8. Immigration Law - Asylum Seekers and Refugees

Acts of persecution

'Persecution' is not defined in the Refugee Convention. The UNHCR Handbook suggests that while it will often involve a threat to life or liberty, it could extend to other threats, such as to the person, livelihood, identity and nationality. Further examples of persecution are listed in reg 5(2) of the Qualification Regulations 2006. These include an act of physical or mental violence, including an act of sexual violence; a legal, administrative, police, or judicial measure which in itself is discriminatory, or which is implemented in a discriminatory manner; and prosecution or punishment which is disproportionate or discriminatory.

Section 8(1), cont.

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country. (5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification. (6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless— (a) he had no reasonable opportunity to make the claim before the arrest, or (b) the claim relies wholly on matters arising after the arrest.

Para 334 of the Immigration Rules - Convention, cont.

By para 334 of the Immigration Rules, an asylum applicant will be granted asylum in the UK if the Secretary of State is satisfied that: (a) he is in the UK or has arrived at a port of entry in the UK; (b) he is a refugee falling within Article 1 A. and not excluded; (c) there are no reasonable grounds for regarding him as a danger to the security of the UK; (d) he does not, having been convicted by a final judgment of a particularly serious crime, constitute danger to the community of the UK; and (e) refusing his application would result in his being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.

Article 33(2), cont. - What is a particularly serious crime such that the person constitutes a danger to the community of the UK?

By s 72 of the NIAA 2002, there is a general presumption of this where the person was sentenced to a period of imprisonment of at least two years.

Para 339P of the Immigration Rules - Sur place claims - 'on account of events which took place after they left their country of origin' - KS (Burma) v Secretary of State for the Home Department

Can a claimant have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which take place after he leaves his country of origin and/or activities in which he engages since leaving his country of origin? Yes, this provision can be found in the Immigration Rules, para 339P. The most common example is a claimant who carries on political activities in the UK. As Kay LJ stated in KS (Burma) v Secretary of State for the Home Department , 'It is unpalatable that someone may become entitled to refugee status as a result of his cynical manipulation but if, objectively, he has a well-founded fear of persecution by reason of imputed political opinion, that may be the reality.'

Attacks on applicant's family members - Frantisek Katrinak v Secretary of State for the Home Department

Can an attack upon an applicant's spouse or close family member amount to persecution of the applicant for the purposes of an asylum claim, even though there was no direct threat to the applicant himself ? 'Yes', said the Court of Appeal in Frantisek Katrinak v Secretary of State for the Home Department [2001] INLR 499.

Exclusion from Refugee Status

Even if an applicant meets the tests under the Refugee Convention, the UK Government will in certain circumstances refuse to grant him refugee status or forcibily remove him. However, in either circumstance it must still go on to consider if it is appropriate to

Article 33(2) of the Refugee Convention - Enforced removal - Allows the UK Government to remove a person who is otherwise a refugee where there are reasonable grounds for regarding him as a danger to the security of the UK,

Article 33(2) of the Refugee Convention allows the UK Government to remove a person who is otherwise a refugee where there are reasonable grounds for regarding him as a danger to the security of the UK, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the UK. Home Office guidance is that for a person to be a danger to the security of the UK, the actions or anticipated actions of that person need not create a direct threat to the UK's system of government or its people. The interests of national security could be threatened indirectly by activities directed against other States.

Religion - Omoruyi v Secretary of State for the Home Department.

As to the meaning of the word 'religion', see Omoruyi v Secretary of State for the Home Department. Note that reg 6(1)(b) of the Qualification Regulations 2006 provides that the concept of religion includes, for example, 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.

Home Office Checklist, cont.

(e) Can the applicant return to a part of the country in which he would not be subject to the harm feared? (f ) Is the harm feared a form of persecution? Is the harm of sufficient gravity to constitute persecution, or is it something less serious? Does the cumulative effect of lesser prejudicial actions or threats amount to persecution? If the applicant has a fear of prosecution or punishment for an offence, is the punishment discriminatory or disproportionate? Does this give rise to a fear of persecution? If the fear of prosecution is due to draft evasion or desertion, special considerations may apply. (g) If the harm feared is serious enough to constitute persecution, would it be inflicted for one or more of the reasons set out in the Refugee Convention, ie race, religion, nationality, membership of a particular social group or political opinion? (h) In the light of (a)-(g) above, does the applicant satisfy all the criteria of the 1951 Convention? (i) Should the applicant be excluded from international protection by operation of the exclusion clauses of the Convention? (j) If an applicant fails to qualify for asylum, decision makers should consider whether to grant humanitarian protection or discretionary leave.

How should a sur place claim be assessed?, cont.

(iii) Factors triggering inquiry/action on return • Profile - is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable? • Immigration history - how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)? (iv) Consequences of identification • Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime? (v) Identification risk on return • Matching identification to person - if a person is identified, is that information systematically stored and used; are border posts geared to the task?

'And is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country'

A claimant would be unable to avail himself of his country's protection if, for example, it refused entry to him, or refused to issue him with a passport. A claimant who fears persecution will normally be unwilling to accept his government's protection, and it is inconsistent

Persecution, cont. - R v Secretary of State for the Home Department, ex p Jeyakumaran (Selladurai);

A person does not have to be singled out for adverse treatment in order to be said to be persecuted (see R v Secretary of State for the Home Department, ex p Jeyakumaran (Selladurai). Discrimination may amount to persecution - this accords with the Tribunal decision of Padhu (12318), concerning the inability to work and deprivation of State benefits due to ethnic origin.

Article 1F.(c) - Terrorism - Acts of committing, preparing or instigating terrorism, or encouraging or inducing others to do so, are included within the meaning of what constitutes 'acts contrary to the purposes and principles of the United Nations'.

Also note that s 54 of the IANA 2006 interprets the meaning of Article 1F.(c). It provides that acts of committing, preparing or instigating terrorism, or encouraging or inducing others to do so, are included within the meaning of what constitutes 'acts contrary to the purposes and principles of the United Nations'. The application of Article 1F.(c) will be straightforward in the case of an active member of an organisation that promotes its objects only by acts of terrorism. In light of that approach, when might exclusion for 'encouraging [terrorism] or inducing others to [commit, prepare or instigate terrorism]' occur? This was considered by the Court of Appeal in Youssef v Secretary of State for the Home Department. In the case, it was not alleged that the applicant had incited or encouraged any specific piece of violence, or that any specific act of terrorism could be shown to be linked to his incitement or encouragement. It was accepted by the Secretary of State that no such specific link could be made. Rather it was argued that, in a sustained fashion over a long period, the applicant had praised Al Qaeda and its leaders, often by individual name, and encouraged others to follow them and support them.

Exclusion under Article 1F of the Refugee Convention

Article 1F. of the Refugee Convention excludes the following claimants from asylum because they are considered not to be deserving of international protection. This is because there are serious reasons for considering that they: (a) have committed a crime against peace, a war crime or a crime against humanity; or (b) have committed a serious non-political crime outside the country of refuge prior to admission into that country; or (c) are guilty of acts contrary to the purposes and principles of the United Nations.

Article 25 of the Rome Statute 2002 - Individual criminal responsibility for a crime against humanity - AA-R (Iran) v Secretary of State for the Home Department

Article 25 of the Rome Statute 2002 regulates individual criminal responsibility for a crime against humanity falling within Article 7. Article 25(3) provides: 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.

The Home Office checklist

Home Office asylum case owners use the following checklist when assessing a claim: (a) What is the applicant's basis of claim? (b) Which of the applicant's claims about past events can be accepted? Are the applicant's claims as to his past experiences consistent with objective country policy and information notes relating to the relevant period, including generally known facts? Are the applicant's claims consistent with other evidence submitted, eg the evidence of other witnesses, family members or documents specifically referring to the applicant? Are any of the applicant's claims about his past experiences not able to be corroborated by reference to country of origin information or other evidence? If so, can the benefit of the doubt be given to any of these claims? If not, why not? After due consideration of the principle of the benefit of the doubt, which of the applicant's material claims can be accepted, and which can be rejected? (c) Taking into account the applicant's statements and behaviour, does the applicant have a subjective fear of persecution? (d) Objectively, are there reasonable grounds for believing that the harm feared might in fact occur in the applicant's country of origin? Who are the actors of persecution? Do the authorities of the home country conduct the persecution, or support persecution committed by others? How far is the State or organisations controlling the State (including international organisations) able to provide protection from persecution caused by others? What laws are in place and are they enforced effectively? Has the applicant sought the protection of the authorities? If so, what was the outcome? If not, why not? Considering the objective country of origin information, the past experiences of the applicant and the attitude of the State authorities, is there a reasonable likelihood that the applicant would experience harm if returned?

Section 8(6) - An applicant's credibility must be treated as damaged if the claim is made after the applicant's arrest under an immigration provision unless there was no reasonable opportunity to make the claim before the arrest, or the claimant relies wholly on matters arising after the arrest.

Home Office guidance is that an applicant's credibility must be treated as damaged if the claim is made after the applicant's arrest under an immigration provision unless there was no reasonable opportunity to make the claim before the arrest, or the claimant relies wholly on matters arising after the arrest. An applicant has had a reasonable opportunity to claim asylum before being arrested if he could have approached the authorities at any time after his arrival in the UK.

What is a reasonable explanation for the purposes of s 8(3)(a) and (c)-(e)? - Reasonable Explanation

Home Office guidance is that this may include exceptional situations where the applicant could not easily have disobeyed the instructions of an agent who facilitates immigration into the UK; cases where an adult is severely traumatised, or where cultural norms may make it difficult for a person to answer questions at interview or to disobey instructions, including instructions about documents; situations where a person can show that a document was destroyed or disposed of as a direct result of force, threats or intimidation, eg where an individual was forced at knifepoint to give a document to someone else; or where the document has been lost or stolen and the individual can substantiate such a claim, usually with a police report of the loss or theft.

Nationality - Membership of a group determined by such matters as its cultural, ethnic, or linguistic identity.

Identity with a group of people that share legal attachment and personal allegiance to a particular place as a result of being born there. The term 'nationality' includes citizenship, or the lack of it, as well as membership of a group determined by such matters as its cultural, ethnic, or linguistic identity. Persecution for reasons of nationality may consist of adverse actions and measures against a national, ethnic or linguistic minority, and in certain circumstances the fact of belonging to such a minority may in itself give rise to a well-founded fear of persecution.

How should a sur place claim be assessed? - BA (Demonstrators in Britain - risk on return) Iran CG

In BA (Demonstrators in Britain - risk on return) Iran CG, the Tribunal identified the following factors: (i) Nature of sur place activity • Theme of demonstrations - what do the demonstrators want (eg reform of the regime through to its violent overthrow); how will they be characterised by the regime? • Role in demonstrations and political profile - can the person be described as a leader; mobiliser (eg addressing the crowd); organiser (eg leading the chanting); or simply a member of the crowd; if the latter is he active or passive (eg does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime? • Extent of participation - has the person attended one or two demonstrations, or is he a regular participant? • Publicity attracted - has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)? (ii) Identification risk • Surveillance of demonstrators - assuming the regime aims to identify demonstrators against it, how does it do so: through filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc? • Regime's capacity to identify individuals - does the regime have advanced technology (eg for facial recognition); does it allocate human resources to fit names to faces in the crowd?

What is the effect of Section 8(1) - JT (Cameroon) v Secretary of State for the Home Departmen

In JT (Cameroon) v Secretary of State for the Home Department, the Court of Appeal held that the section lays down a framework of factors that may potentially damage a claimant's credibility.

Persecution, cont. - R (Sivakumar) v Secretary of State for the Home Department - Regulation 5(1) of the Qualification Regulations 2006 provides that an act of persecution must be sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 ECHR.

In R (Sivakumar) v Secretary of State for the Home Department [2003] 2 All ER 1097, the House of Lords held that it is the severity of the treatment inflicted on the applicant that has a logical bearing on the issues. Excessive or arbitrary punishment can amount to persecution. See further the discussion in the Court of Appeal case of MI (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 826 at [55]-[58]. Regulation 5(1) of the Qualification Regulations 2006 provides that an act of persecution must be sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 ECHR. The basic human rights from which derogation cannot be made under the ECHR include Article 2 (right to life - save that derogation is permitted in respect of deaths resulting from lawful acts of war); Article 3 (prohibition of torture, inhuman or degrading treatment or punishment); Article 4(1) (prohibition of slavery) and Article 7 (no punishment without law).

Compulsory Military Service and Imputed Political Opinion - In what circumstances may a person who objects to carrying out compulsory military service be granted asylum? - Sepet v Secretary of State for the Home Department; Sivakumar v Secretary of State for the Home Department

In Sepet v Secretary of State for the Home Department, the House of Lords held that refugee status should be accorded to a person who refuses 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. Even if a claimant does not hold political views which his government opposes, it may well be that the government believes that he does. So a person to whom a political opinion is imputed may qualify for refugee status: see Sivakumar v Secretary of State for the Home Department.

What if the persecution feared comes from non-State actors when the State is unwilling or unable to intercede? - Gashi and Nikshiqi v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening)

In the case of Gashi and Nikshiqi v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1997] INLR 96, the Tribunal held that persecution includes the failure of a State to protect: (a) those rights which are non-derogative even in times of compelling national emergency (the right to life; prohibition against torture and cruel, inhumane or degrading treatment); (b) those rights which are derogative during an officially recognised life-threatening public emergency (freedom from arbitrary arrest and detention; fair trial); (c) some aspects of those rights which require States to take steps to the maximum of their available resources to realise rights progressively in a non-discriminatory manner (the right to earn a livelihood; the right to a basic education; the right to food, housing and medical care).

Should the applicant have to change his behavior to avoid persecution if returned? - HJ (Iran) v Secretary of State or the Home Department; and RT (Zimbabwe) v Secretary of State for the Home Department [

Is a claimant required to take reasonable measures if returned home to avoid persecution? For example, where an applicant claims to have been persecuted as a homosexual, is it relevant to take into account whether it would be reasonable to expect him to behave 'discreetly' if returned? No, held the Supreme Court in HJ (Iran) v Secretary of State or the Home Department [2010] UKSC 31. So, equally, as 'a general proposition a person found to have genuine political beliefs cannot be refused refugee status merely because they have declined to hide those beliefs, or to act "discreetly", in order to avoid persecution': per Carnwath LJ in RT (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 1285 at [25].

What is a safe country for the purposes of s 8(4)?

It is any country listed in Part 2 of Sch 3 to the AI(TC)A 2004. What is a reasonable opportunity to claim asylum in such a country? Home Office guidance is that the claimant could have approached the authorities at the border or internally, as long as there is no reason to think that the claim would not have been received. For example, it might be thought that someone who spent several weeks in France before coming to the UK must have had a reasonable opportunity to claim asylum there; but this would not be reasonable if the applicant was imprisoned by traffickers throughout that time.

'Is outside the country of his nationality'

No one can claim to be a refugee until he has left the country of which he is a citizen. The claimant must be outside his country owing to fear of persecution there.

Article 1F.(b) - Extermination

Note that reg 7(2) of the Qualification Regulations 2006 interprets the meaning of Article 1 F.(b) as follows: The reference to 'serious non-political crime' includes a particularly cruel action, even if it is committed with an allegedly political objective. The reference to the crime being committed outside the country of refuge prior to his admission as a refugee shall mean the time up to and including the day on which a residence permit [signifying the grant of refugee status] is issued.

Para 196 of the Handbook on Procedures and Criteria for Determining Refugee Status - Benefit of the doubt

Obviously, the applicant may find it difficult to provide evidence of events in his home country and many statements may be unsupported. According to the UNHCR Handbook, statements should not necessarily be rejected for that reason: 'If the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt' (para 196). Unsupported statements need not, however, be accepted if they are inconsistent with the general account put forward by the applicant (para 197).

Membership of a particular social group - Islam (Shahana) v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Secretary of State for the Home Department, ex p Syeda Shah - A 'particular social group' consists of a group of persons who share a common, immutable characteristic that either is beyond the power of an individual to change, or is so fundamental to the individual's identity or conscience that he ought not to be required to change it.

Over recent years, the courts have given much consideration as to what is meant by the expression 'particular social group'. In the joint cases of Islam (Shahana) v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Secretary of State for the Home Department, ex p Syeda Shah [1999] INLR 144, the House of Lords had to decide if two Pakistani women, who had fled Pakistan after false allegations of adultery and violence by their husbands, were part of such a group. The House held that a 'particular social group' consists of a group of persons who share a common, immutable characteristic that either is beyond the power of an individual to change, or is so fundamental to the individual's identity or conscience that he ought not to be required to change it. Thus, as gender is an immutable characteristic that is beyond the power of the individual to change, and as discrimination against women is prevalent in Pakistan, in violation of fundamental rights and freedoms, women in Pakistan constitute a particular social group.

Paragraphs 4 and 5 of Part 2, AI(TC)A 2004 - Prevents removal while an asylum claim is pending; and Prevents a person being removed from bringing an appeal within the UK on the basis that the country is not safe for Refugee Convention purposes or ECHR purposes in terms of onward removal

Paragraph 4 of Part 2 disapplies s 77 of the NIAA 2002 (which prevents removal while an asylum claim is pending) where the Secretary of State certifies that a person is to be removed to a listed State and he is not a national or citizen of that State. Paragraph 5 of Part 2 prevents a person being removed from bringing an appeal within the UK on the basis that the country is not safe for Refugee Convention purposes or ECHR purposes in terms of onward removal. Paragraph 5 provides that where a human rights claim made on another basis is certified as clearly unfounded, a person being removed is similarly prevented from bringing an appeal within the UK. Lastly, para 5 provides that any human rights claim against removal (other than on the basis of onward removal) will be certified by the Secretary of State as clearly unfounded unless he is satisfied that it is not.

Particular Social Group, cont. - K v Secretary of State for the Home Department; and Fornah v Secretary of State for the Home Department

Regulation 6(1)(d) of the Qualification Regulations 2006, as interpreted in K v Secretary of State for the Home Department; Fornah v Secretary of State for the Home Department [2006] UKHL 45, [2007] 1 All ER 671, provides two useful guidelines defining a particular social group. First, where 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. Secondly, where the group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

Section 8(1) of the AI(TC)A 2004 - Similar guidelines for assessing the credibility of the claimant. Statutory Adverse Inferences

Section 8(1) of the AI(TC)A 2004 includes similar guidelines for assessing the credibility of the claimant. The key provisions are as follows: (1) 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 behavior to which this section applies. (2) This section applies to any behavior by the claimant that the deciding authority thinks— (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant. (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead— (a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State, (b) the production of a document which is not a valid passport as if it were, (c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport, (d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and (e) failure without reasonable explanation to answer a question asked by a deciding authority.

Overview - Relevant law

Set out below is a list of the key legal provisions referred to in this chapter: (a) The United Nations' 1951 Convention and 1967 Protocol Relating to the Status of Refugees (generally known as 'the Refugee Convention'). (b) UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. (c) Parts 11 and 11B of the Immigration Rules. (d) The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) ('Qualification Regulations 2006'). A copy is reproduced at Appendix 14. (e) UK and ECHR case law. (f ) Home Office asylum policy instructions and process guidance.

Article 1F.(c) - Terrorism, cont.

The Court held that individual responsibility for acts falling within Article 1F.(c) can arise solely by way of implicit or explicit encouragement of such acts, in the absence of evidence that an offence has been committed or attempted as a consequence of anything said or done by the applicant. The Court pointed out that there is a high threshold before Article 1F.(c) is triggered. The activity must be capable of affecting international peace and security.

Claimant's Duties - 339I - 339N of the Immigration Rules

The Immigration Rules (paras 339I-339N) list some factors which are taken into account. These start by imposing a duty on the claimant to submit to the Secretary of State, as soon as possible, all material factors needed to substantiate the asylum claim. It is further the duty of the claimant to substantiate the claim. Paragraph 339L of the Immigration Rules provides that where aspects of the claimant's statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met: (a) the claimant has made a genuine effort to substantiate his asylum claim; (b) all material factors at the claimant's disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given; (c) the claimant's statements are found to be coherent and plausible, and do not run counter to available specific and general information relevant to his case; (d) the claimant has made an asylum claim at the earliest possible time, unless he can demonstrate good reason for not having done so; and (e) the general credibility of the claimant has been established.

Para 327 of the Immigration Rules; and Article 1. of the Refugee Convention - Definition of Asylum Seeker - Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion

The Immigration Rules, para 327 defines an applicant for asylum as a person who makes a request to be recognised as a refugee under the Refugee Convention on the basis that it would be contrary to the UK's obligations under that Convention for him to be removed from or required to leave the UK, or otherwise makes a request for international protection. To be granted asylum, or the status of a refugee, a claimant must meet the following requirements as set out in Article 1 A. of the Refugee Convention: [The claimant,] 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, is unwilling to return to it.

AI(TC)A 2004, Part 2

The Schedule sets out in Parts 2 to 5 a graduated approach to the 'safety' of third countries for the purposes of the Refugee Convention and the ECHR. Broadly, these are as follows. Part 2 of Sch 3 deals with countries that are deemed safe for Refugee Convention purposes and for claims that onward removal from the State would breach the ECHR. All human rights claims against removal will be certified by the Secretary of State as clearly unfounded unless he is satisfied that they are not. In Nasser v Secretary of State for the Home Department, the claimant challenged the legality of the Part 2, para 2 list. The House of Lords held that whilst the statute creates an irrebuttable presumption that the claimant may be removed from the UK to a country listed at para 2 of Part 2, the presumption does not preclude an inquiry into whether the claimant's Article 3 ECHR rights would be infringed for the different purpose of deciding whether the provision is incompatible with his Convention rights. In this case the Secretary of State accepted that that if removal to the country would infringe those rights then the conclusive presumption would be incompatible. See also R (on the application of EM (Eritrea)) v Secretary of State for the Home Department.

Well-Founded Fear of Persecution - R v Secretary of State for the Home Department, ex p Sivakumaran and conjoined appeals (UN High Commissioner for Refugees Intervening)

The claimant must be in fear of persecution, but his claim can be rejected if there is no real risk or reasonable likelihood of persecution (R v Secretary of State for the Home Department, ex p Sivakumaran and conjoined appeals (UN High Commissioner for Refugees Intervening) [1988] 1 All ER 193).

Race

The concept of race includes, for example, color, descent, or membership of a particular ethnic group. The fact that a claimant belongs to a certain racial group is not normally enough to prove a claim.

Persecution of non-State actors; State Unable or Unwilling to Intercede, cont.

The sufficiency of State protection was to be measured not by the existence of a real risk of an abuse of human rights but by the availability of a system for the protection of the citizen and a reasonable willingness to operate that system.

Safe third country exception - Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (AI(TC)A) , Sch 3); and Para 345(B and C) of the Immigration Rules

There will be no breach of obligation if the UK returns the refugee to a 'safe country' which itself has an obligation to grant him asylum, and which could be expected to fulfill the requirements of the Refugee Convention. The general principle operated by governments is that a refugee should seek asylum in the first 'safe country' he reaches. For the meaning of first country of asylum and safe third country, see paras 345B and 345C of the Immigration Rules. Under EU Regulation 604/2013 ('the Regulation') or the Dublin Convention, the UK may return an asylum seeker to the EU Member State which has responsibility for the asylum claim under the terms of the Refugee Convention (eg because that State granted him a visa, or he first entered that State as an illegal entrant). The Home Office will not remove the asylum seeker until the State receiving him has accepted its responsibility under the Regulation or the Dublin Convention. Once that has happened, the Home Office will assume that the receiving State will itself consider the claim and grant refugee status if the claim is well founded.

Persecution by non-State actors; State Unable or Unwilling to Intercede - Horvath v Secretary of State for the Home Department - Failure of the State to provide protection was an essential element

This case established that persecution implied a failure by the State to make protection available against the illtreatment or violence which had been suffered at the hands of the persecutors. In such a case, the failure of the State to provide protection was an essential element, and accordingly the person claiming refugee status had to show that the feared persecution consisted of acts of violence against which the State was unable or unwilling to provide protection. Such a conclusion was consistent with the principle of surrogacy which underpinned the Convention, namely that the protection afforded by the Convention was activated only upon the failure of protection by the home State. Moreover, the application of that principle rested upon the assumption that the home State was not expected to achieve complete protection against random and isolated attacks.

Para 339O of the Immigration Rules - Internal flight alternative or internal relocation - R v Immigration Appeal Tribunal, ex p Jonah.

What if the persecution is to be feared in only part of the country? Paragraph 339O of the Immigration Rules provides that the Secretary of State will not grant asylum if in part of the country of origin a person would not have a well-founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country. So if someone would be safe only if he lived in a remote village, separated from his family, his flight from the country can still be said to be based on a fear of persecution there.

Article 1F(a) - SK (Zimbabwe) v Secretary of State for the Home Department [

What is a 'crime against humanity' for the purposes of Article 1F.(a)? The starting point is the following definition in Article 7(1) of the Rome Statute of the International Criminal Court 2002: 1. ... any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (e) Imprisonment or other severe deprivation of physical liberty ...; (f ) Torture; (h) Persecution ... on political, racial, national, ethnic, cultural, religious, gender ... grounds (i) Enforced disappearance of persons;... (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Medical evidence of injury or scarring - SA (Somalia) [2006] EWCA Civ 1302 and RT (medical reports, cause of scarring) Sri Lanka; and 'Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment', usually known as the 'Istanbul Protocol' - Not Consistent; Consistent with; Highly Consistent; Typical of; and Diagnostic of

When obtaining medical evidence of a claimant's injuries or scarring, it is important that the expert assesses how they were caused: see SA (Somalia) [2006] EWCA Civ 1302 and RT (medical reports, cause of scarring) Sri Lanka [2008] UKAIT 00009. Where possible an expert should be instructed in accordance with the 'Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment', usually known as the 'Istanbul Protocol', submitted to the UN High Commissioner for Human Rights in 1999, to consider the degree of consistency on the following scale: (1) Not consistent: the injury or scarring could not have been caused as alleged. (2) Consistent with: the injury or scarring could have been caused as alleged, but it is nonspecific and there are many other possible causes. (3) Highly consistent: the injury or scarring could have been caused as alleged, and there are few other possible causes. (4) Typical of: this is an appearance that is usually found with this type of injury or scarring, but there are other possible causes. (5) Diagnostic of: this appearance could not have been caused in any way other than that alleged. If on examining an applicant for asylum it appears to the medical expert that features of the scarring said to be corroborative of the applicant's account of torture indicate that there are medical issues which cast doubt on that account, it will be the duty of the expert witness to draw these issues to the attention of the Tribunal.

Para 339K of the Immigration Rules - Current fear and past acts of persecution -Adan v Secretary of State for the Home Department

Whilst there must be a current fear of persecution for a Convention reason upon return (see Adan v Secretary of State for the Home Department [1999] 1 AC 293), persecution suffered in the past is relevant to whether a person has a current, well-founded fear of persecution.