Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04210/2012

THE IMMIGRATION ACTS

Heard at North Shields
Determination sent
on 25th October 2013
on 12th December 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AKD
(Anonymity order in force)
Respondent
Representation:
For the Appellant: Mrs Rackstraw - Senior Home Office Presenting Officer.
For the Respondent: Ms Pickering instructed by Parker Rhodes Hickmotts Solicitors.

DETERMINATION AND REASONS

1. On 9th August 2013, for the reasons set out in the error of law finding and directions document of the same date, it was found First-tier Tribunal Judge Handley had erred in law in allowing AKD's appeal on asylum and Article 2 and 3 ECHR grounds, against a direction for his removal to Senegal which accompanied the rejection of his claim for asylum or any other form of international protection.

2. AKD was born on 17th December 1978 and is a national of Senegal. The core of his claim to be at risk on return to his home state is set out at paragraphs 6 to 11 of the First-tier Tribunal's determination. He arrived in the United Kingdom in 2007 to study and prior to this was politically active in Senegal, although experienced no problems prior to leaving the country. He returned to Senegal in 2010 where he claimed he became a founding member of Y'en Marre ("YAM") which he and a number of others set up due to the conditions in Senegal. AKD claims that during this time he met Aliou Tine, the President of a human rights organisation, who agreed to support YAM although shortly thereafter AKD stated he was arrested and questioned about the meeting, denied food and water, but released after 24 hours. AKD and others submitted documents to enable YAM to be approved by the authorities although he, his brother, and others were attacked. AKD claims he was able to escape and reported the matter to the police but they did not help him. He claims to have been warned about his association with YAM and to have received threatening telephone calls but did not inform the police.

3. AKD left Senegal in December 2010. He claims he has contacted his family who told him not to return and that other members of YAM have given him similar advice. He claims his brother was killed on 31st January 2012 four days after declaring that President Wade should go, a declaration broadcast on television. The police told AKD it was an accident but he believes his brother was killed. He claims he saw his brother being beaten in Senegal. Others have been arrested and he has received threatening e-mails. Since leaving Senegal AKD claims to have been involved with a number of radio programmes where individuals telephone in with comments/questions. He claims to have given his name when telephoning a particular radio station because he was representing YAM.

4. The preserved findings of the First-tier Judge are in the following terms:

53. I am therefore satisfied that the appellant was involved in the founding of YAM and that he came to the attention of the authorities as a consequence of that involvement. I accept that his brother had a similar involvement with this group and that he too came to the attention of the Authorities. He was killed when attending a demonstration and I accept that his death was reasonably likely to have been as a consequence of his involvement with YAM and his known opposition to the government.

Discussion

5. It was found by the First-tier that the purpose of YAM was to challenge the validity of President Wade who was seeking a further term of office. As identified in the application for permission to appeal and grant of permission, by the time the case came to hearing before the First-tier Judge, President Wade was no longer in power as he had been replaced by President Sall following relatively peaceful elections.

6. Miss Pickering submitted there still remain two issues for the Upper Tribunal to consider when assessing whether the change in government in Senegal made it safe for AKD to return. These are what YAM represents and whether the change in government has made any material difference to the risk on return.

7. Documentary evidence has been provided by both advocates in relation to the first of these issues all of which I have considered in detail. In the SSHD's bundle, page 6, is a print out from the internet headed "World Movements: Y'en a Marre" which contains the following text :

In April 2012, the African Union, the European Union and the United Nations were all quick to applaud the ex-President of Senegal Abdoulaye Wade for stepping down from power so gracefully after his election defeat and pointed to him as a great example of an African leader committed to democracy. Yet this man, and this election in particular, were notable for something different. Abdoulaye Wade's less than peachy tenure has sparked a cultural movement in Senegal involving a group of young activists who had had enough of the system and wanted change. And to achieve it, they used music.

The grassroots movement began in 2011 and was called Y'en a Marre, the French equivalent of our idiom 'enough is enough' as chosen by Senegalese rappers Thiat and Kilifeu (from the hip hop band Kear Gui of Koalack and Fou Malade, which means 'crazy sick guy') along with journalists Fadel Barro and Alio Sane. It aimed to encourage Senegalese people to go out and vote, to take a stand against the government's mismanagement and corruption and to encourage a sense of civic duty - the lack of which had allowed the corruption in Senegal to get so bad. By this point, an ageing Wade who ruled with the help of his son was no longer the poster boy for African democracy, but an out of touch leader who, behind a veil of democracy, was responsible for running a government which was bogged down by corruption and nepotism, as well as limiting the freedom of the press and certain civil liberties.

The collective was initially sparked off by a series of power cuts across the country that, according to the group, was systematic of the chaotic nature of the government. It then became a call to arms: or at least to microphones. Throughout the year the group organised protests against the government whilst releasing songs such as the anthem 'Faux! Pas Force!'. The song emphatically complained about deaf governments who seemed unable to listen to its people, while calling on those very people to make an impossible to ignore stance and ask the country's leaders to peacefully stand aside, without bloodshed. As the elections of 2012 drew nearer, the government made these protests illegal and, as if to make an example out of them, the three members were arrested for taking part in a the day after they were made illegal.

???

Many commentators suggest that the overthrow of Wade would be the end for the young activists, yet the members of Y,en a Marre disagreed. In a 2012 interview, Fadel Barro compared the events post-election to an orchestra having a change of conductor: "When you change the conductor, you don't keep playing the same symphony". He lamented the fact that Y'en a Marre's work had been depicted as solely focused on the removal of Abdoulaye Wade, when in fact the movement was about so much more. What the group now called for was a "Nouveau Type de Senegalais", a new type of Senegalese citizen who would be engaged in politics, understand their rights and their vote in a responsible manner. Despite managing to overthrow Wade, the group noted that the vast majority of young Senegalese people still did not fully appreciate the power of democracy, and that is something which had to change. Crucially, the group never aligned themselves with a particular presidential candidate - they simply opposed the re-election of Abdoulaye Wade. This means that a year after the election, they are still free to push for an agenda that concentrates on education and opportunities for young people and furthering the cause of democracy, without being held back by the policies of the government that they supported. The group is still very active in setting up youth projects across Senegal, and are committed to the education of the people about their rights.

8. In a further article provided by the Secretary of State, page 9 of the supplementary bundle, titled 'Chronic' refers to the quote attributed to Fadel Barro a few months after the election of President Sall. That same article notes that since President Sall took office members of Y'en a Marre have highlighted land grabs, begging in the street, the raising of university fees, and have collaborated with Amnesty International to denounce impunity. They have also in the 'Journal Rappe' a news broadcast, raised the issue of the current Presidents "stoutness" to discuss corruption, alleging that such policies remain a threat to the legitimacy of Senegalese political leaders.

9. At pages 15 to 17 of the SSHD's bundle is an article headed "Africa is a country" dated 2nd April 2012 referring to the election and the formation of Y'en a Marre. It recalls that since it was formed its membership soared although several members of the founding core were arrested, beaten and intimidated by the state's apparatus prior to the defeat of President Wade. Although the earlier article claims that the group are apolitical this article states:

The single "Faux! Pas Force" from the compilation was the group's anthem in its protests and one of the more popular anthems for the ouster of Wade and Wade. Despite the group's claim at neutrality, indicated by the support for various candidates by its members during the first round of elections, one unifying factor for it was the ouster of Wade and Wade. Nothing inspires better warfare than a common enemy. After the first round of elections, the group in an unlikely move actually came out and threw its weight behind Macky Sall while still calling for NTS (New type of Senegalese). This was followed up with the release of a new rap single entitled "Doggali" (let's finish it) to emphasise finishing the job of cleansing the country of Wade and Wade?..

Now that Wade & Wade have been booted out, one cannot but be tempted to ask "what's next" for Y'en A Marre?

Well, that depends on who you ask. Some members of the press have begun to erase to roll with this group to the point of diminishing "Y'en A MArre" to just a rally cry by the opposition. Members and supporters of the group, including Keyti (a veteran rapper), believe the group will not disintegrate as it stood for more than just ousting Wade and can be a platform of actual social changes in Senegal. Other more established academics and political veterans, off the record, believe Y'en A Marre is as good as dead in the new political make-up of the country unless it reforms itself and joins or support small traditional political institutions in the country.

10. Miss Pickering's submission that although there is a new President he is part of the old administration and will have the tendencies of previous practices, I find not to be supported by the country information at this stage and not to be substantiated to the extent she infers AKD will face the same risk as before. I accept that the intentions of the founders of the group were not overtly political but there is clearly a political element in what they did by supporting the removal of President Wade and their alignment with the current President Sall in the latter stages of the election process. It appears that the group see themselves as having an ongoing role as a social movement trying to improve the lives of the young people in Senegal and to encourage engagement in the political process. None of the material provided substantiates the claim that if AKD was involved in such a role he will face a real risk of persecution or ill-treatment, especially as none of the country reports refer to such difficulties befalling those members/supporters of YAM who have remained in Senegal and continue their campaigns since the elections.

11. I do not find the evidence supports the claim that this group has an adverse profile, actual or imputed, based upon the country material made available. It was AKD's case prior to the removal of President Wade that it was YAM's opposition to his regime and actions taken by core members that gave rise to a real fear of persecution on return, not from another politician. The claim he will face a risk of persecution as a member of YAM is also undermined by the reference to Journal Rappe which is a four minute long news broadcast delivered in rhymes in both French and Wolof in which two hip hop stars use popular mediums such as music to inform their audiences and to hold the Senegalese establishment to account. There is no evidence such activities are targeted or suppressed and the fact critical broadcasts are permitted supports the Secretary of States case that AKD faces no risk on return even if active for YAM.

12. AKD also relies upon an Amnesty International Report dated 21st October 2013 in support of his claim to face such a risk on return [AKD's bundle pages 8 - 28]. Page 5 of the report (AKD's bundle page 12) sets out the sources of information and at page 11 of the report (AKD's bundle page 18) that the Appellant is not known to Amnesty directly. I note this comment which is despite AKD's alleged profile in YAM and Amnesty's contacts and work with YAM as referred to above.

13. Amnesty state that despite the election of President Sall the country faces long-standing human rights challenges. They claim the AKD may potentially be at risk on return or at some future junction on account of his actual or perceived opposition to President Sall and may potentially be at risk on return or at some future junction from supporters of former President Wade on account of his specific past history and associated profile.

14. Amnesty claim that as a result of his membership of a significant opposition group instrumental in the downfall of President Wade AKD will in all likelihood be viewed with some degree of suspicion by the current administration on account of his past activities of actual or perceived opposition to the government [page 14 report - page 21 AKD's bundle] .

15. Amnesty also refers to country information which is already available to the Tribunal before concluding, at page 21 of the report [page 28 AKD's bundle], that "Amnesty International would like to expresses concerns as to the possible consequences should the appellant return to Senegal at this time. We are of the opinion that the appellant may potentially be at real risk of treatment capable of amounting to persecution, serious harm or other ill-treatment for the reasons provided above "

16. The Amnesty report makes reference to a statement provided by AKD for the purposes of this appeal dated 20th March 2013 [AKD's supplementary bundle pages 5 -7). In the second paragraph of that statement he claims to have taken part in a radio programme based in Washington DC that he called on a number of occasions and during which he claims to have raised issues regarding the political situation in Senegal. Even if such conversations took place, and form part of a sur place claim, AKD has not substantiated his claim that his comments will have come to the attention of the authorities in Senegal such as to create an adverse profile and a real risk for him on return.

17. AKD claims the main individuals involved in YAM remain in exile but as the country material referred to above shows a number of high profile individuals remain in Senegal continuing the work of this group, with no evidence of adverse consequences being suffered by them. AKD claims he will be detained at the airport and that the authorities are interested in his father because he financed YAM but any claim relating to a fear of persecution for AKD or any family members from the current regime has not been substantiated.

18. The fact the current President may have been a Minister in the government of President Wade in 2002 does not corroborate or substantiate the claim that nothing has changed in Senegal. There may still be corruption which needs to be addressed but it does not mean members of YAM or AKD in particular are at risk on return.

19. In paragraph 9 of his recent statement AKD claims to have received threatening e-mails and telephone calls. He claims not to know who sent the e-mails which are about six or seven in number. Copies of e-mails are provided in the bundle from pages 77 to 83 but all appear to be dated 2nd March 2012 and no more recent examples have been provided or evidence to corroborate his claim these, or the alleged telephone calls, create a real risk on return.

20. As stated, the original claim in relation to risk on return was based upon AKD's activities and those of YAM in opposition to President Wade and his supporters and it was on the basis of such a risk that the First-tier Tribunal allowed AKD's appeal. It is not disputed there has been a fundamental change in Senegal in that President Wade is no longer in power and although AKD claims he still remains a risk, the language used by Amnesty International that he may potentially (my emphasis) be at real risk on return or at some future junction does not prove he is actually at risk or faces a real risk that may manifest itself on return. In such cases as this an important question to be asked is whether there is a serious risk that on return the applicant would be persecuted for a Convention reason? It has not been proved that a potential or possible risk is serious on the evidence made available in this appeal. The existence of a well-founded fear of persecution requires the establishment of what has been described as "a reasonable degree of likelihood" as "a real and substantial danger" and a "real and substantial risk". In PS (Sri Lanka) v SSHD [2008] EWCA Civ 1213 the Court of Appeal said that the single test of whether a fear of persecution or ill treatment was well founded was whether on the evidence there was a real risk of its occurrence or re-occurrence. I find the country information does not support AKD's claim of a real risk of persecution or harm when referring to members of YAM who remain active in that country post-election and I find AKD has failed to substantiate his claim to be entitled to grant of international protection for the reasons stated.

Decision

21. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is dismissed.

Anonymity.

22. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I make that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008) following application for the same.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 21st November 2013