Refugee law in the UK

Transcription

1 Refugee law in the UK Obtaining and losing refugee status in the UK by Colin Yeo

2 (c) Colin Yeo 2014 All rights reserved. Copying and printing prohibited without written permission. Quite a lot of effort went into producing these materials: please report breach of copyright. Version 1.0 Image credits Pinnochio by Grand Parc Bordeaux, France, on Flickr Globe by Kenneth Lu, on Flickr Woman with megaphone by Grégoire Lannoy, on Flickr Policing a demonstration by Paul Townsend, on Flickr Children at a refugee camp in Sudan depict a Janjaweed attack. Sourced from Wikipedia Commons.

3 CONTENTS Introduction 4 Definition of a refugee 5 The Convention definition 5 Sources of interpretation 6 UNHCR 7 EU law 9 Case law 10 Scholars 10 Well founded fear 11 Standard of proof 11 Method of assessment 12 Benefit of the doubt 13 Truthfulness 15 Making a positive case 16 Narrative inconsistencies 17 Plausibility 21 Proven dishonesty 25 Demeanour 26 Delayed asylum claims 27 Safe third countries 28 Asylum and Immigration (Treatment of Claimants etc) Act Future risk 32 Country situation 32 Relevance of past experiences to future risk 38 Specific individual risk 39 Generic risk cases 40 Sur place claims and activities in the sanctuary state 41 Future activities 45 Of being persecuted 50 Actors of persecution 50 Acts of persecution 51 Sources of guidance and interpretation 51 Qualification Directive definition 53 Copying and circulation prohibited Page 1 of 105 (c) Colin Yeo 2014

4 Nature or repetition 54 Level of seriousness 55 Cumulative in nature 56 Discrimination and being persecuted 57 Impact on the particular individual 58 Human rights analysis 60 Role of Convention reasons 61 Prosecution and persecution 64 Military service 66 Civil war 70 Convention reasons 72 Race 72 Religion 72 Nationality 73 Membership of a particular social group 73 Shah and Islam 74 Qualification Directive 78 Political opinion 79 Attributed Convention reasons 80 Protection and relocation 81 System of protection 81 Qualification Directive 81 Sufficiency of protection 82 Extent of the duty to protect 84 Severe persecution 87 State and non-state persecution 88 Criticisms 90 Internal relocation 91 Qualification Directive 92 Case law 93 Cessation, exclusion and refoulement 97 Cessation 97 Change of country circumstances 98 Re-availing and re-establishing 99 Copying and circulation prohibited Page 2 of 105 (c) Colin Yeo 2014

5 Exclusion and refoulement 99 Article 1F 99 Article 1D 103 Article Article Copying and circulation prohibited Page 3 of 105 (c) Colin Yeo 2014

6 INTRODUCTION The 1951 UN Convention on the Status of Refugees is said to be the legal instrument that has saved the most lives in human history. It is a hugely important convention and understanding its terms and how it operates in practice in the refugee status determination process is, inevitably, critically important for any lawyer practicing in refugee and asylum law. In this ebook I have set out to provide an accessible guide to the meaning of the refugee definition. I have included what I hope is useful material on how the refugee definition operates in practice in the UK. Common arguments, scenarios and examples are deployed to try and give life to the definition. The last part of the ebook looks fairly briefly at the cessation, exclusion and refoulement clauses of the convention. I hope the ebook is useful and interesting. If you would like to claim CPD hours for reading this material, head over to and sign up as a member. Membership starts at 50 per person for groups of 10 and gives access to a growing suite of immigration training resources. Do get in touch if you have comments or suggestions. October 2014 Copying and circulation prohibited Page 4 of 105 (c) Colin Yeo 2014

7 DEFINITION OF A REFUGEE The Convention definition In this ebook reference is made throughout to 'the Refugee Convention' or just 'the Convention'. The full title is the 1951 UN Convention on the Status of Refugees (read with the 1967 New York Protocol to which most states signed up). The Convention was passed by a special United Nations conference on 28 July 1951 and entered into force on 22 April It was initially backward looking and was limited to protecting European refugees from before 1 January The 1967 Protocol gave the Convention new life, making it a living, forward looking instrument that offered protection on an ongoing basis. The Convention runs to 46 Articles but there is only one that is addressed in detail in this ebook. This are Article 1, which provides the definition of a refugee and certain cessation and exclusion clauses. Articles 31, 32 and 33 are also relevant to refugee lawyers, providing protection against prosecution for illegal entry and protection against expulsion (technically refoulement ) with certain exceptions provided for. The refugee definition is set out at Article 1(A)(2) as a person who: Owing to 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 is unable or, owing to such fear, unwilling to return to it. Copying and circulation prohibited Page 5 of 105 (c) Colin Yeo 2014

8 The definition can be broken into its constituent parts: We examine and explore each of these constituent parts in detail below. While examining the different parts of the definition in turn is a helpful way to explore the Convention, it is also important to bear in mind that the definition operates as a whole and the different parts interrelate with one another. In particular, the Convention reasons are highly relevant to interpreting and understanding the meaning of being persecuted and being unable or unwilling to obtain protection. First of all, though, it is important to consider what sources might help us understand and interpret the refugee definition. Sources of interpretation The Refugee Convention is international in scope. It has to be understood and interpreted in many counties. Any divergence in understanding or interpretation would lead to different protection regimes in different countries and might lead to what governments sometimes call forum shopping, Copying and circulation prohibited Page 6 of 105 (c) Colin Yeo 2014

9 where refugees who are able choose to flee to one country over another because it has a more generous approach to granting asylum. Bright green = parties to 1951 Convention only Yellow = parties to 1967 Protocol only Dark green = parties to Convention and Protocol Grey = non parties On top of that, the Convention has existed for over sixty years so it will be no surprise that during that time, courts, institutions and others have grappled with the meaning. On the whole, a common understanding has largely been reached. International comparisons are beyond the scope of this ebook, though, which focuses on the approach to and interpretation of the Convention in the UK. UNHCR The United Nations High Commission for Refugees is effectively the international guardian of the Refugee Convention. Because UNHCR is truly international and it is specifically tasked by the UN with safeguarding refugees, what UNHCR says about the meaning of the Convention is generally considered to be very important. Copying and circulation prohibited Page 7 of 105 (c) Colin Yeo 2014

10 The Handbook on Procedures and Criteria for Determining Refugee Status ( UNHCR Handbook ), originally published by UNHCR in 1978 in Geneva and reissued and updated in 2011, is a fundamental text for any student or practitioner of refugee law. UNHCR also gives occasional guidance on refugee law and protection beyond the UNHCR Handbook. These guidance documents are collected in the UNHCR Protection Handbook. One particularly helpful and informative series is called the Guidelines on International Protection, which covers a range of specific issues: No. 10: Claims to Refugee Status related to Military Service No. 9: Sexual Orientation and/or Gender Identity No. 8: Child Asylum Claims No. 7: Victims of Trafficking and Persons at Risk of Being Trafficked No. 6: Religion-Based Refugee Claims No. 5: Exclusion Clauses: Article 1F No. 4: Internal Flight or Relocation Alternative No. 3: Cessation of Refugee Status under Article 1C(5) and (6) No. 2: Membership of a Particular Social Group No. 1: Gender-Related Persecution Another useful UNHCR series for those acting in refugee protection claims is the Eligibility Guidelines series. These documents are country-specific and examine particular issues and risk groups in the country concerned. Copying and circulation prohibited Page 8 of 105 (c) Colin Yeo 2014

11 In the UK, UNHCR guidance is in theory given considerable weight by the Home Office and the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal (referred to here for convenience collectively as the immigration tribunal ). However, guidance is not accepted uncritically nor its entirety. Instead, it tends to be assimilated into further national guidance documents. For the Home Office these are the country information reports and policy documents and for the tribunal these are the Country Guidance cases of the Upper Tribunal. Ultimately, the UNHCR guidance is only one of the sources of law and/or country information that will be taken into account. EU law The European Union has been seeking to harmonise asylum process and law for many years now. One of the biggest steps in this direction was the adoption in 2004 of EC Council Directive 2004/83/EC of 29 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. This is referred to day to day as the Qualification Directive as it sets out the definitions of those who qualify for protection. It is now a critical document within the EU for anyone seeking to understand and interpret the meaning of the Refugee Convention. The Qualification Directive has been transposed into UK law through the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) and modifications to the asylum section of the Immigration Rules at Part 11. Because the Directive is directly effective, is referred to in other EU states and judgments of the Court of Justice of the European Union and because the UK transposition was incomplete, most Copying and circulation prohibited Page 9 of 105 (c) Colin Yeo 2014

12 lawyers and judges refer directly to the Directive itself rather than the UK regulations. Case law In the UK, judicial decisions from the Immigration and Asylum Chamber of the Upper Tribunal (and its predecessors), the High Court, the Court of Appeal, the House of Lords and Supreme Court, the European Court of Human Rights and the Court of Justice of the European Union provide additional guidance on the interpretation of the Refugee Convention. Because the Convention is international in nature, it is also possible to look further afield, for example to the case law of the highest courts of Canada, America, New Zealand and Australia. There is a substantial body of this case law and while it has to a significant extent been replaced by the Qualification Directive it can still help illuminate the meaning and interpretation of the Refugee Convention. Scholars The works of legal scholars have often cast light upon the proper approach to the Convention and have been influential on UNHCR and in case law. Grahl Madsen, Goodwin Gill and Hathaway are considered the three leading international scholars on refugee law and a serious student will want to read their works. For UK based practitioners, Symes and Jorro s Asylum Law and Practice is a very useful reference book with some invaluable footnotes. Copying and circulation prohibited Page 10 of 105 (c) Colin Yeo 2014

13 WELL FOUNDED FEAR The first of the elements of the refugee definition is the possession of a well founded fear. There are two key aspects to this. The first, which is sometimes over emphasised, is truthfulness or credibility: is an asylum claimant telling the truth about what happened to him or her in the past? If the asylum claimant cannot establish they he to she is telling the truth about past events, it is unlikely (but not impossible) that he or she will be able to show a well founded fear. This is sometimes referred to as the subjective element to well found fear. The second aspect is future risk. The asylum claimant might genuinely fear return, but is that fear well founded in the sense of there being a sufficient likelihood of those fears being realised? This is sometimes referred to as the objective element of well founded fear. Relevant to both these aspects of well founded fear is the standard of proof. To what standard does the asylum claimant need to prove past events and what level of risk is needed for the risk to be considered well founded? Standard of proof An asylum seeker who has fled his or her home and reached another country will face some very serious difficulties in proving that his or her account of what happened is true. Cynicism is rampant amongst case-hardened officials, judges and lawyers. Little or no evidence will have been brought with the refugee on their journey to safety, it will be hard or impossible to obtain evidence from the home country and any evidence that is obtained is often alleged to be capable of being forged. Events in far off lands Cynicism is rampant amongst casehardened officials, judges and lawyers. Copying and circulation prohibited Page 11 of 105 (c) Colin Yeo 2014

14 may well seem implausible or incredible to those residing in the luxury of a stable and comfortable environment. The actions of people from a very different country and culture may seem perplexing and even irrational. At the same time, though, the stakes could not be higher. A wrong decision in a refugee protection claim can be a death sentence. For both these reasons the difficulty in establishing past facts and the consequences of making a wrong decision the standard of proof in asylum claims is a low one. Method of assessment In the UK, the standard of proof for both past and future aspects of wellfounded fear is that of a reasonable degree of likelihood, which is lower than and different to the civil standard of the balance of probabilities. It has also been expressed as substantial grounds for believing or real risk. The leading case is Ravichandran [1996] Imm AR 97. The correct approach was expanded upon by the Court of Appeal in an important and often misunderstood case, Karanakaran [2000] Imm AR 271. The court found that the whole concept of a legal standard of proof is inappropriate in asylum cases. Instead of probabilities being artificially elevated to certainties once a probability threshold is crossed the balance of probabilities in civil cases or beyond reasonable doubt in criminal cases a decision-maker should simply evaluate the risk on the basis of relevant evidence. Sedley LJ described the normal standard of proof approach to fact finding as a pragmatic legal fiction and went on to hold that: No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. Copying and circulation prohibited Page 12 of 105 (c) Colin Yeo 2014

15 In the same judgment, Brooke LJ endorsed the approach of an earlier tribunal and held that the first three of the following four categories of evidence identified by a decision maker are relevant for this purpose: (i) evidence they are certain about (ii) evidence they think is probably true (iii) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true (iv) evidence to which they are not willing to attach any credence at all. He goes on to say: when considering whether there is a serious possibility of persecution for a Convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur. So, it is often said that there is a low standard of proof in asylum cases. It would be more accurate to say that the conventional standard of proof approach is not the correct one and it is instead a matter of evaluating all the available evidence and only discarding that to which no credence at all may be attached. Benefit of the doubt Because of the difficulties inherent in proving a claim to refugee status it is sometimes said that refugees should be given the benefit of the doubt. See, for example, paragraph 203 of the UNHCR Handbook: After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As Copying and circulation prohibited Page 13 of 105 (c) Colin Yeo 2014

16 explained above (paragraph 196), it is hardly possible for a refugee to prove every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. UNHCR go on to say that the benefit of the doubt only need be given where the account is generally credible. This is broadly mirrored in the Qualification Directive at Article 4(5)), which can be read as providing a framework for trying to evidence an asylum claim: Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met: (a) the applicant has made a genuine effort to substantiate his application; (b) all relevant elements, at the applicant's disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given; (c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant's case; (d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and (e) the general credibility of the applicant has been established. Copying and circulation prohibited Page 14 of 105 (c) Colin Yeo 2014

17 Example Julia claims asylum. She relies entirely on her word to make her claim and hopes that the benefit of the doubt will be exercised in her favour. Hermione claims asylum and attempts to obtain corroborating evidence about what happened to her in her country. She writes to former colleagues but they do not reply, she phones her brother but he is too afraid to speak to her, she tried instructing a lawyer to obtain copies of court documents but he finds that he cannot get access. She explains all this in her witness statement and shows evidence of her attempts (phone records, copies of letters, lawyer s letter). The fact that she has made every effort to try to obtain evidence will cast her in a better light and garner additional sympathy. It should also assist by complying with the expectations of the Qualification Directive. Truthfulness How does one person judge the truthfulness of another? Witch dunking was once a popular way of ascertaining truth. Modern asylum claim determination sometimes seems directly descended from this trial by ordeal. The whole exercise of judging truthfulness is particularly problematic where the other person comes from a different culture and country and the events he or she experienced are so beyond the direct experience of the judge that they may be all but unimaginable. To avoid at least the appearance of making judgments on truthfulness based on mere gut instinct a number of different rules or measures have developed that are thought by some to provide a more accurate means of assessing credibility in asylum cases. The most frequently decisive of these are whether there are internal inconsistencies between the different accounts an asylum seeker has given of their experiences, whether the account in some way seems implausible to the decision maker and whether the country information provides other similar instances of persecution. Copying and circulation prohibited Page 15 of 105 (c) Colin Yeo 2014

18 Unfortunately, it is all too common to see Home Office refusal letters and judge determinations that assert events are implausible without reference to country information and minor inconsistencies being highlighted and used to reject an account. Making a positive case It is all too easy to lapse into a preemptive, reactive and ultimately negative mode in preparing and presenting an asylum case. Worry about the potential reasons for refusal may cause omission of the making of a positive case as to why the claimant should be believed and recognised as a refugee. The logic of some refusal decisions is so transparently nonsensical and absurd that one is left with the impression that the reasons for refusal are in fact excuses for refusal; that the decision maker has decided for other reasons to reject the case -- perhaps because he or she simply does not Copying and circulation prohibited Page 16 of 105 (c) Colin Yeo 2014

19 believe the applicant -- but has then looked for acceptable and objectiveseeming reasons for doing so. Making a strong positive case for refugee status to be granted may reduce the danger of this topsy turvy approach to status determination. Narrative inconsistencies Making a claim for refugee status in the UK involves repeatedly giving an account of past events. Typically, this can occur at an initial screening interview, a witness statement submitted prior to a full asylum interview, at the full asylum interview, in a further witness statement before a tribunal hearing and at a tribunal hearing. Most lawyers and judges understand in theory that it is difficult or even impossible accurately to recount a narrative account in exactly the same way on multiple occasions, even where one is well educated, is not a victim of trauma, does not have to use different interpreters on different occasions, understands the importance of consistency, is practiced in doing so and is trained in the western narrative tradition. Recalling and recounting is not like replaying a video tape. That understanding is sometimes in short supply when it comes to the refugee status determination process, unfortunately. Copying and circulation prohibited Page 17 of 105 (c) Colin Yeo 2014

20 The fundamental problem seems to be that civil servants and judges feel that they have to be able to distinguish between true and false accounts of past events, and consistency is one of the few determinants available to help them do so. On the very detailed and abstract scrutiny to which asylum claims are subject, though, almost any claim including ones that ultimately succeed will be found to include inconsistencies and discrepancies. A finding that the claimant is a liar should be reserved for cases where the inconsistencies are major and touch on core events. This approach is not always followed in practice: even quite minor differences between accounts can be cited as reasons for refusal both by the Home Office and by many immigration judges. The most important functions a lawyer or adviser can perform for an asylum seeker are therefore to take full and accurate instructions, ensure the asylum seeker is prepared for interview, ensure any witness statement does not introduce unnecessary new inconsistencies and address any pre-existing inconsistencies. Potentially good explanations for alleged inconsistencies might include: Past trauma Victims of trauma cannot be expected to give a consistent account. No physical brain injury is required, but it may need spelling out to a decision maker that one of the effects of trauma on the human mind is to damage the ability to make, store and recall memories. If academic references are needed for what should be common sense, the work of the Centre for the Study of Emotion and Law can be a useful It is simply unrealistic to think that victims of horrendous and deeply humiliating experiences will tell a complete stranger at the first possible opportunity. Copying and circulation prohibited Page 18 of 105 (c) Colin Yeo 2014

21 reference point. Humiliation All lawyers and judges should by now appreciate that rape victims often do not inform anyone of the rape in its immediate aftermath. The same is true of torture, trafficking and other trauma survivors. It is simply unrealistic to think that victims of horrendous and deeply humiliating experiences will tell a complete stranger at the first possible opportunity. Trust is a prerequisite to disclosure for many such people. Passage of time Some of us find it hard enough to remember what happened yesterday, never mind last week, last month or several years ago. Passage of time and natural degradation of stored memories may well lead to a person recalling events differently on two or more different occasions. There is a widespread assumption that important events will stand out in a person s mind distinctly and with clarity, but there is no research or reason to support this homespun supposition. Elision Studies show that where a person has experienced similar events on multiple occasions, specific memories of distinct events may be elided and confused. For example, where a person was arrested and detained several times, memories of the different events and their duration and what happened on each occasion may well be combined and confused, making it impossible to recall the distinct events accurately on different occasions later on. Interpreter issues Interpreting from one language to another is not a precise science and it is practiced by human beings who themselves tire and make mistakes. While many judges frown on perceived attempts to blame interpreters for Copying and circulation prohibited Page 19 of 105 (c) Colin Yeo 2014

22 problems, an explanation of what went wrong, for example with specific words or idioms or with concepts that were alien to the interpreter, may be persuasive. Poor questioning The way in which questions are asked will profoundly influence the answers that are provided. The power dynamics of an interview should always be recalled. Where a person is detained, is accustomed to giving deference to officials or is simply afraid, he or she is likely to give answers they perceive to be pleasing to the questioner. This can be exacerbated where the interviewer is late, appears aggressive through questions or even posture, asks questions in an unnatural reverse chronological order and where breaks are not regularly given. Elaboration The asylum process is exactly that, a process. More and more detail is obtained from the asylum seeker as the process goes on, and indeed each stage in the process is intended and designed to obtain further and better information. When further information is provided, that does not prevent the Home Office arguing that late disclosure is a sign of manufacture of evidence, particularly if in response to a reasons for refusal letter. Sometimes it can be helpful in response to remind a judge of the nature of the asylum process. One would expect that given the consequences of an incorrect decision in an asylum claim and the acknowledged imperfection of the tools available for investigating an asylum claim, any inconsistencies or discrepancies would be put to a witness before an adverse inference was drawn. This rarely occurs in practice at the initial decision stage in the UK, meaning that an asylum claimant may only find out in a refusal decision that there are allegations of inconsistency that he or she might well have been able to Copying and circulation prohibited Page 20 of 105 (c) Colin Yeo 2014

23 address and explain if given the opportunity. As far as possible any such problems should be anticipated and the interview record reviewed for potential issues: a contemporaneous challenge to an interview record is far more likely to be effective than one late in the appeal process. There is no such thing as perfect recall and no human being is capable of giving a completely consistent account of the same events on different occasions. The reasons for this lie in the way that memories are made. Firstly memories must be recorded. Bystanders to the same events always perceive the same events differently and attach significance to different aspects of those events. The human brain searches for patterns and where information is absent (or even where it is present sometimes) the brain completes the picture by filling in blanks. Secondly, memories must be stored. Sometimes memories are simply lost or partially lost and blanks filled in. Minor aspects of events, such as sensations, may be recalled long after the event even though major events are forgotten. The passage of time generally degrades memories. Thirdly, memories must then be recalled and recounted. There is ample opportunity for memories to be recalled differently on different occasions. For example, the use of leading questions will often change the way that memories are recalled, particularly in children. Plausibility An asylum claimant who relies on fantastical facts as the basis for his or her asylum claim is very unlikely to be able to establish a well founded fear of being persecuted on his or her return to the country of nationality or habitual residence. If the decision maker does not believe that the events might have taken place as described then it will usually follow that any future fears are equally fictitious. Copying and circulation prohibited Page 21 of 105 (c) Colin Yeo 2014

24 Judging the plausibility of events in a far off land in circumstances completely beyond the personal experience of the decision maker is very difficult, though, as the Court of Appeal recognised in the case of HK v Secretary of State for the Home Department [2006] EWCA Civ Neuberger LJ, as he then was, held as follows at paragraph 29: Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. Copying and circulation prohibited Page 22 of 105 (c) Colin Yeo 2014

25 The distinction drawn between probability and plausibility is an important one. It may be improbable that when two dice are thrown the outcome will be a double six. It is perfectly plausible, however. Improbable things happen all the time. It follows that if the decision maker should seek to inform him or herself of the context in the country concerned and avoid superimposing their own assumptions about behaviour and plausibility. Country information and expert evidence should therefore be critically important when assessing plausibility. There are many quotations from case law to this effect, but one of the most frequently cited is from Horvath [1999] INLR 7: One cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of what is known about the conditions in the claimant s country of origin. The more specific the country information to the facts described by the applicant, the better. For example, if it is asserted that release from detention was achieve by way of a bribe, then evidence of corruption and bribery, particularly in the context of the police and penal system, would be helpful. If it is asserted that a town or village was attacked on a certain There are some classic issues which decision makers in the United Kingdom seem to have particular difficulty accepting as plausible. Where these arise, particular care may need to be taken in sourcing country information and providing a detailed explanation of events and their context. Behaviour of applicant Refusals of asylum claims will often suggest that a genuine refugee who was in fear or his or her life would not have acted as the applicant claims he or she did. For example, the applicant would have left the country sooner, would not have travelled on his or her own passport, would not have been Copying and circulation prohibited Page 23 of 105 (c) Colin Yeo 2014

26 sufficiently brave to have acted in a certain way and so on. Some specific examples of these behavioural expectations are explored below. This type of reason for refusal will almost always be based entirely on the opinion and experience of the decision maker. Actions of others Equally common is that the decision maker does not believe that other actors in the applicant's narrative would have acted as the applicant asserts. For example, a militant extremist would have killed not threatened, a drive by shooting would have been better planned or it was too "fortuitous" (usually in fact very unfortuitous) that something occurred when or how it did. Most would agree that persecuting other human beings is inherently irrational and many actors of persecution are opportunistic and disorganised, so it is strange to see strict standards of logic and planning being attributed to such people. As was said in the old but still salient tribunal case of Suleyman (16242) 11 February 1998: It is clear to us that a repressive regime... may well act in ways which defy logical analysis. A person who is genuinely a victim of such a regime may well find that the partial account he is able to give of its activities as they have affected him is not something which will stand up to a strictly logical analysis. The regime may seem to govern by confusion; it may engage in other activities, of which the Appellant knows nothing; it may simply behave in a way which a person sitting in safety in the United Kingdom might regard as almost beyond belief. Heroic behaviour This type of reason for refusal will almost always be based entirely on the opinion and experience of the decision maker. When under huge pressure humans can do heroic things. Religious devotees have refused to recant and been executed, political activists have taken Copying and circulation prohibited Page 24 of 105 (c) Colin Yeo 2014

27 huge risks while living under repressive regimes and injured or hunted humans have managed to survive and keep going despite enormous pain and hardship. Nevertheless, where a person asserts in an asylum claim that he or she acted in a way that seems surprising or even heroic or insane from the comfort of the United Kingdom, decision makers are inclined to disbelief. Use of passport Where a person makes use of their own passport to leave their country of origin this will usually be cited as a reason for refusal, at least in cases involving persecution by the authorities of a country. The argument is that the applicant cannot have been a wanted man or woman if he or she was permitted to leave the country. Wanted criminals have been able to depart from the UK on their own passports despite the sophistication of UK port monitoring and databases, and there are many countries where there is strong evidence of corruption enabling departure or where an agent is able to make use of contacts in order to secure safe departure. As UNHCR observe in the Handbook, a passport might also sometimes be issued to a person considered undesirable purely to secure his or her departure, or a passport may be issued surreptitiously (paragraph 48). Proven dishonesty Where an applicant has a history of behaving in a dishonest way, there may be a suspicion that the person may continue to behave dishonestly in future. A track record of being a liar who is willing to deceive is not likely to be helpful to one's credibility and is very unhelpful indeed if there is no corroboration, Copying and circulation prohibited Page 25 of 105 (c) Colin Yeo 2014

28 as if often the case in asylum cases. In the absence of an "asylum visa", though, it is virtually impossible to reach the United Kingdom to claim asylum without committing some sort of act of deception. The difficulty faced by a genuine refugee in reaching sanctuary by legal means is recognised in the Refugee Convention itself at Article 31, which provides an exemption from prosecution for illegal entry offences. Because many genuine refugees have to use deception in order to reach safety, past probity is not a good or reliable indicator of current probity in the context of asylum. It should also always be recalled that even current dishonesty does not mean that all aspects of an asylum claim are false. The case of Chiver (10758) 24 March 1994 is sometimes cited for the proposition that the core of an account may be credible even though some peripheral elements are not made out. In a criminal law context it is sometimes said that an innocent defendant may lie to bolster and already strong defence and that principle is certainly transferrable to the context of asylum claims. Demeanour Part of the purpose of an oral hearing is for the judge to be able to assess oral evidence given. See, for example, the case of Nare (evidence by electronic means) Zimbabwe [2011] UKUT (IAC):...the usual model in the common-law system is for direct oral evidence to be given in the courtroom. Departures from that model are likely to reduce the quality of evidence, the ability of the parties to test it, and the ability of the judge to assess it, particularly where it has to be assessed against other oral evidence. It is unwise and even dangerous to rely on a witness' body language, mode of speech, hesitancy, eye contact, facial expression or other mannerisms to judge their credibility in asylum cases, however. Many if not all these Copying and circulation prohibited Page 26 of 105 (c) Colin Yeo 2014

29 reactions are culturalised. For example, failure to make eye contact in the United Kingdom is popularly taken as a signal of untrustworthiness but in other cultures and contexts is a sign of respect. In addition, judges and lawyers for whom the court room is a normal environment sometimes forget how intimidating and strange it can be for others. The danger of reliance on demeanour is well illustrated by the case of M (Yugoslavia) [2003] UKIAT 00004: Given the adjudicator's apparent awareness of the medical evidence that the appellant suffered from Post Traumatic Stress Disorder one of whose symptoms is emotional numbness, we do not think the adjudicator was justified in counting against the appellant at paragraph 26 his failure at the hearing to "show emotional distress when the traumatic events were raised " Demeanour will be particularly difficult to assess where an interpreter is employed. Realistically, though, it is very hard for a decision maker to make the emotional leap of believing a person -- a leap that many decision makers perhaps wrongly consider to be necessary -- without an opportunity to see, meet and assess the person and to form some sort of impression of them. As social animals, humans are always assessing and judging new acquaintances, after all. With that in mind, it is important to prepare an asylum seeker for the process of giving evidence, to given them an opportunity to do so or to prepare material or submissions that address issues of credibility. Delayed asylum claims Where a refugee arrives in a country and does not make an immediate claim for protection, that is often considered by the authorities of the sanctuary Copying and circulation prohibited Page 27 of 105 (c) Colin Yeo 2014

30 state to suggest the claim is not a genuine one. To put it another way, delayed claims for asylum are routinely considered damaging to credibility. There is no research that suggests that a genuine refugee really does claim asylum at the first opportunity. Quite the contrary: there is a huge body of research to suggest that victims of torture, rape and trauma are very reluctant to claim asylum on arrival or even to disclose their experiences when they do claim asylum, it is thought that women refugees and others are reluctant to approach the authorities to make an asylum claim and many refugees simply do not know about the asylum process or are unable to articulate a claim when they first arrive. Nevertheless, this false model of human behaviour is deeply entrenched in the decision making culture at the Home Office and in the immigration judiciary. As we see below, it is even reflected in statutory presumptions in the United Kingdom. It is therefore an issue that should where possible be addressed, even if only by making observations similar to those set out above. As is always the case, the more specific the submissions to the individual concerned and their characteristics, the more persuasive those submissions are likely to be. Safe third countries If an asylum seeker passes through safe countries on the way to the destination country where he or she claims asylum, it is common for that to be regarded as behaviour that undermines credibility. Similarly to failure to make an asylum claim immediately on arrival, it is asserted that a genuine refugee would claim asylum in the first country that he or she reached. A slightly more sophisticated variant of this reasoning goes an extra step and argues that travel through safe countries without claiming asylum is the behaviour of an economic migrant rather than a genuine refugee. Copying and circulation prohibited Page 28 of 105 (c) Colin Yeo 2014

31 There is no research to support this false model of human and refugee behaviour. Many genuine refugees do pass through safe third countries before making their asylum claim. Being a genuine refugee and seeking a better and more stable life for oneself and one's family are not remotely mutually exclusive. When one considers that the reasoning is really tantamount to telling refugees to go and live in refugee camps in neighbouring countries to their own, one can understand the reasons why a refugee would want to move on. Safe third country reasoning is therefore a very poor way of determining credibility. It is no more than wishful thinking by the authorities of destination countries rather than a genuine analysis of real behaviour. The Government of the United Kingdom would prefer that refugees claimed asylum before reaching the UK. Various countries have even proposed amendment to the Refugee Convention to make this a legal requirement on refugees. It is not a legal requirement, though, and should not be confused with issues of actual, genuine, credible human behaviour. If authority is needed, it can be found in R v Uxbridge Magistrates Court (ex parte Adimi) [1999] Imm AR 560:... I am persuaded by the applicants' contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR's Executive Committee ('ExCom'), and the writings of wellrespected academics and commentators (most notably Professor Guy Copying and circulation prohibited Page 29 of 105 (c) Colin Yeo 2014

32 Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway, & Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum. Nevertheless, pragmatism suggests that an explanation should be presented where possible for omissions to claim asylum abroad, particularly if there has been a lengthy stay in a safe country. Motives for moving through a safe country for a specific destination country may include having no real agency because one is in the hands of traffickers or people smugglers, a desire to join relatives already established abroad, an ability to speak the language of the destination country, historical ties to the destination country, a positive reputation for the destination country (and perhaps a negative reputation for transit countries) and a desire to establish a positive new life for oneself and one's family. Asylum and Immigration (Treatment of Claimants etc) Act 2004 Some of these issues around truthfulness and credibility have found statutory expression in the United Kingdom in the form of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act This section is entitled "Claimant's credibility". This section provides at subsection (1) that: In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant s credibility, of any behaviour to which this section applies. A "deciding authority" includes both the Home Office and the immigration tribunal and courts. The section goes on to set out various types of behaviour which engage subsection (1). This includes various forms of overt dishonesty, reliance on false documents, destruction of documents, claiming Copying and circulation prohibited Page 30 of 105 (c) Colin Yeo 2014

33 asylum after receiving an immigration decision or after arrest, and not claiming asylum despite having had a reasonable opportunity to do so in a safe third country (although safe third country is given a specific meaning later in the section). An attempt by the legislative branch of government to influence the outcome of factual assessments by the judiciary falls foul of a basic principle of the rule of law as adumbrated by Lord Bingham in his famous lecture The Rule of Law: First and foremost, I suggest, that decisions are made by adjudicators who, however described, are independent and impartial: independent in the sense that they are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial in the sense that they are, so far as humanly possible, openminded, unbiased by any personal interest or partisan allegiance of any kind. This issue was considered by the Court of Appeal in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878. Lord Justice Pill, giving the leading judgment, held that section 8 did not offend against constitutional principles because it is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility and the weight to be given to them is entirely a matter for the fact-finder. As with other un-evidenced assumptions about refugee behaviour, and all the more so because these factors find statutory expression and because they are mandatory considerations, these issues should so far as possible be addressed. Suggestions have already been made above on how such an exercise might be approached. Copying and circulation prohibited Page 31 of 105 (c) Colin Yeo 2014

34 Future risk The Refugee Convention is a forward facing instrument offering protection from future harm rather than solace for past suffering. Past events may well be highly relevant to the question of future risk but it is not sufficient by itself to establish past persecution. The future risk, sometimes referred to as objective risk, must be established to the same standard as past events, that is to the lower standard of "reasonable degree of likelihood". The fact finding exercise for future risk is essentially one involving the conventional standard of proof approach rather than the Karanakaran approach to making findings about past events. Country situation Assessing the situation on the ground in the country of origin will always be a vital part of the refugee status determination process. We have already seen how important it is to place a refugee's account of past events into context in order to assess plausibility and credibility. It is equally vital to consider context when judging the level of future risk and whether it meets the requisite standard. Country information from various sources, sometimes inaccurately referred to as "objective" evidence, is therefore the principle means of establishing a well founded fear of being persecuted. If, for example, the country information reveals that others with similar characteristics to the asylum applicant are being beaten, murdered, arrested and imprisoned then this will assist that asylum claimant in establishing that there is a reasonable degree of likelihood of the same thing happening to him or her. Conversely, if there is no evidence in country information of examples of the future events feared by the asylum applicant, it will be difficult to establish that the fear is well founded. Copying and circulation prohibited Page 32 of 105 (c) Colin Yeo 2014

35 There is a very wide range of sources of country information, from dedicated human rights reports on specific countries to newspapers, to expert reports, to blogs and social media. The internet offers an embarrassment of riches in some ways; gone are the days of reliance on Lonely Planet guidebooks. There is a danger of a false sense of omniscience, though. Famously, absence of evidence is not evidence of absence. There may be many reasons why certain types of human rights abuses in certain locations do not feature in mainstream or indeed any country information reports, including the efforts of a repressive regime to stifle reporting of abuses by targeting journalists and NGOs. Each country information source has its advantages and disadvantages. Indications of a high quality source of information to which strong regard might be had would include: Copying and circulation prohibited Page 33 of 105 (c) Colin Yeo 2014

36 Up to date. The source would bear a recent date or failing that, it might be possible to show or reason that the situation on the ground has not fundamentally changed in the intervening period. Objective. There is no such thing as an objective source, which is why it is a misnomer to describe country information as objective evidence. A source which reads or presents as biased or partial in some way will generally be considered less reputable by most decision makers. However, even a biased source might include useful factual information, even if it is presented in a rather partial manner. Much therefore depends on how the information is used and presented. Sources. Particularly where information is scarce, the original source of information become subject to close scrutiny by a sceptical decision maker. Where the original source is not evident or is anonymous, the information presented may be given less weight. Common types of information source include: Government reports. For example, the United Kingdom Home Office produces a range of Country of Origin Information Service (COIS) reports and the US Department of State produces an annual human rights report covering all countries worldwide. These may at times reflect the agenda of the government or government department concerned by selective inclusion or exclusion of certain sources and greater reluctance to criticise the regimes of allies with whom diplomatic ties are sensitive but they are subject to close public scrutiny. These reports tend to be infrequently updated. In the United Kingdom, the Home Office also produces country policy documents for its caseworkers which are publicly available. These take various forms, including Operational Guidance Notes (OGNs), and usually set out what the Home Office considers to be key bits of country information and then suggests what groups of asylum seekers might be considered to be at risk and in what circumstances. Copying and circulation prohibited Page 34 of 105 (c) Colin Yeo 2014

37 Inter-governmental reports. There are a number of supra-national organisations, some of whom produce information about events on the ground in different countries. Most famously and usefully, UNHCR produces an analysis of the situation in some countries. Other bodies might include other UN agencies, the African Union or the Council of Europe. As with governmental reports, these may sometimes be subtly compromised or skewed by the agendas of different constituent governments or by the organisation s own agenda or remit. These types of reports tend to be infrequently updated. Non-governmental reports. There are many non governmental organisations (NGOs) which take an interest in particular issues in different countries. For example, Amnesty International and Human Rights Watch have a particular interest in researching and reporting on human rights abuses. Other NGOs may have a narrower focus, such as disabled rights or treatment of LGBT people. Such reports will inevitably reflect the campaigning agenda of the organisation concerned, but that does not diminish their usefulness. Their research methodology is often very strong and the organisations have their reputations to protect. Annual reports are infrequent but updates or specific issue reports are sometimes published. Press and other media. There are many national and international journalists reporting on events around the world and such reports can be an invaluable source of information about specific events or problems. International newspapers tend to have good English language websites as do some major national newspapers, but many local or national newspapers do not, or the language of the site is not English. Some articles may be the product of good quality journalism, others less so, but may nevertheless serve as confirmation of a specific event such as a demonstration or attack in a given country. Copying and circulation prohibited Page 35 of 105 (c) Colin Yeo 2014

38 It is sometimes suggested, often implicitly rather than explicitly, that campaigning organisations have an interest in over-reporting incidents that affect their client or interest group or that they are likely to rely on dubious evidence in order to support their campaign objectives. Without evidence or good reason to support such aspersions such arguments should be confronted and rejected. By this measure, the last organisation to ask about, for example, facilities for the disabled in the city of Bath would be a disability campaign group from the city of Bath. Of course, such a group should if anything be the first port of call. The events that give rise to claims for refugee status are seldom of interest to mainstream media outlets and the only groups likely to be interested in, to put resources into and to report back on given issues are campaign groups, so they should be considered a very useful source of evidence and indeed expertise. Anonymous sources can cause particular difficulties in asylum claims. On the one hand, the cloak of anonymity may enable good sources of information to speak freely and share information. On the other hand, it becomes very difficult or impossible to challenge such evidence. The European Court of Human Rights addressed this issue in the case of Sufi and Elmi v United Kingdom (Application no 8319/07 and 11449/07) [2011] ECHR 1045: Copying and circulation prohibited Page 36 of 105 (c) Colin Yeo 2014

39 In the present case the Court observes that the description of the sources relied on by the fact-finding mission is vague. As indicated by the applicants, the majority of sources have simply been described either as an international NGO, a diplomatic source, or a security advisor. Such descriptions give no indication of the authority or reputation of the sources or of the extent of their presence in southern and central Somalia. This is of particular concern in the present case, where it is accepted that the presence of international NGOs and diplomatic missions in southern and central Somalia is limited. It is therefore impossible for the Court to carry out any assessment of the sources reliability and, as a consequence, where their information is unsupported or contradictory, the Court is unable to attach substantial weight to it. This should not be seen as an absolute bar to reliance on anonymous sources, though, particularly where the identity of the source can be made known to the decision maker but will remain unreported. In the United Kingdom, it has become very important to be aware of whether there are any Country Guidance cases that might be relevant to an applicant for asylum. These cases attempt to deal comprehensively with common asylum issues in certain countries and provide guidance to judges on how to assess and decide other similar cases. It is common for the tribunal to highlight what it calls "risk factors" or even "risk categories" which are relevant to establishing a well founded fear. The practice direction for the immigration tribunals and several cases suggest that it will be an error of law not to apply and follow a Country Guidance case unless good reasons are given. Good reasons might include a change of circumstances in the country concerned or important new evidence that throws new light on an issue. Where a relevant Country Guidance case exists, experience suggests that the key battlegrounds will be (a) whether the individual falls into a risk Copying and circulation prohibited Page 37 of 105 (c) Colin Yeo 2014

40 category or the risk factors sufficiently apply in the individual case or (b) whether there is sufficient new evidence to suggest that the risk factors need modifying or asylum should be granted notwithstanding the Country Guidance. A list of these Country Guideline ( CG ) cases is kept on the tribunal service website and is regularly updated. Cases are both added and removed from this list. A list of pending country guidance cases and issues is also available. Relevance of past experiences to future risk Past experiences can be relevant to the assessment of future risk: it is sometimes said that past persecution is probative of future risk. Quoting from Professor Hathaway, Stuart-Smith LJ in the case of Demirkaya v Secretary of State for the Home Department [1999] Imm AR 498 held: Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant on return to her home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk " In sum, evidence of individualised past persecution is generally a sufficient, though not a mandatory, means of establishing prospective risks. Past persecution is not a trump card, though. There may have been a change of circumstances so that the risk no longer exists, it may be possible for the person to relocate to avoid similar problems in future or such a long time may have passed that it is unlikely that problems would recur on return Copying and circulation prohibited Page 38 of 105 (c) Colin Yeo 2014

41 now. It would always therefore be sensible to seek to show that the past causes of persecution persist in the country of origin. The Demirkaya principle is now embedded in the Immigration Rules, thanks to the Qualification Directive. See rule 339K: The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. A minute examination of whether the person's past ill treatment amounted to "being persecuted" will at least in part miss the point, though. The wood must be perceived as well as the trees: persecution often escalates in nature and bad experiences in the past may well be followed by worse experiences in future. Further, persistent ill treatment may over time become persecutory in nature as it becomes unbearable and intolerable. Specific individual risk All refugees have to establish a well founded fear that they will be persecuted. Most will have to rely on a combination of their general characteristics -- for example their political opinion and its manifestation or their ethnic group and home area -- and a comparison with similar people in a similar situation as set out in the available country information. They may struggle both to establish that their claimed general characteristics are genuine and that even if they had those characteristics they would be at risk on return. Some refugees will however be able to rely on quite personal, even unique, risk factors. An asylum applicant may have been named in country Copying and circulation prohibited Page 39 of 105 (c) Colin Yeo 2014

42 information or press reports, for example, or may possess documentary evidence such as an arrest warrant or court document which indicates personal risk. Searching the internet for an asylum applicant's name, perhaps combined with a specific town or date or other information from their narrative account may reveal information personal to that applicant. Generic risk cases There are some cases where an applicant for asylum clearly falls into a given group but where it is hard to establish the level of risk faced by that group. For example, where an applicant will be imprisoned on return to their country of origin, they may assert that prison conditions are so poor that imprisonment would be a breach or his or her human rights and amount to persecution. Another generic risk situation that arises is where there is a civil war or internal armed conflict in the country of origin and the applicant asserts that return there will give rise to a well founded fear. Copying and circulation prohibited Page 40 of 105 (c) Colin Yeo 2014

43 This type of claim is perhaps more common under human rights law and the EU 'subsidiary protection' regime, which are not covered in this ebook on refugee law. In Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489, [2005] EWCA Civ 366 the Court of Appeal held that the matters complained of are truly endemic. In Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807 the test seemed to become whether there was a "consistent pattern of gross and systematic violation of fundamental human rights". Since then, in cases such as AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT the test has been expressed as being whether there is "a consistent pattern" of the ill treatment concerned. Sur place claims and activities in the sanctuary state Future risk need not arise from past experiences in the country of origin. An event in that country over which the asylum applicant has no control might create a new risk or the asylum applicant may be involved in activities in the sanctuary state. A person who did not have a well founded fear of being persecution at the time that he or she left their country of origin but who finds that they do have such a fear while they are outside it is referred to as a refugee sur place. The paradigm sur place claim is where there is a revolution or coup d'etat in the country of origin that places the refugee at risk if he or she returns, for example because he or she was closely associated with the overthrown regime. A sur place claim may also arise where something is discovered about the person by the authorities of the country of origin while he or she is outside the country or where the person engages in activities outside the country of origin which would place him or her in danger on return. Copying and circulation prohibited Page 41 of 105 (c) Colin Yeo 2014

44 This latter situation is not an uncommon issue in asylum claims. Expatriate communities frequently demonstrate and campaign abroad in favour of change in the home country. If there is reason to believe the authorities of the country concerned are monitoring of expatriate activity abroad this may give rise to a sur place refugee claim. It is important to be realistic about the existence of evidence to support such a claim, though, as the Court of Appeal emphasised in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360: As has been seen ( 7 above), the tribunal, while accepting that the appellant's political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had "the means and the inclination" to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which "paints a bleak picture of the suppression of political opponents" by a named government, it requires little or no evidence or speculation 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. Similarly 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 real question in most cases will be what follows for the individual claimant. Risk on return on or soon after arrival in the country of origin due to the very fact of making an asylum claim abroad -- which might be perceived as Copying and circulation prohibited Page 42 of 105 (c) Colin Yeo 2014

45 disloyalty -- or for other reasons has in some unusual circumstances been held to give rise to a successful asylum claim. In RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 the UK Supreme Court held that a person who has to lie to remain safe on arrival in his or her country is a refugee (see further below). The possibility of being able to claim asylum based on one's activities in the sanctuary state opens the possibility that a cynical individual might engage in such activities in bad faith purely for the purpose of artificially manufacturing an asylum claim that would not otherwise exist. In the UK this issue first arose in case law in the judgment in Danian v Secretary of State for the Home Department [2000] Imm AR 96. The Court of Appeal held that the motivation behind activities cannot itself exclude a person from protection; the important question is whether there is a well-founded fear of being persecuted for a Convention reason. Copying and circulation prohibited Page 43 of 105 (c) Colin Yeo 2014

46 In AA and LK v Secretary of State for the Home Department [2006] EWCA Civ 401 the Court of Appeal revisited the question and clarified that where an asylum applicant would be placed in danger by a forced return but could safely make a voluntary return to their country of origin, that person is not a refugee because he or she is not outside his or her country of origin for reason of a well-founded fear of being persecuted. The Qualification Directive states at Article 4(3)(d) that the asylum authorities must take 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 How that will be taken into account or rather the consequence of so doing is not clear but at Article 20 the Directive then goes on to say that Member States are not obliged to offer to such a person any enhanced rights or protections over and above the requirements of the Refugee Convention and international obligations. It has sometimes been argued that the authorities of even very repressive regimes are nevertheless realistic, are aware that their citizens sometimes go abroad for economic reasons and are not interested in wasting time persecuting mere 'hangers-on' who have been to a few demonstrations but are not genuine activists or leaders. This approach was embedded in a Country Guidance case on Burma in the United Kingdom until several years later overturned by the Court of Appeal in KS (Burma) & Anor v Secretary of State for the Home Department [2013] EWCA Civ 67: 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 Copying and circulation prohibited Page 44 of 105 (c) Colin Yeo 2014

47 opponent and a hanger-on. There is no evidence of how the authorities, faced with a person identified and photographed participating in an antigovernment 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. The approach in BA (Demonstrators in Britain risk on return) Iran CG [2011] UKUT 36 (IAC) was preferred, whereby a number of factors and "a spectrum of risk" were identified, including nature of sur place activity, identification risk, factors triggering inquiry or action on return, consequences of identification and identification risk on return. Future activities It has always been open to an applicant for asylum to assert that he or she will in future behave in a way that will place him or her at risk and therefore that he or she is a refugee. In the UK the case of Iftikar Ahmed [2000] INLR 1 established that the key issue in such cases has always been credibility: is the person really so committed, brave or foolhardy that he or she would in fact act in such a way on their return? This poses the question then arose of whether it is really an answer to a refugee claim to tell the person that he or she ought to just keep quiet in order to safeguard themselves, and in effect that the only 'good' refugee claim will be where a person will involuntarily be 'found out' on their return. A body of case law developed suggesting that some individuals who would Copying and circulation prohibited Page 45 of 105 (c) Colin Yeo 2014

48 otherwise be refugees could be expected to be 'discreet' on return and were therefore not entitled to asylum. This reasoning appeared to apply mainly or even exclusively to claims by gay refugees and not claims by political activists. Eventually, the question reached the Supreme Court in the case of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. The court held that where a person would in future refrain from behaving in a way that would expose them to danger because of the risk of persecution that behaviour brings, that person is a refugee. The leading judgment in HJ (Iran) is that of the late Lord Rodgers, who gives guidance on the proper approach: When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. Copying and circulation prohibited Page 46 of 105 (c) Colin Yeo 2014

49 If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant s country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution even if he could avoid the risk by living discreetly. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no wellfounded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect his right to live freely and openly as a gay man without fear of Copying and circulation prohibited Page 47 of 105 (c) Colin Yeo 2014

50 persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him. The judgment is also significant for what it says about the possibility of internal relocation: I add a comment on the case of HT. The tribunal rejected his application on the ground that, on his return to Cameroon, he could go to live in another part of the country and live discreetly there. In that event he would have no real fear of persecution. But there appears to have been nothing in the evidence to suggest that there was any area of Cameroon where gay men could live openly without any fear of persecution. So in no sense would the applicant be returning to a part of the country where the state would protect him from persecution. In effect, therefore, the tribunal was simply saying that his application should be rejected because, on return, he could take steps to avoid persecution by conducting himself discreetly. For the reasons which I have given, that approach is inconsistent with the very aims of the Convention. Lastly, the judgment is also important for what is said about the nature of protected personal Convention reason characteristics and the right to self expression: In short, what is protected is the applicant's right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves Copying and circulation prohibited Page 48 of 105 (c) Colin Yeo 2014

51 going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis and in many cases the adaptations would obviously be great the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution. The HJ (Iran) principles were adopted and applied to asylum claims based on religion in the case of MN and others (Ahmadis country conditions risk) Pakistan CG [2012] UKUT (IAC). In that case the tribunal held that where a person wishes to manifest their religious identity in a way that will expose them to a well founded fear, the person is a refugee. Following HJ (Iran) the issue in claims where the asylum applicant would want to manifest their Convention reason identity has focussed on whether the Convention reason identity is a genuine one. In gay claims the argument is often over whether the person is really gay based on their past and present behaviour and in claims based on religion the argument is over whether the person's religious identity is really such that it would expose them to danger. It might readily be appreciated that the assessment of a person's self identity and personal beliefs and desires is almost an impossible task. Copying and circulation prohibited Page 49 of 105 (c) Colin Yeo 2014

52 OF BEING PERSECUTED Protection from persecution is the core purpose of the Refugee Convention. As a legal instrument the Convention was created in 1951 to provide sanctuary to past victims of persecution. From 1967 onwards it has offered protection to present and to future victims. As a legal instrument it has saved more lives than any other in history. The concept that lies at its heart is a slightly elusive one, though, as it has no formal definition. Famously, it has been said that the flexibility of the concept of "being persecuted" is deliberate: it caters for the sometimes horrifying depths of human depravity to other humans. Actors of persecution Some countries in Europe had developed an approach to the Refugee Convention that required persecution to be carried out of State actors in order for the treatment to be considered persecution within the meaning of the Refugee Convention. This meant that a person could not be a refugee if persecuted by non State actors. While this has never been the approach in the UK, it accords with the meaning of "torture" as defined in the UN Convention Against Torture. This divergence of approach ended with the coming into force of the Qualification Directive, which at Article 6 makes clear that acts of persecution can potentially be carried out by anyone: Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; Copying and circulation prohibited Page 50 of 105 (c) Colin Yeo 2014

53 (c) non-state actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. Persecution can therefore be carried out by non-state actors. There is a qualification, though, which broadly reflects the position under UK law: that the authorities are unable to provide protection. As is discussed in more detail below, this was the outcome of the landmark House of Lords case of Horvath v Secretary of State for the Home Department [2001] 1 AC 489. Acts of persecution Sources of guidance and interpretation The UNHCR Handbook begins its description of persecution as follows at paragraph 55: There is no universally accepted definition of persecution, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights -- for the same reasons -- would also constitute persecution. The courts have been wary of giving specific guidance on the level of illtreatment required before that ill-treatment can be described as being persecuted. The reason for this apparent vagueness is simply that the most judges realise that rigid guidance is inappropriate. As Guy Goodwin-Gill says in The Refugee in International Law, 2 nd ed. (Oxford, 1996): There being no limits to the perverse side of human imagination, little purpose is served by attempting to list all known measures of persecution. Copying and circulation prohibited Page 51 of 105 (c) Colin Yeo 2014

54 Assessments must be made from case to case by talking account, on the one hand, of the notion of individual integrity and human dignity and, on the other, of the manner and degree to which they stand to be injured. Some guidance has emerged over time as to the level of seriousness the treatment must attain. In the first real reported refugee law case in the UK, R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7, Nolan J suggested that the word should be given its ordinary dictionary definition meaning. The Shorter Oxford English Dictionary provided two meanings, which Nolan J adopted: firstly, To pursue, hunt, drive and secondly To pursue with malignancy or injurious action; esp. to oppress for holding a heretical opinion or belief. As we will see, though, the textual approach is not considered a particularly useful one today. In the influential landmark House of Lords case of Shah and Islam [1999] INLR 144 Lord Hoffman famously adopted the formula Persecution = Serious Harm + The Failure of State Protection The issue of state protection is examined in more detail below, but serious harm is as close as the UK courts have come to offering a working and readily intelligible definition of the high threshold for persecution. Because of the inherently international nature of the Refugee Convention and the desirability of a shared understanding, we are not confined to seeking guidance from the UK courts. For example, in the High Court of Australia (the Australian supreme court) case of Appellant S v Minister for Immigration and Multicultural Affairs [2003] HCA 71, the widely cited joint judgment by McHugh and Kirby JJ suggested that persecution covers a wide range of forms of serious ill-treatment: Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form Copying and circulation prohibited Page 52 of 105 (c) Colin Yeo 2014

55 the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. This short quotation also touches on a number of other issues discussed below, including the subjective nature of persecution and discrimination as persecution. Academic writing and case law remain important, but the advent of the Qualification Directive provides in the UK and European Union a flexible and principled framework for assessing whether treatment might amount to being persecuted but case law still has an important role to play. Qualification Directive definition The starting point for exploring the meaning of "being persecuted" in the UK and the European Union is usually now the Qualification Directive. At Article 9 this sets forth a minimum definition of what might constitute acts of persecution: 1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). 2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: Copying and circulation prohibited Page 53 of 105 (c) Colin Yeo 2014

56 (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are 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 the exclusion clauses as set out in Article 12(2); (f) acts of a gender-specific or child-specific nature. 3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1. There is much to this definition to unpack. The definition generally serves as a very useful codification of case law on being persecuted which can therefore still serve as an elucidation of the definition. Nature or repetition The Directive is explicit that acts of persecution can be so by their nature or their repetition: it is clear that single serious acts can qualify as persecution, as can a course of conduct. This construction was endorsed by Keene LJ in the Court of Appeal in BA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 1072: Copying and circulation prohibited Page 54 of 105 (c) Colin Yeo 2014

57 That phrase "by their nature or repetition" is disjunctive. It emphasises that there need not be repeated acts if an act is sufficiently serious. This definitively answers a question that had long troubled academics and judges. In his highly influential book The Law of Refugee Status (2 nd ed.) Professor James Hathaway suggest that persecution must be something that take place over time: persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection A similar approach was adopted by Staughton LJ in Ravichandran and Sandralingham v Secretary of State for the Home Department [1996] Imm AR 97: Persecution must at least be persistent and serious ill-treatment without just cause by the state, or from which the state can provide protection but chooses not to do so. These historic quotations still occasionally find their way into refugee status determinations, but they are clearly now outdated. Being persecuted can consist of a series of acts but it need not, a single act can suffice. Level of seriousness As we have already seen, the closest the UK courts seemed to come to defining a threshold for ill treatment to become persecution was serious harm (Shah and Islam). The UNHCR Handbook refers to a threat to life or freedom and to serious violations of human rights. This approach has the virtue of being flexible, but it leaves us without a framework for principled decision making on what treatment might amount to persecution. In the Qualification Directive, Article 9 sets the threshold for seriousness for an act or series of acts to become persecution at the level of breaches of Copying and circulation prohibited Page 55 of 105 (c) Colin Yeo 2014

58 human rights from which derogation cannot be made under Article 15(2) of the European Convention on Human Rights. This includes Articles 2, 3, 4 and 7, respectively the right to life, freedom from torture, freedom from slavery and forced labour and no punishment without law. This is more precise but also retains flexibility. Helpfully, Article 9 goes on to give further guidance on treatment that might reach this threshold, as we see below. The Qualification Directive approach establishes an explicit legal link between persecution under the Refugee Convention and human rights law. Cumulative in nature Article 9(1)(b) of the Qualification Directive states that persecution can be an accumulation of various measures. However, they must cumulatively affect an individual in a similar manner to a severe violation of the rights from which derogation cannot be made. Under the Directive, persecution can therefore consist of acts that, taken individually, are not as serious as breaches of human rights from which derogation cannot be made but which collectively amount to something of equivalent seriousness. Paragraphs (a) refers to rights from which derogation cannot be made and paragraph (b) to human rights. The latter is clearly a wider reference to human rights from which derogation can be made. This recognition of cumulative persecution reflects the approach advocated in the UNHCR Handbook at paragraph 53: In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the Copying and circulation prohibited Page 56 of 105 (c) Colin Yeo 2014

59 mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on cumulative grounds. needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context. The potentially cumulative nature of persecution is also relevant to discrimination and the pre-qualification Directive human rights analysis discussed below. Discrimination and being persecuted Article 9 of the Qualification Directive references discrimination four times: it is clearly important. If we pause a moment and consider other sources of reference, we can see why. In Shah and Islam [1999] 2 AC 629, the landmark House of Lords case on the Refugee Convention and the meaning of membership of a particular social group, Lord Steyn s judgment showed how central the concept of discrimination was to the drafting and purposes of the Refugee Convention. Lord Hoffman agreed, tying together the concept of persecution and the Convention reasons: In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect. The obvious examples, based on the experience of the persecutions in Europe which would have been in the Copying and circulation prohibited Page 57 of 105 (c) Colin Yeo 2014

60 minds of the delegates in 1951, were race, religion, nationality and political opinion. But the inclusion of "particular social group" recognised that there might be different criteria for discrimination, in pari materiae with discrimination on the other grounds, which would be equally offensive to principles of human rights. The UNHCR Handbook at paragraphs 54 and 55 examines the issue of whether discrimination might constitute persecution under the Convention, concluding that discrimination might amount to persecution if it generates a feeling of apprehension and insecurity as regards future existence. Such a claim which will be stronger if the person has been the victim of several such measures and there is a cumulative effect. Returning to the Qualification Directive, the references to discrimination come at Article 9(2) in the examples of acts of persecution: (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are 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 No only can discrimination amount to being persecuted but discrimination is central to the understanding, interpretation and application of the Refugee Convention. Impact on the particular individual The reference to affecting an individual at Article 9(1)(b) supports an analysis of persecution that assesses the impact on the individual refugee, sometimes referred to as the subjective aspect of being persecuted. What amounts to persecution for one person does not necessarily for another. This Copying and circulation prohibited Page 58 of 105 (c) Colin Yeo 2014

61 is reiterated at Article 9(2) with references to acts of a gender specific or child specific nature and to mental as well as physical violence. Considering he impact on the particular individual is also recommenced in the UNHCR Handbook at paragraph 52: Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. In Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832 the Court of Appeal endorsed this subjective approach: the attacks also potentially evidence the appellants' vulnerability in the future. An activity which would not amount to persecution if done to some people may amount to persecution if done to others. It is easier to persecute a husband whose wife has been kicked in a racial attack whilst visibly pregnant than one whose family has not had this experience. What to others may be an unbelievable threat may induce terror in such a man. Persecution is not defined by some objective standard of what a reasonable person would consider to be serious harm but by a subjective assessment of the effect on the individual concerned. Copying and circulation prohibited Page 59 of 105 (c) Colin Yeo 2014

62 Human rights analysis The Qualification Directive clearly and explicitly links the concept of persecution to human rights law principles. This is not an entirely new approach in UK case law. In the tribunal case of Gashi [1997] INLR 97 the immigration tribunal adopted the following approach: In aid of this sometimes difficult assessment, UNHCR generally agrees with Professor Hathaway's formulation that persecution is usually the "sustained and systemic denial of core human rights" (J Hathaway at p. 112). Clearly, some human rights have greater pre eminence than others and it may be necessary to identify them through a hierarchy of relative importance. This can be achieved by reference to the International Bill of Rights as the universal measure of appropriate standards. (a)the first category includes inviolable human rights such as the right of life and the prohibition against torture, cruel, inhuman or degrading punishment or treatment. A threat to these rights would always be a serious violation amounting to persecution, as referred to in paragraph 51 of the Handbook. (b)the second category includes rights where limited derogation or curtailment by the state in times of public emergency can be justified. They would include, inter alia, the rights to be free from arbitrary arrest and detention, and the right to freedom of expression. A threat to these rights may amount to persecution if the state cannot demonstrate any valid justification for their temporary curtailment. In any event, the measures will usually be accompanied by other forms of discrimination treatment which if assessed cumulatively, could amount to persecution.' (c) The third category are rights which although binding upon states, reflect goals for social, economic or cultural development. Their realisation may be contingent upon the reasonable availability of Copying and circulation prohibited Page 60 of 105 (c) Colin Yeo 2014

63 adequate state resources. But the state must nonetheless act in good faith in the pursuit of these goals and otherwise in a manner which does not violate customary norms of non discrimination. This category would include, inter alia, the right to basic education and the right to earn a livelihood. In appropriate circumstances, a systemic and systematic denial of these rights may lead to cumulative 'consequences of a substantially prejudicial nature for the person concerned' of such severity as would amount to persecution within the meaning and spirit of the Convention. This would be particularly so where the state has adequate means to implement the rights but applies them in a selective and discriminatory manner. The tribunal here was referring to international human rights standards rather than the European Convention on Human Rights and it is in large part due to the differences in approach between the European and international regimes that the approach here differs from that of the Qualification Directive. Since the advent of the Qualification Directive, the courts have not addressed the issue of whether the third category of rights above might still be considered to constitute persecution. It may be relevant to consider Recitals (8) and (11) of the Directive s preamble, which provide respectively that Member States have the power to introduce or maintain more favourable provisions and that Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination. Role of Convention reasons While it is helpful to break down Article 1A of the Refugee Convention into constituent parts in order to explore and understand them, it is critically important to appreciate that the parts of the definition interact with one another. Copying and circulation prohibited Page 61 of 105 (c) Colin Yeo 2014

64 We have already seen that in Shah and Islam the House of Lords placed discrimination at the heart of the Refugee Convention. Ill treatment of sufficient severity to amount to being persecuted will not always be considered persecution within the meaning of the Refugee Convention: it must also be for a Convention reason. In his judgment in the case of Sepet and Bulbul v Secretary of State for the Home Department [2001] EWCA Civ 681, Lord Justice Laws provided a very useful explanation of the role of a Convention reason in defining persecution: 63. There are some classes of case in which the threatened conduct is of such a kind that it is universally condemned, by national and international law, and always constitutes persecution: torture, rape (though of course it is not necessarily persecution for a Convention reason). In those instances, the question whether or not there is persecution is straightforwardly a matter of fact. But it is not always so; and Kagema [1997] IAR 137 (relied on by Mr Macdonald in reply) is no authority that it is. There are other classes of case in which the threatened conduct is by no means necessarily unjustified at the bar of law or opinion: imprisonment is a plain instance (where its length is not disproportionate and its conditions are not barbarous). In such a case some further factor is required to turn the treatment in question into persecution. Torture is absolutely persecutory; imprisonment only conditionally so. 64. What is the further factor that may turn imprisonment into persecution? It can only be that the claimant is liable to be imprisoned for a Convention reason. There can be no other way in to the regime of Convention protection. In this case, then, the existence of a Convention reason is what defines the treatment as persecutory. 65. See where this leads. The putative act of persecution - imprisonment - is only such if it is inflicted for a Convention reason. (I Copying and circulation prohibited Page 62 of 105 (c) Colin Yeo 2014

65 leave aside all the uncontentious possibilities: that the military service involves acts or conditions which are barbarous, or that the punishment for draft evasion is barbarous or disproportionate). It is the why and wherefore of the punishment's infliction that alone can transform the imprisonment suffered into persecution. But then it must constitute persecution according to the Convention's common standard, within and according to the autonomous international meaning of the Convention. So, some types of ill treatment are so severe they would always be of sufficient seriousness to be persecution. Nevertheless, if that persecution was not for a Convention reason, the person will still not be a refugee. As an aside, such a person would in Europe be entitled to protection from return under Article 3 of the European Convention on Human Rights. Copying and circulation prohibited Page 63 of 105 (c) Colin Yeo 2014

66 Other types of treatment may not necessarily be inherently serious enough to reach the threshold of being considered persecution. However, if for a Convention reason such treatment will be persecution. The example given by Laws LJ is imprisonment. If a criminal is tried, sentenced and imprisoned according to law in prison conditions that do not breach basic international human rights standards, that will not amount to being persecuted. The treatment is not inherently serious enough to be persecution, nor is there a Convention reason behind it. If a political activist is similarly tried, sentenced and imprisoned purely because of his or her peaceful political activities but in a process that does not meet international legal standards, that same treatment would amount to being persecuted because there is a Convention reason behind it. The House of Lords later gave judgment in the same case of Sepet and Bulbul [2003] UKHL 15. The case establishes a principled approach to making apparently difficult judgments about whether a given criminal offence or legal process is one that is or is not a reasonable one: if international standards as defined in the UN Conventions prohibit certain laws or State actions then that will be a useful guide to whether a punishment is capable of being an act of persecution. Prosecution and persecution As we saw above, fugitives from justice are not necessarily refugees. Some forms of prosecution and punishment are entirely legitimate and would not attain the severity required to amount to persecution nor give rise to any suspicion of being for a Convention reason. However, there are times that prosecution can amount to persecution. The Qualification Directive at Article 9(2)(c) states that where prosecution or punishment is disproportionate or discriminatory it may be an act of persecution. Copying and circulation prohibited Page 64 of 105 (c) Colin Yeo 2014

67 As we saw above when looking at the Sepet and Bulbul case, the key here to deciding whether something is disproportionate or discriminatory will be whether the treatment is for a Convention reason. If so, assuming that the treatment is fairly serious in nature. The UNHCR Handbook similarly suggests, at paragraph 57, that excessive punishment upon conviction imposed for a Convention reason would be persecutory: A person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Example Where a person commits a criminal offence and is caught, tried, convicted and sentenced in accordance with international legal standards, this is very unlikely ever to amount to being persecuted. If, however, the criminal is punished with a sentence much greater than that normally imposed, the criminal possesses a protected Convention reason characteristic (he or she is of a certain religion or race, perhaps) and it can be shown that there is a causal link between the Convention reason characteristic and the disproportionate punishment, the person may be able to make out a claim to refugee status. As the example above suggests, it may well be not so much the law as the way that it is applied in practice that might be discriminatory and therefore amount to persecution. The UNHCR Handbook makes this point at paragraph 59: More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against 'public order', e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication. Copying and circulation prohibited Page 65 of 105 (c) Colin Yeo 2014

68 Military service Many countries around the world, including in Europe, impose an obligation to perform military service. Might a conscientious objector be able to make out a successful claim for refugee status on the basis of fear of punishment for refusal to serve? As we will see below, the courts in the UK have inevitably had to confront this question in the past but the starting point today is the Qualification Directive, which makes specific provision on this issue. The Article 9(2) examples of acts of persecution include at (e): prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2) The exclusion clauses at Article 12(2) are: Copying and circulation prohibited Page 66 of 105 (c) Colin Yeo 2014

69 (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. A person might therefore be a refugee if punished for refusal to perform military service if the military service might involve war crimes, serious nonpolitical crimes or similar. The exclusion clauses are examined in more detail below. It is important to see this Article 9(2)(e) example of an act of persecution as an additional example over and above Article 9(2)(c), the latter being the reference to prosecution or punishment which is disproportionate or discriminatory. When the House of Lords analysed the issues around conscientious objection in Sepet and Bulbul [2003] UKHL 15 the question of whether conscientious objectors might be refugees was reconstructed really as being one of whether international law and standards provided a right to exemption from military service on grounds of conscience and therefore whether prosecution and punishment for refusal to perform military service was or was not in accordance with international standards. The House of Lords concluded that there was not yet an internationally accepted right to exemption from military service on grounds of conscience, and therefore that Copying and circulation prohibited Page 67 of 105 (c) Colin Yeo 2014

70 prosecution and punishment of a conscientious objector did not breach international legal standards. Presaging the Qualification Directive, Lord Bingham commented that there are, though, circumstances where a conscientious objector might succeed in a claim for refugee status: There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment There is a perception amongst some refugee status decision makers that conscientious objectors cannot succeed in asylum claims following the House of Lords judgment in Sepet and Bulbul. This is not the case, but it is critically important to apply a rigorous legal analysis. Some cases might succeed on the basis of refusal to perform war crimes and similar but in many cases it may be that military service and objection to that service merely form a backdrop to a claim that is in truth based on disproportionate punishment if liable to be imposed for a Convention reason. Copying and circulation prohibited Page 68 of 105 (c) Colin Yeo 2014

71 Examples Adam refuses to perform military service in his country of nationality and claims asylum. He is Jewish and he fears that he will be singled out for far worse treatment than other conscripts because of his race. Country information shows that there is very harsh treatment of conscripts and anti semitism is rife in his country. The case may turn on how far he is able to persuade a decision maker whether there is a danger of disproportionate punishment or ill treatment due to his race and whether the risk reaches the standard of well founded fear. *** Benoit went absent without leave from military service in his home country and escaped to the UK where he claimed asylum. He had no prior objection to military service but was assigned to a unit that was instructed to lay unmarked anti-personnel land mines on a road used by civilians. He was horrified this was the reason he deserted. Based on Article 9(2)(e), Benoit should be able to win his asylum case if he can convince the decision maker he is telling the truth. See also BE (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 540 *** Claude is a Quaker and objects to military service because he is a principled pacifist. Before having to begin his compulsory military service in his country, he travels to the UK and claims asylum, claiming that his prosecution and punishment would be for a Convention reason. Claude cannot succeed in an asylum claim on these grounds. The courts have held that Claude would not be prosecuted or punished for reasons of religion but for reason of his committing a criminal offence that is recognised as such by international legal standards. Copying and circulation prohibited Page 69 of 105 (c) Colin Yeo 2014

72 Civil war The Refugee Convention has not proven helpful to victims of civil war. The suffering of civilians most often by death, displacement, rape and torture has in effect been dismissed by judges as being an accidental byproduct of conflicts. Although the treatment complained of might reach the level necessary to be persecution, the reasoning is that ordinary victims of civil wars are simply unlucky to be in the way of opposing factions and are therefore not generally targeted for a Convention reason. This was the approach adopted by the House of Lords case of R v Secretary of State for the Home Department ex parte Adan [1998] Imm AR 338. The specific conflict in that case was the civil war in Somalia. It was held that in order to secure refugee status, persons fleeing civil war must demonstrate that they face a differential impact over and above the general risks of a civil war in which law and order has broken down completely. Example In the immediate context of Somalia, the outcome of Adan meant that members of majority clans had real difficulty establishing a claim to refugee status. Members of minority clans were however able to make out successful refugee status claims because the country information showed that they were being singled out for worse treatment even than other civil war victims because of their race. However, it can be argued that if people suffer torture, or civilians are killed, or hospitals attacked for a Convention reason then persecution may still be found, even in a civil war. For example, the genocide in Rwanda might be described as a civil war but in the nature of that conflict there were no Huti or Tutsi civilians because the ideology motivating the conflict was motivated by a Convention reason, race. The attacks suffered by victims were therefore Copying and circulation prohibited Page 70 of 105 (c) Colin Yeo 2014

73 motivated by a Convention reason rather than being in the nature of collateral damage. Copying and circulation prohibited Page 71 of 105 (c) Colin Yeo 2014

74 CONVENTION REASONS The five Convention reasons are central to the Refugee Convention. A refugee is a person with a well-founded fear of being persecuted for reasons of. There must therefore be a causal link between the harm suffered and one of the five Convention reasons. In addition, as explored earlier, the Convention reasons can have a transformative effect on certain types of harm. For example, imprisonment as a result of criminal behaviour does not amount to persecution, whereas imprisonment for reasons of a Convention reason would amount to persecution. The meaning and interpretation of the Convention reasons was subject to a considerable body of case law. However, the advent of the Qualification Directive has somewhat simplified discussion of the scope and meaning of the Convention reasons. A very wide interpretation has been adopted to four out of the five. Race The Qualification Directive at Article 10(1)(c) provides that the concept of race shall in particular include considerations of colour, descent or membership of a particular ethnic group. There is nothing more really to say on the subject of race as a Convention reason and it is rare to the point of being virtually unknown for the legal meaning of race to be a controversial topic that might cause a case to succeed or fail. Religion The Qualification Directive offers a very inclusive definition of religion at Article 10(1)(b): Copying and circulation prohibited Page 72 of 105 (c) Colin Yeo 2014

75 the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief This is as broad an understanding of the concept of religion as is conceivable and it lays to rest past controversies about whether atheists might be considered on this ground and whether religion was confined to organised, traditional-style theistic religions. Cases of religious conversion can be controversial but turn on the issue of credibility. Nationality The Qualification Directive definition of nationality at Article 10(1)(c) is an interesting one that extends conventional understanding of the concept: the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State. Even with this very broad understanding, refugee status claims based on nationality are almost unknown in practice. Membership of a particular social group The scope of the other Convention reasons is open to some discussion but the broad meaning of religion or political opinion, for example, is reasonably obvious. Not so the Convention reason of membership of a particular social group. This reason was added late in the drafting process of the Refugee Convention and its meaning has been debated ever since. Copying and circulation prohibited Page 73 of 105 (c) Colin Yeo 2014

76 The Qualification Directive now provides guidance within the EU, but there is a serious problem with the definition there adopted. It is therefore important first to understand a little of the history of legal debate on the meaning of particular social group. A consensus has been reached about some of the things that membership of a particular social group does not require. The members need not be homogenous, cohesive or small in number and it is not necessary to show that all members of the particular social group are persecuted. Whatever definition is given should not be so wide that it renders the other Convention reasons redundant: it is not some sort of catch all category. In a similar vein, the particular social group must exist independently of the persecution suffered; if persecution alone created a particular social group then there would be no need for any other Convention reason. Shah and Islam All this and more can be ascertained from the leading UK judgment on membership of a particular social group, the House of Lords case of Shah and Islam [1999] 2 AC 629. The critical issue was whether two victims of domestic violence who had fled from Pakistan were entitled to refugee status. Their cases were argued under the Convention reason of membership of a particular social group and the particular social group contended for was women victims of domestic violence. In the Court of Appeal the particular social group had been argued as "women who are perceived to have transgressed Islamic mores" or "women rejected by their husbands on the ground of alleged adultery. The House of Lords held that these attempted definitions of particular social groups fell foul of the circular logic of defining the group solely by reference to the persecution suffered. However, the wider particular social group of women in Pakistan was instead identified by their Lordships and upheld. Copying and circulation prohibited Page 74 of 105 (c) Colin Yeo 2014

77 The intellectual underpinning for the judgment was the idea that discrimination is central to the Refugee Convention. See Lord Hoffman s judgment: In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect. The obvious examples, based on the experience of the persecutions in Europe which would have been in the minds of the delegates in 1951, were race, religion, nationality and political opinion. But the inclusion of "particular social group" recognised that there might be different criteria for discrimination, in pari materiae with discrimination on the other grounds, which would be equally offensive to principles of human rights. It is plausibly suggested that the delegates may have had in mind persecutions in Communist countries of people who were stigmatised as members of the bourgeoisie. But the concept of a social group is a general one and its meaning cannot be confined to those social groups which the framers of the Convention may have had in mind. In choosing to use the general term "particular social group" rather than an enumeration of specific social groups, the framers of the Convention were in my opinion intending to include whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention. As with the other Convention reasons it is necessary to identify an innate shared characteristic, or a shared characteristic that the person cannot or should not be expected to change. Women in Pakistan shared the innate Copying and circulation prohibited Page 75 of 105 (c) Colin Yeo 2014

78 characteristic of their gender and the country information showed that they were systematically discriminated against by the State and could not secure protection from that State. Any discussion of Shah and Islam and consideration of the issue of causation in the Refugee Convention is incomplete without quoting the famous passage of Lord Hoffman s judgment addressing the situation of Jews in Germany in the 1930s: Suppose oneself in Germany in There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question "Why was he attacked?" would be "because a competitor Copying and circulation prohibited Page 76 of 105 (c) Colin Yeo 2014

79 wanted to drive him out of business." But another answer, and in my view the right answer in the context of the Convention, would be "he was attacked by a competitor who knew that he would receive no protection because he was a Jew." Lord Hoffman thus shows that not all members of the group identified by a Convention reason characteristic need be directly persecuted and goes on to show that taking advantage of a person s vulnerability where that vulnerability arises from discrimination for a Convention reason will be a sufficient nexus with the Convention reason to qualify the person for protection under the Refugee Convention. Copying and circulation prohibited Page 77 of 105 (c) Colin Yeo 2014

80 Qualification Directive The Qualification Directive provides as follows at Article 10(1)(d): a group shall be considered to form a particular social group where in particular: members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society; depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article The first part of the definition adopts the Shah and Islam approach. The second part being perceived as different reflects the approach that was then proposed by UNHCR as an alternative to Shah and Islam. Until the Qualification Directive these two requirements would have been regarded as competing legal analyses of the meaning of membership of a particular social group. However, by the use of the word and rather than or the Qualification Directive appears to make both approaches a precondition to recognition. Societal identification of the group is not a requirement in Shah and Islam. Indeed, it would be difficult to argue that Pakistani society regarded women as a distinct social group. This difference in approach was noted by the House of Lords in the subsequent case of K and Fornah [2006] UKHL 46 and Copying and circulation prohibited Page 78 of 105 (c) Colin Yeo 2014

81 the House of Lords ruled that the correct approach is that set out in Shah and Islam. Examples Women have been held to be a particular social group where there is evidence of systematic State discrimination against women: Shah and Islam [1999] 2 AC 629. Females at risk of Female Genital Mutilation were held to be members of a particular social group in K and Fornah [2006] UKHL 46. Being a member of a family was also held to be capable of being a member of a particular social group in K and Fornah [2006] UKHL 46, even where the persecution directed against the family originally arose for reasons other than under the Convention. This brings a victim of a blood feud potentially within the scope of the Convention, for example. Gay men and women were held to be capable of constituting a particular social group in HJ (Iran) [2010] UKSC 31 where there is evidence of discrimination. In SM (PSG, Protection Regulations, Regulation 6) Moldova CG [2008] UKAIT the tribunal found that "former victims of trafficking" and "former victims of trafficking for sexual exploitation" are capable of being members of a particular social group because of their shared common background or past experience of having been trafficked. Political opinion Express political opinion is perhaps the most often cited Convention reason. Indeed, refugee status is often referred to in news reports as political asylum. As with the race, religion and nationality, the Qualification Directive offers a very broad understanding and definition of political opinion: the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of Copying and circulation prohibited Page 79 of 105 (c) Colin Yeo 2014

82 persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant This approach would encompass groups such as feminists and single issue campaigners, previously arguably excluded in the UK by a narrower understanding of politics being concerned with the exercise of State power. Attributed Convention reasons Paragraph 81 of the UNHCR Handbook states that an opinion need not in fact be held, but may be externally ascribed to an individual. In the context of political opinion, this has long been referred to in the UK as imputed political opinion. It is re-titled attributed political opinion in the Qualification Directive Article 10(2): When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution. As can be seen, the Qualification Directive extends the concept of an attributed reason to the other Convention reasons beyond political opinion. Copying and circulation prohibited Page 80 of 105 (c) Colin Yeo 2014

83 PROTECTION AND RELOCATION System of protection A person who can seek protection from his or her own authorities in the country of origin will not be entitled to asylum. Article 1A of the Refugee Convention requires a refugee not only to have a well founded fear of being persecuted for one of the Convention reasons but also to be unable or, owing to his or her fear, unwilling to avail him or herself of the protection of his or her country. In his seminal work on refugee law, The Law of Refugee Status (1991) Professor James Hathaway conceived of the Refugee Convention as offering what he called surrogate protection. He argued that the Convention exists to provide on an international level the protection of which an individual is unable to avail himself at a domestic level in his country of origin. This idea was seized and expanded upon by the House of Lords in the case of Horvath v Secretary of State for the Home Department [2000] Imm AR 552, giving rise to what has been called the idea of sufficiency of protection. The concept then found its way into the Qualification Directive, where it resides at Article 7. Qualification Directive The starting point for considering the role of protection in the refugee definition is Article 7 of the Qualification Directive. This Article is entitled actors of protection but after defining potential sources of protection goes on to state what might generally constitute protection for the purposes of the Directive: Actors of protection 1. Protection can be provided by: (a) the State; or Copying and circulation prohibited Page 81 of 105 (c) Colin Yeo 2014

84 (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State. 2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection. 3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts. The definition of protection at Article 7(2) has the virtue of being concise, relatively simple (compared at least to the diverse judgments in Horvath) and specifically referring to the applicant having actual access to the protection. One of the criticisms of the sufficiency of protection approach in the UK prior to the Directive was that it potentially allowed for a refugee status claim to be rejected on the basis that protection was generally and theoretically available. This danger persists, though, given that Article 7(2) refers to reasonable steps rather than, for example, effective steps, and it refers to a legal system rather than actual protection for the individual concerned. Sufficiency of protection The leading UK case on the role of protection in the assessment of a refugee status claim is that of Horvath v Secretary of State for the Home Department [2000] Imm AR 552. Arguably the case is of limited relevance following the advent of the Qualification Directive. Given that the Qualification Directive is derived from Horvath, though, closer examination is worthwhile. Copying and circulation prohibited Page 82 of 105 (c) Colin Yeo 2014

85 Building on the foundation of Hathaway s surrogate protection approach, the House of Lords in Horvath went on to reason that no State is obliged to provide absolute protection at all times to all of its citizens, as such an obligation is impossible to discharge. Therefore, to acquire surrogate protection under the Refugee Convention, an individual must demonstrate that his own State is unable or unwilling to provide an adequate system of protection, otherwise known as a sufficiency of protection. Rather confusingly, the House of Lords ultimately held in Horvath that the words being persecuted, in the context of the Refugee Convention, incorporate into their meaning a lack of state protection. The formula proposed by Lord Hoffman in Shah and Islam [1999] INLR 144 was cited and adopted: Persecution = serious harm + lack of state protection Quite how or why the concept of protection features both in the definition of being persecuted and also later in Article 1A of the Convention in relation to being unable or unwilling to avail oneself of protection has puzzled students of UK refugee law ever since. Ultimately, the fundamental points emerging from the judgments in Horvath are twofold: 1. The duty of a State to protect its citizens is not absolute, in the sense that no State can absolutely protect all of its citizens all of the time. 2. If the State has set up and operates an effective system of protection for its citizens, it has discharged its duty and surrogate protection under the Refugee Convention is not available. This has been referred to as the systemic approach to sufficiency of protection, because it emphasises the importance of the creation of a general system rather than the actual protection of any given individual. Much turns, then, on the meaning of effective. Copying and circulation prohibited Page 83 of 105 (c) Colin Yeo 2014

86 Extent of the duty to protect The various judgments in Horvath are complex and, regrettably, follow diverse lines of reasoning. Quotation from those judgments is therefore necessary. On the central issue of sufficiency of protection the judgment of Lord Hope in the House of Lords is now generally regarded as the leading judgment. His comments on the necessary standard of protection were as follows: The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said at p.44g, under reference to Professor Hathaway s observation in his book at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. Lord Clyde s own comments reflect a similar viewpoint but are perhaps more practical in orientation: There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must also be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case. Lord Clyde also endorsed comments made by Stuart-Smith LJ in the Court of Appeal: It seems to me that the formulation presented by Stuart-Smith L.J. in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] I.N.L.R. 15, 26, para. 22): Copying and circulation prohibited Page 84 of 105 (c) Colin Yeo 2014

87 "In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders." Perhaps the most practical test is that adopted by Lord Lloyd, actually that of Stuart-Smith LJ in the Court of Appeal below (paragraphs 20, 22, & 44 of Stuart-Smith's judgment):... the state may be unwilling to afford protection to a certain class of its citizens if there is widespread and systemic indifference to their plight on the part of the law enforcement agencies such as the police and the courts No state can guarantee the safety of its citizens. And to say that the protection must be effective suggests it must succeed in preventing attacks, which is something that cannot be achieved. Equally to say that the protection must be sufficient, begs the question, sufficient for what? In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts to detect, prosecute and punish offenders. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. There may be many reasons why criminals are not brought to justice including lack of admissible evidence even where the best endeavours are made; they are not always convicted because of the Copying and circulation prohibited Page 85 of 105 (c) Colin Yeo 2014

88 high standard of proof required, and the desire to protect the rights of accused persons. Moreover, the existence of some policemen who are corrupt or sympathetic to the criminals, or some judges who are weak in the control of the court or in sentencing, does not mean that the state is unwilling to afford protection. It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy... In some cases where individuals are targeted by terrorists or dissidents it may be possible for the state to provide special police protection, for example by an armed guard or the provision of a new identity in a different part of the territory. But these attacks are unpredictable as to victims, time and location, and it is clear that the only form of protection which can be provided is in the form of deterrence through detection, prosecution, convictions and sentencing of criminals. In the later Court of Appeal case of Noune v Secretary of State for the Home Department [2000] EWCA Civ 306, Schiemann LJ suggested that it was possible to misinterpret the relevant passages in Horvath: a person is not disqualified from being a refugee where the law enforcement agencies are doing their best and are not being either generally inefficient or incompetent as that word is generally understood, implying lack of skill rather than lack of effectiveness. The effectiveness of the system of protection for the individual concerned must still be assessed. For claimants from democratic countries where there exists a system of protection that is generally accepted to be effective for most citizens, the task of establishing to the relevant standard that the claimant will not be able to obtain effective protection will be difficult. Even claimants from nondemocratic, even anarchic, countries, if returned to a specific area in which Copying and circulation prohibited Page 86 of 105 (c) Colin Yeo 2014

89 some form of State or non-state policing takes place, face similar problems in making out their claims. Severe persecution In Kinuthia v Secretary of State for the Home Department [2002] INLR 133, the Court of Appeal recognised that the existence of a system of protection was meaningless for some victims of persecution. The harm feared was serious ill-treatment and torture in detention and it was held that the tribunal had erred in finding that an effective system of redress amounted to a sufficiency of protection for the claimant. Pill LJ gave the leading judgment: [19] the Tribunal state that if the appellant "were to be maltreated whilst detained pending trial for belonging to this order, then again the information before us would indicate that there is recourse available to her." Having referred to the activities of Human Rights organisations in Kenya the Tribunal concluded that the appellant: Copying and circulation prohibited Page 87 of 105 (c) Colin Yeo 2014

90 ... would be protected were she to be abused whilst in prison pending trial In my judgment the ordinary reading of paragraph 11 is that the Tribunal have directed themselves that, provided recourse is available to the appellant for severe ill-treatment to her, that is a sufficient protection in Convention terms. I read the paragraph as drafted on the basis that there is a sufficiency of protection provided recourse and remedies for severe illtreatment are available within the Kenyan legal and administrative system [21] I am not able to read it as if it had said that there was no serious possibility of maltreatment while the appellant is in custody pending trial. Subsequent judicial action may be insufficient protection against maltreatment pending trial. Tuckey and Parker LLJ agreed with the judgment, Tuckey LJ adding: My problem with the Tribunal's reasons is that they do not make any finding as to whether the appellant faced a real risk of severe ill-treatment in custody. They simply say that if she were mistreated she would have a right of recourse. Recourse after mistreatment does not provide adequate protection. Kinuthia is therefore good authority for the proposition that redress after the event may not amount to sufficient protection for victims of severe persecution. State and non-state persecution The issue of the availability of protection by State authorities will not generally be relevant where the persecution comes from those same State authorities. It is only where the persecution comes from non-state actors that sufficiency of protection becomes relevant. In Horvath, Lord Clyde held: Copying and circulation prohibited Page 88 of 105 (c) Colin Yeo 2014

91 Of course where the state is itself through its agents the persecutor, the question does not require to arise. Active persecution by the state is the very reverse of protection. In that context it is sufficient to proceed simply upon dictionary definitions to stress the high standard of oppression which has to be found It is in the context of persecution by third parties that the problem of protection becomes more significant. Lord Hope was just as clear: In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. A problem can arise in claims involving persecution by State officials, as such claims might, depending on the circumstances, be classified as State or as non-state persecution. For example, a policeman who assaults a detainee at the police station might be thought to be acting as an agent of the State if the assault is part of a crack-down on terrorism or a targeted policy of persecution. The resources of the State have been employed and, as far as the victim is concerned, the policeman is a representative of the State. However, the policeman might be acting on a personal vendetta, in which case it is far less clear whether the responsibility of the State is engaged. The State may not sanction the actions of the official, therefore suggesting the persecution is not State persecution as such, yet the effect on the victim is similar to State persecution and it is likely to be more difficult to obtain protection. This category of claim was examined by the Court of Appeal in Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74. In the three judgments, all three Lords Justice agreed that the standard of protection available to the individual must be higher in claims involving persecution by State officials. At paragraph 47 of Svazas Stuart-Smith LJ states that: Copying and circulation prohibited Page 89 of 105 (c) Colin Yeo 2014

92 the more senior the police officers are who are involved in this persecution the more necessary it is for the state to demonstrate that their procedures are adequate and enforced so far as possible. But I would add that the gravity of this ill-treatment is a material consideration. The more serious the ill-treatment, both in terms of duration, repetition and brutality, the more incumbent it is upon the state to demonstrate that it can provide adequate protection. Simon Brown LJ also adopted this approach: there will be a spectrum of cases between on the one extreme those where the only ill-treatment is by non-state agents and on the other extreme those where the state itself is wholly complicit in the ill-treatment. Within that spectrum, the question to be addressed is whether or not the state can properly be said to be providing sufficient in the way of protection. When, however, one comes to address the question in this context rather than in the context of ill-treatment exclusively by non-state agents, one must clearly recognise that the more senior the officers of state concerned, and the more closely involved they are in the refugee s ill-treatment, the more necessary it will be to demonstrate clearly the home state s political will to stamp it out and the adequacy of their systems for doing so and for punishing those responsible, and the easier it will be for the asylum seeker to cast doubt upon their readiness, or at least their ability, to do so. Sedley LJ followed a different line of reasoning but his conclusions concerning the need for a greater degree of protection for victims of State officials were the same, if not stronger. Criticisms Some have suggested there is a tension between the existence of a general system of protection being sufficient and the requirement of the Refugee Copying and circulation prohibited Page 90 of 105 (c) Colin Yeo 2014

93 Convention to examine the individual circumstances and risk to the individual. Such an approach risks exposing some refugee claimants who are unable to avail themselves of the protection of the authorities of their country of origin to a well-founded fear of persecution. In the New Zealand case of Refugee Appeal No /99 (16 August 2000) the respected head of the New Zealand Refugee Appeal Authority, Rodger Haines QC, commented at paragraphs 62 to 67 that the analysis of the House of Lords explicitly permits refoulement even when there exists a wellfounded fear of persecution. At paragraph 66 he goes on: In our view the proper approach to the question of state protection is to inquire whether the protection available from the state will reduce the risk of serious harm to below the level of well-foundedness, or, as it is understood in New Zealand, to below the level of a real chance of serious harm. The duty of the state is not, however, to eliminate all risk of harm. This is the point made by Professor Hathaway in The Law of Refugee Status (1991) at 105 where he observes that we live in a highly imperfect world and that hardship and suffering remains very much part of the human condition for perhaps the majority of humankind. Professor Hathaway himself has criticised the intellectual underpinning to Horvath by arguing that the concept of surrogacy of protection does not require the sufficiency of protection approach. Internal relocation The Refugee Convention requires at Article 1A that a refugee cannot or will not avail him or herself of the protection of his or her country of nationality. If protection is available somewhere in the country of nationality, therefore, an applicant for asylum will not necessarily succeed in making out their refugee status claim even if that individual has been a victim of persecution or even would face persecution in some parts of the country. Copying and circulation prohibited Page 91 of 105 (c) Colin Yeo 2014

94 By their nature, internal relocation issues normally only arise in cases involving persecution by non State actors. Where the State is the persecutor, usually the reach of the State will extend to the whole territory. This is not a legal presumption as such, however. Qualification Directive The Qualification Directive addresses this issue of internal relocation or protection at Article 8: Internal protection 1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. 2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant. 3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin. They key tests are whether, firstly, there is a safe area then, secondly, whether the individual concerned can reasonably be expected to stay there. The question of whether the person might safely be able to reach the safe area must logically also be considered, albeit technical obstacles to return are not relevant, whatever those might be. Copying and circulation prohibited Page 92 of 105 (c) Colin Yeo 2014

95 This is not an issue that has so far been considered by the Court of Justice of the European Union so there is no additional case law guidance or interpretation to supplement the text of the Directive. The concept of internal relocation was a well developed one even before the advent of the Directive, though, and illumination can be sought in UK case law. Case law In the early UK refugee law case of R v Secretary of State for the Home Department and Immigration Appeal Tribunal ex parte Robinson [1997] Imm AR 568 the Court of Appeal addressed what was then referred to as the internal flight alternative and noted that: The Convention does not deal in express terms with a situation in which a person may technically be able to live in part of a country free of fear but for one reason or other it is not reasonable to expect him to do so. Obvious examples are parts of countries which are uninhabitable - desert areas or mountainous terrain are very straightforward illustrations - and other examples have cropped up over the years in which the terms of the Convention have been worked out in practice. The court set out four criteria it considered might make internal relocation to a safe area unreasonable: 1. Is the safe part of the country reasonably accessible, taking into account financial, logistical and any other good reasons? 2. Would the applicant/appellant be required to encounter great physical danger in travelling to or staying in another part of the country? 3. Would he be required to undergo undue hardship in travelling or staying there? 4. Does the quality of the internal protection meet basic norms of civil, political and socio-economic human rights? Copying and circulation prohibited Page 93 of 105 (c) Colin Yeo 2014

96 The court went on to say that the question of reasonableness was essentially one of undue harshness, a phrase borrowed from the Canadian case of Thirunavukkarasu. The holistic question of whether it would be unduly harsh to expect internal relocation incorporates all of the above considerations. Factors such as employment, accommodation, education, the absence of family or friends and the quality of protection of civil and political rights are clearly relevant under the fourth head, although they are by no means always decisive. Robinson was eventually followed by two House of Lords judgments on internal relocation, Januzi v Secretary of State for the Home Department [2006] UKHL 5 and AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49. In Januzi the House of Lords held that the question of whether an asylum applicant would be entitled to basic norms of civil, political and socio-economic human rights was not relevant, nor was a comparison between the conditions in which the asylum applicant lived in the host asylum country and the proposed site of relocation. The proper approach to assessing whether relocation as unduly harsh was to consider the circumstances of the individual applicant and the standards prevailing generally in the country of nationality. Lastly, there is no presumption that internal relocation will not be applicable in cases of State persecution: Copying and circulation prohibited Page 94 of 105 (c) Colin Yeo 2014

97 The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls... All must depend on a fair assessment of the relevant facts. In AH (Sudan), the House of Lords upheld an immigration tribunal decision finding that relocation of Darfuri refugees to refugee camps around Khartoum was reasonable despite the poor conditions in those camps and the ongoing risk of persecution. The House of Lords stressed that it would be an egregious and inexplicable error of law to equate the test of undue harshness with the standard of breaches of Article 3 of the European Convention on Human Rights and again emphasised that a holistic enquiry and assessment was needed: It is, or should be, evident that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant s way of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country. Copying and circulation prohibited Page 95 of 105 (c) Colin Yeo 2014

98 Example In the case of AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579 the Court of Appeal held that it would be unduly harsh to expect a particularly vulnerable single young woman to relocate from her home area to the capital, where she had no connections and an expert had concluded she would be forced to make a living as a prostitute. There is scope to argue internal relocation is unreasonable in individual cases, but evidence rather than generalised assertions is necessary. Copying and circulation prohibited Page 96 of 105 (c) Colin Yeo 2014

99 CESSATION, EXCLUSION AND REFOULEMENT Cessation Refugee status is, according to the Refugee Convention, a temporary form of protection. Several cessation clauses govern the circumstances in which a recognised refugee s status as a refugee ceases. These are set out at Article 1C: This Convention shall cease to apply to any person falling under the terms of section A if: (1) He has voluntarily re-availed himself of the protection of the country of his nationality; or (2) Having lost his nationality, he has voluntarily re-acquired it; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or (4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or (5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality; (6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence; Copying and circulation prohibited Page 97 of 105 (c) Colin Yeo 2014

100 Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence. It can be seen that the Refugee Convention does not oblige States to offer settlement to refugees. Far from it: Article 1C(5) allows for refugees to be returned whence they came if the situation has changed in the country from which the refugee fled and other parts of Article 1C permit withdrawal of protection in other circumstances as well. Change of country circumstances In practice, the humanitarian considerations underlying the concept of safe asylum mean that settlement in the country of sanctuary is often available to refugees. In the United Kingdom, a successful asylum claimant will be recognised as a refugee and five years leave to remain will be granted. At the end of five years an application for settlement (Indefinite Leave to Remain or ILR ) can be made and, in the absence of criminal offending, will normally be granted. It is theoretically possible for a refugee s case to be reviewed during that five year period, but only if the Government Minister responsible has issued a ministerial declaration that a particular country is now considered to be generally safe. The burden would rest with the Home Office to establish that the country is safe. At the time of writing this policy, introduced in 2005, had never been used. Detailed guidance is provided to Home Office caseworkers in the Asylum Policy Instruction on Cessation, Cancellation and Withdrawal of Refugee Status. Copying and circulation prohibited Page 98 of 105 (c) Colin Yeo 2014

101 Re-availing and re-establishing Article 1C(1) to (4) set out different circumstances where the actions of the refugee might endanger or directly sacrifice his or her refugee status. These are seldom employed in practice but there are certain forms of behaviour by a refugee that might potentially endanger their position. Applying for a new passport from the country of nationality and travel to the country of origin could trigger Article 1C(1) or (4) respectively. A prolonged stay in the country of nationality would certainly risk engaging (4). Where a refugee acquires a new nationality, such as British citizenship, then refugee status will cease. Exclusion and refoulement The Refugee Convention includes two key exclusion clauses which allow for a person who would otherwise be entitled to protection under the Convention to be refouled to their country of origin notwithstanding the dangers they may face there. Here the Refugee Convention differs markedly from the protection regime developed under Article 3 of the European Convention on Human Rights. Article 1F Article 1F completely excludes a person from refugee status if it applies: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; Copying and circulation prohibited Page 99 of 105 (c) Colin Yeo 2014

102 (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. The level of seriousness of the crimes or acts are clearly intended to be very serious in nature. Just how serious and how closely involved the individual asylum applicant has to have been in order to be excluded from protection have been considered in case law. In KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292 the Court of Appeal held that acts of a military nature committed by an independence movement (such as the LTTE in Sri Lanka) against the military forces of the government are not themselves acts contrary to the purposes and principles of the United Nations and suggested that an armed campaign against a government would not necessarily constitute acts contrary to the purposes and principles of the United Nations. LTTE police women Copying and circulation prohibited Page 100 of 105 (c) Colin Yeo 2014