Archives For Country Guidance

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.

Spot the 'hanger on'?

Can you spot the 'hanger on'?

The Court of Appeal has in the case of KS (Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67 found that the 2009 Country Guidance case of TL (Sur Place activities-risk) Burma [2009] UKAIT 00017 was legally flawed, effectively overturning it in what had become a proxy appeal. The Court of Appeal has at a stroke re-opened all Burmese asylum claims decided since 2009 that turned on the relevant point of law, which has been a central one in many rejected Burmese cases. It has also highlighted one of the glaring legal problems with what Laws LJ once described as the exotic notion of a factual precedent in a common law system.

Manufacturing risk

The point of law arises from the assessment of risk to Burmese nationals who attended demonstrations in the UK allegedly for cynical reasons in order to fabricate an asylum claim once they were outside Burma in order to avoid having to go back. This is referred to by refugee lawyers as a ‘sur place‘ claim because it arises from activities outside the country of origin after departure from that country. The appellants argued that even if their activities were cynical, a risk is still a risk, whether it is manufactured or not, a proposition going back to the Danian [2000] Imm AR 96 case. The Burmese authorities are intensely paranoid, are known closely to monitor ex patriate groups and demonstrations and would not necessarily distinguish logically and rationally between a ‘hanger on’ at a protest and a genuine, motivated activist. The hanger on might well be at as much risk as the activist, it was said.

The tribunal in TL decided against the appellants on this point, rejecting the evidence of a former British ambassador to Burma in order to do so. Every other aspect of his evidence had been accepted. The tribunal held that the Burmese authorities would be able to distinguish between a real activist and a ‘hanger on’ and that the latter would not be at risk.

The Court of Appeal has now overturned this central aspect of TL on two grounds. Firstly, a parallel drawn by the tribunal concerning the safety of failed asylum seekers and hangers on was a false one as there was no route by which information about false asylum claims could reach the Burmese authorities whereas the known monitoring of protests provided such a route for hangers on. Secondly, and rather more damningly of the tribunal panel responsible, Maurice Kay LJ went on:

31. The second flaw is the underlying assumption that the Burmese authorities in Rangoon operate a rational decision-making process which can reliably be trusted to distinguish between a genuine political opponent and a hanger-on. There is no evidence of how the authorities, faced with a person identified and photographed participating in an anti-government demonstration outside the Embassy in London, might go about satisfying themselves that the person in question is simply an opportunistic hanger-on. The general evidence about the behaviour of the authorities does not support a tendency to rational, careful assessment. The accepted evidence is of a repressive, arbitrary regime. A presumption of rational assessment – which is what paragraph 93 amounts to – is, in my judgment, counter-intuitive in the context of the rest of the accepted evidence. The confidence placed in the Burmese authorities is not supported by evidence. For these reasons, I do not consider that the reasoning of the UT can be supported.

Repressive regimes do not behave according to the rational expectations of those of us fortunate enough to be sitting in the comfort of the UK. This was exactly the point made by the ex ambassador. That the tribunal thought they knew better based on supposition not evidence is really quite surprising.

Factual precedents

The reason that this flawed reasoning has only now been overturned is that the individual appellant in TL won her case. She could not appeal and had no reason to do so because she was not found to be a hanger on. The findings of the tribunal on hangers on were obiter dicta (non binding in legal speak), in so far as factual findings rather than legal conclusions can be so described.

Back in 2005 when I still worked at the Immigration Advisory Service and the Immigration Advisory Service still existed I edited and part wrote a report that was highly critical of the then infant Country Guidance system. The title of the report, Benign and Practical?, was taken from an endorsement of the idea of country guidance by Laws LJ in S v Secretary of State for the Home Department [2002] EWCA Civ 539. We concluded that the system was deeply flawed in a number of ways:

  • Lack of proper referencing of the evidence considered, meaning cases cannot be challenged.
  • Based on incomplete country information, with important and up-to-date evidence either not considered or ignored.
  • Reasoning is sometimes obscure and it is difficult to fathom how the evidence considered led to the ultimate conclusion.
  • Parties restrict themselves to submitting evidence and argument on the facts of the particular case. Some guidance cases go beyond these facts and are based on flimsy foundations.
  • Thorough and definitive country guidance requires resources. These resources have not hitherto been provided by parties to all guideline cases so the Tribunal needs to be more pro-active.
  • Expert evidence is routinely rejected rather than assimilated into an overall judgment.

Some of these flaws have been at least partially addressed and country guidance cases are certainly now much more thorough affairs than back in 2005. There are fundamental flaws inherent in the concept, though, and KS highlights perhaps the most serious. Where the tribunal goes off piste in terms of the facts of the individual cases, any findings made are irrelevant to the parties, who are therefore less likely to have prepared the point in the first place and will also be unable to challenge any findings that are made. The factual findings are then binding on the First-tier Tribunal and will only be superseded by any future Country Guidance case, which occur at best at intervals of three or four years. Challenges are made harder by the fact the Legal Services Commission includes relevant Country Guidance cases in its assessment of merits for legal aid purposes. As I wrote in 2005, Country Guidance cases are self insulating and they cascade artificial notions of certainty.

How many other Country Guidance case findings were made on similarly flimsy foundations but are all but unassailable within the tribunal system? As a single example, LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) was quite strongly criticised here on the blog. With a greater understanding of the full evidence further criticisms might be advanced but, because the individual appellant succeeded, the case now effectively determines the outcome of other cases no matter what it’s flaws. Certain judges in the higher courts have always been known for their tendencies to make obiter comments. This matters little where the (in)significance of such comments is properly understood. The effectively binding nature of Country Guidance cases, though, means that Upper Tribunal judges really must resist the temptation to pontificate on peripheral points of fact.

Burmese failed asylum seekers still here in the UK whose claims were rejected on the basis of TK should seek legal advice and consider making a fresh claim for asylum.