Case No: C5/2011/3130 + C5/2011/3209
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
REF: AA02413/2011 + AA15716/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
Lord Justice Maurice Kay,
Vice President of the Court of Appeal, Civil Division
Lord Justice Moore-Bick
and
Lord Justice Rimer
Between :
(1) KS (Burma) & | Appellants |
(2) NL (Burma) | |
- v - | |
Secretary of State for the Home Department | Respondent |
Mr Mikhil Karnik (instructed by Messrs Scudamores) for the Appellant (1)
Mr Philip Nathan and Mr Richard Moules (instructed by Messrs Scudamores) for the Appellant (2)
Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Respondent
Hearing date : 17 January 2013
Judgment
Lord Justice Maurice Kay :
These two appellants are not connected with each other. However, their cases have common features. They each came to this country from Burma on student visas which have now expired. KS remained here as an overstayer. Eventually, when he was detained, he claimed asylum. He had not been or been seen as politically active before leaving Burma but, during his time in this country, he became a member of the Burma Liberation Front (BLF), a little known and relatively insignificant group. He attended some thirteen demonstrations. He kept a record of the dates and was able to produce some photographs of groups of demonstrators outside the Burmese Embassy, some of which depicted him among a group which had a BLF sign. There is an unassailable finding of fact by the First-tier Tribunal (FTT) that “those anti-regime activities … [were] undertaken in ‘bad faith’, that is undertaken with the motive not of expressing dissent but of creating or aggravating any risk on return [to Burma] – to strengthen his case for remaining in the United Kingdom”. His asylum and human rights appeals against refusal by the Secretary of State were dismissed by the FTT and the Upper Tribunal (UT).
NL claimed asylum just before her student visa was about to expire. She claimed to have been active as a political dissident in Burma and to have been arrested and detained twice but these aspects of her evidence were disbelieved. However, she too had involved herself in demonstrations against the Burmese government whilst in this country but, again, there is an unassailable finding of fact by the FTT that she is “not … genuinely interested in or committed to opposition to the current regime in Burma … her attendance at the demonstrations and meetings is caused by desire to enhance her asylum claim”. Her application was refused by the Secretary of State and her appeals to the FTT and the UT were rejected.
Thus, the cases of both appellants are unattractive because they are now based on sur place activities which were not genuine manifestations of political protest but were cynical and opportunistic attempts to fabricate asylum claims. Nevertheless, it is common ground that there may be cases in which such circumstances give rise to a well-founded fear of persecution on the ground of imputed political 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) v Secretary of State for the Home Department [2008] EWCA Civ 360.
The present appeals raise issues arising out of the country guidance in TL. The grounds of appeal seek to attack the lawfulness of the country guidance in relation to hangers-on and/or, alternatively, its application. In the event, we are told that the UT is about to revisit the guidance given in TL. We have asked counsel instructed on behalf of the Secretary of State whether, if these appeals are dismissed, she would remove the appellants prior to the promulgation of new country guidance. This produced an assurance that she would not. This raises the question of whether the appeals are of more than academic interest. However, we have considered it appropriate to determine them. For one thing, the UT may be assisted in promulgating future country guidance in relation to Burma and, indeed, other countries, by what we say. Also, we are being invited, particularly in relation to NL, to allow her appeal outright on the basis of TL, without the remittal to the UT for redetermination. The UT has been informed that we are proceeding to determine these appeals.
The country guidance
TL provides general country guidance in relation to Burma, with particular reference to sur place activities. The principal expert witness was Mr Morland, a former British ambassador to Burma. He had also given the evidence which had underlain the earlier country guidance case of HM (Risk factors for Burmese citizens) Burma CG [2006] UKAIT 0012. In general the AIT in TL considered that the guidance given in HM remained valid. To that extent, it relied on Mr Morland’s latest evidence. However, on the issue with which we are concerned in the present appeals, it did not accept Mr Morland’s evidence. The relevant guidance is set out in the following passages:
“92 …We take the view that participation in demonstrations outside the Burmese Embassy by Burmese nationals is likely to be recorded by the Burmese authorities in London and made known to the Burmese authorities in Burma; we express the view that those Burmese nationals participating on a regular basis are likely to have been photographed by the Burmese authorities and identified. We are satisfied that if such a person is returned to Burma and there is an additional factor which would trigger the attention of the Burmese authorities such as the lack of a valid Burmese passport or the absence of permission to exit Burma or previously having come to the adverse attention of the authorities as an opponent of the authorities or having a connection with known political opponents there is a real risk of persecution and Article 3 ill-treatment on return to Burma. It may well 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.
93. Nevertheless despite Mr Morland’s view that the Burmese authorities were unpredictable in their treatment of individuals and would regard demonstrations outside the Embassy in London as an affront to the regime, we find it difficult to accept that the Burmese government would persecute someone whom they know 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. As the Tribunal in HM found, if the Burmese authorities had reason to believe that a returnee had made a claim for asylum in the United Kingdom which had failed, that in itself was unlikely to attract the adverse interest of the Burmese authorities. That suggests that the Burmese authorities would be aware that the returnee had advanced some criticism of the regime in order to mount a claim for asylum yet even then would not be inclined to persecute him unless there were some other evidence of opposition. We think it reasonable to draw a distinction between demonstrations in Burma, where it is inconceivable that a person would demonstrate unless he opposed the regime and demonstrations in the United Kingdom, in which a hanger on with no real commitment to the oppositionist cause might participate in the hope of creating a false entitlement to refugee status. We are not prepared to accept that the Burmese government with their spies in the Burmese community would not appreciate the difference between a genuine opponent and a hanger on. We therefore take the view that it is unlikely that a hanger on would be at a real risk of persecution on return to Burma on account of merely having participated in demonstrations but each case must be decided on its own facts.”
A careful analysis of paragraphs 92 and 93 discloses four categories: (1) sur place demonstrations with an additional factor; (2) genuine sur place demonstrations without an additional factor; (3) hangers-on; and (4) hangers-on in respect of whom the facts of their individual cases may enable them to succeed. We are concerned with category (3) and with the distinction between categories (3) and (4). Before I consider them, it is appropriate to set out two further legal considerations.
The Qualification Directive
Council Directive 2004/83/EC of 29 April 2004 is concerned with “minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted”. I shall refer to it as the Qualification Directive. It is a step in the direction of a Common European Asylum System. Recital (18) states that:
“It is necessary to introduce common concepts of protection needs arising sur place.”
There are two substantive provisions of particular relevance. Article 4.3(D) provides:
“The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
…
whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country … ”
Thus, motive is a material consideration but it is not automatically dispositive.
Article 5 provides:
“A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on activities which have been engaged in by the applicant since he left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin.
Without prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall normally not be granted refugee status, if the risk of persecution is based on circumstances which the applicant has created by his own decision since leaving the country of origin.”
Article 5.3 is, in terms, limited to a “subsequent application”.
In our jurisdiction, paragraph 339P of the Immigration Rules was designed to give effect to the Qualification Directive. It provides:
“A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activities which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return.”
The words “in particular” point to the provision being non-exhaustive.
YB (Eritrea) v Secretary of State for the Home Department
The above provisions of the Qualification Directive and the Immigration Rules were considered by this Court in YB. In his judgment (with which Wilson and Tuckey LJJ agreed), Sedley LJ began by referring to the earlier decision of the Court in Danian [2000] Imm AR 96, in which Brooke LJ said (at page 122):
“… I do not accept … that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered.”
In YB, Sedley LJ, having set out that passage, together with the relevant provisions of the Qualification Directive and the Immigration Rules said:
“13. A relevant difference is thus recognised between activities in this country which, while not necessary, are legitimately pursued by a political dissident against his or her own government and may expose him or her to a risk of ill-treatment on return, and activities which are pursued with the motive not of expressing dissent but of creating or aggravating such a risk. But the difference, while relevant, is not critical, because all three formulations recognise that opportunistic activity sur place is not an automatic bar to asylum. The difficulty is in knowing when the bar can eventually come down. To postulate, as in Danian, that the consequence of a finding that the claimant’s activity in the UK has been entirely opportunistic is that ‘his credibility is likely to be low’ is, with respect, to beg the question: credibility about what?. He has ex-hypothesi already been believed about his activity and (probably) disbelieved about his motive. Whether his consequent fear of persecution or ill-treatment is well-founded is then an objective question. And if it is well-founded, then to disbelieve him when he says it is a fear he now entertains may verge on the perverse.
14. The Directive does not directly confront this problem by, for example, simply shutting out purely opportunistic claims. Its sole permitted purpose is to set common minimum standards for the implementation of the Geneva Convention, and it could probably not have adopted such a rule consistently with the governing definition of a refugee in Article 1A of the Convention. But by Article 5(3), perhaps oddly, it does allow ‘subsequent’ – that is, presumably, repeat-applications to be excluded if these are based on activity sur place, whether opportunistic or not.
15. For the rest, it is evident from the way Article 5(2) is formulated that activities other than bona fide political protest can create refugee status sur place. What then is the purpose of Article 4(3)(d)? The answer is given in the text itself: it is ‘to assess whether these activities will expose the applicant to persecution or serious harm if returned’. This would seem not to be the purpose identified in Danian. It suggests that what will initially be for enquiry is whether the authorities in the country of origin are likely to observe and record the claimant’s activity, and it appears to countenance a possible finding that the authorities will realise, or be able to be persuaded, that the activity was opportunistic and insincere. In that event – which can only in practice affect opportunistic claimants – the fear of consequent ill-treatment may be ill-founded.”
The decisions of the UT in the present appeals post-dated YB. It is next necessary to set out the approach of the UT to these appeals.
The approach of the UT
(1) KS
In KS, the Immigration Judge sitting in the FTT stated:
“92. In my judgment it is reasonably likely that those ‘anti-regime activities’ which I accept that the appellant has participated in in this country have been undertaken in ‘bad faith’, that is undertaken with the motive not of expressing dissent but of creating or aggravating any risk on return – to strengthen his case for remaining in the United Kingdom.
93. Of course, the fact that relevant activities have probably been carried out in ‘bad faith’ is by no means the end of the matter, as per YB (Eritrea). But even taking the appellant’s case at its highest, I cannot find that a real risk of persecutory ill-treatment on return is established from those elements of his evidence that I have accepted. In reaching that conclusion I have particularly taken into account the point in the following paragraphs.
94. I consider it inherently unlikely that agents of the Burmese regime would be so interested in someone at the appellant’s level that they would be troubled to monitor what he is doing and/or would be troubled to persecute him on return to Burma … apart from anything else, it must be obvious to the regime that there are some asylum seekers, such as this appellant, who are undertaking their relevant activities in ‘bad faith’. The appellant cannot properly be considered to be a prominent or high profile campaigner vis-à-vis the Burmese government.
95. To put it in the relevant jargon, the evidence overall very strongly suggests that the appellant and his sister are no more than the sort of ‘hangers-on’ referred to in paragraph 93 of TL.
96. … the appellant himself indicated that he was no more at risk than the ‘thousands’ of other people who have attended demonstrations in this country in a similar way.”
The UT found no error of law in this approach.
(2) NL
In NL’s case the conclusion of the Immigration Judge sitting in the FTT is contained in the following passages:
“51. …I did not find that the appellant is genuinely interested or committed to political opposition to the current regime in Burma. I found that her attendance at the demonstrations and meetings is caused by the desire to enhance her asylum claim.
52. I accepted that TL … is authority for the proposition that the Burmese authorities will know her name. Having not accepted the appellant’s evidence that she was arrested and detained on the two occasions in Burma I did not find that there was a real risk that she will be regarded by the Burmese authorities as anything other than a ‘hanger on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum’. The appellant will be able to truthfully tell the Burmese authorities, if questioned on return, that she had run out of money to pay for her college fees and therefore had to claim asylum in order to avoid being removed.”
In finding that the FTT had not fallen into legal error, the Deputy Judge sitting in the UT stated:
“22. I find that the Immigration Judge has asked himself the right questions. He has considered how the appellant will be perceived by the authorities on return. He was entitled to take into account the appellant’s motive in coming to his conclusions. The Immigration Judge considered the appellants’ activities as a whole and properly applied the case of TL to the facts of the appellants’ case as he found them.”
The grounds of appeal to this court
In presenting their appeals, counsel for both appellants submit that (1) the country guidance on hangers-on in TL is legally flawed and, alternatively, (2) even if that is not the case, the guidance was applied to these appellants in a manner that was legally flawed.
Discussion
The guidance in TL was not the subject of an appeal. This is hardly surprising. The appellant was successful in relation to her case (and the cases of her two children). Moreover, she was not “a hanger on with no real commitment to the oppositionist cause”. Although she had not been politically active in Burma, she would be identified as someone who had family links to pro-democracy and anti-government activists. Her sur place activities arose from “her genuine family-based involvement in anti-regime activities”. In the classifications I have identified in paragraph 8, above, she fell into category (1). This leads to the first submission now made on behalf of the appellants. It is concerned with the precedent value of country guidance given in a case which neither party had an interest in appealing and which guidance extends beyond the factual parameters of the appeal in which it is given.
This is familiar territory and it has attracted judicial and academic comment in the past. In S v Secretary of State for the Home Department [2002] EWCA Civ 539, Laws LJ referred (at paragraph 29) to “the duty to give reasons with particular rigour” in country guidance cases and in HM (Iraq) [2011] EWCA Civ 1536, Sullivan LJ emphasised the need for “proper argument”. This emphasises the need for care but falls significantly short of the academic criticism that the country guidance system “subverts the fundamental rule that obiter comments in a judicial decision are not binding in subsequent cases because, as they are not germane to the determination of the particular case, it is not known whether such issues received full argument and consideration” and “country guidance is too blunt a tool with which to perform a sensitive and complex adjudicative task”, Thomas, Consistency in Asylum Adjudication [2008] IJRL 489, at page 524 (where Professor Thomas is referring to the views of others, rather than his own).
I accept that the country guidance system is anomalous. However, it is now well-established. It is referred to in the Practice Direction of the UT, which states:
“12.2 A reported determination … bearing the letters CG shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence … As a result, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.
….
12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”
It is plain that, if it were not for this system, the overburdened tribunal system would become overwhelmed. The system is not productive of injustice, provided that the country guidance, even if obiter in a purist sense, is not itself legally flawed. Sometimes a country guidance decision is directly and successfully appealed. HM (Iraq) is a recent example. There is a risk that a legally flawed decision may not be appealed but that does not mean that it is set in stone. It may be challenged by a subsequent appellant in respect of whom it is not res judicata. The present appeals exemplify such challenges.
The important point is that when there is a challenge on legal grounds to country guidance, either directly or, as here, indirectly, the guidance is subjected to rigorous scrutiny. The Court will need to satisfy itself that the particular part of the guidance that is being called into question was the subject of evidence that was properly evaluated, after full argument, by the UT, whether or not it applied strictly to the appellant or appellants before it.
In TL, it is abundantly clear that the position of hangers-on was the subject of detailed evidence and submissions, even though the appellant herself turned out not to be one. The evidence and the submissions are set out extensively in the determination. In the event, Mr Morland’s evidence on this point, although uncontradicted, was not accepted. Reasons for its rejection were given in paragraph 93 of the determination. I shall shortly turn to that reasoning. However, what cannot be said in this case is that in TL the UT embarked on a journey of its own, unsupported by evidence and unassisted by submissions. Accordingly, I do not consider that this threshold ground of appeal can succeed.
I now turn to the central issue arising on these appeals. The question is whether the guidance in TL in relation to hangers-on is legally flawed. It is apparent from the terms of paragraph 93 of the determination, that the UT rejected the evidence of Mr Morland on this issue. It is appropriate to begin with a summary of that evidence.
Mr Morland had served in Burma between 1957 and 1961 and between 1986 and 1990, during which latter period he was the British Ambassador there. He has retained an interest in that country and had been the principal witness in the earlier case of HM.
Mr Morland’s evidence traced the history of military dictatorship commencing in 1962. Political control of the civilian population was exercised by military intelligence (MI). The following extracts from his evidence are taken from the determination of the UT:
“The system of political control that they set up endures to the present day and was said to be based on the East German Stasi. It relied on random persecution of the civilian population who never knew whom they could trust because of the belief that the MI had thousands of informers. Any sign of dissent, even minor, was savagely punished. … There was no evidence that a distinction between minor and major actions would be made for those Burmese citizens returning home who had engaged in anti-government activity abroad …
In his opinion pro-democracy demonstrations outside the Burmese Embassy were anathema to the regime.
…
His opinion was because of the generally effective suppression of dissent inside Burma activity outside assumed disproportionate importance. Security cameras were attached to the Embassy and were capable of covering demonstrations; additionally, Mr Morland referred to photographic evidence of officials within the embassy taking pictures of demonstrators and to the testimony of U Khin Maung Kyi, a former diplomat who defected from the Burmese Embassy in London after the national uprising of 1988, given in a number of asylum cases. His evidence was that during every demonstration, without exception, military intelligence staff would video and take photographs of demonstrators and copies of these pictures were then sent to Rangoon. Efforts were also made to identify each demonstrator by the security personnel of the Embassy. This was done by consulting records of Burmese passport holders and also informants. …there was no evidence that a distinction between minor and major actions, which was evidently not observed inside Burma, should come into play when Burmese who had opposed the government to one degree or another while abroad returned home into the Burmese jurisdiction. …
… The evidence indicated that demonstrators outside the Embassy were photographed, that security staff had the means to identify demonstrators, and that the information was relayed back to Rangoon. Any manifestation of opposition was punished by the government which exercised a policy of zero tolerance.
…
… It was not inevitable that anyone who had demonstrated in London would be punished on return but he was certain that the authorities had the capability to identify people in photographs and that this information was then sent to Rangoon, where people would be treated in the same way as they would have been had the ‘offence’ been committed in Burma. …
… The government was irregular in its habits; it was arbitrary in its actions either for reasons of incompetence or because ‘they wanted to keep people guessing’. Either way, it was difficult to predict the actions of the authorities. …
He was not aware of any expert opinion which expressed views contrary to those he had set out. …
…
The Burmese authorities regarded demonstrating in front of the Embassy as an affront which brought the country into disrepute and therefore it was likely they would act against those participating in such activities.”
The UT also received a statement from Mr Kyi in which he stated that before photographs and videos were sent to Rangoon each demonstrator would be identified by the military attaches at the Embassy by interviewing consular staff, by accessing consular records, such as a list of all Burmese passport holders in the United Kingdom including their photographs and by speaking with contacts in the wider Burmese community in the United Kingdom. There was also evidence from a photographer, Mr AB, who stated that at every demonstration he had attended he had observed a person inside the Embassy taking photographs of the demonstrators.
Counsel for the Secretary of State urged the UT to attach less weight to the evidence of Mr Morland than had been attached in HM. However, the UT stated (at paragraph 85):
“The conclusion we have reached in relation to how we should approach Mr Morland’s evidence is that similar evidence by him was accepted by the tribunal in HM, the respondent has not commissioned a report from an expert herself and, for reasons which we have given, the matters which have been advanced by [counsel for the Secretary of State] do not detract from the value of Mr Morland’s evidence as an expert witness.”
It added (at paragraph 87):
“… we take the view that it cannot yet be said that there is a real likelihood of change in the attitude of the Burma government towards respecting human rights and the freedom of political dissent. We accept the view of Mr Morland that recent events upon which the respondent relies to assert that changes for the better in Burma are no more than ‘window dressing’ and that it remains to be seen whether any enduring changes are made.”
This led the UT to accept Mr Morland’s evidence on all issues except in relation to hangers-on. Even on this issue, his evidence was uncontradicted. However, it was effectively rejected by the UT in paragraph 93 (set out at paragraph 5 above). For convenience, I set out again the reasoning behind that rejection:
“… we find it difficult to accept that the Burmese government 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 … if the Burmese authorities had reason to believe that a returnee had made a claim for asylum in the United Kingdom which had failed, that in itself was unlikely to attract the adverse interest of the Burmese authorities. That suggests that the Burmese authorities would be aware that the returnee had advanced some criticism of the regime in order to mount a claim for asylum yet even then would not be inclined to persecute unless there were other evidence of opposition. We think it reasonable to draw a distinction between demonstrations in Burma … and demonstrations in the United Kingdom, in which a hanger on with no real commitment to the oppositionist cause might participate in the hope of creating false entitlement to refugee status. We are not prepared to accept that the Burmese government with their spies in the Burmese community would not appreciate the difference between a genuine opponent and a hanger on.”
This led to the conclusion that it is unlikely that a hanger on would be at a real risk of persecution on return to Burma on account of merely having participated in demonstrations but that “each case must be decided on its own facts”.
Before I analyse the reasoning of the UT, two propositions can be stated with confidence. First, a tribunal is entitled to reject expert evidence, even when it is uncontradicted, provided that its reasons for doing so withstand scrutiny. In this context, it must be kept in mind that the FTT and the UT are specialist tribunals whose assessment of evidence is entitled to respect. Secondly, as Sedley LJ observed in YB (at paragraph 15), “activities other than bona fide political protest can create refugee status sur place”. The UT was correct when it stated in TL that each case must be decided on its own facts. Nothing in the Qualification Directive or the Immigration Rules detracts from these propositions.
Turning to the reasoning of the UT in TL, and particularly to paragraph 93, it seems to me to contain two flaws. The first is the attempt to draw an analogy between hangers-on in the present sense and failed asylum seekers. In my judgment, that is a false analogy. Whilst it is true that the failed asylum seeker may well have made false allegations of persecution in the time before he left Burma and he will have been critical of the Burmese authorities in advancing his claim, all that will have been done in communications with the Secretary of State or her officials and in the course of tribunal hearings. Although such hearings take place in public, there is no evidence or suggestion that the apparatus of Burmese state authority is so ubiquitous that it routinely obtains information from individual asylum cases. When the failed asylum seeker is returned to Burma, there is no evidence that the authorities will generally be in a position to know about the details of his failed claim or to hold it against him. In relation to hangers-on, the position is quite different. The UT accepted the evidence of routine photography and video recording of demonstrations outside the Embassy and of efficient identification processes which result in the relaying of information to Burma.
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.
The fact is that the assessment of risk in relation to a hanger-on who has probably been photographed, filmed and identified is inherently difficult. It is unpalatable that someone may become entitled to refugee status as a result of his cynical manipulation but if, objectively, he has a well-founded fear of persecution by reason of imputed political opinion, that may be the reality, as YB demonstrates. What is required is that country guidance assists decision-makers in deciding individual cases on their own facts. For example, a Burmese national who left his country on a genuine passport and with permission to exit, may be more easily found to be a person without oppositionist sympathies. However, this is not conclusive. The successful appellant in TL was so documented but her claim still succeeded. Moreover, it is not difficult to imagine a person who was a conformist before leaving Burma but who becomes genuinely politicised in exile. This demonstrates how difficult individual assessment may be.
In BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), the UT promulgated country guidance in relation to similar difficulties with Iranian demonstrators. It referred to a number of factors and “a spectrum of risk”. The non-exhaustive list of factors is grouped under a number of headings: nature of sur place activity; identification risk; factors triggering inquiry/action on return; consequences of identification; and identification risk on return. Each heading is then illustrated and amplified. Of course, all countries are different and it would be presumptuous for this Court to prescribe the format of country guidance in a particular case but, in my judgment, the guidance in relation to Burma might usefully benefit from such a structural approach.
Conclusion
In summary, I would allow these appeals on the ground that the guidance in TL on hangers-on was legally flawed and I would remit the two cases to the UT for redetermination after the forthcoming new country guidance decision. In these circumstances, I do not propose to go into the alternative ground of appeal to the effect that, even if TL contained valid guidance on hangers-on, it was misapplied in the present cases. This ground was advanced with a submission that, if it found favour, the appropriate disposal would be to allow the appeals outright, with no need to remit. If my Lords agree with my conclusion on the prior issue, it is inappropriate to address the application of flawed country guidance.
Lord Justice Moore-Bick:
I agree.
Lord Justice Rimer:
I also agree.