Upper Tribunal (Immigration and asylum chamber), 2022-11-16, [2022] UKUT 00335 (IAC) (EMAP (Gang violence, Convention Reason) (CG))
| Judge | Upper Tribunal Judge Plimmer, Upper Tribunal Judge Bruce |
| Status | Reported |
| Published date | 15 December 2022 |
| Date | 16 November 2022 |
| Hearing Date | 09 June 2022 |
| Appeal Number | [2022] UKUT 00335 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Gang violence, Convention Reason) (CG |
UT Neutral citation number: [2022] UKUT 00335 (IAC)
EMAP (Gang violence – Convention Reason) El Salvador CG
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Manchester Civil Justice Centre
THE IMMIGRATION ACTS
Heard on 27th April and 9th June 2022
Promulgated on 16 November 2022
Before
UPPER TRIBUNAL JUDGE PLIMMER
UPPER TRIBUNAL JUDGE BRUCE
Between
EMAP
(anonymity direction made)
Appellant
and
Secretary of State for the Home Department
Respondent
For the Appellant: Ms G. Patel and Mr C. Holmes of Counsel instructed by Hallmark Legal Solicitors
For the Respondent: Mr C. Thomann, Counsel instructed by the Government Legal Department
COUNTRY GUIDANCE:
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The major gangs of El Salvador are agents of persecution.
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Individuals who hold an opinion, thought or belief relating to the gangs, their policies or methods hold a political opinion about them.
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Whether such an individual faces persecution for reasons of that political opinion will always be a question of fact. In the context of El Salvador it is an enquiry that should be informed by the following:
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The major gangs of El Salvador must now be regarded as political actors;
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Their criminal and political activities heavily overlap;
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The less immediately financial in nature the action, the more likely it is to be for reasons of the victim’s perceived opposition to the gangs.
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As the law stands at present, so taking the disjunctive approach, those fearing gang violence in El Salvador may be considered to be members of a particular social group where they can demonstrate that they share an innate characteristic, a common background that cannot be changed, or a characteristic so fundamental to their identity or conscience that they should not be forced to renounce it.
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Introduction
1-5
El Salvador: Country Background
The Gangs: History and Context
6-49
The Relationship Between the Gangs and the State
20-29
The Third Generation Gang: Political and Social Demands
30-41
Size and Reach
42
Social Control and Influence
43-46
Infiltration of the State
47-49
The Refugee Convention: General Approach
50-58
Political Opinion
59-89
Membership of a Particular Social Group
90-111
Country Guidance: Discussion and Findings
Political Opinion
112-122
Membership of a Particular Social Group
123-124
The Appellant’s Case
125-141
Anonymity
142
Decisions
143-145
DECISION AND REASONS
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The Appellant is a national of El Salvador born in 1988. The Respondent accepts that he cannot be returned to El Salvador because he faces a real risk of serious harm at the hands of the gangs there, from which the Salvadoran government is unable to protect him. The sole question to be determined in this appeal is whether that harm amounts to persecution for one of the five reasons set out in the Refugee Convention.
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The Refugee Convention is not designed or intended to offer protection from any kind of harm. Its ambit does not extend to the terror caused by natural disaster, or to the inconvenience and discomfort of living in country A when you would rather enjoy the more liberal society offered by country B. It is long established that it is not engaged by the fear of generalised violence, or of criminality. As Baroness Hale puts it:
“Not all persecution gives rise to a valid asylum claim. Very bad things happen to a great many people but the international community has not committed itself to giving them all a safe haven.”
Fornah v Secretary of State for the Home Department [2007] UKHL 46 [at §97]
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The Secretary of State contends before us that this is one such case. The First-tier Tribunal agreed, and dismissed the Appellant’s appeal. The Secretary of State submits that the Appellant fears violence and oppression from criminals who are hostile to him because he has resisted their attempts to exploit him for financial gain. This, she says, places his claim squarely outwith the protection of the Refugee Convention, and in this regard the Secretary of State finds support from domestic and comparative authority. In the Secretary of State’s view, the Appellant can succeed on neither of the grounds advanced on his behalf: he does not fear persecution ‘for reasons of’ his political opinion (imputed or otherwise), nor his membership of any particular social group.
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The Appellant accepts that a fear of crime per se does not engage the Refugee Convention. He contends however that the situation in El Salvador is now such that the gangs must be considered to be actors of persecution, applying the ‘minimum standard’ definition found in the Qualification Directive 2004/83/EC. The harm he fears is “for reasons of” his stance against these actors of persecution, and so properly understood, his is a claim rooted in political opinion. The Appellant asks us to set the First-tier Tribunal’s rejection of this argument aside, and to find that he is a refugee. In the alternative the Appellant asks us to find that the persecution he fears is for reasons of his membership of a particular social group, defined as ‘those opposed to the gangs in El Salvador’ or ‘actual or perceived informants’.
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We are grateful to the parties for their preparation and presentation of these competing arguments. This is a judgment to which we have both contributed. We begin by summarising the present situation in El Salvador, as it emerged in the detailed evidence before us.
El Salvador: Country Background
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We have considered all of the country background evidence before us but have drawn on the following evidence in particular:
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Country Policy and Information Note El Salvador: Actors of protection [Version 1.0 February 2021] (‘Protection CPIN’)
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Country Policy and Information Note El Salvador: Fear of gangs [Version 3.0 January 2021] (‘Gangs CPIN’)
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Response to Information Request Country: El Salvador [19th April 2022] (‘CPIN Response’)
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The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador [15th March 2016] (‘UNHCR Guidelines’)
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The written and oral evidence of Dr Andrew Redden, Senior Lecturer in Latin American History at the University of Liverpool
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Recent reports on the current state of emergency, from Al-Jazeera El Salvador extends state of emergency amid gang crackdown [26th May 2022] and the Guardian El Salvador accused of massive human rights violations with 2% of the adult population in prison [2nd June 2022]
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Political Refugees from El Salvador: Gang Politics, the State and Asylum Claims by Professor Patrick J. McNamara, Department of History, University of Minnesota, published in the Refugee Survey Quarterly 2017, 36, 1-24.
Resisting Criminal Organisations; Reconceptualising the ‘Political’ in International Refugee Law by Professor Amar Khoday, Department...
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