Refugees - insincere political activity in the UK
Applications for asylum are usually made by people who have fled from the authorities in their home countries or from other “agents of persecution” from whom the authorities in their home countries cannot protect them. However it is possible for people to become refugees after leaving their home countries. This can happen because of things which they themselves have done which may caused the authorities in their home countries to regard them with hostility or because of events in their home countries whereby people who have the asylum seeker's political or ethnic profile have become targeted. Such people are called refugees “sur place”. The circumstances of people who as a result of their own actions have developed a well founded fear of being persecuted in their home countries have always been seen as controversial.
In YB (Eritrea) v Secretary of State [2008] EWCA Civ 360 (15/04/2008) the Court of Appeal considered the case of a young Eritrean man whose original application for asylum was rejected by the Secretary of State in February of 2005. In his appeal against the refusal he relied not just on his activities in Eritrea but also upon activities conducted in the United Kingdom. In this country he had joined the Newcastle branch of the Eritrean Democratic Party (the “EDP”). This is the organisation banned in Eritrea for which YB had claimed to be working before he left Eritrea to seek international protection. YB came to be elected Chairman of the Newcastle branch of the EDP. He had also taken part in demonstrations outside the Eritrean embassy and he said that this would result in his having been identified by the Eritrean authorities. Because he would have been so identified he would face ill treatment if he were to be returned to Eritrea.
The Immigration Judge who heard his appeal disbelieved almost everything that YB told him about his activities in Eritrea. But his determination was found to contain material errors of law and the appeal was reheard by a panel, which also dismissed it. They did however accept that YB’s evidence as to his political activities in the UK was true. But about this they said:
“The Tribunal has also decided in the case of Danian that a claimant is not entitled to asylum if he has manufactured his claim by reason of his activities in the United Kingdom. In our view there is an element of deliberation in the evidence that has been presented. It is not usual behaviour in our view for photographs to be taken of meetings. In our view the appellant has deliberately recorded his participation in political meetings to assist his claim for asylum. We are not prepared to go so far as to say that this was the only reason why he became involved in the party in the UK. [Counsel for YB] was not able to point us to any authorities or objective material which indicated that the authorities in Eritrea have the means and the inclination to monitor the activities of expatriates in the United Kingdom, particularly those who operate from Newcastle. Even if photographs were taken by the Eritreans of the demonstration outside the embassy, it is unlikely that they would be able to identify him from these photos and put his name on a list of persons to be detained at the airport. Whilst the objective material paints a bleak picture of the suppression of political opponents by the government, the appellant has failed to satisfy us to the appropriate standard that his activities in this country would put him at risk of ill treatment on his return.”
In fact, as the Court of Appeal pointed out in its judgment allowing YB’s appeal from the Tribunal’s determination, the Immigration Appeal Tribunal’s determination in Danian v Secretary of State (16494) (09/06/1998) had been overturned in the Court of Appeal’s judgment in the same case (Danian v Secretary of State [2000] Imm AR 96). The Court of Appeal had held that a refugee sur place who had acted in bad faith could not be removed to his home country if he had a well-founded fear of persecution there.
Moreover since then there had been Council Directive 2004/83/EC of 29th April 2004 on 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 – more easily referred to as “the Qualification Directive”. This had been implemented in the UK via changes in the immigration rules and by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Article 5 of the Directive of states, under the heading “International protection needs arising sur place”:
“1. A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin.
2. 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…”
And Article 4 (3) states
“The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account…
(d) 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.”
The immigration rules now provide, at rule 339P:
“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 Court of Appeal’s judgment contains a valuable examination of these three “formulations”. Having examined them however it concluded that none of them made it impossible for someone successfully to seek asylum on the basis of his or her “opportunistic activity sur place”. Instead the rule and the Directive made a distinction between political activities undertaken in the “host country” by someone who had been believed to have been politically active in his or her own country and those undertaken by someone who had not been so believed. There was no law which expressed the principle which the Tribunal had taken from the overturned decision in Danian. The Court also made the important point that the reasoning expressed by the Tribunal in that case had bordered on the perverse. It explained this remark as follows:
“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”.
Despite the danger of such a principle’s being perverse the Court noted that at Article 5 (3) the Directive did – “perhaps oddly” - state that Member States could refuse to grant refugee status to people who made repeat applications for asylum on the basis of their opportunistic and bad faith political activities. (The oddness presumably consists of the fact that by not protecting such people from being returned to their home countries by granting them refugee status Member States would be sending them back to be persecuted).
The Court had however also to attempt to explain what was intended by Article 4 (3) of the Directive. It decided that its purpose wasn’t the same as the discredited reasoning in the Immigration Appeal Tribunal’s determination in Danian – but instead that it must be to indicate the possibility that a finding could be made to the effect that someone who has been found to have undertaken insincere and opportunistic political activities in the UK would not be at risk of persecution since the authorities in his or her home country will see such activities for what they were (i.e. insincere and opportunistic).
The absence of any legal basis for the Tribunal’s view of the appropriate approach to opportunistic political activity in the host country did not on its own lead to the Court of Appeal’s decision to send the case back to it for rehearing – the Court was unrestrained in its criticism of the Tribunal’s reasoning to the effect that because YB had not provided evidence
“which indicated that the authorities in Eritrea have the means and the inclination to monitor the activities of expatriates in the United Kingdom, particularly those who operate from Newcastle”
and its reliance on the absence of such evidence to support its conclusion that YB would not be at risk upon his enforced return. The Court stated that this was a finding “which risks losing touch with reality”. Where a Tribunal had objective evidence of a regime’s practices in suppressing its political opponents it required:
“...little or no evidence to arrive at a strong possibility – and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed.”
What mattered was instead what the consequences of being so identified would be for the individual concerned – and whether the regime would recognise an opportunist simply as “a hanger on with no real commitment to the oppositionist cause” which was the matter with which Article 4 (3) (d) was concerned.
