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Asylum by published photo
By Taffy
Nyawanza
Posted to
the web: 14/01/2009 04:11:57
IT WOULD appear
that the Court of Appeal is having a debate with itself.
In the space of a week in April 2008, the Court passed two decisions which seem to contradict each other. The cases discuss the issue of photographs of political demonstrations here in the UK which are posted on the web and then used as a basis of an asylum claim.
In a typical case involving internet photographs, an asylum seeker will not have much of a political profile in his home country but will have attended a couple of demonstrations in the UK and been photographed at the meetings, typically in the centre of a large boisterous crowd of fellow countrymen, wrapped casually in the home country flag, holding a banner with a stern message for the despot back home.
The pictures will then appear on the internet and an asylum claim is then mounted on the basis that if returned, the authorities in the home country will be able to identify the applicant from the pictures on the web and arrest and ill-treat him.
The big debate is about whether such pictures are staged and therefore self-serving and opportunistic, and if so, should an asylum claim succeed in those circumstances.
I recently commented on one of the cases on this column. It is the case called YB (Eritrea) v SSHD [2008] EWCA Civ 360 in which a 28-year-old Eritrean man produced before the court internet photographs of himself attending a demonstration outside the Eritrean embassy.
The Court of Appeal in that case concluded that whilst some people may manufacture claims by engaging in self-serving political activities in the UK, this is irrelevant because even opportunistic political activity is not an automatic bar to asylum.
The Court said it should be a question of credibility and whether the activities in question will expose the applicant to persecution or serious harm if returned.
This is known as the Danian point, from the case that made the point. In YB (Eritrea), the Court of Appeal said that what was important was the fact that the Eritrean government is a repressive regime which suppresses political opponents. In such instances therefore, it required little imagination to conclude that its foreign staff not only film or photograph their nationals who demonstrate in public against the regime but have their informers who can name the people who are filmed or photographed.
The other decision from the same court is the case of SS (Iran) v SSHD [2008] EWCA civ 310 which the Home Office Presenting Officers (HOPOs) love and which they have been gleefully waving in the faces of judges in the courts to counter the arguments in the Eritrean decision.
The case also involved a young man who demonstrated outside the Iranian embassy in London and the pictures of that demonstration were also posted on the web as well as a Swedish television channel. The issue was whether the Iranian authorities would monitor the website or television station concerned and would be able to identify him as one of the people in the photograph or the film.
The court referred to what it called practical common sense considerations and said that there must be a limit as to how far an applicant for asylum is entitled to rely upon publicity about his activities in the UK against the government of the country to which he is liable to be returned.
The court quoted the Judge of first instance and asked the rhetorical question, “Is every person present at Komala Party activities in the UK to be entitled to asylum by providing a photograph of himself during those activities?”
You can see why the HOPOs love this decision.
I think it can be argued, however, that there is no tension in the two decisions. The first one, given by Mr Justice Sedley, who incidentally also sat on the second one but did not give its main speech, emphasises 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.
I would further distinguish the second case on the basis that the applicant attended just a single demonstration. A pattern of attendance is therefore more compelling evidence of commitment to a political cause.
Further, the website where the pictures are posted should be a key part of the argument. If it is an obscure website and has few hits, the argument that there is risk of identification will be tenuous. Empirical evidence of how popular the specific website is should therefore be party of the evidence submitted in support of the claim.
In the Zimbabwean context, websites such as the ZimVigil or New Zimbabwe.com which often carry such pictures, are community websites, and therefore popular and they, among others, have been specifically singled out and blacklisted by the Mugabe regime. This is documented.
Perhaps even more compelling is the well known fact that the Mugabe regime spends what little resources it receives, not in paying for scarce medication and much needed food back home, but in funding the CIO who have set up surveillance missions to monitor opposition activities in neighbouring countries, and even the United Kingdom. Again, this is documented.
The Eritrean and Iranian cases can therefore be distinguished and ultimately the political profile of the individual claimant will make all the difference. In fact, the Iranian decision underlines that argument by stating that it is not enough for an applicant simply to establish that he was involved in activities which were relatively limited in duration and importance.
To succeed in an
asylum claim based on the “photographs on the internet”
argument therefore requires the applicant to demonstrate that he has
a political profile beyond just a single photograph.
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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