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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 715
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ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
 UKUT 00413 (IAC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE BEATSON
| Secretary of State for the Home Department
|- and -
|- and -
|United Nations High Commissioner for Refugees
Christopher Jacobs and Guy Goodwin-Gill (instructed by Duncan Lewis Solicitors) for the Respondent
Marie Demetriou QC and Tom Pascoe (instructed by Baker and McKenzie LLP) for the Intervener
Hearing date: 15 June 2016
Crown Copyright ©
Lord Justice Beatson:
II. The legal framework
"1. In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must:
(a) be sufficiently serious by its 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 violation of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (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 within the scope of the grounds for exclusion as set out in Article 12(2);
(f) acts of gender-specific or child-specific nature.
3. In accordance with point (d) of Article 2, there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts."
"1. Member States shall take the following elements into account when assessing the reasons for persecution:
(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention, or abstention from, formal worship in private or public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;
(e) the concept of political opinion shall, in particular, include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.
2. When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution."
"(10) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum for applicants for asylum and their accompanying family members.
(16) Minimum standards for the definition and content of refugee status should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention.
(17) It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.
(18) In particular, it is necessary to introduce common concepts of protection needs arising sur place; sources of harm and protection; internal protection; and persecution; including the reasons for persecution."
III. The factual background
IV. The First-tier Tribunal's decision
V. The Upper Tribunal's decision
"(i) The Appellant worked as a journalist for Radio 'X' in Somalia.
(ii) He did not at any stage come to the adverse attention of AS: his evidence to the contrary was a total fabrication.
(iii) He did not receive any threats on his mobile phone from AS.
(iv) None of his colleagues at the radio station was targeted or harmed before the Appellant left Mogadishu.
(v) The Appellant's wife had not relocated to a place of safety.
(vi) The Appellant's sister was aware of his intention to travel to the United Kingdom, confounding his claim to the contrary.
(vii) Little weight could be attributed to the documentary evidence on which the Appellant relied in support of his assertion that AS had threatened him.
(viii) Increased income was his initial motivation in training to become a journalist."
" He will not refrain from doing so, whether voluntarily or involuntarily. In addition, we find that pro-government or anti-AS opinions, both of which are probably in substance indistinguishable, are attributed to all those who work for media organisations, irrespective of their specific role or activities. Such opinions are inherently political in nature. We consider that this broad assessment applies to all media organisations in all areas of Somalia. Accordingly, the Appellant's case overcomes the threshold of falling within the ambit of the Refugee Convention."
"(b) Journalists working for Radio Mogadishu are at real risk of being targeted by [Al-Shabaab] and killed or seriously injured in consequence.
(f) Those who work for media organisations other than Radio Mogadishu which publish anti-AS material or have an imputed antiAS stance or inclination are also at risk of being targeted by AS and killed or seriously injured in consequence.
(g) All of the attacks upon and murders of both journalists and "media workers" documented in the reports digested above have been motivated by the occupation of the victims. The expression of political opinions is an intrinsic feature of the daily lot of most of those who work in the media sector. Furthermore, we find that the aggressors impute political opinions to all such workers in any event. We consider that there is a direct nexus between the espousal and/or expression of political opinions, actual or imputed, by the victims and their death or injury. There is no other identifiable motive or ground and none was suggested on behalf of the Secretary of State.
(i) We find that there is nothing selective about the attacks on the members of the endangered group. In particular, we find no sustainable basis for confining those at risk to persons who work for media organisations perceived to be either pro-government or anti [Al-Shabaab] (insofar there is any distinction between the two). In this sense, the attacks which have been perpetrated and which, predictably, will continue are indiscriminate. We reject the Secretary of State's argument to the contrary.
(j) Thus the risk is generated by membership of the endangered group without more.
(k) We find no basis for any sustainable distinction between Mogadishu and other areas of Somalia."
"51. The second main element of the Secretary of State's case is that the modification of behaviour under scrutiny will not involve the forfeiture of a fundamental human right. We have analysed in some detail the passages in HJ (Iran) invoked in support of this contention. We would add the following. As our assessment above indicates, the espousal or expression of political opinion, or the imputation thereof, engages freedom of expression, which is a fundamental right. Insofar as Ms Rhee's submission involves the suggestion that there are different degrees in the exercise of the right to espouse and express political opinions, her argument invites a quantitative assessment which, in our opinion, is not merely impracticable but is not harmonious with the nature of the right in question. We consider that interference with this particular right is not to be measured by reference to the extent to which the exercise of one right is adversely affected by the conduct, threatened or actual, of the persecutor. This approach, in our view, neglects the intrinsic nature of the right, which permits and protects the unconstrained expression of a political opinion at any time, at the choice of the individual, as frequently or infrequently as may be desired, subject only to limitations which do not arise in this appeal. This is the quintessence of the underlying right, namely freedom of expression. Moreover, to accede to this argument would be tantamount to reinstating the discredited concept of marginal versus core. Finally, it suffers from the further infirmity that its operation would be utterly impracticable in cases of imputed political opinion.
53. We consider that the Secretary of State's "outright forfeiture" argument must be rejected as the further basis of its impermissible shift of focus from the persecutors to the victim."
VI. The grounds of appeal
"It matters not whether the risk arises from his own conduct in this country, however unreasonable. It does not even matter whether he has cynically sought to enhance his prospects of asylum by creating the very risk on which he then relies cases sometimes characterised as involving bad faith."
Lord Justice Tomlinson:
Lord Justice Moore-Bick: