ASYLUM NOTES

Internal location:

SoS (Secretary of State), para. 390O will not grant asylum if in part of the country of origin a person would not have a well-founded fear of being persecuted. However, if someone would be safe living in a remote village away from family, could still fear persecution.

Safe third country exception:

• No breach of obligation is UK returns refugee to a ‘safe country’ which itself has an obligation to grant him asylum, and which could be expected to fulfil the requirements of the GC.

• Refugee should seek asylum in first safe country he reaches.

• HO will not remove asylum seeker until State receiving him has accepted its responsibility under GC.

Sur place activities:

• A can have well-founded fear of being persecuted or real risk of suffering serious harm based on events after he leaves his country – Para. 339P

• E.g. A who carries on political activities in UK.

• Activities must cause a real risk of persecution. Claim will fail if activities do not come to the attention of the authorities of his country or that it is likely to be ignored (TM (Zimbabwe) [2010])

How should sur place activities be assessed?

BA (Demonstrators in Britain – risk on return) Iran CG [2011], tribunal found:

1. Nature of sur place activities:

• Theme of demonstrations: what do they want? Violent uprising?

• Role in demonstrations and political profile: Leader, active member? Mobiliser addressing the crowd? Organiser of events and rallies? Passive or just member of the crowd? What is his motive?

• Extent of participation: attended one or two rallies or regular participant?

• Publicity attracted: has demonstration caught media coverage in UK or home country? Over the internet? Nature of publicity? Clear pictures? Easy to identify A?

2. Identification risk

• Surveillance of demonstrators: how does regime identify demonstrators, through filming, agents who mingle with crowd?

• Regime’s capacity to identify demonstrators: advanced technology? Facial recognition? HR to fit names to faces? Previous police records?

3. Factors triggering inquiry/action on return

• Profile: A known as committed opponent or someone with a significant political profile; does he fall within 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)

4. Consequences of identification

• Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime

5. Identification risk on return

• Matching identification to person – if a person is identified, is that information systematically stored and used; are border posts geared to the task?

Unable and unwilling to avail himself to protection of that country

A would be unable to avail himself to his country’s protection, if, e.g. it refused entry to him, or refused to issue him with a passport. A claimant who fears persecution will normally be unwilling to accept his government’s protection, and it is inconsistent with his claim to refugee status.

Exclusion from Refugee Status

Article 1F GC – excludes following because they are considered not to be deserving of international protection:

1. Have committed a crime against peace, war crime or a crime against humanity; or

2. Have committed a serious non-political crime outside the country of refuge prior to admission into that country; or

3. Are guilty of acts contrary to the purposes and principles of the UN.

‘Crime against humanity’ under Article 7(1) Rome Statute of the International Criminal Court 2002:

1. Murder;

2. Extermination

3. ….

4. ….

5. Imprisonment or other severe deprivation of physical liberty

6. Torture

7. ….

8. Persecution

9. Enforced disappearance of persons

11. Other inhumane acts

s.54 IANA 2006 interprets Art. 1F(c) from above to include acts of committing, preparing or instigating terrorism, or encouraging or inducing others to do so.

Enforced removal under Article 33(2)

This provision allows UK to remove a person who would otherwise be refugee, where there are reasonable grounds for regarding him as a danger to the security of the UK, or who, having been convicted by final judgment of a particularly serious crime, constitutes danger to community.

S.72 NIAA 2002, general presumption of a serious crime is where person was sentenced to a period of imprisonment of at least two years. SoS would issue certificate pursuant to s.72(9)(b) that presumption applies.

ADVERSE INFERENCES

Claimant’s duties:

Immigration Rules paras. 339I-339N list some factors that should be considered.

Duty on claimant to submit to SoS, as soon as possible, all material facts needed to substantiate the asylum claim. This includes: C’s statement of reasons for making an asylum claim, all documentation at C’s disposal regarding his age, background, identity, nationality (ies), country (ies) and place(s) of previous residence, previous asylum applications, and travel routes and identity and travel documents.

Para. 339L – where aspects of C’s statement not supported by documentary or other evidence, those aspects do not need to be confirmed if following are met:

1. The C has made a genuine effort to substantiate his asylum claim

2. All material factors at the C’s disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;

3. C’s statements are found to be coherent and plausible, and do not run counter to available specific and general information relevant to his case

4. C has made an asylum claim at the earliest possible time, unless he can...

Buy the full version of these notes or essay plans and more in our Immigration Notes.