UK - Court of Appeal, 15 April 2008, YB (Eritrea) v Secretary of State for the Home Department, [2008] EWCA Civ 360

Facts:

The applicant was a 28 year-old Eritrean man who came to the UK using a legitimately obtained student visa. He never began his course of study but claimed asylum on the basis that while working for an Italian NGO, he had also worked for a cell of the Eritrean Democracy Party (‘EDP’). When he received a note from his local government office asking him to attend, he fled to Sudan; also discovering that his younger brother had been arrested as a hostage.  On arrival in the UK he was elected as the Chair of the local EDP in Newcastle. The Tribunal gave limited weight to applicant’s evidence about what had happened in Eritrea. Reference was made to the Tribunal’s earlier decision in Danian which held that a person who makes a refugee claim on the basis of bad faith falls outside the Geneva Convention, although not the Court of Appeal’s decision in the same case, that took a different view.

Decision & reasoning:

The Court of Appeal allowed the appeal and remitted it to the Tribunal for further consideration. The Court considered the issue of how to assess a fear of asylum which may be based on activities in the UK perused solely for the basis of establishing an asylum claim and made a number of findings. 

First of all, the Court noted that the Tribunal had incorrectly understood that law on sur place claims. The Tribunal had noted that those who had acted in bad faith to create a well-founded fear of persecution by their activities in the UK fell outside the scope of the 1951 Refugee Convention and can be deported to his or her home country even if he or she had a well-founded fear of persecution. However this was based on the Tribunal’s decision in the case of Danian (see separate summary) and overlooked the Court of Appeal’s decision in the same case which established that in such cases, even though the applicant’s “credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered” (see separate summary).

Secondly, the Court considered Articles 4 and 5 of the Qualification Directive. It noted that although Article 5(3), “perhaps oddly” appeared to permit Member States to reject subsequent applications made on the basis of sur place  activities, a claim for asylum based on bad faith activities was not barred. A difference exists between sur place activities pursued by a political dissident against his or her own government in the country of refuge which may expose him or her to a risk of ill treatment or persecution and activities that were pursued solely with the motive of creating such a risk. However, the Directive should not be interpreted to prevent a claim based on opportunism. It requires an assessment of whether the authorities in the country of origin are likely to observe and record the claimant’s activities and recognises that those authorities may realise or be persuaded that the activity was insincere and, the fear of consequent ill-treatment not well-founded.

Finally, it assessed the Tribunal’s consideration of the evidence and, in particular, the Tribunal’s finding that in spite of the evidence about the repression of political opponents by the Eritrean regime, there was no basis upon which it could be considered that the Eritrean authorities had the means or the inclination to monitor anti-regime political activity in the UK.  The Court of Appeal held that “it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the Directive”.

Outcome:

Appeal allowed and remitted to the Tribunal for further consideration.

Observations/comments:

The case should be considered with regard to the earlier decision in Danian (see separate summary).