In CM v Secretary of State for the Home Department [2021] CSIH 15, the Inner House overturned previous findings that a person who witnessed a state murder in their home country was not in danger because they had not (and would not) report the matter to the authorities there. 

The background to the case was that CM and his friend had attended a demonstration in Venezuela. CM’s friend was murdered, shot in the face point blank by a member of the Venezuelan National Guard. 

At all stages, from the initial refusal right until the application for judicial review of the Upper Tribunal’s decision to refuse permission, CM was refused asylum on that basis that he would not put himself at risk by reporting the matter to the authorities, for fear of harm to his family. 

There was a crucial exchange of evidence in the First-tier Tribunal which caused ongoing confusion. When CM was asked whether he would be able to recognise the officers, he said he “had their faces in his head” but upon being asked whether he had any way of identifying them, he said no. 

Accepting that the Upper Tribunal had erred in law in refusing permission to appeal, the Inner House said:

It is arguable that it was unreasonable in the circumstances for the F-tT to conclude that the petitioner is in no danger because he has not made a complaint. He is a witness to a murder by state actors. The murderers know that he witnessed the commission of the crime and they believe that he can identify them as the perpetrators. It may reasonably be inferred from the circumstance of the murder and from their subsequent threats to the petitioner that the perpetrators are ruthless men with scant regard for human life. They run the risk that at some point the petitioner might speak up, with potentially grave consequences for them. In those circumstance it may be reasonable to conclude that they represent a danger to the petitioner. Since it is the killers’ perception of the evidence which the petitioner may be able to give which is critical to his safety, whether that perception is accurate, appears to us to be of secondary importance. However, in our opinion it is arguable that the F-tT (and in their turn the UT and the Lord Ordinary) misunderstood the petitioner’s evidence. 

The alternative issue of whether the case of HJ (Iran) applied (on the basis that CM would essentially have to “keep quiet’ about the murder which potentially infringed his human rights) was left to the Upper Tribunal to decide.

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