England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 May 2014

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Kitchin LJ on 19 December 2013 against the determination of the Upper Tribunal, Upper Tribunal Judge Hanson, dated 20 May 2013 by which the Upper Tribunal dismissed the Appellant's appeal against the decision of the First Tier Tribunal ("FTT") (First Tier Tribunal Judge Ford) of 10 January 2012.
2. The FTT had to consider the Appellant's appeal against the decision of the Secretary of State of 20 October 2011 refusing the Appellant's application for further leave to remain in the United Kingdom based on claims of asylum and humanitarian protection. The Secretary of State had comprehensively rejected the Appellant's factual assertions. However, the FTT accepted his account in its essentials: see paragraph 78 to 82. Judge Ford allowed his appeal on humanitarian protection grounds and under Article 3 of the Human Rights Convention, but dismissed it in relation to the asylum claim because she was not satisfied to the requisite standard that he feared persecution by reason of his membership of a particular social group.
3. The Appellant appealed against this adverse finding to the Upper Tribunal, notwithstanding the fact that he was and indeed remains at no risk of removal from the United Kingdom because of the FTT's favourable conclusions on humanitarian protection and Article 3. The Upper Tribunal dismissed his appeal.
4. The Appellant is a national of Morocco born on 9 October 1993. He arrived in the United Kingdom on 25 February 2010. He claimed asylum. That was refused, but he was granted discretionary leave until 9 April 2011. His application for further leave was refused, as I have said, on 12 October 2011. His factual case is crisply described by the FTT as follows:

"The Appellant's mother died while he was still very young. His father remarried and had several more children. The Appellant was physically and emotionally ill-treated by his father and his step-mother. When he was about 7 years of age the Appellant's father threw him out of his home and from then onwards the Appellant lived on the streets. He did not attend school. The Appellant lived on the streets in Casablanca. He was physically and sexually abused by older beggars, many of whom were drug addicts.

From time to time the Appellant was picked up by the police and spent some time in police detention. The Appellant was without identification papers. He began to use drugs. When he was under the influence of drugs he set another street child alight and was put into detention. He was initially remanded in an adult prison where he was raped. He was sentenced to fifteen years' imprisonment and was then placed in juvenile detention. After several months in juvenile detention he managed to escape.

The Appellant had suffered from suicidal thoughts when he was detained. He made his way to France where he secured employment, although it was unpaid. He left this situation following a row with a work colleague.

Since coming to the United Kingdom the Appellant has been tested for and found to be clear of STDs. He has been diagnosed as suffering from an unspecified stress reaction. He does not fulfil the full criteria for PTSD or adjustment disorder. Although he has been prescribed anti-depressants (citalopram) by his GP, his psychiatrist does not feel that he gives symptoms of a depressive illness. The diagnosis is primarily based on his symptoms of flashbacks and nightmares and avoidance of reminders of his symptoms.

The Appellant has made considerable progress in learning the English language since his arrival in the United Kingdom and has also become involved in soccer and social activity. He fears a return to Morocco because he is without family support and given that unemployment rates are so high, he fears that he will end up on the streets again. He fears that he will again become suicidal or addicted to drugs or will become the victim once more of violence or sexual abuse."

5. There was much contention below as to whether it was shown on the evidence that the Appellant belonged to a particular social group for the purposes of the law of refugee status. However it was, in effect, assumed by Upper Tribunal Judge Hanson that he did. Upper Tribunal Judge Hanson said this at paragraph 21:

"I accept Mr Draycott's submission that risk which exists when a minor may not suddenly disappear just because a person attains the age of 18, especially as this issue needs to be viewed through the eyes of the persecutor. In this case, Judge Ford found as a fact that the Appellant is both an adult and will not be returning to the streets of Morocco as he will be returned to prison. She found he will, therefore, no longer be a street child and so not at risk in that capacity. He will remain an orphan and it is arguable he falls within the PSG identified by Mr Draycott as a former street child in Morocco. It is submitted street children form a distinct group in Moroccan society and being a former street child is an immutable characteristic."

6. Judge Hanson pointed towards what is the live issue in the case when he said at paragraph 23:

"Even if a person can be said to fall within a body which satisfies the definition of a PSG in law and suffers persecution, unless that persecution is as a result of his or her MPSG [I interpolate that is, of course, membership of a particular social group] that person is not entitled to refugee status."

Moreover, the Upper Tribunal held (paragraph 25) that Judge Ford in the FTT had been entitled to conclude that the Appellant had not proved that:

"Any ill treatment he will experience was because, in the mind of his persecutor, the reasons for such ill treatment was his MPSG."

7. The issue in the case is whether the Tribunals below misapprehended the nature of the causal link or nexus which an asylum seeker must show between the persecution he fears and the characteristic, here MPSG, mentioned in the United Nations Refugee Convention which applies to him.
8. I will come to Judge Ford's conclusion shortly. Let me first turn to the legal materials. As is well-known, a "refugee" is defined by Article 1A(2) the 1951 UN Convention relating to the status of refugees as any person who:

"Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Council Directive 2004/83/EC, the Qualification Directive, incorporates the Convention meaning of "refugee" into EU law: see Article 2(c) which replicates the definition word for word. Mr Westgate QC for the Appellant, however, draws particular attention to Article 9(3) of the Directive which provides:

"In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1."

Article 10 is headed "Reasons for persecution" and includes a description of "particular social group". As I shall explain, Mr Westgate's focus is on the expression "connection between the reasons and the acts of persecution".

9. I should note that The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 implementing the Directive in UK law has this at paragraph 5(3):

"An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention."

10. There is a good deal of learning, judicial and academic, upon the question what is the nature of the link that must be shown between the feared persecution and the Convention characteristic which the asylum claimant possesses? Thus I should notice Lord Bingham's observation in Fornah [2007] 1 AC 412 at paragraph 17:

"The ground on which the claimant relies need not be the only or even the primary reason for the apprehended persecution. It is enough that the ground relied on is an effective reason."

11. Mr Westgate is at pains to emphasise that the ascertainment of the necessary link between persecution and Convention characteristic is an objective exercise to which the alleged persecutor's motives bear no relation. He cites, for example, the Michigan Guidelines on Nexus to a Convention Ground: see 2002, volume 23, Michigan Journal of International Law 2072221.
12. Much light is with respect thrown on this question of the link or nexus by two decisions of their Lordships' House - In Sepet [2003] 1 WLR 856, Lord Bingham said this at paragraph 22:

"...the reason is the reason which operates in the mind of the persecutor and not the reason which the victim believes to be the reason for the persecution, and that there may be more than one real reason. The application of the test calls for the exercise of an objective judgment. Decision-makers are not concerned (subject to a qualification mentioned below) to explore the motives or purposes of those who have committed or may commit acts of persecution, nor the belief of the victim as to those motives or purposes. Having made the best assessment possible of all the facts and circumstances, they must label or categorise the reason for the persecution. The qualification mentioned is that where the reason for the persecution is or may be the imputation by the persecutors of a particular belief or opinion (or, for that matter, the attribution of a racial origin or nationality or membership of a particular social group) one is concerned not with the correctness of the matter imputed or attributed but with the belief of the persecutor: the real reason for the persecution of a victim may be the persecutor's belief that he holds extreme political opinions or adheres to a particular faith even if in truth the victim does not hold those opinions or belong to that faith."

Then in Sivakumar [2003] 1 WLR 840 Lord Rodger said this at paragraph 41:

"In a case like the present the task of the person considering a claim for asylum is therefore to assess carefully the reason or reasons for the persecution in the past and to draw the appropriate inference as to the reason or reasons for any possible persecution in the future. There is no rule that, if an applicant is to succeed, the decision-maker must be satisfied that the Convention reason was, or would be, the only reason for his persecution. In Suarez v Secretary of State for the Home Department [2002] EWCA Civ 722; [2002] 1 WLR 2663, 2672, para 29 Potter LJ said:

"so long as an applicant can establish that one of the motives of his persecutor is a Convention ground and that the applicant's reasonable fear relates to persecution on that ground, that will be sufficient."

"Keene LJ and Sumner J agreed. Potter LJ's guidance is indeed valuable, provided that it is remembered that the law is concerned with the reasons for the persecution and not with the motives of the persecutor. For instance, the law is concerned with whether state officials may persecute someone because he is Jewish, but the motives of those officials for any such persecution -- whether a desire to give effect to the theories of racial purity in Hitler's Mein Kampf or simple jealousy of the prosperity of the Jewish community -- are irrelevant. So long as the decision-maker is satisfied that one of the reasons why the persecutor ill-treated the applicant was a Convention reason and the applicant's reasonable fear relates to persecution for that reason, that will be sufficient. Ex hypothesi any such reason will be an operative reason for the persecution -- but, as in the fields of sex and race discrimination, there is little to be gained from dwelling unduly on the precise adjective to use to describe the reason: Nagarajan v London Regional Transport [2000] 1 AC 501, 512 - 513 per Lord Nicholls of Birkenhead."

13. Now I will turn to the FTT's conclusions as to the claimed link or nexus between the Appellant's feared persecution and his MPSG. Judge Ford said this at paragraphs 85 to 86:

"On the evidence before me, I am therefore satisfied that the Appellant is at real risk of being identified on his return to Morocco as the authorities have his fingerprints and photograph on record. I am satisfied that he is at real risk of being returned to prison when he will be placed in adult prison detention and given his various vulnerabilities, I am satisfied that he will then be at real risk of being subjected to inhuman or degrading treatment by his fellow inmates.

I accept that the Appellant is without family protection in Morocco. This is crucial in terms of his survival in adult detention. He will have no money to bribe the guards and to secure protection additional to the very low level of protection normally afforded to prisoners. I am satisfied that there is a real risk that the prison authorities will not give this Appellant the protection he will need against further abuse whilst in adult prison detention on his return to Morocco. He is at real risk of being abused in a manner that amounts to inhuman or degrading treatment in breach of Article 3 of the Human Rights Convention. His vulnerability arises not only from his physique but also from his lack of family support, his lack of education, lack of confidence and his abusive experiences as a child. I am satisfied that this Appellant lacks the coping skills, (which would need to be considerable) to protect himself in prison detention on his return to Morocco."

14. Judge Ford then gave reasons for her conclusion that the Appellant was not a MPSG for the purposes of a Refugee Convention. At the end of paragraph 90 she reiterates her finding that the Appellant faced a real risk of ill treatment in breach of Article 3 of the Human Rights Convention.

Then turning to paragraph 91:

"I would wish to make it clear that I am not making a finding that all prisoners who have escaped from Moroccan jails would face a real risk of persecution on their return. My findings in this case are based on the particular vulnerabilities of this Appellant including his personal history, his young age, his physique, his lack of family protection, the length of his sentence and the likelihood that he will be placed in adult detention on his return even though he has only recently turned 18."

15. The Appellant through Mr Westgate takes issue with Judge Ford's conclusion and its endorsement by the Upper Tribunal at paragraphs 24 to 25. His submission is that the facts found by the FTT established a "connection" (the term used, as I have shown, in Article 9(3) of the Qualification Directive) between the physical and sexual violence to which the Appellant would be subjected if returned to Morocco and "the ... historical characteristics of a street child that he would continue to retain, notwithstanding he is now over the age of 18". That is how it is put at paragraph 33 of the Appellant's skeleton.
16. This submission involves the proposition that the Appellant is not required to prove that his feared persecutors will target him because of those characteristics. It is enough that some objective connection be shown between his possession of them and the risk of persecution, whatever may be in the mind of the persecutor.
17. This morning, Mr Westgate QC asserted in terms that it was not necessary to show that the persecutor had in mind the Appellant's Convention characteristics. Mr Westgate disavows any suggestion that his argument means that the use of the term "connection" in the Directive imports a different and looser test for the link between persecution and Convention characteristic than that which is to be found in the general jurisprudence relating to the definition of refugee. I think I should make it clear that such a submission would, in any event, be wholly unsustainable. Article 9(3) of the Directive on which Mr Westgate relies begins with the words "in accordance with Article 2(c)". As I have said, Article 2(c) sets out the Convention definition of refugee word for word. It would in any event be very surprising, and on the text of the Directive it is unarguable, that the EU legislator should have sought to introduce a special EU-only meaning of the term "refugee" into a measure whose very purpose included the incorporation of the Convention meaning of "refugee" into EU law.
18. How then does the matter stand if we apply the sense of the term refugee as it is generally understood in the cases, notably in Sepet and Sivakumar? I accept, of course, and indeed so much is stated in both of those authorities as well as in Fornah, that the Convention reason for the feared persecution need not be the only reason. I accept also that the motive of the putative persecutor is irrelevant to the issue.
19. But I think that Mr Westgate's argument betrays, if I may say so, a conflation of two different ideas. One is the reason why a persecutor might persecute. The second is his motive for doing so. This distinction is made perfectly clearly by Lord Rodger in Sivakumar. A state agent, or anyone for that matter, may choose to persecute someone because he is Jewish. That is his reason for so acting; but this is quite different from his motive. His motive might be sympathy with Hitler's deformed theories, jealousy of wealthy Jews or perhaps some personal axe to grind.
20. The law is that the motive is irrelevant, but the reason entertained by the persecutor, or at any rate an operative reason, must be shown to be directed at the very Convention characteristic owned by the asylum claimant in the particular case. This is consistent in my judgment with the Michigan Guidelines cited by Mr Westgate. The standard of proof is of course, as Mr Westgate submitted, the "real risk" standard.
21. The error in the Appellant's case involves, as I see it, the proposition that because the persecutor's motive is irrelevant, so in truth also is his reason for persecution. Here the Appellant had to demonstrate to the FTT that his MPSG would be a reason entertained by his persecutors for their actions, but that was never shown. FTT Judge Ford's findings at paragraph 86, summarised again at paragraph 91, contain no finding that his characteristic as a previous child of the street would be such a reason. Along with other characteristics, it was simply part of his personal make up which made him particularly lamentable, but that is all.
22. This conclusion is in my judgment untouched by the reasoning in such cases as LQ [2008] UKAIT 520 of the fact that orphaned children may be a particular social group. The question whether the reason for persecution must be a reason entertained by the persecutor was not live in that case. Nor, as I read it, was such a question live in DS (Afghanistan) [2011] INLR 389. Nor is the conclusion I have set out undermined by the fact if it be a mere fact, based on the evidence of Dr Sedham before the FTT, that the characteristics attributed by the FTT to this Appellant were typical of a street child or ex-street child. None of this shows, and as I have said Judge Ford did not find, that the reason entertained by the Appellant's prospective persecutors would in terms include the Appellant's MPSG.
23. Although Mr Westgate sought to rely on Sepet and Sivakumar, those authorities are in my judgment plainly against him given the passages I have cited. On authority, Article 1A(2) of the Convention does not merely require a causal connection between persecution and the suggested Convention characteristic. It requires proof to the real risk standard of the reason entertained by the persecutor for the actual or prospective persecution. that was not proved here. The possibility, if it exists, that a persecutor might unconsciously entertain a reason for persecution does not arise on the FTT's findings in this case.

For all these reasons, I, for my part, would dismiss the appeal.

24. LORD JUSTICE ELIAS: I agree. I am inclined to accept that there may be circumstances where at least a reason for persecution might be for a Convention ground, notwithstanding that the persecutor may not be conscious of the fact. That is certainly the position of domestic discrimination law: see the observations of Lord Nicholls of Birkenhead in Nagarajan v London Regional Transport [2000] 1 AC 501 at page 511H to 512D.
25. It is not, in my judgment, inconsistent with the observations of Lord Bingham in Sepet, which my Lord has referred to, at paragraph 2 when he said that reason must be "the reason which operates in the mind of the persecutor". In that context, he was contrasting it with the reason which the victim believed to be the true reason for the persecution. The reason operating in the mind of the persecutor may be one of which he is not himself aware.
26. I would also accept that a person may be persecuted by reason of having a characteristic or characteristics which are so closely intimately and exclusively linked to one of the Convention grounds that a court could properly and may be should infer that the persecution was by reason of the Convention ground even though the persecutor himself may not have articulated the reason in that way, even to himself, but I do not accept that the necessary link is established on the facts of that case to enable the Appellant to rely upon that principle.
27. LADY JUSTICE GLOSTER: I agree with both judgments.