Gomez (Non-state actors: Acero-Garces disapproved)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,Dr. H. H. Storey,Mr G. Warr |
| Judgment Date | 24 November 2000 |
| Neutral Citation | [2000] UKIAT 7 |
| Court | Immigration Appeals Tribunal |
| Date | 24 November 2000 |
[2000] UKIAT 7
IMMIGRATION APPEAL TRIBUNAL
Mr Justice Collins (PRESIDENT)
Dr. H. H. Storey
Mr G. Warr
Gomez (Non-state actors: Acero-Garces disapproved) Colombia *
This case has been starred for the purpose of clarifying the law on the 1951 Refugee Convention ground of political opinion in relation to claims to persecution at the hands of non-state actors.
The appellant is a citizen of Colombia. The basis of her claim to asylum was that as part of her training as a law student at the Universidad Libre de Pereira she was required to work at the Consultorio Juridico which provided free legal advice and was connected to the court system. She along with several fellow students had investigated a request for advice from a farmer who lived in a rural area on the outskirts of the town of Pereira. He had complained that he was the victim of extortion from armed men who had come to his farm demanding money. She thought they were guerrillas. Subsequently the appellant was visited at her place of work by some armed men. She also began receiving threatening telephone calls at home. Two co-workers who had helped with the investigation disappeared soon after. Before she left Colombia she had also learnt that her university tutor Dr Herrera had been kidnapped. She produced to verify this a newspaper article together with a letter from her faculty dean confirming that Dr Herrera had been her tutor. In addition whilst out driving she and her boyfriend had been chased by two motorcycles each with two men on, one of them carrying some kind of machine gun. After they had stopped at a police checkpoint, police had escorted them home. Having no confidence in the police to do anything to catch the men on bikes, however, she did not pursue this matter further with them. Originally it had been her intention to leave her country temporarily by way of a holiday in Switzerland until the problem ended. But she realised after talking to a friend in the UK that her experiences justified making a claim for asylum. She had learnt subsequently – in March 2000 — that Dr Herrera had been released on payment of a ransom. If returned she feared she would be murdered or abducted by the guerrillas. She believed they were members of FARC and that this organisation had the wherewithal to pursue her anywhere in Colombia. Even three years later, she felt that the threats facing her remained real.
The Special Adjudicator rejected the appellant's claim for two main reasons:
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a) he found her of poor credibility;
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b) even had he accepted her account he was not satisfied there was a Convention reason. Relying in this regard on Auld, J in ex parte Hernandez [1994] Imm AR 506 he wrote:
“The facts of that case were that the applicant had feared the consequences of refusing to co-operate with guerrillas to the extent of supplying drugs and medicines to them. He had not asked for the protection of government forces but had asserted they would be unable to protect him. Although Mr Southey had sought to distinguish that authority from Arcero Garces by stating that the victims of crime themselves may not qualify under the Convention but those, who for example, are assisting the victims of crime and come into contact with criminals can qualify under the Convention, I found that argument unpersuasive. It seems to me that if the victims of crime, such as the farmer who was said to have suffered extortion at the hands of guerrillas by this appellant cannot qualify for protection under the Convention then it must surely follow that those who assist the victims of crime cannot be placed in any better position insofar as Convention protection is concerned than the actual victims of crime themselves”.
In granting leave the Tribunal put the parties on notice that it intended to review whether Acero-Garces accurately reflected United Kingdom case law on the subject of claims to face persecution in Colombia from non-state actors likely to impute a political opinion to all those who obstructed their aims and activities. In Acero-Garces [1999] INLR 460, a Tribunal chaired by Mr R G Care, the appellant had witnessed the murder of a policeman in her home town. She had identified the murderer in an identification parade. She was then threatened by this man's brother. Both the murderer and his brother were members of a criminal gang (Los Prispos) that operated throughout Colombia. Thereafter she received threatening phone calls and notes and her shop was burnt down by the gang. She moved to another part of town, but the threats continued. The police had not been able to help her. She travelled to the UK and claimed asylum. In allowing the appeal the Tribunal held that the appellant feared persecution for a Convention reason, namely imputed political opinion. The Tribunal held that she would be seen by her persecutors to be on the side of law, order and justice and that the Colombian authorities would be unable to protect her against the persecution. The Tribunal noted the argument that the perceived political opinion arose:
“out of a combination of evidence that all forces of law and order operate only where the drugs barons or whatever one may call them permit. In other words the authorities protect the criminals but not members of the public. Any attempt to reverse that state of affairs is seen by the barons as a threat. To disentangle that situation from political opinion is, it is argued, impossible”.
The Tribunal concluded:
“The appeal is allowed on the basis that imputed political opinion is the Convention ground. The reason that the appellant is seen to be on the side of law, order, justice and against disorder, chaos, injustice, and it is these dark forces that control government. We need make no decision on the basis of particular social group”.
Tribunal determinations to similar effect include Mezal (14377).
At the hearing the representatives addressed us on the issues of credibility, sufficiency of protection and political opinion. In relation to the issue of credibility it was broadly agreed that the Special Adjudicator had fallen into error in his assessment of credibility. He had sought to reject the core of her account by reference to loose surmise about her conduct on arrival in the United Kingdom. Contrary to the view taken by the Special Adjudicator we do not consider that her conduct on arrival rendered her story implausible. In view of the fact that the great majority of the points relied upon by the Special Adjudicator against the credibility of the appellant's account concerned matters of detail, we considered that at worst the story she had told was exaggerated rather than invented. Key parts of it were supported by unchallenged documentary evidence corroborating that she was a law student, that as part of her training she was employed earning $720 a month to do advice work and that Dr Herrera, a teacher from the same University and faculty as her, had been kidnapped. Whilst therefore we do not necessarily believe her account in its entirety we are satisfied that we can accept its essential elements as credible for the purposes of determining this appeal.
As regards the issues of sufficiency of protection and political opinion, the respective views of the parties were as follows. Mr Southey for the appellant contended that the appellant had shown that she had become the target of threats and serious harassment from a guerrilla organisation which she believed to be FARC. Her personal tutor, Dr Herrera, for whom she and her colleagues had done investigative work on the case of the farmer was the victim of extortion demands from these guerrillas, had been kidnapped. Two of her colleagues had disappeared. She had also been threatened in a motorcycle incident. She had not felt confident enough in the police to afford her protection against these threats and the general country materials bore out that in this regard her feelings were justified. It was plausible that the motives of the guerrillas who threatened her were political. As regards the situation now, it was not likely that FARC would forget; an expert witness, Professor Pearce, had assessed that “once targeted by an armed group, individuals are systematically persecuted through the use of sophisticated intelligence which enables them to be located when they flee to other parts of the country”. If the appellant had suffered past persecution, one had to ask whether there had been any significant change in general country conditions. There had not been. No internal flight would be available for this appellant.
Citing Hernandez, Mr Saunders argued that just because someone was a victim of FARC did not mean that they would have a political opinion attributed to them. Individual cases of persons in danger from non-state agents ran along a continuum. At the one end there would be clear cases of people with no political opinion, e.g. mere victims of muggers. At the other end would be persons with a clear political opinion, e.g. those organising high-profile demonstrations against a guerrilla organisation whose aims include overthrow of the state. The appellant's situation was clearly at the non-political end of the spectrum. Since law and order and justice were central issues in the policy agendas of most governments, being for or against law and order (as in Acero-Garces) was not enough to give rise to a political opinion, imputed or otherwise. There was also the question of causation: the key determining factor to be given most weight was why the persecutors were taking action. Whilst in Colombia there might be an inability to protect, there was not necessarily an unwillingness.
The Tribunal would begin by noting that one obvious and key question in relation to...
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