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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 826
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE ALLEN AND UPPER TRIBUNAL JUDGE FRENCH
AA/13307/2011 & AA/13177/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
SIR STANLEY BURNTON
| MI (PAKISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Mavelyn Vidal (instructed by Duncan Lewis & Co) for the Appellant (MF)
Mr William Hansen (instructed by Treasury Solicitors) for the Respondent
Crown Copyright ©
The relevant facts in MI (Pakistan)
i) bullying at school between the ages of 8-15;
ii) name calling between the ages of 15-22;
iii) finding it difficult to find work and getting the sack after two weeks because of remarks by customers about the colour of his skin;
iv) being beaten up by a group of men on one occasion when he was 23 (i.e. in 2007), when he responded to their name calling;
v) trying to relocate to Karachi and then Quetta but suffering the same harassment.
"38. I accept Professor Bluth's expressed conclusion that he does not doubt the appellant's assertion that he may be at risk of being the target for attacks, if he returns to Pakistan, and that the authorities will be unable or unwilling to provide significant protection.
39. I bear in mind the guidance given in the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR re-edited Geneva 1992):
51. There is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons - would also constitute persecution.
40. I accept that, as a result of his albinism, the appellant has been physically and verbally abused in Pakistan, that his education has suffered severely and that he is unlikely to be able to work there. This amounts to persecution. Relocation would not resolve these problems.
41. Although there was some discussion at the hearing about whether albinos in Pakistan constituted a particular social group, it does not appear to me that there can be any real doubt about the matter: see Shah and Islam  2 AC 629. Albinism is an immutable characteristic.
42. Using the standard of proof applicable, I find that the appellant would be at risk of persecution in Pakistan, as a member of a particular social group.
43. For these reasons, the appellant has satisfied me, to the standard set out earlier, that he has a genuine and well-founded fear of persecution in Pakistan for a Refugee Convention reason.
44. Humanitarian protection pursuant to paragraph 339C of HC 395 does not therefore arise.
45. For the same reasons, the appellant has shown that there is a real risk that he would be subjected to torture or inhuman or degrading punishment in Pakistan. His removal to Pakistan would constitute a breach of the United Kingdom's obligations under article 3 of the ECHR.
46. I need not consider the impact of article 8 of the ECHR."
"(i) [MI], as a result of his albinism, had been verbally abused and physically attacked, he said this was on an occasion when he was aged 23;
(ii) he was bullied at school and his education suffered accordingly;
(iii) he was unlikely to be able to find work;
(iv) he had attempted to relocate to Karachi and to Quetta but had still encountered harassment and discrimination there. It was accepted that he had not sought help from the police, for which he had advanced reasons."
"47. Having regard to all of the evidence I have come to the view that although this Appellant did suffer bullying at school and taunting and has difficulties finding work if returned he would not be alone in Pakistan, he lives in a province where there are some positive comments about the police, he has not attempted to access their protection, he has suffered one act of violence after responding to a group of youths who taunted him. Although one feels sympathy for the Appellant that single past act of violence, bearing in mind that he made no attempt to access the protection which is available, does not demonstrate that he has been persecuted or faces a real risk of persecution in the future nor do the bullying and taunts in themselves or taken together with the act of violence and his difficulties in finding employment reach the standard necessary to meet the requirements of the Refugee Convention nor for humanitarian protection or protection under Article 3 ECHR."
"53. It is also significant and cannot be discounted that he, with the sister and others contrived to secure his entry to this country using false information and the sister even gave false evidence at the Tribunal hearing following which his appeal against refusal was allowed. Such a factor has to weigh heavily against the Appellant; it cannot be in the public interest for such a deception to be allowed to succeed. I also bear in mind that the Appellant has found himself more settled in this country than he did in Pakistan and finds that his albinism is not commented upon in the same way. If he returns he may well face some further unpleasant comments but that is not to my mind a sufficient reason to allow him to remain on the basis of Article 8. The respondent has established that the Appellant's removal is proportionate to the legitimate aims pursued."
"1. It seems to me that the Judge was entitled to find that there was an error of law in the decision of the First Tier Tribunal in that the single act of violence, coupled with bullying and taunts, was not sufficient as to amount to persecution under Article 3. The single judge was also entitled to find that the police could provide adequate protection. But strictly that is not necessary once he has established there is no breach of Article 3.
2. The judge considered in terms the best interests of the children: since they were the children of his brother and sister, they plainly would not weigh in the same way as if they were his own children. The judge gave cogent reasons why that did not render his removal (dis)proportionate: see paragraph 52".
"because (a) the favourable findings (b) the Appellant's physical appearance of a European or American when (c) combined with the continuing worsening violence and anti-Western sentiments in Pakistan are all such serious factors as to mean that the Appellant will at least face continued discrimination (which appears to be accepted), but according to the expert, it will be much worse than 'mere' discrimination that he will face on return".
"5. I have decided that permission to appeal should be granted. This is a second appeal. I am not satisfied that there is a point of principle or practice involved in this case, but I am satisfied that there are other compelling reasons why the appeal should be heard. First of all, this is a case where the Upper Tribunal allowed an appeal from the FTT on an "error of law" which, with great respect, seems to me to be somewhat flimsy. The conclusion as to whether some conduct was persecution or not is ultimately one of fact. The reasons for that conclusion lie in the evidence, which was referred to copiously by the FTT judge. At least that seems to me to be an arguable point.
6. Secondly, but more importantly, the key test is not what has happened in the past but whether there is a serious possibility or reasonable likelihood of persecution in the future. Deputy Upper Tribunal Judge French appears, by a process of induction, to have concluded that because the facts of the past do not (in his view) amount to persecution and so forth, there is no sufficient likelihood of it happening in the future. It is arguable that this does not follow. Having read the admirable "Practice Direction statement" of Mr Abid Mahmood, it seems to me that in the circumstances this case should be heard by this court in order to explore all those matters.
7. Lastly among my reasons, when a person claims protection as a refugee, and there are two conflicting decision of the courts that are founded on the interpretation of the facts, as is the case here, then, at least in this case, it seems to me there are compelling reasons for the matter to be heard by this court."
The grounds of appeal presented on behalf of MI in this court
i) The jurisdiction ground: By way of preliminary issue, Mr Mahmood submitted that the UT had no basis for interfering with the decision of the FTT because IJ Camp had made no material error of law. Accordingly the FTT's determination ought to have remained. The UT merely disagreed with IJ Camp's determination.
ii) The substantive ground: Mr Mahmood submitted that, if contrary to the jurisdictional argument, the UT was right in law to re-open the appeal, nonetheless it dismissed the appeal on the wrong legal basis. This ground, he submitted, raised the important issue of principle as to the meaning of the word "persecution" and the test to be applied under the Geneva Convention. It was MI's case that the past violence, harassment and discrimination that he had suffered, and the harassment and discrimination which he would suffer on return to Pakistan, as a matter of law amounted to persecution, engaged Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ... OJ 2004 L304, p 12) ("the Qualification Directive"), or alternatively that humanitarian protection should have been granted by the respondent and, or alternatively, that his removal was a breach of Articles 3 or 8. (He did not pursue his ground of appeal that his removal was not in the best interests of his brother's and sister's children).
iii) The inefficiencies of the police and the authorities in Pakistan: These were evidentially well-documented. Even had MI sought the protection of the police in Pakistan, their inefficiencies and the well-documented allied corruption meant that there would be no sufficiency of protection on return. This ought to have led to the appeal being allowed on protection grounds.
Determination of the preliminary jurisdiction issue in MI (Pakistan)
The parties' submissions
Discussion and determination of the preliminary jurisdiction issue in MI (Pakistan)
"61. There has been an unfortunate tendency in the law of asylum to treat findings of fact as decisions on points of law, and binding authority in subsequent cases. This is such a case: the decision of the Court of Appeal in EB (Ethiopia) was regarded as authority for the proposition that the removal of a person's nationality by the authorities of his or her home state is as a matter of law sufficiently serious ill treatment as to constitute persecution which, if done for reasons referred to in Article 1(A)(2) of the Convention relating to the Status of Refugees, entitles that person to refugee status. This understanding of the effect of EB was, I think, largely responsible for the unnecessary length of the Tribunal's determination and the complexities of its reasoning.
62. I am troubled by this proposition. What is the meaning of persecution in Article 1(A)(2) is a question of law. It has been the subject of helpful exegisis, as by Laws LJ in Amare  EWCA Civ 1600, in a judgment with which the other members of the Court agreed. Thus what ill treatment is capable of being persecutory is a question of law. But whether ill treatment in a particular case constitutes persecution is a mixed question of fact and law: it is the application of the denotation of persecution to the particular facts."
"The second step is to determine the meaning of section 31(2), which is an issue of pure law. In relation to such an issue, the function of this Court (like that of the Court of Appeal) is uninhibited by the fact that it is an appellate tribunal. That is because there is a single "right or wrong" answer, which an appellate court has to determine for itself, although it often derives assistance from the reasoning of the court or courts below. "
"57. The final step in relation to the section 31(2) threshold issue required the Judge to address the question whether, on the primary facts he had found and assessments he had made, the threshold was crossed in this case. The decision on that question is certainly not one of law, but it is not one of primary fact either. It is a type of decision which is often described as involving the exercise of judgment, but it may fairly be said that this is not a very illuminating characterisation, because the determination of an issue of law or of an issue of fact also involves the exercise of judgment. As Lady Hale at para 199 and Lord Wilson at para 44 each say, it can be categorised as a value judgment (as Ward LJ said in In re MA (Care: Threshold)  1 FLR 431, para 56, and Black LJ said below,  EWCA Civ 1475, para 9). It can also be said to be an appraisal, as Lord Kerr describes it in para 109, or an evaluation, to use Clarke LJ's characterisation in Assicurazioni Generali SpA v Arab Insurance Group  1 WLR 577, paras 16 and 17, cited with approval by the House of Lords in Datec Electronics Holdings Ltd v United Parcels Service Ltd  1 WLR 1325, para 46.
58. In many cases, reversing the trial judge's evaluation on an issue such as whether the section 31(2) threshold has been crossed, would involve an appellate court effectively disagreeing with (i) primary findings of fact made by the judge, or (ii) the impressions he obtained from seeing the witnesses (eg in terms of trustworthiness as to future conduct). In such cases, depending on the precise basis on which the appeal is mounted, the reasons for giving primacy to the trial judge's conclusion (good sense, policy, cost, delay, and practicality) will either apply in the same way as, or will apply with somewhat less force than, they do in relation to findings of primary fact. ……
60. When it comes to an evaluation, the extent to which the benefit of hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal will vary from case to case. Accordingly, it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation (see also in this connection Robert Walker LJ in Bessant v South Cone Inc  EWCA Civ 763, para 26, May LJ in EI du Pont de Nemours & Co v ST Dupont  EWCA Civ 1368, para 94, and Laws LJ in Subesh v Secretary of State for the Home Department  EWCA Civ 56, para 44). Accordingly, as already explained, even where the issue raised is not one of law, the reasons which justify a very high hurdle for an appeal on an issue of primary fact apply, often with somewhat less force, in relation to an appeal on an issue of evaluation. "
The relevant facts in MF (Venezuela)
i) He was involved in a road accident when delivering material to city mayor; a man with a gun had told him to leave the materials outside the building, get out of the car as the man said that he wanted to take control of the truck and escape with the materials; MF argued with him at which point four more policemen arrived and switched on the engine of the truck; he claimed that he ran in front of the truck and said that they must pass through him first; the driver then drove the truck at him and threw him in the air; they were however eventually stopped by other members of the local police; the police had later lied by claiming they were searching for stolen goods.
ii) Between January and July 2009 police officers in plain clothes had followed him, stolen his car, screamed at him and spat at him and there had been constant intimidation.
iii) He had once received an anonymous telephone call on his way to the office; the caller said he was right behind him and then hung up; that scared MF.
iv) He was also approached by various people who tried to provoke him by insulting him; and then showing him a concealed gun in order to scare him.
v) He experienced difficulties obtaining a new pacemaker for his daughter at a state hospital, although ultimately he obtained funding for private treatment to ensure that she received the necessary procedure. He and his wife also experienced major difficulties in finding his daughter a school place when they returned from the United Kingdom, as the schools turn them away because it was said they had not provided evidence that she had studied in the United Kingdom.
vi) Finally, MF was threatened that, if he took part in the 2012 elections, he would be killed.
"in the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum…. It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK and that you do not qualify for Humanitarian Protection.
"30. A great deal of what the appellant claims has been accepted on behalf of the Secretary of State. As was said by Mr. Tarlow, his political activities and diplomatic career are accepted. However, it is argued on behalf of the Secretary of State that the incidents the appellant describes are the actions of criminals or people masquerading as police. Given the background evidence and the extent to which the appellant's claim has been found credible, we accept that he has experienced harassment and intimidation on the part of people acting or purporting to act on behalf of the president. It is clear that Mr. Ledezma is seen as an opponent of President Chavez, and given the association of the appellant with Ledzema at least prior to his resignation before he came to the United Kingdom, we accept that he could have been seen as being at a level where the degree of harassment was seen as an appropriate way of trying to deal with him and influence him.
31. However, we do not accept that what the appellant says happened to him and what his wife says happened to him and other members of the family amounts to persecution. The Refugee Convention does not define persecution. A real risk of serious harm or threat of serious harm may be said to be the essence of what persecution entails. It is said in MacDonald at paragraph 12.48 that mere discrimination is probably not enough, though evidence of discrimination will make it easy to demonstrate persecution. It is also said that where discrimination is so severe, frequent or protracted that it inhibits freedom to exercise basic human rights such as the right to a livelihood or to practice religion that it may amount to persecution. [The Tribunal then referred to be Qualification Directive and Regulation 5 of the Refugee or Person in Need of International Protection (Qualification) Regulations.] …
32. We do not consider that what has happened to the appellant in the past or what he might face in the future is such as to cross the necessary threshold. He has been subjected to the forms of intimidation that are set out in his evidence, including the difficulties that were experienced in getting treatment for his daughter and access to education, and harassment of a regular but not in our view, serious nature. It is relevant also to bear in mind that since he has left his employment with Mayor Ledezma, it may well be that he faces less risk of intimidation and harassment on return to Venezuela. The reasons are harassing him out significantly diminished. He has not substantiated claim to be on any kind of list of President Chavez. He is a person who had a profile at a certain level, supporting an opponent of Chavez's, who has experienced unpleasant treatment which falls some way short of being serious. The incident with the truck was perhaps the most serious incident, and we mean no criticism the appellant when we say that what happened was that in a sense provoked by him. He would have suffered no harm had he simply allowed the lorry to be driven away and although it is understandable that he would wish to resist this, it is nevertheless the only incident in which physical harm has been inflicted on him. Bringing these matters together we conclude that he has not experienced persecution in the past and does not face a real risk of persecution on return to Venezuela."
The applicable provisions of the relevant statutes, treaties, rules and regulations
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee [the Geneva] Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights. "
"Definition of asylum applicant
327. Under the Rules an asylum applicant is a person who either;
(a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom's obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or
(b) otherwise makes a request for international protection. "Application for asylum" shall be construed accordingly…..
Applications for asylum
328. All asylum applications will be determined by the Secretary of State in accordance with the Geneva Convention…
Grant of asylum
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;
(iv) ……; and
(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group…….
Refusal of asylum
336. An application which does not meet the criteria set out in paragraph 334 will be refused. Where an application for asylum is refused, the reasons in fact and law shall be stated in the decision and information provided in writing on how to challenge the decision….
Grant of humanitarian protection
339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and
(iv) he is not excluded from a grant of humanitarian protection.
Serious harm consists of:
i) the death penalty or execution;
ii) unlawful killing;
iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict…..
Refusal of humanitarian protection
339F Where the criteria set out in paragraph 339C is not met humanitarian protection will be refused.""
"For the purposes of the present Convention, the term 'refugee' shall apply to a person who...owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." [My emphasis.]
However, the Geneva Convention does not define persecution as such.
" a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to available himself or herself of the protection of that country …".
" who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of the stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17 (1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country."
"QUALIFICATION FOR BEING A REFUGEE in the year one
Acts of persecution
1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature."
"ASSESSMENT OF APPLICATIONS FOR INTERNATIONAL PROTECTION
Assessment of facts and circumstances
1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.
2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.
3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;
(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;
(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm.
This section has no associated Explanatory Memorandum
2. In these Regulations—
"application for asylum" means the request of a person to be recognised as a refugee under the Geneva Convention;
"Geneva Convention" means the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the New York Protocol of 31 January 1967(1);
"immigration rules" means rules made under section 3(2) of the Immigration Act 1971(2);
"persecution" means an act of persecution within the meaning of Article 1(A) of the Geneva Convention;
"person eligible for humanitarian protection" means a person who is eligible for a grant of humanitarian protection under the immigration rules;
"refugee" means a person who falls within Article 1(A) of the Geneva Convention and to whom regulation 7 does not apply;
"residence permit" means a document confirming that a person has leave to enter or remain in the United Kingdom whether limited or indefinite;
"serious harm" means serious harm as defined in the immigration rules;
"person" means any person who is not a British citizen.
"Actors of persecution or serious harm
This section has no associated Explanatory Memorandum
3. In deciding whether a person is a refugee or a person eligible for humanitarian protection, persecution or serious harm can be committed by:
(a) the State;
(b) any party or organisation controlling the State or a substantial part of the territory of the State;
(c) any non-State actor if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including any international organisation, are unable or unwilling to provide protection against persecution or serious harm."
"5. —(1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).
(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;
(b) a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7.
(3) An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention."
"51. There is no universally accepted definition of 'persecution', and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights-for the same reasons-would also constitute persecution."
The substantive issues on the appeals
i) in relation to the appellants' respective applications for asylum on the grounds that they were refugees, whether, as a matter of law, as applied to the facts as found by the tribunals:
a) the appellants were refugees, as defined in regulation 2 of the 2006 Regulations; and
b) refusing their applications would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group; and
ii) in relation to their respective applications for humanitarian protection, whether, as a matter of law, as applied to the facts as found by the tribunals, substantial grounds had been shown for believing that the respective appellants, if they returned to the country of return, would face a real risk of suffering serious harm; and were unable, or, owing to such risk, unwilling to avail themselves of the protection of that country.
In fact no separate argument was addressed by any party in relation to the second issue articulated above (humanitarian protection). The arguments presented to us were focussed on the meaning of the word "persecution" and whether the facts as found in relation to the respective appellants, amounted to persecution within the meaning of the Geneva Convention.
"7. To make good their claim to asylum as refugees it was necessary for the applicants to show, to the standard of reasonable likelihood or real risk, (1) that they feared, if they had remained in or were returned to Turkey, that they would be persecuted (2) for one or more of the Convention reasons, and (3) that such fear was well-founded. Although it is no doubt true, as stated in Sandralingham v Secretary of State for the Home Department; Ravichandran v Secretary of State for the Home Department  Imm AR 97, 109, that the Convention definition raises a single composite question, analysis requires consideration of the constituent elements of the definition. At the heart of the definition lies the concept of persecution. It is when a person, suffering or fearing persecution in country A, flees to country B that it becomes the duty of country B to afford him (by the grant of asylum) the protection denied him by or under the laws of country A. History provides many examples of racial, religious, national, social and political minorities (sometimes even majorities) which have without doubt suffered persecution. But it is a strong word. Its dictionary definitions (save in their emphasis on religious persecution) accord with popular usage: "the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it;" "A particular course or period of systematic infliction of punishment directed against the professors of a (religious) belief …": Oxford English Dictionary, 2nd ed, (1989). Valuable guidance is given by Professor Hathaway (The Law of Refugee Status (1991), p 112) in a passage relied on by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department  1 AC 489, 495:
"In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community."
In this passage Professor Hathaway draws attention to a second requirement, no less important than that of showing persecution: the requirement to show, as a condition of entitlement to recognition as a refugee, that the persecution feared will (in reasonable likelihood) be for one or more of the five Convention reasons. As Dawson J pointed out in the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247–248:
"By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees.""
" But the alignment of the State obligations imposed by the Refugee Convention with the protection of basic or fundamental human rights is subject to important qualifications. These are well known, and are no less important than the alignment itself. First is the fact that the Convention only requires protection to be afforded in case of particular violations of human rights norms: those arising "for reasons of race, religion, nationality, membership of a particular social group or political opinion". Secondly, the violation, or rather prospective or apprehended violation, must attain a substantial level of seriousness if it is to amount to persecution.
 These two limitations or, as I would prefer to call them, conditions of the scope of the Refugee Convention are in no sense ancillary or incidental. They are the very focus and expression of the distinct obligation of international protection accepted by the contracting States. Certainly, there is much learning to show that the Convention is to be treated over time as a living instrument and construed as such (see for example the passage from Schiemann LJ's judgment in Jain which I have cited). But this is no licence for the courts, in the cause of protecting or enlarging human rights, in effect to impose on the State obligations which in truth they have not undertaken.
 More generally, I have to say I think that Professor Hathaway's definition of persecution and it is expressly offered as a definition has to be treated with a degree of caution. Its terms are "the sustained or systemic violation of basic human rights demonstrative of a failure of state protection". These words give no very clear place to the requirement of gravity or seriousness, and they contain no recognition of the condition that protection is only to be afforded under the Convention in case of violations arising for the stated reasons."
"12. The Convention does not define "persecution". But it has been recognised that it is a strong word: Sepet and Bulbul v Secretary of State for the Home Department  UKHL 15,  1 WLR 856, para 7, per Lord Bingham. Referring to the dictionary definitions which accord with common usage, Lord Bingham said that it indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it. Article 9(1)(a) of the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ("the Qualification Directive") states that acts of persecution must
"(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights … or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)."
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said:
"Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it."
13. To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." The Convention provides surrogate protection, which is activated only upon the failure of state protection. The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department  1 AC 489, 495. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.
14. The reference in the preamble to the Universal Declaration of Human Rights of 1948 shows that counteracting discrimination was a fundamental purpose of the Convention. Article 2 states:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Lord Steyn emphasised this point in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah  2 AC 629, 639. He also drew attention to the first preamble to the Declaration, which proclaimed the inherent dignity and the equal and inalienable rights of all members of the human family. No mention is made of sexual orientation in the preamble or any of its articles, nor is sexual orientation mentioned in article 1A(2) of the Convention. But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.
15. The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention. But the Convention itself has, as the references in para 12 show, a more limited purpose. It is not enough that members of a particular social group are being discriminated against. The contracting states did not undertake to protect them against discrimination judged according to the standards in their own countries. Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin. Its purpose is to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge. It does not guarantee universal human rights. So the conditions that prevail in the country in which asylum is sought have no part to play, as matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department  UKHL 5,  2 AC 426, paras 16, 46. As Laws LJ said in Amare v Secretary of State for the Home Department  EWCA Civ 1600,  Imm AR 217 para 31:
"The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states."
16. Thus international protection is available only to those members of the particular social group who can show that they have a well-founded fear of being persecuted for reasons of their membership of it who, owing to that fear, are unwilling to avail themselves of the protection of their home country. Those who satisfy this test cannot be returned to the frontiers of a territory where their life or freedom would be threatened on account of their membership of that group: article 33(1). To be accorded this protection, however, the test that article 1A(2) sets out must first be satisfied. As Lord Bingham of Cornhill said in Januzi v Secretary of State for the Home Department  2 AC 426, para 5, the words "owing to well-founded fear of being persecuted for reasons of … membership of a particular social group" in the definition of "refugee" express a causative condition which governs all that follows."
The appellants' submissions in relation to "persecution"
The arguments presented on behalf of MI (Pakistan)
i) The Geneva Convention had to be construed generously and purposively bearing in mind its humanitarian objects and the broad aims reflected in the preamble; see for example per Lord Hope in Regina (ST) v SSHD  2 WLR 375 at paragraph 30; per Lord Dyson in SSHD v RT (Zimbabwe), KM (Zimbabwe) v SSHD  1AC 152 at .
ii) The past ill-treatment suffered by the Appellant, as based on the preserved findings of facts of the FTT and the additional findings of facts of the UT, (namely beatings, not being able to find work, taunts, and harassment - all because of the way MI looked) indeed amounted to persecution. That severe treatment, and its consequences, was likely to continue on his return to Pakistan. Whilst it was accepted that, taken on their own, taunts might not be enough, taken cumulatively with the inability to obtain work, and the other likely harassment, his anticipated treatment on return would indeed amount to persecution.
iii) His past treatment and his anticipated treatment on his return had occurred, and will occur, for reasons connected to the Geneva Convention. That is because of the way he looks - because of his ethnicity, or colour. Indeed it could also be because he is part of a particular social group – namely the group of 'white' people. It could also be because of a political opinion that is imputed to him: namely that because he is regarded as "white", and therefore perceived to be Western and thereby part of the alliance against the Taliban and others in Pakistan opposed to the West.
iv) This was not a case where MI could conceal himself or live discreetly, or internally relocate within Pakistan. The fundamental purpose of the Geneva Convention was to protect a claimant's right to live freely and openly in accordance with his race, religion, nationality, membership of a particular social group or political opinion, without risk of persecution. Refugee status could not be denied to an applicant where, in order to avoid persecution, he will (or is required) to give up that right to live freely and openly; see HJ (Iran) and RT (Zimbabwe), KM (Zimbabwe) supra.
v) At paragraph 53 of its judgment, the UT erred in placing too much weight on the fact that MI had relied on false evidence to secure his entry to this country.
vi) MI was not able to avail himself of the protection of the Pakistan state, because the evidence showed that the state was unable or unwilling to protect him to the requisite standard. There had been good reason why MI had not sought protection from the police in Pakistan. That was because there was no effective police assistance that he could have got.
vii) Accordingly, it was submitted that the UT materially erred in law in dismissing MI's appeal against the respondent's decision. MI did face a real risk of persecution if he returned to Pakistan or inhuman or degrading treatment within Article 3 of the ECHR, such that his return would constitute a breach of his human rights.
The arguments presented on behalf of MF (Venezuela)
i) On the evidence as found by the UT, the tribunal was wrong to conclude that the actions of harassment to which MF was subjected to over a period of years, were not of a sufficiently serious nature to amount to persecution. Whilst Ms Vidal did not dispute that the treatment had to be severe to amount to persecution, in MF's case, the severe harassment, threats, intimidation and stalking to which MF had been subject to over a number of years, and one serious act of assault, as a matter of law amounted to persecution.
ii) Having found that MF had indeed been subjected to the acts of intimidation which it described, it was illogical for the tribunal not to have concluded that he had a well-founded fear of persecution.
iii) Whilst, taken individually, some of the threats and actions of harassment, might not have been sufficiently serious to have amounted to persecution, taken cumulatively, and given the long period of intimidation, they were sufficiently severe to amount to persecution; see, as an example of verbal telephone threats amounting to persecution, Lucreteanu v SSHD I2126, 15 May 2006.
iv) Moreover, there was no requirement that an asylum seeker had to have been physically harmed. It was sufficient that he had been put in fear as a result of threats and attacks on others; see Baballah v Ashcroft 367 F. 3d 1067, U.S. COA 9th Circuit 2004. The UT placed too great weight on the fact that MF had only been the subject of a physical attack on one occasion and wrongly stated that the truck incident was "in a sense provoked by him."
v) The UT erred in failing (when considering the issue of persecution) to give due weight to MF's present age (60 years), and to his profile, first as a family member of political family, then as an actor and, later, as a politician in his own right. It also failed to give sufficient or any weight to the cumulative effect upon MF of years of psychological abuse prior to his departure.
vi) The UT erred in 'narrowly' construing the term 'persecution'. The relevant authorities indicated that a single beating could amount to persecution: see Demirkaya v. Secretary of State for the Home Department  EWCA Civ 1654.
vii) In all the circumstances the UT erred in law in its conclusion as to what constituted 'persecution' in the peculiar circumstances of MF's case.
Discussion and determination – MI (Pakistan)
"to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge."
Discussion and determination - MF (Venezuela)
Sir Stanley Burnton:
Lord Justice Gross: