TL and Others (sur place activities - risk)
| Jurisdiction | England & Wales |
| Judge | Spencer,Keki,Miss R I Emblin JP |
| Judgment Date | 30 October 2008 |
| Neutral Citation | [2009] UKAIT 17 |
| Court | Asylum and Immigration Tribunal |
| Date | 30 October 2008 |
[2009] UKAIT 17
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Spencer
Senior Immigration Judge Keki
Miss R I Emblin JP
For the appellant: Mr S Cox and Mr P Nathan, counsel, instructed by Scudamores Solicitors
For the respondent: Mr M Blundell, Home Office presenting officer
TL and Others (sur place activities — risk) Burma CG
-
(1) The country guidance given by the Tribunal in HM (Risk factors for Burmese citizens) Burma CG [2006] UKAIT 00012 remains valid. Despite the release of some long term detainees no significant or reliable change has occurred in the approach of the authorities in Burma to be able to say that the human rights situation there is any better than it was at the time the Tribunal in HM promulgated its determination.
-
(2) The identities and roles of genuine activists in Burmese pro-democracy organisations based in London are likely to be known to the Burmese authorities.
-
(3) Participation in demonstrations outside the Burmese embassy in London by Burmese nationals is likely to be recorded by the Burmese authorities in London and made known to the Burmese authorities in Burma. Those Burmese nationals participating on a regular basis are likely to have been photographed by the Burmese authorities and identified.
-
(4) If such a person were returned to Burma and there is an additional factor which would trigger the attention of the Burmese authorities (e.g. lack of a valid Burmese passport; absence of permission to exit Burma; previously having come to the adverse attention of the authorities as an opponent of the regime; or having a connection with known political opponents) there is a real risk of persecution and article 3 ill-treatment on return.
-
(5) It may 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.
-
(6) It is unlikely that the Burmese authorities would persecute someone whom they knew 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 but each case must be decided on its own facts.
-
(7) In granting permission to leave Burma the authorities are not concerned with the places which the passport holder may visit nor the length of time during which they may be absent from Burma. The Burmese authorities are not interested per se in the places visited by a returning Burmese national who had had permission to leave Burma nor how long they stayed away.
This is the reconsideration of the appeals of the appellants who are citizens of Burma. We use this term rather than the more technically correct Myanmar because it is more widely known. The first named appellant was born on 28 December 1965. She is a Muslim from Yangon. She is the mother of the second and third named appellants, born on 16 September 1992 and 28 April 1995 respectively. Although they have separate appeals, it was agreed by the representatives of the parties that for the purposes of these proceedings, they could be treated as dependants of their mother, whom we shall refer to merely as “the appellant”.
The appellant left Burma and travelled to Thailand with her husband and two daughters on 30 March 2007. They crossed the border legally using valid passports and having obtained permission to leave Burma. The appellant's husband returned to Burma but she and her children flew to the United Kingdom on 29 April 2007 via Dubai, arriving here the following day. They all had entry clearance as visitors and were admitted on that basis until 23 May 2007. The purpose of the visit was to see family members. The appellant claimed that at the time of her arrival she intended to return to Burma with her children at the end of the visit.
On 21 May 2007 the appellant claimed asylum alleging that she would face ill treatment in Burma because of her political opinion. She maintained that she and two colleagues had formed an organisation to further the cause of democracy and that they were aligned to the All Burma Muslim Association (BMA) which operated overseas. She claimed that she had purchased a satellite phone in Thailand for the use of this organisation, that she had travelled illegally into Burma so as not to be detected with a banned item and had handed it over to her colleague before rejoining her family in Thailand for a holiday. Unfortunately the phone developed a fault and her colleague tried to travel to Thailand to have it repaired but he was intercepted at the border and the phone was found in his luggage. He was arrested. As he had the warranty with him which bore the appellant's details and a copy of her passport, the authorities raided her house and her husband fled to Thailand where he still remained.
The Secretary of State refused the application on 13 June 2007 by way of a notice refusing to vary her leave and a letter giving her reasons for the refusal. Similar notices were issued to the appellant's daughters. They were all warned that removal directions would be issued if they did not appeal or leave voluntarily.
The appellant appealed under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on asylum and human rights grounds against the respondent's decision and her appeal was heard by Immigration Judge Glossop on 31 July 2007. It was dismissed in a determination promulgated on 5 September 2007. The immigration judge heard oral evidence from the appellant and her brother. Although noting the concession made by the respondent that the appellant's father had been granted asylum in the UK for his anti-government activities, he rejected her account concerning her activities with the BMA and her claim that the authorities had discovered that she had purchased an illegal satellite phone. The immigration judge also found that there was “no evidence that she would be identified as demonstrating at the Burmese Embassy”. In her statement of 24 July 2007 the appellant maintained that she had participated in four pro-democracy demonstrations outside the Burmese embassy after her arrival in London. She attached photographs confirming her involvement. She stated that her brother was the Chairman of the BMA. She maintained that these activities in the UK would place her at risk on return to Burma.
The appellant sought reconsideration of the decision. She argued in essence that the immigration judge had erred materially in overlooking the evidence that had been adduced to establish the appellant's involvement at demonstrations in the UK and that officials at the embassy photographed demonstrators, identified them and sent their details to Rangoon Special Branch. It was further argued that the appellant would be at risk on return because she had overstayed her visa and this would alert the authorities on return. Any ensuing investigation would reveal that she had sought asylum in the UK and that she had several relations who had been granted asylum. The grounds made it clear that “no challenge is made to the IJ's findings on credibility”.
The application was considered by Senior Immigration Judge McKee on 26 September 2007 and reconsideration was ordered.
The matter then came before Senior Immigration Judge Southern 27 February 2008. He found that the immigration judge had made a material error of law for the following reasons:
- Reconsideration has been ordered of the determination of Immigration Judge Glossop who, by a determination dated 31st July 2007, dismissed the appellant's appeal against a decision of the respondent to refuse to vary the appellant's leave after her asylum and human rights claims had been rejected. 2. The appellant, who is a citizen of Burma, claimed asylum about three weeks after arriving in the United Kingdom with entry clearance as a visitor. 3. She claimed to be at risk on return because someone with whom she was associated had been detained in possession of a satellite telephone she had imported unlawfully. That person was in possession of documents linking the appellant to the equipment and that had led to a raid on her home. The immigration judge found the whole of that account to be untrue and there is no challenge to those findings. 4. The appellant now pursues her claim on the basis that she will be at risk on return on account of being identified as a dissident from the photographs taken of her when she attended demonstrations outside the Burmese Embassy in London. 5. It is agreed between the parties (and the Tribunal so finds) that the immigration judge made a material error of law and the determination must be set aside to the extent described below. That being the case it is necessary only briefly to identify the nature of that material error and to make clear the scope of the reconsideration hearing that is to follow. 6. The immigration judge was wrong to say that there was “no evidence” that the appellant would be identified as a person demonstrating outside the Burmese Embassy in London. The appellant relied upon the evidence of a former diplomat who had experience of serving at the London Embassy some years ago and who had made a written statement in which he asserted that such demonstrators would be identified and that, in his view, the Embassy staff had the means to achieve this. The immigration judge was not bound to accept that evidence but if he did not he was required to explain why he rejected it. 7. The immigration judge erred also in his assessment of the risks faced by the appellant upon return. This is because, although he was entitled to find that the appellant made a lawful and officially sanctioned...
To continue reading
Request your trial
-
KS (Burma) & and Another v Secretary of State for the Home Department
...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)......
-
TS (Political opponents –risk)
...resulting from the detention of internationally well-known activists. 10. In the light of these conclusions, TL and Others (Burma CG) [2009] UKAIT 00017 can no longer be relied on for Country Guidance. The issue of illegal exit and its consequences considered in HM (risk factors for Burmese......
-
Upper Tribunal (Immigration and asylum chamber), 2013-06-21, [2013] UKUT 281 (IAC) (TS (Political opponents –risk))
...resulting from the detention of internationally well-known activists. In the light of these conclusions, TL and Others (Burma CG) [2009] UKAIT 00017 can no longer be relied on for Country Guidance. The issue of illegal exit and its consequences considered in HM (risk factors for Burmese Cit......
-
Petition Of B For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chamber) To Refuse The Petitioner Permission To Appeal
...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 raise......