MI (Pakistan) and MF (Venezuela) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeGross,Gloster LJJ,Sir Stanley Burnton
Judgment Date18 June 2014
Neutral Citation[2014] EWCA Civ 826
CourtCourt of Appeal (Civil Division)
Date18 June 2014

[2014] EWCA Civ 826

COURT OF APPEAL

Gross, Gloster LJJ and Sir Stanley Burnton

MI (Pakistan) and MF (Venezuela)
and
Secretary of State for the Home Department
Representation

Mr Abid Mahmood instructed by Fountain Solicitors, for MI;

Ms Mavelyn Vidal instructed by Duncan Lewis & Co, for MF;

Mr William Hansen instructed by the Treasury Solicitor, for the Secretary of State.

Cases referred to:

AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC)

Amare v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1600; [2006] Imm AR 217

Baballah v AshcroftECAS 376 F.3d 1067 (9th Cir. 2004)

Demirkaya v Secretary of State for the Home Department [1999] EWCA Civ 1654; [1999] Imm AR 498; [1999] INLR 441

Faraj v Secretary of State for the Home Department [1999] INLR 451

HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Secretary of State for the Home Department[2010] UKSC 31; [2010] 3 WLR 386; [2011] 2 All ER 591; [2010] Imm AR 729; [2010] INLR 425

Lucreteanu v Secretary of State for the Home Department 12125, 15 May 2006

MA (Ethiopia) v Secretary of State for the Home DepartmentUNK [2009] EWCA Civ 289; [2010] INLR 1

R (in the matter of B (A Child) (FC)) (Care Proceedings: Appeal) [2013] UKSC 33; [2013] 1 WLR 1911; [2013] 3 All ER 929; [2013] 2 FLR 1075

R (on the application of Bagdanavicius) v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 1605; [2004] 1 WLR 1207; [2004] Imm AR 36; [2004] INLR 163

R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2012] UKSC 12; [2012] 2 AC 135; [2012] 2 WLR 735; [2012] 3 All ER 1037; [2012] Imm AR 734; [2012] INLR 440

R (Iran) and Others v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 982; [2005] Imm AR 535; [2005] INLR 633

RT (Zimbabwe) and Others v Secretary of State for the Home Department; KM (Zimbabwe) v Secretary of State for the Home Department[2012] UKSC 38; [2013] 1 AC 152; [2012] 3 WLR 345; [2012] 4 All ER 843; [2012] Imm AR 1067; [2012] INLR 562

Sepet and Another v Secretary of State for the Home DepartmentUNK [2003] UKHL 15; [2003] 1 WLR 856; [2003] 3 All ER 304; [2003] Imm AR 428; [2003] INLR 322

Shah and Islam v Secretary of State for the Home DepartmentELR [1999] 2 AC 629; [1999] 2 WLR 1015; [1999] 2 All ER 545; [1999] Imm AR 283; [1999] INLR 144

Legislation and international instruments judicially considered:

Children Act 1989, section 31(2)

Civil Procedure Rules, Practice Direction 52C, paragraph 17

Convention Relating to the Status of Refugees 1951, Article 1A(2)

Directive 2004/83/EC (‘the Qualification Directive’), Articles 2(c), 2(e), 4 & 9; Recital 3

European Convention on Human Rights, Articles 2, 3 & 8

Immigration Rules HC 395 (as amended), paragraphs 327, 328, 334, 336, 339C & 339F

Nationality, Immigration and Asylum Act 2002, sections 82 & 84

Refugee or Person in Need of International Protection (Qualification) Regulations 2006, regulations 2, 3 & 5

Asylum — persecution — meaning of persecution — humanitarian protection — genetic albino — discrimination — political activist — whether past treatment amounted to persecution — sufficiently serious treatment

MI, a citizen of Pakistan, was a genetic albino. He entered the United Kingdom in October 2009 on a visitor visa, which he had obtained using false documents. He overstayed and was detained after he was found working illegally. In August 2011, he applied for asylum on the ground that he had a well-founded fear of persecution in Pakistan because of his albinism. He claimed he had suffered physical and verbal abuse in Pakistan and had been beaten up by a gang of youths on one occasion in 2007. The Secretary of State for the Home Department refused his application concluding that MI had not established that substantial grounds had been shown for believing he would face a real risk of suffering serious harm if returned to Pakistan.

The First-tier Tribunal allowed MI's appeal on asylum and human rights grounds. The Secretary of State appealed. The Upper Tribunal concluded that the First-tier Tribunal had not given adequate reasons as to why the conduct complained of amounted to persecution and set aside the decision. It re-made the decision concluding that bullying and taunts, taken together with one act of violence, were insufficient to obtain refugee status or humanitarian protection.

MF, a citizen of Venezuela, arrived in the United Kingdom in September 2011 with his wife and daughter. He claimed asylum on the day of his arrival. MF had been politically active in Venezuela against the ruling party. He claimed that he had suffered constant physical and psychological abuse as a result of his campaigning for the opposition party. He had been verbally abused and spat on by police officers, had received anonymous telephone calls and had been threatened at gun point. As a consequence he fled the country. The Secretary of State refused MF's claim for asylum, concluding that he had not established a well-founded fear of persecution.

The First-tier Tribunal dismissed his appeal on all grounds. He was granted permission to appeal to the Upper Tribunal on the basis that the First-tier Tribunal had failed to give adequate reasons for particular findings and failed to address certain aspects of the evidence. The Upper Tribunal dismissed the appeal holding that the treatment he had suffered, while amounting to harassment and intimidation, was not sufficiently serious to amount to persecution. The issue before the Court of Appeal was whether, on the facts as found in each case by the relevant Tribunal, the Claimants were entitled, as a matter of law, to claim that they had a well-founded fear of persecution such as to entitle them to refugee status.

Held, dismissing the appeals:

(1) The concept of persecution for the purpose of the Geneva Convention required that the past or apprehended harm to the asylum seeker must attain a substantial level of seriousness. Similar considerations applied to the demonstration of serious harm for the purposes of a humanitarian protection claim or a claim under Article 3 of the ECHR. Family or social disapproval in which the state had no part lay outside its protection. Discrimination against members of a particular social group in the country of origin was not enough, even though such discrimination might be contrary to the standards of human rights prevailing in the state in which asylum was sought. The purpose of the Geneva Convention was to provide the protection that was not available in the country of nationality where there was a well-founded fear of persecution, not to guarantee to asylum-seekers when they were returned all the freedoms that were available in the country where they sought refuge: HJ (Iran) v Secretary of State for the Home Department[2010] UKSC 31 applied (para 63).

(2) The Upper Tribunal was entitled to conclude, as a matter of law, as applied to the facts, that the past treatment of which MI complained was not sufficiently severe or persistent to constitute persecution within the meaning of the Geneva Convention or serious harm for the purposes of humanitarian protection. MI had complained of bullying and one act of violence committed by a group of youths, which had not been reported to the police. He did not choose to leave Pakistan until two years after that attack had taken place, during which time there was no evidence he had been subject to any further violence. He had failed to establish any sustained or systematic failure of state protection, or state condonation, in relation to the discrimination against him on the grounds of his albinism. That was particularly so having regard to the fact that he had never sought protection (paras 64 – 70).

(3) With regard to MF, there was no basis for criticising the Upper Tribunal's approach to the law. It had correctly directed itself as to the relevant threshold requirement in order to establish ‘persecution’ for the purposes of the Geneva Convention and Directive 2004/83/EC (‘the Qualification Directive’). The Tribunal's characterisation of the ill treatment MF had received, as not being sufficiently serious or severe to constitute persecution, was a matter of law and could not be challenged. On the basis of the Tribunal's findings of fact, the harassment and intimidation which it found that MF had experienced before his departure from Venezuela was not per se so severe or serious that such treatment necessarily had to be characterised as persecutory within the meaning of the Geneva Convention. The submission that the Upper Tribunal misdirected itself as a matter of law as to the meaning of persecution or construed the term too narrowly was rejected. It could not be said that the Upper Tribunal reached a conclusion that no properly directed tribunal could have reached nor that the Upper Tribunal failed to give due weight to MF's present age, political profile or to the cumulative effect upon MF of the treatment which he received prior to his departure. All those factors were sufficiently addressed in the Tribunal's judgment (paras 71 – 76).

Judgment

Lady Justice Gloster:

Introduction

[1] The substantive issue which arises in these two appeals, which were directed to be heard together, is whether, on the facts as found in each case by the relevant tribunal, the appellant in each case was entitled, as a matter of law, to claim that he had a well-founded fear of persecution such as to entitle him to refugee status.

The relevant facts in MI (Pakistan)

[2] The appellant in the case of MI (Pakistan) (‘MI’) is a national of Pakistan. He is now aged 30 having been born on 1 March 1984 in Gujarat. He is a genetic albino. Albinism is a genetic deficiency of melanin pigment production and is usually an inherited condition. It is an immutable characteristic.

[3] MI entered the United Kingdom in October 2009 on a visitor visa valid until 19 April 2010...

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7 cases
  • Upper Tribunal (Immigration and asylum chamber), 2018-05-05, [2018] UKUT 241 (IAC) (PK (Draft evader; punishment; minimum severity))
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    • Upper Tribunal (Immigration and Asylum Chamber)
    • 5 May 2018
    ...the Convention Lord Bingham described it as a ‘strong word’ in Sepet (see also MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826, and Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, at [27]). Article 9(1) (a) & (b) of the Qualification Direc......
  • Upper Tribunal (Immigration and asylum chamber), 2018-01-22, AA/00283/2016
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 22 January 2018
    ...can provide protection but chooses not to do so”. In MI (Pakistan) and MF (Venezuela) v Secretary of State for the Home Department [2014] EWCA Civ 826 the Court of Appeal held that the concept of persecution for the purposes of the Geneva Convention (and indeed the Directive) requires that ......
  • PK (Anonymity Direction Made) v Secretary of State for the Home Department
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 14 March 2018
    ...the Convention Lord Bingham described it as a ‘strong word’ in Sepet (see also MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826, and Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, at [27]). Article 9(1) (a) & (b) of the Qualification Dir......
  • Upper Tribunal (Immigration and asylum chamber), 2017-08-01, PA/12452/2016
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 1 August 2017
    ...cannot reasonably be expected to tolerate it.” More recently, the Court of Appeal in MI (Pakistan) and MF (Venezuela) v SSHD [2014] EWCA Civ 826, having cited Lord Bingham’s speech in Sepet and Another and Lord Hope’s judgment in HJ (Iran) concluded at [63] that those: “Clearly demonstrate,......
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