TS (Political opponents –risk)
| Jurisdiction | UK Non-devolved |
| Judge | Rintoul,O'Connor,Dawson |
| Judgment Date | 13 March 2013 |
| Neutral Citation | [2013] UKUT 281 (IAC) |
| Date | 13 March 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 281 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Dawson
UPPER TRIBUNAL JUDGE O'Connor
UPPER TRIBUNAL JUDGE Rintoul
For the Appellant: Mr M Mullins, instructed by Gillman-Smith Lee solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer
TS (Political opponents —risk) Burma CG
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1. In order to decide whether a person would be at risk of persecution in Burma because of opposition to the current government, it is necessary to assess whether such activity is reasonably likely to lead to a risk of detention. Detention in Burma, even for a short period, carries with it a real risk of serious ill-treatment, contrary to Article 3 of the ECHR and amounting to persecution/serious harm within the meaning of the Qualification Directive.
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2. A person is at real risk of being detained in Burma where the authorities regard him or her to be a threat to the stability of the regime or of the Burmese Union.
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3. The spectrum of those potentially at risk ranges from those who are (or are perceived to be) actively seeking to overthrow the government to those who are in outspoken and vexing opposition to it. Whether a person is in need of protection will depend upon past and future political behaviour. This assessment has to be made against the background of a recently reforming government that carries a legacy of repression and continues to closely monitor those in opposition. The evidence points to a continuing anxiety over the break up of the state and the loss of its power.
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4. The question of risk of ill-treatment will in general turn upon whether a returnee is detained by the authorities at any stage after return.
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5. A person who has a profile of voicing opposition to the government in the United Kingdom through participation in demonstrations or attendance at political meetings will not for this reason alone be of sufficient concern to the Burmese authorities to result in detention immediately upon arrival. This is irrespective of whether the UK activity has been driven by opportunistic or genuinely held views and is regardless of the prominence of the profile in this country.
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6. A person who has a profile of voicing opposition to the Burmese government in the United Kingdom can expect to be monitored upon return by the Burmese authorities. The intensity of that monitoring will in general depend upon the extent of opposition activity abroad.
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7. Whether there is a real risk that monitoring will lead to detention following return will in each case depend on the Burmese authorities' view of the information it already possesses coupled with what it receives as the result of any post-arrival monitoring. Their view will be shaped by (i) how active the person had been in the United Kingdom, for example by leading demonstrations or becoming a prominent voice in political meetings, (ii) what he/she did before leaving Burma, (iii) what that person does on return, (iv)the profile of the people he or she mixes with and (v) whether a person is of an ethnicity that is seen by the government to be de-stabilising the union, or if the person's activity is of a kind that has an ethnic, geo-political or economic regional component, which is regarded by the Burmese government as a sensitive issue.
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8. It is someone's profile in the eyes of the state that is the key to determining risk. The more the person concerned maintains an active political profile in Burma, post-return, the greater the risk of significant monitoring, carrying with it a real risk of detention.
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9. In general, none of the risks identified above is reasonably likely to arise if an individual's international prominence is very high. The evidence shows that the government is keen to avoid adverse publicity resulting from the detention of internationally well-known activists.
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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 Citizens) Burma CG [2006] UKAIT 00012 were not addressed by the parties and the guidance in that decision remains in force for the time being.
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11. There is evidence of positive changes in Burma which as they become embedded may result in the need for the present country guidance to be revisited by the Upper Tribunal in the short to medium term.
| TABLE OF CONTENTS | Paragraphs |
| Preliminary matters | 1-7 |
| Ambit of the appeal | 8 |
| Agreed Facts in TS's case | 9-11 |
| Existing Burma Country Guidance cases | 12-14 |
| Summary of the evidence | |
| Evidence of Mr Maung, TN and HHS | 15-20 |
| Evidence of Dr Zarni | 21-22 |
| Evidence of Marcia Robiou | 23-26 |
| The Report of the Special Rapporteur | 27-35 |
| Other country information | 36 |
| Submissions | 37-46 |
| Legal background | 53-57 |
| Discussion and country guidance | 58-83 |
| Determination of the appeal | 84-85 |
| Schedule One | |
| Evidence of Ms Marcia Robiou | 1-36 |
| Evidence of Dr Zarni | 37-60 |
| Report of Special Rapporteur | 88-89 |
| Schedule Two | |
| Summary of skeleton argument –Mr Mullins | 1-8 |
| Mr Mullins supplementary skeleton argument | 9-16 |
| Summary of Mr Avery's initial skeleton argument | 17-23 |
| Mr Avery's supplementary submissions | 24-27 |
| Schedule Three- Documents considered |
1. This appeal concerns a national of Burma who was born on 9 May 1958. On 18 March 2008 he unsuccessfully applied to the Secretary of State to be recognised as a refugee. As a result was faced with a removal decision dated 24 March 2009, which he then unsuccessfully appealed to a judge of the Asylum and Immigration Tribunal (Immigration Judge Neyman). On 9 December 2009 Senior Immigration Judge Moulden made an order for reconsideration. By virtue of the transitional provisions contained in the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 and by application of the Tribunals, Courts and Enforcement Act 2007, the appeal came before Upper Tribunal Judge Freeman on 15 March 2010. He dismissed the appeal. Thereafter, permission to appeal to the Court of Appeal was granted by Longmore LJ at an oral hearing on 26 January 2011. On 23 May 2011 Sullivan LJ, by consent, ordered that the determination of Judge Freeman be set aside and that the appeal be remitted to the Upper Tribunal for appeal against the decision of the Secretary of State to be reconsidered. The Statement of Reasons records that at [4]:
“The Respondent accepts that the findings of fact, concerning the finding that the Burmese authorities (as distinct from the British authorities) would know that the appellant is a hanger on with no real commitment to the opportunist (sic) cause, is an error of law”
2. By this route, the appeal has come before us to re-make the decision.
3. The reference to “hanger-on” in the Court of Appeal's Statement of Reasons comes from a decision of the Upper Tribunal giving country guidance on Burma: TL and Others (sur place activities – risk) Burma CG [2009] UKAIT 00017. This decision was recently the subject of similar criticism by the Court of Appeal in KS (Burma) [2013] EWCA Civ 67; although by then the Upper Tribunal had already decided, having regard to the recent and well-publicised events of change in Burma, to list this appeal for country guidance.
4. It is unsatisfactory that the journey of this appeal through the Upper Tribunal has been a slow one. There are a number of appeals in the system that has been held up as a result and the need for a prompt disposal became all the more important after KS (Burma). No procedural issues were left unresolved by the date of hearing and we are grateful to Mr Mullins (and his instructing solicitors) and Mr Avery for their prompt attention to the directions issues and their helpful and constructive approach to ensure the earliest possible hearing of this appeal once the decision had been made to list it for hearing.
5. Facts have been agreed between the parties and there was, therefore, no need for TS to give evidence. We heard evidence however from two expert witnesses, Marcia Robiou and Dr Maung Zarni, by video link from Bangkok and Kuala Lumpur respectively, on 11 and 12 March. We also heard evidence from three witnesses of fact relating to the experiences of Mr Maung, a British Citizen of Burmese origin. He recently applied to the Burmese consulate for a visa to visit his wife and child who currently reside in Burma having left the UK on Boxing Day 2012.
6. Shortly before the hearing it became apparent that Dr Maung Zarni, under pressure of time due to a change in his circumstances, was unable to prepare a supplementary report and so it was decided that he would participate in a telephone interview (by Skype) with Mr Avery and Mr Mullins in order to respond to questions posed in advance by the parties. A record was taken and this is summarised in the relevant section below. Mr Avery had no objection to the additional reports from the experts being served at the last minute and he was content with the time made available for him to consider what was being added to what had already been said. Similarly he had no objection to Mr Maung and the additional witnesses giving evidence. As it turned out, the SSHD accepted their evidence.
7. The format of this determination is as follows. We set out below the agreed facts relating to the appellant and thereafter the ambit of the issues for us to determine. Details of the expert and other evidence are set out in Schedule One. Our conclusions on that evidence are in the body of this determination, as well as a summary of the submissions for which more detail is provided in Schedule Two. The...
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