Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04701/2014

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 9th March 2017
On: 20th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

AS
(Anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms Patel, Counsel instructed by Broudie Jackson and Canter
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Sudan born in 1990. He appeals with permission1 the decision of the First-tier Tribunal (Designated Judge Baird) dated 9th May 2016 to dismiss his appeal2 on asylum and human rights grounds.

Anonymity Order

2. This case concerns a claim for international protection involving, inter alia, a claim that the Appellant would be at risk in Sudan because of his opposition activities in the UK. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Matters in Issue

3. The basis of the Appellant’s claim was that he is a member of the Nuba tribe who has a well-founded fear of persecution in Sudan for reasons of his political opinion and ethnicity. He gave an account of having been detained and forced to fight in the army against his will. He claimed to have deserted from his military service. On appeal he further submitted that he had been involved in sur place opposition activity such that would bring him to the adverse attention of the Sudanese authorities upon return. In respect of the latter he relied on a letter issued by the Nuba Mountains Solidarity Abroad group, which confirmed that the Appellant had joined the organisation in April 2014 and had become an active member. The author of the letter opined that the Appellant would be perceived as an enemy of the state and might face torture or death should he be returned to Sudan.

4. The First-tier Tribunal gave a number of reasons for rejecting the Appellant’s historical account. His evidence was found to be inconsistent and implausible, and even allowing for his claimed memory difficulties (an assertion unsupported by medical evidence) and applying the lower standard of proof, the Tribunal could not be satisfied that the events described were likely to be true. There is no challenge to that finding.

5. This appeal instead concerns the approach taken by the First-tier Tribunal to the Appellant’s claimed sur place activities. It is submitted that in making its finding [at 16] that those activities are “unlikely to have brought him to the attention of the authorities” the Tribunal erred in failing to give proper reasons, and in failing to consider material evidence, namely the letter from Nuba Mountains Solidarity Abroad.

Discussion and Findings on ‘Error of Law’

6. Ms Patel submits that although the NMSA letter is summarised at paragraph 10 of the determination it does not feature at all in the section of the determination headed ‘Findings of Fact and Credibility’. That is true. The letter is not analysed in the body of the reasoning. Is that a material error?

7. The letter was evidence of three things. First that the Appellant had been participating in sur place activities. Since it is implicit in the reasoning at paragraph 16 that the Tribunal accepted as a matter of fact that the Appellant had been active as claimed, it is difficult to see how an omission to mention the letter again could be material. The second point made in the letter is that in the opinion of the author, a Mr Isaac Kuku, Secretary-General of the NMSA, the Sudanese government is committing human rights abuses against innocent civilians in Sudan. Again, that is a matter clearly accepted by the Tribunal so there was no need for it to record or analyse the view expressed on behalf of the NMSA. What is left is the third point. Mr Kuku asserts that in his opinion the Appellant “or any other Sudanese citizen from the Nuba mountains returning from abroad or deported back to Sudan will be perceived and immediately treated as an enemy”. The Secretary of State points out that this was not a commentary confined to the Appellant’s situation. Mr Kuku was in effect advocating a position that any Sudanese national from the Nuba Mountains should prima facie be entitled to asylum. It was not an objective opinion; as the letter itself makes clear, the NMSA are an organisation in opposition to the Khartoum regime and the Tribunal would undoubtedly have erred in law if it had based its risk assessment simply on Mr Kuku’s assertions.

8. I am not satisfied that there was any error of law in not returning to address the NMSA letter in the body of the reasoning. The Tribunal appears to have accepted that the Appellant had participated in sur place activities and that the Sudanese government have an appalling human rights record. The only remaining information in that letter was the view expressed by Mr Kuku that any Sudanese citizen from the Nuba Mountains would face possible torture or death if returned to Sudan. I agree with the Secretary of State that of itself, this was not evidence that was going to carry any significant weight. The evidence was not tested and was unsupported by any source material or examples; it was in effect Mr Kuku’s subjective opinion, expressed in bald terms.

9. The remaining ground concerns the lack of reasons at paragraph 16 of the determination. The finding is confined to the comment: “I agree with Mr Bilsland [the HOPO on the day] that the Appellant’s sur place activities in the United Kingdom are unlikely to have brought him to the attention of the authorities”. It was of course for the Appellant to demonstrate that any sur place activities could have exposed him to risk on return. If that evidence was not before the Tribunal, there can be no material error in the sur place point being dealt with in the brief manner that it was. In her submissions Ms Patel pointed to a number of references in the country background material, for instance in the Respondent’s Country Information and Guidance of August 2015, which supported the claim that opposition activity abroad might lead to problems on return to Sudan. This information shows that the Sudanese opposition are active in the United Kingdom, that the Sudanese security forces are likely active within that diaspora [at 2.2.3 August 2015 CIG] and that “this activity may include using informants or spying on activist groups and at meetings, as well as the use of video and photographic surveillance and monitoring of online forums and social media, both in the United Kingdom and after return”. Referring to the now relatively old country guidance decision in HGMO (Sudan) CG [2006] UKAIT 0006 the CIG goes on to state: “given the increasingly repressive nature of the regime, the threshold of activity and profile for conducting surveillance on a person, for them to become of interest to NISS, is likely to be lower than that set out in HGMO”. The guidance accords with the finding made by the First-tier Tribunal, that there continues to be widespread abuse of human rights in Sudan perpetrated by the security forces against perceived opponents of the government.

10. I am satisfied that in limiting its findings on sur place activity to that brief sentence at paragraph 16, the First-tier Tribunal erred in law. That is because there was country background evidence before the Tribunal demonstrating that an activist in the United Kingdom may well come to the attention of the Sudanese security services. Having omitted to address that evidence the Tribunal was unable to complete its risk assessment and consider whether such attention might place the Appellant in danger of serious harm upon return to Sudan. I therefore set the decision of the First-tier Tribunal aside to that limited extent. All of the other findings of fact are preserved.

The Re-Made Decision

The Appellant’s Activity in the UK

11. At the hearing before Judge Baird the evidence as to sur place activity was limited to the appellant’s assertion that he has been “active” and confirmation of the same by the NMSA. As I note above this evidence was apparently accepted without challenge; it would appear from the record of proceedings that the Appellant was not asked to elaborate on what kind of things he has been doing. Before me the Appellant relied on a bundle of additional evidence and the oral evidence of three witnesses in order to provide that detail.

12. I heard first from the Appellant himself who adopted his witness statement dated 9th February 2017. He states that he joined the NMSA in April 2014 after he arrived in the UK. He has attended various meetings in Bolton, Birmingham and Cardiff where the attendees have discussed human rights abuses in the Sudan and the corruption of the government. One was a memorial meeting to remember the contribution made by Commander Yousif Kuwa Meppi who was a leader of the movement in Sudan. He has attended a demonstration in London in June 2015. It went from the Sudanese embassy to Westminster. He produced clear colour photographs of this event in which he can clearly be seen dressed in traditional Nuban costume and holding placards. He explained that he is very involved in a dance troupe which seeks to promote Nuban culture and traditional song and dance. Asked why these activities might lead to problems the Appellant said that it was ‘common knowledge’ that the Sudanese authorities monitored opposition activities in the diaspora. He wants to defend his culture, and they will see that as a problem.

13. I then heard from Mr Ahmed Mohammed Gomar. Mr Gomar is the NMSA representative in Greater Manchester. He has been recognised as a refugee by the Secretary of State. Mr Gomar met the Appellant after he joined the organisation in 2014. He spoke with him in a language native to his home area and was able to verify through questioning that the Appellant was from the Nuba Mountains, in fact from a tribe neighbouring his own. Mr Gomar made enquiries with other members of the community in the UK who were able to confirm that they knew his family. Mr Gomar expressed the view that the Appellant’s activities in the UK are such that it is impossible to believe that the Sudanese authorities are unaware of who he is. For instance, he is very prominent in the promotion of Nuban heritage, running workshops with the dance troupe. The positive assertion of their ethnic identity is a matter viewed with hostility by the Khartoum regime which seeks to impose a monocultural Arabic identity on the population. Being involved in such cultural activities is a political act. Mr Harrison asked whether Mr Gomar was aware of anyone who has experienced difficulties in Sudan because of things they have done in the UK. He said that there were many people who had suffered problems. He gave the example of Dr Yasir Hamoda, a PhD student in the UK. He had attended a protest in London and when he went back to Sudan he was harassed to the extent that he had to flee to Southern Sudan. When he returned to the UK he was immediately granted asylum. He said that nowadays high ranking activists do not go at all because they will be detained.

14. The third witness was Mr Abdulrahman Saboo. He is a fellow supporter of the NMSA. He has been granted refugee status. He has known the Appellant since 2015, having met him on a demonstration in London. They found that they have mutual friends back in Sudan. They met again at the memorial event in Bolton and have stayed in touch. The Appellant has been to stay with him at his home in Coventry. Mr Saboo wanted to come to the hearing in order to attest to his personal knowledge of the Appellant: he knows him to be a passionate supporter of Nuban culture and political rights and he believes him to be a genuine opponent of the Sudanese regime. In response to questions put by Mr Harrison Mr Saboo said that he knew that the regime monitors their activities. He has seen it for himself. For instance, on a demonstration outside of the embassy in London there was someone taking pictures from a window.

15. Finally, I heard from Mr Badeen Dayan. A recognised refugee, Mr Dayan is the Secretary of Culture at the NMSA. He describes the Appellant as being the “main man” for the showcasing of Nuban culture in the UK. He is very active in teaching others traditional dances. He is one of the leaders at the workshops run by the NMSA. He also attends political meetings. Mr Dayan said that he has known the Appellant since they lived in Sudan. They are from the same village. Mr Dayan asserts his belief that the Appellant’s prominence in the organisation is such that there is “no doubt” in his mind that the authorities would punish him most severely for his work. Mr Dayan was aware of “plenty” of people who had suffered at the hands of the regime. He gives an example of a lawyer named Gaden who was arrested after being active in the diaspora in Cairo.

16. At the close of the hearing I indicated that I found the witnesses to be credible and that I accepted that the Appellant had been, since 2014 an active participant in NMSA meetings, protests and cultural events in the UK. Mr Harrison accepted that he would appear to have a “significant role” in the dance troupe and their promotion of Nuban heritage.

The Reach of the Sudanese Security Services

17. As I note above, there had been, in the shape of the 2015 CIG, evidence before the First-tier Tribunal that the Sudanese authorities may well be “using informants or spying on activist groups and at meetings” as well as using “video and photographic surveillance” and monitoring of online forums and social media. Since that hearing in March 2016 the evidence available on this issue has substantially increased. In particular, I now have the benefit of the Upper Tribunal’s findings in IM and AI (Risks - membership of Beja Tribe, Beja Congress and JEM) Sudan CG [2016] UKUT 188 (IAC) and a new CIG on sur place activity, issued in August 2016.

18. Unfortunately, Ms Patel had not thought to include the country guidance in the bundle. Nor did she appear to be aware that it might have any relevance to this appeal. Perhaps she was misled by the title: it is however evident from even a cursory reading that the findings are not confined to members of the Beja tribe or JEM. The Tribunal conducts a careful and detailed analysis of the available evidence on the surveillance of Sudanese opposition activists in the diaspora, looking at evidence from Landinfo, the Foreign and Commonwealth Office and an NGO called ‘Waging Peace’ which campaigns against human rights abuses in Sudan. All of these sources unequivocally confirm that the Sudanese security services do monitor the activities of citizens in the diaspora. One does not, apparently, need to be particularly high profile in order to draw their attention [at 97]:

“It was difficult to gather concrete information on who is being monitored, but it is Landinfo’s definite impression that it does not take much for an individual to be noticed by the NISS. Any form of association with a political party or organisation that is not close to the regime is ‘undoubtedly enough’, as any form of activity in connection with these is potentially problematic from the regime’s
point of view….

[98] Landinfo said it was also important to point out that even though the NISS has good resources, these are not unlimited and their use must therefore be prioritised. There would appear to be a particular focus on activists that are likely to be able to affect public opinion and opinion within their own spheres, and who delineate and distribute information critical of conditions for which the regime is responsible; for example, the results of war in areas of armed conflict, other human rights breaches, corruption and misrule”.

19. The Tribunal was shown two letters from the FCO in respect of risk to returnees. The FCO indicated that it had been provided with information to indicate that particular ethnic groups, including the Nuba, are likely to attract greater attention from the surveillance teams operating abroad [cited at 67]:

“However there is evidence from domestic and international human rights groups to show that those who openly oppose the Government from abroad will likely be arrested on return. Recently a number of opposition leaders who signed a political manifesto (New Dawn Charter) in Uganda calling for reform and the overthrow of the government of Sudan were detained for a number of weeks. These were widely reported in the Sudanese press and acknowledged as fact by the Sudanese Government. One of the arrestees was a dual Sudanese/British National and this Embassy has had direct contact with the Government of Sudan about the case. We have also received credible reports from political parties and human rights groups in Sudan that those who are openly critical of the government are usually subject to surveillance and intimidation by security services. Reports from human right groups suggest that Darfuris and Nubans are also more likely to be at risk from this type of persecution.

We should also acknowledge that in 2012, Norway expelled a Sudanese diplomat whom they believed was involved in spying on Sudanese refugees there.’

20. Having regard to all of this evidence I am satisfied that there is a real likelihood that the Sudanese security services are monitoring activities of NMSA in the UK. Since the Appellant has attended numerous events, and has taken a “significant role” in the cultural work of the organisation I am satisfied that there is a real likelihood that he has been identified as an activist in the UK.

Risk on Return

21. Ms Patel appeared to assume that I could infer a risk of harm from the fact that the Appellant has been involved in sur place activities, and from the concerns expressed by his witnesses for his safety should he be returned to Sudan. For my part I doubt that this would be a lawful approach. Whilst I have no reason to doubt the sincerity of the gentlemen who appeared at the hearing, my decision must be based on all of the available evidence, not simply the unsupported assertions of witnesses who profess no objectivity or expertise. The folly of proceeding on the basis of such an assumption was highlighted by the only material that Ms Patel placed any reliance upon: the August 2016 CIG, which specifically adopts the findings in IM & AI to the effect that not every participant in sur place activities will actually face a risk on return. The CIG recommends examining the current situation in Sudan in order to assess whether that individual would in fact be at risk.

22. At paragraph 178 of IM & AI the Upper Tribunal accept as reliable the evidence collated by NGO ‘Waging Peace’. This organisation had collated a list of 17 people who had encountered difficulty in Sudan after having returned from abroad. The Tribunal accepted that there was no reason to infer that these had been random targets. They included people from various ethnicities and classes of Sudanese society (one, Mr Y, is said to be the Dr Yasir Hamoda referred to by the witness Mr Gomar. He later became the Chair of the NMSA). The Tribunal had no reason to doubt that these individuals had been picked up and questioned as a result of things that they had done and said abroad. It noted however that there was a spectrum of consequences for such activity. Some of those picked up were subject to questioning and simply let go; others were subjected to serious ill treatment. The Tribunal concluded that of those 17 detainees, 6 had been subject to serious harm amounting to persecution [at §176]. The expert witness who appeared in the case, Mr Peter Verney, agreed with the Tribunal’s assessment that the likelihood of such harm depended on whether the subject was of “serious interest” to the Sudanese security service, the NISS.

23. Would this Appellant be of “serious interest” to the NISS? The Tribunal in IM & AI decline to delineate a finite list of ‘risk categories’. Indeed, it was apparent from the evidence of wide ranging intelligence gathering that it would be unwise to do so. Drawing on the observations that are made in the rest of the judgement the current CIG posits [at 2.2.4] a list of relevant considerations to be applied in such cases. Ms Patel adopted this list as a proper basis upon which to assess risk. I am therefore asked to consider whether the Appellant:

has been of previous interest to the authorities in Sudan and abroad (including being on a travel watch list)
has promoted anti-regime opinions through online media, such as Twitter, Facebook and Youtube as well as Sudanese community forums
has or had contact with Sudanese opposition groups inside and outside of Sudan, including attending public meetings or events, being a member or supporting opposition groups, or has an online profile connected with opposition groups that can be traced to the individual or email addresses linked to opposition groups
the nature of the opposition group with which a person has an association, and the extent to which that group is targeted by the Sudanese government, in Sudan, at the current time
a person’s family connections or personal links to known political opponents.

24. Recalling the undisturbed findings of fact made by the First-tier Tribunal, this is not an Appellant who can claim to have family connections to known political opponents; nor has he previously been of any interest to the Sudanese authorities. His case must rest on his current activities with the NMSA. An important part of my assessment will therefore be whether that is a group, or part of a grouping/movement, reasonably likely to be targeted by the government in Sudan at the current time. Unfortunately, I was provided with no country background material that might help me with that enquiry. When I pointed that out Mr Harrison very pragmatically indicated that he was happy to agree to me conducting my own post-hearing research on the current situation in the region. Mr Harrison agreed that the Secretary of State would have no objection to me reading one or more of the following: the latest US State Department report, any relevant material from Amnesty International and any recent reporting by the BBC. The omission of this kind of documents from the bundles, given the guidance in the CIG and country guidance, was nothing short of astonishing. I make it clear that appellants’ representatives should not routinely expect the Tribunal to be doing their work for them. It is for the parties to provide the evidence upon which they seek to rely, and directions were specifically given to that effect on the 27th December 2016. I do so in this case only to avoid the further delay that would be caused by an adjournment, and with the express consent of Mr Harrison.

25. I have looked then to the following documents: the Amnesty International reports on Sudan 2016 and the United States’ State Department report on Human Rights in Sudan 2016. Those documents indicate that the conflict in the Nuba Mountains has a long history pre-dating Sudanese independence. The most recent episode began in 2011 when the independence referendum in South Sudan resulted in the new country being formed. The Sudan People’s Liberation Army (SPLA), which had fought for southern secession, had included fighters from the Blue Nile and South Kordofan (including the Nuba Mountains), where the population were also black African. The people in these ‘Two Areas’ shared the grievances expressed by those in the south, that the African population had been disenfranchised and oppressed by the Arab dominated regime in Khartoum, and the oil revenue from southern wells was all being diverted to the North. When the south declared independence in July 2011 the populations in the Two Areas were left under the control of Khartoum. Having had their calls for self-determination denied the fighters of the ‘SPLA north’ faced a build up of Sudanese troops in South Kordofan. When the Sudanese army moved to try and disarm the SPLA, fighting broke out. That conflict continues today. Some commentators have characterised it as a proxy war, with the South Sudanese continuing to provide support and arms to the Nuban independence fighters against Khartoum. The consequences for the population have been terrible. As Amnesty puts it:

“The security and humanitarian situation in Darfur, Blue Nile and South Kordofan states remained dire, with widespread violations of international humanitarian and human rights law”

26. In April 2016 a unilateral ceasefire was declared by a coalition of rebel groups, and the government responded in kind. Despite the official cessation in hostilities, Amnesty reported that government troops continued to mount aerial and ground attacks on the civilian population. There was a widespread denial of humanitarian support. Human rights abuses against the civilian population, in particular those with perceived association with rebel fighters, remain widespread.

27. What is clear from these very recent sources is that the conflict in the Nuba area remains a matter of pressing concern for the Sudanese government. I am satisfied, to the lower standard of proof that a Nuba man who has been identified as working with the NMSA in the UK, and to take a prominent role in promoting Nuban culture, in likely to be of “serious interest” to the authorities. This conclusion accords with the Landinfo evidence reviewed in IM & AI [at 103]:

”The writers of the Landinfo report did not think that it made any difference whether an individual’s political involvement begins abroad or in the home country. What counts is the level of involvement, the activity and its effect. The lack of coordination of political activity for Sudanese critical of the regime in most places abroad, did not mean that the regime does not view it as a threat, as it still has consequences for political developments in Sudan. [6.3] The writers also emphasised that those who reject armed resistance against the regime may be suspected of supporting armed actions. This can be the case with groups that are close to armed groups from an ideological point of view and especially those that belong to ethnic groups that sympathise with armed rebel groups in the conflict areas of Sudan (Darfur, South Kordofan and Blue Nile)”.

28. I take the Respondent’s point that not every activist will face arrest, and not every person arrested will in face serious harm. I bear in mind however the fact that just over one in three of the (admittedly small) sample group examined by ‘Waging Peace’ were seriously harmed following their arrest. Any detention in prison, of any length, will very likely expose the detainee to significant harm: the US State Department reporting detailed evidence to the effect that “prison conditions throughout the country remained harsh, overcrowded, and life threatening”. I accept the analysis of the witnesses who appeared before me that the Khartoum regime is very likely to view the active promotion of Nuban culture as a political act. In the context of this war, it is not simply dancing: see the evidence of Landinfo in IM & AI that “the regime has once more begun to describe Sudan as a state with a homogeneous Arabic and Muslim identity and downplays the ethnic and religious diversity of the people”. This is the very crux of this conflict.

29. Having taken all of the available evidence into account, I am satisfied that the Appellant has discharged the burden of proof. There is a real risk that he would face serious harm for reasons of his political opinion should he be returned to Sudan.

Decisions

30. The determination of the First-tier Tribunal contains an error of law and it is set aside to the limited extent identified above.

31. The decision is remade as follows:

The appeal is allowed on asylum grounds.

The Appellant is not entitled to humanitarian protection because he is a refugee.

The appeal is allowed on human rights grounds.

32. There is an order for anonymity.

Upper Tribunal Judge Bruce
16th March 2017