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Upper Tribunal (Immigration and Asylum Chamber)
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(Immigration and Asylum Chamber)
OO (Burma -TS remains appropriate CG) Burma  UKUT 52 (IAC)
THE IMMIGRATION ACTS
Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 9 November 2017
On 9 January 2018
UPPER TRIBUNAL JUDGE PLIMMER
(ANONYMITY ORDER MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr J Markus, Counsel instructed by Oaks Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer
TS (Political opponents-risk) Burma CG  UKUT 281 (IAC) remains appropriate country guidance on the risk to political opponents in Burma.
Issues in dispute
18. The legislative framework to these appeals includes international and European Union law comprising the Refugee Convention, through the prism of the Qualification Directive, Council Directive 2004/83/EC. This framework is well-known and does not need to be elaborated. When making findings of fact and assessing risk on return, I do so by applying the lower standard of proof.
"1. In order to decide whether a person would be at risk of persecution in Burma because of opposition to the current government, it is necessary to assess whether such activity is reasonably likely to lead to a risk of detention. Detention in Burma, even for a short period, carries with it a real risk of serious ill-treatment, contrary to Article 3 of the ECHR and amounting to persecution/serious harm within the meaning of the Qualification Directive.
2. A person is at real risk of being detained in Burma where the authorities regard him or her to be a threat to the stability of the regime or of the Burmese Union.
3. The spectrum of those potentially at risk ranges from those who are (or are perceived to be) actively seeking to overthrow the government to those who are in outspoken and vexing opposition to it. Whether a person is in need of protection will depend upon past and future political behaviour. This assessment has to be made against the background of a recently reforming government that carries a legacy of repression and continues to closely monitor those in opposition. The evidence points to a continuing anxiety over the break up of the state and the loss of its power.
4. The question of risk of ill-treatment will in general turn upon whether a returnee is detained by the authorities at any stage after return.
5. A person who has a profile of voicing opposition to the government in the United Kingdom through participation in demonstrations or attendance at political meetings will not for this reason alone be of sufficient concern to the Burmese authorities to result in detention immediately upon arrival. This is irrespective of whether the UK activity has been driven by opportunistic or genuinely held views and is regardless of the prominence of the profile in this country.
6. A person who has a profile of voicing opposition to the Burmese government in the United Kingdom can expect to be monitored upon return by the Burmese authorities. The intensity of that monitoring will in general depend upon the extent of opposition activity abroad.
7. Whether there is a real risk that monitoring will lead to detention following return will in each case depend on the Burmese authorities' view of the information it already possesses coupled with what it receives as the result of any post-arrival monitoring. Their view will be shaped by (i) how active the person had been in the United Kingdom, for example by leading demonstrations or becoming a prominent voice in political meetings, (ii) what he/she did before leaving Burma, (iii) what that person does on return, (iv)the profile of the people he or she mixes with and (v) whether a person is of an ethnicity that is seen by the government to be de-stabilising the union, or if the person's activity is of a kind that has an ethnic, geo-political or economic regional component, which is regarded by the Burmese government as a sensitive issue.
8. It is someone's profile in the eyes of the state that is the key to determining risk. The more the person concerned maintains an active political profile in Burma, post-return, the greater the risk of significant monitoring, carrying with it a real risk of detention.
9. In general, none of the risks identified above is reasonably likely to arise if an individual's international prominence is very high. The evidence shows that the government is keen to avoid adverse publicity resulting from the detention of internationally well-known activists.
10. In the light of these conclusions, TL and Others (Burma CG)  UKAIT 00017 can no longer be relied on for Country Guidance. The issue of illegal exit and its consequences considered in HM (risk factors for Burmese Citizens) Burma CG  UKAIT 00012 were not addressed by the parties and the guidance in that decision remains in force for the time being.
11. There is evidence of positive changes in Burma which as they become embedded may result in the need for the present country guidance to be revisited by the Upper Tribunal in the short to medium term."
Country guidance legal framework
"12.2 A reported determination of the Tribunal, the AIT or IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authority in any subsequent appeal so far as that appeal:-
a. relates to the country guidance issue in question; and
b. depends upon the same or similar evidence.
12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law."
"If there is credible fresh evidence relevant to the issue that has not been considered in the country guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant."
"Where country guidance has become outdated by reason of developments in the country in question, it is anticipated that a judge of the First-tier Tribunal will have such credible fresh evidence as envisaged in paragraph 11 above."
"A country guidance case retains its status until either overturned by a higher court or replaced by subsequent country guidance. However, as this case shows, country guidance cases are not set in stone (see also HS (Burma)  EWCA Civ 67 ), and a judge may depart from existing country guidance in the circumstances described in the Practice Direction and the Chamber Guidance Note. That does not amount to carte blanche for judges to depart from country guidance as it is necessary, in the wording of the Practice Direction to show why it does not apply to the case in question. In SG (Iraq)  EWCA Civ 940 , the Court of Appeal made it clear, at paragraph 47, that decision makers and tribunal judges are required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced, justifying their not doing so. To do otherwise will amount to an error of law."
26. In KS (Burma) v SSHD  EWCA Civ 67, in the course of considering and approving of the country guidance system employed by the UT, Maurice Kay LJ said this at :
"The important point is that when there is a challenge on legal grounds to country guidance, either directly or, as here, indirectly, the guidance is subjected to rigorous scrutiny. The Court will need to satisfy itself that the particular part of the guidance that is being called into question was the subject of evidence that was properly evaluated, after full argument, by the UT, whether or not it applied strictly to the appellant or appellants before it. "
Evidence relied upon by the SSHD
"2.2.1 Since the change from military rule to a civilian government in March 2016, there is a growing tolerance of diversity of political opinion, freedom of association, and improvements in freedom of the press and internet based expression. There are some concerns about the ongoing restrictions on the exercise of the rights to freedoms of expression, association and assembly; and the continuing intimidation, harassment and arrest of real or perceived critics of the government. Broad reforms have resulted in the release of thousands of political prisoners (see Political reform, Political affiliation including Political prisoners, Freedom of association and assembly, and Freedom of speech and media).
2.2.2 Furthermore, authorisation to exit Burma, in the form of a "D-form", is no longer required. Therefore, a person who left Burma "illegally" is no longer at real risk of imprisonment on return to Burma unless that person is returned without a passport or Certificate of Identity issued by the relevant Burma Embassy (see Entering and exiting Burma).
2.2.3 The Home Office's view is that these significant and durable changes to Burma's governance and exit/entry procedures amounts to strong grounds supported by cogent evidence to depart from the findings in TS (Political opponents -risk) Burma/Myanmar CG  UKUT 281 (IAC) (25 June 2013), and HM (Risk factors for Burmese citizens) Burma CG  UKAIT 00012 (23 January 2006), which were based explicitly on conditions under the previous military junta. Therefore, the Country Guidance in TS and HM should no longer be followed by decision makers."
29. The 2017 CPIN goes on to set out the SSHD's views as to why a person is unlikely to be at risk for voicing their political views and / or attending demonstrations at 2.2.4-7, before outlining the political developments and changes in Burma at sections 5 and 6. Under the heading 'political reform' reference is made at 5.1.3 to what the UN Secretary General described as " a major transformation" in Burma, which has seen " significant progress made in the reform of its political and economic institutions, as well as in its opening up to the outside world".
Evidence relied upon by the appellant
30. Mr Markus wholly acknowledged the positive political developments in Burma but submitted that much of the evidence referred to within the 2017 CPIN supports the appellant's case that that there has not been sufficiently fundamental or durable changes to the way in which the Burmese authorities treat those who are regarded as critics of the government.
" Nonetheless, some laws restricting political activism remain, and protesters have continued to be arrested, including since the NLD came to power...[I]n the course of normal events, Myanmar citizens face a low risk of official or societal harassment, discrimination, violence or imprisonment on the basis of their actual or imputed political opinion. People who actively participate in public protests against the government or the military face a moderate risk of being arrested and detained. Given the NLD government only assumed power in March 2016, it is unclear at this stage whether those detained in these circumstances will typically be released more quickly than under the previous government.
32. The 2017 CPIN also quotes from the Human Rights Watch Report 'Burma: Don't Prosecute Peaceful Speech - Government Failing to Protect Critics from Arrest, Jail' dated 24 January 2017 at 6.1.7 in which it is said that during the government's first year there has been an escalation in prosecutions of peaceful political speech. Following her visit in January 2017 the UN Special Rapporteur on the situation of human rights in Burma issued a report dated 1 March 2017, wherein she noted the pervasive and extensive fears of reprisals for criticising the government - see 6.1.9 of the 2017 CPIN. Monitoring and surveillance of critics of the government and those perceived to be critics remain - see 6.2.1-6.3.4. Ex-political prisoners have been subject to close monitoring upon release. In her report dated 8 March 2016 the UN Special Rapporteur expressed concern at continued reports of civil society actors being monitored by military intelligence and the Special Branch Police, including being followed and photographed at meetings whilst their families, friends and colleagues were questioned on their whereabouts. Concern was also expressed about the " ...continuing application of problematic legal provisions (both historic and recently-enacted) to arrest, prosecute, and convict civil society actors, journalists, and human rights defenders," particularly, regarding freedom of association and assembly and continued monitoring and surveillance of civil society actors - see 6.2.1-2. Political prisoners have been released but many remain imprisoned or detained pending trial - see 6.33-4.
33. Mr Markus also relied upon a country expert report prepared by Dr Zarni dated 10 August 2017. Dr Zarni's qualifications and experience are set out in TS at . The UT considered him well-qualified to speak about matters in Burma at  but questioned the academic rigour with which he has approached the task before him at  and . The UT nonetheless accepted his evidence that the sophisticated state intelligence network had not been dismantled in Burma and those who demonstrate against the government and are involved in political opposition in the UK is fed back to senior officers in Burma for assessment - [81-2].
34. In his 2017 report Dr Zarni sets out the political developments in Burma after the elections but also describes the use of broad anti-defamation laws to target those critical of the government together with a continuation of the " old pattern" of curtailing freedom of speech. Dr Zarni acknowledges that there was a period of time up to March 2016 when the government made efforts to reach out to Burmese living abroad but that this " new found tolerance and cooperation" has been " closed off". Dr Zarni's 2017 report suffers from a similar absence of academic rigour to that observed in TS. Aspects of his analysis are generalised and unsupported by clear examples or evidence. Dr Zarni's conclusion that there remain significant concerns together with the continued extensive human rights violations, notwithstanding the changes in the political landscape, is however entirely consistent with the majority of the country background evidence. Importantly, Dr Zarni emphasises that a significant aspect of his evidence accepted in TS, continues to apply to the current regime: the sophisticated state intelligence network operating outside and inside Burma has not been dismantled - see [23 to 26] of the 2017 report.
UN Special Rapporteur
35. The UT in TS attached significant weight to the evidence provided in the 2013 report from the UN Special Rapporteur at [74-76]. The report from the UN Special Rapporteur dated 1 March 2017 summarises the progress that has been made but describes the human rights challenges as "formidable". The UN Special Rapporteur acknowledges the strides taken in opening up the democratic space but considers the country to still be without a truly civilian government. Whilst much attention is placed on the serious human rights violations against the Rohinga (at [72-76]), the UN Special Rapporteur remains concerned regarding wider human rights abuses including, the application of problematic legal provisions, particularly in politically sensitive cases and noted that 170 prisoners remain imprisoned for peacefully exercising their rights to freedom of opinion and assembly. The conclusions reached paint a stark picture, that is probably gloomier than the previous report:
"82. It has been almost one year since the new Government came to power. The Special Rapporteur has already noted in her previous report the formidable human rights challenges it faces while simultaneously having to navigate and direct a bureaucracy carried over from the previous Government, as well as govern within the constraints of a Constitutional framework which gives precedence to military prominence over civilian authority. She recalls that the consolidation of democracy and the creation of a culture of respect for human rights is a complex undertaking that requires political will and sustained investment in not just enhancing the functioning and integrity of State institutions but also their accountability.
83. While improvements have been seen in some areas and some are making clear efforts, as the Special Rapporteur reflected after her recent visit, many ordinary people in Myanmar have unfortunately begun to lose hope that the new Government will address their needs and concerns. That is undoubtedly at least partially due to the continued impunity enjoyed by the military and other security forces and their dominant position in the Government. Trust that was placed in the new civilian leadership has started to wane with repeated incidents that carry the hallmarks of the previous Government. Where abuses and violations are suspected, the Government appears quick to resort to its standard position of "defend, deny and dismiss".
84. Addressing the apparent climate of impunity will be vital for the new Government moving forward. Impunity arises from a failure by States to meet related obligations, including to investigate violations; take appropriate measures in respect of the perpetrators by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; provide victims with effective remedies; and take other necessary steps to prevent reprisals by those implicated in alleged abuses and violations.
85. Currently, existing policies, laws and avenues for redress appear to favour those in positions of power rather than ensure that everyone is equal before the law and has an equal opportunity to have legitimate grievances addressed. Laws continue to be misused to stifle freedom of association and assembly, and to subvert freedom of opinion and expression. Individuals who have lived on land for generations continue to face eviction without proper safeguards for projects that bring them little or no benefits. Conflict, which continues to have a devastating effect on civilians, sometimes appears to be focused around resource-rich areas or near lucrative projects.
86. The Special Rapporteur reminds the Government of the distinction between rule of law and rule by law, as far too often issues of concern are explained away as having been dealt with "according to the law". Too often also cases of abuses and serious, even grave, human rights violations that potentially involve the State as the perpetrators, are closed with no explanation or dealt with in secrecy under the pretext of national security. Alternatively, a plethora of committees or commissions are set up to tackle the same issue with duplicative mandates, insufficient guarantees of independence and impartiality, and confusing, inconclusive and delayed outcomes. Where the State is unable to discharge its primary duty of investigating violations, taking appropriate measures against perpetrators and providing victims with effective remedies, it must seek assistance to do so. When it is unwilling to do so, the international community must step in and step up."
Assessment of the background evidence post- TS
36. The UT in TS was in no doubt at  that significant progress had been made to address human rights abuses. The UT also acknowledged at  that the positive changes might become sufficiently embedded to warrant a re-examination of the country guidance on Burma. Positive changes have undoubtedly continued after TS, most notably the 2015 elections themselves, but as the UN Special Rapporteur put it in her August 2016 report:
" 92. The Special Rapporteur welcomes the Government's commitment to furthering democratic transition, national reconciliation, sustainable development and peace, and the important steps already taken in this regard. However, Myanmar's young democracy can only progress if human rights are fully integrated into its institutional, legal and policy framework. Building a culture of respect for human rights must be a priority now and in the future.
93. After the euphoria following the elections, the reality of the wide-ranging challenges facing the new Government has not significantly dampened the sense of hope for change. It will therefore be the key test for this Government to capitalize on its overwhelming public support and current momentum to make progress in human rights priorities and further reforms."
37. The UN Special Rapporteur's 2017 report makes it clear that many challenges remain and respect for human rights has not been integrated into Burma's institutional, legal and policy framework. The UN Special Rapporteur also explains that the military retains dominant influence within the government and human rights abuses continue to be perpetrated with impunity. The UN Special Rapporteur is not a lone voice - her assessment is consistent with the conclusions reached by Dr Zarni, Amnesty International and Human Rights Watch.
38. I now turn to the terms of the Practice Direction and Guidance Note on country guidance decisions. TS is authority in this appeal in so far as it (a) relates to the country guidance issue in question and (b) depends on the same or similar evidence. This case raises the issue of how the appellant, a government critic is likely to be treated upon return to Burma. That is the same broad issue of concern in TS. The evidence in this case is obviously not the same as the evidence before TS. Not only is the evidence updated by over four years, but there have been significant and wide-ranging developments in Burma as a consequence of its move toward democracy. However, having carefully scrutinised the evidence before me, in particular the reports of the UN Special Rapporteur and the 2017 CPIN (which as I have said cross-references to extensive and wide-ranging source materials), as to how government critics are treated in Burma, I am satisfied that the evidence is to similar effect to that available to TS.
39. First, a wide variety of sources, as set out above, support the broad proposition that those who engage in activity critical of the Burmese government continue to face a real risk of surveillance, monitoring and detention, such that the guidance in TS has not been shown to have been overtaken by events in Burma . As Dr Zarni noted in his 2017 report, a number of credible publications outside of Burma have documented a soaring in prosecutions for allegedly defaming the government. The 2017 DFAT report quantifies the risk of people who actively participate in public protests against the government or military to face a moderate risk of arrest and detention.
40. Second, there continue to be links between a sophisticated human intelligence network and the military. There is no evidence that the sophisticated state intelligence network has been dismantled, particularly given the military's significant influence and involvement in the executive and parliament. Indeed, the UN Special Rapporteur continued to express concern at continued reports of civil society actors being monitored by military intelligence including being followed and photographed at meetings whilst their families, friends and colleagues were questioned about their whereabouts.
41. Third, the UT in TS was particularly concerned about the practice of torture in detention in Burma. This has not been specifically addressed by the UN Special Rapporteur in relation to government critics outside of armed conflict. Dr Zarni's evidence continues to point to the risk of ill-treatment in detention, in incidents not related to armed conflict and a continued culture of impunity for perpetrators, as does the US Department of State's 2016 Country Report on Human Rights Practice in Burma dated 3 March 2017. The guidance in TS that there remains a risk of torture and / or serious ill-treatment during short detentions remains appropriate.
42. Having considered all the relevant updated evidence, I am not satisfied that the changes to the political landscape in the aftermath of the elections have led to any fundamental change in the approach toward critics of the government by the Burmese authorities. The situation remains similar to the assessment in TS at  that: "the reforms and improvements to the human rights have not yet reached root and branch level such that those who voice opposition to the regime are free to do so confidently without risk of discriminatory interference by the state with potentially severe consequences for some at present".
43. It follows that I do not accept the SSHD's submission to the effect that there are sufficiently significant and durable changes to Burma's governance and approach to government critics, that the guidance in TS should be departed from. In short, there is insufficient cogent evidence available to justify not following the country guidance in TS, and the updated country background evidence continues to support that guidance.
Findings of fact and application of TS
43. The findings of fact made by the second FTT have been expressly preserved. When reaching my own findings of fact on the evidence post-dating that decision, I have taken these findings into account as well as the adverse factual findings made by the first FTT. I have had the benefit of assessing considerably more evidence stretching over many years, than the first FTT. I have taken into account the appellant's evidence before me together with the photographic and other supporting documentary evidence. Having considered all the evidence in the round, I make the findings set out below.
44. As set out in TS, whether there is a real risk that monitoring will lead to detention following return, will in each case depend on the Burmese authorities' view of the information it already possesses, coupled with what it receives as the result of any post-arrival monitoring. Their view will be shaped by a number of factors, which I address in turn, before considering on a cumulative basis. I have considered the guidance in TS on the basis that the appellant will be returned to Burma, and for these purposes any failure on the part of the Burmese Embassy to provide him with a passport or CoI does not arise - see the SSHD's letter dated 3 August 2017 that emergency travel documents have been in use since March 2017 and the appellant's acceptance of this in Mr Markus's skeleton argument at paragraph 17(a).
How active the person had been in the UK, for example by leading demonstrations or becoming a prominent voice in political meetings
Activities before leaving Burma
Activities on return to Burma
The profile of the people he mixes with
Whether a person is of an ethnicity that is seen by the government to be de-stabilising the union, or if the person's activity is of a kind that has an ethnic, geo-political or economic regional component, which is regarded by the Burmese government as a sensitive issue .
Cumulative assessment of prospective risk
HM country guidance
" The following comprise general guidelines in assessing risk on return to Burma of a Burmese citizen:
1. A Burmese citizen who has left Burma illegally is in general at real risk on return to Burma of imprisonment in conditions which are reasonably likely to violate his rights under Article 3 of the ECHR. Exit will be illegal where it is done without authorisation from the Burmese authorities, however obtained, and will include travel to a country to which the person concerned was not permitted to go by the terms of an authorised exit. We consider it is proper to infer this conclusion from the effect in the Van Tha case of the employment of Article 5(j) of the Burma Emergency Act 1950, either on the basis of the application of that Article in that case or also as a consequence of a breach of the exit requirements we have set out in paragraph 83.
2. A Burmese citizen is in general at real risk of such imprisonment if he is returned to Burma from the United Kingdom without being in possession of a valid Burmese passport.
3. It is not reasonably likely that a Burmese citizen in the United Kingdom will be issued with a passport by the Burmese authorities in London, unless he is able to present to the Embassy an expired passport in his name.
4. If it comes to the attention of the Burmese authorities that a person falling within (1) or (2) is a failed asylum seeker, that is reasonably likely to have a significant effect upon the length of the prison sentence imposed for his illegal exit and/or entry. To return such a person from the United Kingdom would accordingly be a breach of Article 33 of the Refugee Convention. Whether that fact would come to the attention of the authorities will need to be determined on the facts of the particular case, bearing in mind that the person is highly likely to be interrogated on return.
5. It has not been shown that a person who does not fall within (1) or (2) above faces a real risk of persecution or Article 3 ill-treatment on return to Burma by reason of having claimed asylum in the United Kingdom, even if the Burmese authorities have reason to believe that he has made such a claim, unless the authorities have reason to regard him as a political opponent."
"We issue the passport or certificate of identity to someone who can firmly prove that he/she is a Myanmar national with proper documents but only on the approval of the concerned Ministry of Home Affairs and Ministry of Labour, Immigration and Population of Myanmar".
This offers no indication of the requirements necessary for an application to be successfully "approved" by the Ministry.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order.
Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original first Appellant in this determination identified as OO.
Upper Tribunal Judge Plimmer
Dated: 4 January 2018 but amended on 26 January 2018 pursuant to rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to include an anonymity order
1. Human Rights Watch: "They can arrest you at any time", The criminalisation of peaceful expression in Burma, June 2016
2. Human Rights Watch Annual Reports for 2016 and 2017
3. Report of the Special Rapporteur on the situation of human rights in Myanmar, 29 August 2016
4. BBC news - Amnesty accuses Myanmar of crimes against humanity, 19 December 2016
5. The Guardian - Free Speech curtailed in Aung San Suu Kyi's Myanmar as prosecutions soar, 10 January 2017
6. NY Times - Brazen killing of Myanmar lawyer came after he sparred with the military, 2 February 2017
7. US Country Report on human rights practices 2016 - Burma, 3 March 2017
8. Report of the Special Rapporteur on the situation of human rights in Myanmar, 14 March 2017
9. The Guardian - Myanmar's great hope fails to live up to expectations, 31 March 2017
10. Country Policy and Information Note, Burma: Critics of the Government, Version 2.0, March 2017