Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA117522015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 June 2016
On 14 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

[E N]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms O Taiwo, Legal Representative, Mount Azure Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Myanmar born on [ ] 1976. She appealed against the decision of the respondent dated 17 August 2015 refusing her claim for asylum and humanitarian protection in the United Kingdom.

2. Designated First-tier Tribunal Judge Macdonald on 22 April 2016 granted permission to appeal against the respondent's decision, stating that it is arguable the judge did not follow the country guidance case of TS (Political opponents - risk) Burma/Myanmar CG [2013] UKUT 281 which is binding and authoritative. Judge Macdonald stated that while it is arguable that the First-tier Tribunal Judge did not consider whether the changes in Myanmar were durable and had translated into a real change so far as affecting persons such as the appellant.

3. The First-tier Tribunal Judge made the following findings which I summarise. At paragraph 30 of the reasons for refusal letter the respondent made a number of significant concessions which the judge listed. He then stated that the appellant's claim to have been detained in 2003 is not accepted and the rationale for rejecting this is set out at paragraph 19 of the reasons for refusal letter. During the course of her screening interview, the appellant suggested her name had not appeared on the list when the local authorities attended her house. Although the appellant produced an arrest warrant dated 23 February 2015 the respondent was not inclined to accept this as carrying any weight.

4. The judge noted that the circumstances in Myanmar have changed beyond almost all recognition since the decision in TS. The political party supported by the appellant and her family for many years is now in power. They hold a huge majority of the seats in Parliament as well as the presidency of Myanmar. The judge stated at paragraph 29 that:

"Whilst I acknowledge the fact that the military is still engaged in government and continue to hold a number of important posts and departments, I find it inconceivable that if there is an arrest warrant issued because of the political activities of the appellant on behalf of the ruling party that she would be the subject of persecution upon her return."

6. It is worthy of note that in the skeleton argument submitted in support of the appellant's claim having been drafted on 16 March 2016, the change of government in Myanmar has been entirely ignored. The argument concentrates solely on the prospect of persecution by reason of the appellant's ethnicity.

7. The changes in Myanmar have overtaken the current country guidance in relation to the political opponents of the former regime and that it is not appropriate to follow that guidance and that the comment made at paragraph 11 of the head note of TS is a point well-made.

8. It was submitted that circumstances have not permanently changed in Myanmar. The judge found however that there is no evidence to suggest any instability within the current regime and as real as the appellant's concerns may be to her it is without any foundation. The judge found that the appellant has not discharged her burden of proof and dismissed the appeal on asylum, humanitarian protection and human rights grounds.

9. The grounds of appeal state that the judge erred in his interpretation and application of the country guidance of TS. The grounds further state that the First-tier Tribunal Judge acted ultra vires by deciding not to follow TS, which remains good law until and unless the Upper Tribunal makes a new country guidance, or until any higher courts such as the Court of Appeal repeals it. The grounds state:

"Although changes have happened politically in Burma recently there is a lot of information available in the public domains which state that as long as the pro-military Constitution is in force which allows military to operate outside civilian oversight, to fill 25% of seats in the Parliament with military officers handpicked by the commander-in-chief, to maintain a national defence and security council with powers to make final decisions on security-related matters, to appoint military generals of their choice as ministers for defence, home affairs and border security ministries, to take over power from civilian government whenever they deem necessary for security reasons etc. Burma cannot claim to be truly democratic. Furthermore, it is internationally recognised that persecution of ethnic and religious minorities has been on the rise in recent years in Burma. The situation in Burma is quite complicated with progress in some areas while setbacks in others."

Therefore, it is appropriate for the Upper Tribunal to set out a new country guidance if required to do so.

10. The Rule 24 response by the respondent states that the grounds of appeal are wholly without merit and the judge is able to depart from current country guidance where cogent evidence is provided to do so and cited the case of DSG & Others (Afghan Sikhs: departure from CG) Afghanistan where it is stated that:

"?unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authority in any subsequent appeal so far as that appeal."

However, it was recognised that the principle of departure exists.

11. In the case of SG (Iraq) [2012] EWCA Civ 940 the Court of Appeal made it clear at paragraph 47

"? that decision makers and Tribunal Judges are required to take country guidance determinations into account and to follow them unless very strong grounds supported by cogent evidence are adduced justifying their not doing so.

To do otherwise would amount to an error of law. The judge has not given good reasons as to why the country guidance case was not applicable to the appellant in this case.

12. At the hearing I heard submissions from both parties as to whether there was an error of law in the decision. Ms Taiwo relied on the arguments in the grounds of appeal and said although there is evidence of political change the country guidance case is still binding on the First-tier Tribunal Judge. The military has retained seats in Parliament and the Secretary of State conceded that the appellant carried out political activities.

13. Mr Norton relied on the Rule 24 response and said that the Tribunal is a trier of fact and there was sufficient evidence before the judge to depart from the country guidance case and that the regime has changed in 2013 and now we are in 2016 and the National League Democratic Party is in charge. The judge was entitled to depart from the country guidance case.

Decision as to whether there is an Error of Law in the Determination

14. The main point in the appeal argued before me is that the judge should have followed the country guidance case and his failure to do so amounts to an error of law. The judge stated at paragraph 28 that if the circumstances in Myanmar had been the same as those that appertained in TS no doubt the appellant would have been granted asylum and humanitarian protection in this country.

15. The judge however noted that the circumstances in Myanmar have changed beyond all recognition and the party that the appellant has always supported is now in power. I find that the judge was entitled to take into account background and recent events in Myanmar and depart from the country guidance case of TS. In the case of SG cited above, the court of appeal made it clear that decision makers and Tribunal Judges are required to take country guidance determinations into account and to follow them unless very strong grounds supported by cogent evidence are adduced justifying they're not doing so.

16. For the judge to have slavishly followed TS, notwithstanding the changes in Myanmar since 2013 would have amounted to an error of law. It was rightly pointed out by the senior presenting officer that we are now in 2016 and the changes in the government have now crystallised. The evidence before the judge was very clear that there has been a regime change in Myanmar. The judge however was mindful of the argument put forward by the appellant that the military is still engaged in government and continues to hold a number of important posts and departments in paragraph 29 of his decision. This demonstrates that the judge made his decision after taking into account all the background evidence. The judge was entitled to find that it inconceivable that if there is an arrest warrant for the appellant due to her political activities on behalf of the ruling party and that she would be the subject of persecution upon her return for this reason.

17. At the hearing I asked Ms Taiwo whether there is any evidence that anyone who has returned to Myanmar having supported the current regime has been persecuted or any charges have been filed against them. She was not able to produce any such evidence which suggests to me that none exists. I find that the judge was entitled to reach his conclusion that it is inconceivable that persecution would befall a person who has supported the regime in the past which is currently in power. I find that there is no perversity to this conclusion.

18. I have considered all the arguments on behalf of the appellant and I find that there is no material error of law in the determination and the judge was entitled and duty-bound to find that the country guidance case should no longer be followed and that it has been overtaken by cogent evidence.

Notice of Decision

I therefore dismiss the appellant's appeal.

No anonymity direction is made.

Signed Date 13th day of June 2016

Deputy Upper Tribunal Judge Chana

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal. There can be no fee award.

Signed Date 13th day of June 2016

Deputy Upper Tribunal Judge Chana