Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08734/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Decision and Reasons Promulgated
On 24 August 2016
On 01 September 2016

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

Mr U [S]
(Anonymity DIRECTION not madE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lane (Counsel)
For the Respondent: Mrs Aboni, (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the appellant's appeal to the Upper Tribunal against a decision of a panel of the First-tier Tribunal (hereinafter "the panel") promulgated on 22 April 2015 dismissing his appeal against the respondent's decision of 14 October 2014 refusing to grant him asylum or any other form of international protection and deciding to remove him from the UK. In fact, after a hearing of 26 April 2016 I decided to set aside the decision of the panel because of my conclusion that the making of the panel's decision involved the making of two errors of law. The errors were as follows;
"i. The panel did not consider or make findings about an argument advanced on behalf of the appellant that he would be at real risk of serious ill treatment upon return to his home country of Myanmar because there was a reasonable likelihood of his being imprisoned in circumstances where detention would breach his rights under Article 3 of the European Convention on Human Rights (ECHR) as a consequence of his not paying overseas tax whilst out of the country;
ii. The panel did not carry out a proper assessment as to whether or not a new passport or an extension of the appellant's old passport would be issued by the Myanmar authorities in the UK so as to allow the appellant to return to Myanmar legally and, thereby, avoid risk which would attach to persons returning without appropriate documentation.
2. My precise reasons for setting the panel's decision aside are contained in a Determination promulgated on 26 May 2016 and those reasons are incorporated, by reference, into this Determination. It is not necessary for me to repeat them. I did preserve the various factual findings which the panel had made. The remainder of this Determination, therefore, is concerned with the way I have gone about re-making the decision in light of what was said at a hearing convened for that purpose and which took place on 24 August 2016. It is relatively brief in view of an important concession made on behalf of the Secretary of State by Mrs Aboni to which I shall refer below.
3. By way of brief background, the appellant is a male national of Myanmar and was born on 7 May 1946. He is a Muslim. He came to the UK as long ago as 20 March 2001, having travelled here using a validly issued passport and in possession of a validly obtained visitor's visa. He was accompanied by his son one Myo Myint who is now very sadly deceased. At the time of his arrival he had various family members in Myanmar and in the UK. The appellant's son returned to Myanmar in 2004 and was arrested. In preserved findings the panel accepted that between 2004 and 2008 the son had spent a number of spells in detention though the frequency and duration of those spells was not established. It noted that the appellant's family had indicated that the reason for the son's detention was because of non-payment of overseas taxes and that whilst detained he had been questioned about oppositionist political activity, presumably activity thought to have been carried out in the UK. The panel accepted that the appellant's son had passed away on 11 April 2008 and that the family suspected he had died as a result of some injuries suffered whilst in detention though it found that the evidence fell short of actually demonstrating that death had resulted from any injuries caused by ill treatment during detention. The appellant has indicated that, to his knowledge, his son had been questioned a number of times about his political views and activities and that other family members who had seen him in Myanmar during the periods when he had his liberty had said that he looked both unwell and frightened.
4. The appellant had been able to obtain extensions to the validity of his passport whilst in the UK. That passport has now expired and is in the hands of the Home Office. The appellant, in pursuing his asylum claim, had advanced multiple reasons as to why he would be at risk if he were to be returned to Myanmar. He had said that, although the overseas tax requirements had been abolished in 2011 he had been liable to make those payments prior to the date of abolition, had not done so and that the authorities would have an adverse interest in him in consequence of his failure to do so which was likely to lead to his imprisonment. He said he would be at risk because he would not be able to return in possession of a valid passport and that that too was likely to lead to his detention. He also said that he would face ill treatment as a Muslim in Myanmar. Finally, he claimed he would be suspected of being an oppositionist, albeit that he is not a member of an oppositionist party, because of the extensive period of time he had spent in the UK.
5. The panel found that there was nothing to suggest that the appellant would be at risk of persecution due to imputed political activities or as a consequence of his religious faith. It did not deal with the overseas tax issue (see above) and it concluded, on the basis of the evidence then available, that he would be able to have his expired passport validated, with the assistance of the Home Office, such that he could make a lawful and, therefore, risk-free return.
6. By the time the appeal came before me on 24 April 2016 the respondent's position, with respect to the passport, had changed. The respondent had previously argued, throughout the whole course of these proceedings, that the passport could be re-validated by the Home Office sending it to the Myanmar authorities in the UK for that purpose. However, having looked at the matter closely, and having consulted the Home Office "returns team", Mrs Aboni was able to tell me that she now accepted that validation or re-validation of the passport would not be possible. That was because the Myanmar authorities would only validate or re-validate a Myanmar passport which had a current valid visa in it. The visa in the appellant's passport, of course, had long since expired. She also accepted that it would not be possible to remove the appellant to Myanmar using an emergency travel document. She further accepted, following what had been said in the country guidance determination of HM (risk factors for Burmese citizens) Burma CG (2006) UK AIT 00012 that any return without a valid passport would be regarded by the Myanmar authorities as an unlawful return and was likely to lead to detention. She further accepted that detention conditions would bring about a breach of Article 3 of the European Convention on Human Rights (ECHR). So, she accepted that the appellant would be entitled to humanitarian protection. She did not accept that he should be entitled to asylum because the risk she was now conceding to exist, which was based upon a return without a valid passport, did not relate to one of the five reasons for persecution set out in the 1951 Refugee Convention being race, religion, nationality, membership of a particular social group or political opinion. Further, whilst non-payment of the overseas tax may also lead to a sentence of imprisonment which would, in turn and on the same basis lead to a breach of Article 3, any such treatment would be as a consequence of a civil offence rather that, for example, imputed political opinion or, indeed, any other 1951 Convention reason.
7. Mr Lane, whilst gratefully accepting those concessions, sought to argue that, in re-making the decision, I ought to allow the appeal on asylum grounds as opposed to merely on humanitarian protection grounds or Article 3 ECHR grounds. He accepted, as I understand it, that the risk stemming from the lack of a valid passport did not, of itself, when taken in isolation, relate to a 1951 Convention reason. However, as to the overseas tax, he took me to a document appearing at 105 of a consolidated bundle which had been submitted by the appellant's solicitors, and which indicated that although the overseas tax had been abolished in December 2011 liability for the earlier period, for Myanmar citizens living outside of Myanmar during that period, remained. The document also indicated that returnees would be expected to produce a tax payment receipt. The appellant, not having paid the tax, would not be able to do that so he would be asked about what he had been doing in the UK and, since he would be expected to tell the truth, this would reveal his having made a claim for asylum. That, when one considers the previous fate of his son, would generate a real risk of the authorities imputing an oppositionist political opinion to him.
8. In re-making this decision I have carefully considered the documentary evidence before me and the helpful submissions of the representatives. I am grateful to both of them but particularly to Mrs Aboni for her efforts in clarifying the true position concerning the difficulties in validating or re-validating the appellant's Myanmar passport and for her realistic acceptance that her concession on the issue does lead to a conclusion that the appellant is entitled to a grant of humanitarian protection and is also entitled to succeed under article 3 of the ECHR.
9. The remaining question for me, therefore, is whether the appellant has succeeded in showing that he would face a real risk of persecution for the reason of imputed political opinions. I should add, just for clarity, that there has never been any suggestion that he would face a real risk on the basis of actual political opinion because he has never been a political activist.
10. I have concluded that the appellant has failed to demonstrate that he would face a real risk of persecution on the basis of a political opinion which would be imputed to him. That is for the reasons which I set out below.
11. Non-payment of taxes when taken in isolation is essentially, as Mrs Aboni submits, akin to a civil offence. It does not, of itself, indicate that the appellant holds any sort of political opinion. Nor is there any evidence to suggest that the non-payment, of itself, would cause the authorities to attribute a political opinion to him. Further, there is no clear evidence to indicate that despite his having been ill treated by the Myanmar authorities, the son had a political opinion imputed to him simply or solely because of his failure to pay the overseas tax. Additionally, a considerable number of years have elapsed since any ill-treatment was meted out to the appellant's late son. It is also apparent that there has been a degree of improvement, albeit clearly limited, in the way the authorities now approach the issue of oppositionist activity. At 2.2.3 of a document entitled "Country Information and Guidance Burma: Opposition to the Government", contained in the appellant's bundle, it is said that since March 2011 there have been improvements in regard to opposition parties' freedom to operate. It is also the case that this appellant has not given the Myanmar authorities any reason to conclude that he is or might be an oppositionist. He does not claim that he has indulged in any oppositionist activity which might have come to attention in Myanmar and he does not claim to have ever been a member of an oppositionist party. I consider that all of these matters, when taken together, indicate that any risk based on imputed political opinion cannot properly be regarded as a real risk.
12. In re-making the decision, therefore, I conclude that the appellant is not a refugee but that he is a person entitled to humanitarian protection. I also conclude he succeeds under article 3.

Decision
13. a) The decision of the First-tier Tribunal has already been set aside.
b) In re-making the decision I allow the appellant's appeal on humanitarian grounds and on human rights grounds (Article 3) but I dismiss it on asylum grounds.
c) I make no anonymity direction.

Signed Date

Upper Tribunal Judge Hemingway

To the Respondent
Fee Award
14. I make no fee award.

Signed Date

Upper Tribunal Judge Hemingway