Upper Tribunal (Immigration and asylum chamber), 2016-04-14, [2016] UKUT 188 (IAC) (IM and AI (Risks – membership of Beja Tribe, Beja Congress and JEM) (CG))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Jordan, Upper Tribunal Judge Blum |
| Status | Reported |
| Date | 14 April 2016 |
| Published date | 22 June 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 04 November 2015 |
| Subject Matter | Risks – membership of Beja Tribe, Beja Congress and JEM) (CG |
| Appeal Number | [2016] UKUT 188 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
IM and AI (Risks – membership of Beja Tribe, Beja Congress and JEM) Sudan CG [2016] UKUT 00188 (IAC)
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision Promulgated |
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28 and 29 July 2015 4 November 2015 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE JORDAN
UPPER TRIBUNAL JUDGE BLUM
Between
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IM
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AI
(ANONYMITY ORDER MADE)
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:
For the first appellant: Ms M. Vidal and Mr J. Thai-Duy Dinh, Counsel, Duncan Lewis
For the second appellant: Mr S. Vokes and Ms E. Rutherford, Counsel instructed by Fountain Solicitors
For the respondent: Mr C. Thomann, Counsel instructed by Government Legal Department
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In order for a person to be at risk on return to Sudan there must be evidence known to the Sudanese authorities which implicates the claimant in activity which they are likely to perceive as a potential threat to the regime to the extent that, on return to Khartoum there is a risk to the claimant that he will be targeted by the authorities. The task of the decision maker is to identify such a person and this requires as comprehensive an assessment as possible about the individual concerned.
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The evidence draws a clear distinction between those who are arrested, detained for a short period, questioned, probably intimidated, possibly rough handled without having suffered (or being at risk of suffering) serious harm and those who face the much graver risk of serious harm. The distinction does not depend upon the individual being classified, for example, as a teacher or a journalist (relevant as these matters are) but is the result of a finely balanced fact-finding exercise encompassing all the information that can be gleaned about him. The decision maker is required to place the individual in the airport on return or back home in his community and assess how the authorities are likely to re-act on the strength of the information known to them about him.
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Distinctions must be drawn with those whose political activity is not particularly great or who do not have great influence. Whilst it does not take much for the NISS to open a file, the very fact that so many are identified as potential targets inevitably requires NISS to distinguish between those whom they view as a real threat and those whom they do not.
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It will not be enough to make out a risk that the authorities’ interest will be limited to the extremely common phenomenon of arrest and detention which though intimidating (and designed to be intimidating) does not cross the threshold into persecution.
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The purpose of the targeting is likely to be obtaining information about the claimant’s own activities or the activities of his friends and associates.
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The evidence establishes the targeting is not random but the result of suspicion based upon information in the authorities’ possession, although it may be limited.
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Caution should be exercised when the claim is based on a single incident. Statistically, a single incident must reduce the likelihood of the Sudanese authorities becoming aware of it or treating the claimant as of significant interest.
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Where the claim is based on events in Sudan in which the claimant has come to the attention of the authorities, the nature of the claimant’s involvement, the likelihood of this being perceived as in opposition to the government, his treatment in detention, the length of detention and any relevant surrounding circumstances and the likelihood of the event or the detention being made the subject of a record are all likely to be material factors.
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Where the claim is based on events outside Sudan, the evidence of the claimant having come to the attention of Sudanese intelligence is bound to be more difficult to establish. However it is clear that the Sudanese authorities place reliance upon information-gathering about the activities of members of the diaspora which includes covert surveillance. The nature and extent of the claimant’s activities, when and where, will inform the decision maker when he comes to decide whether it is likely those activities will attract the attention of the authorities, bearing in mind the likelihood that the authorities will have to distinguish amongst a potentially large group of individuals between those who merit being targeted and those that do not.
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The decision maker must seek to build up as comprehensive a picture as possible of the claimant taking into account all relevant material including that which may not have been established even to the lower standard of proof.
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Once a composite assessment of the evidence has been made, it will be for the decision maker to determine whether there is a real risk that the claimant will come to the attention of the authorities on return in such a way as amounts to more than the routine commonplace detention but meets the threshold of a real risk of serious harm.
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Where a claimant has not been believed in all or part of his evidence, the decision maker will have to assess how this impacts on the requirement to establish that a Convention claim has been made out. He will not have the comprehensive, composite picture he would otherwise have had. There are likely to be shortfalls in the evidence that the decision maker is unable to speculate upon. The final analysis will remain the same: has the claimant established there is a real risk that he, the claimant, will come to the attention of the authorities on return in such a way as amounts to more than the routine commonplace detention and release but meets the threshold of serious harm.
Glossary
ACJPS African Centre for Justice and Peace Studies
CPA Comprehensive Peace Agreement
CIG Country Information and Guidance
COI Country of Origin Information
ESPA Eastern Sudan Peace Agreement (2006)
ICC International Criminal Court
JEM Justice and Equality Movement
NCP National Congress Party
NISS Sudan’s national Intelligence and Security Services,
sometimes referred to as
NSIS National Security and Information Service
OGN Operational Guidance Note
OHCHCR Office of the United States High Commissioner for Human Rights
ORDF Organisation for Defence of Rights and Freedoms
PST Norwegian Police Security Service
SAF Sudan Alliance Forces
SCP Sudanese Communist Party
SLM Sudan Liberation Movement
SOAT Sudan Organisation Against Torture
SPLA Sudan People‘s Liberation Army
SPLM Sudan People‘s Liberation Movement
SPLM-N Sudan People's Liberation movement – North,
the major element of the
SLM Sudan Liberation Movement
SRF Sudanese Revolutionary Front,
attended by JEM, SPLM and SCP members
UEDP United Ethiopian Democratic Party
UNMIS United Nations Mission in Sudan
which wound up its operations on 9 July 2011 the same day South Sudan declared independence
UNMISS United Nations Mission in South Sudan, the successor to UNMIS
DECISION AND REASONS
Introduction and Immigration History
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Both appellants are citizens of Sudan whose appeals are being re-determined for the purposes of providing Country Guidance as to the risks faced by those returning to Sudan. The appeal was heard on 28 and 29 July 2015 at which point the hearing was adjourned because Mr Thomann for the Secretary of State was aware that the Country of Origin Information (COI) Service of the Home Office was finalising additional Country Information, now known as Country Information and Guidance (CIG). This material, as the name suggests, is a mixture of COI material and Guidance. The Guidance does not form part of the COI and has been described as policy guidance. The documents are thematic. Two such products were published. One was entitled Sudan: Treatment on return; the other - Sudan: Treatment of persons involved in ‘sur place’ activity in the UK published in August 2015. In addition, the adjournment permitted the Secretary of State to produce a translation of a Swedish report of October 2010 which recorded the findings of a fact-finding mission made as long ago as October 2009. In the meantime, the appellants’ expert produced additional material relating to the hacking of electronic communications by the Sudanese...
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