The Court of Appeal has in the case of KS (Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67 found that the 2009 Country Guidance case of TL (Sur Place activities-risk) Burma [2009] UKAIT 00017 was legally flawed, effectively overturning it in what had become a proxy appeal. The Court of Appeal has at a stroke re-opened all Burmese asylum claims decided since 2009 that turned on the relevant point of law, which has been a central one in many rejected Burmese cases. It has also highlighted one of the glaring legal problems with what Laws LJ once described as the exotic notion of a factual precedent in a common law system.

Manufacturing risk

The point of law arises from the assessment of risk to Burmese nationals who attended demonstrations in the UK allegedly for cynical reasons in order to fabricate an asylum claim once they were outside Burma in order to avoid having to go back. This is referred to by refugee lawyers as a ‘sur place‘ claim because it arises from activities outside the country of origin after departure from that country. The appellants argued that even if their activities were cynical, a risk is still a risk, whether it is manufactured or not, a proposition going back to the Danian [2000] Imm AR 96 case. The Burmese authorities are intensely paranoid, are known closely to monitor ex patriate groups and demonstrations and would not necessarily distinguish logically and rationally between a ‘hanger on’ at a protest and a genuine, motivated activist. The hanger on might well be at as much risk as the activist, it was said.

The tribunal in TL decided against the appellants on this point, rejecting the evidence of a former British ambassador to Burma in order to do so. Every other aspect of his evidence had been accepted. The tribunal held that the Burmese authorities would be able to distinguish between a real activist and a ‘hanger on’ and that the latter would not be at risk.

The Court of Appeal has now overturned this central aspect of TL on two grounds. Firstly, a parallel drawn by the tribunal concerning the safety of failed asylum seekers and hangers on was a false one as there was no route by which information about false asylum claims could reach the Burmese authorities whereas the known monitoring of protests provided such a route for hangers on. Secondly, and rather more damningly of the tribunal panel responsible, Maurice Kay LJ went on:

31. The second flaw is the underlying assumption that the Burmese authorities in Rangoon operate a rational decision-making process which can reliably be trusted to distinguish between a genuine political opponent and a hanger-on. There is no evidence of how the authorities, faced with a person identified and photographed participating in an anti-government demonstration outside the Embassy in London, might go about satisfying themselves that the person in question is simply an opportunistic hanger-on. The general evidence about the behaviour of the authorities does not support a tendency to rational, careful assessment. The accepted evidence is of a repressive, arbitrary regime. A presumption of rational assessment – which is what paragraph 93 amounts to – is, in my judgment, counter-intuitive in the context of the rest of the accepted evidence. The confidence placed in the Burmese authorities is not supported by evidence. For these reasons, I do not consider that the reasoning of the UT can be supported.

Repressive regimes do not behave according to the rational expectations of those of us fortunate enough to be sitting in the comfort of the UK. This was exactly the point made by the ex ambassador. That the tribunal thought they knew better based on supposition not evidence is really quite surprising.

Factual precedents

The reason that this flawed reasoning has only now been overturned is that the individual appellant in TL won her case. She could not appeal and had no reason to do so because she was not found to be a hanger on. The findings of the tribunal on hangers on were obiter dicta (non binding in legal speak), in so far as factual findings rather than legal conclusions can be so described.

Back in 2005 when I still worked at the Immigration Advisory Service and the Immigration Advisory Service still existed I edited and part wrote a report that was highly critical of the then infant Country Guidance system. The title of the report, Benign and Practical?, was taken from an endorsement of the idea of country guidance by Laws LJ in S v Secretary of State for the Home Department [2002] EWCA Civ 539. We concluded that the system was deeply flawed in a number of ways:

Some of these flaws have been at least partially addressed and country guidance cases are certainly now much more thorough affairs than back in 2005. There are fundamental flaws inherent in the concept, though, and KS highlights perhaps the most serious. Where the tribunal goes off piste in terms of the facts of the individual cases, any findings made are irrelevant to the parties, who are therefore less likely to have prepared the point in the first place and will also be unable to challenge any findings that are made. The factual findings are then binding on the First-tier Tribunal and will only be superseded by any future Country Guidance case, which occur at best at intervals of three or four years. Challenges are made harder by the fact the Legal Services Commission includes relevant Country Guidance cases in its assessment of merits for legal aid purposes. As I wrote in 2005, Country Guidance cases are self insulating and they cascade artificial notions of certainty.

How many other Country Guidance case findings were made on similarly flimsy foundations but are all but unassailable within the tribunal system? As a single example, LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) was quite strongly criticised here on the blog. With a greater understanding of the full evidence further criticisms might be advanced but, because the individual appellant succeeded, the case now effectively determines the outcome of other cases no matter what it’s flaws. Certain judges in the higher courts have always been known for their tendencies to make obiter comments. This matters little where the (in)significance of such comments is properly understood. The effectively binding nature of Country Guidance cases, though, means that Upper Tribunal judges really must resist the temptation to pontificate on peripheral points of fact.

Burmese failed asylum seekers still here in the UK whose claims were rejected on the basis of TK should seek legal advice and consider making a fresh claim for asylum.