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Note on IM and AI (Risks –membership of Beja Tribe, Beja Congress and JEM ) Sudan CG [2016] (IAC)

Written by Stephen Vokes.

Emma Rutherford and myself represented AI in this case; the heading is a bit misleading as it is guidance for all Sudanese cases except for Darfur cases. In short this represents an advance on the previous guidance in HGMO (Relocation to Khartoum) Sudan CG [2006] 00062 because there is recognition by the UT that the overall human rights situation in the Sudan has deteriorated.

Do not be put off by the head note; what the Tribunal is saying is that it is a matter of individual factual case assessment in every Sudanese case whether an individual has a well founded fear of persecution. This is what a Tribunal judge should do in any event. However the range of potential risk victims is drawn much wider than before as there is a recognition that any member of the population failing foul of the government and state apparatus could be at risk of persecution. The key question for representatives is to show that the depth of experience of repression by their clients creates a real risk on return for them.

It is unlikely following this Country Guidance, that a one off arrest with no evidence of torture would suffice to found a well founded fear of persecution; nor a period of just harassment. This is seen as rather “normal” by the UT in respect of Sudanese dissidents and those thought to oppose the regime. However the more activity by an applicant, the greater the persecutory risk . This would apply to sur place activity, although here status and organising ability would indicate on the basis of the guidelines, the level of risk on return for an individual.

The decision is welcome on the basis there now is a recognition that there needs to be a sober assessment of the level of risk in each and every Sudanese case, rather than a non Darfuri having to explain why, becomes s/he comes from an area of the Sudan and are not a “risk profession” –see HGMO, they are unusually at risk.

James Fraczyk in unusual FTT appeal

One of James’ recent successful asylum appeals concerned an Appellant from Guatemala. The case was unusual given the country of origin (no Home Office guidance or UT case law exists for Guatemala), and demonstrates a variety of instructive points for practitioners.

Firstly, it was essential to obtain effective evidence establishing, in the absence of any UT authority or Home Office guidance, risk on return in the event of credibility being established.

Secondly, the need for an expert report was indispensable, not only for addressing issues of sufficiency of protection and internal relocation but also for bolstering the evidential weight of the country information evidence which was relied upon.

Thirdly, the expert report also, of course, attested to the reliability of documents exhibited on the Appellant’s behalf (e.g. police reports from the country of origin). Immigration lawyers are now familiar with this practice, given the requirements of Tanveer Ahmed [2002] UKIAT 00439. The form and content of such material is governed by Part 10 of the FTT and UT Practice Direction.

Fourthly, it was important to anticipate the Home Office raising points which had not been taken in the refusal (the SSHD did not take issue with sufficiency of protection or internal relocation within the RFRL).

The facts of the case were that the Appellant had nearly been assassinated as part of a political scandal involving extensive political corruption. The FTT judge held that “I find the appellant’s account plausible, credible, consistent and truthful.”

Home Office concedes on the meaning of "Residence" in relation to Paragraph 276B of the Rules

Written by Stephen Vokes

The Appellant was a foreign national student who had studied in the UK for around 9 and a half years. He achieved his doctorate. He then returned to his home country in Africa. However after a short break in his home country, he then entered as a visitor to attend his graduation ceremony. However after entering the country he changed his mind about returning home and applied for indefinite leave to remain (ILR) on the basis of being lawfully present in the UK for 10 years. The Home Office refused his application on the basis that he had not completed his 10 years residence at the date of their decision. The Appellant appealed to the FTT, who upheld his appeal on the basis;

* at the date of the hearing due to extant leave under section 3C of the 1971 Act the Appellant had completed 10 years residence.
* the Appellant had a genuine change of heart, and although his original intention was merely to visit, he had changed his mind whilst present in the UK.

Now the Secretary of State appealed, on the principal ground that his leave as a visitor did not come within the meaning of “residence” for the purposes of Paragraph 276B. In short he was admitted on a temporary basis and no provision was made for “switching” category. Permission to appeal was granted by UTJ Allen on this point.

However the difficulty with this legal argument is two fold;

1) “continuous residence” is defined in Paragraph 276A (a) as having existing leave to enter or remain; no category is specified.
2) this also appears in the Home Office Guidance and moreover the Guidance states that after 10 years lawful residence has been achieved, an Applicant can enter any lawful basis, and then claim ILR.

The thrust is that only lawful leave to enter is needed is relation to this Rule, and the demand for “residence”.

The Senior Presenting Officer after the UT hearing (which had been adjourned for lack of Tribunal time) sought guidance (from the Policy Directorate one presumes), and then proceeded to withdraw the appeal, conceding that the Appellant’s leave to enter was no basis in refusing his application under the 10 year Rule. Therefore it was accepted that his period in the UK as a visitor did count for the definition of “residence” for the purposes of Paragraph 276B of the Rules.