Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/03726/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

ms j
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J René, Counsel instructed by Queen’s Park Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant in this case is a national of Gambia having been born in 1978. She left that country in 2002 to visit France for a holiday and never went back. She entered this country in 2004, using a French passport which had been obtained fraudulently because she was not a French citizen and she was subsequently convicted at Birmingham Crown Court for this offence. I was told during the hearing today by Mr René on instructions that the appellant remembers that she spent two or three weeks in prison for this offence and was then put on probation for a year. However she then remained in this country although obviously she had no leave to be here.
2. On 1 October 2015 she applied for asylum having first attended some demonstrations against the Gambian regime. According to her witness statement which was produced for the hearing of her appeal against the respondent’s decision to which reference will be made below she had attended demonstrations on 25 April 2015, 22 August 2015, 20 February 2016, 20 April 2016 and 22 July 2016. She had also she says attended an anti-Gambian Government “symposium” at Camden Town in London on 26 July 2015.
3. She attended a screening interview on 8 October 2015 followed by a substantive asylum interview on 27 January 2016 and her application for asylum was refused by the respondent on 5 April 2016. The Reasons for Refusal Letter is dated the same date. Essentially the respondent rejected her claim that she was genuinely an opponent of the regime in Gambia and did not consider that she would be at risk because of her sur place activities in this country.
4. The appellant appealed against this decision and her appeal was heard before First-tier Tribunal Judge Lal sitting at Hatton Cross on 27 September 2016. In a decision and reasons promulgated shortly thereafter on 7 October 2016 Judge Lal dismissed the appeal. It is fair to say that the decision is concise amounting to some six pages in total but he does deal with the issues. He found (and this finding has not been challenged before me) that the appellant does not genuinely harbour political views against the regime.
5. At paragraph 17 of his decision the judge stated as follows:
“The Tribunal is satisfied that the appellant would [have] known or been aware and if this were a genuine claim then she would have raised the issue of international protection at an earlier stage. The Tribunal finds that the actions of the appellant are not those of someone who has a genuine fear of persecution.”
6. The real issue which the judge then had to consider was whether or not as a result of her sur place activities (that is by attending demonstrations outside the Gambian Embassy and elsewhere) the appellant had placed herself at risk on return. However cynical such activities might be (and obviously it is implicit in the judge’s findings that these activities were a cynical attempt to make a case where otherwise she would not have one) if as a matter of fact the appellant would be at risk on return then she is entitled to the protection of this country. It matters not that she has placed herself at risk by her own actions; if indeed she is at risk then she is entitled to protection. So the issue before the judge was whether or not as a result of her sur place activities the appellant would be at risk on return. The judge so stated in terms when dealing with this issue at paragraph 19 when he stated in the first sentence that, “turning to the central issue in this case... that is sur place activities in the UK”.
7. The judge had earlier at paragraph 18 found that even on the appellant’s own account she had encountered no problems herself while she was there and had been able to leave the country on a lawfully issued student visa on her own national passport and was satisfied “in the context of no actual political involvement, that this would indicate the appellant was of no interest to the authorities”.
8. The judge had earlier noted at paragraph 13 that the appellant had indicated when asked by the Tribunal that she had not held any position in the Gambian opposition groups in the UK and had attended demonstrations only, that none of her family in Gambia had encountered any problems in Gambia and that although her mother now did not want to speak to her because she had attended demonstrations her mother had been so informed by another family member (and in this respect it is relevant as the judge went on to find, that she had not been so informed by a member of the Gambian Security Services).
9. At paragraph 12 the judge had set out the basis of the appellant’s sur place claim which is that she had attended the five demonstrations as set out in her witness statement and that she had been able to identify herself by reference to a colour photograph in which she is clearly visible. She is holding a banner in this photograph in which there is a reference to “this man in white” (presumably the President of the country or at any rate a member of the government) who “stole our people’s votes in Gambia!!!”.
10. The judge deals with the appellant’s sur place activities in the UK at paragraph 19 and accepts that the appellant has attended the demonstrations as claimed and was visible in the photographs which had been produced. The judge also stated that he had applied the principles set out in the country guidance decision (relating to attendance at demonstrations in the UK, albeit this was in the context of the Iranian Government) of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36, and in particular to the factors set out within the head note. In that case the Tribunal had said as follows:
“4. The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:
(i) Nature of sur place activity
Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?
Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime?
Extent of participation – has the person attended one or two demonstrations or is he a regular participant?
Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?”
11. It is perhaps important to note that in this head note the Tribunal in BA went on to consider the “identification risk” as follows:
“(ii) Identification risk
Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?
Regime’s capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?”
12. Then still under head note (iv) in BA the Tribunal went on to consider the “factors triggering enquiry/activity on return as follows:
“(iii) Factors triggering inquiry/action on return
Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?
Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?”
13. The judge at paragraph 19 stated as follows, when making findings of fact:
“The Tribunal finds that the appellant attended as a mere member of the crowd; she did not speak nor was she an organiser. There is no evidence to suggest that the Gambian authorities have the capacity to identify members of the crown in general terms. The Tribunal accepts that [the appellant’s Counsel at the hearing] was able to produce objective evidence of more senior opposition members and leaders that have been criticised for attending anti regime demos abroad but there was no objective evidence to suggest that the regime is engaged in the systematic observation and identification [of] low level members. Significant in this case was the appellant’s own evidence as to whether her family had encountered any problems in the Gambia and she replied no and in fact it was a family member that had shown her mother her photograph rather than the regime or state security apparatus. The Tribunal notes that were the appellant to be returned to Gambia she could demonstrate that she left the country lawfully for the purposes of a holiday and that she left with no meaningful political profile.”
14. With regard to the general finding of the judge that this appellant was not a genuine political opponent of the regime, as I have already indicated this finding was not challenged before me; even if it had been, it is clear that that finding is adequately reasoned and indeed probably inevitable in light of the length of time this appellant had been in this country during which she had apparently made no attempt to claim asylum and nor had she taken part in any demonstrations until very shortly before she made her asylum claim.
15. The basis of the challenge is essentially that the judge did not follow the guidance in BA and more importantly that the statements within paragraph 19 (and complaint is made that it is a very short paragraph) were inconsistent with the evidence. On behalf of the appellant, Mr René first of all referred to the fact that a colour photograph which was seen by the judge had been taken outside the Gambian Embassy and that the judge had not referred specifically to the fact that she was carrying a banner or how many demonstrations she had attended. In fact it is clear that the judge did have this in mind and must have had in mind that she was carrying a banner, because he has specifically referred to the photographs which he accepted were of her and she was carrying a banner in that photograph. It is also the fact that at paragraph 12 he refers specifically to the demonstrations which she claimed to have attended, which is consistent with her witness statement. It is then said that the appellant’s name is mentioned in an online publication which is apparent from page 15 of the bundle which was before the judge which is a printout of an online news item from a site called “Kibaaro News” in which the appellant’s name is one among many (she is referred to as “[her name] activist and protestor”). However, as the judge stated within his decision, he had in mind all the evidence that was before him, including the photographs. The fact that the judge did not refer in terms to her name would only be relevant if there had been any evidence that the regime had a system of examining all online publications for information of this type which has been wholly lacking in this case.
16. With regard to the central findings made by the judge which are that the appellant had attended as a mere member of the crowd and did not speak nor was she an organiser, this is clearly accurate. It is not suggested on the appellant’s behalf (and she did not suggest) that she had been an organiser or that she had spoken and the judge’s finding that there was “no evidence to suggest that the Gambian authorities had the capacity to identify members of a crowd in general terms” was correct, as was his statement that “there was no objective evidence to suggest that the regime is engaged in the systematic observation and identification [of] low-level members”. I invited Mr René to point the Tribunal to any evidence which suggested that the Gambian authorities did have the capacity to identify members of the crowd in general terms or that the regime was engaged in “the systematic observation and identification of low-level members”. He referred me to page 24 of the bundle which is an online article from a site called “blastingnews.com” in which reference is made to how a special agent of the Gambian National Intelligence Agency had been detained by Singhalese police in Dakar because he had infiltrated a demonstration of Gambian ex-patriots. It is said in this article that “special agent Kujabi disguised himself as a protestor” and was “said to be stationed in the country’s embassy in Dakar”. I invited Mr René to point to any evidence that there was any agent in London who was doing this but he was unable to do so. Although this particular article continues by saying that “Gambian Embassies in most parts of the world have intelligence and defence attaches”, there is no evidence relating to this which is in the very large bundle which was produced nor could Mr René point to “objective evidence to suggest the regime is engaged in the systematic observation and identification of low-level members”. Although Mr René referred me to an extract from the country information produced by the respondent in which at paragraph 4.1.7 it was noted that the US State Department Report had noted “numerous reports of politically motivated disappearances during the year” this did not impact on the judge’s concern about the lack of evidence of systematic observation and identification of low-level members. Nor did the extract from the OGN of January 2014 at 3.17.15 that “Amnesty International has obtained a copy of the letter which appears to have been sent by the Gambian police force in February 2013 to the heads of all the security forces and which orders the surveillance of twelve Gambians living abroad in a variety of countries, including the UK” assist on this point. The fact that the government in Gambia wished to survey twelve Gambians is very far from being evidence that they systematically observe and identify low-level members. Indeed, the judge accepted in terms that the applicant “was able to produce objective evidence of more senior opposition members and leaders that have been criticised for attending anti-regime demos abroad” but the point that concerned him was that there did not seem to be any evidence that this surveillance extended to low-level members such as this appellant was.
17. In these circumstances, in my judgment the judge was entitled to find that the appellant had not established that because she had been a member of the crowd which had been protesting against the regime in London she would be at real risk on return. In order to establish a real risk based on sur place activities it is necessary to establish on credible evidence that the country in question does actually survey demonstrators of the type an applicant is found to be (in this case a relative low-level activist who has no history of prior demonstrations and no profile in the country) and it is also necessary in this regard to consider whether or not the country in question has the capacity to carry out large-scale surveillance, and in this case the evidence does not support the proposition that Gambia does.
18. It follows that there is no material error in Judge Lal’s decision and this appeal must accordingly be dismissed on this point.
19. The judge in his decision dealt with the appellant’s Article 8 claim, and his findings in this regard are adequately reasoned and have not been challenged before me.

Decision
There being no material error of law in the decision of the First-tier Tribunal, this appeal is dismissed and the decision of the First-tier Tribunal, dismissing the appellant’s appeal, is affirmed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed:

Upper Tribunal Judge Craig Dated: 9 March 2017