SA v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

This is the determination of the Tribunal. The Appellants (hereafter referred to as “SA” and “IA” respectively) are from Syria and are of Kurdish ethnicity. Their separate appeals were listed together, with the consent of the parties, for the reconsideration of their individual appeals, and additionally to provide the basis for reviewing/supplementing the country guidance concerning the position of Syrian Kurds, last considered in AR (Kurd: not risk per se) Syria CG [2006] UAKIT 00048 - in the light of the current country evidence. Initially, a third appeal that of AK - appeal number AA/07648/2006 – was listed for reconsideration with them, with Mr O’Ryan representing AK as well as SA.

In AR the Tribunal summarised its conclusions as being that a Syrian Kurd with no political history does not face a real risk of persecution or breach of his human rights on return to Syria. Its material conclusions were as follows.

“88.

Taking these matters together we have concluded that the deprivations experienced by Syrian Kurds are not such as to amount to persecution or breach of their human rights if returned to Syria. It is not without significance in this regard that the appellant at interview said that he had experienced no problems as a Kurd prior to the events of 2004 which were disbelieved by the Adjudicator. Clearly he would have had to put up with deprivations of the kind we have set out above but we do not consider that these materially damaged or would damage the quality of his life and nor could anything different be said with regard to the situation of any other person living as a stateless Kurd whether Ajanib or Maktoumeen in Syria.

92.

We assess risk to the appellant on return on the basis first of all that he has no political history in the light of the Adjudicator's findings in this regard which were not effectively challenged. There is no evidence to indicate that the authorities would be aware that he has applied for asylum in the United Kingdom. As Mr Ouseley suggested, Dr George's views on this were essentially speculative as to the ability of the security services in Syria monitoring the activities of Syrians in the United Kingdom. In our view the evidence shows that the appellant would face no more than a risk of imprisonment potentially up to a period of three months. We do not consider that the evidence shows a real risk of ill-treatment giving rise to a breach of his protected rights on return in that regard. Accordingly we do not consider that the risk factor with regard to this aspect of his claim is such as to place him at a real risk of persecution or breach of his human rights. We see no reason to disagree with the earlier conclusions of the IAT in SY (Kurd – No Political Profile) Syria CG [2005] UKIAT 00039 to similar effect, and this decision should be understood as updating SY, therefore.

This decision replaced the earlier country guidance in SY (Kurd – No Political Profile) Syria CG [2005] 00039.

At a case management review hearing on 3 June 2008 for all three appeals originally listed, Mr Stanage (then speaking in the absence of Mr O’Ryan for all the Appellants), and Ms Donnelly (for the Respondent), confirmed their agreement on the following matters, subject to the directions given.

However, at the outset of the hearing before us, Mr O’Ryan (who represented both AK and SA but had not attended the CMR hearing) indicated that AK’s position had not been correctly understood at the CMR hearing. He maintained that the adverse credibility findings by the Immigration Judge concerning AK’s claim were flawed by a material error of law and were unsustainable, and that consequently full reconsideration of his claim would be required. This would involve hearing his oral evidence in full. This was open under the terms of the order for reconsideration. In the light of Mr O’Ryan’s submission, the Tribunal accepted that there must have been a genuine misunderstanding at the CMR hearing. Nevertheless, the time needed potentially to hear AK’s appeal on its own specific facts had not at the CMR been factored into to the time allocated for the country guidance hearing. In these circumstances we decided, with the agreement of the Representatives, that the appeal of AK would be heard and decided by Senior Immigration Judge Taylor sitting alone immediately after the conclusion of the country guidance hearing. It would be the subject of a separate determination made in the light of the present determination if it resulted in it being country guidance (Practice Direction 18.2). However, as Mr O’Ryan also represented SA and as the country evidence produced by him for AK is of general relevance to the remaining appeals, it would be taken fully into account in the country guidance determination. Additionally any questions to the expert witness Dr George, that might affect AK specifically could also be put to him in the course of the country guidance hearing, and would be taken into account for the purposes of his separate determination by Ms Taylor.

The appeals of SA and IA come to us from the Court of Appeal where, in IA (Syria) & SA (Syria) v Secretary of State for the Home Department [2007] EWCA Civ 1390, they were linked. Toulson LJ gave the lead judgment and summarised the material facts in each case as follows.

“2.

The Appellants, SA and IA, both come from Syria and are of Kurdish ethnicity. Kurds are the largest non-Arab minority in Syria, comprising approximately 10% of the population of 18.5 million. Many are denied Syrian nationality by the Syrian Government. The Appellants are both stateless, and unable to obtain travel documents for travel outside Syria.

3.

SA arrived in the UK on 22 March 2005, and claimed asylum the next day. His application was refused. He appealed to the AIT, which dismissed his appeal. He claimed to have taken part in anti-government activities and to have fled from Syria when he knew that security forces were on his track. His account of those matters was disbelieved by the AIT, and there is no appeal against that finding. The basis of his appeal, in summary, is that the Tribunal fail to deal properly with the risks he would face on return as a Kurd who had left Syria unlawfully and made an unsuccessful claim for asylum.

4.

IA arrived in the UK on 11 February 2004 and claimed asylum five days later. His claim was rejected and he appealed. He claimed that he had been threatened by officials of the Ba'ath party with torture unless he joined the party. Under threats, he agreed to report on the activities of fellow Kurds in the area, but instead he fled the country. At the first hearing of his appeal, this account was rejected and the appeal was dismissed. Reconsideration was ordered because the Tribunal had failed properly to consider the risk to him on his return as a failed asylum seeker.

5.

A further matter was raised on the reconsideration. From 2005, IA took part in a number of anti-government demonstrations outside the Syrian Embassy. It was argued on his behalf that this would heighten the risk to him if he were returned to Syria. The AIT on reconsideration dismissed his appeal. The basis of his appeal to this court is that the Tribunal failed to deal properly with the risk he would face on return both (as in SA's case) as a Kurd who has left Syria unlawfully and made an unsuccessful claim for asylum, and also on account of his political activities in the UK.”

Toulson LJ reached the following conclusions concerning these appeals.

“22.

I am troubled by the points raised by both Appellants, and I regret that the Respondent has not been able to put those troubles to rest, in my judgement. In relation to SA I accept that there is substance in both the main criticisms advanced by Ms Plimmer. To treat the Amnesty International letter as if it was simply a letter written with no identifiable foundation was not a satisfactory way of approaching the document. Amnesty International is a body of high repute and the document did indicate, in broad terms, its sources of information.

23.

Inevitably, in the areas that such bodies are investigating, there may be difficulties in obtaining evidence from fully identifiable sources, but Amnesty International are well aware of that. It does not follow that a Tribunal was bound to share their opinions on any particular matter, but the substance of that report did require the Tribunal properly to engage with it. The way in which the determination dealt with the report of Ms Laizer was so cursory as not in substance to engage with its content on the relevant point at all.

24.

In the case of IA there is again, in my judgement, substance in both the main points made by Mr Stanage. The evidence put forward by Dr George, about the likelihood of IA being identified by the Syrian authorities as someone hostile to the regime for his activities outside the Syrian Embassy, contained enough substance to require the Tribunal to address it properly. It could not simply be dismissed as not amounting to evidence. Similarly the letter from Amnesty International did apply to IA, and its cogency needed to be evaluated. It was not.

25.

For those reasons, I would allow both appeals, and direct that they be remitted for reconsideration. I do so with some regret, because the process has already been protracted. I am conscious in the case of IA that this is the second occasion on which the case will have to be sent back for further consideration. Nothing that I have said in this judgement should be taken to indicate any view on my part that the appeals are likely to be successful in the final analysis. I am far from saying that on the material before either Tribunal the appeals ought necessarily to have been allowed, but I regret that there were, in my judgement, serious errors in the way in which the Tribunals dealt with the issues, for the reasons that I have set out.

26.

There is further material before this Court to suggest that the position in Syria may have been changing. There is a report from the Foreign Office, which suggests that although the picture is not wholly good or wholly bad, in some material respects things have become worse since 2006. We are told that there is another country guidance case, supposedly due to be heard in the not too distant future. I am aware that Tribunals are overburdened with cases, but it does seem to be highly desirable that there should be a fresh look at the position of the state of Syrian Kurds who applied unsuccessfully for asylum, as soon as possible. The issues which have been raised in the Amnesty International report need to be evaluated. The sooner they are fully evaluated the better."

Thus, as is confirmed in the respective Appellants’ Representative’s skeleton arguments, the Appellants claim that they would be at real risk on return as stateless, undocumented Syrian Kurds, who had left Syria illegally and were failed asylum seekers. IA claims additionally to be at real risk on return as being perceived by the Syrian authorities as a political opponent, as a result of his attendance at a number of anti-regime demonstrations outside the Syrian Embassy in London. IA claims that anti-regime activities conducted outside Syria are regarded by the regime as seriously as those undertaken within Syria.

On this basis we proceeded with the substantive hearing. Ms Pettersen confirmed the Respondent’s acceptance that there had been material errors of law by the Tribunal in the appeals of SA and IA which, as stated by the Court of Appeal, were the failure to consider adequately the objective evidence. We agree, and on that basis proceeded to second stage reconsideration of both these appeals.

Ms Pettersen also confirmed that she did wish to cross-examine IA briefly concerning the matters contained in his written statement of 4 November 2008 about his claimed political activities in the UK.

We heard in succession oral evidence from Dr George and from IA, all of which is fully set out in our record of proceedings. We shall refer to the material aspects of this evidence in our conclusions. It was then agreed that each of the Representatives would supply full written submissions and, if they considered appropriate, replies. On that basis we reserved our decision.

The bundles/documents provided to us by the Representatives, either before, during or after the hearing are as listed below. A reference list of each specific item of country evidence provided, all of which we have taken into account, is contained in the appendix hereto.

Mr O’Ryan’s written submissions for SA are as follows.

“1

At a hearing at Bradford AIT on 10.11.08, SIJ Batiste and SIJ Taylor directed, following oral evidence from Dr Alan George and Appellant IA, that written submissions should be provided by the parties to the appeals.

2

The Tribunal resolved that the appeal of AK will be heard and determined solely by SIJ Taylor, as a ‘follower’ case, as matters of credibility arise in that appeal such that it should not be determined jointly with SA and IA. Oral evidence from AK is to be heard by SIJ Taylor on 11.11.08. However, there is evidence submitted in the appeal of AK relevant to the Country Guidance issue (Kurd; illegal exit from Syria; failed asylum seeker); not least the updated expert report of Dr. Alan George dated 5.11.08. It is presumed that whilst the AK’s case is to be determined separately from SA and IA, such evidence (specified in more detail below) in AK’s case relevant to the Country Guidance issue will be taken into account.

Previous Tribunal consideration of risk on return to Kurds, exiting Syria illegally and having claimed asylum in the United Kingdom.

3

It is clear that Kurdish ethnicity may be an exacerbating factor for those who come to the adverse attention of the Syrian state authorities (see para 8 ZB and AK (Kurds - Article 3 - Risk - IFA) Syria [2004] UKIAT 00217). The Tribunal noted in that case the reasons for the Respondent conceding the appeals:

“11.

It was on the basis of this filed evidence that in the case of both B and K and having regard to their characteristics which we have identified earlier in this determination, the Secretary of State conceded that each would be likely to be identified as a failed asylum seeker who had left the country illegally and was being returned on the basis of temporary papers obtained for that purpose from the Syrian Embassy. This would lead to a real risk that each would be stopped and detained on return. The real possibility of prosecutory [sic] treatment for the combined reasons of ethnicity and perceived or imputed political opinion contrary to the Refugee Convention 1951, and of treatment prohibited by Article 3 of the European Convention of 1950, must be accepted to exist.

12.

On the basis of the concessions made by Mr Morris it accordingly follows that in the case of B the Secretary of State's appeal is dismissed and B's cross appeal is allowed; in the case of K his appeal is allowed on both asylum and human rights grounds.” (emphasis added)

4

In SY (Kurd-No Political Profile) Syria CG [2005] UKIAT 00039, it was held:

“21.

It would seem to us to be implicit in the concession made on behalf of the Secretary of State in ZB and AK that a Syrian citizen of Kurdish ethnicity who has an accepted past political profile and who left Syria illegally may be at risk on return on account of those factors. Equally it is clear to our mind from RS that a person who left Syria with their own passport and with a proper exit stamp would not be at risk on return as there would be no reason to suspect any opposition to the Syrian state by dint of that departure and subsequent return. The relevant risk issues are well set out in the Canadian document at page 122 of the Appellant's bundle. Clearly the nature of the departure and the profile and background of the individual are of importance. It seems that an application would have to be made either by the Appellant or on his behalf for documentation from the Syrian authorities in order for him to be returned. There must be a risk that a Syrian who approaches the Syrian Embassy or on whose behalf an approach is made for documentation might be regarded by the authorities as somebody who had sought asylum in the United Kingdom. Equally it is clear that no information to that effect would be made available to the Syrian authorities.

22.

We do not consider that it can properly be said that there is a real risk of an inference of this kind being drawn. The Appellant, on the Adjudicator's adverse credibility findings, is a person who has no political profile in Syria. Any check of Syrian records that might be made by the authorities as a consequence of an application being made for travel documents would reveal nothing to his discredit. It is in our view purely speculative and indeed fanciful to suggest that nevertheless there would be inferred to him an attitude adverse to the interests of the Syrian state by the fact that he was in the United Kingdom and needed travel documentation in order to return. It may be that it would come to light that he had left the country illegally in which case he would face up to three months' imprisonment, but on the one hand that would involve prosecution and on the other hand would not to our mind, given that it is unclear whether such a person would be sentenced at all, quite apart from how long within the three months maximum they might be in prison, be such as to give rise to a real risk of breach of Article 3 rights. ...” (Emphasis added)

5

The Appellants would not necessarily agree with the observation within paragraph 21 of SY that the concession made in ZB and AK was dependent upon those appellants having (some limited) past political profile - it appeared to be on the basis merely that they would be identified as failed asylum seekers who had left Syria illegally and were being returned on temporary travel documents.

6

Certainly, in SY, the proposition that there would be a risk of serious harm to Kurds who had left illegally and were failed asylum seekers was not rejected by the Tribunal - the reason for the appeal failing was that the accepted risk that a Syrian approaching the Syrian Embassy or on whose behalf an approach was made for documentation might be regarded by the authorities as somebody who had sought asylum in the United Kingdom was not, in the assessment of the Tribunal on the basis of the evidence before it, a real risk (para 22).

7

The issue was revisited at paragraphs 89-92 of AR (Kurd: not risk per se) Syria CG [2006] UAKIT 00048. It was asserted in a letter from the British Embassy in Damascus inter alia that it was ‘important not to assume that the Syrian authorities would automatically know that an individual had applied for asylum in the United Kingdom’ (para 89). Dr Alan George gave evidence in that appeal (summarised at paragraph 90 of AR), citing various reports including a September 2003 Canadian IRB document that if it became known that a person had applied for asylum abroad the consequences to a returnee may be severe.

8

However, it is clear that the Tribunal’s reason for dismissing the appeal in AR is contained in paragraph 92, wherein the Tribunal recorded their view that there was ‘no evidence to indicate that the authorities would be aware that he has applied for asylum in the United Kingdom”, and the Tribunal were of the view that the appellant would face no more than a risk of imprisonment potentially of up to three months for illegally exit, which would not result in Article 3 mistreatment.

9

The Appellants aver that there is now further evidence before the Tribunal establishing to a reasonable degree of likelihood that a past claim for asylum in the United Kingdom would come to the attention of the Syrian authorities either due to enquiries made at the Syrian embassy in London or on return to Damascus.

10

Such evidence is contained inter alia within the expert report of Dr Alan George in AK dated 5.11.08 (bundle 10, pages 8-38), supported by his oral evidence.

11

When the appeal of AK was first heard by SIJ Drabu, IJ T Jones and Dr J O de Barros on 7.2.07, the Tribunal had ‘ no hesitation in finding (Dr George) as being a man of specialist knowledge. His credentials of expertise are impeccable, and we found him to be measured and objective in his oral evidence” (para 18). (Regrettably, the Tribunal then proceeded to err in law by failing to have sufficient regard to his evidence and a letter dated 4.10.06 from Amnesty International, resulting in the present reconsideration of AK’s case).

12

Dr George’s expertise is such that the UK Foreign Office have on several occasions invited him to attend briefing sessions for new British Ambassadors to Middle Eastern countries, including Syria, prior to their posting (bundle 10, page 10 para 12).

13

In AR at paragraph 78 the Tribunal questioned the efforts made by Dr George to confirm the truth or lack thereof of suggestions that significant numbers of stateless Kurds were to be granted citizenship. Dr George respectfully addresses this issue at paragraph 46-50 of his report of 5.11.08, confirming his earlier evidence (that there was no real sign of such grant of citizenship on the horizon) as having been accurate. He addresses the Syrian government’s current position on this issue at paragraph 52-54 (no progress). Further, the progress of these reforms has been repeatedly ‘suspended’ or ‘stopped’ by the government (see quotations from speech made by President Basher al-Assad on 17.7.07 at paragraph 45 of Dr George’s report).

14

The Tribunal is therefore invited to conclude that Dr George is an appropriately qualified expert, and to give his evidence significant weight. It is further contended that weight ought not be given to his evidence merely on the basis that his evidence is consistent with other objective evidence - this would miss the point of calling expert evidence - Dr George clearly has sources available to him that are not available to others (eg his contacts within the Syrian embassy in London itself).

15

The Appellants refer in particular to the following passages within Dr George’s report of 5.11.08:

Paragraph: Issue:

20

One mukhabarat secret policeman for every 153 adult Syrians

23

Nature of secret police

24-25 Human rights abuses and trends in 2007 - downwards - (quoting from various sources)

27

Numbers of political arrests - 1500

34 onwards Position of Kurds

36

Torture and ill-treatment is routinely inflicted on Syrian Kurdish political detainees whilst they are held incommunicado in Syrian prisons and detention centres.

37

Oppression of Kurds escalated sharply since March 2004

38

Oppression of Kurds continues

40

Fatal shootings of Kurds at Newroz 20.3.08

42-54 No real progress on issue of citizenship (and see para 13 above)

55

Syrian political leaders stated situation on Kurds more difficult

56

Effect of new law Decree 49, effective from 10.9.08; restrictions on construction disproportionately discriminating against Kurds

58

Demonstration against Decree 49 on 2.11.08 leading to 200 arrests

71

Authorities’ view of asylum seekers: critique of Amnesty International report of January 2004. Dr George’s firm view (middle of paragraph 71) that a Syrian who has applied for asylum will be perceived to be an oppositionist; the authorities are highly unlikely to make a consistent distinction between ‘government opponents’, and ‘government opponents who are politically active’, and a claim for asylum would be quite sufficient cause for him to be detained and maltreated on return to Syria, regardless of whether that person has a history of anti-government political activity.

Reference to Canadian IRB report of September 2003: “If it becomes known that they have applied for asylum, the consequences may be severe.” This opinion remains valid, according to Canadian IRB report of 1.5.08 (as to which, see further below)

72-73 Same issue

74

Dr George’s anonymous contact within the Syrian embassy, a senior and respected official, who is personally involved in matters concerning the return of Syrians to Syria from the UK said ...”however, the Syrian security authorities often continued to view such individuals (i.e. those motivated by economic considerations) with suspicion. Old attitudes died hard ...” (Emphasis added)

75

Assessment of risk as a returned asylum seeker. NB Dr George’s oral evidence was that this assessment was purely on the basis of failed asylum seeker status alone. It specifically did not represent his assessment of risk for persons with additional risk factors such as Kurdish ethnicity and illegal departure from Syria.

76 Monitoring of suspected dissidents

(insofar as relevant to SA and AK - but more specifically relevant for cases involving an element of UK political activity)

NB The document at page 195 of Bundle 9 (the common objective bundle) clearly shows in the colour copies handed up at the hearing that a tripod is being used (top photo) - the video camera was not hand-held. This would clearly provide steady images even when the camera was zoomed in close to the subjects, facilitating the process of identifying those filmed.

Mr Stanage’s written submissions were as follows.

“Introduction and summary

1.

IA’s appeal was today adjourned part-heard for written submissions after the conclusion of his evidence as to sur place activities and live evidence from Dr Alan George.

2.

The Tribunal invited the parties to exchange submissions electronically and gave liberty to the Appellants to respond thereafter to any submissions drafted by the Respondent.

3.

IA’s main submission is that the real risk of persecution or breach of Art 3 ECHR arising from the cumulative factors set out at paragraph 4 of his skeleton argument [bundle 8, section C, page 3] is proved all the more clearly as a result of the evidence heard today.

Submissions on law

4.

IA relies upon the submissions in the aforementioned skeleton argument.

5.

IA further and gratefully adopts the submissions made in the skeleton argument submitted on behalf of his fellow Appellants [bundle 11]. The Tribunal’s attention is particularly invited to paragraphs 23 and 25 in which principles of law directly relevant to an assessment of risk in the instant case are extracted from Court of Appeal decisions in Batayav v SSHD and YB(Eritrea) v SSHD .

Submissions on objective evidence

6.

As to objective evidence, IA again gratefully adopts the extracts already set out in the skeleton argument for SA and AK [bundle 11] at paragraph 30.

7.

Those extracts confirm the ever more marked propensity of the Syrian authorities to deploy systematic/frequent/common arbitrary detention, torture, malicious prosecution and imprisonment against oppositionists.

8.

To that summary of relevant objective evidence [drawn from bundle 9] IA would advance the following extracts from his own bundle 8, section C as corroboration for his well-founded fear of persecution:

page 83: Freedom House, October 30, 2008: para 3, line 3: the State may charge opponents with “spreading false information”;

page 84: Human Rights Watch, October 30, 2008: para 3: the State convicted 12 political activists on vaguely defined charges of “weakening national sentiment” and “spreading false or exaggerated news which would affect the morale of the country” in an attempt (according to the headline) to ‘silence critics’;

page 85: ibid, line 8: a further charge exists which, says IA, may be particularly easy to level against him, namely “communicating with a foreign country and inciting it to initiate aggression against Syria”;

page 113: Human rights Watch, February 5, 2008, para 1: eight out of the twelve opposition activists (NB: apparently not Kurds but rather Syrian nationals-see page 115- and activists within an umbrella group of pro-democracy groups) claim to have been beaten in detention;

page 123: Human Rights Watch, October 2007, at page 154, penultimate paragraph: ‘Syrian security agencies frequently arrest activists following their return from trips overseas, apparently as a form of punishment for the activists’ discussion of Syrian human rights issues abroad’.

Submissions on expert evidence

9.

IA relies upon all reports submitted by Dr George in respect of all three Appellants.

10.

It is further submitted that Dr George’s oral evidence today has helpfully clarified, and fortified, his conclusion that IA is reasonably likely to face risk of persecution on return.

11.

In particular, IA invites the Tribunal to recall the following elements of the oral evidence today:

(a)

All of Dr George’s sources indicate that the situation for Syrian Kurds has deteriorated since 2006. None says that it has improved;

(b)

Dr George only days ago spoke to two Kurdish party leaders who confirm that view;

(c)

It is probable that the authorities would be aware of the YouTube video broadcast [reproduced in print at Bundle 8, section C, pages 58-59];

(d)

‘Certainly’ they are hyper-sensitive to internet activity. An example from Dr George’s book was given. A political cartoon critical of Syrian involvement in Lebanon was emailed to the wife of a businessman. Within half an hour of transmission security services arrived at her home;

(e)

Email communications are monitored. A’s email correspondence with the SHRC is extensively documented and covers a long period of time. Please see bundle 8, section C, pages 14-45 [It is submitted that although translations have not been provided, there can be no doubt that the sender is the SHRC and the recipient therefore in contact with them];

(f)

It is ‘extremely probable’ that filming of demonstrators is undertaken so as to have a record as to who is an oppositionist so that they or their families may be targeted;

(g)

There is a hard core of people to attend all demonstrations and there will be at demonstrations faces that become known to the Embassy personnel filming/photographing from within. It is submitted that, notwithstanding a change of hairstyle, IA by his regular attendance at a total of nine demonstrations is reasonably likely to have become a ‘known face’ easily capable of identification as an oppositionist;

(h)

For a stateless Kurd resident in Syria the only type of exit available is an illegal one because a Syrian Kurd will have no passport, therefore cannot apply for an exit visa and is in effect forbidden to travel. It is therefore submitted that the fact of illegal exit, an accepted fact in IA’s appeal, would raise suspicion that he is a Kurd and therefore an oppositionist;

(i)

The relatively low number of forced returnees (less than 5 per month in recent years) would enable the authorities to search for and root out oppositionists among them;

Submissions on IA’s own evidence

12.

It is submitted that insofar as it is important to evaluate the genuine nature of IA’s political commitment, he has:

(i)

travelled a significant distance from Newcastle upon Tyne to London on the nine occasions that he has publicly demonstrated his opposition to the government;

(ii)

corresponded by email with the Syrian Human Rights Committee (SHRC) over a prolonged period;

(iii)

been less politically active than he would like to be in the Kurdish cause because few Kurds live on Tyneside, many more live in London and IA is therefore prevented by circumstance/NASS from the fuller political involvement which he would choose if resident in London.

Ms Pettersen made the following written submissions

Mr Stanage made further written submissions by way of reply on behalf of IA in the following terms.

“Introduction

18.

Counsel has within the last hour had sight of written submissions on behalf of the Respondent in this matter.

19.

The Respondent, no doubt inadvertently, therein invites the Tribunal to err in law. A brief rebuttal of certain submissions is therefore necessary.

Rebuttal

20.

As to the Respondent’s paragraph 4:

Counsel cannot find a bundle 8A but in any event recalls that it has been IA’s case throughout that he has no desire to join any Kurdish nationalist political party but to promote the Kurdish cause free from political party restrictions. Such was his oral evidence before Mr Aitken at North Shields.

IA’s oral evidence yesterday made abundantly clear his commitment to that cause:

He explained that he attended demonstrations because

‘I am Kurdish; the world knows how much Syrian Kurds suffer; We face unbelievable difficulties; They take our properties, belongings, not giving us our ID cards; If we don’t go to defend Kurdish rights whatever the Syrian government does to Kurds no-one would know about it. I am trying by going to demonstrations to stop the injustices being done to the Kurdish people’.

Dr George is a freelance consultant, writer and academic specialising in Middle Eastern political and economic affairs. He has a BA degree from Oxford University and MA and PhD degrees from Durham University. In our view he is plainly well-informed on Syrian affairs. His two reports of 20 July 2006 and 5 November 2008, which he adopted as his evidence in chief, were prepared for the AK appeal but, whilst they contain elements that were specific to it, the general opinions expressed in them as to the situation in Syria are of wider relevance. He also adopted his reports dated 7 November 2006 on IA and his supplemental report of 10 June 2008.

The material thrust of these reports, as well as the differing views of the Representatives about them, is clear from the above written submissions by the Representatives and we do not therefore wish to be unnecessarily repetitious by summarising them again now. We shall however draw from these reports and submissions in more detail when we come to our conclusions. We must however record at this stage Dr George’s oral evidence and supplementary written information, made in response to questions put to him from the Representatives and the Tribunal, which we found to be helpful and illuminating.

Dr George was referred to the original Tribunal determination in AK where he was reported to have expressed the following opinion.

“9…. Dr George said that whilst it is true that in the past there was a greater likelihood of failed asylum seekers being at risk on return to Syria the conditions are not as bad now, but the improvement is “not by much”, and the authorities at the airport may sometimes not assume economic motivation having caused a person to leave….”

He said he was baffled by this reporting. He referred to paragraph 74 of his 5 November 2008 report which stated that:

“I would add that in 2006 a senior and respected Syrian official who is based at the Syrian Embassy in London and is personally involved in matters concerning the return of Syrians to Syria from the UK told me that there was now some realisation on the part of the Syrian authorities that Syrians who claimed asylum might have done so for purely economic reasons, rather than because they genuinely opposed the regime. He also stated however that the Syrian security authorities often continued to view such individuals (ie those motivated by economic considerations) with suspicion. Old attitudes and died hard, he said."

He concluded that the reporting in AK may have been intended to reflect this. However, whilst it is true that some Syrian officials have some understanding of reasons for claiming asylum, that is not much improvement from a very repressive regime. In the 1980s there was an uprising which resulted in severe repression. One cannot put precise dates on changes in levels of repression but it was less in 1990s, and less again under the new President post 2000. However recently it has become more oppressive again. The overall position for Kurds as compared to 2006 is now worse. The context matters. After March 2004 there were violent confrontations and the situation has deteriorated since then. In last couple of years it has become bad for non-Kurdish groups as well, for example for democracy activists. He had recently telephoned Kurdish leaders (described in paragraphs 53/55 of his 2008 report) and they were clear that the position of Kurds has deteriorated since 2004. He had not found any Kurds who say other than that it has got worse in last couple of years.

In paragraph 75 of his report of 5 November 2008 he had said:

“The available information on the Syrian authorities' attitude towards asylum applicants is clearly somewhat contradictory. In my opinion however it would be imprudent to assert categorically the claiming asylum abroad in and of itself would never cause adverse attention from the Syrian authorities. I say this because several of the reports on this question cite specific cases where individuals have been targeted solely for having applied for asylum. Evidently, it is something that does happen, albeit that it does not happen routinely or even often. In my view, especially bearing in mind the arbitrary manner in which the Syrian security services conduct themselves, unsuccessful asylum claimants do run the risk, at least, of attracting adverse official attention on their return to Syria."

Dr George added that this passage related specifically to people who claimed asylum and not to those who left Syria illegally. That would be a cumulative risk factor.

He was then asked about the photographs at demonstrations outside the Syrian Embassy in London and he confirmed that two of them (the enlargements) appeared to show a camera being used from inside the Embassy to record the demonstration. He was told that IA claimed one of the demonstrations he had attended was videoed by the organisers and published on the internet on YouTube and was asked if the authorities would be interested in this. He replied that they would, if it was drawn to their attention. They are hypersensitive to criticism and there are several examples of rapid reaction by the authorities if information about criticism comes to their attention. He was shown the photo which suggested that a videocam was being used from the Embassy and was asked why this was being done. He said that if it was a one off it may be due to the interest in an individual. But he had been told that this was routine and in that case it was very probable that it is being done to create a record with view to targeting the demonstrators and their families. People attending demonstrations say they see photography from the Embassy happening routinely.

Paragraph 5 of his 10 June 2008 report described evidence by two named witnesses, Dr J Mella, the head of the London-based Western Kurdistan Association, a lobby group for Syrian Kurds and Mr M Al-Abdeh, the head of the policy unit of the Movement for Justice and Development, a non-Kurdish Syrian opposition group. Both confirmed that they had attended demonstrations outside the Syrian Embassy and had personally witnessed the filming of the demonstrations from within the Embassy. Dr Mella considered this to be routine. Dr George was later able to confirm that both of these witnesses had been in the UK for many years and were now British citizens. Dr George thought that such demonstrations occurred every 3 or 4 months and about 50 or 100 attended at a time; or say 20-70 to be safe. It may be that the demonstrations took place only a couple of times a year or a little more. He later confirmed that Dr Mella had told him that there were at least two per year and could be as many as four depending on specific events. Dr George said it would normally be the same hard core of people who attended the demonstrations, though there will be others who may attend intermittently.

Dr George drew attention to paragraph 71 of his report of 5 November 2008 where he had highlighted what he considered to be an inconsistency in a report of the Canadian section of Amnesty International which had stated that:

“Syrians seeking political asylum abroad are perceived to be government opponents by the Syrian authorities. The very fact of leaving the country to seek asylum abroad is imputed to be a manifestation of opposition to the Syrian government. If in addition the asylum seeker has been affiliated with an unauthorised political party will group, he/she risks arrest and torture upon return to Syria. This is done by the authorities to attempt to extract information about the group and its members."

He was asked how opponents in the UK of the Syrian regime would be identified, when the evidence on identification related to attendance at demonstrations only. He said that political activity in eyes of Syria would certainly include a demonstration outside the Embassy. Also a Kurd, who had fled from Syria to escape allegations of anti-regime activities, would be regarded as a political oppositionist whether he attended demonstrations or not. Thus there is the potential of risk. However there are not infinite resources available for surveillance, and it will be targeted on those who are most of interest. Also if a person left Syria illegally he would not have proper documentation. So an application would have to be made at the Embassy for travel documents. That would attract attention from the security services that may be adverse. If however the individual was an economic migrant only, it is a grey area. Security can be arbitrary. If he is a Kurd and the officer has had a bad experience of Kurds there could be a problem. There were a range of factors that could be significant given the arbitrary nature of the security services. There is greater understanding of the fact of economic migration but also there are still hard-liners who do not accept this. Serious charges could be made against the most innocuous of democracy activists and possibly against economic migrants. There is a risk but he said he could not quantify it. He leaned to the view, if pushed, that there would be a real risk even for a purely economic migrant of being perceived as an oppositionist by some elements of the security services. However such risk would be much less than for someone who had a political history.

As for economic migration from Syria, there were no statistics. However he thought it was significant, given the number of Syrians who work abroad in various countries and send remittances home. There were no official unemployment figures either but he thought unemployment could be running at about 25%. It was very significant. Many Syrians leave legally. Getting permission is not that difficult. Many also come to Europe to study. Syrians can travel to Lebanon on an ID card, without the need for a passport. They can then travel onwards from Lebanon. Syria does not unduly restrict the ability of its citizens to travel abroad if they have a good reason. They can get an exit visa. However a stateless Kurd does not have a passport and cannot therefore get an exit visa. Thus a stateless Kurd can only exit illegally. If he is abroad it would be very problematical whether he would be let back. The Home Office would be better placed to say. He did not know of any stateless Kurd seeking re-admission and being refused, but he could not see how he could get in. At paragraph 65 of his report of 5 November 2008 he had identified difficulties that exist for stateless Kurds even for travel within Syria. None of his reports had dealt with refusal of documentation. That would be a follow-up issue which would not come to him and was not within his knowledge.

He was then asked about the consequences/penalties for illegal exit only. He referred to paragraph 86 of his 5 November 2008 report which stated:

“Under law 42 of 31 December 1975… any Syrian national who departs his country illegally faces judicial consequences that may in principle result in up to three months imprisonment… the penalties for leaving Syria using false documents or a false identity are much stiffer: ranging from one month to two years…”

He was asked if law 42, which he said applied to a “Syrian national”, also applied to a stateless undocumented Kurd. He said that he did not know. For a stateless Kurd the law was what a secret policeman wanted it to be. On a return on emergency documents, problems could arise in refusal to approve return, or on return at the airport, or afterwards. He was asked if the Syrian authorities cared if stateless Kurds left the country. Dr George replied that the position was contradictory. They were sensitive to issues touching national unity, as the Government came from a minority group. It did not like to acknowledge problems. It tried to maintain the notion of a unity that embraces Kurds even if it is a fiction in terms of reality. Thus they would not wish to push Kurds out as this would go against the concept of unity.

Syria operates on an “as if” system, based upon presumptions that are not true in fact. Thus if Kurds behave as members of the national family then what happens in their private lives is not of real interest. Dr George later commented further in writing about the “as if” culture, which is described in a paper entitled “Ambiguities of Domination: Politics, Rhetoric and Symbols in Contemporary Syria by Lisa Wedeen, from which he quoted as follows.

“Asad’s cult operates as a disciplinary device, generating a politics of public dissimulation in which citizens act as if they revere their leader. A politics of "as if", while it may appear irrational or even foolish at first glance, actually proves politically effective".

Dr George was asked whether and if so which of the people identified in paragraphs 89-94 of his report of 5 November 2008 as being forcibly returned asylum seekers who had been arrested on return, were Kurds. He said he did not know. The names in the reports could be Druse or others. Some of the names are neutral. Some are not Kurdish. One them, Jihad Sha’ban Qabaqeebu could be a Kurdish name. The sources did not identify whether the individuals named had been involved in political activity. He added that he did not know of any instance of any arrests or intimidation of the Syrian families of demonstrators in UK. There was no follow up mechanism to monitor what happened after return. Amnesty International gave examples of what happened to some individuals.

He then referred to paragraph 10 of his report of 10 June 2008 concerning the identification by the Syrian authorities of demonstrators where he said;

“I would add that I have no information as to precisely how Syria's security services identify individual anti-regime demonstrators who had been photographed or filmed. I presume however that they would use a variety of techniques and sources of information, including information from informants….. Far more pertinent would be the risk of identification attendant on unavoidable encounters with the Syrian authorities in the course of his return. To the best of my knowledge, meanwhile, only a small number of Syrian Kurds are returned forcibly to Syria from the UK each year. I would assert that it is reasonable to suppose that the Syrian authorities will apply their photographic and film records to those relatively few individuals being returned. It would therefore be a relatively easy matter for them to establish whether a particular individual had taken part in an anti-regime demonstration whilst in London."

He added that identifying 5-10 individuals in a few weeks would not be hard. The names will be disclosed on applying for documentation. Some of the applicants might have files already. In the Middle East, people do not live anonymously. People live in extended families. They would not be returned in a vacuum. It was pointed out to him that the Home Office statistics were that there had been 70 recent returns from the UK to Syria over a period of 15 months. He observed that not everything that happened in Syria was reported. Human rights violations were very random. There is no free press. Also as there were few demonstrators they can readily be checked when applications for travel documents are made. Moreover these statistics included voluntary returns and were not broken down. There were many Syrian students in the UK.

That was the thrust of Dr George’s oral evidence given, as supplemented by his subsequent written comments. IA then gave his oral evidence concerning his political activities in the UK.

In his oral evidence, given to us through a Kurdish Kurmanji interpreter without any apparent difficulty or complaint, IA first adopted his written statement of 4 November 2008. In it, he said that he had attended in total about nine demonstrations organised by various organisations outside the Syrian Embassy in London. Some had been organised by Kurdish organisations and others by other groups opposed to the Syrian government. He was on the mailing list of the Syrian Human Rights Committee (SHRC), which is banned in Syria and based in London. He attached a number of e-mails and photographs to corroborate his attendance at demonstrations and also in particular to demonstrate the filming of the demonstrators from within the Embassy. He said he did not belong to any particular party or group because his loyalty was to the Kurdish people. At demonstrations he often carried a placard. He identified some of the dates on which he attended demonstrations, the last being on 6 June 2008. At each demonstration there was a film crew recording the demonstration and the coverage was shown on Arab media throughout the Middle East. Additionally at three of the demonstrations which he attended, he personally saw cameras in the Embassy filming the demonstrators.

IA then responded to questions put to him. He confirmed that the dates of the photographs were as in the index to the bundle and related to demonstrations on 7/10/06, 12/03/07, 29/02/08, 4/03/08, 6/06/08. There was also the YouTube film of the demonstration on 4/03/2008, which was attended by about 40 people. There had also been earlier demonstrations. He could not remember the date of the first but it was about a year after coming here. The photographs were taken by a friend. The YouTube video came from the SHRC, who had e-mailed him about it.

When it was pointed out to him that 29/2/06 (the date given by him for one demonstration) did not exist as 2006 was not a leap year, he accepted that he could have made a mistake about the precise date. In all he had attended 9 demonstrations. The attendance varied. It could be in the 100s, or 50s, or more or less. He confirmed that he was not an officer of any of the organising groups. He attended because he was Kurdish and he wanted the world to know how they have suffered. If Kurds did not go to demonstrations, they would not be fighting for their rights. He did not do anything else politically besides attending demonstrations, because he had been housed in Newcastle by NASS. London is a long way to travel. The Kurdish activities were based in London. If he had been housed in London his activities would have increased.

There was extensive further documentary evidence as itemised in the appendix hereto. We have taken it all into account in our conclusions even if we do not mention each item specifically outside the annexe. Much of it deals with matters that are not disputed, or is broadly repetitive of evidence given elsewhere, or is not the most recent evidence on the subject.

The legal framework for our determination is now provided by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (the “Qualification Regulations”), the Statement of Changes in Immigration Rules Cmnd 6918, and the AIT Practice Direction of 9 October 2006.

The burden of proof lies with the Appellant. The standard of proof in relation to both past and future events is that of “real risk”, otherwise expressed as “reasonable likelihood” or “serious possibility”. In assessing this we have adopted the approach described by the Court of Appeal in the leading case of Karanakaran [2000] IAR 271 CA, where the task of the Tribunal was described as this.

“It has to reach a well-rounded decision as to whether, in all the circumstances, there is a serious possibility of persecution for a Convention reason…This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending variously on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum-seeker's welfare if they should, in the event occur…..

What is relevant in the present context is the methodology they adopted. Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely. In my judgment, the tribunal's technique in Sayandan of evaluating both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate demonstrates a correct approach. It was also correct for it to assess the cumulative effect of the matters it was considering, particularly if there was a likelihood that they would all affect the applicant at the same time. It will be seen that that tribunal, whose decision predated Manohoran by three months, seems to have experienced no difficulty in deciding whether in the conditions it had evaluated it would be unduly harsh to expect the appellant to live in Colombo. The tribunal in the present case adopted a similar approach when it said that a common-sense approach, rather than a legalistic or formulaic approach, should be adopted (as opposed to considering whether it was more likely than not, or only a serious possibility, that conditions in Colombo would be unduly harsh).
The fact-finder must be careful, however, to evaluate each of the considerations suggested on behalf of the applicant. In my judgment it was completely wrong for the tribunal in the present case to dismiss considerations put forward by experts of the quality who wrote opinions on this case as "pure speculation". It was also quite wrong for it to say that certain matters were "not considerations which we should take into account" merely because in Robinson this court said that such considerations would not in themselves be enough to satisfy the requisite test. It was also wrong for it to consider each matter in isolation as opposed to considering their potential cumulative effect: see now Gnanam [1999] INLR 219 per Tuckey LJ.”

Mr O’Ryan has suggested in his written submissions that the Court of Appeal in paragraph 22 of MH (Iraq) v SSHD [2007] EWCA Civ 852 restated the principle that the burden of proof is discharged “by showing that there is a real as opposed to a fanciful risk”. If Mr O’Ryan intended to imply by this that the Court intended to redefine what is meant by “real risk” or in some way to lower the standard of proof, then we do not agree. Indeed the Court said in terms that it was restating the position that had existed since R. v. Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 A.C. 958 . The reality is that the Courts have over the years used equal and interchangeable expressions to reflect what falls above the line and what falls below. Thus “reasonable likelihood” is often used for “real risk”, and “mere possibility” as the converse. We do not consider that “fanciful risk” is materially different from “mere possibility”.

A refugee is defined in the Qualification Regulations as a person who falls within Article 1(A) of the 1951 Geneva Convention and to whom the exclusion clauses in regulation 7 do not apply. Article 1(A) describes a refugee as a person who

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Regulation 6(2) provides additionally that

“In deciding whether a person has a well founded fear of being persecuted, it is immaterial whether he actually possesses the racial, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecution.”

Regulation 5 describes what is required to amount to an act of persecution.

“(1)

In deciding whether a person is a refugee an act of persecution must be:

(a)

sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b)

an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).

(2)

An act of persecution may, for example, take the form of:

(a)

an act of physical or mental violence, including an act of sexual violence;

(b)

a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;

(c)

prosecution or punishment, which is disproportionate or discriminatory;

(d)

denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e)

prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7.

(3)

An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention.”