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Asylum based on political activities in the UK
By Taffy
Nyawanza
Posted to
the web: 20/10/2008 13:57:27
THE case of YB Eritrea v SSHD [2008] EWCA
Civ 360 is an important Court of Appeal decision, especially
for those who make asylum claims based on activities in the UK.
The case involved a 28-year-old Eritrean man who arrived in the UK in November 2004 and claimed asylum on arrival. He had used his own passport to travel to the UK, with a lawfully obtained student visa.
After a tortuous appeals route, the matter finally came before the Court of Appeal. The appellant’s claim was based on fear of persecution for his political activities in Eritrea, but also for political activities in the UK.
The part of his case concerning activities in Eritrea was dismissed out of hand, and so the main issue before the Court related to his UK political activities.
But although it had been accepted by the lower courts that the appellant was a regional chairman of his party in the UK; that he had attended a demonstration outside the embassy, and that he had done a lot of work for his party in the United Kingdom, he was faced with the argument that he was not a genuine claimant, and that he had only participated in oppositionist political activities in the UK in order to manufacture a claim.
The Court of Appeal discussed the law on what are known as sur place activities. These are activities that take place after a person leaves their own country, and the person relies on them to make an asylum claim.
The Court analysed the different formulations of the position of the law on this point, and concluded that while there is a distinction between those who are genuine political operatives, and those who manufacture their claims by engaging in self-serving political activities in the UK, this is not critical and ultimately even opportunistic activity sur place is not an automatic bar to asylum. It all boils down to credibility and whether the activities in question will expose the applicant to persecution or serious harm if returned.
The twist in the case however, was that the original court had misapplied the law on this point, by relying on an old case called Danian. But that case had in fact been subsequently reversed by the Court of Appeal. Lord Justice Sedley expressed his annoyance that the lower Tribunal had not followed the newer and more authoritative decision.
He berated the Tribunal and said that: “They have...manifestly overlooked this court’s reversal of that decision (see [2000] Imm AR 96). This is far from the first time in recent years that the AIT has either ignored or overlooked decisions of this court. It should never happen, and there is no logistical or other reason why it should."
The Home Office accepted the error of the previous decision but relied on the argument that there was no evidence that the Eritrean authorities had the means and the inclination to monitor the activities of expatriates in this country, or be able to identify the appellant from photographs of the demonstration.
The Court of Appeal said that this finding risked losing contact with reality because the tribunal had been shown evidence which demonstrated that the Eritrean government suppresses political opponents.
In such instances therefore, the court stated that it required little or no evidence or speculation to arrive at a strong possibility – and perhaps more – that its foreign operatives 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.
The Court also said that it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups.
The Court then concluded and said that the real question for the individual claimant is whether he, if identified in a photograph, is just a hanger-on, or someone with a real commitment to the political cause.
The relevance for Zimbabwe, an equally brutal and capricious regime, is that the current Country of Origin Information Report on Zimbabwe confirms that:
“Regarding the range and scope of CIO activities, a number of news reports over the past couple of years have suggested that the security service has set up surveillance missions to monitor opposition activities in neighbouring countries, and even possibly infiltrating opposition groups in the United Kingdom.
A report broadcast by SW Radio Africa (Zimbabwe news) in July 2005 stated that: “There is mounting concern that a significant number of state security agents from Zimbabwe are infiltrating groups in the UK under the pretext of helping asylum seekers or even claiming asylum themselves. Several meetings have been disrupted by rowdy elements who claim to be genuine activists. The growing fear is that Mugabe is sending spies into the UK who will be collecting information on activists in the country…” [89aj]
The Institute for War and Peace Reporting noted on the 23 June 2006, that Mugabe had CIO operatives working in Britain."
The current Country Guidance case on Zimbabwe, HS (Returning Asylum Seekers) Zimbabwe v. SSHD CG [2007] UKAIT 00094 also confirms this and states that:
“…the regime has invested considerable resources in seeking to infiltrate groups in the United Kingdom to identify those who support the opposition or who are “activists in the country."
A few things to take from the YB case therefore would be;
• A person may make an asylum claim based entirely on activities in the UK.
• It does not matter that these activities may have been motivated by a desire to obtain stay in the UK. Ultimately, this is ultimately a question of credibility.
• For the avoidance of doubt, 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.
• It is more credible however where the claimant has involved himself in UK activities and it can be established that the activities relied upon are a continuation of activities in his country of origin.
• The real question for the individual claimant is whether he can be described as a just a hanger-on, or someone with a real commitment to the political cause
• Finally, where a government suppresses political plurality at home, it is a logical conclusion that they would also monitor political activists abroad, especially those that demonstrate outside their embassies.
Needless to say
that these are broad principles, and every case ultimately turns on
its own facts.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham.
He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025
or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk.
Disclaimer:
This article only provides general information and guidance on immigration
law. It is not intended to replace the advice or services of a solicitor.
The specific facts that apply to your matter may make the outcome different
than would be anticipated by you. The writer will not accept any liability
for any claims or inconvenience as a result of the use of this information.
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