KS (Burma) & and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Moore-Bick,Lord Justice Rimer |
| Judgment Date | 13 February 2013 |
| Neutral Citation | [2013] EWCA Civ 67 |
| Docket Number | Case No: C5/2011/3130 + C5/2011/3209 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 2013 |
[2013] EWCA Civ 67
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
REF: AA02413/2011 + AA15716/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Moore-Bick
and
Lord Justice Rimer
Case No: C5/2011/3130 + C5/2011/3209
Mr Mikhil Karnik ( instructed by Messrs Scudamores) for the Appellant (1)
Mr Philip Nathan and Mr Richard Moules (instructed by Messrs Scudamores) for the Appellant (2)
Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Respondent
Hearing date: 17 January 2013
These two appellants are not connected with each other. However, their cases have common features. They each came to this country from Burma on student visas which have now expired. KS remained here as an overstayer. Eventually, when he was detained, he claimed asylum. He had not been or been seen as politically active before leaving Burma but, during his time in this country, he became a member of the Burma Liberation Front (BLF), a little known and relatively insignificant group. He attended some thirteen demonstrations. He kept a record of the dates and was able to produce some photographs of groups of demonstrators outside the Burmese Embassy, some of which depicted him among a group which had a BLF sign. There is an unassailable finding of fact by the First-tier Tribunal (FTT) that "those anti-regime activities … [were] undertaken in 'bad faith', that is undertaken with the motive not of expressing dissent but of creating or aggravating any risk on return [to Burma] — to strengthen his case for remaining in the United Kingdom". His asylum and human rights appeals against refusal by the Secretary of State were dismissed by the FTT and the Upper Tribunal (UT).
NL claimed asylum just before her student visa was about to expire. She claimed to have been active as a political dissident in Burma and to have been arrested and detained twice but these aspects of her evidence were disbelieved. However, she too had involved herself in demonstrations against the Burmese government whilst in this country but, again, there is an unassailable finding of fact by the FTT that she is "not … genuinely interested in or committed to opposition to the current regime in Burma … her attendance at the demonstrations and meetings is caused by desire to enhance her asylum claim". Her application was refused by the Secretary of State and her appeals to the FTT and the UT were rejected.
Thus, the cases of both appellants are unattractive because they are now based on sur place activities which were not genuine manifestations of political protest but were cynical and opportunistic attempts to fabricate asylum claims. Nevertheless, it is common ground that there may be cases in which such circumstances give rise to a well-founded fear of persecution on the ground of imputed political opinion. In relation to Burma, there is an acknowledgement of this in the country guidance case of TL (Sur Place activities-risk) Burma [2009] UKAIT 00017, where persons such as the present appellants are characterised as "hangers-on", a term which was also used by Sedley LJ in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360.
The present appeals raise issues arising out of the country guidance in TL. The grounds of appeal seek to attack the lawfulness of the country guidance in relation to hangers-on and/or, alternatively, its application. In the event, we are told that the UT is about to revisit the guidance given in TL. We have asked counsel instructed on behalf of the Secretary of State whether, if these appeals are dismissed, she would remove the appellants prior to the promulgation of new country guidance. This produced an assurance that she would not. This raises the question of whether the appeals are of more than academic interest. However, we have considered it appropriate to determine them. For one thing, the UT may be assisted in promulgating future country guidance in relation to Burma and, indeed, other countries, by what we say. Also, we are being invited, particularly in relation to NL, to allow her appeal outright on the basis of TL, without the remittal to the UT for redetermination. The UT has been informed that we are proceeding to determine these appeals.
The country guidance
TL provides general country guidance in relation to Burma, with particular reference to sur place activities. The principal expert witness was Mr Morland, a former British ambassador to Burma. He had also given the evidence which had underlain the earlier country guidance case of HM (Risk factors for Burmese citizens) Burma CG [2006] UKAIT 0012. In general the AIT in TL considered that the guidance given in HM remained valid. To that extent, it relied on Mr Morland's latest evidence. However, on the issue with which we are concerned in the present appeals, it did not accept Mr Morland's evidence. The relevant guidance is set out in the following passages:
"92 …We take the view that participation in demonstrations outside the Burmese Embassy by Burmese nationals is likely to be recorded by the Burmese authorities in London and made known to the Burmese authorities in Burma; we express the view that those Burmese nationals participating on a regular basis are likely to have been photographed by the Burmese authorities and identified. We are satisfied that if such a person is returned to Burma and there is an additional factor which would trigger the attention of the Burmese authorities such as the lack of a valid Burmese passport or the absence of permission to exit Burma or previously having come to the adverse attention of the authorities as an opponent of the authorities or having a connection with known political opponents there is a real risk of persecution and Article 3 ill-treatment on return to Burma. It may well be that a pro-democracy demonstrator outside the Burmese Embassy known to the authorities to have a real commitment to the cause without an additional risk factor would equally be at risk but each case must be determined on its own facts.
93. Nevertheless despite Mr Morland's view that the Burmese authorities were unpredictable in their treatment of individuals and would regard demonstrations outside the Embassy in London as an affront to the regime, we find it difficult to accept that the Burmese government would persecute someone whom they know to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum. As the Tribunal in HM found, if the Burmese authorities had reason to believe that a returnee had made a claim for asylum in the United Kingdom which had failed, that in itself was unlikely to attract the adverse interest of the Burmese authorities. That suggests that the Burmese authorities would be aware that the returnee had advanced some criticism of the regime in order to mount a claim for asylum yet even then would not be inclined to persecute him unless there were some other evidence of opposition. We think it reasonable to draw a distinction between demonstrations in Burma, where it is inconceivable that a person would demonstrate unless he opposed the regime and demonstrations in the United Kingdom, in which a hanger on with no real commitment to the oppositionist cause might participate in the hope of creating a false entitlement to refugee status. We are not prepared to accept that the Burmese government with their spies in the Burmese community would not appreciate the difference between a genuine opponent and a hanger on. We therefore take the view that it is unlikely that a hanger on would be at a real risk of persecution on return to Burma on account of merely having participated in demonstrations but each case must be decided on its own facts."
A careful analysis of paragraphs 92 and 93 discloses four categories: (1) sur place demonstrations with an additional factor; (2) genuine sur place demonstrations without an additional factor; (3) hangers-on; and (4) hangers-on in respect of whom the facts of their individual cases may enable them to succeed. We are concerned with category (3) and with the distinction between categories (3) and (4). Before I consider them, it is appropriate to set out two further legal considerations.
The Qualification Directive
Council Directive 2004/83/EC of 29 April 2004 is concerned with "minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted". I shall refer to it as the Qualification Directive. It is a step in the direction of a Common European Asylum System. Recital (18) states that:
"It is necessary to introduce common concepts of protection needs arising sur place."
There are two substantive provisions of particular relevance. Article 4.3(D) provides:
"The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
…
whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country … "
Thus, motive is a...
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