Archives For Country Guidance

Gaddafi mural with bullet holes by mojomogwai, on Flickr

Nearly 3 years after the end of the civil war in Libya that swept away the Qadhafi regime and its associated country guidance, and after nearly 8 months of deliberation, the Upper Tribunal has decided that Libya isn’t so bad after all, at least for men. The determination of AT and Others (Article 15c; risk categories) (CG) [2014] UKUT 318 (IAC) runs to 261 paragraphs plus 8 appendices, and the tribunal is to be commended for its lucid treatment of a huge amount of evidence, delay (and some conclusions) notwithstanding. The hearing itself was notable for taking live videolink evidence from a country expert in New York City. Continue Reading…

No risk of persecution for gay men in India despite criminalisation

So says the tribunal in MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC), anyway. And even if there was risk in the home area, the tribunal considers that relocation within India is generally reasonable and “LGBT support organisations” can provide help going underground if need be (para 170). Some might think having to go underground and seeking protection from non state actors was a sign of being persecuted, but apparently not.

Pending Country Guidance case list

For we tribunal watchers the list is notably short. Judicial ambitions to categorise, measure and risk assess the entire world have been scaled back, perhaps because of the impossibility of the task but more likely because resources are being absorbed by the transfer of judicial review into the Upper Tribunal. There’s still an odd one on the list though. Risks to Angolan citizens returning to Cabinda? How many UK asylum claims raise that particular issue?

SD (military service – sexual identity) Turkey CG [2013] UKUT 612 (IAC)

Official headnote:

(1) All Turkish males are required to undergo military service but exemption can be granted on the grounds of physical or mental disability which includes “sexual identity disorder”.

(2) Homosexuality is regarded by the Turkish army as a sexual identity disorder but the perception of homosexuality in Turkey is not reduced to a person’s sexual preference but is informed by an assessment of his whole personality including his outward appearance and behaviour. It is associated with the passive role which is seen as unmanly whereas taking the active role does not attract the same disapproval and is not considered to undermine the essence of manliness.

(3) The exemption process for determining whether a recruit is entitled to exemption generally includes intrusive requirements which do not properly respect the human dignity of someone whose sexual identity would qualify him for exemption such that it can properly be categorised as degrading and involving a real risk of a breach of article 3.

(4) If during his military service a recruit (whether he has not sought exemption or has been refused) is discovered or is perceived to be homosexual as understood in Turkey, there is a reasonable degree of likelihood of ill-treatment of sufficient severity to amount to persecution on the basis of his sexual identity and there is no sufficiency of protection. The risk of such discovery or perception arising during his service will require a fact sensitive analysis of an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.

(5) Any such risk likely to arise during service is not negated by the fact that there is an exemption process as that process itself carries a real risk of a breach of article 3.

(6) MS (Risk- Homosexual) Turkey CG [2002] UKIAT is no longer to be regarded as providing country guidance.

Interesting example of the tribunal getting stuck into anthropological issues in order to determine risk. However, I doubt I’m alone in feeling rather unhappy about the requirement the Upper Tribunal here imposes for asylum judges to assess “an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.” It sounds pretty intrusive and demeaning and there is considerable potential for lawyers and judges to humiliate the individuals concerned, whether by accident or otherwise. It is also almost an invitation to dismiss cases because the individual concerned is the wrong sort of gay.


Somalia: safe for returns?

Taimour Lay — 

somalia_-_Google_MapsThe Upper Tribunal has listed an appeal to be heard in December in which it intends to give further country guidance about returns to Mogadishu.  No doubt the case will address the contention long advanced by the Secretary of State that the situation has so improved that the current guidance – which finds there is in general a real risk of serious harm to those in Mogadishu – can be disregarded.

The audacious attack on a Nairobi shopping mall last month provided a stark reminder that al Shabaab remain a potent force. That shouldn’t come as news to those representing Somalis in the tribunal. The Islamist militants in fact remain in control of the majority of south and central Somalia (see BBC map here) and are carrying out their threats to cause mayhem in Kenya too.

It hasn’t stopped the Home Office from seeking to declare the war between al Shabaab and the fledgling Somali government at an end. Presenting Officers in asylum appeals have spent the last year or more arguing that Mogadishu is safe, contrary to AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC). Continue Reading…

Sri Lanka map

Sri Lanka mapLast Friday evening Renaissance Chambers’ immigration group hosted a seminar about the new Sri Lanka Country Guidance: GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

I had the pleasure of speaking together with Shivani Jegarajah, Nishan Paramjorthy, Jan Janayagam from Tamils Against Genocide and Dr Chris Smith to a packed Bingham Room at Gray’s Inn on how the new CG can best be applied despite it having been the subject of some controversy and alarm amongst those representing Sri Lankan national asylum seekers when it was promulgated a week ago. The notes I prepared for the seminar (slightly updated in light of some of the issues discussed and the speakers who were able to attend) are attached here.

Whilst on first or even second reading of the determination you would be forgiven for thinking the guidance given is too restrictive and fails to fairly represent the overwhelming majority of the authoritative background reports on the human rights situation in Sri Lanka, on closer inspection it can be seen as very positive for a very wide group of claimants.

We did our best to give our ideas and I think I am justified in saying that the mood of the room lifted the longer we spoke.

As Colin Yeo indicated in the previous post on the CG, whilst there are some very obvious faults with the determination there are many positives too. For the moment, what else can we do apart from use the determination positively and creatively? If we do so (let’s remind ourselves that it’s a lawyer’s job anyway) then there is much that can be taken from this case.

Sri Lanka map

Sri Lanka mapA long awaited and much needed new Country Guidance cases has finally been issued by the Upper Tribunal: GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). One of the three appellants succeeded on refugee grounds – congratulations to the legal team behind that result, my colleagues at Renaissance Chambers Shivani Jegarajah and Iain Palmer and to Patricks Solicitors.

Renaissance Chambers are hosting a seminar about the case this coming Friday 12 July 2013 at 5.45pm for a 6pm start at the Bingham Room at Gray’s Inn. Speakers are Shivani Jegarajah, Iain Palmer, Dr Chris Smith and Jan Jananayagam. There will be a drinks reception afterwards. All comers very welcome.

The determination is certainly long. The hearing took nine days and the tribunal heard oral evidence from 12 expert witnesses as well as receiving reports from several others. 5,000 pages of relevant country information was also considered. Reading and assimilating that quantity of evidence was a huge and difficult undertaking. How did the tribunal do?

Findings on risk

The new case replaces all previous Country Guidance on Sri Lanka.

For human rights campaigners interested in Sri Lanka, the case is a huge step forward. The tribunal concludes that the Sri Lankan government is intent on ‘intensive militarisation and Sinhalisation of former Tamil areas’, that anyone perceived to be a threat to the unitary state of Sri Lanka is at risk, as are human rights activists or journalists perceived to be critical of the Government of Sri Lanka and witnesses to potential war crimes at the bloodbath at the close of the conflict in 2009.

The tribunal finds that the LTTE has entirely ceased to exist and the main threat to the Government of Sri Lanka and the unitary Sri Lankan state is from the diaspora outside Sri Lanka. The Sri Lankan government is found to use sophisticated monitoring and intelligence gathering both inside and outside Sri Lanka to identify threats and is considered to be particularly interested in monitoring activity in the Tamil diaspora using informers, filming and face recognition software.

Detention in Sri Lanka is found by the tribunal always to give rise to a reasonable degree of likelihood of torture. Prolonged detention under the controversial ‘rehabilitation’ process was accepted of itself to be persecutory in nature even without any evidence of physical or sexual abuse. Internal relocation is not possible for government targets now that the government controls the whole territory of Sri Lanka.

Old myths

The determination also very usefully lays to rest some old myths.

There are in fact no detention facilities at the airport, which combined with the presence of international officials and many members of the public, means there is very little risk of a target being picked up by the authorities at the airport. Instead, where there is an interest in an individual he or she will be picked up in their home area, having been identified during the return process and having to have provided a return address as well.

Importantly, the tribunal accepts (this was in fact conceded by the Home Office) that corruption is so endemic that being able to pass through the airport on the way out of Sri Lanka cannot be taken as a sign of lack of interest in that individual by the authorities.

Expert evidence

Despite the positive outcome, criticism can be made of the approach adopted by the tribunal to some of the expert evidence and the individual experts.

The tribunal effectively closed its eyes to anonymous evidence of human rights abuses. This cannot be right. Almost all human rights reports are anonymous where they do not rely on public media reports, which tend to be most thin on the ground in the most repressive countries. One can see why the Home Office might ask for individual details in order to ‘verify’ examples given, but unfortunately so likewise do the governments of Iran, Burma and indeed Sri Lanka. Further, in these specific proceedings the Home Office implicitly threatened to re-open cases used as examples by suggesting that the individual immigration judges might have been unaware of all the relevant evidence. Human rights reporting organisations simply cannot hand over such information as a matter of principle. The tribunal risks ignoring the best quality of evidence available to it, which is unnecessary in a flexible jurisdiction like that of the immigration tribunal.

The treatment of some of the individual experts is also open to criticism. Omitting to produce a minute of Skype calls hardly seems reason to attach less weight to the evidence of a reputable academic whose other evidence is accepted. The tribunal refuses to engage with detailed and laborious quantitive analysis but without really explaining why.

The most troubling part of the determination accuses an extremely well known international NGO and others of manipulation and bad faith in the timing of human rights reports. Given that the very task of a human rights monitoring and campaigning body is to respond to human rights abuses (which is what Sri Lankan charter flights were feared to be – abuses carried out by the UK government), this criticism seems rather odd and, frankly, rather threatening in tone. Should Amnesty International (not the NGO concerned) stop issuing Urgent Actions and instead issue Awfully Well Balanced Advance Warnings Of Possible Problems Ahead? It wouldn’t be a terribly good way of campaigning on or highlighting human rights abuses.

The same NGO is essentially accused by the tribunal of lying to it, a highly regrettable comment which is procedurally problematic and simply unnecessary. The NGO was not a party, was nobody’s witness and had no representation in the case, deceit was not suggested by any party, was never put to the NGO and was irrelevant to the contents of the evidence in any event. Such process and comments could do regrettable damage to reputation.

Where does this leave us?

Does the shoe fit?

Does the shoe fit?

The determination marks the death of the ‘risk factors’ approach adopted in the old LP case. In theory the risk factors were helpful and if properly applied they would be a very useful guide to any decision maker or judge. They were explicitly said in LP not to be a ‘checklist’, but that is unfortunately how they were treated in practise. Intelligent and careful analysis of each case on its own facts gave way to an attempt to shoehorn a claimant into a slipper that did not fit. Solicitors and counsel could be just as guilty as the Home Office and tribunal. This simplistic Cinderella-style approach to fact finding makes for a good fairytale but it is not a good way to identify risk in a complex real world environment. More nuanced fact gathering and presentation will be necessary in future.

The approach adopted in this case to human rights reporting is genuinely damaging to international human rights monitoring. Repressive and unpleasant regimes might be expected to reject human rights reports on the basis that personal details of complainants were not revealed for ‘verification’, but it is surely not the right approach for a specialist immigration and asylum tribunal.

Ultimately, though, this should not be allowed to detract from what amounts to a well informed and devastating record of post-conflict Government of Sri Lanka treatment of Tamils in the north and east of that country and an exposé of that Government’s obsession with the international Tamil diaspora.