Petition Of B For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chamber) To Refuse The Petitioner Permission To Appeal
| Jurisdiction | Scotland |
| Judge | Morag Wise, QC |
| Neutral Citation | [2012] CSOH 34 |
| Year | 2012 |
| Published date | 29 February 2012 |
| Date | 29 February 2012 |
| Court | Court of Session |
| Docket Number | P10/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH | |
| P10/11 | OPINION OF MORAG WISE, Q.C. (Sitting as a Temporary Judge) in the Petition BL (AP) Petitioner; for Judicial Review of decision of the Upper Tribunal (Immigration & Asylum Chamber) to refuse the Petitioner permission to appeal Respondent: ________________ |
Petitioner: Caskie; Drummond Miller
Respondent: Lindsay, Q.C.; Office of the Advocate General
29 February 2012
Introduction
[1] The petitioner is a citizen of Burma, who arrived in the United Kingdom on 9 July 2009. He sought asylum on 17 July 2010, but his application was refused by the Secretary of State. An appeal against that decision was dismissed by an immigration judge of the First Tier Tribunal (Immigration and Asylum Chamber). The petitioner then applied for permission to appeal that decision on the basis that a point of law arose from a decision made by the First Tier Tribunal. The petitioner now seeks reduction of the decision of 6 December 2010 to refuse to grant him permission to appeal.
Submissions for the Petitioner
[2] In opening his argument in support of a motion to sustain the petitioner's plea-in-law, Mr Caskie explained that the parties were now agreed on the application of the test in Eba v Advocate General for Scotland (Public Law Project and others intervening) [2011] 3 WLR 149 to the present case. If the petitioner could establish that there were grounds to reduce the decision in question, then it was agreed that a matter of general importance such as that required by the Eba test existed.
[3] The substance of Mr Caskie's argument was that the senior immigration judge of the Upper Tribunal, who considered the application for permission to appeal, was obliged to consider whether there was "any point of law arising from a decision made by the First Tier Tribunal" (Tribunals and Enforcement Act 2007 s.11 (1)). It was submitted that if such a point of law arose, then the senior immigration judge should have granted permission to appeal. It was accepted that the question of whether a relevant point of law arose centred on the question of whether the case of TL and Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017 was arguably erroneous in law. If it was not, then it was accepted that permission should not have been granted. Two matters of law were raised as preliminary to this central question. First, it was important to understand what a Country Guidance case was. In R (Iran) and Others v Secretary of State for Home Department [2005] EWCA Civ 982 a series of cases were brought together by the Court of Appeal to give guidance to the Asylum and Immigration Tribunal on the application of its limited jurisdiction to consider appeals only on the basis that an error in law had occurred. It was submitted that the guidance provided by the Court of Appeal in that case remained relevant. That guidance included assistance on the nature and import of Country Guidance cases. In essence, while Country Guidance cases are not binding as such, they require to be applied where similar facts exist and a failure to apply a Country Guidance decision without good reason would constitute an error of law (R (Iran) at paragraph 27). Counsel then referred to the practice directions of the Immigration and Asylum Chambers of the Fist Tier Tribunal and the Upper Tribunal. At paragraph 12 of that guidance, it is confirmed that a reported determination of the Tribunal bearing the letters "CG" shall be treated as an authoritative finding on the Country Guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determine the appeal. Accordingly, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a Country Guidance case is authoritative in any subsequent appeal in so far as the appeal relates to the Country Guidance issue in question and depends upon the same or similar evidence. The direction goes on to record that because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable Country Guidance case or to show why it does not apply to the case in question, is likely to be regarded as grounds for appeal on a point of law. Mr Caskie then turned to a list of Country Guidance determinations lodged as No. 6/7 of process. So far as Burma was concerned, there were two Country Guidance determinations listed. These included the case of TL and Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017.
[4] Attention then turned to what was termed "the Danian issue". Mr Danian was a citizen of Nigeria. It was concluded that he had placed himself at risk of persecution if he returned to Nigeria by support for opposition groups in the United Kingdom to which he had no political commitment but that upon return there was a risk that the authorities would not focus on why he had participated in opposition activities but would simply be concerned that he had done so and impute to him a political opinion that he did not have and that he would then face persecution. The Danian case reached the Court of Appeal - [2000] Imm. A.R. 96 where it was held that a refugee with a well founded fear of persecution is entitled to protection where a political opinion would be imputed to him by his persecutors. More recent consideration to the issue was given in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360. That case was decided following the coming into force of the Qualification Directive 2004/83/EC which provided a uniform qualification for refugees. In essence, the Court of Appeal in YB (Eritrea) concluded first, that opportunistic activity sur place is not an automatic bar to asylum and secondly, that where information was not known about the activities of a particular foreign embassy but there was information suggestive of a bleak human rights record in the country concerned, it was a small step to conclude that the authorities in question would monitor the activities of their nationals who demonstrate against the regime and take action against at least some of those who demonstrated (see paragraph 18 of YB). Mr Caskie submitted that for Burma, no assumption required to be made about what in fact the embassy was involved in because a third secretary of the embassy defected and gave evidence to the Tribunal.
[5] Turning to the Country Guidance cases, counsel referred first to the Burmese case of HM (Risk Factors for Burmese Citizens)Burma CG [2006] UKAIT 00012. HM had come to the UK to join her fiancé who was a political exile from Burma. Their relationship had broken down after a month and as a result HM returned to her home country. On arrival at the airport in Burma she was detained and to a degree mistreated as she was thought to be a spy. She then fled and came to the UK illegally where she claimed asylum. HM herself was not at all political although her family had something of a political history. The issue was whether she would face persecution if she returned to Rangoon without papers and if so, whether such mistreatment would be a result of her persecutors imputing political opinion to her. In reaching their determination, the Tribunal considered the evidence of a Mr Martin Morland, who had been the British Ambassador to Burma in the late 1980s. Since his retirement, Mr Morland had maintained an active interest in Burmese affairs. In short, his evidence, that the Burmese authorities were suspicious of associations with the West, that there was an underlying intolerance of any manifestation of political dissent and that the authorities' behaviour was unpredictable was all accepted by the Tribunal. Although it was accepted that the case of HM was relevant more to the difficulties that would be faced by individuals returning to Burma without a passport or relevant documents, it provides helpful generic conclusions (at paragraph 93). Even a Burmese citizen who has left Burma legally and with papers may face a real risk of persecution if the authorities have reason to regard him or her as a political opponent.
[6] The particular issue of political activity was more substantively dealt with in the second of the Burmese Country Guidance cases, TL and Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017. In that case, a woman from a highly political family had entered the UK and claimed asylum. She and her two daughters subsequently attended demonstrations in London and the issue was whether she might be at risk through that if she was identified by the authorities as demonstrating at the Burmese Embassy. Evidence was heard from a freelance photographer with an interest in the Burmese community in the UK. He had taken photographs of all demonstrations outside the Burmese Embassy. At every demonstration he had attended, he had observed persons inside the Embassy taking photographs of the demonstrators. There was some acceptable evidence from a Mr Kyi, a former Burmese diplomat who defected in 1989. Mr Kyi confirmed the practice of photographs and videos being sent to Rangoon after each demonstrator outside at the Embassy had been identified by military attaches. Again there was evidence from Mr Morland but in this case there was a full attack by the Home Office on both the expertise and views of Mr Morland. It was suggested at the Tribunal that he had left out information that did not support what was claimed to be his agenda of criticising the Burmese authorities. However, the Tribunal reached the conclusion that similar evidence from him was accepted by the Tribunal in HM and as the Secretary of State had not commissioned a report from an expert herself, any criticisms did not detract from the value of Mr Morland's evidence as an expert witness. Thus it was concluded, at paragraph 92,that the Country Guidance given by...
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