England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 7th November 2001

LORD JUSTICE SCHIEMANN:

1. This is the judgement of the court.
2. The appellant Mr Moro arrived in this country in 1995. He sought asylum. This was refused by the Secretary of State. He appealed to a Special Adjudicator. His appeal was dismissed. He asked the Immigration Appeal Tribunal for leave to appeal. This was refused. He commenced Judicial Review proceedings to quash that refusal. By a Consent Order he was granted that relief. The Immigration Appeal Tribunal thereupon heard his appeal. It dismissed it and refused permission to appeal to this court. The Single Lord Justice however granted that permission. So it comes about that last week we heard his appeal – nearly 6 years after he arrived in this country.
3. He is a Ugandan, a member of the Acholi tribe. He was employed by the Department of Post and Telecommunications. He was until 1986 a member of Dr Milton Obote's party, the Uganda People's Congress. In that year President Museveni, the leader of the National Resistance Movement, came to power and has remained in power ever since. Mr Moro remained employed by the Post Office during and after these political events.
4. In 1990 he went to Germany on a banking course. In April 1991 he returned to Uganda with a videotape about human rights abuses under the NRM regime. He was asked to attend a course in political re-education known locally as chaka-mchaka. He declined and continued in employment. In August of that year he was questioned at work about the videotape and once more asked to attend chaka-mchaka. He refused. In 1992 he was once more asked to attend chaka-mchaka. He took no notice.
5. By 1993 he had reached a senior position in the Post Office. He was once more asked to attend chaka-mchaka. Again he refused, this time writing a letter severely criticising the Government for its alleged lack of democratic credentials.
6. Because of this, in August 1993 he was questioned and detained for a period of 3 days. During that period he was maltreated. The Immigration Appeal Tribunal found that his arrest and maltreatment in 1993 were "persecutory". He was not charged with an offence but was released on condition that he report to the District Security Office in Kampala once a fortnight thereafter. The legal basis, if any, for the imposition of this condition does not appear from the incomplete papers before the court.
7. Although attendance at chaka-mchaka was not compulsory as such and failure to attend was not a crime, it was because of his refusal to attend mchaka-chaka that he was suspended from his work as a Post Office employee. He was however paid a regular "pension".
8. During the period of his suspension he occupied himself and earned some extra money by buying agricultural produce in the area in the North of Uganda from which he came, near Gulu. This and his pension enabled him to amass the considerable sum of money which he said he required for his journey to the United Kingdom.
9. In 1995 he was forcibly retired from work and his retirement was backdated to 1993 when he was 41.
10. Between 1993 and 1995 he was in repeated breach of his reporting conditions. However, no enforcement measures were taken against him. After his forcible retirement, he moved to Gulu and his pension was paid to him there after he had reported to the local security office.
11. In June 1995 he left Uganda and went to Kenya. He returned two months later, not having reported in the meantime to the District Security Office in Gulu. He was not arrested at the border on his return into Uganda.
12. In August 1995 there was rebel activity by the Lords Resistance Army in the area of Gulu. The rebels killed a security man. Road blocks were set up and he was stopped at one. The Special Adjudicator records what Mr Moro told him

He was recognised and asked what he was doing there. He was taken to barracks for questioning. … he was held for four days and accused of being a go-between involved with the rebels. He denied it. He was questioned as to why he had not reported. He was hit in the groin and kicked and repeatedly bitten by mosquitoes. He caught malaria. An army officer came into his cell and that officer sympathised with him and as a result he was taken to hospital for treatment. He managed to walk away from the hospital and escaped. He was asked why he waited until December (i.e. from August) before leaving the country. He said he had problems arranging his departure. …

At the hearing the Appellant gave evidence. He did not need an interpreter. … He was asked about his two arrests. He thought they might be linked... He said that his second arrest was because he was suspected of being a rebel because he was Acholi.

13. The Special Adjudicator went on to conclude

I accept that the appellant was detained in 1995 at a road block. This was in the Northern part of Uganda in an area affected by rebels fighting for the Lords Resistance Army which is in direct conflict with the Ugandan authorities. … his arrest on that occasion was a random arrest as a result of the authorities' actions against the rebels. They had a legitimate interest in detaining and questioning anyone suspected of being a rebel. The appellant was unfortunate in being arrested in such a way. I accept of course that he has no involvement with the rebel cause. … I consider that his ability to walk out of the hospital shows that he was of no real interest to the authorities.

14. Thus the Special Adjudicator did not accept that the reason for Mr Moro's detention was that he had been in repeated breach of his reporting obligations. The Immigration Appeal Tribunal examined this matter for themselves since the Special Adjudicator had given no reasons for his conclusion. They said

While on the facts found by [the Special Adjudicator] the appellant's detention and ill-treatment in 1993 were undoubtedly persecutory, neither they nor the subsequent reporting conditions led to his departure from Uganda, or would be likely to lead to his persecution on return, unless they can be linked to what happened in 1995. … In our view what the appellant said about his being on a regular reporting regime which was yet flexible enough to allow him to make frequent journeys of several hundred miles to and from Gulu, and not lead to any ill consequences even when he took an unauthorised trip to Kenya … was deeply unsatisfactory. Such history of dissent as the appellant may have had was of a strictly urban kind and we can not see any particular reason why the security forces in Gulu should have seen fit to link him with local violence by very much less sophisticated rebels. What the appellant said about his second detention in cross-examination was that he was suspected of being a rebel because he was an Acholi. [His advocate] disclaimed any suggestion before us that Acholis as such are subject to persecution, but complained that [the Special Adjudicator] failed to give any weight at all to the appellant's tribal origin. The background evidence which he himself was able to extract, however … consists in the State Department saying for 1988

"The continued instability in the north led to violations of the rights of many Acholi … Most violations of Acholi rights resulted from [Lords Resistance Army] actions."

Taking the appellant's case about the reason for his detention in 1995 at its very highest, for the moment without considering how he got out of it, we do not think it could have been put in any higher category than [that] … of evidence about which there is doubt. As [the advocate for the Secretary of State] pointed out it may well be that the appellant was recognised at the roadblock; but that does not necessarily mean that he was detained because he was recognised.

15. The Immigration Appeal Tribunal continued

… we have no doubt that [the Special Adjudicator] was right to conclude that, if the authorities had any serious interest of the kind suggested by the appellant on his second detention, then some more effective security precautions would have been taken than those represented by two unarmed guards who walked off and left him in a hospital lavatory with free access to the outside world.

16. A further matter which was investigated by the appellate authorities was the manner in which Mr Moro allegedly left Uganda and what happened when he arrived here. He left Uganda using his own recently obtained national passport endorsed with an entry clearance for himself and two children. This had been obtained following an application form signed by him 11 days before he left Uganda, which application form contained photographs of the two children with whom he travelled. When he arrived here he attempted to gain admittance as a visitor for 2-3 weeks. When the immigration authorities started to investigate matters he then claimed asylum. He said that the children were not his and that their names had been endorsed on the passport without his knowledge. Before the Special Adjudicator he said that he had filled in the application form including the two children on the insistence of the agent who was arranging the visa. The Immigration Appeal Tribunal said about this

… we can not see how an intelligent man, with previous experience of foreign travel, would not only have got his visa by claiming to travel with two children who were not in fact his (as to which on his case he had no alternative) but tried to pass them off as his, and himself as a visitor, on reaching the actual protection of his chosen country of asylum.

17. While it is clear that the Immigration Appeal Tribunal were highly sceptical as to what they had been told about the way the passport had been obtained and why Mr Moro had attempted to deceive the immigration authorities on arriving here, it is right to record that they reached their conclusion that he was not a refugee without having regard to those matters.
18. The task of the appellate authorities was to decide whether the appellant had established a reasonable degree of likelihood that he subjectively had a fear which was objectively well founded that he would be persecuted for a Convention reason If he were to be returned home. They certainly decided that there was no well founded fear. Although there is no clear finding as to the subjective element, it seems probable that they were sceptical as to the existence of the subjective fear. Both parties have rightly approached the appeal to us on the basis that the task of this court is to decide whether, in coming to the conclusion that any fear of persecution for a Convention reason was not objectively well founded, the Immigration Appeal Tribunal committed an error of law.
19. The first ground of appeal advanced on behalf of Mr Moro was that the Immigration Appeal Tribunal failed to recognise the essential nature of his case. This was that matters had to be looked at cumulatively. Here was a man who was known to be out of sympathy with the Museveni government, who, because of this, had been detained and persecuted in 1993, forced to report fortnightly thereafter on no known legal basis, deprived of his occupation in the Post Office, and detained and ill treated in 1995.
20. In particular it was submitted that, although anyone was liable to be stopped at a road block following the assassination of the member of the security forces, what had led to the appellant's detention for more than a few minutes was the fact that he had been recognised as someone who had been subjected to reporting restrictions because he was opposed to the government and as someone who in fact had breached his reporting restrictions. Had these additional elements not been present, so it was submitted, he would not have been detained. It could not be that every Acholi who was stopped at that road block in Acholi country was detained. It was submitted that the last few words which we have quoted in paragraph 14 from the Immigration Appeal Tribunal's decision indicate that they had not understood that this was the way the appellant put his case. The fact that the Acholi had no love for the LRA strengthened the appellant's case that he was arrested, not because he was suspected of a link with the LRA who had carried out the murder, but because of his own past history of displeasing the Government and not complying with reporting restrictions, coupled no doubt with the fact that the Acholi were in general not thought of as supportive of the government. The fact that the Tribunal had not made any express finding as to how he had been treated during the 1995 detention was itself indicative of a failure by the Tribunal to approach matters correctly. Had they found that he had been badly treated that might have led them to the view that his detention in 1995 was linked to his earlier history of opposition. Although his failure to report regularly was clearly not considered by the detainers to be a matter of great moment – since he had never been prosecuted for it although his whereabouts were known and he continued to collect his pension – in times of tension it would provide an extra reason for singling him out for ill-treatment.
21. Were the security forces arresting many Acholi and detaining them for questioning and then letting them go after a few days and he was just unfortunate to be treated like the others? Or did they pick him out because of his past history? We see the force of the arguments in favour of supposing that he was detained because of his past history rather than because he was an Acholi. Those arguments are not obviously right but they are tenable. On the other hand, that was not the way the appellant himself advanced the case. He said that the arrest was because he was an Acholi, also a tenable view. He was better placed than anyone else to make an informed guess as to the motivation of the forces which arrested him. The Tribunal had no evidence as to what happened to others who were stopped at road blocks in those days immediately following the killing or how long they were detained. So it would not be right to find that the Immigration Appeal Tribunal approach to his case amounted to committing an error of law.
22. The second ground of appeal was that Mr Moro's compulsory retirement from his post office job amounted to persecution for a Convention reason. The basis of the argument was the approach to the definition of persecution which has been adopted by Professor Hathaway in the fourth chapter of his well known book "The Law of Refugee Status". For present purposes the following extracts are of relevance.

"A well founded fear of persecution exists when one reasonably anticipates that remaining in the country may result in a form of serious harm which the government can not or will not prevent.(p.105) …

The use of a human rights standard for determining the existence of persecution is not accepted by all. The most conservative position … is that only a narrow subset of human rights violations can constitute persecution, namely, deprivation of life or physical freedom. (p.107) …

The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. … Within the International Bill of Rights, four distinct types of obligation exist. First in the hierarchy are those rights which were stated in the Universal Declaration, translated into immediately binding form in the ICCPR and from which no derogation is permitted …

Second are those rights enunciated in the UDHR and concretized in binding and enforceable form in the ICCPR but from which states may derogate during a "public emergency which threatens the life of the nation and the existence of which is officially proclaimed". These include [and there then follows a long list which starts with freedom from arbitrary arrest or detention and finishes with] "the ability to partake in government, access public employment without discrimination and vote in periodic and genuine elections. The failure to ensure any of these rights will generally constitute a violation of a state's basic duty of protection, unless it is demonstrated that the government's derogation was strictly required by the exigencies of a real emergency situation, and was not inconsistent with other aspects of international law, and was not applied in a discriminatory way.(p.108-110) "

23. It was submitted that the effective dismissal of Mr Moro from his senior post office job because he refused to attend chaka-mchaka amounted to a denial of his second category right and thus constituted persecution. The submission was supported by reference to a first instance Australian decision Thalary v Minister for Immigration and Ethnic Affairs [1997] 201 FCA. The Tribunal rejected this line of argument on the basis that it might be persecution to deny someone all means of earning a living but that in the present case the appellant had been able to earn a living after he was suspended from his post office job.
24. Mr Jorro pointed out that while there were some who held that there could not be persecution in the Convention sense unless the inhibition on the freedom to exercise a second category right of the kind under discussion was likely to result in physical injury, others held that it was the very denial of the exercise of the right which constituted the affront to human dignity which in itself amounted to persecution. We do not consider it appropriate in the context of the present case to consider the arguments at length. It does not seem to us to be arguable that, in circumstances where other employment is available, it amounts to persecution for a government to insist, as a condition of further employment by it or in its nationalised industries, that a senior employee attend a course to be informed of the government's philosophy, however misguided that employee might find that philosophy. We are not, on the evidence in the present case, dealing with a philosophy which advocates genocide or anything of that kind but rather with one which inhibits the functioning of the party system in the way that it functions in the western democracies.
25. Neither of the grounds argued, either singly or cumulatively justify the contention that the Immigration Appeal Tribunal erred in law. We dismiss this appeal.
Order: Appeal Dismissed; Appellant's costs to be assessed in accordance with the Community Legal Services (Costs) Regulations. (Order does not form part of the approved judgment)