computer hackers and social media experts trained specially in Russia.

65.        The authorities continue to torture during investigations: the most common records being psychological torture and sleep deprivation which does not result in physical injury.  It is not clear whether they continue to beat up detainees during interrogations because if let out within a short period they would now go to the press and tell what had been done to them and in that sense the physical torture may be in decline but they have other methods available.

66.        The authorities continue to view transmitted news protests in front of embassies as having a contagious impact at home.  There are now some three to four million people known to be internet users in Burma who use cyber cafes.  Facebook is the most popular medium in the country and so images get picked up and are re-transmitted by various different groups using Facebook and other social media websites.  The images of political defiance towards the military regime are treated seriously by the authorities.  Although the end of official censorship has been announced, there is an array of different laws designed to restrict a flow of information.  The attitude of the authorities is still very much that there is a danger of “external, internal destructive elements, lackeys of aliens instilling wrong thoughts  in youth that patriotism and nationalistic spirit are out of date instigating youth to entertain tendencies of confrontation violence in mind”. 

67.        So far as Dr Zarni is aware the military is not decreasing or removing their military intelligence officer officials at the Burmese Embassy in London and if anything there will be an increase in the number of military intelligence agencies in their London Embassy given the extent to which the West is bending over backwards to woo the Burmese government away from China.

68.        There is always a risk of detention and arrest for Burmese nationals politically active abroad and it is noted that when Aung San Suu Kyi attended a public meeting at the Royal Theatre near Waterloo, London, in response as to whether it was safe and secure for Burmese ex-patriots and exiles to return it was that you have to make your own judgment and that you would not say it is completely safe for the Burmese to return, it depends on individual cases.  There is always a risk of being detained.

69.        The crucial element is unpredictability as one never knows what will trigger suspicion in the minds of local and national security officials as there is no uniformity as enforcement is so unpredictable that you will never know when a certain activity will be deemed a threat to national security.  In the case of little-known activists who may have participated by demonstrating in front of the Burmese Embassy they will have no way of knowing where their pictures end up and who might be viewing them.  The crucial thing is that the laws are enforced elastically and one can never be sure of what will trigger one’s arrest.  A protest in itself does not pose any security threat other than at best reputational damage but protest as a clear indicator of your sentiments makes protest crucial.  The Burmese government see protesting as an indicator of either hardcore dissidents or potentially hardcore dissidents that is the crucial point. 

70.        If the British government does not know what Burmese citizens abroad are doing below the radar then they cannot say with certainty that they are not at risk of being picked up by intelligence. The main mission of the British Embassy in Burma is to promote the British national self-interest. They know every single important dissident but that is not the population with which we are concerned.  If you look at the current political development the big activists from Aung San Suu Kyi down to the next 500 or 100 dissidents with recognisable names are no longer at a high risk as before, the risk is with little-known but up and coming activists who had basically picked up where the big famous dissidents left off. 

71.        Turning to the FCO letter 4 February 2011 Dr Zarni said he could not with certainty say that the appellant would most likely be arrested at Rangoon or other point of entry or elsewhere in the country and he cannot know whether he would be arrested or tortured or whether they would let him come and go without harming him and he cannot know whether he would be safe or not as he has no evidence to determine this.  He does not know whether there is still a risk to returning failed asylum seekers who have demonstrated outside the Burmese Embassy in London and defers to the FCO letter. 

72.        Dr Zarni said that even given recent developments there would not be a difference in the eyes of the authorities to whether someone is categorised as a genuine appellant or a hanger-on assuming the Burmese spies or informers are able to provide this information.  The system is not one of a vast bureaucratic evil machine coordinated from the very top down to the ground root; there are different layers of officers and non-officers who are pursuing their own interests like keeping their job which is what makes it so difficult in the context where the rule of law is not clearly established, not clearly or uniformly enforced and so it is difficult to answer with certainty many of the specific questions put. 

73.        Asked if he was confident that the reform process would not go into reverse, Dr Zarni said that there are some ominous signs that the Ministry of Defence and its economic conglomerate is under Chinese pressure, resorting to the use of canisters containing white phosphorous and using teargas to quell demonstrations or to break up mass gatherings indicating that the military has a clear mindset in terms of where its core interests lie in the regime, and anyone who attempts to rock the boat is going to get the same treatment.  The generals have swapped their military attire for civilian clothing, have dropped the language of authoritarianism and speak the language of democratic democracy in civil society but their interest and mindset, where for operational and modus operandi remain unchanged. The dissidents are not running the country and do not even have a say in what types of reform packages are debated or discussed.  The reform process remains fragile and remains reversible primarily because the reforms are not about genuine democratisation or the genuine transfer of power from an entrenched military but are about reinventing the Burmese military in a way that is acceptable to the western government, international lending agencies and investors.

Dr Zarni’s emails of 13 March 2013

74.        In the first email of 13 March, Dr Zarni states that the risk to Burmese citizens who had taken part in anti-regime protests in the United Kingdom of being arrested and tortured on return remains as high as before the reforms. In his second email he explains (in response to Mr Mullins request to explain his change in assessment from one of uncertainty to one of high risk) that this is based on new information from various sources, as well as observations on the heightened risk in times of political fluidity; that the most significant source is the UN Special Rapporteur; that the other source is a recent interview with a former political prisoner; that none touched on returnees and the risks they faced; and, that he is drawing a new conclusion based on how the regime is treating local protestors.

Dr Zarni’s oral evidence

75.        Dr Zarni adopted as his initial report dated 14 November 2011, the transcript of his Skype interview on 12 February 2013 and his two emails of 13 March 2013 as his evidence in chief, adding that the former political prisoner to whom he referred in his second email was someone visiting Oslo whose interview on the “Voice of Burma” he had seen.  He said he had not had any discussions with Ms Robiou. He said that since his report of November 2011, he had had interviews and conversations with different Burmese sources, some from inside the country when they had travelled abroad; he has not been back to Burma since 2006, and contacts people there via email, mobile and Facebook.  His contacts come through a social network established since Burma opened up.

76.        In cross-examination, it was put to Dr Zarni that 2013, in saying  in his first email of 13 March 2013 that the risk to Burmese citizens who had taken part in anti-regime protests in the United Kingdom of being arrested and tortured on return remains as high as before the reforms, he had changed his position from the Skype interview [Q12 & Q 13] where he said that he could not know if the appellant would be safe on return as he had no evidence to determine if he would be safe or not; and that he did not know if those who demonstrated outside the embassy would be at risk on return.

77.        Dr Zarni’s response was that his view had not changed at all; that he had made the observation that in times of political uncertainty the risk of those returning and finding extra vigilance will increase, and that there are now three major developments: systematic persecution of Muslims in Western Burma, triggering demonstrations; over a year and a half of civil war in Northern Burma; and, land confiscation in government projects leading to small scale protests which had been picked up by the UNHRC Special Rapporteur.  Dr Zarni said that he had modified his position in the light of the Special Rapporteur’s report who (unlike him) was able to visit prisons and see the situation on the ground, and so he deferred to him, adding that the report should carry greater weight than the FCO letter to which he had previously deferred.

78.        It was put to Dr Zarni that the Special Rapporteur’s report added nothing new; he said that it depends on how you read it. He said he was not changing his view, just expressing a greater degree of confidence on his earlier opinion, that there is always a risk of arrest, detention or torture.  He said that he had not been fully confident to express his views before, until he read the report, and as the Special Rapporteur was politically independent and had reached the same conclusion as him that added to his confidence.

79.        Asked when he had decided to change his view on the position of people returning from the UK, he said that he was not making observations with specific reference to those returning from the UK but that Burmese nationals who protest outside embassies would face the same risk as they would in the past, but that he could not quantify the level of risk to those returning, due to the high level of arbitrariness how the security forces conduct themselves.  He was not, however, able to give examples of anyone who had been ill-treated on return within the last two years.

80.        Dr Zarni did not accept that this suggests there is no problem as what is under consideration is not Burmese who are politically active abroad, but those who do not have profiles as dissidents and who are not known to the outside world, and so it is not known who gets picked up on return.  He said he had no evidence to support or refute his view that there is a group of those who are not media literate and are on the margins and who may face difficulties on return but had no specific examples of this. He further understands that the Burmese regime does not have a clear definition of what constitutes a political crime.

81.        Commenting on Ms Robiou’s view that demonstrating outside Burma was not likely to cause someone to be at risk, Dr Zarni said that it depends on where the demonstration takes place, who is targeted and the type of media coverage received; it is not possible to make such a blanket statement.

82.        Dr Zarni said that although a lot of high-profile former political prisoners have returned, it is in the interest of the Burmese Government to treat them well, as it is trying hard to show that it is reformist, but what is of concern are those not on the radar. He did not know how the Burmese government would assess if a person would be likely to come the attention of the international community, and while they had made mistakes in the past, he was not aware of any examples recently, although that did not mean it had not taken place.

83.        Asked to comment on the lack of evidence of low-level activists being at risk, Dr Zarni said that people are being detained left and right, and that the Burmese government makes it their business to record every protest outside their embassies, the evidence being transmitted back to the Ministry of Foreign Affairs.

84.        In re-examination, he said that if not arrested on return, someone of whom there is a record of their demonstrating outside an embassy will be called in for questioning, without a warrant or due process, at any time. There is a special breach of the police whose mission is to monitor, interrogate and extract information from anyone suspected of being engaged in anti-government activities, including peaceful protests. Any Burmese national with a known history of political activities faces a greater risk of being closely monitored, and called in for questioning, even if there is no concrete evidence. A protest in the locality may be enough to trigger this.

85.        Dr Zarni was sure that as the appellant had attended over 30 demonstrations that his face would be recognised by Burmese intelligence, as they take pictures of the demonstrations. He said that most Burmese come to the UK on official documents, and register with the consulate so the embassy will have records of them; it is the responsibility of the intelligence officials in the embassy to link names to photographs. Dr Zarni’s belief was that raw intelligence was sent back to Burma and any risk analysis was carried out by senior officials there.

86.        Dr Zarni concurred with Ms Robiou’s view that previous political activity would put THE APPELLANT at risk as he would be monitored on return to determine with whom he was interacting, and that he would face a brief detention and interrogation about this.

87.        Dr Zarni considered that an individual who had studied in the United Kingdom but had not attended political meetings or demonstrations outside of Burma would not be at risk on return. He considered that if someone expresses political views publicly in social media, this will in due course come to the attention of Burmese intelligence which has spent a considerable amount in having some 10,000 military officers trained in cyber espionage in Russia.  He said that the regime’s current concern is not from well-known dissidents but with its relationship with little-known low level, organic opposition coming from those fighting loss of land and similar issues. That type of opposition cannot, in the view of Dr Zarni be separate from that centred on the cities, as there is a lot of across the board solidarity between the various groups.

Report of Special Rapporteur

88.        In the chapter headed “Human Rights Situation”, the Special Rapporteur, Professor Quintana sets out a number of chapter headings comprising Prisoners of Conscience, conditions of detention and treatment of prisoners, Freedom of Expression and Freedom of Assembly and Association.  From these we note the following:

a.            The grant of amnesties following the formation of the new government and the release of 800 prisoners of conscience (the most recent being announced on 16 November 2012 is welcomed although it is noted that the code of criminal procedure enables the attachment of conditions and it is reiterated that the release of prisoners of conscience must be without any conditions.  Credible sources indicate that over 250 prisoners of conscience remain behind bars.  The announcement on 6 February (2013) of the formation of a committee to identify the remaining prisoners of conscience to be released follows the government’s earlier commitment made on 18 November 2012 to set up such a mechanism.

b.           Professor Quintana visited Insein prison where he met five prisoners of conscience whose names are provided as well as Sittwe prison where he met another.  Their cases were discussed along with four international non-governmental organisation workers who remain in Buthidaung prison with the home affairs minister in Naypyitaw. 

c.            In Yangon Professor Quintana met recently released prisoners of conscience, two of whom are named whom he had previously visited in Insein prison.  He observes that many former prisoners continue to be denied passports and cannot travel abroad, and whilst some medical and legal professionals have had their licences revoked.

d.           Specifically about conditions of detention and treatment of prisoners, Professor Quintana observes:

“11. The Special Rapporteur is concerned about the ongoing practice of torture in places of detention in Myanmar.  During his interviews with displaced persons in the camps in Nyitkyina and Waingmaw and prisoners in Myitkyina prison he received allegations of arbitrary arrest and torture during interrogation by the military of Kachin men accused of belonging to the Kachin Independence Army (KIA).  In Rakhine State, he received allegations that Muslim prisoners detained in Buthidaung prison after last June and October’s violence had been tortured and beaten to death.

12. While in Yangon, the Special Rapporteur met with the sister of Myint Swe who died following torture during interrogation whilst in police custody.  His case is consistent with other information the Special Rapporteur has continued to receive on professionalised torture techniques being used by police officers on suspects of violent crime with the aim of extracting confessions.  He highlights that addressing human rights violations through the criminal justice system is necessary to combat the culture of impunity that exists for acts of torture in police stations, prisons and in other places of detention, particularly during the interrogation of suspects.  In addition he encourages the government to initiate human rights training programs for police officers and prison officials, and to develop the capacity of other relevant public officials, including judges and doctors, who can intervene on suspected cases of torture.

13. The Special Rapporteur acknowledges the steps being taken by the Government to address the ongoing practice of torture in Myanmar.  He commends the Government on its commitment last November to allow the International Committee of the Red Cross (ICRC) to resume prison visits in order to assess conditions and facilitate access to healthcare, and notes the subsequent successful completion of the first pilot visit in January …”

e.            In respect of freedom of expression, Professor Quintana notes that in 2012 no journalists were jailed in Myanmar and the country rose eighteen places to 151 out of 179 states in the 2013 World Press Freedom Index.  He was concerned that public broadcast news remains heavily censored, but welcomes the increased freedom for internet users, with internet café owners no longer receiving police visits and no longer required to keep logs of the computers used by its customers.  He expresses concern, however, about the decision of Parliament on 17 January to investigate the online activities of a blogger who had criticised MPs’ amendments to the constitutional tribunal law.

f. In respect of freedom of expression, Professor Quintana notes that in 2012 no journalists were jailed in Myanmar and the country rose eighteen places to 151 out of 179 states in the 2013 World Press Freedom Index.  He was concerned that public broadcast news remains heavily censored, but welcomes the increased freedom for internet users, with internet café owners no longer receiving police visits and no longer required to keep logs of the computers used by its customers.  He expresses concern, however, about the decision of Parliament on 17 January to investigate the online activities of a blogger who had criticised MPs’ amendments to the constitutional tribunal law.

g.           Concerns are expressed over the extent to which the right to freedom of assembly and association is being respected because of shortfalls in the 2011 Peaceful Assembly and Peaceful Procession Act and its associated bylaw as well as the problematic implementation and enforcement of this legislation by state officials and police officers on the ground.  This is reflected in the ongoing arrest and detention of people involved in peaceful protests.  If a peaceful assembly or procession takes place without a permit the criminal code provides for punishment of up to one year imprisonment and a fine of 30,000 kyat.  Furthermore, he observes the act is being used in conjunction with other laws under which the failure to gain permission to hold an assembly can result in two years’ imprisonment of the criminal code and five years sentence under 1988 law relating to the formation of organisations for people who participate in groups that in, broad and vague terms:

“… attempt, instigate, incite, abet or commit acts that may in any way disrupt law and order, peace and tranquillity, or safe and secure communications; [or] affect or disrupt the regularity of state machinery.” 

There was an additional power to the President under the 1908 Unlawful Associations Act authorising the President to declare at his discretion any organisation to be unlawful with the sanction of between two and three years imprisonment for a member of such an association. 

h.           Reference is made to thirteen activists having been arrested under what we understand to be the Peaceful Assembly and Peaceful Procession Act on 21 December 2013 in Yangon in which opposition was voiced to the war in Kachin State, and in October ten activists in Mandalay Bago were charged under the Act with participating in peaceful protests against electricity charges.  Reference is also made to four gold mine workers having been sentenced to six months imprisonment for leading a march on 23 November 2012 on the basis that they had done so without permission.  On 26 November eight activists including a former prisoner of conscience who was named were arrested for protesting in Yangon against the expansion of the Monywa copper mine and they too were charged for protesting without a permit.  On 13 December four activists in Mandalay and four activists in Monywa were arrested for the same reason, and on 18 January they were sentenced to one month imprisonment but were released as they had already spent 33 days in prison after their arrest.

i. Concern is expressed by Professor Quintana over the police handling of protests.  In their attempt on 29 November to clear the main protest site near the copper mine in Monywa resulted in 73 people including 67 monks being injured, with around 30 persons suffering burn injuries.  Mr Quintana had met with the participants in the protests who described how incendiary devices had been used to disperse the crowds, resulting in serious injuries.  The Minister of Home Affairs denied this and Mr Quintana welcomes the establishment by the government on 1 December of a commission chaired by Aung San Suu Kyi to look into the protests. 

89.        The report additionally considers the situation in Burma under these further chapter headings:

a.            Conflict and the Situation of Ethnic Minorities

b.           Situation in Rakhine State

c.            Democratic Transition and Establishing the Rule of Law

d.           Truth, Justice and Accountability.

before the following conclusions are made:

“82. Continuing reforms in Myanmar are resulting in ongoing improvements to the human rights situation. Important changes have taken place, such as legislative reform, but sometimes not to the point where international human rights standards are met.

83. There remains a large gap between reform at the top and implementation on the ground. While acknowledging that it will take time to close this gap, this should not be used as an excuse to avoid taking necessary steps, such as the capacity development of police, army, judges and lawyers.

84. While the process of reform is continuing in the right direction, there are significant human rights shortcomings that remain unaddressed, such as discrimination against the Rohingya in Rakhine State and the ongoing human rights violations in relation to the conflict in Kachin State. The Special Rapporteur believes that now is the time to address these shortcomings before they become further entrenched and destabilise the reform process.

85. The Special Rapporteur believes the continuing existence of his mandate is vital to highlight these concerns and support the Government in addressing them. It helps to remind the international community of the importance of prioritising human rights in its bilateral relations with Myanmar. And ultimately, it provides a positive contribution to improving the situation of human rights for the people in Myanmar.”

Schedule two – Submissions in detail

Summary of Skeleton Argument – Mr Mullins

1.           Mr Mullins notes the acceptance by the respondent of the Statement of facts and sets out the ambit of the case, its procedural history and the relevant legal provisions in international law, European law and domestic law. He also sets out the headnote of TL & ors (sur place activities – risk) Burma CG [2009] UKAIT 17 and the relevant passages from KS & NL (Burma) [2013] EWCA Civ 67, and refers to Maurice Kay LJ’s approval in that case of the UT’s approach in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC).

2.           It is submitted also that an individual who has no political beliefs should not be expected to pretend to the contrary to avoid persecution, and that an individual has a well-founded fear of persecution if he intends on return to his country of origin to pursue political activities which would expose him to a risk of persecution and it cannot reasonably be expected for him to forego manifesting his political beliefs.

3.           Mr Mullins submits that on the basis of the evidence set out in TL, and in particular that of Mr Morland, as confirmed by a letter from the FCO dated 4 February 2011 and set out in the OGN of September 2012 that:

a.            An individual’s participation in demonstrations outside the Burmese embassy is very likely to be recorded, and those records sent to the Burmese immigration authorities;

b.           Burmese nationals who regularly participate in such demonstrations are very likely to be have been photographed by the Burmese authorities;

c.            If such a person is returned and there are additional risk factors that would trigger the attention of the Burmese authorities, there is a real risk of persecution on return;

4.           Mr Mullins submits that the Burmese regime:-

a.            on the basis of Dr Zarni’s evidence;

i.             Has not changed in respect of intelligence gathering, and its policy and priorities are very much driven by the security of the regime; and

ii.           Still relies heaving on human intelligence both inside and outside Burma and

b.           on the basis of Ms Robiou’s evidence:-

i.             has a sophisticated network of spies throughout the country, monitoring those believed to be dissidents, to collect evidence against them, to understand how the organisations operate, and to pre-empt anti-state activities;

ii.            has a sophisticated network throughout the world, staffed by military intelligence, who monitor and document information on those involved in the oppositionist movement;

and that accordingly, it is likely that the measures identified as put in place in TL are still in place, and that while high profile leaders may not be at risk, that does not apply to those without an identifiable profile, nothing Ms Robiou’s evidence that those who do return are forced so sign a pledge not to partake in activities or engaged in criticism harming the state.

5.           Relying on Dr Zarni’s evidence, he submits that there is still a risk on return of detention and arrest for Burmese nationals politically active abroad, and that, relying on Ms Robiou’s evidence,  those dissidents with international profiles may on return be protected by that profile, those less well known may well be at greater risk.

6.           He submits that, on the basis of the evidence of both Dr Zarni and Ms Robiou and bearing in mind the conclusions of the Court of Appeal, the regime does not differentiate between those returnees who have no real commitment and attend demonstrations just to bolster a claim and those whose commitment in genuine, the regime being concerned not so much with motive but with the act.

7.           In conclusion, Mr Mullins submits that risk on return will turn on what the returnee does on his return and that if he refuses to sign the pledge referred to above, he will be denied entry.

8.           As regards the appellant, it is submitted that he will continue to demonstrate on his return, putting him at a very high risk of being arrested, and once detained, he is likely to be tortured.

Mr Mullin’s supplementary skeleton argument

9.           In summary, Ms Robiou’s evidence is that:-

a.            There are a lot of arrests in Burma that do not lead to formal charges, but are brief detentions during which the risk of torture is still very high;

b.           The appellant’s political activity in the UK will put him at risk on return to Burma as the government will monitor him and will seek to interrogate him about his activist networks and by using torture;

c.            There is more evidence of torture and abuse in ethnic minority areas than in urban areas;

d.           A lot of exiled organisations, including her own, consider that it is still not safe to return to Burma although they have visited the country recently;

10.        Ms Robiou’s evidence is supported by the Special Rapporteur’s Report dated 16 February 2013 as this draws attention to:-

a.            the on-going practice of arbitrary arrest and torture of Kachin men;

b.           the detention of NGO staff in Rakhine state;

c.            the still significant number of prisoners of conscience despite the large number of releases;

d.           the widespread use of torture;

e.            the shortcomings of the Peaceful Assembly procession Act demonstrated by the arrest and detention of people involved in peaceful protest

11.        Ms Robiou’s evidence is also supported by the statement by the Special Rapporteur that people are still being arrested and imprisoned for holding demonstrations; and, by the investigation into the Copper Mine Protests.

12.        In summary, Dr Zarni’s evidence is that:-

a.            Recent developments, and the Special Rapporteur’s Report  have led him to a more pessimistic assessment of the dangers to those returning from abroad;

b.           Returning protestors from abroad are likely to be called in for questioning, without warrant, at the airport or subsequently, without due process and are likely to be monitored;

c.            Those with a known history face a greater risk of being closely monitored, and being called in for questioning, their past record being an aggravating factor;

d.           The appellant has been a regular face at demonstrations, has shown up in photographs with well-known dissidents and is likely to be known to Burmese Intelligence;

e.            The regime is concerned with protests snow-balling, and as there is solidarity between the different groups, a distinction between them cannot be drawn.

13.        Mr Maung’s evidence is significant as:-

a.            It confirms that the embassy is still filing and photographing demonstrations, passing that information back to Burma;

b.           That the reforms are superficial;

c.            That those who refused to sign declarations will be refused a visa;

d.           The appellant will be not be given permission to return, and that even if he is allowed to return, the intelligence services will have a record of his activities.

14.        The response of the Burmese govt to the Special Rapporteur’s report – a wholesale rebuttal of all the conclusions – indicates the very limited nature of the reforms, and confirms Dr Zarni and Ms Robiou’s fears that the reforms are simply cosmetic.

15.        The respondent’s submissions do not address the fact that the brief detentions referred to by Ms Robiou do not lead to trial and rely on her evidence selectively, incorrectly dismissing her evidence that the phones of those who return are tapped. The respondent also fails to take into account Ms Robiou’s reasons for nuancing her opinion – that it is only in recent weeks that low-level activists have returned.

16.        Mr Maung’s evidence corroborates the fears of Ms Robiou and Dr Zarni that, away from the spotlight, the Burmese government continues to harass the population and to intimidate and suppress freedom of expression. The appellant will not be able to return to Burma without attending the embassy to have his passport renewed and as he has demonstrated on at least 62 occasions outside the embassy, he will most certainly be known by intelligence officers in Rangoon, and will be at risk of detention and torture on return.

Summary of Mr Avery’s initial skeleton argument

17.        Mr Avery sets out the background to the case, and the agreed ambit.  He also submits that the appellant’s sur place activity and the observations in YB Eritrea are relevant.

18.        An individual would not be at risk on return to Burma on the basis of demonstrations in the United Kingdom alone, the available evidence disclosing only one incident of a returning political activist being detained, that individual having an outstanding arrest warrant. Ms Robiou’s evidence indicates that a person without a history of activism would not be a risk, and Dr Zarni defers to the FCO letter to the effect that without additional risk factors, those who have demonstrated outside the embassy are not at risk of persecution on return.

19.        Whether an individual who had come to the adverse attention of the authorities but had been able to leave using a valid Burmese passport would be at risk on return, having also demonstrated outside the Embassy is fact sensitive.

20.        There is no evidence to suggest that the Burmese authorities do distinguish between those demonstrators who have a genuine commitment to the opposition cause, and those who attend to bolster asylum claimed, but neither category is at risk.

21.        Since TL was promulgated in 2009, there has been a substantial and durable improvement in Burma. In TL it was noted that any sign of dissent, even minor, was savagely punished; now, the NLD has participated in elections; the NLD leader, Aung San Suu Kyi has been released and has been elected to parliament; laws have been passed allowing demonstrations and restrictions on the press have been relaxed; political prisoners have been released; and, many exiled opposition activists have returned.

22.        While it is possible that those demonstrating in Burma would be at risk of arrest, it is not accepted that this would be reasonably likely. The opinion of Ms Robiou that the risk is very high is not supported by the evidence in her report.

23.        Although it is accepted that there have been arrests at demonstrations, it is not considered that it is reasonably likely that the appellant would face arrest and/or ill-treatment.

Mr Avery’s supplementary submissions

24.        Ms Robiou has not given a sufficient basis for revising her view that a returnee who was not a prominent activist would be at risk of being monitored; the suspicions of her colleagues who had returned to Burma that their phones were being tapped as they heard sounds “like typewriters” was unconvincing evidence of actual monitoring.  Neither Ms Robiou’s evidence of 13 arrests when 1000 demonstrated, figures she described as 70% accurate, nor the other figures, support her claim that there is a high risk of arrest for those demonstrating in Burma.  The evidence suggests that those who arrested are the leaders of the demonstration.

25.        Dr Zarni has in his email substantially revised his answers to Qs 12 and 13 from the Skype interview.  The three reasons for this doing so – the political fluidity of the situation, the views of the Special Rapporteur and a TV interview with a freed political prisoner, are lacking in substance. Since the Skype phone-call, there has been no substantial change in the political situation in Burma and the Special Rapporteur’s report contains no new information not already in the public domain.  Dr Zarni is unable to point to any evidence that people who were low-level activists abroad had suffered any difficulties on return. The view that they were under the radar is unsustainable.

26.        While not doubting the evidence of Mr Maung and those who attended the embassy with him, there is no other evidence showing that former Burmese nationals who have become British had experienced difficulties in obtaining visas to return to Burma. This evidence is of limited assistance.

27.        The respondent maintains her position that, in the light of the changes in the general situation in Burma, a history of demonstrating in the United Kingdom would not on its own lead to a reasonable likelihood that a returnee would face ill-treatment. While there may have been arrests following demonstrations in Burma, the numbers are small and appear to be confined to the leaders of protests. Even were the appellant to participate in demonstrations in Burma on his return, he would not be at real risk of ill-treatment.

Schedule three –Documents considered