Tribunal decisions

The decision

Appeal No. CC/34439/2001
MS (DUP-Activities Abroad) Sudan CG [2002] UKIAT 02385

IMMIGRATION APPEAL TRIBUNAL

Date heard: 31 May 2002
Date notified 05/07/2002

Before: -

DR H H STOREY (CHAIRMAN)
MR F T JAMIESON

Between

MR MOHAMED AL-IMAM FAISAL SALIH

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, a national of Sudan, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr D J Boyd QC, dismissing the appeal against the decision of the Secretary of State giving directions for removal from the United Kingdom, having refused asylum. Mr J Trussler of Counsel instructed by Malik & Michael Solicitors appeared for the appellant. Mr J P Jones appeared for the respondent.

2. The Tribunal has decided to dismiss this appeal.

3. The adjudicator had accepted as credible the appellant’s account of being a Democratic Unionist Party (DUP) low level supporter who had been arrested, detained and ill-treated on two occasions the first in 1995, the second in March 2001.He also accepted that the appellant had been active in DUP activities in the UK albeit on a modest scale.

4. However the adjudicator did not accept that these two experiences of detention demonstrated the authorities had continued to have an adverse interest in the appellant. With regard to his UK activities, he concluded they would have come to the notice of the Sudanese authorities. Essentially he considered that the Sudanese authorities, whilst they might well question him on return, would only be interested him as someone who had evaded conscription. He also found that the decision to remove the appellant had not interfered disproportionately with his right to respect for private and family life, despite the fact that he had a mother, brother and two sisters in the UK. In this regard he noted the appellant was no longer a minor and in any event had been happy for them to leave for the UK without him when he was a student.
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5. The grounds of appeal contended that the adjudicator had erred in concluding that a man who had been politically active, albeit at a low level, with a history of previous detentions and ill treatment and who had left illegally would not be of interest to the authorities. In amplification of those grounds Mr Trussler pointed out that the latest objective country materials showed that the human rights record of the government in Sudan remained extremely poor. The current regime restricted political freedom and political opponents were subject to arbitrary arrest and detention without trial. The CIPU 2002 report mentioned the risk facing those who had been involved in political activities. The US State Department Report documented harassment of political opponents, as did the Human Rights Watch report. There was evidence concerning the appellant’s political activities in the UK being known to the authorities in the Sudan other than the photographs. It was reasonable to infer from the appellant’s own evidence that participation in a demonstration so close to the Sudanese Embassy would have been noticed Mr Trussler did not dispute that the appellant had no objection to performing military service as such; his complaint was that in the process of punishing him he would be ill-treated.

6. Mr Jones for the respondent countered that the CIPU 2002 report mentioned the regime permitting political parties such as the DUP to be officially recognised. There was no evidence DUP was not now a registered political party. Whilst there was evidence of persecution of leading DUP members, this was lacking in respect of low-level members. The same was true of members of other opposition parties such as the SPLN and SPLA. As a draft evader he faced a punishment of up to 3 years, plus a fine. In any event the appellant had not refused to perform military service, so the penalty might possibly be simply be that he had to serve it.

7. The grounds do not mount any substantial challenge the adjudicator’s principal findings of fact. Nor do we see any basis on which to interfere with those findings.

8. The grounds submit, however, that the adjudicator’s findings, particularly when read in the light of the objective country materials, should have led him to conclude the appellant would face a real risk of persecution.

9. We find ourselves unable to agree with this submission.

10. As regards the appellant’s past experiences in the Sudan, the adjudicator noted that on the occasion of his first arrest he had been released with no more than an a requirement that he sign an undertaking not to take part in anti-government activities and with no more than a warning that he should watch it. On the appellant’s own account he was able to continue with his DUP activities thereafter without the authorities taking any interest in him. He had been able to conduct a normal life, graduating from university in 1999 and working as a sales manager in a construction company. We consider this assessment was soundly reasoned.

11. We also consider sound the adjudicator’s assessment of the circumstances surrounding the appellant’s second detention in March 2001. Whilst when detained then for attending an anti-government meeting he had been ill treated, all that was subsequently required of him was that he perform his military service. The adjudicator found that the authorities had found nothing to support their suspicions and so the appellant was “on this occasion also, of little or no interest”. He further found that whilst the appellant had escaped, that made him no more or less than a draft evader. Mr Trussler has not substantially challenged that further finding.

12. As regards the appellant’s activities in the UK, the adjudicator accepted the appellant`s account of having participated in one public demonstration and also in several meetings and seminars. He also accepted he had helped in education programmes and also with research and translating. In relation to the demonstration, the adjudicator pointed out that on the basis of the photographic evidence, all he could accept was that it took place outside a UK government building. There was no evidence that the demonstration ventured near the Sudanese Embassy or was noticed by any Embassy personnel. He concluded:

“These events, as Mr Turner submitted, may well have been intended merely to provide an opportunity for photographs for use in these proceedings. My assessment is that none of the appellant’s DUP activities in the UK are likely to have come to the notice of the Sudanese authorities or to put him at any risk were he to return.”

13. In the course of attacking this assessment Mr Trussler argued that the adjudicator was wrong to confine himself to the photographic evidence. We think there is some force in that argument. As regards whether the appellant’s DUP activities would be known to the Sudanese authorities, the adjudicator had other items of evidence. Amongst these were the appellant’s own evidence, a letter from the Sudan Human Rights Organisation urging all Sudanese to take part in a demonstration outside Chatham House in St James Square and a witness statement signed on 5 November 2001 from Rtd. Major General Mohammed Osman Merghani which stated, inter alia, that the appellant “attended demonstrations in front of the Sudanese Embassy and 10 Downing St”. The author of this letter also mentioned his belief that agents of the Sudanese service in London attended some of his organisations`s political activities and so would know about the appellant’s activities. In addition he believed some of the DUP`s own members in the UK had passed on information about DUP UK activities to the regime back in Sudan.

14. Had the adjudicator given fuller consideration to these other items of evidence we think he would have concluded the appellant`s DUP activities in the UK would be known to the Sudanese authorities.

15. However, we do not think that the adjudicator’s failure to appreciate this fact was fatal to his decision to dismiss the appeal.

16. We find that when the appellant was returned to the Sudan (1) he would come to the attention of the Sudanese authorities; (2) it was reasonably likely they would know or learn of his activities in the UK on behalf of the DUP; but (3) they would nevertheless not consider him to be someone they should target for persecution or ill-treatment.

17. As regards finding (1), the adjudicator, quite correctly in our view, noted the possible effect on the appellant of the border directive by the Sudanese authorities requiring those who return to Sudan after a year or more abroad to be transferred to the security headquarters for questioning (this directive is set out in Drrias [1997] Imm AR 346). Even if that directive were not applicable for some reason, it was reasonably likely the authorities would keep a record of the appellant’s previous detentions and his background as a DUP member. His evasion of military service was also likely to mean he would be interrogated. We also think it reasonably likely for reasons already given (and this leads us on to finding (2)) that their record would include details of his UK activities.

18. We base finding (3) on the fact that, despite the appellant coming to the attention of the authorities in the Sudan on account of his anti-government and DUP activities before he left, they had not regarded him as a significant threat or as someone they needed to harass. Given his escape just before departure, they would only be interested in ensuring he was punished for evading military service. We further base this finding on the fact that they would know from their agents in London that the appellant’s activities on behalf of the DUP in the UK were essentially of the same order as those he had undertaken in the Sudan, that is, activities undertaken by someone who was no more than a low-level supporter for the DUP. In the light of his Sudanese and UK activities they would continue to view him as not being a significant enough figure as a political opponent to merit targeting for persecution.

19. In reaching this conclusion we have taken full account of the evidence presented in support of the appellant including that of Rtrd Major General Mohammed Osman Merghani who had written in one of his two letters that due to his political activities the appellant was subject to harassment resulting in his suffering by the NIF security forces and he had been advised by the Party to leave the country. We have also had regard to the letter of May 2001 from the Secretary-General of the Sudan Human Rights Organisation which spoke of the appellant`s two detentions and maltreatment and exposure to close surveillance and harassment.

20. Insofar as these sources comment on the appellant`s previous activities we do not find them sufficiently objective. On the appellant’s own account they were composed after he had discussed his asylum claim with them in detail. They are clearly either friends or colleagues of the appellant. We prefer the evidence indicated in the more objective sources such as the US State Department report and the CIPU 2002 report. Whilst these sources confirm that political opponents are targeted, the cases they document largely concern members of opposition political parties with a high profile. We accept that these same reports refer to widespread use of torture and arbitrary arrests and detentions without trial, in particular against political opponents Significantly. However, none of the major reports on the Sudan states that persons are at real risk of persecution simply on account of being DUP members. Since, therefore, it would appear that the authorities consider returnees on an individual basis, we think it reasonably likely, for the reason already given, that they would conclude in the case of this appellant that, despite his DUP involvement, he posed and would go on posing) no significant threat to them.

21.The appeal is dismissed.

DR H H STOREY
VICE-PRESIDENT