LAW1104

Legal Method
6th December 2019
Visiting Professor and Former
Immigration Judge
Patricia Drummond Farrall
Yu Yang
-v-
Secretary of State for the Home
Department HX1219

Yu Yang -v- Secretary of State for the Home Department HX1219

1
THE DOCUMENTS from pages 3 -13 ARE ENTIRELY FICTIOUS AND ARE FOR LEARNING PURPOSES ONLY.

Table of Contents
First Screening Interview .................................................................................................................................... 3
Second Interview ................................................................................................................................................ 5
Home Office Letter of refusal ............................................................................................................................. 8
Appellant’s Statement ……........................................................................................................................... …..10
Dr. Xpert’s Report…………………………………………………………………………………………..……………………………………….…12

The
Law………………………………………………………………………………………………………………………………………………………14-96

a) Asylum and Immigration (Treatment of Claimants, etc.) Act

2004……………………………………………………………..15
b) Macdonald's Immigration Law and
Practice…………………..………………………………………………………………………….18

Background
Material…………………………………………………………………………………………………………………………………..97-197

a) Background Material on China…………………………………………………………………………………………………99-115

b) Background Material on Hong Kong………………………………………………………………………………………...116-197

2
 First Screening Interview at Yarlswood Detention Centre
5th September 2019

Questions Answers

1. What language do you speak?

Chinese and English.

2. Do you need an interpreter?

No, I can speak English.

3. What is your name?

Yu Yang

4. How old are you?

27

5. Where were you born?

Xingjiang

6. When did you leave Xingjiang?

1994

7. Why did you leave Xingjiang? My father took me to Hong Kong to expand his
clothing business.

8. Were you persecuted in Xingjiang?

No, I was a baby. Anyway, my father always
behaved in such a way to avoid persecution. For
example, he smoked, he drank, and he did not
recognise Ramadan publicly. He only grew a beard
when he arrived in Hong Kong.

9. What happened in Hong Kong?

Silence

10. Repeat question.

This place is full of spies.

11. There are no spies in Yarlswood?

You do not understand.

12. Where are your parents? My mother is dead. I do not know where my father
is. I fear for him.

13. How did you travel to the UK?

By lorry

3
14. Where do you live now?
Hendon

15. Why are you holding your head? It is sore. I have a very bad headache. I cannot
continue with this interview.

16. Have you told the truth?

Yes

Please certify that the above details are Signed:

correct and fully understood. Yu Yang.

Interview suspended. The Detainee was

referred to the medical unit at Yarlswood and
given two paracetamol tablets.

4
 Second Interview
The interview commenced at 16.00 hours on 15 September 2019

Questions Answers

1. Are you feeling fit and well?

I will not be fit for a very long time.

2. Are you happy to proceed with your

I might as well get it over and done with.
asylum interview?
3. Do you require an interpreter?
No, I speak English.

4. Where did you learn English?

I went to a British School in Hong Kong.

5. What do you fear if you're returned to

Torture, certain death.
China or Hong Kong?
6. Why is that?
They are after me.

7. What were you doing in Hong Kong?

I was a student at the University of Hong Kong.

8. What happened there?

I was arrested twice for protesting

9. Can you tell me about your torture?

I cannot speak about it. I am too upset.

10. Did you complain to the authorities?

Are you joking?

11. Are you happy to continue?

I will never be completely happy again.

12. Would you like a break?

Yes

Interviewee is weeping. Break for 15 minutes. The Interview continues at 16.45 hours

13. Are you ready to proceed?

Yes

14. Tell me about your family?

I do not think I have any family left.

5
Please open a window
Window is opened. Appellant takes two painkillers.
15. Are you ready to proceed?
16. How did you get out of Hong Kong?
17. Really?
18. Why?
19. Where did you get the money?
20. How did you travel to the U.K?
21. Who helped you do this?
22. Where is your passport?
23. Why not claim asylum Taiwan?
24. Why not claim in Paris?
25. Why not claim in London?
26. Why did you refuse to talk in your
interview in Yarlswood?
27. Did the authorities in Hong Kong do
anything at all to you?
28. Anything else?
Yes
A people smuggler helped me.
Yes
My father had a lot of money.
I told you. He was wealthy.
I was smuggled from Macau to Taiwan. An agent
provided me with a false passport. I flew from
Taiwan to Paris. From Paris, I was then taken by a
lorry and ferry to Dover, and then to Streatham in
London.
Agents
An agent took it in Paris.
I was afraid the Chinese would still find me.
I was in a lorry under the power of the snakehead.
I was afraid I would be sent back.
I was upset. The barbed wire reminded me of the
pictures of the re-education camps in Xingjiang.
They traumatised me.
Silence
6
 29. With whom do you live? His name is Fred.

30. Did you meet in Streatham? Yes. At the Purple Pussycat Night club.

31. Were you clubbing? No, I was washing dishes along with him.

32. When did you meet? I can’t remember the date. October.

33. What is Fred’s job now? He is unemployed.

34. What do you live on? He claims benefits.

35. Anyone else in the flat? Two cats.

36. You never claimed asylum until you were That is right.
arrested?

37. Why not? I was content with Fred and our two cats Marmite
and Marmalade and I was afraid of being sent
back to Hong Kong or China.

38. How did you come to the attention of The police raided our flat and discovered that I
the authorities? was an illegal immigrant and I was detained at
Yarlswood. I need air. I need a cigarette.

END OF INTERVIEW

39. Has your legal representative any

No
comments about the interview?

Interviewing Officer’s Declaration

I confirm that I have recorded verbatim the questions that I have asked the appellant and that, to the best of ability, I
have recorded the pertinent details of events which occurred during the course of the interview

Signed: J Smith
Interview concluded at 17:00 hours

7
 Home Office Letter of Refusal
United Kingdom Border and Immigration Agency

Name: Yu Yang Our ref: 54326

Date of birth: 1 January 1992 Date: 1 October 2019

Nationality: Chinese

Dear Miss Yang,

1) You have applied for asylum in the United Kingdom and asked to be recognised as a refugee
under the 1951 Convention relating to the Status of Refugees (Geneva Convention) on the basis
that it would be contrary to the United Kingdom’s obligations under the Geneva Convention for
you to be removed from or required to leave the United Kingdom. You claim to have a well-
founded fear of persecution in China. A person is a refugee where, owing to a well-founded fear
of being persecuted for reasons of race, religion, nationality; membership of a particular social
group or political opinion, that person is outside the country of his nationality and is unable or,
owing to such a fear, is unwilling to avail himself of the protection of that country or who, not
having a nationality and being outside the country of his former habitual residence, is unable, or
owing to such a fear, is unwilling to return to it and is not excluded from the protection of the
Geneva Convention.

2) Your application has not been considered by the Secretary of State personally, but by an official
acting on his behalf.

3) You came to the attention of the authorities when the police came to your flat and arrested you
as an illegal immigrant. You have since claimed asylum on the basis that if returned to Hong
Kong or China you would be persecuted by the authorities on account of your political beliefs.

4) Your claim has been given careful consideration. It is however not found to be credible on the
lower standard of proof set out in Sivakumaran [1988] 1 ALL ER 193.

5) Further, as a ‘deciding authority’ within the meaning of S.8 of the Asylum and Immigration
(treatment of claimants) Act of 2004, the Secretary of State is bound to take into account as
damaging credibility any behaviour of the appellant to which this section applies. Your first
interview was vague and lacking in detail. You said that you could not continue with the
interview. In your second interview, you again would not speak about how you suffered in Hong
Kong.
8
 You left Hong Kong on a false passport. You did not claim asylum in Taiwan, or France. You
have not produced this false passport. You then claimed that you entered the U.K by lorry and
ferry, concealed from the immigration authorities and did not claim asylum in the U.K until you
were arrested in Hendon at your boyfriends flat. This immigration history severely damages
your case. Moreover, your refusal to co-operate with the Immigration Officer in your screening
interview at Yarlswood further damages your credibility.

6) I turn now to the basis of your claim that if returned to Hong Kong or China that you would be
persecuted by the authorities. The Secretary of State accepts that there are grave human
rights abuses against Muslims in Xingjiang region of China. However, he does not find that you
are a victim of them. You have never been found to break the rules set down by the authorities
in Xingjiang. You moved to Hong Kong at the age of two.

7) There is no documentary evidence that you were detained by the police in Hong Kong. The
Secretary of State seriously doubts that the police would have given you bail after your alleged
second protest. Further, they allowed you two days which is not credible if they wanted to
detain you.

8) The Secretary of State does not believe that you could have acquired your transport and flights
in such a short space of time. The Secretary of State is of the view that you could have claimed
asylum in Taiwan or France. The Secretary of State does not believe that you are of any
interest to the authorities in China. You have never been persecuted there. However, in view
of the Human Rights situation in Xinjiang, the Secretary of State has decided to return you to
Hong Kong.

9) The Secretary of State does not believe your story for the reasons given above. The Secretary of
State is of the view that you are an economic migrant, evidenced by the fact that you began to
work as soon as you entered the country. You are currently living off the benefits of a U.K citizen.
The Secretary of State does not believe that you would be at any risk on return to Hong Kong
and would not be of any interest to the authorities. Your application of asylum is refused.

Bob Blunt
Acting on behalf of the Secretary of State

9
 Appellant’s Statement 5/10/2019

1) I was born in Xingjiang in 1992. My father was very wealthy. He owned a factory which
produced designer clothing. He traded with Hong Kong, Taiwan, and the United Kingdom. We
moved to Hong Kong in 1994.

2) In 1997 Hong Kong ceased to be a British Colony and returned to the control of mainland China,
on the basis of, “one country, two systems,” whereby the Hong Kong Government would be based
on the rule of law and democratic freedoms. It would remain as it was until 2047.

3) However, President Xi Jinping was made party leader in 2013 and intruded on our democratic
rights. In 2014 I took part in the Umbrella Protest and was arrested for booing the Chinese flag. My
father paid a huge sum of money for my release. I kept out of trouble until 2019 when Carrie Lam
brought in the Extradition Bill on the 3rd of April 2019. Given that, and President Xi Jinping's
brutality I realised I had to protest as I was in danger of being extradited. I demonstrated, and was
arrested for a peaceful demonstration and warned of extradition. I was released on bail after 10
days of threats and mental torture.

4) My father arranged for an agent to take me to the UK to seek asylum. I would be in great danger
of either being returned to Xingjiang where I was born or detained indefinitely in Hong Kong
without a fair trial and labelled as a terrorist. The Chinese Government have been pursuing the
protesters of the Umbrella demonstration for the last 5 years with vengeance. There will be no
hope for me.

5) My journey to the UK consisted of a Ferry to Taiwan. I was smuggled out in the early hours of
the morning and crossed the river from Macau to the Northern Airport in Taiwan. I was enclosed
in a box of designer clothes. Although it had holes for air it was very uncomfortable. I stayed in
Taiwan for one night. I had no fear. My father encouraged me to go to the UK as it was a matter of
time before Beijing imposed its power on Taiwan or President Tsai Ing-wen would be replaced
with a less democratic president. The next morning the agent provided me with another passport
and I flew safely to Paris. I stayed in a safe house on the outskirts of Paris for 3 days. I was then
taken by lorry and ferry to Dover and on to Streatham where I stayed with a distant uncle.

6) I got work washing dishes at the Purple Pussycat Night Club. I then moved to Hendon with a boy
I met there. His name is Fred. We were happy together with our 2 cats Marmite, and Marmalade.
He was on benefits.

7) Unfortunately, the police raided our flat. My boyfriend had been shoplifting. I was discovered to
be an illegal immigrant and arrested and detained in Yarlswood.

8) I cannot return to Hong Kong or China, the Chinese never forget. I will die. I cannot return to
Taiwan for the reasons I have given.

10
9) I love the UK, Hendon is a beautiful place. I love to walk around Sunny Hill Park. One day I hope
to study law at the famous Middlesex University. I also love demonstrating at the Extinction
Rebellion protest in Trafalgar Square. It is so wonderful to have freedom of speech.

11
 Dr XPert Report on Miss Yang
Psychological Condition

Dr X Pert BA, MA, MSc, OBE

Member of the Institute of Mental Analysts

Associate of London Institute of Psychotherapy

Author of textbook: Psychotherapy – The Definitive Guide

1. I am instructed by Messrs Grabbit and Run to examine the mental state of the appellant Miss
Yang and to provide a diagnosis of and prognosis for her condition. I have seen the appellant
on three occasions on 2nd November, 3rd November, and 5th November. The interviews have
each been one hour in length.

2. I am a specialist in the field of trauma. I teach at the universities of Oxford and Glasgow and
abroad in the field of trauma and its treatment, and I regularly publish articles on the subject.
I was commended by the High Court for my clear and impressive evidence in the case of Zula
HX 1215 [68341] this year and also in the case of Hye Kye HX 125 [68342], Ali HX1217 [68343],
and Nur HX1218 [683844].

3. I have seen the documents in her case and note the basis of her claim for refugee status in this
country.

4. I found the appellant to be an intelligent and articulate female who speaks English fluently.

5. I note that the Secretary of State has refused her application for asylum on 1 st October 2019.

6. She tells me that, when arrested and taken to Yarlswood on 1 st September 2019 she was in a
traumatic state.

7. She tells me that she suffers from flashbacks. She has nightmares and suffers from acute
insomnia due to fear of being returned to China or Hong Kong. She was told to report to the
police in Hong Kong after being given bail and she failed to do so. She is terrified that she will
be forced to leave the U.K.

12
8. I believe that this young woman is suffering from a complex post-traumatic stress disorder
brought about, by:

a) Her fears of dire punishment if returned to China or Hong Kong.

b) Her traumatic journey to the U.K and subsequent arrest and detention in Yarlswood.

9. I have prescribed appropriate medicines for her and she is responding to these and will be fit
to give evidence at her hearing.

10. I attach a synopsis of my detailed notes during the patient’s interviews.

11. I confirm that I have the patient’s permission to do so.

Signed:

X Pert Consultant Psychotherapist

Date: 11th November 2019

13
The Law

14
 Asylum and Immigration (Treatment of Claimants, etc.)
Act 2004
2004 CHAPTER 19

An Act to make provision about asylum and immigration.

[22nd July 2004]

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and

Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

CHAPTER 19

Treatment of claimants
8 Claimant’s credibility

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum
claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility,
of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks—
(a) is designed or likely to conceal information,
(b) is designed or likely to mislead, or
(c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision
in relation to the claimant.

15
(3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as
designed or likely to conceal information or to mislead—
(a) failure without reasonable explanation to produce a passport on request to an immigration officer or to
the Secretary of State,
(b) the production of a document which is not a valid passport as if it were,
(c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport,
(d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other
document connected with travel, and
(e) failure without reasonable explanation to answer a question asked by a deciding authority.

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make
an asylum claim or human rights claim while in a safe country.

(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before
being notified of an immigration decision, unless the claim relies wholly on matters arising after the
notification.

(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before
being arrested under an immigration provision, unless—
(a) he had no reasonable opportunity to make the claim before the arrest,
or
(b) the claim relies wholly on matters arising after the arrest.

(7) In this section—

“asylum claim” has the meaning given by section 113(1) of the
Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to subsection (9) below), “deciding authority”
means—
(a) an immigration officer,
(b) the Secretary of State,
(c) the Asylum and Immigration Tribunal, or
(d) the Special Immigration Appeals Commission,
“human rights claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum
Act 2002 (subject to subsection
(9) below),
“immigration decision” means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal to vary a person’s leave to enter or remain in the United Kingdom,
(c) grant of leave to enter or remain in the United Kingdom,
(d) a decision that a person is to be removed from the United
Kingdom by way of directions under section 10(1)(a), (b), (ba) or
(c) of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom),
(e) a decision that a person is to be removed from the United Kingdom by way of directions under paragraphs
8 to 12 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(f) a decision to make a deportation order under section 5(1) of that Act, and
(g) a decision to take action in relation to a person in connection with extradition from the United Kingdom,
“immigration provision” means—
(a) sections 28A, 28AA, 28B, 28C and 28CA of the Immigration Act 1971 (immigration offences: enforcement),

16
(b) paragraph 17 of Schedule 2 to that Act (control of entry),
(c) section 14 of this Act, and
(d) a provision of the Extradition Act 1989 (c. 33) or 2003 (c. 41),
“notified” means notified in such manner as may be specified by
regulations made by the Secretary of State,
“passport” includes a document which relates to a national of a country other than the United Kingdom and
which is designed to serve the
same purpose as a passport, and
“safe country” means a country to which Part 2 of Schedule 3 applies.

(8) A passport produced by or on behalf of a person is valid for the purposes of subsection (3)(b) if it—
(a) relates to the person by whom or on whose behalf it is produced,
(b) has not been altered otherwise than by or with the permission of the authority who issued it, and
(c) was not obtained by deception.

(9) In subsection (4) a reference to an asylum claim or human rights claim shall be treated as including a
reference to a claim of entitlement to remain in a country other than the United Kingdom made by reference
to the rights that a person invokes in making an asylum claim or a human rights claim in the United Kingdom.

(10) Regulations under subsection (7) specifying a manner of notification may, in particular—
(a) apply or refer to regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (c.
41) (notice of immigration decisions);
(b) make provision similar to provision that is or could be made by regulations under that section;
(c) modify a provision of regulations under that section in its effect for the purpose of regulations under this
section;
(d) provide for notice to be treated as received at a specified time if sent to a specified class of place in a
specified manner.
(11) Regulations under subsection (7) specifying a manner of notification—
(a) may make incidental, consequential or transitional provision,
(b) shall be made by statutory instrument, and
(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(12) This section shall not prevent a deciding authority from determining not to believe a statement on the
grounds of behaviour to which this section does not apply.

(13) Before the coming into force of section 26 a reference in this section to the Asylum and Immigration
Tribunal shall be treated as a reference to—
(a) an adjudicator appointed, or treated as if appointed, under section 81 of the Nationality, Immigration and
Asylum Act 2002 (c. 41) (appeals), and
(b)the Immigration Appeal Tribunal.

17
Macdonald's Immigration Law and Practice: Chapter 12
Refugees, Asylum, Humanitarian Protection and Discretionary
Leave/The definition of refugee/'Owing to a well-founded fear'
THE DEFINITION OF REFUGEE

[12.23]

The definition of refugee for the purposes of the Refugee Convention is contained in Article 1A(2),
as applied by the 1967 Protocol. A refugee is any 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 his country of nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former
habitual residence ... is unable or, owing to such fear, is unwilling to return to it.' 1'

We will now consider the various elements.2

1
Convention Relating to the Status of Refugees 1951, Art 1A(2), as applied by the
1967 Protocol. The New York Protocol of 1967 applies the 1951 Convention, for those
(but only for those) countries that are parties to the Protocol (whether or not they also
be parties to the Convention), as if the words in Art 1A(2) of the Convention, which
impose a temporal limitation on refugee claims are omitted: see Art 1 of the Protocol.
Thus the Protocol does not strictly amend the Convention but rather applies it in such a
way as to allow for persons to be refugees as a result of events that have occurred since
1951: see Minister for Immigration & Multicultural Affairs v Savvin [2000] FCA 478 per
Katz J in the Full Court of the Federal Court of Australia.
2
In R v Secretary of State for the Home Department, ex p Adan, R v Secretary of
State for the Home Department, ex p Aitseguer [2001] 2 AC 477, the House of Lords
emphasised the importance of attaching an autonomous meaning to each of the terms
within the refugee definition, per Lord Slynn at 509: 'The phrase "otherwise than in
accordance with the Convention" does not mean "otherwise than in accordance with the
relevant state's possible reasonable, permissible or legitimate view of what the
Convention means"'.

'Owing to a well-founded fear’

The fear

[12.24]

A genuine fear of persecution must be behind the asylum seeker's absence from his or her country
of residence or nationality. This is referred to as the subjective element.1 If a person is at risk of being
persecuted in his home country as a consequence of being returned there forcibly the risk would not
make him or her a refugee if it was possible for the person, by returning voluntarily, to avoid the risk:
18
in such a case it is the unwillingness to return to the country that gives rise to the risk and the
consequential fear rather than the fear that results in the unwillingness to return. Therefore the
person would not satisfy the refugee definition.2 Even if objective conditions are such that a
reasonable person would have reason to fear persecution, the claimant will not be a refugee unless
he or she has such a fear. The use of the term 'fear' was intended to emphasise the forward-looking
nature of the test, and not to ground refugee status in an assessment of the refugee claimant's state
of mind.3 The refugee does not have to have left the country because of such a fear, since a person
can become a refugee by reason of events after their departure; such a person is referred to as a
'refugee sur place'.4 There is no reason why the fear should not arise from the refugee's activities
abroad, even if carried out in bad faith, although a claim based exclusively on such acts will be
scrutinised with some scepticism as self-serving and lacking in credibility.5 The Qualification Directive
acknowledges that a need for protection may arise as a result of events occurring after the applicant
left the country of origin and that such events may include the applicant's own activities outside the
country of origin.6 However, the Qualification Directive permits refugee status to be withheld where
the applicant has deliberately created a risk of persecution,7 eg by deliberately bringing him or herself
to the hostile attention of his/her authorities. The implementing Immigration Rules make provision for
'sur place' claims but do not exclude 'bad faith' claims.8

The fear must still exist at the date of determination; despite indications in the travaux préparatoires
of the 1951 Convention which suggested that historic fear may be sufficient to ground refugee status
if the refugee is currently unable to return,9 this interpretation, accepted by the majority in the Court
of Appeal,10 was rejected by the House of Lords in Adan,11 which held that while a historic fear may
be relevant in providing evidence to establish a present fear, it is the existence or otherwise of a
present fear which is determinative. Where objectively it is shown that there is a serious possibility
of persecution, then it may well be difficult to refuse an application on the basis that the applicant
does not believe the persecution will occur.12
1
See UNHCR Handbook, 12.13 above, paras 37 and 38; R v Secretary of State for
the Home Department, ex p Singh [1987] Imm AR 489, DC.
2
AA v Secretary of State for the Home Department; LK v Secretary of State for the
Home Department [2006] EWCA Civ 401, [2006] NLJR 681, [2007] 1 WLR 3134. This
principle appears to have been transported into the humanitarian protection regime
because humanitarian protection will be refused if the person could avoid the risk of
serious harm by returning voluntarily - see API Humanitarian Protection, October 2006
3
James Hathaway The Law of Refugee Status (1991) pp 68-69. Hathaway gives
one of the most authoritative and highly regarded accounts of the Convention, with
particular reference to Canadian and US case law, and is regularly cited with approval
in the higher courts. See also, on meaning of 'fear', Asuming (11530).
4
UNHCR Handbook, 12.13 above, paras 94-96
5
Danian v Secretary of State for the Home Department [2000] Imm AR 96, [1999]
INLR 533, CA; HC 395, para 341(vi). The Qualification Directive (30.9.04 OJ L304/12,
in force 30 October 2004), Art 20(6) provides that within the limits set out by the
Refugee Convention, Member States may reduce the benefits granted to a refugee
whose refugee status has been obtained on the basis of activities engaged in for the
sole or main purpose of creating the necessary conditions for being recognised as a
refugee.

19
 6
Qualification Directive, Art 5. In such a case, proper analysis is required of whether
such activities create a relevant risk, given the general activities and posture of the
feared authorities: H v Secretary of State for the Home Department [2006] EWCA Civ
803, [2006] All ER (D) 79 (Nov).
7
Qualification Directive, Art 5(3).
8
HC 395, para 339P, as inserted by HC 6918.
9
See UN Doc E/1818 containing Ecosoc Res 319 (X1 B): 'who has had, or has well
founded fear ... and owing to such fear has had to leave, shall leave or remains
outside the country of nationality.' The drafting group's explanatory note of the
definition was 'that a person has either been actually a victim of persecution or can
show good reason why he [or she] fears persecution'.
10
Adan v Secretary of State for the Home Department, Nooh v Secretary of State
for the Home Department [1997] Imm AR 251, CA.
11
Secretary of State for the Home Department v Adan [1999] 1 AC 293, [1998] Imm
AR 338, [1998] INLR 325, HL.
12
Radivojevic (13372), followed in Gashi v Secretary of State for the Home
Department [1997] INLR 96, IAT.

Well-founded

[12.25]

The fear of persecution must not only exist but must be well-founded. In Sivakumaran1 the House of
Lords, reversing the Court of Appeal, rejected the advice in paragraph 42 of the Handbook:
''In general the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his
continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for
the same reasons be intolerable if he returned there.'2'

It held that well-foundedness was an objective test, to be ascertained independently of the

appellant's state of mind. But this does not mean that there must have been actual persecution in
the past. It is sufficient if there is a well-founded fear of it occurring in the future.3 A person may still
be at risk of being persecuted even if his account of past persecution has been rejected as
unbelievable.4 Moreover, where an asylum seeker's claim has been disbelieved, it would be wrong
to treat a subsequent, alternative claim as being an abuse of process which should not therefore be
considered;5 'the fact that a claim is inconsistent with the first claim made does not of itself deprive
an applicant of the protection of the Refugee Convention or the European Convention on Human
Rights'.6

Past persecution will always be of great significance. The travaux reveal that the drafting group's
explanatory note of the Article 1A definition was that 'a person has either been an actual victim of
persecution or can show good reason why he [or she] fears persecution'.7 The House of Lords'
decision in Adan means, however, that a refugee must have a current risk, as well as a current fear,
of persecution.8 But past persecution means that future persecution is more likely (and the fear of it
more likely to be well-founded) unless there has been a significant change of circumstances.9 The
Qualification Directive provides that the fact that an individual has experienced persecution or serious
harm in the past or direct threats of such persecution or harm is a 'serious indication' of current risk
unless there are 'good reasons' to consider that such serious harm or persecution will not be
repeated.10
20
The past persecution of an individual may be contrasted with a past generalised risk of violence in
an area which has been diminished by government measures to prevent abuse. Thus in
Ravichandran11 the Court of Appeal distinguished the Canadian case of Thirunavukkarasu12 on the
safety of Tamils in Colombo, on the basis that it related to a different time.
1
R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958
at 996, per Lord Keith.
2
UNHCR Handbook, 12.13 above, para 195.
3
Hathaway, 12.24 fn 3 above, paras 3.1, p 66, 3.2.3, p 87. See Horvath v Secretary
of State for the Home Department [1999] INLR 7 at 18F, IAT, and Kiani [2002] UKIAT
01328 at para 7. See also Appellant S395/2002 v Minister for Immigration and
Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural
Affairs [2003] HCA 71 at para 58 per McHugh and Kirby JJ and at paras 72-77 per
Gummow and Hayne JJ in the High Court of Australia for a recent and instructive
restatement of some basic principles relating to the application of the refugee definition
in respect of fear of future persecution.
4
Daoud v Secretary of State for the Home Department [2005] EWCA Civ 755,
[2005] All ER (D) 259 (May), where Sedley LJ said: 'To claim falsely that you have
been persecuted in the past because of your ethnicity does not mean that you may not
face risks in future because of it'.
5
Which was the approach taken in the tribunal's starred determination MY
(Somalia)* [2004] UKIAT 00174. Ouseley J held in that case that it would be an abuse
of process to permit the appellant, whose claim to be Somali had been disbelieved, to
advance a claim on the alternative basis, inconsistent with the first, that he would be at
risk on return to Somalia for the reason that he was not Somali.
6
Yusuf v Secretary of State for the Home Department [2005] EWCA Civ 1554, 150
Sol Jo LB 90, [2005] All ER (D) 194 (Dec), the appeal from MY (Somalia) per Pill LJ.
7
Report of the Ad Hoc Committee, 17 February 1950, p 39. See the argument of
the intervener in R v Secretary of State for the Home Department, ex p Sivakumaran
[1988] AC 958 at 976-989 for the drafting history of Art 1 of the Refugee Convention
and the admissibility of travaux preparatoires as an aid to the construction of
international instruments. For the relevance of travaux in the construction of an
international instrument see Vienna Convention on the Law of Treaties (1969), Art 32.
And as noted at 12.12 above, UNHCR's jurisdiction extends to those who 'have had' a
well-founded fear of persecution. Hathaway suggests that the final definition adopted
by the drafters intended persecution to be prospective save for those who had suffered
pre-1951 persecution and became refugees by reason of Art 1A(1) of the Refugee
Convention and whose status is not now a matter of present debate: Hathaway above,
para 3.1.1 p 66ff.
8
Adan v Secretary of State for the Home Department [1999] 1 AC 293, [1998] Imm
AR 338, [1998] INLR 325. See also R (on the application of Hoxha) v Secretary of
State for the Home Department, R (on the application of B) v Secretary of State for the
Home Department [2005] UKHL 19, [2005] 1 WLR 1063, (2005) 149 Sol Jo LB 358.
9
See eg Demirkaya v Secretary of State for the Home Department [1999] INLR 441
at 449D, CA; Avci v Secretary of State for the Home Department [2002] EWCA Civ
977, [2002] All ER (D) 254 (Jul); S (01/TH/00632) at para 9. Hathaway, above,
concludes that 'individualised past persecution is generally a sufficient, though not a
mandatory means of establishing prospective risk' (p 88). The German Constitutional
Court goes further, stating that where there has been past persecution the test for the

21
 determining authority is whether 'future persecution could be excluded with sufficient
certainty': Case No 193 (1994) 6(2) IJRL 282. See also UNHCR Handbook at para 45.
10
Qualification Directive, Art 4(4), implemented by HC 395, para 339K, as inserted
by HC 6918.
11
Ravichandran (Senathirajah) v Secretary of State for the Home Department
[1996] Imm AR 97.
12
Thirunavukkarasu v Minister of Employment and Immigration (1993) 109 DLR
(4th) 682.
[12.26]

Problems can arise where a decision on refugee status has been delayed for several years, during
which time the human rights environment has improved without there being some fundamental
alteration in the factors giving rise to the fear. In Arif1 the Court of Appeal decided to proceed by
analogy with the cessation clause at Article 1C(5) of the Refugee Convention and held that, since
the appellant would have qualified for refugee status had his application been dealt with
expeditiously, it was now for the Home Office to demonstrate that a significant change of
circumstances had removed the basis for the claim.2 However, in Hoxha and B3 the Court of Appeal
held that the cessation clause in Article 1C(5) can itself only be relevant where a person has been
formally recognised as a refugee, a conclusion upheld by the House of Lords.4
1
Arif (Mohammed) v Secretary of State for the Home Department [1999] INLR 327,
where the appellant had been sentenced in absentia to a persecutory prison sentence,
but by the date of the hearing, his own party had regained power. However, where
there is no evidence that the applicant would have so qualified, the shifting evidential
burden does not apply: Salim v Secretary of State for the Home Department [2000]
Imm AR 503, CA. In S (01/TH/00632) at paras 8-9 the then President of the IAT,
Collins J, criticised reliance on Arif as 'unhelpful ... if ... there is no significant change in
the situation and the appellant was persecuted for a Convention reason before he left,
it would be difficult to see how the decision could not be favourable to him.' See also S
v Secretary of State for the Home Department [2002] EWCA Civ 539, [2002] INLR 416
at paras 13-15.
2
See 12.86 below for the cessation clause.
3
R (on the application of Hoxha) v Secretary of State for the Home Department, R
(on the application of B) v Secretary of State for the Home Department [2002] EWCA
Civ 1403, upheld at [2005] UKHL 19, [2005] 1 WLR 1063, (2005) 149 Sol Jo LB 358.
4
The Court of Appeal (and the House of Lords) also held that the proviso to Art
1C(5) only applies to statutory refugees falling under the definition in Art 1A(1) of the
Convention - persons recognised as refugees under International Arrangements and
Conventions pre-dating the 1951 Convention (and is therefore no longer of practical
relevance). See 12.86 below.

The burden and standard of proof

[12.27]

The burden of establishing a well-founded fear is on the applicant. In Sivakumaran1 the House of
Lords held that for a fear to be well-founded, the question was whether there was a 'real and
substantial risk' or a 'reasonable degree of likelihood' of persecution for a Refugee Convention
reason. It is clear that showing a real likelihood of persecution is a lesser standard than proving that
22
persecution will occur on the balance of probabilities, and the House of Lords approved the words
of Lord Diplock in Fernandez v Government of Singapore2 to this effect. Lord Diplock had suggested
that the requisite degree of likelihood could be indicated by words such as 'a reasonable chance',
'substantial grounds for thinking', or 'a serious possibility'. In his speech in Sivakumaran Lord Keith3
appeared to approve Stevens J's dictum in the US case of Immigration and Naturalisation Service v
Cardozo Fonseca4 that a one in ten chance of being persecuted could amount to a reasonable
possibility of persecution.5 In those circumstances the addition of the word 'substantial' to 'real' ('a
real and substantial possibility ... of persecution') can only be intended to eliminate minimal or mere
possibilities rather than to indicate something in the nature of a probability or a prediction. In Adjei v
Minister of Employment and Immigration6 a Canadian Court of Appeal preferred to follow the
language of reasonable possibility rather than some of the alternative formulations mentioned in the
speeches in Sivakumaran. The Canadian court indicated that use of the word 'would' instead of
'could' in determining the reality of persecution was evidence of a misdirection on burden of proof.
This reflects the words of Lord Keith, who had succinctly stated the issue: 'if the examination shows
that persecution might indeed take place then the fear is well-founded'. In the case of Chan7 the
Australian High Court adopted the test of 'real chance'. To avoid any possibility of confusion in the
application of the Sivakumaran test, we prefer to state the test in terms of real risk rather than
likelihood.8 The Court of Appeal has recently restated the principle that the burden of proof in relation
to future events is discharged 'by showing that there is a real as opposed to a fanciful risk that they
will happen'.9
1
R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC
958, [1987] 3 WLR 1047, CA.
2
[1971] 2 All ER 691, [1971] 1 WLR 987, HL. In Brown (aka Bajinja) and others v
Government of Rwanda and Secretary of State for the Home Department [2009]
EWHC 770 (Admin), [2009] All ER (D) 98 (Apr), Laws LJ stated at [34]: 'But "real risk"
does not mean proof on the balance of probabilities. It means a risk which is
substantial and not merely fanciful; and it may be established by something less than
proof of a 51% probability. The approach is the same as that taken in refugee cases,
where the asylum seeker has to show a real risk that if he is returned to his home
State he will be persecuted on any of the grounds set out in the 1951 United Nations
Refugee Convention (see Sivakumaran [1988] 1 AC 958)'.
3
[1988] AC 958 at 994.
4
94 L ED 2d 434 (1987).
5
Sedley LJ, pointing out the danger of assimilating risk to probability in Batayav v
Secretary of State for the Home Department [2003] EWCA Civ 1489, [2004] INLR 126,
said: 'If a type of car has a defect which causes one vehicle in ten to crash, most
people would say that it presents a real risk to anyone who drives it, albeit crashes are
not generally or consistently happening' (at paras 38-9).
6
(1989) 57 DLR (4th) 153.
7
(1989) 63 ALR 561.
8
In R v Gough [1993] AC 646 at 670 Lord Goff noted in the context of the
appropriate test for bias, 'for the avoidance of doubt I prefer to state the test in terms of
real danger rather than real likelihood, to ensure that the court is thinking in terms of
possibility rather than probability of bias'. In Kacaj v Secretary of State for the Home
Department [2001] INLR 354 (starred) at para 12, the Tribunal held that it would now
be better in both refugee asylum and human rights cases, for the phrase, 'real risk', to
be adopted in preference to those of a 'serious possibility' or a 'reasonable degree of
23
 likelihood' - all of which in any case seek to convey the same meaning and are to be
distinguished from 'beyond reasonable doubt' or 'on a balance of probabilities'. In
Ahmed (Hussain) [2002] UKIAT 00841, Professor Jackson's Tribunal warned at paras
36-38 that the 'real risk' test should not be taken as amounting to more than a 'serious
possibility' and that the phrase 'substantial grounds for believing' did not import
another standard.
9
MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852,
[2007] All ER (D) 84 (Jul).
[12.28]

The general human rights background of the country in question is important in assessing the
objective foundation for the fear.1 Background human rights data should be collected from a broad
cross-section of official and non-governmental sources in order to supplement the claimant's
evidence. The Secretary of State has an obligation under the Immigration Rules to obtain 'reliable
and up-to-date information' about the 'general situation prevailing in the countries of origin of
applicants for asylum' and to make it available to those deciding asylum claims. 2 The Immigration
and Nationality Directorate of the Home Office now has a 'Country of Origin Information Service'
which produces sourced country reports on the main refugee-producing countries:3 the Operational
Guidance Notes are, however, policy documents and it should be borne in mind that they may lack
independent scrutiny and objectivity.4 There is also an Independent Advisory Group on Country
Information, established under the auspices of the Chief Inspector of the UKBA to consider and make
recommendations about the content of country information reports.5 The existence of a consistent
pattern of gross, flagrant or mass violations of human rights in a country can in itself, but does not
necessarily (it depends on all of the facts), constitute a sufficient ground for determining that a person
would be in danger on return,6 but where human rights reports substantiate that a real risk of ill-
treatment exists, a genuine fear of persecution in a country is likely to be well-founded if it is for a
Refugee Convention reason.7 Where there is a doubt after all the evidence has been placed before
the Tribunal of fact, the benefit of it should be given to the applicant.8 The absence of positive
evidence about a particular practice (eg monitoring of expatriate opposition groups by a state's
foreign legations and intelligence services) should not necessarily result in an applicant's failure to
establish its existence; the objective evidence that there is (eg about the state's suppression of
opposition activities) may require the existence of the practice to be inferred.9 Country Guidance
determinations of the Tribunal should be followed for so long as it is extant. 10 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 authoritative in any
subsequent appeal, so far as that appeal relates to the country guidance issue in question, and
depends upon the same or similar evidence.11
1
UNHCR Handbook 12.13 above, paras 196, 204; Hathaway, 12.24 fn 3 above, pp
89-90. See also UN Convention Against Torture, Art 3(2); Mutumbo v Switzerland
(1994) 15 HRLJ 164. The principle is now incorporated in the Immigration Rules, HC
395, para 339J(i).
2
HC 395, para 339JA.
3
See Home Office website at:
http://www.homeoffice.gov.uk/rds/country_reports.html. See further 12.133.
4
KD (Inattentive Judges) Afghanistan [2010] UKUT 261 (IAC) (30 July 2010)
24
 5
Established under UK Borders Act 2007, s 48(2)(j), successor to the Advisory
Panel on Country Information established under the now repealed Nationality,
Immigration and Asylum Act 2002, s 142. The reports of the Advisory Panel on
Country Information are on its website at: http://www.apci.org.uk whilst the Chief
Inspector's website includes the Independent Advisory Group on Country Information.
6
See Alan v Switzerland [1997] INLR 29 (UNCAT); Hariri v Secretary of State for
the Home Department [2003] EWCA Civ 807, (2003) 147 Sol Jo LB 659, [2003] All ER
(D) 340; Batayav v Secretary of State for the Home Department [2003] EWCA Civ
1489, [2003] AlL ER (D) 60 (Nov); Iqbal (Muzafar) [2002] UKIAT 02239.
7
Hathaway, 12.24 fn 3 above, cites the Federal Court of Appeal in Attakora
(Benjamin) v Minister for Employment and Immigration (Decision A-1091-87) (19 May
1989, unreported), at para 3.2.1 (p 80) that 'persons who flee countries that are known
to commit or acquiesce in persecutory behaviour should benefit from a rebuttable
presumption that they have a genuine need for protection'. For an example of a
situation where an appellant had not suffered persecution and relied wholly on
evidence of country conditions see Drrias v Secretary of State for the Home
Department [1997] Imm AR 346, CA.
8
UNHCR Handbook (12.13 above), paras 196, 203. See also Kaja v Secretary of
State for the Home Department [1995] Imm AR 1, 12.29 below.
9
YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360,
[2008] All ER (D) 195 (Apr).
10
TM (Zimbabwe) & Ors v Secretary of State for the Home Department [2010]
EWCA Civ 916, [2010] All ER (D) 340 (Jul).
11
Practice Direction 12.2.
[12.29]

The correct approach to assessment of past events was authoritatively set out by the Court of Appeal
in Karanakaran.1 The Tribunal had been divided on what standard of proof to apply to evidence of
past or present facts before the necessary assessment of future risk is undertaken. In Kaja2 the
minority had held that historic events should be proven on the normal civil balance and the reduced
burden of 'reasonable likelihood' should apply only in respect of future events, while the majority had
concluded that the decision-maker should not omit from the assessment of future risk any evidence
of past events to which they were prepared to give some credence. They referred to the 'positive
role for doubt' in asylum, given the inability of the asylum seeker to produce witnesses from the
country of persecution, and the general lack of documentary or other evidence proving either past or
future persecution.3 The Court of Appeal endorsed this approach, which does not lay down a
standard of proof for past events but asks the decision-maker to weigh everything for what it is worth
in assessing the risk of persecution. Sedley LJ warned that:
''the decision-maker must not, by a process of factual findings on particular elements of the material which is provided,
foreclose reasonable speculation on the chances of persecution emerging from a consideration of the whole of the
material. Everything capable of having a bearing has to be given the weight, great or little, due to it... [The] facts, so far
as they can be established, are signposts on the road to a conclusion.''

Brooke LJ, relying on the Australian decision of Wu Shan Liang,4 distinguished between civil
litigation, where 'the court has to decide where, on the balance of probabilities, the truth lies as
between the evidence the parties to the litigation have thought it in their respective interests to
adduce at the trial', and administrative decision-making, where 'a whole range of possible

25
approaches ... may be correct' and 'the use of such terms provides little assistance'. He reproduced
with approval a number of principles derived from the Australian case law:5
''(1) There may be circumstances in which a decision-maker must take into account the possibility
that alleged past events occurred even though it finds that these events probably did not occur. The
reason for this is that the ultimate question is whether the applicant has a real substantial basis for his
fear of future persecution. The decision-maker must not foreclose reasonable speculation about the
chances of the future hypothetical event occurring.

(2) Although the civil standard of proof is not irrelevant to the fact-finding process, the decision-maker
cannot simply apply that standard to all fact-finding. It frequently has to make its assessment on the
basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts
given by people who may be understandably bewildered, frightened and, perhaps, desperate, and who
often do not understand either the process or the language spoken by the decision-maker/investigator.
Even applicants with a genuine fear of persecution may not present as models of consistency or
transparent veracity.

(3) In this context, when the decision-maker is uncertain as to whether an alleged event occurred, or
finds that although the probabilities are against it, the event may have occurred, it may be necessary to
take into account the possibility that the event took place in deciding the ultimate question (for which
see question 1 above)...

(4) Although the "What if I am wrong?" terminology has gained currency, it is more accurate to see
this requirement as simply an aspect of the obligation to apply correctly the principles for determining
whether an applicant has a 'well-founded fear of being persecuted' for a Convention reason.

(5) There is no reason in principle to support a general rule that a decision-maker must express
findings as to whether alleged past events actually occurred in a manner that makes explicit its degree
of conviction or confidence that its findings were correct...

(6) If a fair reading of the decision-maker's reasons as a whole shows that it "had no real doubt" that
claimed events did not occur, then there is no warrant for holding that it should have considered the
possibility that its findings were wrong.''

1
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449,
[2000] INLR 122, [2000] Imm AR 271. The Court of Appeal's evaluative approach to
refugee status determination in Karanakaran was approved by the House of Lords in R
(on the application of Sivakumar) v Secretary of State for the Home Department [2003]
UKHL 14, [2003] 2 All ER 1097.
2
Kaja v Secretary of State for the Home Department [1995] Imm AR 1.
3
See UNHCR Handbook (12.13 above), paras 196-197.
4
Minister of Immigration and Ethnic Affair v Wu Shan Liang (1996) 185 CLR 259.
5
Rajalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 719, per
Sackville J, conveniently summarised and quoted in [2000] Imm AR 271 at 290-292.
[12.30]

It is, however, for the applicant to establish his or her claim, albeit to a lower than normal civil
standard.1 Thus it is for him or her to establish what his or her nationality is or that he or she is
stateless if it forms part of the claim.2 However, in the context of asylum as elsewhere, where it is
the Secretary of State who asserts something, such as that a document produced by an applicant is
a forgery, the burden is on him or her to prove it.3 Karanakaran4 was a case about the 'internal
relocation alternative', ie where it is accepted that the applicant faces persecution in part of the
country and the issue is whether it would be unduly harsh for him or her to relocate to a safe area.5
Again, different divisions of the Tribunal had differed on whether the applicant had to show on the
26
balance of probabilities that it would be unduly harsh,6 or only that it was a 'serious possibility'.7 The
court in Karanakaran held that it would be quite impracticable to maintain a regime in which there
was one approach to the evidential material relating to historic or existing facts for the purpose of the
first part of the definition of 'refugee' in the Convention, and a different approach to such material for
the purpose of considering issues of protection and internal relocation.8 The question was simply
'would it be unduly harsh', but in answering it, only evidence about which there was no doubt that it
was not correct should be excluded. The guidance in Karanakaran does not, however, disturb the
line of jurisprudence to the effect that where there is no real doubt that the whole story of the applicant
is unworthy of belief, issues of standard of proof do not arise.9 Even where an applicant has been
disbelieved, it is still necessary, as in every case, to determine whether there is a real risk of being
persecuted; 'the Court's duty is to vindicate a good asylum claim even though the applicant may
have lied or otherwise acted in bad faith'.10 However, if success in an asylum claim depends upon
the applicant establishing that he or she had done something in the past (illegally departed Eritrea)
and the applicant is disbelieved on her evidence then the claim fails; in the face of rejection of her
evidence, a reasonable likelihood that she had done the act could not be established on the basis
that it was implausible or unlikely that she had not done that act.11 Nevertheless, the decision maker
is bound to have regard to any evidence that might, independently of the claimant's unreliable
testimony, shed sufficient light upon his or her circumstances to make good the claim to protection. 12
1
The burden is not different or lower for someone with mental problems: Bolat v
Secretary of State for the Home Department (99/6206/C) (23 February 2000,
unreported), CA; Singh v Secretary of State for the Home Department [2000] Imm AR
340, CA.
2
Stanley Burnton LJ in the Court of Appeal in MA (Ethiopia) v Secretary of State for
the Home Department [2009] EWCA Civ 289 at [78]. Tikhonov [1998] INLR 737, IAT.
In Smith (Agartha) (00/TH/02130) the Tribunal suggested that a more flexible
approach to proof of nationality should be adopted in asylum cases (as they were not
nationality arbitrations - a criticism of the approach in Tikhonov) and that in most cases
the decision on nationality has to be made on the same basis as decisions on other
elements of the refugee definition. 'If there is some valid evidence that can be weighed
in the balance, even if meagre, then that may suffice to discharge the burden lying on
the appellant to prove nationality (or statelessness)' (paras 54-55). It would be
sufficient for an asylum seeker to establish 'a serious possibility' that he or she was of
the claimed nationality - Lucas v Secretary of State for the Home Department [2002]
EWCA Civ 1809. In Hamza [2002] UKIAT 05185 (starred) Collins J (the then
President) held that in the context of making findings in respect of nationality an
adjudicator 'must bear in mind that if he is going to make a positive finding against the
appellant, then he must do so not on the asylum standard, but on a higher standard
which would be the balance of probabilities' (para 12). If it was part of an applicant's
case that she would not be admitted to the country to which she was to be returned
then she could be expected to establish that fact by taking all reasonably practicable
steps to demonstrate that she would not be admitted, including applying to the
country's embassy for documentation to enable her return - MA (Ethiopia) v Secretary
of State for the Home Department [2009] EWCA Civ 289.
3
R v Immigration Appeal Tribunal, ex p Shen [2000] INLR 389, QBD; Makozo
(20003) 12 February 1999, IAT; Escobar (20553) 26 March 1999, IAT. But see R v
Immigration Appellare Authority, ex p Mohammed (Mukhtar) [2001] Imm AR 162,
QBD. In Ahmed (Tanveer) v Secretary of State for the Home Department [2002]
27
 UKIAT 00439, [2002] Imm AR 318, [2002] INLR 345, IAT, the IAT held that whether or
not a document is a forgery is rarely the real issue and that the real, or indeed only,
question is whether the document is one upon which reliance should properly be
placed. This approach was approved in Mungu v Secretary of State for the Home
Department [2003] EWCA Civ 360 at paras 18-19, [2003] All ER (D) 289 (Feb). See
also Zarandy v Secretary of State for the Home Department [2002] EWCA Civ 153,
[2002] All ER (D) 355 (Jan).
4
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449,
[2000] INLR 122, [2000] Imm AR 271.
5
Robinson v Secretary of State for the Home Department [1997] Imm AR 568; AE
and FE v Secretary of State for the Home Department [2003] EWCA Civ 1032, [2004]
QB 531, [2004] 2 WLR 123. See 12.45 below. Whether 'internal relocation/flight' is in
issue at all should depend initially on the applicant's claim, and, just as for other
aspects of the refugee claim, the responsibility for putting the factual basis and burden
of establishing the case lies on the applicant: see Aziz v Secretary of State for the
Home Department [2003] EWCA Civ 118; R v Secretary of State for the Home
Department, ex p Salim [2000] Imm AR 6, [1999] INLR 628, QBD.
6
A school of thought exemplified by Manoharan [1998] Imm AR 455.
7
Sachithananthan [1999] INLR 205.
8
Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271 at
293.
9
R v Secretary of State for the Home Department, ex p Kingori (aka Mypanguli)
[1994] Imm AR 539, CA; Bulut (Huseyin) v Secretary of State for the Home
Department [1999] Imm AR 210, CA.
10
GM (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ
833, Laws LJ.
11
GM (Eritrea).
12
HH (Somalia) v Secretary of State for the Home Department [2010] EWCA Civ
426.
Credibility
[12.31]

The debate about standard of proof is inextricably linked with issues of credibility. The issue of
credibility is one which needs to be addressed seriously, in light of the widespread perception that
adverse credibility findings are too easily reached, on too little material, both by the Secretary of
State for the Home Department and on appeal.1 For a fuller treatment of credibility in the context of
asylum appeals see 12.171 below.
1
See (in a non-asylum context but equally applicable) R v Immigration Appeal
Tribunal, ex p Hussain (CO 990/1995) (25 April 1996, unreported), QBD where Turner
J said that 'Credibility is not in itself a valid end to the function of an adjudicator ...
there is a risk ... that overemphasis on the issue of credibility may distort the findings
of an adjudicator'. See also Horvath v Secretary of State for the Home Department
[1999] INLR 7, [1999] Imm AR 121, IAT. It has been largely left to organisations such
as Asylum Aid to draw attention to the 'culture of disbelief' informing Home Office
asylum decisions: see eg Asylum Aid No reason at all (1995) and Asylum Aid Still no
reason at all (1999). 'As an advocate I have seen over the years good and bad judicial
practice in immigration and asylum hearings with respect to treatment of appellants
and credibility findings': the Speech by The Hon Mr Justice Blake, President of UTIAC

28
 to the Upper Tribunal Immigration Judiciary: 'The Arrival of the Upper Tribunal
Immigration and Asylum Chamber' (11 February 2010).

[12.32]

The principle of the benefit of the doubt operates once all the evidence is submitted. In order to
benefit from it, the applicant should have co-operated with the investigating authorities and should
not attempt to deceive them.1 Section 8 of the AI(TC)A 2004, and para 341 of the Immigration Rules,
HC 395, as substituted by HC 164 from 1 January 2005, list different kinds of behaviour which must
be taken into account as potentially2 damaging the claimant's credibility. See 12.171 below.
1
UNHCR Handbook, para 205;
2
The Court of Appeal has read the word 'potentially' into the statute as being
necessary in order to respect the constitutional principle of separation of powers which
requires the administrative or judicial decision maker to make its own assessment of
the facts: JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA
Civ 878 [2008] All ER (D) 348 (Jul).

Persecution for Convention reasons

Persecution

[12.48]

The Refugee Convention does not define persecution1 and, although the term, like the entire refugee
definition, has an autonomous meaning,2 there is no universally accepted definition.3 As we shall see
in relation to persecution by non-state agents, its meaning is linked to the availability of state
protection, at least so far as the UK is concerned.4 The Handbook indicates that, while a threat to life
or freedom for the relevant reason will always amount to persecution,5 persecution does not have to
involve threats to life or freedom; other serious violations of human rights will also qualify.6 In Jonah7
Nolan J ruled that the word must be given its ordinary dictionary definition 'to pursue with malignancy
or injurious action, especially to oppress for holding a heretical opinion or belief'. The case law
reveals a tension between (i) the approach which sees the issue solely as one of fact for the decision
maker and the immigration judge, subject to challenge in the Administrative Court solely on
Wednesbury principles,8 and (ii) attempts to provide a coherent framework for persecution based on
human rights law. Whether a particular act constitutes persecution is a mixed question of fact and
law.9 The human rights approach dictated by the preamble of the Refugee Convention has been
propounded by James Hathaway, who in his seminal book The Law of Refugee Status defined
persecution 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',10 a definition endorsed by
Lord Steyn in Ullah.11 In the influential case of Gashi,12 the Tribunal adopted UNHCR's analysis of
persecution,13 which drew heavily on Hathaway's definition,14 in relation to three categories of human
rights. Breaches of inviolable human rights such as the right to life and the prohibition against torture,
cruel, inhuman or degrading treatment would always be persecution. Violation of rights whose limited
derogation or curtailment by the state could be justified only in time of public emergency (freedom
from arbitrary arrest and detention and freedom of expression) would be persecution if unjustified.
The denial of rights reflecting goals for social, economic or cultural development, such as the right
29
to a livelihood, could amount to persecution if it was systematic and discriminatory. More recently,
Goodwin-Gill15 has stated that the 'core meaning' of persecution 'readily includes the threat of
deprivation of life or physical freedom' although 'less overt measures may suffice, such as the
imposition of serious economic disadvantage, denial of access to employment, to the professions,
or to education, or other restrictions on the freedoms traditionally guaranteed in a democratic
society'.16 In Appellant S17 in the Australian High Court McHugh and Kirby JJ made the point that a
threat of serious harm, with its 'menacing implications', can constitute persecution, especially when
it causes a person to alter his or her behaviour.18 Although mere discrimination is probably not
enough, evidence of discrimination will make it easier to demonstrate persecution. And 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 a religion, it may amount to persecution.19 Being
forced to live in dire social and economic conditions may amount to being persecuted.20 Arbitrary
deprivation of citizenship amounts to persecution without the need further to demonstrate that the
loss of citizenship has consequences of sufficient severity to amount to persecution21 although denial
to a stateless person of re-entry to the country of his or her former habitual residence would not by
itself be persecutory.22 The disadvantage of linking the definition of persecution to core human rights
is that if the asylum seeker cannot establish the existence of the core right, there will be no
persecution.23 The Qualification Directive sets out a definition of 'acts of persecution'24 in mandatory
terms in Art 9(1) by which they must be '(a) 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 Art 15(2) of the European Convention for the Protection of Human Rights' 25
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)'. It lists various
forms that acts of persecution may take (eg acts of physical or mental violence, legal, administrative,
police or judicial measures which are discriminatory) but it is important to note that the list is
illustrative, not exhaustive.26 The individual's particular characteristics and circumstances including
background, gender and age must be taken into account in order to determine whether the acts
feared would amount to persecution or serious harm.27 The Court of Appeal has held that the
threshold for persecution imposed by the Directive is higher than under the Refugee Convention as
interpreted in the authorities.28 Article 9(1)(a) contains an exhaustive, not an illustrative definition of
the 'basic human rights', which have to be violated for there to be persecution. They are the non-
derogable rights contained in Arts 2 (right to life), 3 (freedom from inhuman and degrading treatment
and torture), 4(1) (prohibition of slavery) and 7 (prohibition of retrospective penalisation) of the
ECHR. Moreover, the violation must be 'severe' in order to amount to persecution under the
Directive. However, if 'basic human rights' are limited to the non-derogable rights in that way it would
mean that the Directive contemplates the possibility of violations of those rights which are not severe
and therefore are not persecutory. It is difficult to imagine how there can be a violation of, for
example, the right not to be tortured or enslaved or unlawfully killed which would be anything other
than severe.
1
This section considers the meaning of 'persecution' at the hands of the state - the
classic or paradigm case of persecution that would have been foremost in the minds of
the drafters of the Refugee Convention in the aftermath of the Second World War and
the defeat of the Nazi regime. Following Horvath v Secretary of State for the Home
Department [2001] 1 AC 489, [2000] INLR 239, a modified meaning is required where
30
the allegation relates to persecution by non-state agents: see Persecution by non-state
actors at 12.40 ff above. See also 12.44 above on the differing relevance of the
'internal relocation alternative' depending on whether the persecutor is a state or non-
state actor.
2
See R v Secretary of State for the Home Department, ex p Adan, R v Secretary of
State for the Home Department, ex p Aitseguer [2001] 2 AC 477, [2001] INLR 44.
3
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003]
HCA 71 at para 66, Aust High Ct, Gummow and Hayne JJ (in a joint judgment forming
part of the majority) pointed out that 'It is not of great assistance and is apt to mislead
to approach the matter by saying, as did an English court, that "persecution" is a
"strong word".' The English case was R v Secretary of State for the Home Department,
ex p Binbasi [1989] Imm AR 595 at 599 per Kennedy J. See also 12.47, fn 13 below.
4
Horvath fn 1 above, and below at 12.53 ff.
5
This is clear from the 'non-refoulement' provision in Art 33, which prohibits the
return of a refugee to the frontiers of territories where 'life or freedom would be
threatened' for a Refugee Convention reason.
6
UNHCR Handbook 12.13 above, para 51; R v Secretary of State for the Home
Department, ex p Sivakumaran [1988] AC 958, per Lord Goff; Horvath above, at 215H,
per Lord Lloyd.
7
R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7.
8
See Kagema v Secretary of State for the Home Department [1997] Imm AR 137;
Faraj v Secretary of State for the Home Department [1999] INLR 451. In Horvath
above Lord Lloyd described the proposition that persecution should be given its
ordinary dictionary meaning as 'settled law' (at 251).
9
Stanley Burnton LJ in the Court of Appeal in MA (Ethiopia) v Secretary of State for
the Home Department [2009] EWCA Civ 289 (02 April 2009) at [62].
10
See 12.24 fn 3 above.
11
R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 3
WLR 23, at para 32. See also Lord Hope in Horvath v Secretary of State for the Home
Department [2000] 3 All ER 577, [2000] 3 WLR 379, HL; Lord Bingham in Sepet v
Secretary of State for the Home Department [2003] 1 WLR 856 (para 7). But see
Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2005]
All ER (D) 300 (Dec) where the Court of Appeal said that Professor Hathaway's
definition had to be 'treated with a degree of caution' because it did not give a clear
place to the requirement that the human rights violation had to be sufficiently serious
by reference either to its intensity or duration. See also RG (Colombia) v Secretary of
State for the Home Department [2006] EWCA Civ 57 applying what had been said
obiter in Amare.
12
Gashi v Secretary of State for the Home Department [1997] INLR 96. See also
Schiemann LJ in Blanusa v Secretary of State for the Home Department (IATRF
98/1495/4) (18 May 1998, unreported), CA.
13
UNHCR appeared as intervener in the case.
14
In Hathaway's formulation, the types of harm to be protected against include the
breach of any right within the first category, a discriminatory or non-emergency
abrogation of a right within the second category, or the failure to implement a right
within the third category which is either discriminatory or not grounded in the absolute
lack of resources: see The Law of Refugee Status (n 9 above) pp 101-116.
15
The Refugee in International Law, 12.5 fn 1 above, pp 66-68.
16
Whether such restrictions amount to persecution requires assessment of a
complex of factors, including (1) the nature of the freedom threatened, (2) the nature

31
and severity of the restriction, and (3) the likelihood of the restriction eventuating in the
individual case: Goodwin-Gill fn 14 above. See Chen Shi Hai v Minister for Immigration
[2000] INLR 455, Aust HC: adverse treatment which a 'black child' (one born in
contravention of the 'one child' policy) is likely to receive in China - denial of access to
food, education and health care - could amount to persecution. In Chan v Minister for
Immigration and Ethnic Affairs (1989) 169 CLR 379, Aust HC, McHugh J considered
that measures in disregard of human dignity may, in appropriate cases, constitute
persecution (a proposition approved in the joint judgment of six members of the High
Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559). See
the judgment of Lady Hale in R (on the application of Hoxha) v Secretary of State for
the Home Department, R (on the application of B) v Secretary of State for the Home
Department [2005] UKHL 19, [2005] 1 WLR 1063, (2005) 149 Sol Jo LB 358.
17
See fn 3 above: Gummow and Hayne JJ and McHugh and Kirby JJ, each giving
joint judgments, formed the majority.
18
Conversely however, in R (on the application of Hoxha) v Secretary of State for
the Home Department [2002] EWCA Civ 1403, [2003] 1 WLR 241 the Court of Appeal
rejected an argument that the sequelae of past persecution can amount to
persecution. However, the House of Lords did not rule this out; Lady Hale dealt in
particular with the continuing punishment of stigma and ostracism likely to result from
a public rape in the context of a deeply patriarchal society; see [2005] UKHL 19 at
paras 30 ff. She referred to this again in her judgment in N v Secretary of State for the
Home Department [2005] UKHL 31, para 58, [2005] 2 AC 296, [2005] 4 All ER 1017.
19
UNHCR Handbook, at 12.13 above, paras 54-55; Chen above, at 24; Ahmad v
Secretary of State for the Home Department [1990] Imm AR 61 at 66, per Farquarson
LJ. Tribunal determinations in which findings of persecution have been made in 'third
category' cases include Padhu (12318) (inability to work and deprivation of state
benefits) and Lucreteanu (12126) (threatening phone calls in Romania). In Kadham v
Canada IMM-652-97 (8 January 1998, unreported), FC Moulden J observed that
harassment could constitute persecution if it was sufficiently serious or long-lasting as
to threaten the claimant's physical or moral integrity. See Pill LJ's judgment in EB
(Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809 in
which, with reference to the Qualification Directive, Art 9(2)(b) he said that 'persecution
may take the form of administrative and other measures which are discriminatory or
are implemented in a discriminatory manner. Measures which deprive a national of the
opportunity to conduct a business, follow employment and retain documentation on
which the conduct of ordinary life depends' may amount to or contribute to a finding of
persecution.
20
HH (Somalia) CG [2008] UKAIT 00022 and AM and AM (Somalia) CG [2008]
UKAIT 00091.
21
So the majority of the Court of Appeal held in EB (Ethiopia) v Secretary of State
for the Home Department (Longmore and Jacob LLJ; Pill LJ dissenting), disapproving
MA [2004] UKIAT 00324 and applying the US Supreme Court judgment in Trop v
Dulles 356 US 86 (1957) which held that deprivation of citizenship was 'the loss of the
right to have rights' and also Lazarevic v Secretary of State for the Home Department
[1997] 1 WLR 1107.
22
MA (Palestinian Territories) v Secretary of State for the Home Department [2008]
EWCA Civ 304, [2008] All ER (D) 123 (Apr); MT (Palestinian Territories) v Secretary of
State for the Home Department [2008] EWCA Civ 1149, [2008] All ER (D) 215 (Oct)
and SH (Palestinian Territories) v Secretary of State for the Home Department [2008]
EWCA Civ 1150, [2008] All ER (D) 221 (Oct).

32
 23
Sepet v Secretary of State for the Home Department [2003] UKHL 15, [2003] 3 All
ER 304, [2003] 1 WLR 856, [2003] Imm AR 428 (no right of conscientious objection to
military service).
24
Qualification Directive, Art 9(1), implemented by the Refugee or Person in Need
of International Protection (Qualification) Regulations 2006, SI 2006/2525, reg 5(1).
25
ie ECHR, Arts 2, 3, 4 and 7.
26
Qualification Directive, Art 9(2) and the Refugee or Person in Need of
International Protection (Qualification) Regulations 2006, reg 5(2).
27
Qualification Directive, Art 4(3)(C), implemented by HC 395, para 339J(iii), as
inserted by HC 6918.
28
SH (Palestinian Territories) v Secretary of State for the Home Department [2008]
EWCA Civ 1150. This ruling, however, overlooked the approach taken to the text at
European level: see the contribution of the legal service to the Asylum Working Party
(Brussels, 15 November 2002; 14348/02): '9. The words "in particular", "inter alia" or
similar indicate that the listing of criteria or elements in a provision is not exhaustive
(see, for instance, Article 12 of the draft directive), thus allowing Member States to
take into account other aspects than those mentioned in the provision in question'.
[12.49]

In Ravichandran1 the Court of Appeal found Hathaway's human rights-based analysis of persecution
instructive. In Adan2 Hutchinson LJ saw no reason not to accept it. And in Horvath3 it received the
seal of approval from Lord Hope. Ravichandran held that the arbitrary detention of young Tamils for
periods of a few days following terrorist atrocities did not amount to persecution, although long-term
detention, or detention accompanied by ill-treatment, would have been a different matter.4 The court
held that the question whether an individual's fear is one of persecution for a Convention reason is
a single composite question to be determined in the round with all relevant circumstances being
taken into account.5 Breaches of rights other than absolute rights probably require an element of
persistence to constitute 'persecution'.6 But the question of whether persistence is a necessary
element of physical ill-treatment has been the subject of conflicting decisions. While the reference in
Hathaway to 'sustained or systemic denial of core human rights' is meant to refer to country practices
underlying individual claims, it was adopted in Ravichandran7 as an individual requirement by
Staughton LJ, who observed that 'persecution must at least be persistent and serious ill-treatment
without just cause by the state, or from which the state can provide protection but chooses not to'.
His remarks have become detached from their context (short-term but arbitrary and unlawful
detention of Tamils as terrorist suspects) and wrongly applied as a rigid legal criterion regardless of
the nature of the feared persecution.8 There may be cases in which a single incident could found a
case for asylum.9 It would be absurd to deny refugee status to someone with a well-founded fear of
life-threatening torture on the ground that the torture would not be repeated. Freedom from torture is
an absolute right which can never be balanced or qualified, and its violation must always constitute
persecution.10 This was accepted by the Court of Appeal in Demirkaya,11 although apparently not by
a different division of the court in Faraj.12 The Australian and New Zealand courts regard any
requirement of systematic conduct aimed at the claimant as a misdirection.13 In the UK, the higher
courts have held that the threshold of 'serious harm' is a high one, 14 although regard should be had
to the individual's characteristics and expectations in deciding what the refugee from a troubled part
of the world ought to be able to put up with.15 There is no requirement that a person be 'singled out'

33
for persecution to be a refugee.16 In Katrinak17 Schiemann LJ considered that it is possible to
persecute an individual by persecuting a close member of his or her family.
1
Ravichandran (Senathirajah) v Secretary of State for the Home Department [1996]
Imm AR 97 at 107. It had already been accepted by La Forest J in the leading
Canadian case of A-G of Canada v Ward [1993] 2 SCR 689 at 709.
2
Adan v Secretary of State for the Home Department [1997] 1 WLR 1107 at 1126E.
3
Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 498E-
G.
4
'If there remained a practice of torturing those detained, I very much doubt whether
a finding of persecution on Convention grounds would be precluded merely because
the torture was intended to discourage terrorism or to persuade detainees to inform on
their associates rather than inflicted for purposes of oppression': Simon Brown LJ at
109. See also R (on the application of Sivakumar) v Secretary of State for the Home
Department [2003] UKHL 14, [2003] 2 All ER 1097, see 12.67 fn 4, below.
5
Ravichandran above; see also Karanakaran v Secretary of State for the Home
Department [2000] INLR 122, CA.
6
See the reference to 'cumulative grounds' in UNHCR Handbook 12.13 above, para
53.
7
Ravichandran (Senathirajah) v Secretary of State for the Home Department [1996]
Imm AR 97 at 114.
8
Simon Brown LJ understood this distinction; see his reference in Ravichandran
above to a 'practice of torturing those detained' as opposed to an individual
requirement of repetitive ill-treatment.
9
Keene LJ in the Court of Appeal in BA (Pakistan) v Secretary of State for the
Home Department [2009] EWCA Civ 1072 (6 February 2009), citing Article 9 of
Directive 2004/83: '[21] That phrase "by their nature or repetition" is disjunctive. It
emphasises that there need not be repeated acts if an act is sufficiently serious.'
10
See UNHCR Handbook above, para 51. In Sepet v Secretary of State for the
Home Department [2001] EWCA Civ 681, [2001] INLR 33, 403, Laws LJ stated at [63]
that: 'There are some classes of case in which threatened conduct is of such a kind
that it is universally condemned, by national and international law, and always
constitutes persecution: torture, rape (though of course it is not necessarily
persecution for a Convention reason) ... Torture is absolutely persecutory;
imprisonment only conditionally so.'
11
Demirkaya v Secretary of State for the Home Department [1999] INLR 441. This
accords with the Qualification Directive, 12.3 fn 3 above, Art 9(1)(a) which states that
acts of persecution '... must be sufficiently serious, by their nature or their repetition'
(our emphasis).
12
Faraj v Secretary of State for the Home Department [1999] INLR 451, CA. But on
the analysis of Peter Gibson LJ, a claimant might be a refugee based on a single
incident 'if there are other incidents affecting a group of which that person is a
member' (at 456E). See also the obiter remark of Lord Clyde in Horvath v Secretary of
State for the Home Department [2000] INLR 239, HL quoting Hathaway ('sustained or
systemic') when stating that persecution appeared to carry with it 'some element of
persistence' (at 261F).
13
See Appellant S395/2002 v Minister for Immigration and Multicultural Affairs
[2003] HCA 71 at para 66; Minister for Immigration and Multicultural Affairs v Ibrahim
(Haji) (2000) 204 CLR 1, [2001] INLR 228; Chan v Minister for Immigration and Ethnic
Affairs (1989) 169 CLR 379, 430; Abdalla v Minister for Immigration and Multicultural

34
 Affairs (1998) 51 ALD 666 at 671-673; Anjum v Minister for Immigration and
Multicultural Affairs (1998) 52 ALD 225 at 230-232; Refugee Appeal No 71462/99
[2000] INLR 311, para 78 (NZRSAA). See also Doymus (00 TH 01748) (19 July 2000,
unreported), IAT: 'persistence is usual but not universal'; Foughali (00 TH 01514) (2
June 2000, unreported), IAT.
14
See Horvath v Secretary of State for the Home Department [2000] INLR 15, CA,
at 50, per Ward LJ: 'anything short of a really serious flouting of the citizen's human
rights and dignities will not do'.
15
UNHCR Handbook above, para 52.
16
R v Secretary of State for the Home Department, ex p Jeyakumaran [1994] Imm
AR 45.
17
Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832,
[2001] INLR 499 at para 23 per Schiemann LJ: 'It is possible to persecute a husband
or a member of a family by what you do to other members of his immediate family. The
essential task for the decision taker ... is to consider what is reasonably likely to
happen to the wife and whether that is reasonably likely to affect the husband in such
a way as to amount to persecution of him'.

Prosecution

[12.50]

Persecution must be distinguished from prosecution, and the Handbook points out that fugitives from
common law offences are unlikely to be refugees.1 But prosecution is not always inconsistent with
persecution and may be good evidence of it. The nature of the allegations against the applicant and
procedural safeguards to ensure a fair trial will have to be examined with care. The conclusion of
persecution may be drawn where a fair trial would be denied;2 where punishment is excessive; where
a particular political viewpoint or religion is expressly prohibited or the state's laws prohibit other
normal and reasonable human activity guaranteed by fundamental human rights; or where there is
other reason to suspect that the prosecution is being conducted for political reasons.3 In deciding
whether arrangements in the country of origin breach the Refugee Convention, the principles of
comity between nations have no place.4 Of course, a persecutory prosecution must also relate to a
Convention reason to found refugee status.5 In Iqbal6 the Tribunal summarised how asylum claims,
based on a fear of prosecution amounting to persecution, should be dealt with: (1) although it is not
the purpose of the asylum determination process to judge guilt or innocence, nonetheless a factual
evaluation as to whether there is a real risk that the claimant faces injustice rather than justice must
be made; (2) whether prosecution amounts to persecution is a question of fact, and all relevant
circumstances must be considered on a case by case basis; (3) the criminal justice process in the
county of origin must be looked at as a whole, with possible harms considered cumulatively and not
separately; (4) whether prosecution amounts to persecution must be analysed by reference to
international human rights norms; (5) prosecution does not amount to persecution unless likely
failures in the fair trial process go beyond shortcomings and pose a threat to the very existence of
the right to a fair trial; (6) when considering whether there is a general risk of persecution to any
person subjected to the criminal law process in a given country, it is important to establish the scale
of relevant human rights violations, particularly in relation to mistreatment in detention and the right
to a fair trial, and, using Article 3 ECHR as a benchmark, it is useful to ask whether the level of
35
human rights abuse rises to the level of a 'consistent pattern of gross, flagrant or mass violations of
human rights'.7 This approach of the Tribunal in Iqbal was approved by the Court of Appeal in Hariri8
and again in Batayav9 (with Sedley LJ sounding a note of caution to the effect that the need to show
a 'consistent pattern' of human rights violations was 'intended to elucidate the jurisprudential concept
of real risk, not to replace it.')10 As examples of 'acts of persecution' the Qualification Directive refers
to prosecution or punishment which is disproportionate or discriminatory,11 denial of judicial redress
resulting in a disproportionate or discriminatory punishment12 and prosecution or punishment for
refusal to perform military service in a conflict, where performing military service would include acts
constituting crimes against peace, war crimes, crimes against humanity, serious non-political crime
or acts contrary to the purposes and principles of the UN.13
1
UNHCR Handbook 12.13 above, paras 56-60; R v Secretary of State for the Home
Department, ex p Singh (Bilged) [1994] Imm AR 42. See also Goodwin-Gill 12.5 fn 1
above, at 4.3.2.
2
For example, where evidence obtained by torture will be used in a trial: Lord
Phillips in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10
(18 February 2009), [2009] 2 WLR 512 stated at [153] that the question was 'whether
there were reasonable grounds for believing that ... the ... trial that he would there face
would have defects of such significance as fundamentally to destroy the fairness of his
trial', rather than, at [154], requiring 'a high degree of assurance that evidence
obtained by torture would not be used in the proceedings'. Ascribing little or even 'no
significant weight' to such material will be impermissible, see Sedley LJ in the Court of
Appeal in Al-Sirri v Secretary of State for the Home Department & Anor [2009] EWCA
Civ 222 (18 March 2009) (also cited as YS Egypt), paras [40], [42], [44].
3
Hathaway 12.24 fn 3 above, para 5.6.1, p 169. The Qualification Directive, 12.3 fn
3 above, Art 9(2) states that acts of persecution may include discriminatory legal or
judicial measures (or measures implemented in a discriminatory way), discriminatory
or disproportionate prosecution or punishment or denial of judicial redress.
Prosecution for participation in a protest march is likely to be persecution: R (on the
application of Tientchu) v Immigration Appeal Tribunal (C/00/6288) (18 October 2000,
unreported), CA.
4
Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69, [2004]
1 WLR 1825 at paras 43-51 per Potter LJ; Zaitz v Secretary of State for the Home
Department [2000] INLR 346 at paras 39-41, per Buxton LJ; Islam v Secretary of State
for the Home Department [1999] INLR 144 at 166B-C, per Lord Hoffmann.
5
Trials of smugglers before a Tribunal condemned as unfair did not give rise to a
Refugee Convention claim in Ameyaw v Secretary of State for the Home Department
[1992] Imm AR 206; but contrast 4(3) IJRL 261, Case 111 where the risk of
prosecution for revealing state secrets was held to be Convention persecution.
6
Iqbal (Muzafar) [2002] UKIAT 02239. See also Fazilat [2002] UKIAT 00973 and
HD (Iran) [2004] UKIAT 00209.
7
See Drozd and Janousek v France and Spain (Application 12747/87) (1992) 14
EHRR 745, ECtHR and Devaseelan [2002] UKIAT 00702 (starred).
8
Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807, (2003)
147 Sol Jo LB 659.
9
Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489,
[2003] All ER (D) 340 (May), CA.
10
Batayav at para 38: see also 12.27 fn 5 above.

36
 11
Qualification Directive, Art 9(2)(c), implemented by the Refugee or Person in
Need of International Protection (Qualification) Regulations 2006, SI 2006/2525, reg
5(2)(c).
12
Qualification Directive, Art 9(2)(d), implemented by the Refugee or Person in
Need of International Protection (Qualification) Regulations 2006, reg 5(2)(d).
13
Qualification Directive, Art 9(2)(e), implemented by the Refugee or Person in
Need of International Protection (Qualification) Regulations 2006, reg 5(2)(e). The list
of acts which performing military service would include comes from Article 12(2).
[12.51]

The distinction between prosecution and persecution is also relevant to a consideration of the
exclusion from protection of refugees who have committed serious non-political offences.1 UK
practice on extradition gave a generous interpretation to the political offence exemptions in the
Extradition Act 1870 and Fugitive Offenders Act 1967, and the Extradition Act 2003 still enables a
fugitive to demonstrate that 'the request for his extradition (though purporting to be made on account
of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account
of his race, religion, nationality, gender, sexual orientation or political opinions; or if extradited he
might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality, gender, sexual orientation or political opinions'.2 These considerations
are equally relevant to the determination of refugee status.3
1
See Re Castioni [1891] 1 QB 149; Re Meunier [1894] 2 QB 415; R v Governor of
Brixton Prison, ex p Kolczynski [1955] 1 QB 540; Schtraks v Government of Israel
[1964] AC 556, [1962] 3 All ER 529, HL; Re Gross [1968] 3 All ER 804, [1969] 1 WLR
12; Fernandez v Government of Singapore [1971] 2 All ER 691, [1971] 1 WLR 987;
Cheng v Governor of Pentonville Prison [1973] AC 931, [1973] 2 All ER 204, HL; R v
Governor of Winson Green Prison, ex p Littlejohn [1975] 3 All ER 208, [1975] 1 WLR
893. But see T v Immigration Officer [1996] AC 742; see also 12.97 below.
2
Extradition Act 2003, ss 13 and 81.
3
Note that although the references to 'gender and sexual orientation' are not
included in the refugee definition in Art 1A(2) of the Refugee Convention, they will
often in practice be encompassed by 'membership of a particular social group': see
12.80 ff below.
[12.52]

Prosecution for an offence which is political in itself (such as sedition) or for contravention of laws
which themselves infringe human rights1, will give rise to an inference of persecution more easily
than common law offences which are committed for a relevant political purpose,2 unless in the latter
case the accused is likely to be prejudiced in the trial or during lawful punishment3 for a Convention
reason.4 Even where there is such a risk, the decision of the House of Lords in T v Immigration
Officer5 means that Convention protection can be lost if the crime is an atrocious one or the violence
inflicted is considered too remote from an effective political objective to be said to be political,
although the offender could be exempted from extradition because of the prohibition on extradition
for a political offence. In these circumstances, the broader protection against torture and inhuman
and degrading treatment offered by the ECHR and other international instruments will be very
relevant.6 A number of cases raise the question whether a prosecution under a law of general
application amounts to persecution for a Convention reason. The question is posed in an acute way
37
in cases of conscientious objection to military service. Why is a prosecution persecution? Is the
person being prosecuted for merely breaking the law, or being persecuted for a Convention reason?
The House of Lords held in Sepet v Secretary of State for the Home Department7 that unless and
until the right to conscientious objection to military service becomes a recognised human right,
prosecution for refusing to bear arms does not amount to persecution. In Canada, the courts have
adopted a test of looking at the intent of the law of general application to see whether it is 'neutral' or
'persecutory'.8 For discussion of the problems raised by evasion of military service see 12.77 below.
1
Jain v Secretary of State for the Home Department [2000] Imm AR 76 at 84 per
Evans LJ: 'If a state imposes or threatens punishment for what is regarded for the
purposes of the Convention as legitimate sexual activity, then I wonder whether the
actual or threatened loss of liberty is not the relevant form of persecution... It seems to
me that under the Convention the individual enjoys the right not to be persecuted for
his private legitimate behaviour.'
2
O v Immigration Appeal Tribunal [1995] Imm AR 494, where the Court of Appeal
rejected a submission that prosecution for the offence of stockpiling arms to foment a
tribal insurrection was in itself persecution for a political reason. But the court's
reference to a latter-day Guy Fawkes confuses the issue, since a member of a
persecuted religious minority who tried to end the persecution by eliminating the
government would have a case for Convention status if he or she faced torture and
execution in a prosecution for high treason.
3
Saadi v Italy (2009) 49 EHRR 730 at para 135, [2008] Crim LR 898, ECtHR: 'In
order for a punishment or treatment associated with it to be "inhuman" or "degrading",
the suffering or humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of legitimate treatment
or punishment'.
4
Goodwin-Gill 12.5 fn 1 above, p 52; Qualification Directive (12.3 fn 3 above) Art
11(2).
5
[1996] AC 742, [1996] 2 WLR 766, sub nom T v Secretary of State for the Home
Department [1996] Imm AR 443.
6
Chahal v United Kingdom (1996) 23 EHRR 413; see Chapter 8 above.
7
Sepet v Secretary of State for the Home Department [2003] UKHL 15, [2003] 3 All
ER 304, [2003] 1 WLR 856, [2003] Imm AR 428, affirming Sepet v Secretary of State
for the Home Department (UNHCR intervening) [2001] EWCA Civ 681, [2001] INLR
376.
8
Zolfagharkani v Canada [1993] 3 FC 540 at 552, per MacGuigan JA; Ciric v
Canada [1994] 2 CF 65.

Membership of a particular social group

[12.80]

This last category has been the most litigated of all the Refugee Convention reasons and the one
where the necessity to see the Convention as a living instrument, constant in motive but mutable in
form,1 is most apparent. The cases have raised controversial issues as to the limits of Convention
38
protection. However, those limits can be stated with a far greater degree of certainty following Shah
and Islam2 in which the House of Lords held that women in Pakistan constituted a particular social
group. Lord Steyn approved the following passage from the decision of the US Board of Immigration
Appeals in Acosta:3
''We find the well-established doctrine of ejusdem generis ... to be most helpful in construing the phrase ... Each of [the
other grounds] describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the
power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to
be changed ...

Applying the doctrine of ejusdem generis, we interpret the phrase ... to mean persecution that is directed toward an
individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared
characteristic might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared
experience such as former military leadership or land ownership ... By construing [the phrase] in this manner we preserve
the concept that refugee status is restricted to individuals who are either unable by their own actions, or as a matter of
conscience should not be required, to avoid persecution.'4'

Whether a number of people sharing particular characteristics constitute a 'particular social group'
depends on the factual situation in the particular country. Westernised women may be seen as a
distinct social group in some Middle Eastern countries but not in Israel, just as landowners were such
a group in pre-revolutionary Russia but would not be in England today.5 The following underlying
principles emerge from the judgments:

(i) interpretation of the phrase 'particular social group' must be seen in the context of
the fundamental purpose of the Refugee Convention of counteracting discrimination;6
(ii) the social group must exist independently of, and not be defined by, the
persecution, otherwise anyone persecuted for whatever reason would qualify;7
(iii) however, this does not mean that discrimination against members is irrelevant as
a means of identifying the group.8 On the contrary, women in Pakistan were held to be
a particular social group precisely because as a group distinguished by gender, they
were discriminated against and unprotected by the state;9
(iv) although cohesiveness may prove the existence of a particular social group, it is
not a requirement for the existence of the group.10

In an attempt to unify the divergent approaches (referred to as the 'protected characteristics'

approach and the 'social perception' approach) to the meaning of the phrase at the international
level, the UNHCR gives the following definition:11
''A particular social group is a group of persons who share a common characteristic other than their risk of being
persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate,
unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights.

This definition includes characteristics which are historical and therefore cannot be changed, and those which, though it
is possible to change them, ought not to be required to be changed because they are so closely linked to the identity of
the person or are an expression of fundamental human rights. It follows that sex can properly be within the ambit of the
social group category, with women being a clear example of a social subset defined by innate and immutable
characteristics, and who are frequently treated differently to men.

If a claimant alleges a social group that is based on a characteristic determined to be neither unalterable nor fundamental,
further analysis should be undertaken to determine whether the group is nonetheless perceived as a cognisable group
in that society. So, for example, if it were determined that owning a shop or participating in a certain occupation in a
particular society is neither unchangeable nor a fundamental aspect of human identity, a shopkeeper or members of a

39
 particular profession might nonetheless constitute a particular social group if in the society they are recognised as a
group which sets them apart.''

This definition was approved by the House of Lords in Fornah v Secretary of State for the Home
Department.12 There, Lord Bingham noted that the Qualification Directive apparently provides that
the 'protected characteristics' requirement and the 'social perception' requirement were cumulative,
rather than alternative tests, both having to be satisfied in order to establish membership of a
particular social group13 and thereby the Qualification Directive 'propounds a test more stringent than
is warranted by international authority'. Lord Hope held that it was not necessary for a particular
social group to be recognised as such by the society of which it was a part so long as membership
of the group could be identified objectively as the reason for the persecution. 14 Lord Brown
commented that any Regulations made under the Directive would have to be interpreted consistently
with the UNHCR's definition of particular social group in which 'protected characteristics' and 'social
perception' were alternative and not cumulative requirements.15 Against the weight of this authority,
the tribunal has interpreted the Regulation implementing the Qualification Directive16 as imposing
those requirements cumulatively rather than as alternatives.17 The Directive expressly acknowledges
that sexual orientation may be the common characteristic upon which a particular social group is
based but excluding acts considered to be criminal in the national law of the Member States from
the meaning of sexual orientation.18 Surprisingly, and plainly at odds with the UK's interpretation of
the Refugee Convention, the Directive says that gender may be relevant but is not by itself capable
of constituting a particular social group;19 the implementing Regulations do not give effect to this part
of the Directive.20
1
R v Immigration Appeal Tribunal, ex p Shah [1997] Imm AR 145 at 152, per Sedley
J. His formulation was approved by the House of Lords.
2
R v Immigration Appeal Tribunal, ex p Shah; Islam v Secretary of State for the
Home Department [1999] 2 AC 629, [1999] Imm AR 283, [1999] INLR 144.
3
(1985) 19 I & N 211.
4
See also LA Forest J's (similar) formulation in A-G of Canada v Ward (1993) 103
DLR (4th) 1, [1993] 2 SCR 689, [1997] INLR 42.
5
Shah and Islam above, per Lord Millett. See also UN High Commissioner for
Refugees Amicus Curiae Brief in Valdiviezo-Galdamez v Holder, Attorney General (No
08-4564; 14 April 2009): '"Social perception" does not require that the common
attribute be visible to the naked eye in a literal sense of the term nor that it be one that
is easily recognizable to the general public. Nor is "social perception" meant to suggest
a sense of community or group identification as might exist for members of an
organization or association; members of a social group may not be visibly
recognizable even to each other. Rather, the determination rests on whether a group
is "cognizable" or "set apart from society at large" in some way'.
6
[1999] INLR 144 at 150A-F, 161E-162D, 167B-C. In A v Minister for Immigration
and Ethnic Affairs [1998] INLR 1 at 15, Dawson J said that where a persecutory law or
practice applies to all members of society, it cannot create a particular social group
consisting of all who bring themselves within its terms (referring to China's one-child
policy). Where the feared persecution emanates from non-state actors, it may be their
discrimination or that of the state in failing to protect which constitutes the particular
social group. But see Skenderaj v Secretary of State for the Home Department [2002]
EWCA Civ 567, [2002] 4 All ER 555, [2002] Imm AR 519.

40
 7
[1999] INLR 144 at 151A-151C, 156D-G, 167C. See also Secretary of State for the
Home Department v Savchenkov [1996] Imm AR 28. But this does not mean that the
actions of the persecutors cannot 'identify or even cause the creation of a particular
social group in society': see Lord Steyn at 156D-G, endorsing McHugh J in A v
Minister for Immigration and Ethnic Affairs [1998] INLR 1. Forgetting this may give rise
to error of law: see Liu v Secretary of State for the Home Department [2005] EWCA
Civ 249, (2005] All ER (D) 304 (Mar).
8
[1999] INLR 144 at 167E-F.
9
In the words of Lord Hoffmann, 'discrimination was the critical element in the
persecution' ([1999] INLR 144 at 164H-165A). See also R (on the application of
Hoxha) v Secretary of State for the Home Department, R (on the application of B) v
Secretary of State for the Home Department [2005] UKHL 19, [2005] 1 WLR 1063,
(2005) 149 Sol Jo LB 358 per Baroness Hale at paras 30ff.
10
Staughton LJ had held that cohesiveness (or interdependence or co-operation)
was an essential prerequisite of a 'particular social group' in the Court of Appeal
([1998] INLR 97). Lord Steyn at 151D-154H and Lord Hoffmann at 162E-H rejected
this ([1999] INLR 144), approving the decision of La Forest J in Ward (social group
could include 'such bases as gender, linguistic background and sexual orientation' -
none of which implied interdependence or co-operation).
11
UNHCR Guidelines on International Protection: 'Membership of a particular social
group' (7 May 2002) (HCR/GIP/02/02) at para 11. The UNHCR guidelines, at para 15,
also firmly reject any need for the group to be cohesive. See further Qualification
Directive (30.9.04 OJ L304/12, in force 20 October 2004), Art 10(1)(d).
12
Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1
AC 412, [2007] 1 All ER 671.
13
Qualification Directive, Art 10(1)(d) and the Refugee or Person in Need of
International Protection (Qualification) Regulations 2006, SI 2006/2525, reg 6(1)(e).
14
Lord Hope, para. 46, following McHugh J in Applicant S v Minister for Immigration
and Multicultural Affairs (2004) 217 CLR 387.
15
Lord Brown, para 118.
16
The Refugee or Person in Need of International Protection (Qualification)
Regulations 2006, SI 2006/2525, reg 6(1)(d).
17
SB (Moldova) CG [2008] UKAIT 00002.
18
Qualification Directive, Art 10(1)(d), the Refugee or Person in Need of
International Protection (Qualification) Regulations 2006, reg 6(1)(e).
19
Qualification Directive, Art 10(1)(d).
20
See the Refugee or Person in Need of International Protection (Qualification)
Regulations 2006, reg 6(1)(e) which reproduces that part of the Directive relating to
sexual orientation but not the immediately following part about gender.
[12.81]
Prior to Shah and Islam gender1 had not been accepted in practice as the basis of a particular social
group,2 although it had been cited as one of the immutable characteristics which could found such a
group in Acosta and Ward. Particular sub-groups defined partly by gender and partly by another
characteristic (such as transgressing social mores) had been recognised.3 Women who faced
compulsory sterilisation or abortion because of China's one-child policy had been held to be refugees
on the grounds of social group4 or political opinion.5 A divorced Somali woman who had no effective
state protection from abuse by her husband and whose daughter might face mutilation was
recognised as a refugee.6 Western-educated Afghani,7 Algerian8 and Iranian9 women had been held
to have a well-founded fear of persecution arising from Islamic opposition to their identities and way
41
of life.10 A number of Canadian decisions had recognised as refugees women fleeing domestic
violence,11 forced marriage12 or sexual exploitation13 from which their state would or could not protect
them. Rape and severe sexual harassment had been recognised in some cases as constituting
Convention persecution,14 and the Home Office had recognised that rape, forcible abortion, forcible
sterilisation, acts involving genital mutilation or allied practices 'probably always' constitute torture.15
But gender-based social groups had been rejected in a number of cases.16
1
See for discussion of gender persecution UNHCR Guidelines on International
Protection: Gender-Related Persecution (7 May 2002) (HCR/GIP/02/01); Rodger
Haines 'Gender-related persecution', in Feller, Turk and Nicholson Refugee Protection
in International Law, UNHCR's Global Consultations on International Protection
(2003); Heaven Crawley, Refugees and Gender: Law and Process (2001); Berkowitz
and Jarvis Immigration Appellate Authority Asylum Gender Guidelines (Nov 2000).
See also the API on 'Gender issues in the asylum claim'.
2
UNHCR's Executive Committee had issued a recommendation, No 39 of 1985,
indicating that states could recognise women at risk for transgressing social mores as
refugees; see also UNHCR Guidelines on the Protection of Refugee Women (1991)
paras 54-57; Canadian Immigration and Refugee Board Guidelines above; US INS
Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May
1995); Australian Dept of Imm and Multicultural Affairs, Refugee and Humanitarian
Visa applicants Guidelines on Gender Issues for Decision Makers (July 1996).
3
See UNHCR ExCom conclusion 39 (1985) above.
4
Cheung v Minister of Immigration (1993) FCJ No 309 digested in (1994) 6(1) 118,
IJRL case 184. But contrast Yu (Chang Zheng) (15469) where a tribunal held that the
one-child policy could not provide the basis of a social group. And see also A v
Minister for Immigration and Ethnic Affairs [1997] 142 ALR 331, [1998] INLR 1, High
Court of Australia: a husband and wife who feared forced sterilisation under the 'one-
child policy' were not members of a social group. Lord Steyn in Shah and Islam ([1999]
INLR 144 at 153B-D) said that the uniform application of the policy meant that there
was 'no obvious element of discrimination'. On the other hand, children born in
defiance of the one child policy, who then face official as well as societal discrimination
for this reason, can constitute a particular social group for the purposes of the refugee
definition: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000)
170 ALR 553, [2000] INLR 455, Aust HC.
5
Guo v Carroll 62 US Law Week 2473.
6
(1994) 6(4) IJRL 662 Case 207.
7
Shaysta Ameer-Ali v Minister of Citizenship and Immigration Imm-3404-95, 23
September 1996 (Can).
8
(1994) 6(4) IJRL Case 209.
9
(1993) 5(4) IJRL 611, Case 170.
10
See eg Fatin v INS 12 F 3d 1233; Fisher v INS 37 F 3d 1371.
11
Mayers v Minister of Employment and Immigration (1992) 97 DLR (4th) 729;
Narvaez v Canada [1995] 2 CF 55; Tahusi, CRDD T9802494, 7 September 1999
(Georgia).
12
Vidhani v Canada (Minister of Citizenship and Immigration) TD Imm-3528-94, 8
June 1995.
13
Cen v Canada (Minister of Citizenship and Immigration) TD Imm-1023-95, 1995.
14
(1995) 5(4) IJRL 613 Case 173; (1994) 6(4) IJRL, Case 211; Ransell (Eustaquio)
CRDD T98-04880, 20 October 1999 (Romania). See Laws LJ in Sepet v Secretary of

42
 State for the Home Department [2001] EWCA Civ 681, [2001] INLR 376 at 403, at
para 63.
15
API Jul 98, Ch 3, para 2.1. European Union law now achieves the same result,
see Regulation 9(2)(f), Directive 2004/38; not in terms transposed by the Refugee or
Person in Need of International Protection (Qualification) Regulations 2006 SI
2006/2525, Art 5(2), not that this is material, see MA (Palestinian Arabs, Occupied
Territories, Risk) Palestinian Territories CG [2007] UKAIT 00017.
16
See eg Khan (Nafees Parveen) (15884) (unprotected Pakistani widow); Safraz
(Lubna) (16179) (Pakistani woman at risk from husband); Gomez v INS 947 F 2d 660
(1991) (women previously raped by guerrillas).
[12.82]

Following Shah and Islam the Tribunal and the Court of Appeal upheld a number of gender-based
claims, including: an Iranian woman who feared prosecution for adultery after leaving her violent
husband;1 a Pakistani woman whose illegitimate children would be seen as evidence of sexual
immorality;2 a single Pakistani woman without male protection at risk from the Mohajirs; 3 educated
Afghan women perceived as pro-western and anti-Islamic;4 a woman in Ethiopia fearing forced
marriage;5 a Ukrainian woman forced into prostitution6 and an Albanian woman trafficked for
prostitution.7 In the last two cases there was evidence that the Ukraine and Albania were important
source countries of girls and women trafficked for sexual exploitation. The Tribunal has held that in
Moldova, former victims of trafficking for sexual exploitation constitute a particular social group
because of their shared, past experience of having been trafficked and societal recognition of their
consequent distinctiveness.8 On the other hand, attempts to establish Jaffna Tamil women at risk of
arrest and rape in Colombo as a social group failed for lack of evidence of 'differential gender
victimisation',9 and a deserted Kurdish wife who feared sexual exploitation and violence by
neighbours and in-laws was held not to belong to a particular social group in Karakas,10 because of
lack of legal discrimination against women in Turkey. The Tribunal and the Court of Appeal were
until recently fairly reluctant to allow gender-based claims. While forced marriage11 and domestic
violence12 grounded claims in the US,13 women at risk of rape from soldiers in Uganda were held not
to constitute a particular social group in R (on the application of N) v Secretary of State for the Home
Department,14 and women and girls from various African countries who risk female genital mutilation
were held not to constitute a particular social group, on the basis that a group cannot be defined by
its persecution.15 The Tribunal has repeatedly emphasised the need to show a combination of legal
and social discrimination of a particular level of intensity.16 However, recent cases suggest a more
open approach. In P and M the Court of Appeal castigated the Tribunal for reversing first instance
decisions that Kenyan women constituted a particular social group, and accepted that domestic
violence or female genital mutilation, against which police would not provide protection despite
central government initiatives, were capable of giving rise to refugee status.17 In Fornah v Secretary
of State for the Home Department18 the House of Lords overturned the decision of the majority in the
Court of Appeal that a woman's fear of female genital mutilation, albeit accepted as capable of being
a fear of persecution, was not for reason of membership of the particular social group of intact or
uninitiated women because the group was thereby and impermissibly defined by reference to the
persecution.19 The House of Lords held that her fear was either for reason of being a woman in Sierra
Leone (a group sharing the common characteristic of a position of social inferiority compared with
men in Sierra Leone and being perceived by society as inferior20); a woman from Sierra Leone
43
belonging to one of the tribes practising FGM21 or intact or uninitiated woman from Sierra Leone;22
each of those characteristics would be identifiable quite apart from the persecution. The Tribunal in
NS held that a first-instance finding that a rape was motivated by attraction was not based on the
evidence and constituted an error of law.23 Lady Hale's discussion of gender persecution in B and
Hoxha took the analysis further, indicating that stigmatisation and marginalisation of women who
have been rape victims, and of their families, through deep-seated prejudices may ground a refugee
claim, if the state is unable to afford protection. Her judgment confirms that state complicity, or state-
anointed discrimination, is not a prerequisite to a gender-based refugee claim.24
1
Fatemeh (Miriam) (00TH 00921) (for reasons mirroring those in Shah and Islam,
given the similar position of women in Iran). See also Hanif [2002] UKIAT 07617
(Pakistani women). In Davoodipanah v Secretary of State for the Home Department
[2004] EWCA Civ 106, the Court of Appeal held that the Secretary of State could not
withdraw a concession made before the adjudicator that 'adulterous wives in Iran'
constitute a particular social group. In ZH (Iran) CG [2003] UKIAT 00207, the tribunal
held that institutional discrimination against women in Iran did not necessarily
constitute them a particular social group, but in TB (Iran) [2005] UKIAT 00065, the
tribunal held that that case was based on insufficient evidence.
2
Altaf (Robina) (00TH 01370). Cf Babalola (Olayinka Adebukola) (00TH00926)
where the social group contended for was divorced women in Nigeria. But since the
claimant could establish no well-founded fear of persecution, the tribunal did not
consider the evidence on the position of divorced women in Nigeria; see also SN and
HM (Divorced women: risk on return) Pakistan CG [2004] UKIAT 283 Reported.
3
Begum (Syeda) (21257).
4
Afghan cases 30, 27, 28 [2002] UKIAT 06500. The women in that case were
additionally at risk for their family political connections.
5
RG (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ
339, 150 Sol Jo LB 473, [2006] All ER (D) 20 (Apr).
6
Dzhygun (00TH00728). The particular social group was defined as 'women in the
Ukraine forced into prostitution against their will', whose defining characteristics
included gender and lack of state protection.
7
SK (Albania) v Secretary of State for the Home Department [2003] UKIAT 00023.
The particular social group accepted by the tribunal was 'women from the north-east of
Albania'. In VD (Albania) v Secretary of State for the Home Department [2004] UKIAT
00115, the tribunal rejected a wider group of 'Albanian women' but implicitly
recognised that such women who had been sold and had escaped from their trafficker
could be at risk of persecution (and could constitute a particular social group). But see
the tribunal's extraordinarily harsh decision in JO (Nigeria) [2004] UKIAT 00251, based
on internal relocation for a victim of trafficking still under 18 at the date of hearing.
8
SB (Moldova) CG [2008] UKAIT 00002. The tribunal, applying the Refugee or
Person in Need of International Protection (Qualification) Regulations, 2006/2525, reg
6(1)(d) held that both the shared immutable characteristic and the societal perception
were necessary to constitute a particular social group. Surprisingly, the tribunal also
held that for gender to be a particular social group it was necessary to show gender
based discrimination as a constituent of the group's identity apart from the feared
persecution. On the Council of Europe Convention against the Trafficking in Human
Beings, see Chapter 8 at 8.125 above.

44
9
See eg Thangarajah (Vathana) (16414) where the tribunal held that Tamil women
from Jaffna were not a social group because it was not established that they were
being raped or sexually assaulted as such, nor with impunity; Muralitharali (B20813).
10
[2002] UKIAT 06406.
11
A76-512-001, Imm Ct Chicago, 18 October 2000. See now TB (Iran) [2005]
UKIAT 00065 (starred) for a UK forced marriage case.
12
Aguirre-Cervantes v INS, 21 March 2001, US CA (9th Cir). See now P v Secretary
of State for the Home Department [2004] EWCA Civ 1640, [2004] All ER (D) 123
(Dec), discussed below.
13
See also the Canadian cases cited at 12.79 fn 11 and 12 above, and see the
comprehensive treatment of gender issues in H Crawley Refugees and gender: law
and process (2001).
14
R (on the application of N) v Secretary of State for the Home Department [2002]
EWCA Civ 1082, dismissed on the objectionable grounds that what was feared was
'dreadful lust' rather than Convention persecution. See also Castro (Rosa del Carmen)
[2002] UKIAT 00199 (women in Ecuador).
15
See RM (Sierra Leone) [2004] UKIAT 00108, where the tribunal rejected 'Mendi
women and girls who were intact' as a social group; see also M (Kenya) [2004] UKIAT
00022 (reversed by the Court of Appeal), disapproving Yake (00TH00493) and
Kasinga (1996) US Bd Imm Appeals Int Dec 3278. The Tribunal in M (Kenya) also
rejected the groups of 'Kenyan women', 'Kenyan women under 65' and 'Kikuyu
women'. In Hashim [2002] UKIAT 02691, the tribunal rejected the argument that young
girls in Sudan constituted a particular social group because of their inability to escape
FGM (they allowed the appeal on Art 3 ECHR grounds). The Tribunal's approach was
criticised as over-technical in P v Secretary of State for the Home Department [2004]
EWCA Civ 1640, [2004] All ER (D) 123 (Dec) and the appellant M granted status.
16
See JO (Nigeria) [2004] UKIAT 00251; HM (Somalia) (CG) [2005] UKIAT 40; RA
(Bangladesh) [2005] UKIAT 70.
17
P v Secretary of State for the Home Department [2004] EWCA Civ 1640, [2004]
All ER (D) 123 (Dec). The judgment, indicates the incorrectness of the tribunal's
analysis in M (Albania) [2004] UKIAT 00059 and NA (Tajikistan) [2004] UKIAT 00133,
to the effect that clear discrimination against women enshrined in the law of the
country concerned is an essential requirement of gender persecution. See also RG
(Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 339, 150
Sol Jo LB 473, [2006] All ER (D) 20 (Apr).
18
Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1
AC 412, [2007] 1 All ER 671.
19
Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680,
[2005] 1 WLR 3773, Auld and Chadwick LLJ, Arden LJ dissenting.
20
Fornah v Secretary of State for the Home Department, Lord Bingham, para 31.
21
Fornah v Secretary of State for the Home Department, Baroness Hale, para 111.
22
Fornah v Secretary of State for the Home Department, Lord Hope, para 58, Lord
Roger, para 80, Lord Brown, para 119.
23
NS (Social group - women - forced marriage) Afghanistan CG [2004] UKIAT
00328 'Reported', This analysis finally sets out the obvious truth underlying violence
against women, locating sexual violence in power relations.
24
R (on the application of Hoxha) v Secretary of State for the Home Department, R
(on the application of B) v Secretary of State for the Home Department [2005] UKHL
19, [2005] 1 WLR 1063, (2005) 149 Sol Jo LB 358, at paras 30ff. The judgment refers
approvingly to the UNHCR Guidelines on International Protection: Gender-Related

45
 Persecution (7 May 2002) and indicates that the source of the discrimination may be
deep-seated patriarchal attitudes against which the state cannot contend. Lady Hale
reinforced her observations about rape as a weapon of war in N v Secretary of State
for the Home Department [2005] UKHL 31 at para 58, [2005] 2 AC 296, [2005] 4 All
ER 1017.
[12.83]

The decision in Shah and Islam also made it clear that gay asylum seekers may constitute a
particular social group if, as a group defined by their sexuality (an immutable characteristic), they
suffer discrimination.1 There had been contradictory decisions of differently constituted Tribunals on
this question.2 In Jain3 it was common ground before the Court of Appeal that homosexuals in India
constitute a particular social group, since Indian law makes sodomy an offence, thus discriminating
against the group on grounds of sexuality. Since Shah and Islam, homosexuals in various countries
have been held to be members of a particular social group because of the combination of societal
and legal discrimination against them.4 However, being a member of a particular social group does
not necessarily mean there is a well-founded fear of persecution, and even in relation to countries
where homosexuality attracts severe penalties or is the subject of widespread discrimination, the
Tribunal has been very reluctant to find a well-founded fear of persecution for homosexuals, at least
for those who are discreet: that reticence should be corrected by the decision of the Supreme Court
in HJ Iran.5 In Appellant S6 the majority in the High Court of Australia warned against the dangers of
this approach, since it is often the very fear of being persecuted that forces homosexuals to act more
'discreetly than they would otherwise choose to behave within the limits of exercising their legitimate
human rights'.7 If the applicant will, in fact, conceal aspects of his sexual orientation if returned, then
the next question is to consider why he will do so: if this will simply be in response to social pressures
or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his
claim for asylum must be rejected; but if the reason why he will resort to concealment is that he
genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that
fear is well founded, and a person cannot and must not be expected to conceal aspects of his sexual
orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it.8
1
[1999] INLR 144 per Lord Steyn at 154D-F; Lord Hoffmann at 162H; Lord Millett at
173F-H. Note Lord Steyn's express endorsement of the decision of the New Zealand
Refugee Status Authority in Re GJ [1998] INLR 387. The UNHCR Guidelines on
International Protection: Gender-Related Persecution (7 May 2002) at paras 16-17 and
30 also make clear that severely discriminatory policies or practices directed against
homosexuals for reason of their sexuality can amount to persecution for reason of
membership of a particular social group.
2
See for example Vraciu (11559); Golchin (7623); Jacques (11580); Saddegh
(13124): see also R v Secretary of State for the Home Department, ex p Binbasi
[1989] Imm AR 595 where the court had assumed, without deciding, that homosexuals
could form a social group; the Tribunal in AJ (Risk to Homosexuals) Afghanistan CG
[2009] UKAIT 00001 (05 January 2009).
3
Jain v Secretary of State for the Home Department [2000] INLR 71. The court
however found that there was no real risk of persecution.
4
See Beteringhe (18120), in relation to Romania, where the claim succeeded, and
Dumitru (00TH00945) where the claim failed on the facts, the Tribunal holding that the
evidence fell short of establishing risk to gay asylum seekers of a 'widespread and
46
 systematic pattern of abuses of their human rights'. In Apostolov (18547) a Tribunal
accepted that a Bulgarian homosexual was a member of a social group, although
dismissing the appeal on the facts. Ukrainian homosexuals were held to constitute a
particular social group in Bespalko [2002] UKIAT 00135 (appeal allowed); Pakistani
homosexuals in Ali (Mohammed Asghar) [2002] UKIAT 02153 (appeal allowed);
Eritreans in F (Eritrea) [2003] UKIAT 00177, Ugandans in K (Uganda) [2004] UKIAT
00021 (appeals dismissed).
5
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July
2010). See eg Musavi [2002] UKIAT 04050, relating to Iran; MV (Ukraine) [2003]
UKIAT 00005; SJ (Jamaica) [2004] UKIAT 00202; R (on the application of Dawkins) v
Secretary of State for the Home Department [2003] EWHC 373 Admin (Jamaica); F
(Eritrea) and K (Uganda) fn 4 above.
6
Appellant S v Minister for Immigration and Multicultural Affairs [2003] HCA 71. See
also Refugee Appeal No 74665/03 (7 July 2004), where the NZ Refugee Status
Appeal Authority developed the argument based on core human rights of non-
discrimination, dignity and privacy, and see Z v Secretary of State for the Home
Department [2004] EWCA Civ 1578, where the argument was accepted, but its
application to the facts rejected.
7
See 12.35 above. The Tribunal in K (Uganda) [2004] UKIAT 00021 noted that the
appellant had not engaged in homosexuality in Uganda for fear of the consequences,
but held that this was evidence that he would not be persecuted as a homosexual in
the future, rather than consider the impact of the threat of serious harm on his exercise
of the fundamental right to be who he is.
8
Lord Hope in the Supreme Court in HJ (Iran) v Secretary of State for the Home
Department [2010] UKSC 31.
[12.84]

Although Shah and Islam resolved many issues of principle on the particular social group, difficulties
still occur in areas such as what characteristics are 'immutable', what is included in 'individual identity
or conscience' and the relationship between persecution and the existence of the group. Previously,
in Savchenkov,1 the Court of Appeal had held that those refusing to join a Russian mafia were not a
social group because they did not exist independently of the persecution feared.2 Attempts since
Shah and Islam to persuade Tribunals to reach a different conclusion and to identify groups by
reference to risks from criminal gangs or corrupt officials have generally failed on the same basis:
civic conscience is not, in most cases, enough to constitute a particular social group.3 Linked to this
is the important principle that it is far easier to establish membership of a particular social group on
the basis of what one is, rather than on the basis of what one has done. Thus in Morato v Minister
for Immigration and Ethnic Affairs4 a citizen of Bolivia had claimed asylum on the grounds that he
had been a police informer and as such a member of a group of police informers in fear of reprisals.
The Australian Federal Court rejected the argument on the grounds that the applicant's problems
resulted from his actions and not from his membership of any group.5 In Montoya6 the Tribunal
summarised the jurisprudence on particular social groups, in the context of a claim by a landowner
targeted by guerrillas in Colombia. In Ouanes7 an Algerian government-employed midwife whose
work involved giving advice on contraception (which put her at risk of persecution from
fundamentalists) was held not to be employed in an occupation having 'that impact upon individual
identities or conscience necessary to constitute employees a particular social group'. The court
accepted that certain employments could reflect identity and conscience, citing membership of a
47
religious order.8 We suggest that this is an overly restrictive approach; many professions engage
identity and conscience sufficiently to be capable of constituting a particular social group. Opportunist
draft-evaders were held not to constitute a particular social group in Lazarevic.9 Refugees10 have
been held not to constitute a social group, although it is hard to see why not, if they suffer
marginalisation and discrimination as a group defined by the shared experience of exile: returning
asylum seekers have also had their claims rejected.11 Children may constitute a particular social
group because their youth is immutable at the time their claim is assessed.12
1
[1996] Imm AR 28, CA.
2
But see Chun Lan Liu v Secretary of State for the Home Department [2005] EWCA
Civ 249, where the Court of Appeal reminded the Tribunal that actions of the
persecutors might serve to identify or even create a particular social group. See also S
v Minister for Immigration and Multicultural Affairs [2004] HCA 25, where 'able-bodied
young men' were accepted as a particular social group under theTaliban regime in
Afghanistan.
3
See eg Storozhenko v Secretary of State for the Home Department [2001] EWCA
Civ 895 (citizens of Ukraine conscientiously fulfilling their civic duty by seeking redress
against the illegal actions of agents of the state are not a social group in the absence
of discrimination or inability or unwillingness of the state to provide protection); R v
Immigration Appeal Tribunal, ex p Gedrimas [1999] Imm AR 486 (Lithuanian
businessmen at risk from Mafia not arguably a social group); Jegorovas (00TH00724)
(adjudicator's acceptance as social group 'Lithuanians who challenge the power of the
Mafia' reversed on appeal as group identified by persecution - there was no evidence
of an identifiable group); Stankeviciute (00TH01321) (attempts by embezzling ex-
mayor to have Lithuanian claimant killed was a private vendetta); Kayani (19646)
(informants in Pakistan about suspected crimes and drugs criminals not a social group
because such group defined only by persecution). But see eg Ermakova [2002] UKIAT
07728 (member of a family of a political activist pursued by the state in collusion with
the mafia), and Gvarjaladze [2002] UKIAT 07435 (members of a family opposing high-
level corruption) for examples of positive decisions, which appear to depend on the
involvement of high-level government figures in the corruption, thus making the
persecution of the principal 'political'. See 12.74 above.
4
[1992] 106 ALR 367.
5
Similarly, parents who defy China's one child policy have been held not to be
members of a particular social group (A v MIEA [1997] 142 ALR 331, [1998] INLR 1,
Aust HC) while their children, born of that defiance, have been held to be members of
such a group: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000)
170 ALR 553, [2000] INLR 455, Aust HC): see 12.81 fn 4 above. (For an overview of
the jurisprudence on refugee claims based on China's one child policy and
membership of a particular social group, see Chun Lan Liu v Secretary of State for the
Home Department [2005] EWCA Civ 249.) See also E (Iran) [2003] UKIAT 00166
(Iranian male adulterer not member of a particular social group); Britton [2002] 02514
(family of police informers in Jamaica). Cf Osorio-Bonilla (11451) (pre-Shah and
Islam): those with criminal records could establish a social group if, because of their
record, they were viewed by society in a particular way.
6
Montoya v Secretary of State for the Home Department (00TH00161), upheld and
approved by the Court of Appeal at [2002] EWCA Civ 620, [2002] All ER (D) 130
(May). See also Diallo (00TH01231) (wealthy educated Sierra Leonean mine owner
not member of social group where there were no immutable characteristics and risk
was from generalised effects of civil war).
48
 7
Ouanes v Secretary of State for the Home Department [1998] Imm AR 76.
8
Ouanes above, at 82.
9
Lazarevic v Secretary of State for the Home Department [1997] Imm AR 251, CA.
10
R v Secretary of State for the Home Department, ex p Natando Immigration Law
Digest, Vol 1 no 4.
11
The Tribunal in AM & AM (armed conflict: risk categories) Rev 1 Somalia CG
[2008] UKAIT 00091 at [205].
12
LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005. UN High
Commissioner for Refugees' Amicus Curiae Brief in Valdiviezo-Galdamez v Holder
(Reflex; No 08-4564; 14 April 2009): '"Youth" can be considered an immutable
characteristic as one cannot change one's age, except by waiting and letting time
pass; thus, the immutable character of "age" or "youth" is gradual, yet, in effect,
unchangeable at any given point in time'.

DISCRETIONARY LEAVE
[12.89]

If the circumstances in the country of nationality or, in the case of stateless persons, former
habitual residence, have so changed that refugees can no longer refuse to avail themselves of the
protection of that country, Refugee Convention refugee status will cease.1 This rule is subject to an
exception in the case of what the Convention terms 'statutory refugees' (essentially, pre-1939
refugees still recognised as such under Article 1A(1) of the Convention), who do not lose refugee
status 'where there are compelling reasons arising out of previous persecution for refusing to avail
themselves' of such protection.2 The UNHCR Handbook suggests that similar considerations could
also apply to post-1951 refugees on the general humanitarian principle that those who have
suffered particularly atrocious forms of persecution should never be expected to repatriate.3
However in Hoxha4 the House of Lords, after reviewing the language of the proviso, the travaux
and current State practice, held that the proviso to Article 1C(5) only applies to statutory refugees
falling under the definition in Article 1A(1) of the Convention (and is therefore of no practical
significance at all anymore). A cessation of circumstances refers to fundamental changes rather
than merely transitory ones5 and the UNHCR is of the view that refugee status should not be lost
on the basis of a fundamental change of circumstances in part of the country of origin only, to
which internal relocation would be possible such as would be enough to defeat an initial
application.6 A refugee's status should not be subject to frequent review since this would jeopardise
a sense of security which the Convention was designed to provide.7 Proof that the circumstances
of persecution have ceased to exist would fall upon the receiving state.8 In Hoxha the Court of
Appeal held that the cessation clause in Article 1C(5) can only be relevant where a person has
been formally recognised as a refugee, and this holding was upheld by the Lords.9 However when
an authority takes a long time to determine the claim of someone who would have been accepted
as a refugee if the claim had been dealt with promptly, and circumstances change in the meantime,
the Court of Appeal has also held that the situation is analogous to Refugee Convention, Article
1C(5) cessation such that the state bears an evidential burden to show that the change is
sufficiently fundamental to deny status.10 UNHCR and states parties to the Convention may issue
formal declarations of general cessation of refugee status in respect of refugees from particular
countries.11 However, cessation of refugee status, whether on an individual or group basis, will not
automatically mean repatriation, since many refugees will have acquired settlement rights in their
49
country of refuge.12 The legislation giving effect to the cessation provisions as grounds for
revocation of indefinite leave to remain (see 12.86 above) does not include change of
circumstances in the country of origin as a statutory ground for revocation, and Home Office policy
is generally not to revoke refugee status on this ground.13
1
Refugee Convention, Art 1C(5) and, for stateless persons, Art 1C(6). See
generally the UNHCR Guidelines on International Protection No 3: Cessation of
Refugee Status under Article 1C(5) and (6) (10 February 2003) (HCR/GIP/03/03). For
a criticism of these UNHCR guidelines, on the grounds that they 'appear to go
considerably beyond the Convention' in pursuit of wider humanitarian concerns, see
SB (Haiti - cessation and exclusion) [2005] UKIAT 00036.
2
Refugee Convention, Art 1C(5) and (6), second paras.
3
UNHCR Handbook 12.13 above, para 136 and see UNHCR Guidelines (fn 1
above) at paras 20 and 21. The Refugee Status Appeals Authority in New Zealand in
Re RS (135/92, 18 June 1993, unreported) held that although the strict wording of the
proviso in Art 1C(5) refers only to those refugees falling within Art 1A(1), 'the validity of
the underlying humanitarian principles do not depend upon their inclusion in any
particular one Article.' However there was a certain degree of retraction from that
earlier position by the same authority in Refugee Appeal No 71684/94 [2000] INLR
165 and see now Hoxha and B, fn 4 below.
4
R (on the application of Hoxha) v Secretary of State for the Home Department, R
(on the application of B) v Secretary of State for the Home Department [2005] UKHL
19, [2005] 1 WLR 1063, (2005) 149 Sol Jo LB 358.
5
UNHCR Handbook above, para 135 and UNHCR Guidelines (fn 1 above) paras
10-16. See eg SB (Haiti) (fn 1 above) and Decision V97/07790, 31 March 1998,
Refugee Review Tribunal (Aus) (Austlii website: see Appendix 3). According to Art
11(2) of the Qualification Directive, 12.3 fn 3 above, a change of circumstances should
be 'of a significant and non-temporary nature'. The Immigration Rules HC 395, para
339A impose a similar requirement. Stanley Burnton LJ in the Court of Appeal in EN
(Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] 3
WLR 182, (2009) Times, 24 July: '... what may fairly be considered to be a durable
change in conditions in a country of nationality that results in a refugee having no
genuine fear of persecution on his return may fairly be regarded as fundamental'. The
ECJ in Abdulla v Bundesrepublik Deutschland C-175/08 [2010] All ER (EC) 799, ECJ
at [72] held: 'The change of circumstances will be of a 'significant and non-temporary'
nature, within the terms of Article 11(2) of the Directive, when the factors which formed
the basis of the refugee's fear of persecution may be regarded as having been
permanently eradicated'. It will be necessary to determine whether there is 'effective'
protection in place: Abdulla at [76]; and the whole enquiry must 'be carried out with
vigilance and care, since what are at issue are issues relating to the integrity of the
person and to individual liberties, issues which relate to the fundamental values of the
Union' [90]. Immigration Rule 339K may be relevant (transposing, as it does, Article
4(4) of Directive 2004/83: Abdulla at [100].
6
UNHCR Guidelines (fn 1 above) para 17 (and see 12.42 above).
7
UNHCR Handbook above, para 135 and UNHCR Guidelines (fn 1 above) para 18.
8
UNHCR Guidelines (fn 1 above) para 25(ii); Hathaway 12.24 fn 3 above, p 199. 'In
the absence of compelling evidence to the contrary it should not be inferred that the
grounds for fear had dissipated ... In the absence of facts indicating a material change
in the state of affairs in the country of nationality, an applicant should not be compelled
to provide justification for his continuing to possess a fear which he has established
50
was well-founded at the time when he left the country of his nationality': Chan v MIEA
(1989) 169 CLR 379 (Aus). In SB (Haiti) (fn 1 above) the Secretary of State conceded
that he bore the burden of showing that Art 1C(5) applies.
9
See fn 4 above. In N (Kenya) [2004] UKIAT 00009 the IAT had held that Art 1C(5)
can be applied to a person who had previously been recognised as a refugee by an
earlier Tribunal but never granted a status letter or ILR.
10
Arif v Secretary of State for the Home Department [1999] INLR 327, CA. But see
Salim (Nabil) v Secretary of State for the Home Department [2000] Imm AR 503, CA
and S v Secretary of State for the Home Department [2002] EWCA Civ 539, [2002]
INLR 416 at paras 13-15: this only applies where it is accepted (by the Secretary of
State) that the applicant would have qualified as a refugee; see also Hoxha and B
(above) and Dyli [2000] Imm AR 652, IAT. See the discussion in Goodwin-Gill 12.5 fn
1 above, pp 86-87 and Yusuf v Canada [1995] FCJ No 35: the issue of changed
circumstances is in danger of being elevated in a question of law, when at bottom it is
simply one of fact; the fundamental issue is the possibility or risk of persecution.
11
UNHCR has such competence under Art 6A of the Statute of the Office of the
High Commissioner for Refugees (see 12.12 and 12.13 above) in conjunction with Art
1C of the Refugee Convention: see UNHCR Guidelines (fn 1 above) at para 3. See
below as to 'Ministerial Statements' on relevant changes of circumstances.
12
See two German cases reported in (1995) 7(1) IJRL, Cases 218 and 224. In the
latter case the change of regime in Ethiopia removed the claim to Convention
persecution but expulsion was not permitted because there was still fighting that made
a compulsory return contrary to Art 3 ECHR. However, the applicant Thangarasa in
the House of Lords 'third country case' of R (on the application of Yogathas and
Thangarasa) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1
AC 920, [2002] INLR 620 (see 12.146 below) had had refugee status in Germany but
appears to have lost it on Art 1C(5) cessation grounds.
13
See Lord Bassam of Brighton, Hansard HL 17.7.02, col 1331. However, the
Qualification Directive (12.3 fn 3 above), Art 14(1) states that in respect of applications
for international protection filed after the entry into force of the Directive, Member
States shall revoke, end or refuse to renew the refugee status of a person who has
ceased to be a refugee as per the cessation provisions in art. 11 (see 12.86 fn 12
above). This is mandatory in tone and implies that the UK will have to revoke the
refugee status (albeit not necessarily the indefinite leave, since the Directive is
designed to impose minimum standards of protection) of persons who have ceased to
be refugees in accordance with cessation clauses. The change of policy to grant
refugees temporary leave in the first instance, with a review after five years: was
announced in Controlling our borders: Making migration work for Britain: Five year
strategy for asylum and immigration, Cm 6472, Feb 200

51
 Page 52

Exclusion

[12.90]

The Refugee Convention will not apply to refugees in circumstances where the protection of
another state is unnecessary or the person is not deserving of protection. Article 1D of the
Convention provides that refugees who are in receipt of assistance from a branch of the UN other
than the UNHCR are outside the terms of the Convention until such assistance ceases.1 In El-Ali2
the Court of Appeal held that Article 1D only applies to those persons who, at the date of the
signing of the Refugee Convention on 28 July 1951, were receiving protection from organs or
agencies of the UN other than the High Commissioner for Refugees, so that in practice, only
Palestinians who were alive and who were registered as receiving assistance from the United
Nations Reliefs and Works Agency (UNRWA) at that date fall under the Article. All other persons,
including Palestinians born after that date, even though receiving assistance from UNRWA, need
to establish their status as refugees in the normal way under Article 1A(2) of the Convention. 3
However, Article 1D has been held not to be exhaustive of all the circumstances in which the role
of international agencies is relevant for the purposes of the Convention definition.4 The
Qualification Directive substantially reproduces5 Article 1D of the Refugee Convention.6

1
Refugee Convention, Art 1D; UNHCR Handbook 12.13 above, paras 142-143.
2
El-Ali v Secretary of State for the Home Department [2002] EWCA Civ 1103,
[2003] 1 WLR 95; leave to appeal to the House of Lords refused: [2003] 1 WLR 1811.
3
Laws LJ (with whom Lord Phillips MR and May LJ agreed) also held (obiter) that,
for the purposes of the second sentence of Art 1D, the phrase 'such protection or
assistance has ceased for any reason' refers to UNWRA ceasing to exist or ceasing to
provide assistance and not to an individual Palestinian (who must now be over 53
years of age) ceasing for whatever reason to be assisted by UNRWA - although the
potential difficulty this would present where such a person was prevented from re-
availing him- or herself of UNRWA's assistance was acknowledged. The court also
acknowledged that the phrase 'these persons shall ipso facto be entitled to the
benefits of this Convention' means that if UNRWA ceases to provide assistance to
those Palestinians who were registered with it on 28 July 1951 without their having
been able to return to their original pre-1948 homes, they are automatically to be
treated as refugees within the meaning of the 1951 Refugee Convention. Prior to El-
Ali, a Palestinian registered with UNRWA in the Gaza strip had been held to qualify
ipso facto as a refugee when he could not return there because of Israeli military
occupation: (1992) 4(3) IJRL 387, case 120.
4
See eg R (on the application of Vallaj) v Secretary of State for the Home
Department [2001] EWCA Civ 782, [2001] INLR 342: see further 12.43 above.
5
Qualification Directive, Art 12(12) and the Refugee or Person in Need of
International Protection (Qualification) Regulations 2006, SI 2006/2525, reg 7(1).
6
The European Court of Justice will be considering the provision in Case C/31/09,
Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal, [2010] All ER (D) 133 (Jun):
Advocate General Sharpston issued an opinion on 4 March 2010.

52
[12.91]

People are not entitled to Refugee Convention protection if they do not need it because the
authorities of the territory in which they have taken up residence recognise them as having the
rights and obligations attached to the possession of nationality of that country.1 This exception is of
limited application. The person's status must be largely assimilated to that of a national of the
receiving country for the exclusion to apply; for example, he or she must be fully protected against
deportation or expulsion.2 The UNHCR Handbook suggests that the drafters had in mind refugees
of German extraction settling in Germany and recognised there as having the rights and
obligations of Germans.3 In UK terms this would suggest that a grant of settlement or of a
subsidiary British nationality which did not confer full citizenship rights would not be enough to
bring a person within the exception.4

1
Refugee Convention, Art 1E; UNHCR Handbook 12.13 above, paras 144-146.
2
In Seare (3853) unreported, refugee status in Sudan afforded to an Ethiopian
national did not exclude the person from the Refugee Convention when he travelled to
the UK. See also, in terms of the effect of a grant of asylum abroad on refugee status
determination in the UK, LW (Ethiopia - Cancellation of refugee status) [2005] UKIAT
00042 (Ethiopian granted asylum in Uganda - burden on Secretary of State to show
'the most substantial and clear grounds' for revisiting the earlier grant of asylum); KK
(DRC - Recognition elsewhere as refugee) [2005] UKIAT 00054 (DRC citizen granted
asylum in Zimbabwe under OAU Convention on refugees in Africa - not determinative
of Geneva Convention refugee status); and Babela [2002] UKIAT 06124 (Congolese
national with refugee status in South Africa - earlier grant of status should not be
questioned unless there is a very good reason for doing so); Hathaway 12.24 fn 3
above, para 6.2.3.
3
UNHCR Handbook 12.13 above, para 144.
4
Interesting issues could arise where a former refugee is deprived of British
citizenship under British Nationality Act 1981, s 40 (as substituted by Nationality,
Immigration and Asylum Act 2002, s 4).

Exclusion for criminal activity

[12.92]

Article 1F of the Refugee Convention provides that the protection of the Convention does not apply
where there are serious reasons for considering that a refugee has committed:

(a) a war crime or a crime against humanity as defined in the relevant international
instruments;1
(b) a serious non-political crime committed outside the country of refuge prior to
admission to that country as a refugee; or
(c) an act contrary to the purposes and principles of the UN.2

53
The terms of Article 1F of the Convention are mandatory; the protective provisions of the
Convention 'shall not' apply in these cases.3 Whereas (b) has a geographical and temporal limit in
respect of where and when the crime in question must have been committed, no such limits apply
to the crimes and acts covered by Article 1F (a) and (c).4 The intense focus of governments and
international organisations on terrorism since September 2001 has brought wide discussion of
these exclusion provisions in the Convention, but in the rush to judgment little notice has been
taken of careful analysis in a growing body of literature.5 In particular our own government has
rushed into legislation which thrusts on to our courts and tribunals an order of working and a set of
presumptions, which flout the spirit and aim of the Convention. We deal with these below. The
Qualification Directive reproduces the exclusion clause in Article 1F of the Refugee Convention
(exclusion for war crimes, crimes against peace, crimes against humanity, serious non-political
crimes and acts contrary to the purposes and principles of the UN) but with a number of substantial
alterations and additions that impact on the scope of the provisions.6 Firstly, Article 1F(b) of the
Refugee Convention excludes a person who 'has committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee'. The Directive defines the
phrase 'prior to his or her admission as a refugee' as meaning prior to the time of being issued with
a residence permit based on the granting of refugee status.7 Secondly, the Directive also provides
that 'particularly cruel actions, even if committed with an allegedly political objective, may be
classified as serious non-political crimes' for the purpose of the exclusion clause.8 UNHCR's
understanding of 'particularly cruel actions' is 'criminal acts which are particularly egregious'.9
Thirdly, the Directive defines 'acts contrary to the purposes and principles of the United Nations' as
being acts contrary to the Preamble and Articles 1 and 2 of the Charter of the United Nations.10
The implementing Regulation does not reproduce that part of the Directive defining 'acts contrary
to the purposes and principles of the United Nations'. The Directive obliges the Member State to
revoke, end or refuse to renew the refugee status of a person who is or should have been
excluded from being a refugee.11
1
These are listed in the UNHCR Handbook (12.13 above) at Annex VI and include
the London Agreement 1945, the charter of the Nuremberg International Military
Tribunal (extract in Annex V of the UNHCR Handbook), and the Geneva Conventions
and additional Protocol relating to the protection of victims of war and international
armed conflicts. The Rome Statute of the International Criminal Court 1998, Arts 7 and
8, provides updated definitions of war crimes and crimes against humanity.
2
Refugee Convention, Art 1F.
3
See Gurung [2002] UKIAT 04870 (starred) and KK (Turkey) [2004] UKIAT 00101.
4
See RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10,
153 Sol Jo (no 7) 32. In KK (above) the act relied on as contrary to the purposes and
principles of the UN (arson attacks on Turkish businesses), occurred in the UK after
the claimant had claimed asylum here: see 12.96 fn 13 below.
5
See, for instance, Background Note on the Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees, UNHCR 2003
(hereinafter: UNHCR Background Note), UNHCR Executive Committee, Standing
Committee sessions of 1997 (8th meeting) and 1998 (10th meeting); UNHCR Global
Consultations on International Protection, Lisbon Expert Roundtable (May 2001),
Summary Conclusions - Exclusion from Refugee Status, UNHCR Doc.
EC/GC/01/2Track/1 (hereinafter UNHCR Lisbon Roundtable); UNHCR Guidelines on

54
 International Protection No 5: Application of the exclusion clauses: Article 1F
(HCR/GIP/03/05) 4 September 2003; Lawyers Committee for Human Rights,
Research and Advocacy Project Safeguarding the Rights of Refugees under the
Exclusion Clauses in IJRL Vol 12 Special Supplementary Issue 2000 Exclusion from
Protection; and Refugees, Rebels and the quest for justice, 2002; PJ van Krieken (ed)
Refugee Law in Context: The Exclusion Clause (The Hague 1999); ECRE, Position on
the Interpretation of Article 1 of the Refugee Convention (September 2000); ECRE,
Position on Exclusion from Refugee Status (March 2004).
6
Qualification Directive, Art 12(2).
7
Qualification Directive, Art 12(2)(b) and the Refugee or Person in Need of
International Protection (Qualification) Regulations 2006, SI 2006/2525, reg 7(2)(b).
8
Qualification Directive, Art 12(2)(b) and the Refugee or Person in Need of
International Protection (Qualification) Regulations 2006, reg 7(2)(a).
9
UNHCR Annotated Comments on the EC Council Directive 2004/83/EC (January
2005).
10
Qualification Directive, Art 12(2)(c).
11
Qualification Directive, Art 14(3) and HC 395, para 339A(vii), as inserted by HC
6918.

[12.93]

The UNHCR Handbook points out that in view of the serious consequences of a decision to
exclude from protection Article 1F must be interpreted restrictively.1 The same point was made by
the 1996 EU Joint Position, which stressed that the exclusion clause was to be applied only in very
exceptional cases after thorough and careful consideration;2 however the Qualification Directive
makes no reference to a restrictive interpretation.3 In asylum appeals the Secretary of State may
certify that the appellant is not entitled to the protection of the Convention because Article 1F
applies or because Article 33(2) applies on national security grounds. If such a certificate is issued
(which should not occur if the Secretary of State rejects the credibility of the relevant assertions: in
such cases exclusion should simply be raised in the refusal letter in the alternative4), the Tribunal
or the SIAC hearing an appeal which raises Refugee Convention grounds is required to decide first
whether it agrees with the certificate and if it does, is required to dismiss that part of the appeal
which relates to the asylum claim without considering any other aspect of the case.5 Serious
reasons for a belief are not the same as proof of guilt beyond doubt; it is enough that 'there is
sufficient proof warranting the assumption of the (claimant's) guilt of such a crime',6 and there is a
presumption of innocence to the extent that the burden lies on the government to provide cogent
evidence justifying exclusion.7 A bare indictment would not provide reasons of sufficient severity.8
The low standard of proof allows in the use of secret evidence and evidence of very doubtful
reliability: though evidence obtained via torture would not be admissible.9 Legislation and the
authorities are against applying any principle of proportionality (ie balancing the harm that the
claimant may suffer if denied protection against the harm that he or she has committed). 10 Where
there is a real risk of severe harm, removal is in any case prohibited by virtue of Article 3 of the
EHCR.11
1
UNHCR Handbook 12.13 above, para 149 and see UNHCR Guidelines on
International Protection: Application of the Exclusion Clauses: Article 1F (4 September
2003) (HCR/GIP/03/05) para 2. See also the Netherlands Council of State decision of
55
JMS v Staatsecretaris van Justitie (17 December 1992) (NAV 1993, 1), digested in
(1995) 7(1) IJRL 129. See also Stanley Burnton LJ in the Court of Appeal in KJ (Sri
Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292 at [35]
and Arden LJ in the Court of Appeal in Al-Sirri v Secretary of State for the Home
Department (United Nations High Commissioner for Refugees intervening) [2009]
EWCA Civ 222 (18 March 2009) at [77], [2009] All ER (D) 220 (Mar).
2
Joint Position of 4 March 1996, para 13; see also Minister for Immigration and
Multicultural Affairs v Singh [2002] HCA 7 (Aust HC).
3
Qualification Directive, 12.3 fn 3 above, Art 12.
4
Para 2.1.5 of API Exclusion: Articles 1F and 33(2) of the Refugee Convention.
5
IAN 2006, s 55. Formerly this approach applied only in appeals to SIAC by virtue
of the Anti-terrorism, Crime and Security Act 2001 s 33(3), (4), repealed by the IAN
2006, s 55(6). The Tribunal had already concluded (in Gurung) that it should follow
that approach, considering the issue of exclusion first and not determining the question
of inclusion if it found that the exclusion clause applied, save in borderline cases:
Gurung [2002] UKIAT 04870 (starred). For the previous contrary view see Singh
(10860) and see also JMS v Staatsecretaris van Justitie fn 1 above. However the
Canadian Federal Court of Appeal held it was not an error for the Tribunal to apply the
exclusion clause without making any explicit finding on inclusion, in Gonzalez v
Minister of Employment and Immigration [1994] FCJ 765. See Goodwin-Gill 12.5 fn 1
above, para 4.1.2, p 97.
6
See YS (Egypt) v Secretary of State for the Home Department [2009] EWCA Civ
222 See Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
(Aus): '"Serious reasons for considering" means it is unnecessary for the state to make
a positive or concluded finding about the commission of the crime or the act of the
class referred to.' See also Robinson 'Convention relating to the Status of Refugees'
(1953) cited in Hathaway 12.24 fn 3 above, para 6.3, p 215. But the UNHCR
Guidelines (fn 1 above) call for 'clear and credible evidence' which should be available
to the individual concerned so that it can be challenged: paras 35, 36. Contrast the
approach to evidence of the SIAC (see Chapter 21): see Singh (Mukhtiar) and Singh
(Paramjit) v Secretary of State for the Home Department (SIAC, 31 July 2000).
7
Sedley LJ in the Court of Appeal in YS (Egypt) v Secretary of State for the Home
Department [2009] EWCA Civ 222 at [27]
8
Sedley LJ in YS (Egypt) at [60]
9
Sedley LJ in YS (Egypt) at [44]
10
Anti-terrorism, Crime and Security Act 2001, s 34; T v Immigration Officer [1996]
AC 742, [1996] 2 WLR 766; Singh (Mukhtiar) and Singh (Paramjit) v Secretary of State
for the Home Department (SIAC, 31 July 2000); Gurung [2002] UKIAT 04870 (starred)
and KK (Turkey) [2004] UKIAT 00101. Contrast the UNHCR Guidelines (fn 1 above)
para 24 which, whilst acknowledging that a proportionality analysis would 'not normally
be required in the case of crimes against peace, crimes against humanity, and acts
falling under Article 1F(c), as the acts covered are so heinous', considers that
proportionality is relevant to Art 1F(b) crimes and to less serious war crimes under Art
1F(a). The European Court of Justice will be considering the relevance of
proportionality in Case C-57/09 (Reference from the BVerWG Germany v B (10
February 2009) and C-101/09 Germany v D (13 March 2009)).
11
Chahal v United Kingdom (1996) 23 EHRR 413. Note that the Qualification
Directive (12.3 fn 3 above) Art 17 contains identical exclusion clauses for subsidiary
protection. See also Saadi v Italy (2009) 49 EHRR 730, [2008] Crim LR 898, ECtHR

56
[12.94]

The burden of establishing that the exclusion clause applies rests on the state seeking to deny
protection.1 The standard of proof is less than that of the civil balance of probabilities.2 'Serious
reasons for considering' do not require that there has been a successful prosecution for a crime.3
The presumption of innocence in criminal proceedings does not carry over to refugee status
determination.4 The extent of participation required for exclusion requires some personal activity,
whether as a leader, organiser or accomplice participating in the planning, financing or the
execution of the crime; mere membership of a group which from time to time commits international
offences is not normally sufficient for exclusion from refugee status.5 Where international crimes
are in play, the Rome Statute will be the starting point for determining complicity.6 In general, cases
will be determined on the evidence, absent presumption:7 even where an organisation is principally
directed to a limited, brutal purpose, such as a secret police activity, mere membership does not
necessarily involve personal and knowing participation in persecutory acts.8 An accused will be
disqualified under Article 1F if there are serious reasons for considering him voluntarily to have
contributed in a significant way to the organisation's ability to pursue its purpose of committing war
crimes, aware that his assistance will in fact further that purpose:9 the making of a 'substantial
contribution' may capture the concept,10 this being a participation exceeding mere passivity or
continued involvement in the organisation after acquiring knowledge of the war crimes or crimes
against humanity.11 It is not only those deploying state powers who may fall for exclusion.12
1
Sedley LJ in the Court of Appeal in Al-Sirri v Secretary of State for the Home
Department (United Nations High Commissioner for Refugees intervening) [2009]
EWCA Civ 222 at [27], [2009] All ER (D) 220 (Mar); see also Arden LJ at [77]. Ramirez
v Minister of Employment and Immigration (1992) FCJ 109. See also UNHCR
Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F
(4 September 2003) (HCR/GIP/03/05) para 34. Lord Brown in the Supreme Court in R
(on the application of JS (Sri Lanka)) v Secretary of State for the Home Department
(Rev 1) [2010] UKSC 15 at [39], [2010] 3 All ER 881, [2010] 2 WLR 766: '"serious
reasons for considering" obviously imports a higher test for exclusion than would, say,
an expression like "reasonable grounds for suspecting". "Considering" approximates
rather to "believing" than to "suspecting"'.
2
Sedley LJ in the Court of Appeal in YS (Egypt) v Secretary of State for the Home
Department & Anor [2009] EWCA Civ 222 at [33]. See Stanley Burnton LJ in the Court
of Appeal in KJ (Sri Lanka) v Secretary of State for the Home Department [2009]
EWCA Civ 292 (02 April 2009): '[35] ... Nonetheless, the crimes and acts referred to
are all serious, and the seriousness of the reasons must correspond with the
seriousness of the crimes and acts in question'.
3
See Toulson LJ in the Court of Appeal in R (on the application of JS (Sri Lanka)) v
Secretary of State for the Home Department [2009] EWCA Civ 364 at [28]; Stanley
Burnton LJ in the Court of Appeal in KJ (Sri Lanka) v Secretary of State for the Home
Department [2009] EWCA Civ 292 at [35]; Sedley LJ in the Court of Appeal in YS
(Egypt) v Secretary of State for the Home Department & Anor [2009] EWCA Civ 222 at
[35]. Refugee Status Appeals Authority of New Zealand in Refugee Appeal No 74796
(RPG Haines QC (Chairperson); 19 April 2006) at [87]. A conviction will, of course, be
sufficient, see eg KK (Article 1F(c), Turkey) [2004] UKIAT 00101 (07 May 2004),
[2005] INLR 124, [2004] UKIAT 00101, [2004] Imm AR 284 at [10].

57
 4
Sedley LJ in the Court of Appeal in Al-Sirri v Secretary of State for the Home
Department & Anor [2009] EWCA Civ 222 at [25].
5
This is highly relevant in the light of the proscription of 21 organisations to which
exiles might belong, including the LTTE and the PKK, under the provisions of the
Terrorism Act 2000. The Qualification Directive, 12.3 fn 3 above states that the
exclusion clauses apply to persons who 'instigate or otherwise participate in the
commission of the crimes or acts mentioned therein'.
6
Lord Brown in the Supreme Court in R (on the application of JS (Sri Lanka)) v
Secretary of State for the Home Department (Rev 1) [2010] UKSC 15 at [8].
7
Thus it was noted in KJ (Sri Lanka) v Secretary of State for the Home Department
[2009] EWCA Civ 292 that the Liberation Tigers of Tamil Eelam (LTTE) pursued its
political ends in part by acts of terrorism and in part by military action directed against
the armed forces of the government of Sri Lanka: a foot soldier in such paramilitary
forces who had not personally participated in excludable acts was innocent of acts
contrary to the purposes and principles of the United Nations.
8
Lord Hope in the Supreme Court in R (on the application of JS (Sri Lanka)) v
Secretary of State for the Home Department (Rev 1) [2010] UKSC 15 at [44], thus
qualifying the approach of Ramirez (fn 1 above).
9
Lord Brown in the Supreme Court in JS (Sri Lanka) (fn 8 above) at [38].
10
Lord Hope in the Supreme Court in JS (Sri Lanka) (fn 8 above) at [48].
11
Lord Kerr in the Supreme Court in JS (Sri Lanka) (fn 8 above), at [56].
12
YS (Egypt) v Secretary of State for the Home Department [2009] EWCA Civ 222
at [39] makes it clear that Article 1F is not limited to cases where the asylum-seeker
was deploying state powers.
[12.95]

In Gurung1 the Tribunal gave the following guidance on the proper approach to exclusion under
Article 1F regarding the procedural dimension of considering exclusion:

(1) the exclusion clauses are to be applied restrictively,2 with the focus on the past
(rather than, as with inclusion, on the future);
(2) the principles in T v Secretary of State3 remain valid in considering Article 1F(b);
but in deciding whether a claimant's membership in an organisation amounts to
complicity sufficient for Article 1F purposes, all the circumstances must be taken into
account, including not only the individual's role in that organisation but also that
organisation's role in its society, so that the more an organisation makes terrorist acts
its modus operandi, the harder it will be for the individual to show that his or her
voluntary membership of it does not amount to complicity;
(3) the exclusion clauses are in mandatory terms and so, although the tribunal
should not go looking for reasons to exclude, where relevant issues arise they must be
dealt with by the tribunal even if they have not been raised by the Secretary of State.
The Court of Appeal has held that a tribunal erred in law by failing to consider whether
an asylum seeker from Iraq should be excluded for 'serious non-political crimes' on
account of his admitted involvement in detaining and torturing opponents of the
Saddam Hussein regime even though the Secretary of State had not raised the
possibility of exclusion; were he to be recognised as a refugee in circumstances where
he should have been excluded, there would be a breach of the Convention.4 The
tribunal found a similar error where an adjudicator failed to consider whether Article 1F
applied to a member of the Jihad Islamic Movement who had been involved in its
armed activities in Gaza, including a (failed) suicide bombing.5
58
 (4) it is only necessary to consider exclusion in cases involving serious criminality as
defined in Article 1F(a)-(c), but once such serious criminality is identified, there is
nothing wrong with dealing with the exclusion issue first (before the inclusion issue);
(5) only in very obvious exclusion cases should the parties be directed to confine
their submissions to this issue; in less obvious cases evidence and submissions
should be heard on both inclusion and exclusion issues;
(6) obvious exclusion issues should be dealt with first in determinations;
(7) if it is found that Article 1F does not apply, inclusion under Article 1A(2) should
then be assessed;
(8) on the other hand if Article 1F bites, inclusion should be evaluated only if the
decision on exclusion is seen as problematic or finely balanced;
(9) where the appeal also involves human rights grounds, it must then be
considered whether removal would violate Article 3, ECHR, notwithstanding the finding
on exclusion from the Refugee Convention;
(10) unlike the immigration judiciary, the Secretary of State should always address
inclusion and exclusion issues in refusal letters.
1
Gurung [2002] UKIAT 04870 (starred), [2003] INLR 133. As to substantive law,
however, its oracular standing faded with the decisions of the Court of Appeal [2009]
EWCA Civ 364 and Supreme Court in R (on the application of JS (Sri Lanka)) v
Secretary of State for the Home Department (Rev 1) [2009] 3 All ER 588, [2010] 2
WLR 17; affd on other grounds [2010] UKSC 15, [2010] 3 All ER 881, [2010] 2 WLR
766.
2
In KK (Turkey) [2004] UKIAT 00101 the Tribunal pointed out that the exclusion
clauses, being mandatory, must be applied to anyone whose conduct came within
their terms, so that the Tribunal in Gurung must have meant to state that the exclusion
clauses are to be 'interpreted', rather than 'applied', restrictively (see 12.93 fn 1
above).
3
T v Immigration Officer [1996] AC 742, [1996] 2 WLR 766.
4
A (Iraq) v Secretary of State for the Home Department [2005] EWCA Civ 1438,
149 Sol Jo LB 1492, [2005] All ER (D) 22 (Dec).
5
AA (Palestine) [2005] UKIAT 00104.

War crimes, crimes against humanity and crimes against the purposes and
principles of the UN

[12.96]

The drought of cases from the higher courts addressing war crimes, crimes against humanity1 and
crimes against the purposes and principles of the UN2 broke with a wave of decisions in 2009.3
Earlier in the law's development, the Tribunal in Amberber had allowed an appeal of an Ethiopian
accused of 'wars of aggression' for participation in internal attacks, ruling that Article 1F(a) of the
Refugee Convention only applied to waging war across international boundaries;4 this holds good
too for Article 1F(c), terrorist crimes needing an international dimension if they are to be said truly
to contravene the purposes of the United Nations.5 The Statute of the International Criminal Court
contains the relevant definitions of war crimes and crimes against humanity.6 Former government
officials who have resorted to barbaric methods against civilians in the repression of disorder are
liable to exclusion.7 The killing of civilians in the course of internal conflict has been held not to

59
engage the clauses8 (unless deliberate)9 but torture, genocide, and arbitrary reprisals do.10 It is not
sufficient that the act alleged could be a crime against humanity; it must be established that it
would be.11 In Pushpanathan12 the Canadian Supreme Court held that narcotics trafficking was not
an act 'contrary to the purposes and principles of the UN'. It reasoned that the rationale of Article
1F was that those responsible for the persecution which creates refugees should not enjoy the
benefits of the Convention designed to protect those refugees. The purpose of Article 1F(c) was 'to
exclude those individuals responsible for serious, sustained or systemic violations of fundamental
human rights which amount to persecution in a non-war setting'. It may be applicable to non-state
actors although it may be more difficult for non-state actors to perpetrate human rights violations
on a scale amounting to persecution without the state thereby implicitly adopting the acts.13 In
Singh and Singh14 the Special Immigration Appeals Commission (SIAC) rejected the appellants'
contentions that (1) Article 1F(c) applied only to those holding a position of authority in a state or
acting on behalf of a state and (2) acts could only fall within Article 1F(c) if they were committed
other than for political reasons or in pursuance of a right of self-determination.15 Acts of terrorism
are contrary to the purposes and principles of the UN and accordingly come within the ambit of
Article 1F(c) wherever and whenever committed, considering not only Articles 1 and 2 of the 1945
Charter of the United Nations (which set out the purposes and principles of the UN),16 but also, in
the light of Article 31 of the Vienna Convention on the Law of Treaties (which sets out general rules
of interpretation of treaties), subsequent Security Council and General Assembly resolutions that
unequivocally condemn terrorism and terrorist acts.17 In interpreting the ambit of these decisions,
some care is needed, first, because of the very divergent definitions of terrorism; and, secondly,
because the exclusive focus of the UN Security Council Resolutions after 11 September 2001 has
been on Al Qaeda and a long list of named organisations and individuals allegedly associated with
it, rather than on Turkish Kurds fighting for self-determination or Muslims in Gujerat, India, fighting
against extremist communalism, but who have nevertheless been labelled as terrorists by the EU
or under Indian anti-terrorist legislation: military action against government forces is not to be
regarded as a war crime.18 Section 54 of the IAN 200619 imposes a statutory interpretation of
Article 1(F)(c) of the Convention20 according to which acts contrary to the purposes and principles
of the UN includes acts of committing, preparing or instigating terrorism and of encouraging or
inducing others to commit, prepare or instigate terrorism: though this must be read down to
achieve consistency with the European law framework.21 The acts include inchoate offences and
terrorism has the meaning given by section 1 of the Terrorism Act 2000.22 Being a member or
supporter of a 'terrorist organisation' or an organisation proscribed under the Terrorism Act 2000
may be sufficient for the Secretary of State to decide to exclude a person in reliance on Article
1F(c),23 depending on the role, maturity and level of activities of the asylum seeker.24 The
Qualification Directive defines the principles and purposes of the UN as being those set out in the
preamble and Articles 1 and 2 of the Charter of the United Nations.25 The provision refers to 'acts'
rather than 'crimes', and thus its assessment may go beyond a determination of criminal liability. 26
In the ordinary course the provision of medical or nursing services would not bring a person within
Article 1F(c) on the basis that they form part of the infrastructure of support for a terrorist
organisation; but in each case the point will have to be taken into account with other relevant
factors in reaching an overall assessment. The humanitarian nature of nursing injured fighters,
might well, in context, weigh against rather than in favour of a finding of complicity in the terrorist
acts.27 In determining complicity in war crimes, it is preferable to focus from the outset on what
60
ultimately must prove to be the determining factors in any case, principally: (i) the nature and
(potentially of some importance) the size of the organisation and particularly that part of it with
which the asylum-seeker was himself most directly concerned; (ii) whether and, if so, by whom the
organisation was proscribed; (iii) how the asylum-seeker came to be recruited; (iv) the length of
time he remained in the organisation and what, if any, opportunities he had to leave it; (v) his
position, rank, standing and influence in the organisation; (vi) his knowledge of the organisation's
war crimes activities; and (vii) his own personal involvement and role in the organisation including
particularly whatever contribution he made towards the commission of war crimes.28
1
Refugee Convention, Art 1F(a).
2
Refugee Convention, Art 1F(c).
3
YS Egypt v Secretary of State for the Home Department & Anor [2009] EWCA Civ
222; KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ
292; R (on the application of JS (Sri Lanka)) v Secretary of State for the Home
Department [2009] EWCA Civ 364; MH (Syria) v Secretary of State for the Home
Department [2009] EWCA Civ 226, [2009] 3 All ER 564.
4
Amberber (00TH 01570) (13 June 2000, unreported), IAT. The European
jurisprudence on Art 1F(a) of the Refugee Convention is set out in Jean-Yves Carlier
et al (eds) Who is a Refugee? (1997). In PK (Sri Lanka) [2004] UKIAT 00089 the
Tribunal held that the adjudicator had erred in law in applying Art 1F(a) to a member of
the LTTE who had admitted to having killed Sri Lankan soldiers in battle; the
adjudicator had mistakenly assumed that the claimant had admitted to killing injured
soldiers other than in the course of the battle itself. On the other hand, a member of
the LTTE who voluntarily drove an assassination squad to and from the places where
they killed civilians, knowing what the assassins were doing was excluded: AN and SS
(Sri Lanka) CG [2008] UKAIT 00063.
5
YS Egypt v Secretary of State for the Home Department and Anor [2009] EWCA
Civ 222 at [32], [51].
6
API Articles 1F and 33(2) of the 1951 Refugee Convention, October 2006, section
3.
7
See Article by Feisman (1996) 8 IJRL 111. Goodwin-Gill 12.5 fn 1 above, pp 95-
100 suggests a somewhat narrower basis for exclusion under this head relying on the
travaux and their reference to the principles established by the London Charter of the
International Military Tribunal.
8
Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501 at 669, per
Toohey J.
9
KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ
292.
10
Gonzalez v Minister of Employment and Immigration (1994) FCJ 765.
11
Moreno v Minister of Employment and Immigration (1993) 159 NR 210.
12
Pushpanathan v MCI [1998] 1 SCR 982, [1999] INLR 36. The refugee could not
be excluded under Art 1F(b) of the Refugee Convention ('serious non-political crime')
because the acts were committed inside Canada after recognition.
13
Pushpanathan above.
14
Singh (Mukhtiar) and Singh (Paramjit) v Secretary of State for the Home
Department (SIAC, 31 July 2000).
15
As the SIAC rightly pointed out at para 65(b), there are no such caveats
expressed in Art 1F(c), as distinct from the specified requirement that the 'serious

61
crime' be 'non-political' in Art 1F(b) (below). Thus, Art 1F(c) is highly relevant to
separatist groups who use violence in pursuit of their aims.
16
Sedley LJ in the Court of Appeal in Al-Sirri v Secretary of State for the Home
Department and Anor [2009] EWCA Civ 222 (also cited as YS Egypt) at [30]. Singh
(Mukhtiar) and Singh (Paramjit) v Secretary of State for the Home Department (SIAC,
31 July 2000); KK (Turkey) [2004] UKIAT 00101.
17
Particularly SC Resolutions 1269 (1999) and 1373 (2001); and GA Resolutions
49/60 (1994), 51/210 (1996) and 54/164 (2000). The SIAC was content to use the
definition of terrorism now contained in the Terrorism Act 2000, s 1, but the Tribunal in
KK (Turkey) pointed out that use of such a domestic definition risked offending against
the principle of applying an autonomous international meaning to the provisions of the
Refugee Convention (see 12.22, fn 1 above). The Tribunal stated at para 74 that the
question was 'what does the United Nations mean by "terrorism"?' However, it rejected
UNHCR's opinion that the acts in question were not serious enough to found exclusion
under Art 1F(c), reasoning that if the UN condemned terrorism and the acts were
terrorist, the acts fell within the exclusion clause - an argument rejected as facile in
relation to military actions condemned by the international community so as to found
refugee status in Krotov v Secretary of State for the Home Department [2004] EWCA
Civ 69, [2004] 1 WLR 1825 (12.79 above).
18
Lord Brown in the Supreme Court in R (on the application of JS (Sri Lanka)) v
Secretary of State for the Home Department (Rev 1) [2010] UKSC 15 at [27]. Thus the
LTTE of Sri Lanka could not be said to be 'predominantly terrorist in character'.
19
Which came into force on 31 August 2006.
20
Contrary to the principle that 'the Convention must be interpreted as an
international instrument, not a domestic statute, in accordance with the rules
prescribed by the Vienna Convention on the Law of Treaties' (Januzi v Secretary of
State for the Home Department; Hamid v Same; Gaafar v Same; Mohammed v Same
[2006] UKHL 5, [2006] 3 All ER 305, [2006] 2 WLR 397, per Lord Bingham, para 4).
21
Sedley LJ in YS (Egypt) v Secretary of State for the Home Department [2009]
EWCA Civ 222.
22
Which provides: '(1) In this Act 'terrorism' means the use or threat of action
where- (a) the action falls within sub-s (2), (b) the use or threat is designed to influence
the government or an international governmental organisation or to intimidate the
public or a section of the public, and (c) the use or threat is made for the purpose of
advancing a political, religious or ideological cause. (2) Action falls within this
subsection if it- (a) involves serious violence against a person, (b) involves serious
damage to property, (c) endangers a person's life, other than that of the person
committing the action, (d) creates a serious risk to the health or safety of the public or
a section of the public, or (e) is designed seriously to interfere with or seriously to
disrupt an electronic system. (3) the use or threat of action falling within sub-s (2)
which involves the use of firearms or explosives is terrorism whether or not sub-s
(1)(b) is satisfied. (4) In this section- (a) 'action' includes action outside the UK, (b) a
reference to any person or property is a reference to any person, or to property,
wherever situated, (c) a reference to the public includes a reference to the public of a
country other than the UK, and (d) 'the government' means the government of the UK,
of a part of the UK or of a country other than the UK. (5) In this Act a reference to
action taken for the purposes of terrorism includes a reference to action taken for the
benefit of a proscribed organisation.'
23
API 'Articles 1F and 33(2) of the 1951 Refugee Convention', October 2006,
section 5.3, citing Gurung [2002] UKIAT 04870. See Also Richards LJ in the Court of

62
 Appeal in MH (Syria) v Secretary of State for the Home Department [2009] EWCA Civ
226 (24 March 2009) at [30]. The Secretary of State must temper that policy, however,
with the legal approach mandated to complicity in general: see para 12.94 above.
24
Richards LJ in the Court of Appeal in MH (Syria) v Secretary of State for the
Home Department [2009] EWCA Civ 226 (24 March 2009) at [36].
25
Qualification Directive, Art 17(1)(c).
26
Richards LJ in the Court of Appeal in MH (Syria) (fn 24 above) at [30].
27
As above, at [31].
28
Lord Brown in the Supreme Court in R (on the application of JS (Sri Lanka)) v
Secretary of State for the Home Department (Rev 1) [2010] UKSC 15 at [30].

Serious non-political crime

[12.97]

It is only serious1 offences that will bring this limb of the exclusion clause (ie serious reasons for
considering that he or she 'has committed a serious non-political crime outside the country of
refugee prior to his admission to that country as a refugee') into operation. The UNHCR Handbook
suggests that they will have to be capital crimes or very grave punishable acts.2 However, the
Secretary of State applies a far lower threshold for the purpose of identifying what is a 'serious
non-political crime', drawing by analogy from the definition of 'particularly serious crime' in the
Nationality, Immigration and Asylum Act 2002, s 72 (as to which see 12.101 below). The API3
equates 'serious crime' with any one which, if committed in the UK, a custodial sentence of two
years could be expected: see the Order made under the Nationality, Immigration and Asylum Act
2002, s 72(4) (though the Order that was in fact made was declared void: given it purported to
specify 'particularly serious' crimes, it was in any event an unsuitable guide to what was merely a
'serious' one).4 What constitutes a 'non-political offence' has given rise to difficulty. The drafters of
the Refugee Convention intended a link with the international principles of extradition, and the
extradition case law is likely to be relevant.5 The fact that violence is used in support of a political
objective does not render the case outside the political offence exception.6 In the case of T v
Immigration Officer7 the House of Lords had to consider the exclusion clause in relation to
someone who had been an organiser of a group which had planted a bomb at a civilian airport,
killing a number of innocent people. Lord Lloyd, delivering the principal judgment, held that a crime
is a political crime for the purposes of Article 1F(b) of the Refugee Convention if, and only if, it is
committed for a political purpose (ie with the object of overthrowing or subverting or changing the
government of a state or inducing it to change its policy),8 and there is a sufficiently close and
direct link between the crime and the alleged political purpose. In determining whether such a link
exists, the court will bear in mind the means used to achieve the political end, the target (whether
civilian or military) and whether it involved indiscriminate killing. The House disapproved the
Handbook's9 suggestion that the impugned acts should be balanced against the consequences to
the applicant in deciding whether the acts constituted serious non-political crimes.10 Statute
dictates that a particularly cruel action even if committed with an allegedly political objective is non-
political.11 Article 1F(b) of the Refugee Convention applies to a crime committed by a person
'outside the country of refuge prior to his admission to that country as a refugee'. Legislation
transposing the Qualification Directive now requires that to be construed as meaning 'the time up
63
to and including the day on which a residence permit is issued'.12 The legislation thereby imposes
only a construction of the reference to the time when the commission of a crime may result in
exclusion under Article 1F(b). It says nothing that affects the clear and unambiguous language of
Article 1F(b) which limits application of the Article to crimes committed 'outside the country of
refuge'. We think, therefore, that the API is plainly wrong in saying that reliance on the statutory
interpretation of Article 1F(b) means that it may apply to crimes committed in the UK prior to the
issue of a residence permit.13
1
The Tribunal noted in IH (s 72; 'Particularly Serious Crime') Eritrea [2009] UKAIT
00012 at [67] that the addition of the word 'particularly' in Article 33(2) suggests a
higher threshold than is required for exclusion under Article 1F(b). See Henry LJ in the
New Zealand Court of Appeal in S v Refugee Status Appeals Authority [1998] NZLR
91; and the Tribunal in KK (Turkey) [2004] UKIAT 00101 on the role for judgment at
[80].
2
UNHCR Handbook 12.13 above, para 155. See also Hathaway 12.24 fn 3 above,
p 224; Goodwin-Gill 12.5 fn 1 above, para 4.2.1, pp 101-108. For a consideration of
the application of the sub-paragraph to drugs offences see Martin Gottwald 'Asylum
claims and drug offences: the seriousness threshold of Art 1F(b) of the 1951
Convention relating to the status of refugees and the UN Drug Conventions', UNHCR,
2004.
3
API Exclusion: Articles 1F and 33(2) of the Refugee Convention, October 2006,
section 2.3.1.
4
The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly
Serious Crimes) Order 2004, SI 2004/1910. However that Order was struck down for
invalidity, see Stanley Burnton LJ in the Court of Appeal in EN (Serbia) v Secretary of
State for the Home Department [2009] EWCA Civ 630 at [68] and IH (s 72; 'Particularly
Serious Crime') Eritrea [2009] UKAIT 00012 (9 March 2009) at [77].
5
Hathaway above, pp 221-222. It was drawn on extensively in T v Immigration
Officer; see below.
6
Handbook above, para 152. A hijacking was held not to fall under the exclusion
clause in the Dutch case of YYA v Staatsecretaris van Justitie (R 02880417) (8 April
1991) (Council of State). On the other hand, rioting in which buses were burned,
stones thrown and stores looted was held capable of doing so in the US SC case of
INS v Aguirre-Aguirre [2000] INLR 60, on the basis that the criminal outweighed the
political aspect of the offence. The decision of the Board of Immigration Appeals (BIA),
which had held the acts disproportionate to the aim (protest against government failure
to investigate disappearances and rise in bus fares), was approved, and the court said
it was not necessary for the acts to be atrocities for them to be disproportionate and so
lose their political character.
7
[1996] AC 742, [1996] 2 WLR 766.
8
Notwithstanding the 'if and only if' formulation of Lord Lloyd, the House in T did not
consider or reject Lord Diplock's conclusion in R v Governor of Pentonville Prison, ex p
Cheng [1973] AC 931 (an extradition case) that an offence might be political if
committed to 'enable [the offender] to escape from the jurisdiction of a government of
whose political policies the offender disapproved but despaired of altering so long as
he was there' (emphasis added). See also R v Governor of Brixton Prison, ex p
Kolczynski [1955] 1 QB 540 at 550 per Lord Goddard CJ: 'The revolt of the crew was
to prevent themselves being prosecuted for a political offence and in my opinion,
therefore, the offence had a political character.'

64
 9
UNHCR Handbook above, para 156 and see UNHCR Guidelines on International
Protection: Application of the Exclusion Clauses: Article 1F (4 September 2003)
(HCR/GIP/03/05) para 24; see also Hathaway above, p 224; SAM v BFF (1994) 6(4)
IJRL 672 Case 215.
10
[1996] 2 All ER 865 at 882. See 12.93, fn 7 above.
11
The Refugee or Person in Need of International Protection (Qualification)
Regulations 2006, SI 2006/2525, reg 7(2)(a) applying the Qualification Directive, Art
12(2)(b), although the Directive provides only that particularly cruel actions 'may' be
classified as non-political whereas the Regulation adopts a mandatory classification.
12
SI 2006/2525, reg 7(2)(b), following the Qualification Directive, Art 12(2)(b):
incompatibility between the Directive and the Refugee Convention can be resolved
only by the European Court of Justice, according to Stanley Burnton LJ in EN (Serbia)
v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] 3 WLR
182, (2009) Times, 24 July citing Foto-Frost v Hauptzollamt Lubeck-Ost 314/85[1987]
ECR 4199, [1988] 3 CMLR 57, ECJ. See also R (on the application of International Air
Transport Association (C-344/04) [2006] ECR I-00403, [2006] NLJR 113, (2006)
Times, 16 January, ECJ; see (29 June 2009).
13
API 'Articles 1F and 33(2) of the 1951 Refugee Convention' at 2.3.3.
[12.98]

There has been little judicial enthusiasm for limiting application of the exclusion clauses where the
offence has been the subject of an amnesty or is no longer capable of prosecution (other than
because the claimant has already been convicted and served his sentence).1 It can only apply to
conduct committed before entry to the country of asylum.2 Conduct arising after admission to the
country of asylum should properly be confined to the loss of the benefit of the prohibition on
refoulement, and is considered in the following paragraphs.
1
For a view that it should not see Hathaway 12.24 fn 3 above, pp 222-223; see also
JMS v Staatsecretaris van Justitie 12.93 fn 1 above. As to 'expiation', where the
individual has already been punished for his crime, UNHCR suggest that the exclusion
clause should not apply; see Guidelines on International Protection: Application of the
Exclusion Clauses: Article 1F (4 September 2003) (HCR/GIP/03/05) para 23, but the
Tribunal in KK (Turkey) [2004] UKIAT 00101 rejected the argument (at para 91). The
IAT in Gurung [2002] UKIAT 04870 (starred) at para 76 was undecided on this issue.
2
Pushpanathan v MCI [1998] 1 SCR 982, [1999] INLR 36 - see 12.96 fn 9. Subject
to the statutory regime discussed above.

EXPULSION OF REFUGEES

[12.99]

Article 33 of the Refugee Convention imposes an express duty on receiving states that may result
in the grant of asylum. It provides:
''1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.

65
 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the country in which he is, or who,
having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the
community of that country.''

As far as the courts in the UK are concerned, the reference to 'would be threatened' does not
import a higher standard of proof than under Article 1 of the Convention.1 This is consistent with
the purpose of the Convention, which is to prevent the removal of potential refugees to the place
where they fear persecution. Unless there is a prior proper determination that a person is not a
refugee, he or she may be one, and so removal without determination of refugee status can only
be effected to a country where there is no risk of persecution or of onward removal to the country
of persecution.2
1
See R v Secretary of State for the Home Department, ex p Sivakumaran [1988]
AC 958, HL where Lord Keith distinguished INS v Cardozo-Fonseca, 480 US 421, a
US case where the different standard of proof arose from the terms of the US statute.
2
Re Musisi [1987] AC 514 at 526.
[12.100]

The only exceptions to the prohibition on refoulement under the Refugee Convention1 are (i) where
there are reasonable grounds for regarding the refugee as a danger to the security of the country
in which he or she is,2 or (ii) the refugee constitutes a danger to the community in that country
having been convicted of a particularly serious crime.3 The weight of international opinion is that
these are two separate requirements, ie that the conviction of a particularly serious crime is not
conclusive, and whether the commission of such a crime makes the refugee a danger to the
community is a question of fact. The application of Article 33(2) of the Convention is not
mechanistic, and will always involve a question of proportionality, with account taken of the
consequences likely to befall the refugee on return.4 The Canadian approach is to look both to the
context of the crime and to the degree of persecution faced in the home country.5 In A v Minister
for Immigration and Multicultural Affairs6 the Australian Federal Court of Appeal held that the
provision was concerned with the perils represented by the refugee, and thus the nature of the
crime committed was not conclusive.7 Article 33(2) applies both to recognised refugees and to
asylum seekers, but while the provisions of Article 1F above are mandatory, this is discretionary.
1
But even if Art 33(2) of the Refugee Convention applies, Art 3 of the ECHR
prevents removal to torture or inhuman or degrading treatment or punishment,
whatever the person has done and whatever threat he or she represents: Chahal v
United Kingdom (1996) 23 EHRR 413. Also, as the Tribunal in SB (cessation and
exclusion) Haiti [2005] UKIAT 00036 point out, a refugee (within the meaning of Art 1
of the Convention) who has lost the benefit of non-refoulement in terms of Art 33(2),
but who cannot be removed due to ECHR Art 3 considerations, remains a refugee.
2
See 12.103 below.
3
The Tribunal in IH (s 72; 'Particularly Serious Crime') Eritrea [2009] UKAIT 00012
at [14]: 'it must be established that the individual was in fact convicted of the
"particularly serious crime" and that he is in fact a "danger to the community";
reasonable grounds alone for so concluding will not suffice'.
4
R v Secretary of State for the Home Department, ex p Chahal [1994] Imm AR 107
at 113; Raziastarie v Secretary of State for the Home Department [1995] Imm AR 459
66
 at 464. See Goodwin-Gill at 12.5 fn 1 above, para 3.2, p 140. However in SB
(cessation and exclusion) Haiti [2005] UKIAT 00036 at para 81, a Tribunal chaired by
the then President rejected the contention that a balance must be struck under Art
33(2) between the risk to the refugee on refoulement and the danger which his
continued presence poses to the community. This meant that that the threshold for 'a
particularly serious crime' and 'danger' must be higher than if there were a balance to
be struck.
5
Re Chu and MCI 161 DLR 4th 499, 1 June 1998.
6
[1999] FCA 227, 16 March 1999, Australian Federal Court of Appeals.
7
See also Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998)
157 ALR 95. This appears analogous to the EC provisions on deportation, where the
criminal offences committed are not conclusive of deportation: see 7.133 above.

[12.101]

In the UK, conviction of an offence followed by a sentence of at least two years1 (and, until its
illegality was identified, conviction of an offence specified by Order),2 (whether in the UK or
abroad)3 carries a statutory presumption4 that the person has been convicted by final judgment of a
particularly serious crime and constitutes a danger to the community of the UK.5 The presumption
that the crime is particularly serious might seem irrebuttable on the face of the statute, but to so
treat it would defeat the fact-sensitive enquiry that the autonomous meaning of the Refugee
Convention demands;6 there is express provision to rebut dangerousness.7 In considering whether
the presumption has been rebutted, no account is to be taken of the gravity or likelihood of risk of
persecution.8 On refusing a person asylum as a refugee, the Secretary of State may issue a
certificate that a presumption under this provision applies to him or her9 and on appeal, the
appellate body must begin its substantive deliberation on the appeal by considering the certificate
and, if accepting that the presumption applies, having given the appellant an opportunity for
rebuttal, must dismiss the appeal insofar as it relies on refugee asylum grounds.10 Under the
Refugee Convention the Secretary of State bears the burden of proof 11 but this is effectively limited
to establishing the fact of conviction, from which point the onus is on the asylum seeker.12 It seems
unlikely that the drafters of the Refugee Convention envisaged two-year sentences marking a
crime as particularly serious and the offender as a danger to the community so that the protection
of the Refugee Convention may be withdrawn.13 The Qualification Directive enables Member
States to revoke, end or refuse to renew refugee status if there are reasonable grounds for
regarding the person to be a danger to the security of the state or, having been convicted of a
particularly serious crime he or she constitutes a danger to the community.14
1
Nationality, Immigration and Asylum Act 2002, s 72(2). The reference to a
sentence of imprisonment of at least two years does not include reference to
suspended sentences but does include references to sentences of detention in
institutions other than prisons (in particular a hospital or a young offenders institution)
and does include references to sentences of detention for indeterminate periods
(provided that they may last for two years): 2002 Act, s 72(11). It is important to note
that the presumption only applies if the sentence actually passed is two years or more,
not merely on conviction of an offence carrying such a sentence.

67
2
NIAA 2002, s 72(4)(a). Such an order must be made by statutory instrument and
shall be subject to annulment in pursuance of a resolution of either House of
Parliament: NIAA 2002, s 72(5). The offences listed in the Nationality, Immigration and
Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, SI
2004/1910, made under the section range from undoubtedly serious crimes of violence
or related to violence including manslaughter, kidnapping, possession of firearms with
intent to endanger life or injure property; rape, indecent assault, importation,
production or supply of Class A or Class B drugs; terrorism related offences including
directing terrorism, terrorist fundraising, terrorist weapons training or membership of a
proscribed organisation; other offences such as trafficking in prostitution, to minor
offences of theft, criminal damage and public order offences. The inclusion of minor
offences in the list caused the Court of Appeal in EN (Serbia) v Secretary of State for
the Home Department [2009] EWCA Civ 630 to hold that the order was ultra vires:
Stanley Burnton LJ at [82].
3
Where a person is convicted outside the UK, the rebuttable presumption applies if
the offender could have been sentenced to two years on conviction in the UK: s 72(3),
or the Secretary of State certifies that in his opinion the offence is similar to an offence
specified in the order: s 72(4)(b). Whether or not the use of Art 33(2) is appropriate in
the case of crimes committed abroad (and Art 1F(b) applies to offences committed
abroad before arrival in the country of refuge), the person cannot be removed in any
event by virtue of Art 3 of the ECHR.
4
NIAA 2002, s 72 (in force since 1 April 2003: SI 2003/754). Section 72(1) states
that the section applies 'for the purpose of the construction and application of Article
33(2) of the Refugee Convention (exclusion from protection)'. In N (Kenya) [2004]
UKIAT 00009 at para 21 the IAT was in no doubt (although their view was obiter) that,
as an interpretative provision, the section has retrospective effect and can therefore
apply to a person whose conviction and sentence occurred before the provision came
into force. The Tribunal recognised that there are difficulties in interpreting the
provision, especially with how the presumption is to be rebutted by evidence from the
claimant. In SB (cessation and exclusion) Haiti [2005] UKIAT 00036 a Tribunal chaired
by the President, sitting with the Deputy President (who had chaired in N (Kenya)),
concluded that s 72 can only apply to appeals brought under the 2002 Act itself - and
therefore only in respect of immigration decisions taken on or after 1 April 2003
(though clearly an immigration decision can be taken on the basis of a conviction that
pre-dates it).
5
NIAA 2002, s 72(2), (3) and (4). The presumption does not apply while an appeal
against conviction or sentence is pending or could be brought in time: NIAA 2002, s
72(7).
6
Stanley Burnton LJ in the Court of Appeal in EN (Serbia) v Secretary of State for
the Home Department [2009] EWCA Civ 630 at [66], [68].
7
NIAA 2002, s 72(6); see the Tribunal in IH Eritrea at [75] and [80]. Stanley Burnton
LJ in the Court of Appeal in EN (Serbia) v Secretary of State for the Home Department
[2009] EWCA Civ 630 at [46].
8
NIAA 2002, s 72(8) (by applying Anti-terrorism, Crime and Security Act 2001, s 34:
see 12.93 fn 7).
9
NIAA 2002, s 72(9)(b). The applicant must be notified of the certification and its
effects along with the notice of any immigration decision: see Immigration (Notices)
Regulations 2003, SI 2003/658, reg 5(5).

68
 10
NIAA 2002, s 72(9) and (10). If the appellate body agrees with the Secretary of
State's certificate to the effect that Art 33(2) applies, it does not go on to consider
whether or not the appellant is a refugee under Art 1A(2) of the Refugee Convention.
11
IH (s 72; 'Particularly Serious Crime') Eritrea [2009] UKAIT 00012 (9 March 2009)
at [13]; Stanley Burnton LJ in the Court of Appeal in EN (Serbia) v Secretary of State
for the Home Department [2009] EWCA Civ 630 at [66].
12
IH Eritrea (fn 11 above) at [78].
13
UNHCR expressed concern that section 72 'suggests an approach to Article 33(2)
of the 1951 Convention which is at odds with the Convention's objects and purposes'
(Briefing on the Nationality, Immigration and Asylum Bill, see Butterworths Immigration
Law Service at A[2671]). See Betkoshabeh at 12.100 fn 6 for a model application of
the true autonomous approach; a domestic reference point is permissible, see EN
Serbia (fn 6 above) at [40].
14
Qualification Directive, Art 14(4) and HC 395, para 339A(ix) and (x).

[12.102]

A refugee who has already been recognised and granted admission to the UK can only be expelled
to a country or territory other than that in which persecution is feared,1 in accordance with the
provisions of Article 32 of the Refugee Convention. First, this means that the only legitimate
grounds of expulsion are national security or public order. Secondly, except where compelling
reasons of national security otherwise require, 'the refugee shall be allowed to submit evidence to
clear himself, and to appeal to and be represented before competent authority'. Previous UK
practice provided an appeal only where the person was lawfully in the country at the date of the
decision,2 but following Chahal3 there is always an appeal before expulsion, at least where asylum
or human rights issues are raised, whether to the Tribunal under section 82 of the Nationality,
Immigration and Asylum Act 2002 as amended, or by virtue of section 2 of the Special Immigration
Appeals Commission Act 1997. Where a receiving country intends to remove a refugee lawfully, an
opportunity should be afforded for an alternative country of refuge to be found.4
1
As to which see Art 33 at 12.99 ff above.
2
NSH v Secretary of State for the Home Department [1988] Imm AR 389, CA.
3
Chahal v United Kingdom (1996) 23 EHRR 413, see 12.103 below.
4
Refugee Convention, Art 32(3). An attempt to expel a leading Saudi dissident,
Mohammed al-Masari, to Dominica failed in March 1996 when the appellate authority
held that Dominica was not safe. The attempt was notorious for the exposure of the
close links between diplomatic staff and arms salesmen (sometimes the same people),
and by ministers' admission that the proposed expulsion was demanded by the Saudi
authorities, and that the motivation for acceding to the demand was fear that billions of
pounds' worth of arms contracts would be lost by Mr al-Masari's continued presence in
the UK.

69
National security

[12.103]

National security can thus ground expulsion of asylum seekers and of recognised refugees by
virtue of Articles 33(2) and 32 of the Refugee Convention. But the phrase is not defined in the
Convention. In Rehman1 the House of Lords gave an extremely broad meaning to the phrase
'national security' in the context of a non-asylum deportation; see Chapter 15 below. However, the
ECHR in Chahal v United Kingdom2 confirmed that even where there are national security grounds
to expel an asylum claimant, Article 3 of the EHCR prohibits expulsion to a territory where there is
a real risk of torture. And it is to Chahal that the edifice of the SIAC is owed; the Strasbourg court
roundly condemned the 'advisory panel' procedure in national security expulsions as not providing
the necessary safeguards to the appellant - legal representation, information about the grounds for
the expulsion decision, and not sufficiently independent or open, to constitute a court or an
effective remedy for a potential breach of Article 3.3 Now, section 2 of the Special Immigration
Appeals Commission Act 1997 provides an appeal against expulsion, including on asylum and
human rights grounds. The special procedure adopted there means that the refugee or asylum
seeker does not hear all the evidence but his or her interests are represented in closed sessions
by a special advocate. The system is certainly a vast improvement on the discredited advisory
procedure, but still falls far short of the minimum requirements of fair trials set out in Article 6
ECHR.4
1
Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1
AC 153, [2001] 3 WLR 877.
2
(1996) 23 EHRR 413. See also Saadi v Italy (2009) 49 EHRR 730, [2008] Crim LR
898, ECtHR which confirms Chahal at [127], [139].
3
(1996) 23 EHRR 413, para 130.
4
See Chapter 8 'Fair Trial' abov

CONSEQUENCES OF RECOGNITION

[12.104]

Where the authorities recognise someone within their territory as a Convention refugee, they must
issue identity papers or a travel document to enable the refugee to travel outside the country of
asylum.1 The charge for its issue must not exceed the lowest scale of fees for national passports.2
Refugees must be readmitted to the state which issued the document at any time during its
validity.3 The Convention requires that refugees are granted the 'most favourable treatment
accorded to nationals of a foreign country' as regards trade union membership (Article 15), entry to
wage-earning employment (Article 17), self-employment (Article 18) and membership of the liberal
professions (Article 19). They should be given 'treatment as favourable as possible' as regards
housing (Article 21) and education (Article 22) and approximately the same treatment as nationals
with respect to public relief and assistance (Article 23), labour legislation and social security (Article
24).4 Their freedom of movement within the country of asylum is guaranteed by Article 26 and any
state may, at the time of signing, ratifying or acceding to the Convention, declare that it shall

70
extend to all or any territories for the international relations of which it is responsible (Article 40).5
The policy of the Convention is that after asylum has been given, refugees shall as far as possible
be integrated into their country of asylum and to that end contracting states are urged to expedite
naturalisation procedures.6 However, a person's recognition as a refugee does not entitle him to
the diplomatic protection of the country that has granted asylum.7

There has been a debate in the UK appellate authorities as to whether refugee status can be
backdated on an appeal against refusal of asylum being allowed.8 But the Divisional Court has
condemned the delays in the grant of status following a successful appeal, which can be severely
prejudicial to refugees.9
1
Refugee Convention, Art 28.
2
Refugee Convention, Sch, para 3.
3
Refugee Convention, Sch, para 13. Thus a Somali refugee with indefinite leave to
remain who had stayed in Ethiopia for over two years caring for a sick relative was
wrongly refused re-entry as a returning resident since his refugee travel document was
still valid: R v Secretary of State for the Home Department, ex p Shirreh (CO
2194/1997) (15 August 1997, unreported), QBD (permission; the case was conceded
by the Home Office).
4
In UK practice community support, housing, education (including language
learning) access to health services, social security benefits and employment are
perceived as the essential elements of refugee integration: Home Office Immigration
and Nationality Directorate The Integration of Recognised Refugees in the UK (1999).
Refugees are treated as own nationals for the purpose of health care, social security
and housing, and as home students for education fees and grants purposes. There are
no employment restrictions on recognised refugees.
5
Under Art 40(2) extensions can be made after the Convention is in force by
notifying the Secretary-General of the UN. The UK currently extends the Convention to
the Channel Islands and the Isle of Man and to the Falkland Islands, St Helena and
Montserrat (though a refugee recognised in the UK will be subject to the same
restrictions on travelling to and staying in the Overseas Territories as would a British
citizen - see Fransman British Nationality Law).
6
Refugee Convention, Art 34.
7
R (on the application of Al Rawi) v Secretary of State for Foreign and
Commonwealth Affairs [2006] EWHC 972 (Admin), [2006] NLJR 797, (2006) Times, 19
May. Thus there was no obligation on the UK government even to consider making
representations to the government of the USA on behalf of claimants recognised in the
UK as refugees and detained in Guantanamo Bay; there was an obligation to consider
making representations in respect of British citizens: R (on the application of Abbasi) v
Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598,
(2002) Times, 8 November.
8
The Tribunal in Haibe [1997] INLR 119 held that because refugee status is not
granted but recognised, in an appropriate case it is open to the appellate authority to
declare that the status of refugee existed at the date of the decision or other
appropriate date, and a direction can be given to that effect. Another Tribunal in Altun
(16628) 17 July 1998 disapproved Haibe, saying that nothing in the Immigration Act
1971 allows directions of a retrospective nature and that it is no part of the appellate
authorities' function, nor does the Refugee Convention require them to determine
exactly when a person became a refugee. Any direction given by the Tribunal on

71
 allowing an appeal counts as part of its determination for appeal or review purposes:
Nationality, Immigration and Asylum Act 2002, s 87(4).
9
'It would wholly undermine the rule of law if the Secretary of State could simply
ignore a ruling without appealing it, nor could he deliberately delay giving effect to it':
Elias J in R v Secretary of State for the Home Department, ex p Mersin [2000] INLR
511, QBD. A successful appellant has a right to be granted refugee status unless or
until there was a change in the position. See also R (on the application of Saribal) v
Secretary of State for the Home Department [2002] EWHC 1542 Admin; R (on the
application of Boafo) v Secretary of State for the Home Department [2002] EWCA Civ
44, [2002] 1 WLR 1919, [2002] Imm AR 383; and TB (Jamaica) v Secretary of State
for the Home Department [2008] EWCA Civ 977, (2008) Times, 9 September.
[12.105]

Where a refugee has left the country of refuge and entered another territory and lived there lawfully
for a period of time, the Refugee Convention envisages that the responsibility for the issue of a
further travel document may become that of the second country of residence.1 The circumstances
when this might happen are uncertain; a refugee has no right to have asylum transferred to a
country in which he or she has temporary residence. In order to eliminate ambiguity, Member
States of the Council of Europe drew up the European Agreement on Transfer of Responsibility for
Refugees2 which provides for the transfer of responsibility after two years' continuous lawful
residence other than for the purposes of study, training, medical visit, or a period of imprisonment, 3
or if the refugee has been permitted to stay beyond the validity of his or her travel document from
the first state (unless the extension beyond validity was for study or training, or the refugee is still
re-admissible to the first state). The Agreement does not, however, assist in cases of unlawful
residence, nor does it provide any mechanism or criteria for transfer of lawful residence.4 Current
Home Office policy is to consider cases falling outside the European Agreement on a case-by-case
basis, accepting responsibility only where the UK clearly is the most appropriate place of long-term
refuge. Factors which will be considered include the length of time spent in the first country, the
strength of ties there compared with the UK and any compelling compassionate circumstances.5
For short-term visa-free travel, the European Agreement on the Abolition of Visas for Refugees
19596 enables refugees resident in a contracting state and possessing a valid travel document
issued under the Refugee Convention to travel without a visa to any other contracting state7 for
visits of up to three months.8 The UK has suspended its obligations under the Agreement, and
refugees living in contracting states now need visas to enter.9
1
Refugee Convention, Sch, para 11.
2
16 October 1980, European Treaty Series (ETS) 107, Cmnd 8127. Currently in
force for: Denmark, Finland, Germany, Italy, Netherlands, Norway, Poland, Portugal,
Romania, Spain, Sweden, Switzerland and UK. (The following Council of Europe
Member States have signed but not yet ratified the Agreement: Belgium, Czech
Republic, Greece and Luxembourg.)
3
European Agreement on Transfer of Responsibility for Refugees 1980 above, Art
2.
4
See Rahman [1989] Imm AR 325 for a case where the appellate authority
exercised a broad discretion on a transfer of status case. An appeal on human rights
grounds would be available where an immigration decision involved a refusal to
transfer status and meant continued separation from close family members.
72
 5
API on 'transfer of refugee status', s 3.
6
20 April 1959, UNTS 85, ETS 31, reproduced in Butterworths Immigration Law
Service, 2D[1].
7
Belgium, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland,
Ireland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Poland,
Portugal, Romania, Slovakia, Spain, Sweden, Switzerland and the UK. Armenia and
Cyprus have signed but not yet ratified the Agreement.
8
See also Shramir v Secretary of State for the Home Department [1992] Imm AR
542, IAT.
9
France suspended its obligations under the Agreement (in accordance with Art 7)
in 1986, and the UK followed suit in February 2003. See Declaration of suspension
contained in a letter from the Permanent Representative of the United Kingdom, dated
7 February 2003, registered at the Secretariat General of the Council of Europe on 7
February 2003 and with effect from 11 February 2003. For the Secretary of State's
justification for suspension see Hansard HC 7 February 2003, Col 31WS.

Refugees in the EU

[12.106]

Until refugees obtain the nationality of the country of refuge, they will not be entitled to freedom of
movement rights as EU nationals. Article 45 of the Treaty on the Functioning of the European
Union (ex Art 39 of the EC Treaty) dealing with the freedom of movement of workers does not
apply to refugees. Apart from the European Agreements noted above, adopted within the
framework of the Council of Europe in 1959 and 1980, the only other measure designed to give
refugees rights within Europe was the 1964 EEC Council of Ministers' declaration that:
''the entry to their territories for the purpose of engaging in a paid activity there, of refugees recognised as such within
the meaning of the Convention of 1951 and established in the territory of another Member State of the community
should be examined with particular favour, particularly so as to afford to such refugees within their territories the most
favourable treatment possible.''

Further to this declaration, Council Regulation (EEC) 1408/711 provided that refugees resident in
the territory of a Member State are entitled to the same social security benefits as nationals of that
state, a measure which did no more than Europeanise Article 24 of the Refugee Convention.
1
Article 2(3).
[12.107]

From the mid-1980s EU Member States' asylum policy was restricted to trying to stop 'irregular
movements' - in practice, all movement of refugees into EU territory, by treating asylum seekers as
essentially a policing problem. The early products of the work of the Ad Hoc Working Group in this
field are described in the fifth edition of this work at 12.103. After 1993, when the Treaty on
European Union institutionalised the inter-governmental character of immigration and asylum
issues (apart from visa policy) in the Third Pillar of the Treaty, there was an attempt to harmonise
criteria, procedures,1 reception conditions2 and refugees' rights3 within the EU. The non-binding
Joint Position of March 19964 was the main fruit of this process. It was the first attempt to reconcile

73
the varying interpretations of the Convention by the Member States. Although welcomed in
Robinson,5 the Joint Position was dismissed in Adan6 as no more than a political agreement which
was not particularly useful.
1
See eg Resolution on minimum guarantees for asylum seekers and refugees, 21
June 1995, OJ 1996 C 274, 19 September 1996.
2
Draft Joint Action on the minimum conditions for the reception of asylum seekers,
17 August 1995, ASIM 223.
3
Draft Council Act adopting a common action on certain aspects on the status of
refugees recognised by the Member States of the EU, 6784/95.
4
Joint Position of 4 March 1996 defined by the Council on the basis of Art K3 of the
Treaty on European Union on the harmonised application of the term 'refugee' of Art 1
of the Convention relating to the status of refugees (Geneva, 28 July 1951),
96/196/JHA, reproduced in Butterworths Immigration Law Service, 2D[138].
5
Robinson v Secretary of State for the Home Department [1997] Imm AR 568.
6
On the issue of agents of persecution: R v Secretary of State for the Home
Department, ex p Adan [1999] Imm AR 521, [1999] INLR 362, CA. See also Lord
Steyn [2001] INLR 44 at 57, HL.
[12.108]

In 1997 the Treaty of Amsterdam1 resulted in immigration and asylum policy as a whole being
taken into Community competence. Title IV inserted visas, asylum, immigration and other policies
related to free movement of persons into the EC Treaty. Now see Title V of the Treaty on the
Functioning of the European Union. In accordance with the Treaty of Amsterdam, the European
Commission has over the last five years drawn up proposals for new Regulations and Directives for
approval by the Council of Ministers (thereby giving them legislative effect). So far, the Council of
Ministers has approved a Directive on Family Reunion;2 a Directive laying down minimum
standards for the reception of asylum seekers;3 a Directive on temporary protection;4 a Directive
setting out the minimum standards for the qualification and status of third country nationals and
stateless persons as refugees or as persons who otherwise need international protection (the
'Qualification Directive');5 and a Directive on minimum standards on procedures in Member States
for granting and withdrawing refugee status (the Procedures Directive)6; two Regulations on
Eurodac, the European fingerprint data and exchange system,7 and a Council Regulation
'establishing the criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a third-country national'.8
1
Signed on 2 October 1997 by 15 Member States.
2
Council Directive 2003/86/EC of 22 September 2003. The UK and Ireland and
Denmark however have opted out.
3
Council Directive 2003/9/EC of 27 January 2003. Ireland and Denmark have opted
out The UK government has amended the Immigration Rules to take account of this
Directive, particularly the right of asylum seekers whose claim has not been dealt with
to request permission to seek employment after a year: see HC 395, paras 357-361,
making up Part 11B (as inserted by HC 194 from 4 February 2005).
4
Council Directive 2001/55 (OJ 2001 L212/12). See 12.173 below.
5
Council Directive 2004/83/EC of 29 April 2004: the 'Qualification Directive' (30.9.04
OJ L304/12), which came into force on 20 October 2004 and in accordance with

74
 Article 38 had to be implemented by Member States in national measures by 10
October 2006. The UK has domestically implemented the Directive, from 9 October
2006, by way of the Refugee or Person in Need of International Protection
(Qualification) Regulations 2006, SI 2006/2525 and by inserting provisions into the
Immigration Rules by Cm 6918.
6
Council Directive 2005/85/EC of 1 December 2005. The Directive entered into
force on 2 January 2006 and it required that Member States shall bring into force the
laws, regulations and administrative provisions necessary to comply with the Directive
by 1 December 2007, to be applied to all applications for asylum lodged after that date
(but also only to applications for asylum lodged after that date) and to procedures for
the withdrawal of refugee status commenced after that date. The UK has domestically
implemented the Directive, from 1 December 2007, principally by inserting provisions
into the Immigration Rules by HC 82. See also the Asylum (Procedures) Regulations
2007, SI 2007/3187.
7
Council Regulation 2725/2000 (OJ 2000 L 316/1); Council Regulation 407/2002
implementing the Eurodac Regulation (OJ 2002 L 62/1).
8
Council Regulation (EC) No 343/2003 of 18 February 2003, the 'Dublin II
Regulation' replacing the Dublin Convention. Denmark however has opted out
(Regulation preamble, para 18) and accordingly the Dublin Convention will remain in
force and will continue to apply as between Denmark and the other Member States
(Regulation preamble, para 19). See also Commission Regulation (EC) No 1560/2003
of 2 September 2003 laying down detailed rules for the application of the 'Dublin II
Regulation' and see further 12.150 ff.
[12.109]

EU nationals are not prevented from applying for asylum in another Member State,1 but their
claims must be assessed against the presumption contained in the 1997 Protocol to the EC Treaty2
that 'given the level of protection of fundamental rights and freedoms, Member States shall be
regarded as constituting safe countries of origin in respect of each other for all legal and practical
purposes in relation to asylum matters'. Applications may be considered or declared admissible
only if the applicant's Member State has taken measures derogating from the ECHR, or the
Council determines that the Member State in question is in serious and persistent breach of
principles of liberty, democracy, respect for human rights and fundamental freedoms,3 or if the
procedure for such a determination has been initiated. If a Member State unilaterally decides to
consider an asylum claim and none of these conditions apply, the Council must be immediately
informed, and the application will be dealt with as manifestly unfounded. The presumption in
Protocol 24 therefore applies to asylum claims made by nationals of all EU states and in practice,
in the UK, such asylum claims will be refused and certified as 'clearly unfounded'.4
1
However, the 'Qualification Directive' (see 12.108 fn 3 above) does not apply to EU
nationals as it applies only to the qualification and status of third country nationals or
stateless persons as refugees or as persons who otherwise need international
protection. See also HC 395, para 357 (as inserted by HC 194 from 4 February 2005)
which declares that Part 11B of the Immigration Rules, dealing with 'reception
conditions for non-EU asylum applicants' only applies to asylum applicants who are
not nationals of a Member State.
2
Protocol No 24 to the Treaty on the European Union and to the Treaty on the
Functioning of the European Union on asylum for nationals of Member States of the
75
 European Union, (originally Protocol No 29 to the TEU added by the Treaty of
Amsterdam in 1997).
3
Treaty on European Union, Arts 6 and 7.
4
Currently under the Immigration (European Economic Area) Regulations 2006, SI
2006/1003, Sch 2, para 4(4)

UK PRACTICE ON ASYLUM

The application

[12.110]

One of the few provisions of the Asylum and Immigration Appeals Act 1993 that remains in force
defines an asylum claim as a claim that it would be contrary to the UK's obligations under the
Refugee Convention for the person to be removed from or required to leave the UK.1 Under the
Immigration Rules, an asylum applicant is a person who makes a request to be recognised as a
refugee under the Geneva Convention on the basis that it would be contrary to the UK's obligations
to remove or require the person to leave the UK or otherwise makes a request for international
protection.2 The Immigration Rules have been substantially amended3 in order to implement the
EU Council Directive on minimum standards on procedures in Member States for granting and
withdrawing refugee status.4 The Rules now contain detailed procedural provisions which apply to
the consideration of applications for asylum and humanitarian protection.5 The asylum application
will be determined in accordance with the UK's obligations under the Convention and will be
granted if the applicant is in the UK or has arrived at a port of entry in the UK, is a refugee as
defined in the Refugee Qualification Regulations6, there are no reasonable grounds for regarding
the person as a danger to the security of the UK, the person does not constitute a danger to the
community of the UK, and refusing his or her application would result (whether immediately or after
the expiry of leave) in refoulement contrary to the Convention.7 An application which does not meet
those criteria will be refused.8 A person who has claimed asylum may not be removed from the UK
whilst the claim is pending, ie until he or she is given notice of the Secretary of State's decision on
the claim,9 unless the application is certified on safe third country grounds (as to which see below
under 'Removal to Safe Third Countries'). Nor may the person be removed whilst an appeal
against an immigration decision, brought within the UK is pending10 or whilst the Secretary of State
decides whether to treat representations made by a failed asylum seeker as a fresh claim for
asylum.11 If an asylum applicant requests the return of his or her passport from the Home Office for
the purpose of leaving the UK, the passport will only be returned if the person signs a declaration
acknowledging that the asylum claim will be treated as withdrawn upon return of the passport. 12 If
an applicant withdraws a claim for asylum or is treated as having done so, consideration of the
claim will be discontinued.13 Entry clearance officers have a discretion to accept an application for
entry clearance to come to the UK as a refugee, albeit there is no provision in the rules for such an
application.14 The discretion would be exerciseable where the applicant has a prima facie claim to
be a refugee; he or she has close ties with the UK (eg close family in the UK meaning spouse,
minor children or parents or grandparents over the age of 65 or in exceptional circumstances,

76
parents or grandparents under 65 or other family members aged 18 or over or periods spent in the
UK as a student) and the UK is the most appropriate country of asylum.15
1
Asylum and Immigration Appeals Act 1993, s 1;
2
HC 395, para 327. There is no specific definition of 'international protection' in the
rules. Other definitions of 'asylum claim' appear in other statutory contexts. Eg for the
purpose of the appeals provisions of the Nationality, Immigration and Asylum Act
2002, s 113(1) defines an asylum claim as a claim made by a person to the Secretary
of State at a place designated by him that to remove the person from the UK would
breach the UK's obligations under the Refugee Convention. Section 12 of the IAN
2006 (when it comes into force) will substitute a new definition of 'asylum claim' for the
purpose of the appeals provisions which will be similar to the definition in s 1 of the
Asylum and Immigration Appeals Act 1993. In contrast to the current definition, it does
not specify to whom the claim must be made, nor does it specify where it must be
made. The new definition makes provision for subsequent claims to be disregarded in
circumstances determined by the Immigration Rules. The provision also substitutes a
new definition of 'human rights claim' in similar terms. Other definitions of 'asylum
seeker' are provided by Nationality, Immigration and Asylum Act 2002, s 18 relating to
the statutory provisions concerned with 'accommodation centres' and Immigration and
Asylum Act 1999, s 94(1) in relation to support for asylum seekers.
3
By HC 82, laid before Parliament on 19 November 2007.
4
Council Directive 2005/85/EC of 1 December 2005.
5
HC 396, para 326A.
6
The Refuguee or Person in Need of International Protection (Qualification)
Regulations 2006, reg 2.
7
HC 395, para 334.
8
HC 395 para 336
9
Nationality, Immigration and Asylum Act 2002, s 77 and HC 395, para. 329.
10
Nationality, Immigration and Asylum Act 2002, s 78. In R (Kagabo) v Secretary of
State for the Home Department [2009] EWHC 153 (Admin), Pitchford J held that
section 78 of the 2002 Act does not protect a person from being removed from the UK
during the period in which she has sought to institute a first instance appeal to the
Tribunal by lodging notice of appeal out of time but before a preliminary decision has
been made by the Tribunal on whether to extend time. However, a decision to remove
while an extension of time application is awaiting decision is reviewable by the High
Court in proceedings for judicial review.
11
HC 395, para 353A.
12
API 'Travel abroad'.
13
HC 395, para 333C, as amended. An application may be treated as impliedly
withdrawn if the applicant fails to attend for interview and fails to demonstrate within a
reasonable time that the non-attendance was due to circumstances beyond his or her
control. A subsequent application would be considered under para 353 of the Rules, ie
as to whether it constitutes a fresh claim for asylum. See also API 'Withdrawal of
Applications'.
14
API 'Applications from abroad' (undated).
15
API 'Applications from abroad'.

77
Dependants of asylum applicants

[12.111]

A spouse, civil partner, unmarried or same sex partner or minor child accompanying a principal
applicant may be included in his or her application for asylum as a dependant, subject to the
consent of each adult dependant1 or may make an asylum claim in his or her own right, which will
be considered individually, and which should be made as soon as possible.2 If the principal
applicant is granted asylum and leave to enter or remain, dependants will be granted leave to enter
or remain for the same duration.3 The parents of an asylum seeking child cannot be treated as his
or her dependant, nor can a child be treated as the dependant of another child other than where
the children are married to each other or are in a civil, same-sex or unmarried partnership.4 A
person who has been treated as a dependant may claim asylum in his or her own right5 at any
time, including after refusal of the principal applicant's claim and exhaustion of any rights of appeal
that the principal applicant had6 and such a claim will be given individual consideration.7 This
applies equally to the dependants of a person whose asylum claim is refused on exclusion grounds
or in reliance on Article 33(2) of the ECHR; their claims must be considerd on their own merits and
they cannot simply be excluded because of the actions of the principal applicant.8 However,
adverse inferences as to credibility may be drawn from failure to claim asylum at the earliest
opportunity, absent a reasonable explanation for the failure.9 Moreover, a former dependant who
claims asylum may previously have been given a one-stop notice10 and if he or she failed to raise
asylum in a statement of additional grounds, the Secretary of State will consider certification of the
claim under the Nationality, Immigration and Asylum Act 2002, s 9611 and the making of a
certificate under section 96 will prevent the person from appealing (see further under 'Procedure on
Asylum Appeals' as to certification). The application has to be made by personal attendance at the
Liverpool or Croydon screeing unit.12 A previous edition of this work said that where the principal
claimant is refused asylum and a dependant has already been refused in his or her own right, the
dependant may be removed immediately, regardless of any right of appeal that the principal
asylum seeker wishes to exercise.13 However, the main authority relied on for that proposition was
decided before the Human Rights Act 1988 came into force and without considering Article 8 of the
ECHR.14 It can at least be said that the Secretary of State is bound to take into account that a
family member has a pending appeal before removing others who have exhausted their appeal
rights.15 Where a principal applicant's claim has been refused and certified as clearly unfounded
and his or her dependants then claimed asylum, the erstwhile principal applicant 'would not
normally' be removed pending a decision on the dependant's claim and pending the determination
of any appeal that the dependant may have16 although removal would normally be appropriate if
the family had chosen to live separately.17 Moreover, the Qualification Directive now obliges the UK
to ensure that family unity can be maintained18 and the removal of a family member of a person
whose entitlement to refugee status is yet to be determined by the Tribunal would be inconsistent
with that obligation.
1
HC 395, para 349.
2
HC 395, para 349.
3
HC 395, para 349.

78
 4
Asylum Process Guidance: special cases: processing an asylum application from
a child: policy relating to dependent children.
5
HC 395, para 349.
6
Asylum Process Guidance: post-decision representations: 'Swap Over Claims'.
7
HC 395, para 349.
8
API 'Articles 1F and 33(2) of the 1951 Refugee Convention' October 2006, section
10 and the general principle, acknowledged in the rules that asylum, humanitarian
protection and human rights claims will be assessed on an individual basis - HC 395,
para 339J.
9
HC 395, para 349.
10
Nationality, Immigration and Asylum Act 2002, s 120.
11
See fnn 4 and 6 above.
12
Asylum Process Guidance: post-decsion representations: 'Swap Over Claims:
Previous Dependants Claiming Asylum by Post'.
13
In para 12.183 of the 6th edition. The footnote accompanying that text was as
follows: 'HC 395, para 349. Where serial asylum claims are made by a husband and
wife, a decision to remove the husband after the dismissal of his appeal but before his
wife's was held not to be Wednesbury unreasonable or a breach of Arts 6 or 8 of the
ECHR in R v Secretary of State for the Home Department, ex p Polat (7 November
1996, unreported), QBD. See also R v Secretary of State for the Home Department, ex
p Uzun [1998] Imm AR 314; R v Secretary of State for the Home Department, ex p
Yolamba [1997] Imm AR 564, QBD'. In fact, there was no consideration of Article 8 in
Polat and Laws J (as he then was) who decided Polat also gave permission to appeal
his decision. The other two cases, Uzun and Yolamba were applications for
permission to apply for judicial review.
14
In fact Polat did not consider whether the decision breached Article 8 of ECHR.
Polat, Uzun and Yolamba all pre-dated the Human Rights Act 1998 coming into force,
although the latter two decisions did consider Article 8.
15
R (E and others) v Secretary of State for the Home Department [2006] EWHC
3208 (Admin).
16
Asylum Process Guidance: 'Certification under section 94 of the NIA Act 2002',
section 5.6.
17
As in fn 16 above.
18
Qualification Directive, Art 23(1).
Credibility

[12.171]

English courts have not given the same assistance to appellate authorities dealing with credibility in
the context of asylum claims1 as has been given by the Canadian courts,2 which have held that 'when
an applicant swears to the truth of certain allegations, this creates a presumption that those
allegations are true unless there be reason to doubt their truthfulness',3 and that 'a reasonable margin
of appreciation be applied to any perceived flaws in the claimant's testimony'. 4 But decisions based
on adverse credibility have been subjected to careful scrutiny by the Tribunal and the Administrative
Court to ensure that they are properly reasoned and take account of relevant evidence, 5 and
appellate bodies' unsupported assertions that a witness is not credible are no longer acceptable.
Questions of credibility are, however, matters for the Tribunal of fact, which should be cautious in
rejecting as incredible an account by an anxious and inexperienced asylum seeker, whose reasons

79
for seeking asylum may well be expected to contain inconsistencies and omissions in the course of
its revelation to the authorities and investigation on appeal;6 as Mr Justice Blake observed:
''most people who have experience of obtaining a narrative from asylum seekers from a different language or different
culture recognise that time, confidence in the interviewer and the interview process and some patience and some specific
direction to pertinent questions is needed to adduce a comprehensive and adequate account. This is particularly the case
where sexual assaults are alleged and all kind of cultural and gender sensitive issues may be in play as to why the full
picture is not disclosed early on'.7

The Tribunal has noted that 'It is perfectly possible for an adjudicator to believe that a witness is not
telling the truth about some matters, has exaggerated the story to make his case better, or is simply
uncertain about matters, but still to be persuaded that the centrepiece of the story stands'.8 The API
go less far but acknowledge the need to sometimes give the benefit of the doubt and states:: '
''In assessing the internal credibility of a claim, decision makers should be aware that there may be mitigating reasons
why an applicant is incoherent, inconsistent or delays providing details of material claimed facts. These reasons should
be taken into account when considering the credibility of a claim. Such factors may include the following (the list is not
exhaustive): mental or emotional trauma, inarticulateness, fear, mistrust of authorities, feelings of shame, painful
memories particularly those of a sexual nature.'9'

A person may be disbelieved entirely about his or her claimed history of persecution but still be found
to be at risk of being persecuted in the future.10
1
The Refugee Legal Centre has produced a useful training document: 'Issues
arising from "credibility", procedure and evidence before the appellate authorities'
containing references to Canadian, US, New Zealand and Australian case law to
supplement that of the UK courts. See further Catriona Jarvis The Judge as Juror
revisited [2003] Immigration Law Digest (Winter) p 7; Amanda Weston A Witness of
Truth - Credibility Findings in Asylum Appeals (1998) INLP, vol 12, No 3; Dr Stuart
Turner Discrepancies and Delays in Histories Presented by asylum seekers:
Implications for Assessment, Traumatic Stress Clinic, 18 Dec/1996; Herlihy et al
'Discrepancies in autobiographical memories: implications for assessment of asylum
claims', BMJ 2002, 324-7 (available on BMJ website); Regina Graycar The Gender of
Judgments: An Introduction, in Feminist Legal debates, ed Margaret Thornton, OUP
1995; Professor Patricia J Williams The Obliging Shell (An informal Essay on Formal
Equal Opportunity) in After Identity, ed. Danielson and Engle, Routledge 1995; Sir
Thomas Bingham The Judge as Juror: Judicial Determination of Factual Issues 1985
Current Legal problems; The Challenge of Asylum to Legal Systems, ed Prakash Shah
(2005), Cavendish; and the Canadian Guidelines, below.
2
The Immigration and Refugee Board has produced a useful guide 'Assessment of
Credibility in Claims for Refugee Protection' (January 2004), setting out all relevant
Federal Court of Appeal decisions on various aspects of credibility. It is available on
the Immigration and Refugee Board website http://www.irb.gc.ca.
3
Maldonado v Canada (Minister of Employment and Immigration) [1980] 2 FC 302,
CA, cited in Hathaway 12.22 fn 2 above, p 84. See also RR (challenging evidence) Sri
Lanka [2010] UKUT 000274 (IAC) for the best UK approach on this issue.
4
Attakora (Benjamin) v Minister of Employment and Immigration, FCA Decision A-
1091-87, 19 May 1989, cited in Hathaway above, p 85. The UN Committee Against
Torture has made the same point, saying that 'complete accuracy is not to be
expected from victims of torture', in Alan v Switzerland [1997] INLR 29. And in
Hrickova (00TH 02034) (9 August 2000, unreported), IAT, inconsistencies in the

80
 account of a Slovak Roma of stabbing and gang rape were 'properly explained by the
nature of human recollection, particularly dealing with traumatic incidents'.
5
See cases cited in Chapter 19 below on 'making a determination'.
6
Hathaway above, pp 84-88; Re SA, NZRSAA 1/92 (NZ); Matter of SMJ Interim
Decision 3303 (BIA) 1997 (US); Kopalapillai v Minister for Immigration and
Multicultural Affairs [1997] 1510 FCA (24 December 1997) (Aus).
7
R (on the application of Ngirincuti) v Secretary of State for the Home Department
[2008] EWHC 1952 (Admin).
8
Chiver (10758); see also Guo v Minister for Immigration and Ethnic Affairs (1996)
64 FRC 151 at 194, a decision of the full court of the Federal Court of Australia.
Elevation of peripheral matters into matters of determinative weight was held unlawful
in R (on the application of Choudrey) v Immigration Appeal Tribunal [2001] EWHC
Admin 613, [2001] All ER (D) 04 (Aug).
9
API on 'Assessing credibility in asylum and human rights claims'.
10
Daoud v Secretary of State for the Home Department [2005] EWCA Civ 755,
[2005] All ER (D) 259 (May).

[12.172]

Since it is not in the nature of repressive regimes and societies to behave reasonably, the strange
or unusual cannot be dismissed as incredible or improbable, particularly if there is supporting
material of similar accounts in the relevant human rights literature, and decision-makers should
constantly be on their guard to avoid implicitly recharacterising the nature of the risk based on their
own perceptions of reasonability.1 An assessment of credibility can only be made on the basis of a
complete understanding of the entire picture.2 The approach of the UN Committee on Torture
emphasises the importance of a consistent pattern of gross, flagrant or mass violations of human
rights in the assessment of risk.3 There are also difficulties in drawing conclusions on credibility from
the manner in which evidence is given, usually through an interpreter, by a person from a different
society and cultural background.4 Nonetheless decision-makers are generally encouraged to make
definite findings on credibility before concluding on future risk - rather than approaching the matter
by firstly determining whether a claim for refugee status could be made out on the basis that all that
the applicant says is true before considering whether or not the evidence is credible.5 Further judicial
guidance on a cautious approach to questions of credibility was given in Ex p Chunu Miah.6
1
Hathaway 12.22 fn 2 above, p 81. See HK v Secretary of State for the Home
Department [2006] EWCA Civ 1037; Y v Secretary of State for the Home Department
[2006] EWCA Civ 1223; Kasolo (13190); Mendes (12183) and cases cited in Chapter
19 below. A number of influential Canadian and Australian cases have held that
adverse findings on plausibility should be made only in the clearest of cases: see eg
Divsalar v Canada [2002] FCT 653, [2002] FCJ 875; Shenoda v Canada (2003) FCT
207; WAIJ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 74. But
the Tribunal prefers a more robust approach: see MM (plausibility) (DRC) [2005]
UKIAT 00019 'IAT reported'.
2
Horvath v Secretary of State for the Home Department [1999] INLR 7, [1999] Imm
AR 121, IAT; R v Immigration Appeal Tribunal, ex p Ahmed (Sardar) [1999] INLR 473.
But this only applies where country conditions are relevant: see R (on the application
of Shokrollahy) v Immigration Appeal Authority [2000] Imm AR 580, QBD; R v

81
 Secretary of State for the Home Department, ex p Befekadu [1999] Imm AR 467,
QBD. The API on 'assessing credibility in asylum and human rights claims', under the
heading 'external credibility', states that where there is objective country information to
support the applicant's account of a past or present event, and the applicant's account
is internally consistent, the material claimed fact may be accepted by the decision-
maker.
3
Mutombo v Switzerland (Communication No 13/93) unreported, UNCAT (cited in
Alan v Switzerland [1997] INLR 29).
4
The observations of Webster J in R v Secretary of State for the Home Department,
ex p Patel [1986] Imm AR 208, QBD are a salutary reminder of the dangers of adverse
findings against a person from a different cultural background speaking through an
interpreter. See the materials cited above at 12.171 fn 1.
5
See the approach of the CA in Jin Tao He v Secretary of State for the Home
Department [2002] EWCA Civ 1150, [2002] Imm AR 590 and in Mishto v Secretary of
State for the Home Department [2003] EWCA Civ 1978: contrast Guine (13868).
6
(CO 2318/1994) (12 October 1995, unreported), QBD, see Butterworths
Immigration Law Service, IV[99].
[12.173]

Before 1993, in the absence of a right of appeal a judicial approach had evolved of ensuring that
conclusions founded on credibility were not made without an opportunity for the asylum seeker to
comment on specific issues.1 The introduction of in-country rights of appeal removed direct scrutiny
of adverse findings in decision letters by the High Court. Instead, the appellant is required to deal
with adverse findings by evidence on the appeal. The test laid down in Musisi of 'anxious scrutiny'2
is now applied by the Administrative Court not so much to the Secretary of State's original decision
as to the appellate process (except in cases where there is no in-country right of appeal).3 There is
a tension between the appellate function4 and the prospective nature of the question at issue in
asylum claims, which makes the appeal hearing part of the determination process.5 This has
surfaced in appeal hearings where credibility is challenged for the first time; if the facts have not
been put in issue by the Home Office, the prospective nature of the question should not necessitate
a review of those facts.6 An opportunity to deal with matters of credibility must be given during the
appeal hearing, and if fresh issues are to be raised, the appellant will need sufficient time to deal
with them, which may require an adjournment.7
1
For the principles of fairness in cases where there was no right of appeal see R v
Secretary of State for the Home Department, ex p Thirukumar [1989] Imm AR 402,
CA; Gaima v Secretary of State for the Home Department [1989] Imm AR 205; R v
Immigration Appeal Tribunal, ex p Akdogan [1995] Imm AR 176, per Brooke J.
2
[1987] AC 514 at 531.
3
R v Immigration Appeal Tribunal, ex p Ali (Omar) [1995] Imm AR 45, QBD. Where
there is no suspensive right of appeal, the Administrative Court will be concerned with
the Secretary of State's decision that the claim is clearly unfounded, and in that
context, must treat the claimant's account as credible, regardless of adverse credibility
findings by the Secretary of State, unless no reasonable decision-maker could believe
it: R (on the application of L) v Secretary of State for the Home Department [2003]
EWCA Civ 25, [2003] Imm AR 330, [2003] INLR 224.
4
The Tribunal is required to decide whether the decision under appeal was in
accordance with the law or the rules: Nationality, Immigration and Asylum Act 2002, s
82
 86(3)(a), The 1999 Act contained explicit jurisdiction to review the 'facts on which the
decision or action is based': Immigration and Asylum Act 1999, Sch 4, para 21.
5
Ravichandran (Senathirajah) v Secretary of State for the Home Department [1996]
Imm AR 97 at 112-113. This applies equally on appeals on human rights grounds: R
(on the application of Razgar) v Secretary of State for the Home Department [2004]
UKHL 27, [2004] 3 WLR 58 at para 20. For this purpose, NIAA 2002, s 85(4) enables
the Tribunal to consider any relevant evidence, including evidence about post-decision
facts.
6
Ad hoc challenges to credibility also make a nonsense of the power to give pre-
hearing directions to identify and limit the issues in the appeal, in r 45 of the Asylum
and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230. However, the Tribunal
has held that the Secretary of State's representative at a hearing is entitled to cross-
examine on issues not specifically raised in the refusal letter: see eg. D (Iran) [2003]
UKIAT 00087: 'Unless there is a specific concession, the refusal letter does not fetter
or limit the scope of the case to be pursued by the Secretary of State'. Where however
the facts are agreed, or the Secretary of State makes a concession that an appellant is
telling the truth about specific matters or generally, the Tribunal should not go behind
it: R (on the application of Ganidagli) v Immigration Appeal Tribunal, [2001] EWHC
Admin 70; Carcabuk and Bla (00TH01426) (18 May 2000, unreported), IAT. In
Davoodipanah v Secretary of State for the Home Department [2004] EWCA Civ 106,
[2004] All ER (D) 285 (Jan), the Court of Appeal held that a concession made by either
party may be formally withdrawn on appeal if the appeal court considers that there is
good reason to take that course, but otherwise, the appeal court should not revisit
issues relevant to a concession clearly made to a first instance immigration judge who
had relied on it. See also NR (Jamaica) v Secretary of State for the Home Department
[2009] EWCA Civ 856, [2009] All ER (D) 43 (Aug).
7
The Privy Council affirmed the principle that new points originating from the court
should not take the parties by surprise in Hoecheong Products v Cargill Hong Kong
Ltd [1995] 1 WLR 404.
[12.174]

Section 8 of the AI(TC)A 2004 lists various behaviours which must be taken into account as
potentially1 damaging the claimant's credibility. These include:

(i) behaviour which the deciding authority2 thinks is designed or likely3 to conceal
information or to mislead, or to obstruct or delay the handling or resolution of the claim
or the taking of a decision in relation to the claimant;4
(ii) failure to take advantage of a reasonable opportunity to make an asylum or human
rights claim5 while in a safe country;6
(iii) failure to make an asylum or human rights claim before notification of an
immigration decision (unless the claim relies wholly on matters arising after the
notification);7
(iv) failure to make an asylum or human rights claim before arrest under an immigration
provision (unless there was no reasonable opportunity to do so or the claim relies wholly
on matters arising since the arrest).8
Failure without reasonable explanation to produce a passport on request to an immigration officer or
to the Secretary of State, the production of a document which is not a valid passport as if it were, the
destruction, alteration or disposal, without reasonable explanation, of a passport, ticket or other
document connected with travel, and failure without reasonable explanation to answer a question
83
asked by a deciding authority, are to be treated as designed or likely to conceal information or to
mislead.9
1
JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ
878, [2008] All ER (D) 348 (Jul).
2
Ie, an immigration officer, the Secretary of State, the Tribunal or the SIAC: s 8(7).
The section came into force on 1 January 2005: SI 2004/3398. A determination which
fails to indicate that the Tribunal has had regard to the statutory matters could be
vulnerable to setting aside for error of law, although the weight to be attached to them
is clearly for the Tribunal to assess: see SM (Section 8: Judge's process) Iran [2005]
UKAIT 00116; JT (Cameroon) v Secretary of State for the Home Department (fn 1
above).
3
This formulation is on its face objectionable, since behaviour not designed to
deceive, mislead or obstruct, but merely having that effect, should not affect the
credibility of the actor. We suggest that the section must be read subject to exceptions
on reasonable grounds, in order to be compatible with basic requirements of fairness.
See fn 1 above.
4
AI(TC)A 2004, s 8(2).
5
As defined by the Nationality, Immigration and Asylum Act 2002, s 113(1): AI(TC)A
2004, s 8(7).
6
Ie, in a country of transit: AI(TC)A 2004, s 8(4). In Ozmico [2002] UKIAT 00484,
the Tribunal held that failure to claim in any safe country passed through in the back of
a lorry was not a realistic credibility point.
7
AI(TC)A 2004, s 8(5). An 'immigration decision' means refusal or grant of leave to
enter or remain in the UK, a decision to remove the claimant under the Immigration
and Asylum Act 1999 s 10 (persons unlawfully in the UK) or the Immigration Act 1971,
Sch 2, paras 8-12 (persons refused leave to enter, illegal entrants, and their family
members), a decision to make a deportation order or an extradition decision: s 8(7).
'Notification' is defined in the Immigration (Claimant's Credibility) Regulations 2004, SI
2004/3263 to include decisions given orally or by email, by hand or by fax, and
provides that notification which would not be valid under the Notices Regulations is
valid for the purposes of s 8(5). The Regulations also contain presumptions about
receipt of notice which is posted or sent to a representative. It is hard to relate these
provisions rationally to claimants' credibility.
8
AI(TC)A 2004, s 8(6). An 'immigration provision' means the Immigration Act 1971,
ss 28A-28CA (immigration offences), Sch 2, para 17 (control of entry), s 14 of the
2004 Act (immigration officers' powers of arrest for offences of fraud etc) and the
Extradition Act 1989: AI(TC)A 2004, s 8(7).
9
AI(TC)A 2004, s 8(3). A passport is valid if it relates to the person producing it, has
not been altered except by or with the permission of the issuing authority, and was not
obtained by deception: AI(TC)A 2004, s 8(8). In the asylum context, it can be
extremely dangerous to treat the production of a passport obtained by deception as
damaging the credibility of the person producing it, which reinforces the suggestion
that the provision must be read as subject to a general exonerating clause on
reasonable grounds.

84
[12.175]

The factors set out in section 8 are additional to those set out in the Immigration Rules which may
damage an asylum applicant's credibility. These include failure, without reasonable explanation, to
make a prompt and full disclosure of material facts, either orally or in writing, or otherwise to assist
the Secretary of State in establishing the facts of the case, by, for example, failing to report to a
designated place to be fingerprinted, failing to complete an asylum questionnaire or failing to comply
with a requirement to report to an immigration officer for examination. 1 The statutory provision is
extraordinarily draconian - coupled with the Credibility Regulations, which are almost surreal2 - and
is in mandatory terms. Only in cases of non-production, destruction or disposal of a passport or a
travel document is there the possibility of the decision maker having regard to a reasonable
explanation.3 We suggest that a literal reading of section 8 would result in the deciding authority
failing to have regard to relevant circumstances, and thus reaching unlawful decisions. For example,
failure to claim asylum in a safe country of transit may be for a very good reason, such as the
presence in the UK of all the close relatives of a vulnerable and traumatised claimant. The
requirement in all cases to take such failure into account as damaging credibility makes no allowance
for such good reasons and denies the element of choice held by the Divisional Court in Adimi4 to be
properly open to refugees as to where they may claim asylum.
1
HC 395, para 339N as inserted from 9 October 2006 by Cm 6918.
2
Immigration (Claimant's Credibility) Regulations 2004, SI 2004/3263.
3
In R v Secretary of State for the Home Department, ex p Yassine [1990] Imm AR
354, QBD, and R v Uxbridge Magistrates' Court, ex p Adimi [1999] INLR 490, the
Divisional Court acknowledged that as a result of the carriers' liability legislation,
asylum seekers frequently need the assistance of an agent to obtain false papers to
smuggle them out of the country (see 12.9 and 12.11 above, and 14.88 ff below), and
are obliged to destroy the documents to prevent the escape route being closed down.
4
R v Uxbridge Magistrates' Court, ex p Adimi above.
[12.176]

Similarly, there are many valid reasons why people do not make their asylum claim immediately on
arrival: lack of knowledge of the procedures, arrival in a confused and frightened state, language
differences or fear of officialdom may all be insuperable barriers to making any kind of approach to
the authorities at the port of entry.1 Delay in making an application does not necessarily reflect the
absence of a fear: asylum seekers who have permission to remain in some other capacity may well
not wish to make an asylum claim, which connotes a definitive break with the country where they
may have their family and many other loved associations, and with all the uncertainties as to eventual
outcome, unless it is apparent that they have no other claim to remain and face removal. Further, a
refugee may be acting reasonably when deferring making a claim until obtaining advice from
relatives, friends or advice organisations. The UNHCR Handbook notes that untrue statements by
themselves are not a reason for refusal of refugee status and that it is the examiner's responsibility
to evaluate such statements in the light of all the circumstances of the case.2 It is often unfair to make
adverse credibility findings on the basis of the use of lies or evasion as to the means of escape, false
documents or the destruction of documents, or failure to claim promptly.3 Such actions have nothing
to do with the merits of the asylum claim, and should not be used to diminish credibility - at least, not

85
indiscriminately or without a careful assessment in relation to the facts of individual cases and the
applicant's explanation. In JT (Cameroon), Pill LJ urged decision-makers to guard against distorting
the fact-finding exercise by an undue concentration on minutiae which may arise under section 8 at
the expense of, and as a distraction from, an overall assessment - rather it is a global assessment
of credibility that is required.4
1
Report of Social Services Advisory Committee (Cm 3062, January 1996) para 38.
See also UNHCR Handbook 12.13 above, para 198; R v Uxbridge Magistrates' Court,
ex p Adimi [1999] INLR 490 at 497-498; UNHCR's Guidelines on applicable Criteria
and Standards relating to the Detention of Asylum Seekers (Butterworths Immigration
Law Service, 2C[261]); Atle Grahl-Madsen The Status of Refugees in International
Law Vol II (1972) p 218.
2
UNHCR Handbook above, para 199.
3
See R v Naillie [1993] AC 674; R v Secretary of State for the Home Department,
ex p Sivakumaran [1990] Imm AR 80, QBD; Nzamba-Liloneo v Secretary of State for
the Home Department [1993] Imm AR 225, QBD.
4
JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ
878, [2008] All ER (D) 348 (Jul) at para 19.

86
Macdonald's Immigration Law and Practice/Chapter 19 Appeals to the First-tier
Tribunal/Evidence and findings/Credibility of witnesses

EVIDENCE AND FINDINGS

[19.97]

It is inherently dangerous to place too much weight on 'plausibility' when assessing credibility
because an immigration judge's judgment as to what is plausible is bound to be influenced by his or
her own values and environment.1 The Court of Appeal has warned that reliance by a decision maker
on the 'inherent probability' of an account 'can be a dangerous, even a wholly inappropriate, factor
to rely on in some asylum cases. Much of the evidence will be referable to societies with customs
and circumstances which are very different from those of which the members of the fact-finding
Tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an
asylum-seeker has left will be suffering from the sort of problems and dislocations with which the
overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in
Hathaway on the Law of Refugee Status (1991) at p 81: 'In assessing the general human rights
information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the
nature of the risk based on their own perceptions of reasonability'.2 Decisions on credibility must be
reasoned, just as decisions on other aspects of the case.3 An assessment of credibility should be
made on the basis of a holistic assessment of all of the evidence in which supporting evidence
(including medical and country expert reports, background evidence and and supporting witnesses)
is weighed in favour of a positive finding on credibility; it is an error of approach for the Tribunal first
to come to a negative assessment of credibility and then ask itself whether that assessment is
displaced by any of the other material.4 An immigration judge may rely on discrepancies in an
appellant's testimony to put his or her veracity in question but they must also be evaluated in the
context of the evidence as a whole; in some cases it is sufficient for the judge to identify the
discrepancy and state his or her conclusion on the appellant's veracity. In other cases, the nature of
the discrepancy may require further explanation of why it does or does not undermine the veracity
of the testimony.5

For credibility in the context of the burden of proof in asylum appeals, see Chapter 12.
1
Kasolo (13190) (1 April 1996, unreported); Ali (Ibrahim) [2002] UKIAT 07001, and
see the Tribunal's approach in MM (plausibility) (DRC) [2005] UKIAT 00019.
2
HK v Secretary of State for the Home Department [2006] EWCA Civ 1037, [2006]
All ER (D) 281 (Jul). See also Y v Secretary of State for the Home Department [2006]
EWCA Civ 1223.
3
R v Immigration Appeal Tribunal, ex p Adin (Senol) (CO 4533/98) (13 July 2000,
unreported), QBD; R v Secretary of State for the Home Department, ex p Chugtai
[1995] Imm AR 559; Mecheti v Secretary of State for the Home Department [1999]
SCLR 998.
4
See the Court of Appeal's guidance in Karanakaran v Secretary of State for the
Home Department [2000] Imm AR 271 and see also R (on the application of Beqaraj)
v Special Adjudicator [2002] EWHC 1469 (Admin), [2002] All ER (D) 99 (Jun); R (on
the application of Perbalathan) v Immigration Appeal Tribunal [2002] Imm AR 200; R
(on the application of Gautam) v Adjudicator [2003] EWHC 1160 (Admin); FZ
87
 (Afghanistan) [2004] UKIAT 00304; see also below. See also Diaby v Secretary of
State for the Home Department [2005] EWCA Civ 651, [2005] All ER (D) 32 (Jul);
Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, [2005]
All ER (D) 307 (Mar); SA v Secretary of State for the Home Department [2006] EWCA
Civ 1302, [2006] All ER (D) 103 (Oct), confirming the principle in Mibanga. See also
Semu v Secretary of State for the Home Department [2006] EWCA Civ 1153, [2006]
All ER (D) 45 (Jul) and AJ (Cameroon) v Secretary of State for the Home Department
[2007] EWCA Civ 373, [2007] All ER (D) 168 (Jun).
5
AK v Secretary of State for the Home Department [2006] EWCA Civ 1037 and see
also Y v Secretary of State for the Home Department [2006] EWCA Civ 1223.
[19.98]

Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 identifies various
matters which the Tribunal is obliged to consider as damaging the credibility of an asylum seeker or
human rights claimant.1 The obligation arises even if the matter predates the coming into force of s
8.2 However, the assessment of credibility remains a matter for the Tribunal considering the evidence
as a whole and attaching such weight to individual features of the evidence as the Tribunal considers
appropriate.3 The word 'potentially' is to be read into s 8 so that various matters are 'potentially
damaging' of the appellant's credibility. Otherwise the provision would be inconsistent with the
principles of legality and the separation of powers whereby the judicial decision maker is required to
make his or her own decision on credibility.4
1
See Chapter 12.
2
MM (Iran) [2005] UKAIT 00115.
3
SM (Iran) [2005] UKAIT 00116. See also Carnwath LJ's judgment in Y v Secretary
of State for the Home Department [2006] EWCA Civ 1223.
4
JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ
878, [2008] All ER (D) 348 (Jul).

Medical and psychiatric evidence

[19.100]

In asylum and human rights appeals, medical and psychiatric evidence capable of supporting an
appellant's claim deserves careful and specific consideration,1 and Tribunals should not make
credibility findings in isolation from it.2 An experienced immigration judge must have regard to the
possibility that the quality of a witness' evidence may be affected by his or her mental state, which
might explain inconsistency and forgetfulness.3 A lay person cannot express a view on a medical
matter without the benefit of medical evidence and should not reject a doctor's prognosis, without
contrary medical evidence or without giving adequate reasons for doing so.4 Evaluation of a patient's
account of his or her symptoms is a fundamental aspect of a doctor's or psychiatrist's expertise and
so it is not open to the Tribunal to reach a conclusion that the expert has been misled by an
exaggerated or dishonest account without good and objective reason for doing so. 5 However,
experienced Tribunals are entitled to assess the weight to be given to a medical report, 6 taking into
account the doctor's qualifications, specialisation and experience,7 the quality of the doctor's
reasoning8 and the extent to which any conclusion is related to established diagnostic criteria, 9 and
the material on which the opinion is based.10 The Tribunal should not regard the account given to

88
the doctor as being unreliable without first of all deciding whether the doctor's opinion supports a
positive finding as to the credibility of the appellant,11 but a negative inference may be drawn from
inconsistencies between the history given to a doctor and the evidence given to the Secretary of
State or the Tribunal.12 An immigration judge should not reject an appellant's account of being
tortured on the ground that there were no visible marks on the appellant's body unless medical
evidence or the judge's own, explicitly disclosed expertise established that such marks would be
present.13 A GP's report is capable of constituting independent evidence of torture.14 A medical report
that merely documents scars or injuries without stating the doctor's opinion as to their consistency
with the appellant's account will have little or no corroborative weight.15 Those preparing medical
reports intended as corroborative should have regard to the Istanbul Protocol, in particular,
paragraphs 186-187 on 'Examination and Evaluation following specific forms of torture'. 16 Where a
doctor had given detailed evidence, corroborative of an appellant's account, about the likely
causation of injuries, more was required to explain rejection of that evidence than the assertion that
the injuries were equally consistent with incidents in an agrarian community not involving violence.17
Greater weight would be given to a medical report that considered and commented on the likelihood
of other possible causes for the person's injuries.18
1
Mohammed (Swaleh) (12412) (4 August 1995, unreported); Ibrahim v Secretary of
State for the Home Department [1998] INLR 511, IAT; Guney (19159) (4 August 1999,
unreported); Sivakarathas (01056) (12 May 2000, unreported), IAT.
2
Kitshi (11920) (23 March 1995, unreported). It is putting the cart before the horse
to make an adverse assessment of credibility, based on the appellant's oral evidence,
and then reject the medical evidence he or she has produced in support: R (on the
application of Beqaraj) v Special Adjudicator [2002] EWHC 1469 (Admin), [2002] All
ER (D) 99 (Jun); MT (Syria) [2004] UKIAT 00307. See also Diaby v Secretary of State
for the Home Department [2005] EWCA Civ 651, [2005] All ER (D) 32 (Jul).
3
Mageto v Immigration Appeal Tribunal [1996] Imm AR 56, CA; Yahiaoui [2002]
UKIAT 03504; Khan (Rashid) [2002] UKIAT 06026. However, in Singh (Amrik) v
Secretary of State for the Home Department [2000] Imm AR 340 the Court of Appeal
held that psychiatric evidence of the effect of an appellant's mental state on his ability
to recall reliably entitled the Tribunal to find his evidence unreliable and so reject his
claim - an illustration of the double-edged nature of such evidence. The UNHCR
Handbook recommends reliance on other sources of evidence in the case of mentally
disturbed asylum claimants (paras 206-212).
4
R v Secretary of State for the Home Department, ex p Khaira [1998] INLR 731.
See also SP (Yugoslavia) [2003] UKIAT 00017; Secretary of State for the Home
Department v S (Georgia) [2003] UKIAT 00082; Januzi v Secretary of State for the
Home Department [2003] EWCA Civ 1188; R (on the application of Minani) v
Immigration Appeal Tribunal [2004] EWHC 582 (Admin), [2004] All ER (D) 410 (Feb).
5
Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ
362.
6
SP (Yugoslavia) [2003] UKIAT 00017; KK v Secretary of State for the Home
Department [2005] EWCA Civ 1082, [2005] All ER (D) 214 (Jul).
7
Demaku [2002] UKIAT 06001; SP (Yugoslavia) above.
8
Jeyarajasingham (2001) (01TH00845), IAT, para 16 (reasoning to be expected in
medical reports dealing with scars). Expert psychiatrists exercise their critical faculties
and experience, and should not be treated as accepting claimants' accounts

89
uncritically: R (on the application of Minani) v Immigration Appeal Tribunal [2004]
EWHC 582 (Admin), [2004] All ER (D) 410 (Feb); Ademaj [2002] UKIAT 00979.
9
Demaku above; Secretary of State for the Home Department v Lama [2002]
UKIAT 07554; M (DRC) [2003] UKIAT 00054.
10
Secretary of State for the Home Department v AE and FE [2002] UKIAT 05237
[2003] Imm AR 152. This might include consideration how many times the psychiatrist
met the subject of the report and for how long, what if any medical records were seen,
and the extent to which the psychiatrist relied on the subject's untested account: Cinar
[2002] UKIAT 06624; see also SP (Yugoslavia) [2003] UKIAT 00017. In HE (DRC)
[2004] UKIAT 00321 'Reported', the Tribunal urged advocates seeking to support
credibility by reference to medical reports to show that the support it provides is
independent of what the claimant has told the psychiatrist.
11
R (on the application of Gautam) v Special Adjudicator [2003] EWHC 1160
(Admin), [2003] All ER (D) 81 (May); R (on the application of Beqaraj) v Special
Adjudicator [2002] EWHC 1469 (Admin), [2002] All ER (D) 99 (Jun); M (DRC) [2003]
UKIAT 00054.
12
Basak [2002] UKIAT 03570.
13
Reka v Secretary of State for the Home Department [2006] EWCA Civ 552, [2006]
All ER (D) 224 (May).
14
R (on the application of D) v Secretary of State for the Home Department; R (on
the application of K) v same [2006] EWHC 980 (Admin), 150 Sol Jo LB 743, [2006] All
ER (D) 300 (May).
15
SA v Secretary of State for the Home Department [2006] EWCA Civ 1302, [2006]
All ER (D) 103 (Oct).
16
SA v Secretary of State for the Home Department. The Istanbul Protocol is the
Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment of Punishment (Submitted to the United Nations
High Commissioner for Human Rights - 9 August 1999). Under the heading 'D.
Examination and Evaluation following specific forms of Torture' the Istanbul Protocol
says:
''186. ... For each lesion and for the overall pattern of lesions, the physician should
indicate the degree of consistency between it and the attribution:
(a) Not consistent: the lesion could not have been caused by the trauma described;
(b) Consistent with: the lesion could have been caused by the trauma described, but
it is non-specific and there are many other possible causes;
(c) Highly consistent: the lesion could have been caused by the trauma described,
and there are few other possible causes;
(d) Typical of: this is an appearance that is usually found with this type of trauma,
but there are other possible causes;
(e) Diagnostic of: this appearance could not have been caused in anyway other than
that described.
187. Ultimately, it is the overall evaluation of all lesions and not the consistency of
each lesion with a particular form of torture that is important in assessing the torture
story (see Chapter IV.G for a list of torture methods).''
17
KP (Sri Lanka) v Secretary of State for the Home Department [2007] EWCA Civ
62, [2007] All ER (D) 91 (Jan).
18
RT (Sri Lanka) [2008] UKAIT 0009.

90
Expert evidence and country background evidence

[19.101]

Credibility findings can only really be made on the basis of a complete understanding of the entire
picture, placing a claim into the context of the background information regarding the country of
origin,1 although going into detail about the background circumstances will not always be necessary
or fruitful,2 and the Tribunal is not required to set out in detail all the background evidence it has
read.3 Instead of simply rejecting a claim to fear being persecuted because of a young appellant's
inability to explain why she should be at risk, particular reliance should be placed on the background
material to see whether it affords an explanation.4 Where the background evidence is in conflict, the
Tribunal and the courts have expressed a preference for independent, sourced reports, 5 but where
there are divergent opinions from reputable human rights organisations about the conditions in a
country, there should be an in-depth examination to see if the evidence can be reconciled,6 and a
real attempt to balance them.7 If they cannot be reconciled, the Tribunal should give reasons for
preferring one report over another.8 The approach to the assessment of country information adopted
by the European Court of Human Rights should be followed by the Tribunal in human rights and
asylum cases,9 requiring consideration of the source of the information and in particular, its
independence, reliability and objectivity, the authority and reputation of its author, the method of
investigation, the consistency of its conclusions with and corroboration by other sources and the
presence and reporting capacity of the author of the material in the country in question.10 The
Tribunal need not invite oral evidence from an expert witness whose report he or she is minded to
reject,11 but expert evidence should not be rejected merely because it has not been tested in cross-
examination,12 or because it does not identify its sources,13 nor should it be rejected as 'mere
speculation'.14 The Court of Appeal has been critical of the cursory and at times contemptuous way
the appellate authorities have treated the evidence of reputable experts, and has pointed out that
such evidence should not be lightly rejected15 and that the Tribunal is 'bound to place heavy reliance
on the views of experts and specialists'.16 The Tribunal should not reject the opinion of an expert on
grounds of the expert's 'partiality' without explaining why that label is applied to that expert.17 In its
reasoning it should clearly indicate what it has accepted from expert reports.18 But expert witnesses'
duty is to the court and it is important that they appreciate that, comply with it, believe in the truth of
the facts in the report and the accuracy of the opinion given, cover all relevant matters and set out
any matters affecting its validity.19 Given the expert's obligation to provide an impartial opinion an
instructing solicitor should not put leading questions to the witness.20 In Slimani,21 a starred Tribunal
approved the guidance given in The Ikarian Reefer22 that to be relied on, the expert needs to provide
independent assistance to the Tribunal, must not assume the role of an advocate, and needs to
specify the facts on which his or her opinion is based. The Tribunal deprecated the practice of putting
in evidence in one case expert reports prepared for a different case, unless the report is specified as
a general one or the author has given his consent.23 Foreign law is a question of fact which should
be determined, in the absence of agreement between the parties, by expert evidence, 24 but in the
absence of such evidence the appellate authority may review questions of foreign law for itself.25

91
1
UNHCR Handbook paras 42-43; R v Immigration Appeal Tribunal, ex p Ahmed
(Sardar) [1999] INLR 473 (QBD); Horvath v Secretary of State for the Home
Department [1999] Imm AR 121, [1999] INLR 7 (IAT); Suleyman (16242) (11 February
1998, unreported); Tharunalingam (18452); Gurung v Secretary of State for the Home
Department [2003] EWCA Civ 654, [2003] All ER (D) 14 (May). For an example of the
danger of assessing credibility in isolation, see R v Immigration Appeal Tribunal, ex p
Pratheepan (CO 1102/98) (27 April 1999, unreported), QBD (adjudicator dismissed
advocate's letter on basis of ignorance of legal procedures in Sri Lanka). See also R
(on the application of Gulbudek) v Immigration Appeal Tribunal (CO 2174/2000) (21
November 2000, unreported), where an adjudicator's conclusion that the Turkish
authorities would investigate rape and torture allegations was quashed as perverse;
and R (on the application of Vuckovic) v Special Adjudicator (CO 3021/2000) (18
December 2000, unreported) (adjudicator unfair to determine case without Home
Office country assessment which lent support to appellant's case).
2
R v Secretary of State for the Home Department, ex p Befekadu [1999] Imm AR
467, QBD.
3
R (on the application of Shokrollahy) v Immigration Appellate Authority [2000] Imm
AR 580, QBD.
4
De Sousa v Secretary of State for the Home Department [2006] EWCA Civ 183,
[2006] All ER (D) 60 (Feb).
5
Mario v Secretary of State for the Home Department [1998] Imm AR 281, [1998]
INLR 306, IAT; Drrias v Secretary of State for the Home Department [1997] Imm AR
346, CA (value of 'bland' FCO letter questioned); X (98/0474/4) 24 July 1998, CA
(UNHCR report might deserve more weight than that of a national immigration
authority). UNHCR reports have been seen as the most reliable: see Ragavan (15350)
(21 August 1997, unreported); Teshome (15693).
6
Hassen (15558) (3 October 1997, unreported); see also Lahori (G0062) (7 October
1998, unreported), IAT.
7
Mulumba (14760) (24 March 1997, unreported).
8
Thillarajah (14606) (10 March 1997, unreported); Vasikaran (15241) (4 July 1997,
unreported), IAT.
9
TK (Sri Lanka) CG [2009] UKAIT 00049.
10
NA v United Kingdom (2007) App No 25905/07.
11
R v Secretary of State for the Home Department, ex p Khanafer [1996] Imm AR
212.
12
Singh (Tarlochan) v Secretary of State for the Home Department [2000] Imm AR
36. The written evidence of an expert, even if untested in cross-examination, is entitled
to the respect due to persons who possess the relevant expertise: Kilic [2002] UKIAT
02714. But the testimony of an expert witness who did attend court would be highly
important: Zheng (20271) (1 April 1999, unreported).
13
It is in the nature of an expert report that the expert is the source, although
reference to sources would add weight to the expert's opinion: Secretary of State for
the Home Department v Markos [2002] UKIAT 08313. But see Slimani (01TH00092)
(12 February 2001, unreported), (starred) IAT.
14
Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271,
CA. See also Gomez [2000] INLR 549; Kapela v Secretary of State for the Home
Department [1998] Imm AR 294.
15
Karanakaran above; see also the Court of Appeal's observations in granting
permission to appeal in R v Immigration Appeal Tribunal, ex p Es-Eldin (C/00/2681)
(29 November 2000, unreported), subsequently allowing by consent the appeal

92
against the QBD decision reported in [2001] Imm AR 98. See also Singh (Tarlochan) v
Secretary of State for the Home Department [2000] Imm AR 36. For a recent example,
see SA (Syria) v Secretary of State for the Home Department [2007] EWCA Civ 1390
where the Court criticised the Tribunal's treatment of a letter from Amnesty
International as 'unsourced', contrary to current Tribunal country guidance and
therefore entitled to little weight. In the same case, the Tribunal's treatment of the
reports of two experts was said to have been so cursory as not to have engaged with
them at all.
16
S v Secretary of State for the Home Department [2002] EWCA Civ 539; [2002]
INLR 416. The Tribunal has also emphasised the importance of giving proper
consideration to expert reports: see eg Misrak (Habteselassie) (00308) (28 February
2000, unreported). More recently, in SI (Iraq) CG [2008] UKAIT 00094, the Tribunal
said: 'In general the Tribunal takes the view that a country expert's opinion is to be
given significant weight and if the Tribunal decides to come to a different view from an
expert on key matters, proper reasons must be given'.
17
Cherbal [2002] UKIAT 02014. The Tribunal would, however, exercise particular
care in assessing the weight to be attached to views expressed by an individual whose
opinions were adduced on a regular basis in case his or her views were influenced,
even unconsciously, by the hope of receiving further, similar instructions: KA (Somalia)
v Secretary of State for the Home Department [2006] EWCA Civ 1324, approving AA
[2004] UKIAT 00221.
18
Djebari v Secretary of State for the Home Department [2002] EWCA Civ 813,
[2002] AlL ER (D) 184 (May). But equally, the Tribunal should not accept expert
evidence uncritically, without explaining why it is preferred to a body of reputable
evidence which contradicts it: Djebbar v Secretary of State for the Home Department
[2004] EWCA Civ 804, [2004] 33 LS Gaz R 36.
19
Thambiah (01372) (10 May 2000, unreported), IAT. Expert reports should show
the status of their author and be specifically relevant to the case: R v Immigration
Appeal Tribunal, ex p Kilinc [1999] Imm AR 588.
20
Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ
362.
21
Slimani (01TH00092) (starred) (12 February 2001, unreported), IAT.
22
National Justice Compania Naviera SA v Prudential Assurance Co Ltd ('The
Ikarian Reefer') [1993] 2 Lloyd's Rep 68 at 81-2.
23
Slimani (01TH00092) (starred) (1 February 2001), IAT; Singh (Armardeep)
(00943) (28 April 2000); Zheng (20271) (1 April 1999, unreported), IAT.
24
R v Secretary of State for the Home Department, ex p Bradshaw [1994] Imm AR
359; Tikhonov [1998] INLR 737, IAT.
25
R v Special Adjudicator, ex p Turus [1996] Imm AR 388, QBD.

93
Evidence of post-decision facts

[19.102]

When determining an appeal under the pre-2002 Act legislation (except one on asylum or human
rights grounds), the appellate authorities were restricted to consideration of facts in existence at the
date of the decision appealed against.1 It was emphasised on a number of occasions that the
appellate authorities were not some kind of super entry clearance or immigration officers, or an
extension of the original decision-making function, but a process for enabling the decision to be
reviewed. Evidence that was not before the original decision maker could only be considered for the
purpose of determining the facts that were in existence at the time the decision was made. 2 The
exception was asylum and human rights cases. In Ravichandran3 the Court of Appeal held that in
asylum cases, the appellate authority is an extension of the decision-making process because of the
nature of the question to be asked, ie whether projected removal would bring a real risk of harm
contrary to the Refugee Convention, rather than fixing on a past situation. This meant that evidence
of facts which came into existence after the decision on appeal was relevant and admissible. That
decision was given statutory effect in IAA 1999,4 and was extended to cases where it was asserted
that removal would breach Article 3 of the ECHR.5 The Tribunal applied the principle to Article 8
cases in S&K6 and in Razgar7 the House of Lords upheld this approach to all cases in which it was
asserted that human rights would be breached by removal. NIAA 2002 extended the admissibility of
evidence of post-decision facts to non-asylum or human rights appeals apart from appeals against
refusal of entry clearance or refusal of a certificate of entitlement, 8 in which the Tribunal is limited to
consideration of the circumstances in existence at the date of the decision. In appeals concerned
with refusals of leave to enter or to vary leave following an application under the Points Based
Scheme, the UK Borders Act will very severely restrict the evidence that the Tribunal can consider.9
Insofar as the appeal relies on the grounds that the decision is not in accordance with the law or
Immigration Rules or a discretion should have been exercised differently, the Tribunal will only be
able to consider evidence submitted with and in support of the application; evidence subsequently
adduced to establish the authenticity of a document; evidence responding to the Secretary of State's
reliance on rules or a discretion under the rules other than those relating to the acquisition of points
(eg the general grounds for refusal under the Immigration Rules). Insofar as other grounds are relied
on, eg that the decision breaches the appellant's human rights or the UK's obligations under the
Refugee Convention, those restrictions will not apply. Otherwise, on an appeal under section 82 or
83 the Tribunal may consider evidence about any matter which it thinks relevant to the substance of
the decision, including evidence which concerns a matter arising after the date of the decision.10 This
means that the focus of the Tribunal's scrutiny in all immigration appeals other than those challenging
refusal of entry clearance or certificate of entitlement (not just those engaging the Refugee or Human
Rights Convention) has shifted from the date of decision to the date of hearing.11 The statutory
changes mean, in our view, that the appellate process really does become, in all cases, an extension
of the decision-making process. Thus, evidence of facts which were unforeseeable at the date of
decision can now found a successful appeal.12 An appeal against refusal of leave to remain had to
be allowed because, although at the time of the decision the appellant could not qualify under the
applicable immigration rule, by the time of the hearing she had become over 65 and so satisfied the
94
requirements of another immigration rule.13 Where the appeal is against refusal of entry clearance
or refusal of a certificate of entitlement to the right of abode, the rule remains as it was before NIAA
2002, with the Tribunal able to consider 'only the circumstances appertaining at the time of the
decision'.14 In respect of those appeals, the earlier authorities on evidence of post-decision facts
remain of relevance.15 An amended decision notice has been held to give rise to a new date of
decision, thus extending the scope for factual investigation on appeal.16 But the submission of fresh
evidence to the decision-maker post-decision, and the review of that evidence in a supplementary
refusal letter, has been held not to give rise to a new date of decision, so that the evidence, on an
entry clearance appeal, would not lose its quality of inadmissible post-decision evidence.17 However,
a number of decisions relating to entry clearance under the rules involve predictions: whether a
business will succeed,18 whether a couple will live together as man and wife, 19 whether the parties
will have accommodation available,20 whether a student will be able to pursue a course with
reasonable success.21 In these cases, evidence of post-decision facts that throw light on the decision
was admissible22 if the events were foreseeable at the time of the decision.23 The Tribunal has held
in the starred decision of DR (Morocco)24 that section 85(5) now precludes the admission of evidence
showing that something which was likely at the date of decision has actually happened. We believe
its interpretation of the section to be unduly restrictive.25 It did accept, however, that evidence of
post-decision facts was admissible in so far as they shed light on the circumstances appertaining at
the time of the decision, eg a couple's post-decision devotion being relevant to whether they had an
intention to live together at the time of the decision.
1
R v Immigration Appeal Tribunal, ex p Weerasuriya [1983] 1 All ER 195, [1982]
Imm AR 23, DC; Sae-Heng v Visa Officer, Bangkok [1979-80] Imm AR 69; R v
Secretary of State for the Home Department, ex p Miah [1998] Imm AR 44, QBD.
2
R v Immigration Appeal Tribunal, ex p Hassanin [1987] 1 All ER 74, [1986] 1 WLR
1448, CA, per Dillon LJ.
3
Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97,
CA.
4
IAA 1999, s 77(3).
5
IAA 1999, s 77(4).
6
Secretary of State for the Home Department v SK [2002] UKIAT 05613 (starred).
7
R (on the application of Razgar) v Secretary of State for the Home Department
[2004] UKHL 27, [2004] 3 WLR 58.
8
NIAA 2002, s 85(5) or, following enactment of the UK Borders Act, s 19, by a new
NIAA, s 85(5) and s 85A(2).
9
NIAA 2002, s 85A(3) and (4), to be inserted by the UK Borders Act 2007, s 19.
10
NIAA 2002, s 85(4).
11
The explanatory notes to the Act do not assist in divining the purpose of the
change, which may, contrary to our argument in the text, be simply a reflection of the
fact that asylum and human rights issues no longer give rise to special appeals but
form grounds of appeal against in-country immigration decisions: see ss 82, 84. Read
this way, in relation to non-asylum or human rights issues, s 85(4) does no more than
put in statutory form the recognition in R v Immigration Appeal Tribunal, ex p Hoque
and Singh [1988] Imm AR 216, CA that evidence of post-decision facts (such as the
birth of a child in a marriage case) may cast a flood of light on the intentions of the
parties at the date of decision. This remains the position for entry clearance appeals.

95
12
CA (Nigeria) [2004] UKIAT 00243, where evidence of acquittal of criminal charges
of using a false passport was held admissible in an appeal against cancellation of
leave on the ground of possession of a false passport, to show that the immigration
officer's discretion should have been exercised differently. See 19.16 above.
13
YZ and LX (China) [2005] UKAIT 00157.
14
NIAA 2002, s 85(5).
15
See cases at fn 1 above, and R v Secretary of State for the Home Department, ex
p Husbadak [1982] Imm AR 8, QBD.
16
Rajendran v Secretary of State for the Home Department [1989] Imm AR 512 at
519.
17
R v Immigration Appeal Tribunal and Secretary of State for the Home
Department, ex p Banu [1999] Imm AR 161, [1999] INLR 226, QBD. Nor would the
reconsideration of the original decision in the ECO's explanatory statement thereby
create a new and later immigration decision: AH (Bangladesh) [2006] UKAIT 0028.
18
R v Immigration Appeal Tribunal, ex p Amir Beaggi (1982) Times, 25 May, QBD;
Secretary of State for the Home Department v Thaker [1976] Imm AR 114.
19
Patel v Secretary of State for the Home Department [1986] Imm AR 440, IAT.
20
Azad (5993), IAT.
21
Rajendran [1989] Imm AR 512.
22
R v Immigration Appeal Tribunal, ex p Kwok On Tong [1981] Imm AR 214; R v
Immigration Appeal Tribunal, ex p Amir Beaggi fn 16 above. The admission of post-
decision evidence in these cases is, however, strictly limited to that purpose and still
looks back to the date of decision.
23
Adesegun v Entry Clearance Officer [2002] UKIAT 02132: the sponsor becoming
unable to work due to sickle cell anaemia, being unforeseeable at the time of the
decision, should not have been taken into account. Post-decision evidence of existing
facts is always admissible, however, to show that the situation was not what the entry
clearance officer believed it to be: Hassanin (fn 2 above).
24
[2005] UKIAT 00038 (starred).
25
The Tribunal held that the rationale for the practise of admitting evidence of post-
decision facts which were foreseeable at the date of decision has gone now that entry
clearance stands as leave to enter. But with respect, that does not alter anything. The
issue of entry clearance in those cases still depends on a prediction, and it is wholly
unrealistic to exclude evidence that the predicted event (the sponsor obtaining a job or
accommodation) took place. The restrictive interpretation amounts to a rewriting of the
rules, which we do not believe was Parliament's intention.

96
BACKGROUND
MATERIAL

97
1)

Map

98
 2)
Independent

Silence from international community as thousands sent to ‘re-

education camps’ in China’s latest ‘religious extremism’ crackdown
Religious buildings destroyed, long beards banned, people forced to eat pork – the list of abuses
goes on

 Josh Rogin
 Friday 3 August 2018 08:56
 2 comments
Click to follow
The Independent Voices

If ethnic cleansing takes place in China and nobody is able to hear it, does it make a sound? That’s
what millions of Muslims inside the People’s Republic are asking as they watch the Chinese
government expand a network of internment camps and systematic human rights abuses designed
to stamp out their peoples’ religion and culture.

Since last year, hundreds of thousands – and perhaps millions – of innocent Uighurs and
other ethnic minorities in the Xinjiang region in northwest China have been unjustly arrested and
imprisoned in what the Chinese government calls “political re-education camps”. Thousands have
disappeared. There are credible reports of torture and death among the prisoners. The
government says it is fighting “terrorism” and “religious extremism”. Uighurs say they are resisting
a campaign to crush religious and cultural freedom in China. The international community has
largely reacted with silence.

Horrific as they are, the camps constitute just one part of Beijing’s effort. The government has
destroyed thousands of religious buildings. It has banned long beards and many Muslim names.
People are forced to eat pork against their beliefs. The Chinese government’s persecution of
innocents continues even after their death. Crematoria are being built to literally extinguish the
Uighur funeral tradition, which insists on burials.

99
China testing facial recognition technology in Muslim region

Add to that the unprecedented security and surveillance state in Xinjiang, which includes all-
encompassing monitoring based on identity cards, checkpoints, facial recognition and the
collection of DNA from millions of individuals. The authorities feed all this data into an artificial-
intelligence machine that rates people’s loyalty to the Communist Party in order to control every
aspect of their lives.

If that doesn’t bother you, consider that this expansion of Chinese repression is being exported to
the United States and around the world. Families of US citizens who speak out against Beijing are
targeted as part of Beijing’s effort to snuff out all international criticism.

Gulchehra Hoja, a journalist for the US’s Washington-based Radio Free Asia’s Uighur service, has
had more than two dozen family members in China detained in the camps, including her elderly
parents and her brother, who has not been heard from since his arrest last September. Many of
her RFA colleagues have similar stories.

“I hope and pray for my family to be let go and released, but I know if that happens they will still
live under a constant threat,” she said at a congressional commission on China last week. “I came
to the United States to realise a dream, a dream of being able to tell the truth without fear.”

Despite Beijing’s efforts, mounting evidence of the camps has managed to make its way to the
outside world. Massive camp construction can be seen from satellites, and advertisements for new
construction contracts are publicly available. Witnesses have told their stories. Yet the world has
failed to respond.

Inside the Trump administration and on Capitol Hill, that may finally be changing. At last week’s
congressional hearing, ambassador Kelley Currie, a top official at the US United Nations mission,
called on the Chinese government to end its repressive policies in Xinjiang and to free all those
arbitrarily detained.

The Chinese government is attempting to “Sinocise religion” and “transform religion and ethnicity
in Chinese society” in a scheme more ambitious than Mao’s cultural revolution, she testified. “The
scope of this campaign is breathtaking.”

100
The US government has tools to raise the pressure and costs on China, should it decide to act.
Commission chairman, senator Marco Rubio, called for US corporations to stop selling China items
that can be used for repression, including DNA technologies and video surveillance tools. The
administration can also impose sanctions on senior Chinese officials for human rights abuses
under the Global Magnitsky Act. Xinjiang Communist Party Secretary Chen Quanguo, who honed
his repression skills in Tibet and has now expanded them against Muslim minorities, is one obvious
target.

“We clearly know horrible things are happening here to the Uighurs. And wherever there are
abuses, there are abusers,” Mr Rubio said. “It’s working. That’s the saddest part of all.”

The Chinese government’s obsession with its international reputation is its main vulnerability.
Calling out these atrocities in public and to Beijing directly is key.

The horror in Xinjiang is not a China issue, it’s a global issue. China uses its position on the
UN Human Rights Council and the UN Security Council not only to stifle discussion of its actions
but also to attempt to rewrite international human rights norms to allow expansion of these
practices by any dictatorship with the means.

“The United States advances religious freedom in our foreign policy because it is not exclusively an
American right,” secretary of state Mike Pompeo said last week. “It is a God-given universal right
bestowed on all of mankind.”

Those words mean little if the United States continues to stand by while the situation in Xinjiang
worsens. We may choose to look away, but we can never say again we didn’t know.

© The Washington Post

101
 3)
Human Rights Watch

China: Massive Crackdown in Muslim Region

September 6, 2018

Mass Arbitrary Detention, Religious Repression, Surveillance in Xinjiang

(New York) – The Chinese government is conducting a mass, systematic campaign of human rights
violations against Turkic Muslims in Xinjiang in northwestern China.

The 117-page report, “‘Eradicating Ideological Viruses’: China’s Campaign of Repression Against
Xinjiang’s Muslims,” presents new evidence of the Chinese government’s mass arbitrary detention,
torture, and mistreatment, and the increasingly pervasive controls on daily life. Throughout the
region, the Turkic Muslim population of 13 million is subjected to forced political indoctrination,
collective punishment, restrictions on movement and communications, heightened religious
restrictions, and mass surveillance in violation of international human rights law.

“The Chinese government is committing human rights abuses in Xinjiang on a scale unseen in the
country in decades,” said Sophie Richardson, China director at Human Rights Watch. “The
campaign of repression in Xinjiang is key test of whether the United Nations and concerned
governments will sanction an increasingly powerful China to end this abuse.”

The report is primarily based on interviews with 58 former residents of Xinjiang, including 5 former
detainees and 38 relatives of detainees. Nineteen of those interviewed have left Xinjiang within
the past year and a half.

The Chinese government’s “Strike Hard Campaign against Violent Extremism” began in Xinjiang in
2014. The level of repression increased dramatically after Communist Party Secretary Chen
Quanguo relocated from the Tibet Autonomous Region to assume leadership of Xinjiang in late
2016.

Since then, the authorities have stepped up mass arbitrary detention, including in pretrial
detention centers and prisons, both of which are formal facilities, and in political education camps,
which have no basis under Chinese law. Credible estimates indicate that 1 million people are being
held in the camps, where Turkic Muslims are being forced to learn Mandarin Chinese, sing praises

102
of the Chinese Communist Party, and memorize rules applicable primarily to Turkic Muslims.
Those who resist or are deemed to have failed to “learn” are punished.

The detainees in political education camps are held without any due process rights – neither
charged nor put on trial – and have no access to lawyers and family. They are held for having links
with foreign countries, particularly those on an official list of “26 sensitive countries,” and for using
foreign communication tools such as WhatsApp, as well as for peacefully expressing their identity
and religion, none of which constitute crimes.

A man who spent months in political education camps, told Human Rights Watch: “I asked [the
authorities] if I can hire a lawyer and they said, ‘No, you shouldn’t need a lawyer because you’re
not convicted. There’s no need to defend you against anything. You’re in a political education
camp – all you have to do is just study.’”

Outside these detention facilities, the Chinese authorities in Xinjiang subject Turkic Muslims to
such extraordinary restrictions on personal life that, in many ways, their experiences resemble
those of the people detained. A combination of administrative measures, checkpoints,
and passport controlsarbitrarily restrict their movements. They are subjected to persistent political
indoctrination, including compulsory flag-raising ceremonies, political or denunciation meetings,
and Mandarin “night schools.” With unprecedented levels of control over religious practices, the
authorities have effectively outlawed Islam in the region.

They have also subjected people in Xinjiang to pervasive and constant surveillance. The authorities
encourage neighbors to spy on each other. The authorities employ high-tech mass surveillance
systems that make use of QR codes, biometrics, artificial intelligence, phone spyware, and big
data. And they have mobilized over a million officials and police officers to monitor people,
including through intrusive programs in which the monitors are assigned to regularly stay in
people’s homes.

The campaign has divided families, with some family members in Xinjiang and others abroad
caught unexpectedly by the tightening of passport controls and border crossings. Children have at
times been trapped in one country without their parents. The government has barred Turkic
Muslims from contacting people abroad. The government has also pressured some ethnic Uyghurs
and Kazakhs living outside the country to return to China, while requiring others to provide
detailed personal information about their lives abroad.

The United Nations Committee on the Elimination of Racial Discrimination (CERD) reviewed the
situation in China in mid-August and described Xinjiang as a “no rights zone.” The Chinese

103
delegation disputed this portrayal of the region, as well as its characterization of political
education camps, calling them “vocational education centers.”

It is evident that China does not foresee a significant political cost to its abusive Xinjiang campaign,
partly due to its influence within the UN system, Human Rights Watch said. In the face of
overwhelming evidence of grave abuses in Xinjiang, foreign governments should pursue a range of
multilateral and unilateral actions. They should also pursue joint actions at the UN Human Rights
Council, creating a coalition to gather and assess evidence of abuses in Xinjiang, and imposing
targeted sanctions on Party Secretary Chen Quanguo and other senior officials responsible.

“The pain and anguish of families torn apart, with no knowledge of what’s happened to their loved
ones stands in stark contrast to Beijing’s claims that Turkic Muslims are ‘happy’ and ‘grateful,’”
Richardson said. “A failure to urgently press for an end to these abuses will only embolden
Beijing.”

Selected accounts
The names and identifying details of people interviewed have been withheld to protect their
safety. All names of detainees are pseudonyms.

On political education camps:

Nobody can move because they watch you through the video cameras, and after a while a voice
came from the speakers telling you that now you can relax for a few minutes. That voice also tells
you off for moving…we were watched, even in the toilet. In political education camp, we were
always under stress.

–Rustam, a former detainee who spent months in political education camps, May 2018

I resisted their measures…They put me in a small solitary confinement cell…In a space of about 2x2
meters I was not given any food or drink, my hands were handcuffed in the back, and I had to
stand for 24 hours without sleep.

–Nur, a former detainee in a political education camp, March 2018

104
Everyday controls in Xinjiang:

A total of five officials…took turns to watch over me [at home]. And they had to document that
they’d checked on me… The photos show them reading political propaganda together [with me] or
show me moving a pillow on a bed to prepare for them to stay overnight; or them lying down on
the sofa.

–Aynur, a woman who left Xinjiang in 2017, May 2018

Since early 2017, twice a week, officials came. Some people even stayed for a night. The
authorities came in advance and made a list and assigned new “relatives” to you. … [The officially-
assigned “relatives”] talked to my son, my grandkids, they took pictures, they sat at the table, they
asked, “Where’s your husband, where did he go?” I was really frightened, and I pretended to be
busy looking after my grandkids. I was worried that if I spoke I’d let slip that my husband had gone
[abroad]. So, I stayed silent.

–Ainagul, 52, who left Xinjiang in 2017 and whose son is in a political education camp, May 2018

International impact of the Strike Hard Campaign:

First, the village police called, and then a higher-level police bureau called. Their numbers were
hidden – they didn’t show where they were calling from…. The police told me, “If you don’t come,
we’ll come get you.”

–Dastan, 44, who lives outside China and whose wife is in a political education camp, May 2018

They give a signal, that even if you’re in a foreign country, they can “manage” you. … I’m scared... I
didn’t join any terrorist or any organization against China. I didn’t join any demonstrations. I didn’t
carry any East Turkestan flag. I have no criminal record in China…why are they doing stuff like that
[to me]?

–Murat, a 37-year-old student living outside China and whose sister is in a political education
camp, June 20

105
 4)

Foreign Policy

48 Ways to Get Sent to a Chinese Concentration Camp

Something terrible is happening in Xinjiang.

BY TANNER GREER
SEPTEMBER 13, 2018, 10:40 AM

There is a crisis in Xinjiang. The details are murky. The Communist Party of China has little
incentive to reveal the inner workings of the vast system of surveillance and terror it has built to
control the 12 million Uighur and Kazakh citizens of China’s westernmost region. From the party’s
perspective, the further away the global spotlight is from its activities the better.

But we now have a rough outline of what is happening to the people of the region. In response to
growing tensions between Han Chinese and the Uighur population of Xinjiang itself, the
recruitment of Uighurs to fight in the Syrian civil war, and several terrorist attacks orchestrated by
Uighur separatists, the party launched what it called the Strike Hard Campaign Against Violent
Terrorism. Despite its name, the campaign’s targets are not limited to terrorists. No Uighur living
in Xinjiang can escape the shadow of the party nor can members of other ethnic minorities,
especially Kazakhs.

Some of the methods used to surveil and coerce the population of Xinjiang are straight from the
dystopian imagination: The party has collected the DNA, iris scans, and voice samples of the
province’s Uighur population, regularly scans the contents of their digital devices, uses digitally
coded ID cards to track their movements, and trains CCTV cameras on their homes, streets, and
marketplaces.

To students of Chinese history, other elements of the system are depressingly familiar. Cultural
Revolution-style struggle sessions have been resurrected: Uighurs now gather in public meetings
to denounce their relatives and publicly admit their personal political sins. Most worrisome of all is
the vast network of political education camps that have been created to hold and “re-educate”

What must a Uighur or Kazakh do to warrant detention in one of these camps? This month,
Human Rights Watch (HRW) published a 125-page report on the crisis in Xinjiang that helps answer
this question. It is titled “‘Eradicating Ideological Viruses’: China’s Campaign of Repression Against
Xinjiang’s Muslims.”

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The report consists mostly of excerpts from interviews that HRW researchers conducted with 58
ethnic Uighurs and Kazakhs living in nine countries. This is the largest interview set of its kind yet
published. All of the subjects successfully fled from Xinjiang sometime during the last two years.
All were either detained in the political education camps themselves or have seen members of
their family detained in their stead. Their accounts corroborate the data gleaned from the other
streams of information that outsiders have about what is happening in Xinjiang. What makes the
HRW interviews so valuable, however, is that they allow an exceptionally clear view of the way the
Strike Hard Campaign is changing the course of everyday life in Xinjiang.

Here I list the things that Uighurs and Kazakhs now fear to do out of dread of attracting the
attention of ever-present security agents. Each item on the list was mentioned by at least one of
the HRW interviewees. Each is enough to be detained without trial and locked away in a political
education camp indefinitely.

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A central element of this campaign is uncertainty. It is difficult to judge which of these items are
official policy and which are simply the result of ad hoc decisions made by local officials. This is
likely by design. One Uighur interviewee told HRW how he simply stopped using his smartphone
because he could not tell which websites were allowed and which might incriminate him; another
described how she stopped talking to neighbours and strangers altogether because she did not
want to unintentionally say something that might bring the police to her door. Vagueness breeds
fear. Fear makes the people subject to the Communist Party’s campaigns easier to control.

Listing out the activities barred and items banned by the party betrays its true aim. Some of these
items—such as the prohibition on extra knives and welding equipment—are plausibly related to
terrorist activities. Most of these items, however, have less to do with violence than with ethnic
identity or religious piety. Forcing Uighurs to drink and prohibiting them from praying is not about
ending terrorism. It is about forcing Uighurs to violate their religious beliefs. Forcing Kazakhs to
use Chinese and prohibiting them from celebrating traditional festivals and holidays is not about
ending terrorism. It is about forcing Kazakhs to act like Han Chinese.

The goal of the Strike Hard Campaign is not, as China claims, purely to destroy terrorists but to
destroy minority religion and identity altogether. It has created an atmosphere of constant fear, in
which Uighurs dread the invisible lines placed around every aspect of their lives. In what it calls a
campaign against terrorism, China has created a state of terror.

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 5)
The Sunday Times

Early breakfasts and no alcohol get China’s Uighurs sent for re-education
Amy Hawkins, Beijing
October 7 2018, 12:01am

At the southeastern corner of the China nationalities museum in Beijing, the Uighur “ethnic
landscape” is looking worse for wear. The paint along the walkway is peeling and cracks have
appeared in the dusty pottery houses that are designed to exhibit the traditional culture of the
Uighur people.

The museum’s mission is “to promote unity of all Chinese ethnic groups”. More than 1,500 miles
away in the Uighurs’ native province, Xinjiang, the Chinese state is taking a more direct approach
to unity.

Reports from foreign media, the UN, Human Rights Watch and other NGOs emerged this summer
of the extrajudicial detention of more than one million Uighur people in “re-education” camps
across the region. Last week there were further reports of preparations for mass deportation.

The paradox is that, while locking up one in every 12 Uighurs, according to the reports, the
government is promoting their culture as a tourist commodity.

There are 56 displays — each dedicated to one of China’s ancient ethnic minorities — in the
nationalities museum, which is spread over vast gardens in the shadow of Beijing’s Olympic village.
The Uighur exhibit sits atop a small hill with a clear view of the Bird’s Nest stadium, one of modern
China’s proudest symbols of achievement.

Although the museum makes scant mention of it, the Uighur are a Muslim minority. Xinjiang, in
the far west of the country bordering central Asia, is seen from Beijing as a restive region. There
were deadly riots in 2009, and 39 people were killed in a terrorist attack in 2014, one year after Xi
Jinping became president.

The camps are part of his government’s retaliatory “strike-hard campaign against violent activities
and terrorism”. But a recent Human Rights Watch report detailed some of the many reasons
unconnected to violence or terrorism for which a Uighur could be sent for re-education.

These include abstaining from alcohol, having a watch set to the time in Urumqi (Xinjiang’s capital)
rather than Beijing time, travelling abroad, speaking to someone who has travelled abroad, eating
breakfast before sunrise, not carrying a government ID card, owning a tent and wearing a hijab.

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Once inside, inmates are forced to recite Communist Party mantras, praise Xi and renounce their
religion. There are widespread reports of torture and overcrowding.

The government denies that the camps exist, despite an increasing number of first-person
accounts from former inmates, prison guards and relatives of detainees. When pressed by the UN,
however, it said that “those deceived by religious extremism . . . shall be assisted by resettlement
and re-education”.

The detention policy, pervasive surveillance and a crackdown on religious practice are seen by
some as an attempt at cultural erasure. Yet the government also promotes a tourist version of
Uighur culture.

“Chinese authorities are OK with certain forms of Uighur cultural expression, provided they can be
controlled and exploited for tourism purposes,” said Gene Bunin, a research scholar at the Ronin
Institute in America, who learned the Uighur language and lived for several years in Xinjiang.

Eight years ago, at Beijing’s initiative, Unesco inscribed the meshrep — a traditional Uighur
gathering involving music and dance — into its list of “intangible cultural heritage in need of
urgent safeguarding”.

Yet more recently the Chinese authorities insisted that some meshreps include a Chinese
children’s pop song, Little Apple, and celebrations of the Communist Party. Unesco safeguarding
“has become a tool in a propaganda campaign”, claims the Uighur Human Rights Project (UHRP), a
Washington-based NGO.

“The government’s policies have gone from paying lip service to diversity while being
assimilationist in practice to open forceful assimilation in the case of the Uighurs,” Nicole Morgret,
UHRP project manager, told The Sunday Times.

Some Uighur cultural expression is still tolerated, but only on state-sanctioned terms and in a way
that many scholars of China have called superficial.

James Leibold of La Trobe University in Melbourne — an expert on Chinese ethnic policy — said Xi
had given a portent of the “erasure and museumification of minority cultures” in a speech in 2014
in which he said: “We shouldn’t continue with what is rotten but rather discard the dross and
select the essence; weed out the chaff to bring forth new roots.”

On the other side of Beijing to the nationalities museum, a young couple prepare to have their
wedding photographs taken. The man is dressed in a long red jacket and a gold taqiyah, an Islamic
rounded skullcap, while the woman wears an extravagant red dress threaded with gold
embroidery and a matching hijab.

They are Beijing Muslims of the more accepted Hui minority, and they are a picture-perfect
example of an aesthetic synthesis that the government celebrates.

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The setting for the photoshoot is Niujie Mosque, the city’s oldest and largest, which has been a
functioning religious site since 996. The architecture is predominantly Han (the dominant Chinese
ethnicity), with flashes of Arabic. It bears more similarity to a traditional Chinese temple than to a
mosque.

Prayers are still held five times a day in a hall which is off-limits to non-Muslims, who buy a ticket
to look around the rest of the site. The mosque is largely supported by the ticket sales.

An attendant says that they receive roughly the same number of worshippers and tourists each
day. Another confides: “It’s not easy to be a Muslim in China.”

A Hui Muslim and a Beijing local, he asks that his name not be used, citing an “unfavourable”
environment in China. He is happy to show guests around, however.

“We are all the same, black or white, we are all peaceful,” he says, but he is not hopeful about the
future of Islam in China. He had more freedom when he was younger, but these days “communism
doesn’t like religion”.

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 6)
BBC

China Uighurs: All you need to know on Muslim 'crackdown'

By Roland HughesBBC News
 16 October 2018

China is facing growing criticism over its persecution of some Muslim minority groups, huge
numbers of whom are allegedly being held in internment camps.

In August, a UN committee heard that up to one million Uighur Muslims and other Muslim groups
could be being detained in the western Xinjiang region, where they're said to be undergoing "re-
education" programmes.

The claims were made by rights groups, but China denies the allegations. At the same time, there's
growing evidence of oppressive surveillance against people living in Xinjiang.

We've developed this new format to try to explain the story to you better.

Who are the Uighurs?

The Uighurs are mostly Muslims, and number about 11 million in western China's Xinjiang region.

They see themselves as culturally and ethnically close to Central Asian nations, and their language
is similar to Turkish.

But in recent decades, there's been a mass migration of Han Chinese (China's ethnic majority) to
Xinjiang, and the Uighurs feel their culture and livelihoods are under threat.

Where is Xinjiang?

It's in the far west of China, and is the country's biggest region. It's bordered by several countries,
including India, Afghanistan and Mongolia. Like Tibet, it's an autonomous region, meaning it - in
theory - has a degree of self-governance away from Beijing. But in practice, both face major
restrictions by the central government.

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For centuries, the economy of Xinjiang has centred on agriculture and trade, and towns thrived
because they were on the Silk Road.

Back in the early 20th Century, the Uighurs briefly declared independence, but the region was
brought under the complete control of mainland China's new Communist government in 1949.

What's happening to people in Xinjiang?

In August 2018, a UN human rights committee was told there were credible reports that China had
"turned the Uighur autonomous region into something that resembles a massive internment
camp". About a million people may have been detained, the committee was told.

The reports are backed by rights groups, with Human Rights Watch saying people with relatives in
26 so-called "sensitive" countries like Indonesia, Kazakhstan and Turkey have been rounded up.

Anyone who has contacted someone abroad via WhatsApp is also targeted, according to HRW.

Rights groups also say people in camps are made to learn Mandarin Chinese, swear loyalty to
President Xi Jinping, and criticise or renounce their faith.

HRW says Uighur people in particular are subject to intense surveillance - from facial recognition
cameras to QR codes on people's doors, so officials can check the codes to see who is inside at any
point. People are also reportedly made to undergo biometric tests.

What has the BBC learned?

Media are almost completely banned from Xinjiang so getting first-hand reports is very difficult.
However, we've managed to visit the region a number of times and seen evidence of camps and
an intense police presence at every level. Officers carried out checks for sensitive material on
people's phones.

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The BBC's Newsnight programme also interviewed former prisoners who were able to leave for
other countries. Here is what they said.

"They wouldn't let me sleep, they would hang me up for hours and would beat me. They had thick
wooden and rubber batons, whips made from twisted wire, needles to pierce the skin, pliers for
pulling out the nails. All these tools were displayed on the table in front of me, ready to use at any
time. And I could hear other people screaming as well."- Omir

"It was dinner time. There were at least 1,200 people holding empty plastic bowls in their hands -
they had to sing pro-Chinese songs to get fed. They were like robots. They seemed to have lost
their souls. I knew many of them well - we used to sit and eat together, but now they behaved like
they were not aware of what they were doing, like someone who had lost their memory after a car
crash." - 'Azat'

What about Uighur violence?

China says it's dealing with a threat from separatist Islamist groups, and while some Uighur
Muslims have joined the Islamic State militant group, rights groups say violence in Xinjiang stems
from China's oppression of people there.

In 2009, riots in the regional capital Urumqi killed at least 200 people, mostly Han Chinese. Since
then, there have been a number of attacks, including one on a police station and government
offices in July 2014 that killed at least 96 people.

Attacks blamed on Xinjiang separatists have also taken place outside the region - in October 2013,
a car was driven into a crowd in Beijing's Tiananmen Square.

The latest government crackdown began after five people were killed in a knife attack in Xinjiang
in February 2017. At the time, Xinjiang's Communist Party boss Chen Quanguo urged government
forces to "bury the corpses of terrorists in the vast sea of a people's war".

What does China say?

China has said it is responding to "ethnic separatism and violent terrorist criminal activities".

At a UN meeting in Geneva in August 2018, Chinese official Hu Lianhe said reports of a million
Uighurs being held in re-education centres were "completely untrue".

But in October 2018, the top official in Xinjiang said "vocational education" centres had been set
up and were proving effective in staving off terrorism.

Shohrat Zakir said classes were given on Chinese history, language and culture, and while he didn't
say whether people were forced to attend, he added people in the centres were provided with
"nutritious, free diets".

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It's very unusual for China to give public explanations about how it deals with the situation in
Xinjiang. And because it controls access to Xinjiang, it's been hard for anyone to receive impartial
information about what is happening there.

What is the world doing?

There's growing international criticism of China's treatment of Uighur Muslims but, as of yet, no
country has taken any action beyond issuing critical statements.

Ahead of British Prime Minister Theresa May's visit to China in January and February 2018, the UK
government said it continued to be concerned over the treatment of Muslims in Xinjiang.

In the US, a congressional committee on China has urged the Trump administration to place
sanctions on officials and companies involved in the "ongoing human rights crisis" in Xinjiang.

The committee wrote: "Muslim ethnic minorities are being subjected to arbitrary detention,
torture, egregious restrictions on religious practice and culture, and a digitized surveillance system
so pervasive that every aspect of daily life is monitored."

The new UN human rights chief Michelle Bachelet has also demanded that monitors be allowed
access to Xinjiang, a request that drew an angry response from Beijing.

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 7)
Youngpost

Hong Kong protests: What are the 'five demands'? What do protesters
want?

The demonstrations have gone from protesting the fugitive bill to pressing for universal
suffrage, and inquiries into alleged police brutality
By Wong Tsui-kai August 20, 2019

At the current Hong Kong protests, asking people there why they are protesting will nearly always
get you the same answer: the five demands.

These are:

1 Full withdrawal of the extradition bill

The proposed extradition bill would have allowed for courts in other places, such as China and
Taiwan, to ask for criminals to be handed over. The protests started over a general mistrust of the
Chinese legal system.

Currently, the government has declared the bill “dead” and insists all work has stopped on the bill.
But protesters demand the formal rules of withdrawing a bill be followed in the Legislative
Council.

On September 4, Chief Executive Carrie Lam Cheng Yuet-ngor pledged to officially withdraw the
law.

2 A commission of inquiry into alleged police brutality

On June 12, police dispersed protesters outside Legco with what protesters say is excessive
force. They have criticised these actions ever since. Protesters also have little confidence in the
current police watchdog, the Independent Police Complaints Council.

3 Retracting the classification of protesters as “rioters”

Shortly after June 12, when protesters surrounded Legco and forced the second reading of the
fugitive bill to be stopped, the Chief Executive, and the Commissioner of Police Stephen Lo Wai-
chung used the term "rioters" to describe protesters, which is a crime that can be punished by up
to 10 years in prison.
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4 Amnesty for arrested protesters

So far, more than 700 protesters have been arrested in connection with the anti-extradition bill
protests so far, charged with crimes ranging from illegal assembly and assaulting police to rioting.

5 Dual universal suffrage, meaning for both the Legislative Council and the Chief Executive

At the moment, only half the seats in Legco - the body which makes the city's laws - are directly
elected by voters. The other 35 seats are from "functional" constituencies, an elected according to
professions or trades. But this means that corporation sand selected voters get to vote for the
representative in their particular sector.

The Chief Executive is elected by a 1,200-member committee. Of those, 900 are representatives of
different sectors of business, only elected by voters in that business. Of the 300 remaining
members of the committee, 70 are members of the Legislative Council and others are
representatives to the Chinese National People's Congress.

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 8)
The Guardian

Hong Kong
What do the Hong Kong protesters want?
The territory has been rocked by protests ending in violent clashes
with police. Demonstrators have five key demands

Alison Rourke

Tue 13 Aug 2019

Protesters have occupied Hong Kong international airport, sparking its closure on
Monday. Photograph: Laurel Chor/EPA

Hong Kong has been rocked by protests since early June, many of which have
ended in violent clashes between police and demonstrators.

Why did the protests start?

The protests were initially focused on a bill that would have made it possible
to extradite people from Hong Kong to China, where the Communist party
controls the courts. Many Hongkongers feared the law would be used by
authorities to target political enemies and that it would signify the end of the
“one country, two systems” policy, eroding the civil rights enjoyed by Hong
Kong residents since the handover of sovereignty from the UK to China in
1997. Millions of people joined street marches against the bill, paralysing the
city. The protests have gone from weekly to almost daily.
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The heavy-handed response from police, including violent clashes and the
use of teargas and rubber bullets against demonstrators and the blinding of a
woman in one eye, prompted the movement adopt wider pro-democracy
goals.

What do the protesters want?

The extradition bill was suspended by the territory’s chief executive, Carrie
Lam, in mid June, but protesters want it officially withdrawn. In addition to
demanding Lam’s resignation, the protesters are calling for:

 The complete withdrawal of the proposed extradition bill

 The government to withdraw the use of the word “riot” in relation to
protests
 The unconditional release of arrested protesters and charges against
them dropped
 An independent inquiry into police behaviour
 Implementation of genuine universal suffrage

An anti-extradition bill protester during a mass demonstration at Hong Kong

international airport Photograph: Tyrone Siu/Reuters

What is going on at Hong Kong airport?

Protests at the airport have escalated, culminating in its temporary

closure and disruption to hundreds of flights, including to long-haul
departures to the US, Australia and the UK. Lam said on Tuesday that
“lawbreaking activities in the name of freedom” were damaging the rule of law
and that the territory’s recovery from the protests could take a long time.

China’s civil aviation authority issued a warning to Hong Kong’s carrier,

Cathay Pacific, about the involvement of its staff in protests. It said that from
11 August, all personnel from the airline “involved in and supporting illegal
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demonstrations” would no longer be able to fly to mainland China or work
there in air transportation.

How has Beijing responded to the protests?

China has accused foreign powers, particularly the US, of fomenting the
demonstrations in Hong Kong. State media has gone from near silence on the
protests and blanket censorship of footage of the demonstrations, to
describing protests as “riots”. Beijing has described protestors are described
as ‘“radicals”, “thugs” and “terrorists” seeking to topple the entire system
through their push for independence. Meanwhile, Chinese army vehicles have
been spotted at the border, stoking fears of a looming violent crackdown.

What has been the international reaction to the protests?

The UK has called for an independent investigation into the protests,

condemned violence and emphasised the right to peaceful protest. China
criticised the intervention and said it was “simply wrong” for Britain’s foreign
secretary, Dominic Raab, to directly call Lam to “exert pressure”.

China asked Washington to explain reports in Communist party-controlled

media that US diplomats were in contact with student leaders of the protests.
A US state department spokesperson responded by calling China a “thuggish
regime” for disclosing photographs and personal details of the diplomat. On
13 August, a senior Trump administration official urged “all sides” to avoid
violence.

Canada’s Justin Trudeau and Australia’s Scott Morrison have voiced their
concern at the handling of the unprecedented political crisis in the wake of the
airport protest. Morrison rejected the characterisation of protests as “riots”
and Trudeau called for a “de-escalation of tensions”.

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 9)
The Guardian
Britain has a duty to help Hong Kong out of this dark moment

Chris Patten

China’s power grab via a new extradition bill must be opposed by governments around the
world, especially Britain’s

Fri 14 Jun 2019

It took something out of the ordinary to provoke a million people in Hong Kong to take to
the streets to demonstrate against proposed new extradition rules. Roughly one-sixth of
the population demonstrated peacefully: families, young and old, lawyers, academics,
students, professionals and manual workers.

What caused such an outpouring against a piece of legislation? Quite simply, the people of
Hong Kong – not British, but Hong Kong Chinese – have seen their government connive
with the Communist regime in Beijing to undermine their way of life and freedoms.

Britain’s departure from Hong Kong in 1997 – a colony we acquired in woeful

circumstances – was done on the basis of a brilliantly imaginative proposal put forward by
former Chinese leader Deng Xiaoping. Hong Kong would return to the control of mainland
China, but on the basis of “one country, two systems”. Hong Kong’s high degree of local
autonomy would continue to be based on the rule of law and on the freedoms associated
with a plural open society.

By and large things did not go too badly in the 10 years or so after the UK left Hong Kong.
China, on the whole, kept its word which had been incorporated in a document called the
joint declaration, which was lodged as an international treaty at the United Nations. The
idea was that Hong Kong would remain as it was until 2047.

Some things were unsatisfactory. The Communist party, for example, throttled back on the
promises it had made about Hong Kong’s nascent democracy. But overall there was not too
much to grumble about, and when the local government pushed too hard to do Beijing’s
bidding – for example over introducing more “patriotic” themes into education – public
protests forced a change of mind.

But two things have happened in recent years. First, Xi Jinping was made party and state
leader and given greater powers. He has exercised these to row back on many of Deng’s
reforms, to increase central control and tackle any signs of dissent within China. Second,
the leadership was plainly rattled by the massive demonstrations that took place in 2014
against further efforts to prevent democracy flowering in Hong Kong.

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Since then things have gone from bad to very bad to even worse. The leaders of the
demonstrations in 2014 have been pursued – even five years after the event – with
reckless, vengeful enthusiasm, using ancient and often obscure colonial-era public order
legislation. People with the “wrong” views have been banned from political activity.
Freedom of speech has been whittled away in the media and in universities. Beijing has
even abducted individuals from Hong Kong and taken them back to the mainland.

Why is this such a fundamental issue? The answer is simple. It demolishes the firewall
between the rule of law in Hong Kong and what passes for the law in China, where there
are no independent courts and where the law is basically whatever the Communist party
wishes it to be. The purported excuse for the change was a case involving an alleged
murderer whose crime had been committed in Taiwan. Beijing said that showed there was
a loophole in the law and that it could only be dealt with by extradition. But 12 former
chairs of the Hong Kong Bar Association pointed out that this particular case could have
been dealt with in other ways, as happens with other common law jurisdictions. We had
always realised that an extradition agreement with China would drive a stake into the heart
of “one country, two systems”.

Malcolm Rifkind, who was foreign secretary in the run-up to the handover, has helpfully
drawn attention to the now unclassified documents which make the UK government’s
position in the 1990s plain. Among many statements which could be cited was this: “It is
government policy to only enter into extradition arrangements with governments whose
judicial system, penal conditions, human rights standards are of an acceptable level.” The
arrangements were not at an acceptable level in the 1990s and they certainly are not
acceptable today.

What are the possible implications if the Hong Kong government does not take a step back
from what is proposed? First, there will be continuing and understandable unrest in the
city. People will lose faith in the institutions of their government and become increasingly
nervous about their prospects and those of their children. Second, Hong Kong’s reputation
as an international commercial and trading hub will be damaged. At the moment the rest
of the world sees Hong Kong as different from the rest of China because it has the rule of
law. It will be enormously damaging if Hong Kong is viewed commercially as no different
from any other city in China.

So what should happen now? Governments around the world – particularly Britain –
should make our views clear about what is happening. And the government in Hong Kong
and its masters in Beijing should realise how much damage will be done to Hong Kong if it
continues to think it can brazen things out, turning to tear gas and rubber bullets to get its
way. The violence we have now seen is not acceptable. It is inevitable that young people
will go too far when peaceful demonstration seems to be ruled out. Attacking police officers
is wrong. But worse still is the totally excessive use of force by the police which has been
condemned by human rights organisations. There should be a public inquiry into these
public order issues.

Carrie Lam and her government should postpone the continuing passage of the legislation
and have further talks with representatives of the community: lawyers, business people
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and representatives of civil society. If the regime in Beijing knew the difference between
propaganda and public diplomacy, this is what it would encourage itself. Chinese leaders
should perhaps ask themselves why it is that since the return of Hong Kong to Chinese
sovereignty, a completely new independence movement has emerged in Hong Kong,
something that I and many other supporters of democracy have always criticised.

As the former sovereign power, Britain has a debt of honour to Hong Kong. I hope that
does not sound too old-fashioned a concept these days.

For China, what is at stake is whether in future the rest of the world will be able to trust it
to keep its word. If it breaks its commitment to Hong Kong, where else can it be trusted?
Sometimes it is difficult to avoid the rather gloomy thought that we are seeing the
emergence of a superpower that does not believe in individual human rights. So much for
the China dream.

• Chris Patten was the final British governor of Hong Kong, from 1992-97

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 10)
The Economist
Chaguan

China’s demand for undivided loyalty is causing tragedy in Hong Kong

Wherever people have choices, Xi Jinping’s China is more feared than loved

Print edition | China

Sep 26th 2019

Over the past four months as many as 2m Hong Kongers—or more than a quarter of the
city’s residents—have marched to demand the scrapping of a bill that would have exposed
criminal suspects to the mainland’s courts. Those protests were a stunning vote of no
confidence in China’s Communist-controlled legal system. They worked: the extradition bill
is being withdrawn.

It is hard to imagine a clearer rallying cry for the many mainlanders who distrust their own
justice system. Their cousins in Hong Kong, guaranteed access to independent courts and
uncensored news under the rubric of “one country, two systems”, could not bear to live as
mainlanders must every day. But dissent in Hong Kong has not proved contagious.

Not all 1.4bn mainlanders think alike, but there are no reports of any of them marching in
sympathy. That may be in part because, thanks to the unsleeping censors who guard the
Great Firewall of China, many know nothing of the extradition debate. But it is also because
an unknowable but significant number accept the narrative of China’s media that
treacherous radicals in Hong Kong, perhaps funded by the cia, are trying to split the
motherland. The widespread acceptance of this narrative is a testament to the government’s
success in shaping the way its citizens see the world.

Yet China’s propaganda machine, so effective at home, is making a fool of itself in Hong
Kong. When officials try to peddle the idea that a silent majority in Hong Kong loves China,
their efforts strike many people in the territory as laughable. Communist-controlled outfits
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in Hong Kong have often simply copied successful stunts by protesters. In mid-September
pro-democracy marchers hiked up a local peak, Lion Rock, creating a chain of lights with
smartphones, torches and laser pointers as dusk fell. The next day a smaller group of red-
clad patriots puffed up the same hill to wave a giant national flag, in images heavily
promoted by the mainland’s media. When youngsters in Hong Kong packed shopping
centres to sing a new protest anthem, small bands of the party faithful were mobilised to
belt out China’s national anthem in the territory’s malls.

On the eve of a spectacular parade in Beijing on October 1st, when tanks and nuclear
missiles will trundle past President Xi Jinping to mark 70 years of the People’s Republic, it is
worth pondering the domestic success of China’s propaganda apparatus, and its external
cluelessness. That machine is best understood as a giant, state-directed monopoly. Within
China, it has grown strong. But in free markets fizzing with ideas and arguments from
around the world, China’s patriotic sloganeering falls flat.

In Hong Kong the city’s former colonial master, Britain, left behind an awkward hybrid. The
territory has the political culture and education system of a liberal democracy. But its
leaders are mostly appointed, with only a minority of political offices opened to direct
election. Since Mr Xi became the Communist Party’s boss, China has betrayed its impatience
with even that limited accountability, and the central government’s agents have worked to
marginalise competing voices.

In 2012, the year Mr Xi took over, the Hong Kong government tried to impose “national
education” on schools, but retreated in the face of mass protests. Politicians seeking greater
autonomy or even independence (a minority view) have been barred from office or from
running for office. A national-anthem law demanded by Beijing, if passed, would make
criminals of Hong Kongers who boo the tune at football games.

The results may be heard in Hong Kong’s shopping centres almost every night. Strolling this
week through Kowloon, Chaguan chanced upon a few dozen youngsters who had been
summoned by Telegram, an encrypted social-media app, to sing the protest anthem in the
atrium of a shopping complex.

Nic, a 25-year-old protester, described his mixed identity. He does not imagine that Hong
Kong can be independent, noting that 50 years after the handover from Britain the promise
of one country, two systems will expire. “In 2047 we will return to China fully, we
understand that,” he says. “But we are trying to protect what we have until the last day.”
When he travels, his passport says “Hong Kong, China”. But when asked who he is, he
replies: a Hong Konger. “China is not what we are proud of,” he explains. “The Chinese
government sucks.”

Politics in Hong Kong is turning dangerously tribal. Rather than a debate about policies, it is
becoming an argument about who is good and who is bad, who is bent on saving Hong Kong
or on destroying it. In that culture war politicians who sympathise with the party conflate
flag-waving patriotism with legitimacy. That has led them to endorse “patriotic” thugs and
alleged gang members, including when they assaulted protesters in the far-northern district
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of Yuen Long in July. That single incident changed the nature of the demonstrations, says
Cheng Chung-Tai, chairman of Civic Passion, a party that wants more autonomy for Hong
Kong. After Yuen Long, showing resistance and defiance to authority became a badge of
belonging to the group that sees itself as defending the territory. “Last Sunday Tseung Kwan
O got tear-gas for the first time. They celebrated,” notes Mr Cheng, referring to an operation
by police to quell protests in an eastern district.

No room for a loyal opposition

Little in Mr Xi’s record suggests that he will respond generously and imaginatively to Hong
Kong’s identity crisis. In other peripheral territories, such as Tibet and Xinjiang, he has
authorised brute force backed by high-tech surveillance and a pounding drumbeat of
propaganda to crush hybrid identities. Hong Kong, a still-vibrant if troubled world city, will
be harder to bring to heel. Alas, 70 years after its founding, China is hostile even to
constrained forms of pluralism. That is why, wherever people have choices, it inspires fear or
awe, but not love.

This article appeared in the China section of the print edition under the headline "Hearts
and minds"

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 11)
The Guardian
Hong Kong can't go back to normal': protesters keep Umbrella spirit alive

Police fire teargas at rally marking five-year anniversary of pro-democracy

movement

Lily Kuo and Erin Hale in Hong Kong

Sat 28 Sep 2019 14.14 BSTLast modified on Mon 30 Sep 2019 17.05 BST

Large numbers of police were on the streets of Hong Kong on Saturday night as officers
conducted stop and searches on public transit lines and questioned residents wearing
black, the colour adopted by protesters, after a mass rally dispersed to mark the fifth
anniversary of the pro-democracy “umbrella movement”.

Protesters changed into civilian clothes in alleys and behind walls of umbrellas in districts
close to government headquarters, where earlier police fired a water cannon filled with dye
and abrasive liquid from behind defensive barriers.

Officers in defensive clothing filled Harcourt Road and a highway overpass in front of the
government complex hundreds of metres deep as protesters on the frontlines threw rocks
at windows and over police barriers.

Before the water cannon was fired, a small band of masked protesters lit a flag of the
Chinese Communist party on fire, shouting “fuck Communists” and “fight for freedom!” to
cheers from nearby crowds.

The gathering, however, lasted less than two hours as tactical police arrived on the scene,
forcing protesters to flee over road barriers to avoid arrest before larger demonstrations
planned for the rest of the week.

Some said they would head to Mong Kok police station on the Kowloon peninsula, where
protesters have regularly gathered in small numbers to shine lasers and shout at police.

Major demonstrations, however, appeared to be over for the night as protesters

disappeared into the winding side streets of the historic Central and Sheung Wan districts
even as two subway stations on Hong Kong island were closed.

Earlier, thousands of peaceful protesters filled Tamar Park on the other side of the
government complex to remember the umbrella movement that paralysed Hong Kong for
79 days in 2014, forming the basis for the current protest movement that has roiled the city
for the past four months.
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Before the police-sanctioned rally began in Tamar Park, next to the government buildings,
officers raised a red warning flag and fired pepper spray on protesters, who were shining
lasers and banging on the gates of the central government building. Protesters dispersed
and occupied an adjacent major road.

The police said “violent protesters” had damaged property and aimed laser beams at a
helicopter, “posing a serious threat to the safety of everyone at the scene”.

Later, police used teargas and a water cannon, which sprayed pepper-laced blue dye over
protesters who had been throwing rocks over the barrier, shattering windows on the lower
level of the government headquarters. They also threw petrol bombs at police.

Hong Kong was braced for consecutive days of protests and probable clashes, culminating
with anti-government demonstrations on Tuesday to coincide with China’s National Day, a
politically important anniversary marking 70 years since the founding of the People’s
Republic of China.

Hong Kong’s legislature put out a “red alert”, evacuating staff and politicians from the
legislative complex, which protesters have previously broken into. Dozens of riot police
vans were parked nearby, and water barriers protected the government building.

Protesters clad in black, with gas masks and helmets, were also preparing for clashes. “The
Hong Kong police are attacking our protesters and the force is unnecessary,” said a 22-
year-old man, who planned to be on the frontline of protests to try to protect other
demonstrators. He asked not to give his name for fear of arrest.

“What we really want is not to fight with police; all we want is to protect the people who are
peaceful so they can safely leave,” he said.

Earlier on Saturday, protesters hung banners and plastered posters outside the complex,
building a “Lennon wall,” named after the John Lennon Wall in Prague, for political graffiti
and messages. A group of masked musicians and singers performed the song Glory to
Hong Kong, which has become the protesters’ anthem.

The Lennon wall stretched around the government complex, where it was originally started
in 2014. Demonstrators hung large banners in yellow, the colour of the Umbrella
movement, with the words: “We are back.”

The protests, which began in June over an extradition bill, have now lasted longer than the
Umbrella movement and have expanded both in scope and tactics. The mostly non-violent
2014 protests were concentrated on a major road outside the government buildings.

The recent demonstrations have sprung up across the city under the mantra “Be water” – a
quote from the actor Bruce Lee. The protesters’ demands echo those in 2014 – the
implementation of genuine universal suffrage – but have also demanded an independent
inquiry into police behaviour and reforms to the police force, which has lost considerable
public trust.

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The protests have often turned violent, with police firing thousands of rounds of teargas
and pepper spray on protesters, as well as deploying water cannon. Protesters have also
increasingly been physically attacking critics and people they accuse of being “mainland
spies”.

As thousands rallied on Friday against the government’s use of a controversial holding

centre, a woman was kicked, punched and spray-painted for tearing down posters. Other
protesters tried to protect the woman and treat a head wound as the attack continued.

“These people started beating me up for no reason,” she said, declining to give her name.
She acknowledged she had torn down the protesters’ posters but criticised them for not
allowing her to express her views.

“It doesn’t mean that people with different political views should be beaten up,” she said.
“If you encourage democracy, freedom of speech, this is not the way that people should do
[it].”

Despite the violence, the protesters maintain broad public support. “If I were 50 years
younger, I would be out there at the front with them,” said Ng Yin Fai, 72, who has been
joining the protests since June. “If we don’t protest today, we won’t have this chance
again.”

On Saturday a US academic who testified in a congressional hearing alongside democracy

activists last week was denied entry to Hong Kong. Dan Garrett said officials told him he
could not enter because of “unspecified immigration reasons”.

A government spokesman, responding to protesters’ calls for universal suffrage, said “one
man, one vote”was the ultimate goal, as enshrined in Hong Kong’s constitution.

“To achieve this aim, the community needs to engage in dialogues, premised on the legal
basis and under a peaceful atmosphere with mutual trust, with a view to narrowing
differences and attaining a consensus agreeable to all sides,” the government said in a
statement.

Residents said that while they were scared of potential arrest or violence from the police,
they would continue to protest. “Some of us may feel scared deep inside when we see the
police. We feel scared by being simply young or just wearing black,” said Yen, a secretary in
her 30s, as she glued black paper stars with the words “Liberate Hong Kong” on to a
pavement.

She said China’s influence over Hong Kong had grown since the Umbrella movement
ended, with the press and freedom of expression being stifled and pro-democracy activists
being charged and jailed.

“Just being frightened is not an excuse for us, because we have no way back,” she said. “We
can’t go back to our normal state where China is taking over.”

Additional reporting by Laurel Chor

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 12)
The Standard
Asylum seekers ask HK to end uncertainty
Local | 6 Mar 2019 5:38 pm

A group of asylum seekers stuck in Hong Kong for over a decade is appealing to the
government to grant documentation that would allow them to move on with their lives,
RTHK reports.

They say Hong Kong's system for screening asylum claims has clearly failed them, as they
have wasted more than a third of their lives going through the process.

The group held a protest outside the Legislative Council today. The participants covered
their faces and were reluctant to reveal their real names, as their cases are either being
screened, appealed, or judicially reviewed.

They either want to be allowed to stay in Hong Kong legally, or be given documentation
that would allow them to leave for another country.

An asylum seeker at the protest – who calls himself Mr K – said they just want to be
treated like human beings.

"Over 10 years, somebody took that freedom and put [it] somewhere. At the end of the
day, we are asking ourselves, are we human beings in this planet or what?” he lamented.

"If I’ve committed a crime, you condemn me for a month or a year. And you know, after
that year you are free. But in this situation, you don’t know how long are you going to [wait
to] be free. You don’t know how long are they going to keep you,” he said.

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Asylum seekers are not allowed to work in Hong Kong, and Michael, who arrived in the
SAR in 2005, said government support is not enough. He also said they should be helped
to leave.

Michael said asylum seekers should not have to wait until they are in their 50s or 60s until
they get a decision.

"Let us live our own lives. If you can’t keep us here, give us a chance to go somewhere so
that people can live their lives,” he said.

Civic Party lawmaker Dennis Kwok is trying to help the group.

He said there are about 20 people who have been stuck in limbo in Hong Kong for a long
time. He said unlike what some people in society say about asylum seekers using up local
resources and being a nuisance, these people don't even want to be in the city.

"They have genuine fears about going back to their own countries. I believe them, because
if they could really go back to their own country, they would have gone back already,” said
Kwok.

"They wouldn’t be stuck here for over 15 years and doing nothing with their lives. So these
people have genuine fears. Whether we accept that or not, I think we should at least help
them move on, move away from Hong Kong so that they can find a new life elsewhere,” he
said.

The group said granting these requests to those who have been in Hong Kong for more
than 10 years, without a criminal record, is the only way to normalize their lives.

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 13)
France 24

Hong Kong leader slams Germany for

giving asylum to runaway duo
Issued on: 24/05/2019 - 15:02

Hong Kong Chief Executive Carrie Lam slammed Germany's decision to grant asylum to
Ray Wong and Alan Li COURTESY OF RAY WONG/AFP/File
Hong Kong's leader lashed out at Germany Friday for granting asylum to two fugitives
involved in a violent 2016 political protest, summoning Berlin's envoy for an explanation.

Chief executive Carrie Lam took action two days after former pro-independence activists
Ray Wong and Alan Li broke their silence on their whereabouts after skipping bail in 2017
to avoid standing trial on riot charges.

Wong and Li have been granted refugee status in Germany in what is one of the first
cases of dissenters from the semi-autonomous Chinese city receiving such protection.
ADVERTISING
In an afternoon meeting with David Schmidt -- Germany's acting consul general -- Lam
said she "strongly objects to and deeply regrets" Bonn's move, according to a government
statement.

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"Anyone accused of breaching the law in Hong Kong would face an open and fair trial,"
Lam said in the statement.

Wong and Li faced riot charges relating to Lunar New Year clashes in February 2016 -- the
city's worst political violence in decades -- when protesters hurled bricks torn from
pavements and set rubbish alight in the commercial district of Mong Kok.

The saw scores arrested and left dozens injured -- including police officers.

Lam's statement said Wong and Li faced "serious charges" -- including rioting and
assaulting police -- and their action had "seriously jeopardised public order and safety".

She questioned whether Germany's decision to grant them asylum was based on facts.

Germany' move highlights growing fears that freedoms in Hong Kong are quickly
deteriorating as an assertive Beijing flexes its muscles and stamps down on dissent.

Wong, 25, told AFP that he was "paying a big price" in exile despite avoiding possible jail.

He said there was "zero chance" he could ever return to Hong Kong if a controversial
extradition bill currently being mulled by the city was passed, fearing he could ultimately be
brought to mainland China.

A Hong Kong Watch report said Germany's decision to grant the pair amnesty was
because they faced trial under a punitive law that has been used to crackdown on and
imprison the city's political opposition.

"The decision... is a sign of the urgent need to reform the Public Order Ordinance, a law
which has been repeatedly been criticised by the United Nations for breaching human
rights standards, and now is causing a chilling effect on protest in Hong Kong," said
Benedict Rogers, chair of Hong Kong Watch.

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 14)
CNBC
China calls on Germany to correct ‘mistakes’ over asylum for Hong Kong
independence activists

PUBLISHED FRI, JUL 19 20194:20 AM EDTUPD ATED FRI, JUL 19 20195:46

AM EDT

China has made “solemn representations” to Germany after it granted refugee status to
two Hong Kong activists facing rioting charges in the Chinese-ruled city, demanding it
correct its “mistakes”, state news agency Xinhua reported on Saturday.

Xinhua said the Hong Kong office of China’s foreign ministry summoned Germany’s Acting
Consul General to Hong Kong David Schmidt for an emergency meeting on Friday, where
a representative expressed “strong dissatisfaction and resolute opposition”.

The two Hong Kong activists - Ray Wong, 25, and Alan Li, 27 - were former members of
Hong Kong Indigenous, a group advocating Hong Kong’s independence from China. They
were charged for rioting linked to a protest that turned violent in February 2016.

The pair, who later skipped bail and fled to Germany in 2017 via Taiwan, told Reuters this
week they were granted refugee asylum status in Germany in May 2018.

″(China) urges the German side to recognize its mistakes and change its course, and not
to accept and condone criminals, and interfere in Hong Kong affairs and China’s internal
affairs,” Xinhua said.

The German consulate said this week it was aware that the two Hong Kong residents were
staying in Germany, although it could not provide details on individual cases.

Hong Kong activists have become increasingly defiant in recent years, concerned about
creeping interference from Beijing despite a promise of special autonomy for the city,
which returned to Chinese rule in 1997.

Scores of activists have been jailed on various charges including contempt of court and
public nuisance. Critics said Hong Kong authorities have brought such charges to stifle
freedom of expression and assembly.

Hong Kong’s Chief Executive Carrie Lam has also expressed “deep regrets and strong
objections” to the German authorities. Hong Kong authorities deny persecuting activists.

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 15)
Bloomberg
Politics

Hong Kong Protesters Who Stormed Legco Seek Asylum in Taiwan: Report

By Iain Marlow and Adela Lin

19 July 2019, 05:42 BST Updated on 19 July 2019, 11:27 BST

Dozens of Hong Kong protesters involved in the ransacking of the city’s Legislative Council
this month have arrived in Taiwan to seek asylum, the Apple Daily newspaper reported.

About 30 protesters have already landed in Taiwan, while as many as 30 others -- and
possibly more -- are planning to try soon, the Hong Kong newspaper said, citing
unidentified people who assisted them.

The fleeing activists were part of the group that smashed into the legislature on July 1, the
paper said. The people who assisted the protesters told the paper they had been in
contact with Taiwan’s Mainland Affairs Council, which handles the island’s relations with
Beijing, to seek help.

The council hasn’t received any formal asylum applications from Taiwan’s National
Immigration Agency, its deputy minister Chiu Chui-cheng said in a text message. If Taiwan
receives any applications, authorities will handle them appropriately based on existing
regulations and the principle of protecting human rights, Chiu added.

A flight to Taiwan by Hong Kong asylum seekers would be fraught with geopolitical risk. It
threatens to raise tensions between the administration of Taiwanese President Tsai Ing-
Wen, a China critic who’s up for re-election in January, and Chinese President Xi Jinping,
who has already faced embarrassment over the global attention paid to Hong Kong’s anti-
government protests.

Hong Kong’s historic demonstrations over legislation that would allow extraditions to the
mainland for the first time have resonated widely in democratically run Taiwan, which
China considers a wayward province.

The Taiwan Association for Human Rights, a top local non-governmental organization,
wouldn’t comment on the case. “We cannot divulge any information regarding any
individual case,” said Secretary-General, Chiu E-ling. “If there are individuals who
135
approach us for help, we’ll interview these people and help them get in touch with
government officials if that is what they wish.”

Protesters used a metal cart as a battering ram to break their way into the legislative
building on the anniversary of Hong Kong’s return from British rule, spray-painting slogans
on its chamber’s walls and draping a Union Jack-emblazoned colonial flag across the dais.

At the time, Hong Kong’s leader Carrie Lam condemned the “extreme use of violence and
vandalism” and supported the police’s decision to leave it undefended in the face of a
small group of protesters.

Emily Leung, a spokeswoman for Lam, referred queries on the report to the Hong Kong
police, who declined to comment on Friday.who didn’t immediately respond to a call and
an email Friday for comment.

— With assistance by Ina Zhou, Kari Soo Lindberg, and Debby Wu

136
 16)
The Latest: Hong Kong dissidents take part
in German seminar

By The Associated Press

June 4, 2019 9:08 am

5 min read

4 Shares

BEIJING (AP) — The Latest on the 30th anniversary of the Tiananmen Square crackdown (all
times local):

9 p.m.

Two Hong Kong dissidents whose case caused a diplomatic stir when it was revealed that Germany
had granted them asylum are taking part in a seminar marking the Tiananmen crackdown hosted by
Germany’s opposition Greens party.

Late last month, Hong Kong’s leader summoned the German consul to complain about Berlin
granting asylum to Ray Wong Toi Yeung and fellow pro-democracy protester Alan Li Tung Sing
last year.

In an opinion essay in Tuesday’s New York Times, Wong said “the situation is dire” in Hong Kong.

He wrote, “The Chinese government keeps repressing, but people keep resisting.”

Wong will speak at the seminar.

___

5:20 p.m.

Taiwanese President Tsai Ing-wen is using the 30th anniversary of China’s crackdown on the
Tiananmen Square pro-democracy protests to highlight the contrast between her democratically
elected government and China’s authoritarian communist system.

137
In a Facebook post Tuesday, Tsai said China had shown that it not only had no intention of
reflecting on “that year’s mistake” but also planned to continue covering up the truth about the
incident.

Tsai cited comments Sunday by China’s defense minister at a forum in Singapore defending the
army’s bloody assault on protesters and Beijing citizens, as well as Hong Kong’s refusal to allow
entry to former student leader Feng Congde.

Tsai wrote: “Please rest easy, Taiwan will absolutely adhere to democracy, adhere to freedom,
regardless of threats or infiltration.”

___

3:45 p.m.

Chinese overseas are reporting they are being blocked from posting on a popular Chinese social
networking site.

Three people said on Twitter that their attempts to post on Weibo were greeted with an error
message saying that users with an overseas IP address could not make posts on the China-based
service.

China restricts information before and during the 30th anniversary of a deadly military crackdown
on pro-democracy protesters in Beijing’s Tiananmen Square. There is virtually no mention in
mainland China of the crackdown that took place the night of June 3-4, 1989, and is believed to
have killed hundreds and possibly thousands of people.

Weibo did not respond immediately to a request for comment.

___

2:45 p.m.

Pro-democracy activists in Hong Kong are preparing for a candlelight vigil commemorating the
Tiananmen protests and remembering the victims of the crackdown.

The semi-autonomous territory is the only region under Beijing’s jurisdiction which has a
significant public commemoration of the 1989 crackdown. Hong Kong has a degree of freedom not
seen on the mainland as a legacy of British rule.

The event beginning at 8 p.m. Tuesday is expected to attract tens of thousands of participants.

At the University of Hong Kong, a dozen students laid bouquets at the “Pillar of Shame,” a
sculpture by Danish artist Jens Galschiot commemorating the crackdown’s victims.

“Just because I wasn’t born then and never experienced the event, there’s no stopping me from
reminding others like me of this and carrying on the collective memory,” said student Donald
Chung, 18.

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___

1:45 p.m.

China is keeping up its practice of removing dissidents from contact around sensitive political dates
on the 30th anniversary of the Tiananmen Square crackdown.

Individuals whose views are considered threatening are typically taken for what are euphemistically
called “vacations” far from home. Others are placed under house arrest or their movements and
communications are curtailed.

A half-dozen activists could not be reached by phone or text Tuesday, and one who responded,
Beijing-based Hu Jia, said he was taken to the eastern coastal city of Qinghuangdao on May 30 by
security agents. Though he was able to answer the phone, guards were by his side and he was only
able to say a few words. “This is a reflection of their fears, their terror, not ours,” Hu said.

Rights groups say special restrictions also were placed on members of the Tiananmen Mothers
group, including Zhang Xianling, 81, and Ding Zilin, 82, whose sons were killed in the military
assault on the night of June 3-4, 1989, that is believed to have killed hundreds and possibly
thousands of people.

___

12:55 p.m.

The European Union is mourning the victims of the 1989 crackdown on Tiananmen pro-democracy
protests on its 30th anniversary and calling on China to release pro-democracy activists.

In a statement, EU foreign policy chief Federica Mogherini recalled how the European Council
denounced the “brutal repression” in Beijing at a June 1989 meeting and said the Communist
regime needs to account a full account of its actions three decades ago.

Mogherini said: “Acknowledgement of these events, and of those killed, detained or missing in
connection with the Tiananmen Square protests, is important for future generations and for the
collective memory.

Mogherini added: “We expect the legal safeguards and due process rights of those detained in
connection with the 1989 events, or with current activities to commemorate it, to be respected.”

___

11:45 a.m.

China has accused U.S. Secretary of State Mike Pompeo of smearing its domestic and foreign
policies in a critical statement he issued on the 30th anniversary of the crackdown on the 1989
Tiananmen Square protests.

A Chinese spokesman said in a post Tuesday on the website of the Chinese embassy in Washington,
D.C., that Pompeo’s statement “grossly intervenes” in China’s internal affairs and is “an affront to
the Chinese people and a serious violation of international law.”

139
Pompeo’s statement saluted the protesters and urged the Chinese government to make a full public
accounting of those killed in the crackdown. It added that America’s hopes that China would
become a more open and tolerant society have been dashed.

___

10:20 a.m.

Chinese authorities have stepped up security around Tiananmen Square in central Beijing, a
reminder of the government’s attempts to quash any memories of a bloody crackdown on pro-
democracy protests 30 years ago.

Extra checkpoints and street closures greeted tourists who showed up early Tuesday morning to
watch the daily flag-raising ceremony. An honor guard marched across a barricaded street and
raised the Chinese flag.

Foreign journalists were not allowed onto the square to record events.

Hundreds, if not thousands of people are believed to have been killed in 1989 when the government
sent in the military to clear Tiananmen Square of protesters in an operation that began the night of
June 3 and ended the following morning.

Any commemoration of the event is not allowed in China.

Copyright © 2019 The Associated Press. All rights reserved. This website is not intended for users
located within the European Economic Area.

140
 17)
The Guardian
Hong Kong: Angela Merkel says China must 'guarantee' rights and freedoms

‘In the current situation, everything must be done to avoid violence,’ German chancellor says in
Beijing

Agence France-Presse

Sat 7 Sep 2019 01.55 BST

Angela Merkel says she discussed civil rights in Hong Kong with China’s leaders. Photograph:
Andrea Verdelli/Getty Images

The German chancellor, Angela Merkel, has said the rights and freedoms of people in Hong Kong
“must be guaranteed” after meeting with the Chinese premier, Li Keqiang, in Beijing.

Hong Kong has faced months of pro-democracy protests, and ahead of Merkels three-day visit to
China this week demonstrators in the semi-autonomous city appealed to the German chancellor to
support them in her meetings with China’s leaders.

Merkel said she had discussed tensions in the former British colony, and civil rights there, with her
hosts and had “pointed out that these rights and freedoms must of course be guaranteed”.

“In the current situation, everything must be done to avoid violence,” Merkel said at a joint press
conference with Li.

“And the solutions can only be found in a political process – meaning through dialogue.”

Merkel arrived in China on Thursday with a large business delegation in tow. The companies
travelling with Merkel include Volkswagen, Allianz and Deutsche Bank, according to the German
daily Bild, which carried a headline Friday that read: “Do our companies not care about Hong
Kong’s freedom?”

141
Press access to her visit was unusually tight, with a number of members of the Beijing foreign
press corps, including AFP, unable to get accreditation for the event.

In a statement, the German Federation of Journalists criticised the limited access as a “diplomatic
farce”.

“What image do the organisers have of the travelling German press? Did they think that the
chancellor of Germany is coming with her courtiers, who politely listen, ask no questions and
report meekly?” it said. Chinese officials blamed a lack of space due to a large contingent of
journalists accompanying Merkel.

Merkel also met the Chinese president, Xi Jinping, on Friday evening, according to state news
agency Xinhua, and the two leaders were scheduled to have dinner together.

Xi said that with unilateralism and protectionism posing a serious threat to world stability it is
“increasingly important” for China and Germany to strengthen cooperation, on the basis of mutual
respect, Xinhua reported.

The German leader is also due to give a speech to university students in the central city of Wuhan
on Saturday.

Ahead of her trip, prominent Hong Kong democracy activist Joshua Wong and others had recalled,
in an open letter published by Bild on Wednesday, that Merkel grew up in the communist police
state of East Germany.

“You have firsthand experience of the terrors of a dictatorial government,” the letter read.

Hong Kong's leader withdraws extradition bill that ignited mass protests

“We hope that you will express your concern about our catastrophic situation, and that you will
convey our demands to the Chinese government during your stay in China.”

142
Hong Kong has endured dozens of sometimes violent pro-democracy protests triggered by
opposition to a now-withdrawn bill that would have allowed extradition to mainland China.

In their open letter the protesters also warned that “Germany should be on its guard before doing
business with China, as China does not comply with international law and has repeatedly broken
its promises”.

A number of Chinese dissidents have been given refuge in Germany, including the artist Ai Weiwei.

In May two former Hong Kong independence activists were granted refugee status in Germany in
what is one of the first cases of dissenters from the semi-autonomous Chinese city receiving such
protection.

On a visit to China in 2018, Merkel met with the wife of a Chinese human rights lawyer charged
with state subversion, an extremely rare meeting between a dissident and a visiting head of state.

The trip marks her 12th visit to China as chancellor.

Xinhua said China accounted for the largest share of imports into Germany in 2018 with goods
worth €106.2 bn ($117.4 bn).

143
 18)
AP
Taiwan says it will treat Hong Kong asylum seekers humanely
July 20, 2019

TAIPEI, Taiwan (AP) — Taiwanese President Tsai Ing-wen said she would follow “humanitarian
principles” in dealing with asylum seekers from Hong Kong, which has been roiled by pro-
democracy protests.

Tsai made the comments after Radio Free Asia reported that more than a dozen protesters from
Hong Kong have fled to Taiwan.

In response, China’s foreign ministry Friday accused Taiwan of exhibiting fake benevolence.

“We advise some people on the island not to jump out at this moment pretending to
compassionate,” spokesman Geng Shuang said at a regular briefing. “They themselves are no more
than clay Buddhas.” The moniker is an apparent reference to an old Chinese saying: When a clay
Buddha attempts to cross a river, it can barely protect itself, let alone others.

Taiwan does not have a formal refugee policy, and any move to resettle Hong Kong protesters is
likely to anger Beijing.

Hong Kong is a Chinese territory that has been rocked over the last month by massive protests
against an extradition bill that would allow residents to be tried in mainland China. China also
claims Taiwan as its territory, though the democratically governed island split from the Communist
Party-ruled mainland amid civil war in 1949.

144
Tsai spoke to reporters during a visit this week to Saint Lucia, an eastern Caribbean island nation
that is among Taiwan’s few remaining allies. Beijing has chipped away at Taiwan’s allies by
making a break in diplomatic relations with Taiwan a prerequisite for establishing relations with
China.

Germany granted asylum last year to two pro-democracy activists from Hong Kong.

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 19)
Amnesty International

REFUGEES AND ASYLUM SEEKERS IN HONG KONG

29 April 2019

“Everyone has the right to seek and to enjoy in other countries asylum from
persecution”
reads Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was proclaimed and
adopted by the United Nations General Assembly in 1948 and is widely recognised by most countries.
And yet we have witnessed so much of its failings in recent months when the refugee crisis heightened
across the globe. While it seems that Hong Kong is very far away from the happenings in Europe as
they are dealing with the influx of asylum seekers, and is not affected by the Rohingya issues
originated in Myanmar, we are experiencing an increasingly hostile atmosphere against migrants and
asylum seekers stirred up by local media and politicians.

In view of the current social atmosphere, Amnesty International Hong Kong and HK Community
Connect collaborated in April to host an event specifically on the topic of refugees and asylum seekers
in the hope to rebut some of the most bogus comments against this vulnerable group of people. We
invited Mark Daly, human rights lawyer and Principal of Daly & Associates, and Zamira Monteiro, Public

146
Engagement Coordinator of Justice Centre Hong Kong, to speak about their work and personal
experiences in handling refugee cases. It was also our pleasure to invite an asylum seeker in Hong Kong
Andrew (name altered to protect his/her identity) to speak about his personal experience going
through the Unified Screening Mechanism (USM) and the injustices he encountered in this system.

In his sharing, Mark mentioned several cases and anecdotes which he provided legal support to asylum
seekers and represented them as a legal counsel. In one case, the asylum seeker was eventually
recognised as a refugee and was resettled to Canada. Mark told us this was one of the few cases he felt
satisfied with. “I and my family visited his family in Canada. Their kids were bumping around… This
would not have happened if his case was not successful”, said Mark. In response to a question from
the audience, Mark also expressed his concerns over government’s denying asylum seekers their right
to work and only providing less than $3000 allowance per month to these people, subjecting them to a
destitute living condition in Hong Kong. He encouraged the audience to “get informed with the
genuine situations of refugees by reading balanced news”.

Echoing Mark’s speech, Zamira began her sharing by asking the audience if their parents or
grandparents are migrants from countries and cities outside Hong Kong. Not surprisingly, many
members of the audience have parents or grandparents either from mainland China or other
countries. “Currently, in Hong Kong, we have a crisis but it is not a refugee crisis. We do not have a
refugee crisis in Hong Kong because the number of refugees coming into our city is really not high.
Instead, we have a crisis of fear”, said Zamira. She criticised that there have been a considerable
amount of media and politicians generating fearmongering statements against torture protection
claimants recently, which created an intimidating atmosphere for these vulnerable people. “People
called us asking why the media and politicians are attacking them and would these comments affect
their applications for torture claims. People are scared.” In light of recent events, Justice Centre is
working with refugees in a programme called Voice for Protection in order to train them to advocate
for their rights in different occasions.

Both Mark and Zamira believed quitting the United Nations Convention against Torture (UNCAT) will
not automatically solve the current “refugees issues” in Hong Kong, as proposed by various politicians.
Zamira reminded us that “the UNCAT does not only protect the right of asylum seekers but also the
right of every person in Hong Kong not to be tortured.” In fact, if Hong Kong opts to withdraw from the
147
Convention, it will waive the legal liability of Hong Kong government in cases of tortures or inhumane
treatments and will lead to a disastrous aftermath.

As a city taking pride of its international and multicultural heritage, it is truly sad to see recent
xenophobic sentiments in Hong Kong society fueled by politicians and media outlets. Although Hong
Kong is not a party to United Nations Convention Relating to the Status of Refugees, we still have an
international obligation of non-refoulment as stipulated in UNCAT. Hong Kong government should not
hide away from its obligation and should streamline all torture protection claims in no time. USM
system should be accelerated in order to avoid any abuse of the system and the government should
create a welcoming atmosphere for everyone who is seeking refuge in this city.

148
 20)
South China Morning Post
Fugitives granted asylum in Germany say they faced ‘unfair trial’ and call on
international community to oppose Hong Kong’s extradition bill

 Ray Wong and Alan Li, who skipped bail in 2017 while awaiting trial on charges related to
Mong Kok riot, granted refugee protection status last year
 Pair appeared at a seminar organised by German Green Party commemorating the 30th
anniversary of the Tiananmen Square crackdown

Cherie Chan
Published: 12:45pm, 5 Jun, 2019

Ray Wong (third from left) and Alan Li (second from right) pictured at an event organised
by the German Green Party to mark the 30th anniversary of the Tiananmen crackdown.
Photo: Cherie Chan

Two Hong Kong fugitives granted refugee protection status in Germany say they decided
to flee because they faced an “unfair” trial, arguing they had a responsibility to draw
international attention to the erosion of freedom in their hometown.

149
Ray Wong Toi-yeung and Alan Li Tung-sing, who skipped bail in 2017 to avoid facing trial
on charges related to the Mong Kok riot the previous year, made their first public
appearance on Tuesday since news of their status came to light last month.

Wong said the pair left Hong Kong thinking the charges would be stacked against them in
their trial.

“I thought the trial would be unfair, because the government had launched charges against
us under the Public Order Ordinance, which was criticised by the United Nations Human
Rights Council and [former Hong Kong governor] Chris Patten,” Wong said.

“Since we thought we would not have a fair trial, we had good reason to leave.”

Patten wrote to the Post last year that the use of the ordinance was a “direct
contravention” of the International Covenant on Civil and Political Rights, adopted in Hong
Kong’s
Basic Law
, the city’s mini-constitution.

He also said the use of charges under the ordinance might lead to excessive restrictions
on the right to participate in public gatherings.

Wong also called on the international community to oppose the city’s controversial
extradition bill
, which he said could further weaken the legal boundaries between Hong Kong and China.
“This extradition bill is breaking the ‘firewall’ between Hong Kong and China. It will spell the
end of ‘one country, two systems’, as well as Hong Kong,” Wong said as he attended a
seminar organised by the German Green Party to mark the 30th anniversary of the
Tiananmen Square crackdown
on Tuesday.

“For me personally, I will never be able to go back to Hong Kong.”

Li and Wong were granted refugee status in 2018, having skipped bail in Hong Kong the
previous year. Photo: Cherie Chan
150
The bill, if passed, would allow the transfer of fugitives to any jurisdiction the city lacks an
extradition treaty with, including mainland China. Critics have expressed concern over the
lack of human rights safeguards and fair trials on the mainland.

Wong and Li, members of the separatist group Hong Kong Indigenous, said they no longer
advocated breaking away from China as they thought the biggest issue for the city now
was how to regain and safeguard the freedoms it once had.

Wong also said the group originally intended to have Edward Leung Tin-kei, the poster boy
of the pro-independence movement, skip bail, and he himself would stay in Hong Kong.

“But Edward changed his mind and decided to face trial in Hong Kong; that’s when I
started to think about fleeing,” Wong said.

Leung was eventually jailed for six years for rioting.

Responding to criticism at home for jumping bail, Wong said the trial was not a fair one in
the first place.

“Someone has to spread the message and draw international attention to what’s
happening to Hong Kong,” he said, adding it was not an easy decision to leave.

“The two of us may not be able to go back to Hong Kong, to the city where we grew up,
where our family and friends are. I had a breakdown one time, thinking there’s a chance I
may never be able to go back.”

Both Beijing and Hong Kong leader Carrie Lam Cheng Yuet-ngor earlier
strongly criticised Germany’s decision
to grant the pair refugee protection.

In a written reply to the Post on Wednesday, Hong Kong’s Security Bureau said it would
not comment on Wong’s allegations about an unfair trial as judicial proceedings had not
ended.

“The Department of Justice has all along upheld its constitutional duty … in handling all
prosecution work in an impartial and professional manner, free from any interference,” the
statement said.

“The [department] makes all prosecutorial decisions fairly and impartially … after careful
and comprehensive consideration of the applicable law and the relevant evidence.

“In every criminal prosecution in Hong Kong, defendants face a fair and open trial and
have access to legal representation.”

It added that “if a defendant is convicted after trial and sentenced, there is a sound appeal
mechanism for him to appeal against his conviction and/or sentence.”

Wong and Li also revealed they were told Beijing had tried to intervene in their asylum
application in Germany.
151
Documents obtained by their lawyers, which included email exchanges between
Germany’s Federal Office for Migration and Refugees and the local authorities of
Goettingen, showed China contacted Germany in 2018 to demand the asylum applications
for the two be denied, Wong said.

“So I believe both the Chinese and Hong Kong government were aware of our applications
by June 2018,” he said.

The pair said that learning German would now be their priority, and that for democratic
development in Hong Kong to move forward the support of the international community
was vital.

“There are many people here who are not aware of the political situation in Hong Kong.
Many know about what’s happening in Tibet, Xinjiang, or even Taiwan. I would like to
spread the message that Hong Kong is also facing a critical situation,” Wong said.

Additional reporting by Su Xinqi and Sum Lok-kei

This article appeared in the South China Morning Post print edition as: Fugitives who fled
to Germany speak about their fears

152
 21)
South China Morning Post

Taiwan struggling to deal with influx of Hong Kong protesters seeking refuge

 Anywhere between a dozen and 60 protesters have arrived on the island since July,
but there is no clear legal road map for how to process their cases
 President Tsai Ing-wen has said their cases will be handled ‘appropriately’ but it is not
clear if the government will give them refuge

Mimi Lau

Published: 7:15am, 20 Jul, 2019

Taiwan is struggling to handle the sudden arrival of dozens of extradition bill protesters
from Hong Kong who want to seek refuge on the self-ruled island.

Although members of Taiwanese civil society have already offered safe houses for the
new arrivals, their status remains unclear since the protesters have not yet been charged
with criminal offences in Hong Kong and verifying their claims to have taken part in the
mass protests will be tricky.

Legal analysts also warned that the situation would be further complicated by Taiwan’s
lack of clear and specific laws on handling asylum and refugee claims.

Although President Tsai Ing-wen said on Thursday that Taiwan would “handle their cases
in appropriate ways” and on “humanitarian grounds”, the government has yet to indicate if
it would offer refuge to the protesters.

According to Taiwanese activists who are assisting the new arrivals, between a dozen and
60 protesters have arrived from Hong Kong since early July, most of whom are currently
staying in hostels with the aid of local civic bodies.

153
Activists argue that Taiwan urgently needs to speed up its legislative process for handling
refugees and asylum seekers as the island has seen an increasing number of applicants
from places such as mainland China, Southeast Asia and the Middle East in recent years.

Tsai says ‘friends from Hong Kong’ will be considered for asylum on humanitarian grounds

However, they said the new arrivals from Hong Kong were a surprise and questioned
whether the Taiwanese public would welcome them.

“Would the Taiwan public accept their vandalising of the legislature in Hong Kong as an
act of non-violence?” asked Bei Ling, a researcher from the National Chung Cheng
University in Taipei. “Would they be seen as democracy activists who are fighting for
political freedom?”

“I think such a consensus may not even be shared among the politicians in Taiwan,” Bei
said, pointing out that the protesters from Hong Kong – many of whom wore masks during
the July 1 protests – could not be compared with the local activists who campaigned for
greater democracy without concealing their identity during Taiwan’s Sunflower Movement
in 2014.

Bei said that the protesters’ case was also weakened because they would need to prove
that they would face political persecution if they returned to Hong Kong, but they had not
been officially charged and were able to leave the city legally.

Under Taiwanese law, the government is obliged to offer the “necessary assistance … [to]
Hong Kong or Macau residents whose safety and liberty face immediate threats for
political reasons”.

But Tseng Chien-yuan, chairman of the New School for Democracy and a consultant to the
Taipei city government, said there were other options available for the Hong Kong
protesters who want to stay in Taiwan.

154
“The Hongkongers can stay in Taiwan by extending their tourist visas as a temporary
solution or they can apply for longer-term options such as work or study visas before they
can apply for residency,” he said.

“They can extend their one-month tourist visas upon expiry on political grounds, although
Taiwan doesn’t have a system to handle asylum applications,” he said.

“One can apply for residency [in Taiwan] with an investment of no less than NT$6 million
[US$193,000), get a job that pays no less than NT$50,000 a month or get a student visa
by enrolling with a local university. They can then apply for residency if they work in
Taiwan for five years after graduation and stay here for at least 183 days each year.”

The island, which Beijing insists is part of China, is not a party to the United Nations’
Refugee Convention – which outlines the rights of those who are granted asylum and the
responsibilities of nations granting asylum – and does not have its own legislation on
refugees.

Chiu E-ling, secretary general of the Taiwan Association for Human Rights, called on the
Taiwanese government to speed up legislation to process refugees and offer protection to
asylum seekers because of the rising number of claims.

Katherine Tseng Hui-yi, from the East Asian Institute of the National University of
Singapore, said the fate of the protesters could become a political issue that may influence
Taiwan’s presidential elections in January.

“Tsai Ing-wen can claim credit from these cases,” she said.

However, Geng Shuang, a spokesman for the Chinese foreign ministry in Beijing, ridiculed
the independence-leaning president using a slang term for someone standing on shaky
ground.

“Save your false compassion [for Hong Kong people],” said Geng on Friday when asked
about Tsai’s comments. “You are nothing but a clay idol crossing the river.”

155
Separately, Hong Kong lawmaker Regina Ip Lau Suk-yee, a member of the city’s
Executive Council, or cabinet, said the relationship between Hong Kong and Taiwan would
suffer if Taipei offered refuge to the protesters and the island would be seen as a “haven”
for lawbreakers.

“It could affect our law enforcement agencies’ future communication and cooperation with
Taiwan police. It will also send out a bad message that Taiwan is willing to grant asylum to
criminals,” she said.

The Hong Kong Security Bureau and police did not comment on the cases.

Additional reporting by Linda Lew, Tony Cheung and Catherine Wong

156
 22)
FINANCIAL TIMES

Hong Kong activists gain refugee status for first time

Germany’s move to grant asylum comes amid growing concerns about freedom of speech

Nicolle Liu in Hong Kong MAY 22 2019

Two Hong Kong activists have been granted refugee status by Germany in what is
believed to be the first time dissenters from the territory have been given the status by a
foreign country.

The move underlines growing international concerns over erosions of rule of law and
freedom of speech in Hong Kong, despite guarantees these liberties would be respected
when the territory was handed over to China in 1997.

Such concerns have been exacerbated by a plan by the Hong Kong government to fast-
track a legal amendment enabling the extradition of criminal suspects to mainland China.

“No one likes to leave the place where you grow up, it is a big price for me to pay,” said
one of the activists, Ray Wong Toi-yeung, in an interview with the FT. He said he wept one
day while on the street in Germany because he missed his own culture and home so
much.

Mr Wong, 25, and his fellow activist Alan Li Tung-sing, 27, are leading members of Hong
Kong Indigenous, a radical group that fought for Hong Kong independence. The two were
charged with rioting offences for their part in civil unrest in 2016 in the main shopping
district of the former British colony.

157
They fled Hong Kong for Germany in November 2017 while on bail and were listed as
wanted in the territory. A co-activist from the same group, Edward Leung, who stayed in
Hong Kong, was last year sentenced to six years in jail on similar charges.

Documentation provided by the activists show they were granted the right to stay in
Germany a year ago. The German consulate in Hong Kong said it was ‘“aware of the fact
that the two Hong Kong residents are currently staying in Germany” but said it could not
provide any information on individual cases.

“It is obvious that, Hong Kong has already lost the special international status,” Mr Li told
the FT. “We may be the first two refugees from Hong Kong who gained protection in
Europe but what could be very sad is, we may not be the last.”

The Hong Kong government forwarded inquiries about the activists’ asylum bid to the
Hong Kong police, which declined to comment on the specific case, saying legal
proceedings were under way. “In general, the police will, according to the circumstances of
the case, track down the whereabouts of the suspects and arrest them by all possible
means,” said a police spokesman.

Regina Ip, a pro-Beijing lawmaker, said the Hong Kong government should try to extradite
the activists from Germany “in accordance with our bilateral rendition agreement”.

Mr Wong and Mr Li have stayed in three different refugee camps in Germany while
awaiting the approval of their application for asylum. They were given refugee status one
year ago but only chose to reveal this now to raise awareness of Hong Kong’s extradition
amendment and the 30th anniversary of China’s Tiananmen Square massacre on June 4.

“It is important have someone outside [out of prison] to tell the world what’s happening in
Hong Kong,” Mr Wong said.

“I will never be able to come back if Hong Kong can extradite me back to China once I
return,” he said. “It is important for me to speak up as one of the first political refugees of
Hong Kong.”

158
Mr Wong said he chose to go to Germany because he believed “Germany has a much
stronger stance towards China, especially in terms of human rights”.

Patrick Poon, a Hong Kong-based researcher for Amnesty International, said the granting
of asylum to the pair was “a very clear message” that the human rights situation in Hong
Kong was deteriorating.

Eleven international parliamentarians from countries including Germany, Canada,

Malaysia, the UK, Myanmar and The Philippines, including those from Germany’s Greens
and Christian Democratic Union parties, said in a statement that Mr Leung had “been a
victim of” the Hong Kong government’s “abuse of the judicial system to imprison political
opponents”.

Another Hong Konger, Lee Sin-yi, who is facing a similar rioting charge, is on the run in
Taiwan. “More Hong Kongers will go into exile,” she said in a recording broadcast earlier
this month by a pro-Taiwan independence group.

The two men said they expected to speak at a seminar in the German parliament to mark
the June 4 massacre.

159
 23)
WORLD NEWS

Hong Kong activists get asylum in Germany; denounce extradition law

Jessie Pang MAY 22, 2019

HONG KONG(Reuters) - Germany has granted refugee status to two Hong Kong activists
facing rioting charges at home, they said on Wednesday, apparently the first time
Germany has acknowledged such status for democracy campaigners from the Chinese-
ruled city.

Ray Wong, 25, and Alan Li, 27, both told Reuters by telephone they were granted refugee
asylum status in Germany in May 2018. Wong showed a document setting out that status.

“We have become the first two political refugees (from Hong Kong) in Europe,” said Li.

Hong Kong’s Secretary for Security John Lee skirted questions from the media on whether
the city would seek to extradite the pair from Germany.

The German consulate in Hong Kong said it was aware that the two Hong Kong residents
were staying in Germany, although it could not provide details on individual cases.

China’s Ministry of Foreign Affairs said matters related to Hong Kong were Beijing’s
internal affairs.

“We ask the German side to respect Hong Kong’s rule of law and judicial independence
and stop interfering,” spokesman Lu Kang said on Thursday.

Wong and Li, former members of Hong Kong Indigenous, a group advocating Hong Kong’s
independence from China, were charged for rioting linked to a protest that turned violent in
February 2016. The pair later skipped bail and fled to Germany in 2017 via Taiwan.

Hong Kong activists have become increasingly defiant in recent years amid fears of
creeping interference from Beijing despite a promise of special autonomy.
160
Scores of activists have been jailed on various charges including contempt of court and
public nuisance, with critics saying Hong Kong authorities were prosecuting them to stifle
freedom of expression and assembly.

“Our success in gaining political refugee status reflects the situation in Hong Kong is
worsening in the eyes of the international community. Hong Kong has changed completely
from the past,” Li said.

Hong Kong authorities deny persecuting activists.

In April, a city court jailed four leaders of a 2014 “Occupy” pro-democracy civil
disobedience movement, while young activist Joshua Wong was jailed for two months this
month.

BREAKING SILENCE

Both Wong and Li said they decided to break their silence given their alarm at a proposed
extradition law that will extend Beijing’s control over the financial hub.

“They would make use of the extradition law to suppress the democratic movement (and)
dissidents,” said Wong.

Chris Patten, Hong Kong’s last British governor before it returned to Chinese rule in 1997,
said in an interview with Bloomberg that the extradition law was the “worst thing” to happen
since then, and could jeopardise the city’s status as a global financial hub.

Wong said freedoms in Hong Kong had been destroyed by Beijing and the Hong Kong
government since the city was handed back from British rule under a “one country, two
systems” deal meant to ensure freedoms not allowed in mainland China including an
independent judiciary.

161
The proposed extradition law would allow people in the city accused of a crime, including
foreigners, to be extradited to countries without formal extradition agreements, including
mainland China.

Hong Kong authorities have stressed the extradition law would not be used to prosecute
political crimes, but Wong said he feared it could be used to suppress the pro-democracy
movement, as Beijing could extradite activists to China.

The pair lived in three refugee camps in Germany for more than 10 months until August
last year. They said they shared a room with up to 10 people at times, including ethnic
Uighur and Tibetan refugees fleeing persecution in China.

Both have been learning German and hope to study at a German university while
continuing to defend Hong Kong’s rights.

“It’s a very sad thing that I needed to leave Hong Kong,” said Li. “I predict that once the law
is passed, more and more people will seek refuge in other countries.”

Writing by Anne Marie Roantree, additional reporting by Cate Cadell in BEIJING; Editing
by James Pomfret and Robert Birsel

Our Standards:The Thomson Reuters Trust Principles.

162
 24)
The Telegraph
Hong Kong activists granted asylum in Germany become first political refugees from
Chinese territory

Ray Wong skipped bail and ended up in Germany CREDIT: SOUTH CHINA MORNING
POST

 Sophia Yan, beijing

22 MAY 2019 • 12:11PM

Follow

Two activists from Hong Kong wanted on rioting charges after an all-night clash between
protesters and police in 2016 have been granted refugee status in Europe.

The pair, Ray Wong, 25, and Alan Li, 27, jumped bail and disappeared in 2017, neither
surfacing in public. But now, they have emerged to say they are under protection in
Germany, among the first individuals from the former British colony to have received
asylum abroad.

Mr Wong and Mr Li are thought to be the first individuals to be granted such status in a
foreign country.

The development could reflect an important shift in how Hong Kong is perceived by the
international community. Hong Kong has long enjoyed freedoms and autonomy, including
163
an independent judiciary, under an agreement when the city was returned to Chinese
sovereignty in 1997 that was meant to last five decades.

But in recent years, activists, lawyers and even the business community have sounded the
alarm over eroding freedoms in the Chinese territory.

Critics fear freedoms are being eroded under pressure from Beijing CREDIT: ISAAC
LAWRENCE/ AFP

“It is unprecedented in recent times for a Hong Kong person to be granted refugee status
elsewhere because they are being persecuted in Hong Kong for their political views,” said
Man-kei Tam, director of Amnesty International Hong Kong, a rights group.

“This case only underlines the rapid deterioration in the right to freedom of expression in
the city and just how far the government is going to silence critics.”

Germany’s decision is likely to further agitate an already controversial debate about a

proposed extradition law that would allow Hong Kong to send criminal suspects to other
jurisdictions it doesn’t have an agreement with, including mainland China.

Critics have raised concerns that, if passed, the law would subject anyone, including
foreigners, whose work or views run counter to that of Beijing to face charges in China,
where courts and judges are controlled by the ruling Communist Party.

A number of protests have ensnarled Hong Kong over the last five years as Beijing has
sought to tighten control.

Mr Wong led Indigenous, an activist group that was anti-Beijing, of which Mr Li was a
member. In 2016, hundreds of protesters rioted against the police in the busy shopping

164
district of Mongkok, leading to multiple injuries and dozens arrested. Beijing later labelled
the protestors as “radical separatists.”

Student leaders of the 2014 pro-democracy protests, the Umbrella Revolution, have been
in and out of prison since the demonstration was halted after months. Just last week, the
main student leader, Joshua Wong, was sent back to prison.

“The Hong Kong government is increasingly abusing the law to silence debate about
sensitive issues like democracy and autonomy,” said Mr. Tam. “The Hong Kong authorities
must cease this chilling assault against people legitimately exercising their right to freedom
of expressions o no one else feels they must seek sanctuary abroad.”

Germany’s federal office for migration and refugees didn’t respond immediately to a
request for comment.

165
 25)
The New York Times
In a Possible First for Hong Kong, Activists Wanted by Police Gain Protection in Germany

By Suzanne Sataline

May 21, 2019

Two years ago, Ray Wong and Alan Li, political activists in Hong Kong, were facing rioting
charges over an all-night street clash with the police. They jumped bail and disappeared.

Now they have come forward to say that they are under refugee protection in Germany,
making them likely to be the first individuals from the semiautonomous Chinese city to
have obtained such sanctuary. The move could be a turning point in shifting global views
of Hong Kong, where individual freedoms have eroded as Beijing tightens its hold,
threatening the city’s reputation as an oasis of rule of law in Asia.

Disclosure of Germany’s decision, made last year, is likely to inflame an already heated
debate in Hong Kong over a proposal to let the territory’s government send criminal
suspects to jurisdictions with which it does not have extradition agreements, including
mainland China.

Critics are worried that those whose work or political views run afoul of the ruling
Communist Party in Beijing could be ensnared. The government has said people accused
of political crimes will not be extradited and that the changes will prevent Hong Kong from
becoming a haven for criminals.

Mr. Wong, 25, and Mr. Li, 27, are wanted on charges of rioting related to a 2016 clash
between protesters and police officers. In Hong Kong, they were also proponents of
independence from China, a view that Beijing finds threatening.

The two men fled Hong Kong for Germany in 2017 and applied for protection, which the
German government approved last May, they both said.

Germany’s federal office for migration and refugees confirmed in an email Friday that it
awarded two applicants from Hong Kong refugee protection last year, but did not name
them.

“If the German government thinks that the Hong Kong judiciary is independent, they would
not grant me refugee status,” Mr. Wong said in an interview last year in Frankfurt. “It’s
because they think that Hong Kong uses the judiciary to persecute Hong Kong people.”

166
Hong Kong, a former British colony, returned to Chinese control in 1997 under a governing
model called “one country, two systems,” with more robust protections for individual rights
than in the mainland. While it is common for Western countries to provide political asylum
to Chinese dissidents, it is rare for this practice to apply to individuals from Hong Kong, a
city that has long benefited from its reputation for independent courts and strong rule of
law.

The 2016 clash took place in the Mong Kok district of Hong Kong, leading to more than
100 injuries and dozens of arrests.Credit...Terry Wong/Agence France-Presse — Getty
Images

“Hong Kong lost its special place in the international world” after Germany approved his
application for refugee protection, Mr. Wong added.

He and Mr. Li fled Hong Kong at a time when activists and rights groups say the city’s
protections for free speech and assembly and fair trials have diminished under the rule of
China’s president, Xi Jinping. Last month, a Hong Kong court sentenced several
democracy activists to prison terms of up to 16 months.

Human rights advocates said they were surprised to hear that Germany had granted
protection to people from Hong Kong.

“It makes Hong Kong’s human rights situation comparable with the worst part of the world,”
said Patrick Poon, China researcher with Amnesty International. “It shows how serious the
international community sees Hong Kong right now.”

Mr. Poon and two human rights lawyers said they did not know any other examples of
individuals from Hong Kong obtaining protection from a foreign government because of
persecution in Hong Kong.

The justice department and police force in Hong Kong declined to comment.

Support for independence is limited in Hong Kong. But after protesters occupied major
roads in 2014 in an unsuccessful push for democracy known as the Umbrella Movement, a
few activists like Mr. Wong began to call for the city to separate from China.

Mr. Wong led Hong Kong Indigenous, a group that sought to protect the city’s local identity
and traditions in the face of growing influence from mainland China. Mr. Li was a member.

In 2015, Mr. Wong organized protests against Chinese tourists who crowded local districts
in search of baby formula and household goods to bring back to the mainland. The
campaign prompted the mainland government to limit residents of the border city of
Shenzhen to one Hong Kong visit per week.

167
“His tactic was quite successful,” Leung Kwok-hung, a former opposition lawmaker, said of
Mr. Wong. “He tried to make people visually witness the confrontation.”

The 2016 unrest began in the district of Mong Kok as people were visiting food stalls for
Lunar New Year, a holiday tradition. When health officers arrived, apparently to shut down
unlicensed vendors, Mr. Wong and members of Indigenous led a crowd to confront them. It
exploded into an all-night brawl, with protesters setting fires and throwing bottles and
bricks.

More than 100 people were injured and dozens were arrested, including Mr. Wong and Mr.
Li. Among those sentenced to prison was Edward Leung, a spokesman for Indigenous,
who is serving a six-year term. Lawyers and rights groups said his lengthy sentence was
intended to intimidate activists and squelch political protest.

“One of us needs to be out, to continue the work of independence,” Mr. Wong said in an
interview in 2017 before he left Hong Kong, referring to Mr. Leung. “I don’t see any good in
going to jail.”

Mr. Wong did not publicly reveal his whereabouts after he fled Hong Kong, fearing that the
government would pursue him. But last month, he decided to open up about obtaining
protection from Germany.

“I just feel like I couldn’t hide anymore,” he wrote in a text message. “I would eventually be
recognized.”

Mr. Wong and Mr. Li have declined further comment. Mr. Wong said he would speak in
greater detail at a later date.

Germany’s decision reflects poorly on Hong Kong, said Willy Lam, an adjunct professor in
China studies at the Chinese University of Hong Kong.

“It shows that the breathing space for political activism is getting squeezed,” he said.

In fall 2017, while Mr. Wong and Mr. Li were free on bail, a court granted them permission
to travel to Germany. Though they had been ordered to surrender their passports after the
trip, they held onto them. On Nov. 4, they left Hong Kong again, flying first to Taiwan, then
Berlin. This time, they did not return.

After requesting asylum, they bunked in an old British army barracks, then a housing block
in central Germany, where they roomed with people from the Middle East and Africa. The
two Cantonese speakers spent their time studying German.

168
In May 2018, the government notified Mr. Wong and Mr. Li that their applications had been
approved.

Germany offers refugee protection if applicants can show persecution because of

nationality, religion, political opinion or for belonging to a certain social group. The
designation enables them to live, work and attend school in Germany for three years.

Mr. Wong said he believed he was allowed to retain his passport because the Hong Kong
government wanted him to leave and become irrelevant.

“The strategy of success in China is for all activists to leave,” he said before he left Hong
Kong for good. “To China, they become useless. They cannot threaten the central
authority.”

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 26)
RADIO FREE ASIA
China Tried to Get Germany to Deny Hong Kong Activists' Asylum Claims
2019-06-0.05

Hong Kong Secretary for Security John Lee vows to pursue activists Ray Wong and Alan
Li, who have won asylum in Germany, June 5, 2019.
Screenshot from video

China sought to intervene in Germany's handling of political asylum applications from two pro -
independence activists from Hong Kong, RFA has learned.

Ray Wong and Alan Li were granted political asylum by Germany in May after skipping bail in
Hong Kong pending charges of rioting during a 2016 street protest known as the "Fishball
Revolution."

The move prompted a strong protest from the city's chief executive Carrie Lam.

"After getting clearance to read the files, my lawyer found a number of emails sent by the
German refugee agency referring to the fact that the Chinese government had contacted
Germany in around May or June 2018," Wong told RFA.

"They were trying to get involved in the case, and trying to stop Germany from approving our
170
asylum applications," he said. "I'm pretty sure that both the Chinese government and the Hong
Kong Special Administrative Region government knew about our case as early as June 2018."

Wong, who was taking part alongside Li in an event in Berlin marking the 30th annive rsary of
the Tiananmen massacre, also warned about the consequences for activists of any nationality in
Hong Kong, once plans to allow renditions of alleged criminal suspects to China are
implemented.

"The amended law will effectively legalize kidnapping," Wong said. "Once the amendments to
the Fugitive Offenders Ordinance become law, that will break down the firewall between Hong
Kong and mainland China, and will herald the death of 'one country, two systems'."

"That's what it will do from Hong Kong's point of view," he said, adding that the Hong Kong
government will have the power to send anyone, including foreign nationals just passing
through the city, to China to face criminal charges at the ruling Chinese Communist Party's
request.

"If passed, it will be the death of Hong Kong," Wong said.

Opposition to the plan

Judges, lawyers, opposition politicians, rights activists, business groups, and journalists have all
expressed vocal opposition to the plan, which will allow China to request the extraditio n of an
alleged suspect from Hong Kong based on the standards of evidence that currently apply in its
own courts.

The most likely jurisdiction to use the proposed provision is mainland China, which currently
has no formal extradition treaty with Hong Kong.

Opposition groups are planning a demonstration against the amendments on June 9.

Activists say that the separation of legal jurisdictions under the “one country, two systems”
framework governing the 1997 handover to China has worked until now to protect the human
rights of Hong Kong residents.

Hong Kong's secretary for security John Lee confirmed on Wednesday that the city authorities
still hope to pursue Wong and Li.

"The police will continue to pursue the two suspects who have absconded in this case ," Lee told
171
reporters. "The court will handle the case on the basis of facts and circumstances."

Call to examine, consult

Meanwhile, the Hong Kong Law Society, which has a reputation for being pro-Beijing, issued an
11-page opinion on the extradition amendment, saying that there are insufficient protections
for alleged suspects in its current state.

The Law Society called on Lam's administration—which has cancelled the bill's scrutiny process
in the Legislative Council (LegCo)—to first examine the bill in detail and consult the public in a
comprehensive manner, rather than rushing to amend the law.

Lam met with more than 70 consular representatives at government headquarters on

Wednesday, including the U.S. Consul General and representatives of foreign chambers of
commerce.

Diplomats and lawmakers from several countries have also expressed fears that their nationals
could run afoul of the legal changes, and be transferred to mainland China where there would
be scant protection for their human rights.

Reported by Gao Feng for RFA's Mandarin Service, and by Ng Yik-tung and Tam Siu-yin for the
Cantonese Service. Translated and edited by Luisetta Mudie.

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 27)
FINANCIAL TIMES
Hong Kong ‘has lost special status’, say activists turned refugees

Territory’s first political refugees warn of creeping interference from Beijing

Nicolle Liu in Hong Kong, Sue-Lin Wong in Shenzhen and Tobias Buck in Berlin MAY 24 2019

A grey refugee camp in rural Germany crowded with Syrian, Tibetans and Uighur asylum
seekers is an unlikely place to run into anyone from Hong Kong. But that is where independence
activists Ray Wong and Alan Li found themselves in the late autumn of 2017.

“Hong Kong is such a developed and wealthy place — why would there be any refugees?”
fellow residents of the camp frequently asked the pair during their almost 10 months there,
according to Mr Wong.

Despite Hong Kong’s position as an international financial hub, whose freedoms are guaranteed
by law, the government is increasingly unwelcoming of political dissent, critics say. Mr Wong
and Mr Li this week revealed themselves as the first Hong Kong political activists to be granted
refugee status overseas.

The granting of asylum to the pair in Germany, a country known for its outspoken criticism of
China’s human rights record, shows the international community’s growing concern about the
erosion of the rule of law and freedom of speech in the territory — rights that were enshrined
in the former British colony’s mini-constitution when it was handed over to China in 1997.

“It is obvious that Hong Kong has already lost its special international status,” Mr Li told the
Financial Times. He and Mr Wong were leading members of Hong Kong Indigenous, a radical
group set up to fight for Hong Kong independence, alarming Beijing which views the territory as
an inalienable part of China. They fled Hong Kong for Germany in November 2017 while on bail
on charges related to rioting during a protest the previous year. They are listed as wanted in
the territory.

“The trial was absolutely not a fair trial,” said Mr Wong, saying he was charged under a colonial
era law that has been criticised by the UN.

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We are increasingly concerned that the space for political opposition is shrinking

German foreign ministry

Chinese diplomats in Germany tried to directly intervene to prevent Mr Wong and Mr Li from
being granted asylum, according to email conversations between the German federal foreign
office and the German office for asylum and migration contained in Mr Wong’s refuge e case
file. Berlin refused to share information with Beijing about the pair’s asylum applications,
according to the file, which was seen by the FT.

There was no immediate comment by the Chinese foreign ministry.

Germany’s foreign ministry said: “We are increasingly concerned that the space for political
opposition is shrinking and there is a creeping erosion of freedom of opinion and freedom of
the press [in Hong Kong], especially in the context of sensitive political issues.”

China’s Ministry of Foreign Affairs said matters related to Hong Kong were Beijing’s internal
affair. “We request Germany to respect Hong Kong’s rule of law and judicial independence and
stop interfering,” spokesman Lu Kang said on Thursday.

The move by Germany to grant the duo asylum “signifies the end of an unconditional trust in
Hong Kong’s government and judiciary to uphold rule of law and effectively protect civil rights
under pressure from Beijing”, said Katja Drinhausen, a human rights expert at the Mercator
Institute for China Studies, a Berlin-based think-tank.

“This assessment will only become more pronounced in light of the planned revision of the
extradition ordinances,” Ms Drinhausen added. She was referring to a controversial proposal to
allow Hong Kong for the first time to extradite criminal suspects to mainland China. Critics say
the bill would allow anyone who sets foot in the territory to be whisked off to mainland China
on trumped up charges.

Hong Kong politics

What is Hong Kong’s extradition bill?

Hong Kong chief executive Carrie Lam said she had expressed her “deep regrets and strong
objection” to Germany’s acting consul general in Hong Kong for the granting of asylum to the
pair. The decision “had unjustifiably undermined Hong Kong’s international reputation” for
upholding the rule of law and judicial independence, she added.

Ms Lam said she doubted “whether the German authorities’ decision had been based on the
facts” as the “violent actions of the rioters had seriously jeopardised public order and safety”.

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Mr Wong and Mr Li, who said they had lived in three refugee camps — one of which had only
one toilet block for about 300 people — added that they had since softened their political
views. They now say independence is “no longer on their agenda”, a stark change from 2016
when they took part in civil unrest in Hong Kong’s main shopping district that led to the rioting
charges.

The protests — dubbed the “fishball revolution” — broke out when Hong Kong Indigenous tried
to stop the authorities from removing unlicensed food hawkers on the eve of the lunar new
year, leading to clashes that left more than 100 people injured, according to Hong Kong’s
security bureau.

A co-activist from the same group, Edward Leung, who stayed in Hong Kong, was last year
sentenced to six years in jail over the riots.

“There are now too many uncertainties for the Hong Kong independence movement. The
suppression is too strong,” said Mr Li, adding that the group would focus on preserving basic
freedoms and what he called the unique identity of Hong Kong.

He admits his activism has come at a high personal cost. He now cannot return to the place of
his birth unless he is willing to face prison.

“I already found Hong Kong to be a beautiful place before,” Mr Wong said. “But after leaving I
feel that . . . there is no other place on earth that is so special.”

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 28)
TIME

Two Hong Kong Activists Were Granted Asylum in Germany, Calling the

City's Freedoms Into Question

A rioter tries to throw a litter bin at police on a street in Mongkok district of Hong Kong, Feb. 9,
2016. Kin Cheung—AP

BY AMY GUNIA / HONG KONG

MAY 22, 2019

Two years after their quiet departure from Hong Kong, two political activists from
the semiautonomous region of China have come forward to say that they are
under refugee protection in Germany.

Ray Wong, 25, and Alan Li, 27, faced rioting charges for their roles in a protest that
turned into a violent overnight clash with police in February 2016, but the pair

176
jumped bail and fled to Germany in 2017, according to the New York Times.
Germany granted the pair protection last May, they say, according to the Times.

Germany’s federal office for migration and refugees also confirmed to the Times in
an email that it had granted two Hong Kongers refugee protection last year.

They are believed to be the first political activists from the city to be grante d asylum
by a foreign country. The revelation is likely to deal a blow to Hong Kong’s
international reputation, at a time when political freedoms have been eroding in the
city.

“This is a worrying sign, though not entirely surprising given recent trends in Hong
Kong,” Kelley Loper, Director of the Centre for Comparative and Public Law at the
University of Hong Kong, told TIME.

“Although Hong Kong still enjoys a certain amount of autonomy and is politically
and legally distinct from the rest of China, recent developments could chip away at
those guarantees and negatively affect Hong Kong’s international reputation,” Loper
said.

Wong was the leader of Hong Kong Indigenous, an activist group that opposes
Beijing’s encroachment on the city, and Li was a member. In 2016, hundreds of
protesters clashed with police in the busy Mongkok district after authorities tried to
stop unlicensed food vendors from operating, which is a Lunar New Year t radition in
the city. It turned into an all-night riot, during which scores of people were injured
and dozens were arrested. Beijing later denounced the protestors as “radical
separatists.”

Other political activists in the city have been prosecuted for adv ocating for
democracy.

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Leaders of a 2014 pro-democracy movement dubbed the Umbrella Revolution were
handed prison sentences late last month, and a student leader, Joshua Wong, was
sent back to prison last week to finish his sentence for defying a court order to leave
a protest site during the 2014 demonstrations.

Hong Kong, a former British colony which was returned to Chinese sovereignty in
1997, is supposed to operate under a “one country, two systems” model meant to
ensure that it retains certain freedoms such as an independent judiciary. But
concerns about the city’s rule of law have increased in recent years as Beijing has
tightened its grip on the city.

A fierce debate continues in the city’s legislature over a proposed extradition law,
which would allow people to be sent to the mainland to face trials under China’s
opaque legal system, where arbitrary detentions, forced confessions, torture and
closed criminal trials are commonplace according to rights groups.

“If amendments to Hong Kong’s extradition law go through, we are likely to see
more activists seeking asylum elsewhere,” Loper says.

In recent years, the city’s press freedom rankings have been on a precipitous slide, a
senior foreign journalist was expelled for hosting a talk with a pro-independence
political leader, and several booksellers offering content critical of the Communist
Party have disappeared.

178
 29)

DW
Germany grants asylum to two Hong Kong pro-democracy activists

25/05/2019
Two pro-democracy activists from Hong Kong have sought and secured refugee status in
Germany. The decision shows concern that Beijing is limiting rights in semi-autonomous
Hong Kong.

Germany has granted asylum to two Hong Kong activists who were facing rioting charges
at home. Ray Wong, 25, and Alan Li, 27, were granted refugee status in May 2018, making
it the first apparent case of a foreign country acknowledging refugee status for democracy
campaigners from the Chinese-ruled city.

"Now Hong Kong also has political refugees," Wong said.

179
Germany's Interior Ministry would not confirm the identities of the people due to privacy
regulations, but it did say it had granted asylum to two people from Hong Kong asylum in
2018.

Thousands took to the streets against proposed extradition rules that would allow people to
be sent to mainland China
Wong and Li fled Hong Kong for Germany in November 2017, Wong said he then lived in
refugee camps in Germany for more than 10 months until August of last year. "I lived in
three different refugee camps and the last one was a big one in the middle of nowhere,"
Wong said.

In Germany, Wong, who was a prominent pro-independence activist with the group Hong
Kong Indigenous, is learning German and said he hopes to study philosophy after passing
language exams.

According to documents they presented, the two men were granted asylum in May 2018,
but Wong and Li only came forward with this information on Wednesday. Wong said he
didn't reveal to his family where he was until his asylum request was approved, out of fear
of being monitored by authorities. Wong told the Wall Street Journal he had revealed his
status in response to a proposed Hong Kong law that would permit authorities to hand
over criminal suspects to mainland China.

180
The new extradition rules would allow individuals in Hong Kong to be sent to China.

Democracy activists in Hong Kong have become increasingly vocal in recent years as fears
of creeping interference from Beijing have grown, despite promises of autonomy for Hong
Kong. The case shows growing concern that freedoms in Hong Kong are deteriorating as
Beijing clamps down on dissent. Scores of activists in the semiautonomous city have been
imprisoned on various charges including contempt of court and public nuisance.

Maya Wang, a senior China researcher with Human Rights Watch, said the decision
reflected "foreign governments' increasing concerns over the city's rule of law and
deteriorating freedoms." A human rights spokesperson for Germany's Green party called
anti-democratic trends in Hong Kong worrying.

Since living abroad, Wong's political stance has softened: "Now I won't advocate Hong
Kong independence. I think the most important thing for Hong Kong is its human rights
situation."

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 30)
HONG KONG FREE PRESS

Third Hongkonger sought asylum in Germany besides two wanted pro-

independence activists, authorities confirm

23 May 2019

German authorities have confirmed that it received three applications from asylum seekers from
Hong Kong since 2017, after news broke on Wednesday that wanted activists Ray Wong and Alan
Li were granted refugee status in the country.

Wong and Li, who were leading members of the pro-independence group Hong Kong Indigenous,
faced rioting charges related to the 2016 Mong Kok unrest. They fled the city in November 2017
ahead of their trials, and were granted refugee status in Germany last May.

The German Federal Office for Migration and Refugees (BAMF) said it received two asylum
applications from Hong Kong in 2017, and one in 2018. A BAMF document dated this January
showed there was one case from Hong Kong listed under “other procedures.”

The authority declined to comment on individual cases for privacy and data protection reasons. It
said that asylum seekers have the chance to meet with the authorities in person and explain their
situation, and the final determination is made independently and without political considerations.

The BAMF told HK01 that the third, 2018 case from Hong Kong “ended without decision” and that
proceedings had been closed – meaning the application had effectively been denied.

Speaking at parliament

Wong and Li will be speaking at the German Parliament on June 4, on the 30th anniversary of the
Tiananmen Square crackdown. The event is hosted by the Green Party, and the duo will speak
alongside an academic Kristin Shi-Kupfer and writer Zhou Qing.

It remains unclear whether the Hong Kong government will seek to extradite the two activists,
with the city’s security chief and justice chief dodging the question on Wednesday.

The controversial bill, first proposed by the administration in February, would allow Hong Kong to
accept extradition requests from jurisdictions with which it did not have a pre-existing rendition
deal. Lawyers, journalists, foreign politicians and businesses have raised concerns, in particular,
over the risk of residents being extradited to the mainland.

182
Leung said that the two men’s offences were committed in Hong Kong and breached local laws,
meaning that there would not be any basis for China to request extradition.

183
 31)
The Economist
Waltzing Confucius

Australian universities are accused of trading free

speech for cash
Critics claim they try to suppress anti-Chinese views to keep lucrative Chinese students happy

Print edition | Asia

Sep 19th 2019| SYDNEY

Seek “harmony but not sameness”, advised the Chinese philosopher Confucius 2,500 years
ago. Neither quality was on display when Chinese nationalists violently disrupted a rally at
the University of Queensland in July in support of anti-government demonstrators in Hong
Kong. Since then Drew Pavlou, one of the organisers of the sympathy rally, says he has
received a litany of threats from Chinese patriots. The passport details of another participant
in the rally, who is from the Chinese mainland, have been disseminated on social media. A
third says authorities in China visited his family there, to warn them of the consequences of
dissent.

Mr Pavlou claims his university has since tried to squelch protests that might upset China, a
charge it firmly denies. It is one of 13 campuses in Australia to host a Confucius Institute, a
language school and cultural centre funded by the Chinese government. Some students
worry about the university’s cosy ties with China. Peter Hoj, its vice-chancellor, has worked
as a consultant to the Chinese state agency responsible for Confucius Institutes. Recently he
quietly made a Chinese diplomat, Xu Jie, a visiting professor. Many Australians were
outraged when Mr Xu praised the “spontaneous patriotic behaviour” of the Chinese students
who instigated the scuffle.

Other Australians are dazzled by the money to be made teaching Chinese students. Relative
to the size of its population, Australia now hosts more international students than any other
country. Just over a third of them—around 150,000—come from China. In the universities
most eager to woo them, Chinese students now fill about a quarter of all places, says
Salvatore Babones of the University of Sydney. This has turned tertiary education into
Australia’s third-biggest export, enabling administrators to pump cash into new facilities
and research. But the conservative coalition government seems increasingly worried about
the implications for free speech and security.

Lecturers gripe about complaints from Chinese students who bristle at criticism of their
government. Some have apologised publicly for supposedly hurting students’ feelings; one
was suspended in 2017 after he claimed that ordinary Chinese believe that government
officials only ever speak the truth by accident.
184
Last year Victoria University cancelled a screening of a film criticising Confucius Institutes
after Chinese diplomats expressed misgivings about the event. Some academics complain
that administrators have encouraged them to keep awkward opinions to themselves. One
grumbles that his “freedom of speech was egregiously compromised” when a panel
discussion on Chinese politics was suddenly cancelled ahead of a Chinese state visit to
Australia.

Students police each other as well as their teachers. Officially Chinese Students and Scholars
Associations, which are backed by the Chinese state, run social events and help newcomers.
But they are also assumed to snitch on dissenters, leaving many Chinese students afraid to
speak their minds.

By courting controversy, these organisations may have done more harm than good to
China’s interests, says Mark Harrison, a Chinese-studies lecturer at the University of
Tasmania. So have the Confucius Institutes, which are accused of stifling academic freedom
by discouraging students from discussing sensitive topics. It is “completely inappropriate for
universities to host what amount to arms of the Chinese Communist Party on their
campuses”, argues Kevin Carrico of Monash University.

Universities don’t think they need to register the institutes under a new law that requires
agents of foreign governments attempting to influence politics to declare themselves. The
attorney-general’s office is mulling whether they should. A separate government taskforce is
investigating whether universities are doing enough to prevent sensitive research from
reaching foreign governments. The Australian Strategic Policy Institute (aspi), a think-tank,
reckons 300-odd scientists tied to China’s armed forces have visited Australia since 2007,
studying subjects such as quantum physics and navigation technology. In one “particularly
worrying” case, a professor at the University of New South Wales worked with a Chinese
general to develop supercomputers used in nuclear-weapons tests, notes Alex Joske of aspi.

Australian universities say they are working with the government to “safeguard security”
without “undermining the invaluable asset of global collaboration”. But few seem keen to
reduce their dependency on a continuing influx of Chinese students. This amounts to a
“crisis of leadership”, a conservative senator recently asserted. If universities do not change
their tack, says Mr Harrison, “they may find that federal agencies do it for them.”

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 32)
The Times

Hong Kong protesters turn lasers on China troops

Didi Tang, Hong Kong
October 7 2019, 12:01am, The Times

Hong Kong protesters taunted the Chinese military by shining laser beams at one of its garrisons
last night in an escalation of their willingness to directly challenge Beijing.

The provocative act, which prompted soldiers to raise a flag warning them to stay away, came as
tens of thousands of demonstrators turned out to protest against a new law banning the wearing
of face masks at rallies. In another sign that the demonstrations were taking on a new
edge protesters beat up a taxi driver who had driven into the crowds. He was left bloodied and
battered.

Despite torrential rains protesters gathered in the Causeway Bay shopping district before
marching towards the central business districts, along Hennessy Road, the scene of many rallies
over the past four months. Its billboards are daubed with anti-government, anti-police slogans and
its pavements are full of concrete patches where paving stones, dug out and thrown at police,
have been replaced.

Furious protesters smash up the cab after the incident ANTHONY WALLACE/GETTY IMAGES

186
The renewed violence came two days after Carrie Lam, the territory’s embattled chief executive,
invoked emergency colonial-era powers to ban protesters from covering their faces at any
assembly, whether peaceful or not, in the hope that it would end the chaos that has gripped the
city since June.

The street demonstrations were prompted by an extradition bill that would have allowed Hong
Kong residents to face trial on the mainland. In the following 17 weeks they have taken on six
demands including democracy and the disbanding of the police.

Ms Lam’s mask ban infuriated the protesters and brought a night of chaos hours before it took
effect. On Saturday the authorities shut the entire mass-transit railway network for the first time.
Shopping malls, supermarkets and banks were shut across the city, prompting Ms Lam to declare
Hong Kong “half-paralysed”. A few spontaneous protests sprang up on Saturday, despite many
calling for a day of rest, but no tear gas was fired. Large numbers of mask-wearing protesters
returned to the streets yesterday on foot and by bus as the authorities kept dozens of stations
closed to discourage mass gatherings.

The moment the taxi was driven into the crowd was shared widely on social media

“I don’t care about the mask ban,” said a 21-year-old university student putting on a mask. “The
law doesn’t make any sense. People can wear masks for religious reasons or being sick.”

187
A 16-year-old secondary school student, who also wore a mask and declined to give her name,
said: “We just want to make our appeals and hope our voices can be heard but the government,
instead of solving the problems, are making the problems worse. Why can’t we wear a mask when
police officers can?”

Activists have twice sought to strike down the mask ban as unconstitutional but the Hong Kong
court rejected the request for a temporary injunction. Pro-democracy politicians likened the ban
to “Henry VIII-style” suppression and rights groups have warned that it could incite further
violence.

A protester receives medical assistance after the taxi struck a demonstration ANTHONY
WALLACE/GETTY IMAGES

Most of the demonstrators yesterday were young people but there were also pensioners and
parents with small children. Three hours after the march began the police declared the gathering
illegal and used tear gas to disperse crowds. The masks worn by most protesters could not protect
them from the gas and they quickly scattered. Arrests were made but there were no reports of
anyone being arrested solely for wearing a mask.

Protesters have targeted Beijing’s political office in Hong Kong but not the military barracks.
China’s People’s Liberation Army maintains a number of garrisons in Hong Kong. The number of
Chinese military personnel stationed in the territory since the start of the protests is believed to
have more than doubled to between 10,000 and 12,000, up from 3,000 to 5,000.

188
 33)
BBC NEWS

Simon Cheng: Former UK consulate worker says he was tortured in

China
By John Sudworth BBC News
20 November 2019


Media caption Simon Cheng says he was blindfolded and beaten in China

A former employee of the UK's Hong Kong consulate has told the BBC that he was tortured in
China and accused of inciting political unrest in the city.

Simon Cheng, a Hong Kong citizen who worked for the UK government for almost two years, was
detained for 15 days on a trip to mainland China in August.

"I was shackled, blindfolded and hooded," the 29-year-old tells me.

UK government sources say they believe his claims - of being beaten and forced to sign
confessions - are credible.

Following our interview, the British Foreign Secretary Dominic Raab summoned the Chinese
ambassador.

"We are outraged by the disgraceful mistreatment that Mr Cheng faced when he was in detention
in mainland China... and we've made clear that we expect the Chinese authorities to review and
hold to account those responsible," Mr Raab told the BBC.

But on Wednesday a Chinese foreign ministry spokesperson told the BBC they "absolutely cannot
accept the UK government's interference in this case" - and would in return summon the UK
ambassador to "express their opposition and anger".

189
"We hope the UK will be prudent and stop interfering in Hong Kong and in China's domestic affairs
because it will, eventually, only harm the UK's own interests," the spokesperson added.

Mr Cheng's raises questions for both the Chinese and the UK governments.

The claims he makes - including that he saw other Hongkongers in Chinese custody - are likely to
fuel protesters' fears that their city's freedoms are being eroded under Chinese rule.

"They said they work for the secret service and that there are no human rights," he tells me. "Then
they started the torture."

Who is Simon Cheng?

As a trade and investment officer at the UK consulate, Simon Cheng's particular brief was to drum
up interest in investing in Scotland among the Chinese business community.

It required him to travel frequently to mainland China.

But in June, with Hong Kong engulfed in mass demonstrations, Mr Cheng volunteered for an
additional role.

"The British Consulate instructed staff to collect information about the status of the protests," he
says.

As a supporter of the pro-democracy movement he found it easy to blend in and, with the consent
of the consulate, he signed up to some of the social media groups through which the protesters
co-ordinated their actions.

Paid overtime for the information he gathered, he began reporting back what he saw to his
colleagues.

His task, both Mr Cheng and UK government sources insist, was not to direct events in any way but
to purely observe - the kind of civil society monitoring work many embassies do.

But China had already begun to accuse the UK of meddling in Hong Kong, with British politicians
becoming increasing vocal in their support for the protesters.

On 8 August, with emails still on his phone linking him to that work observing the protests, he was
sent by the consulate to a business conference in the Chinese city of Shenzhen.

He didn't know it, but his life was about to change forever.

How did he disappear?

Although China has ruled Hong Kong for more than 20 years, the border between the city and the
mainland still looks and feels like an international boundary.
190
The "one country two systems" principle - that the protesters say they are fighting to preserve - is
meant to ensure that Hong Kong retains control over most of its affairs, including its borders.

But Simon Cheng was about to discover for himself the blurred edges of that legal and political
framework.

Since the opening of the Hong Kong-Shenzhen high-speed rail link last year, a new border post has
been placed inside West Kowloon station, in the heart of Hong Kong.

It is deeply controversial: Hong Kong's pro-democracy movement views the presence of the
Chinese police, manning the Chinese side, as an unwelcome extension of Chinese authority.

It was here they stopped Simon Cheng, returning from his business trip.

He was put on a train, transported back to Shenzhen and handed over, he says, to three
plainclothes officers from China's National Security Police.

How does he describe his ordeal?

Raising his arms above his head Mr Cheng shows me how he was hung up from the chain linking
the handcuffs on his wrists.

The questions focused on his involvement in the protests with the aim, he says, of forcing him to
confess to fomenting unrest on behalf of the British state.

"They wanted to know what role the UK had in the Hong Kong protests - they asked what support,
money and equipment we were giving to the protesters."

He says he was made to hold stress positions - squatting against a wall for example - for hours on
end, and beaten if he moved.

"They would beat the bony parts, like my ankles... or any vulnerable part."

He claims he was subjected to sleep deprivation, with his interrogators forcing him to sing the
Chinese national anthem to keep himself awake.

And, he believes, he was not the only Hongkonger undergoing such treatment.

"I saw a bunch of Hong Kong people getting arrested and interrogated. I heard someone speak in
Cantonese saying: 'Raise your hands up - you raised the flags in the protest didn't you?'"

Background to the Hong Kong protests

 Summary of the protests in 100 or 500 words
 Timeline of major events so far
 How is Hong Kong run and what is the Basic Law?
191
 Watch: The identity crisis behind the protests
 A visual guide to how one peaceful protest turned violent

From a large pile of more than 1,000 photographs of Hong Kong protesters, he says, he was told to
jot down the names and political affiliations of anyone he recognised.

"The secret police clearly stated that batches after batches of Hong Kong protesters had been
caught, delivered and detained in mainland China."

Strapped to a chair and held by his hair, he says they tried to force him to open his mobile phone
using the facial recognition function.

Once they'd gained access, they printed off the emails detailing the information he'd passed to the
UK consulate about the protests.

"I told them I want to make it 100% clear, the UK didn't assign resources or help with the
protests," he tells me.

But it was no use. Eventually, they made him record two video confessions, he says, one for the
"betrayal of the motherland" and another for "soliciting prostitution".

Why was he detained?

The detention of a local employee of a foreign embassy or consulate is a relatively rare event.

The last high-profile case involving the UK was the arrest in 2009 of a number of Iranian
employees at the British embassy in Tehran. They were accused of playing a significant role in that
year's violent demonstrations - an accusation that finds echoes in Simon Cheng's account.

As in his own case, locally-employed staff usually have no diplomatic protection, potentially
making them soft targets for intelligence gathering.

But Mr Cheng may have been targeted for other reasons.

He tells me he had a mainland Chinese friend who'd been arrested for taking part in the Hong
Kong protests and was now on bail there.

During his business trip to Shenzhen, without the knowledge of the UK consulate, Mr Cheng had
met the relatives of this friend to collect money for his living expenses.

Any mainlander known to have joined the pro-democracy demonstrations would be at risk of
being placed under Chinese surveillance.

Although collecting money for a friend in legal difficulty is unlikely to constitute a crime, even in
China, it could well have placed Mr Cheng under suspicion too.

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I ask him what he thinks is the most likely reason for his detention - his position at the UK
consulate, or his friendship with this mainland Chinese protester?

"Until now I have no idea," he replies. "But I think both factors could be part of the reason."

Why was he released?

Alongside our interview, Mr Cheng has published his own detailed account of what happened to
him.

In it, he says that on the 11th day of his detention his treatment suddenly improved, a date that he
says coincides with the first international media reports about his disappearance.

UK government sources say that, behind the scenes, intense diplomatic activity was already under
way to try to secure his release.

Of China's only public version of events - the allegation that he was placed in 15 days
administrative detention for soliciting prostitution - Mr Cheng is dismissive.

"It was a tactic for secretly and arbitrarily incarcerating me for an even longer period, without
interference from third parties."

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 34)
The Guardian

Hong Kong: police say surrender is only

option for protesters
Hundreds trapped inside Polytechnic as demonstrators try to break campus
siege

 LATEST: Hong Kong protests: hundreds surrender to police after university

standoff

Lily Kuo in Hong Kong and Michael Safi

Mon 18 Nov 2019 18.08 GMTFirst published on Mon 18 Nov 2019 05.06 GMT

Hong Kong police have fought running battles with protesters trying to break a security
cordon around a university in the city, firing teargas both at activists trying to escape the
besieged campus and at crowds trying to reach it from outside.

Police have said the demonstrators inside Polytechnic University had no option but to
come out and surrender.

The sprawling campus has been occupied by demonstrators since last week, and has
become the focus of the most prolonged and tense confrontation between police and
protesters in more than five months of unrest in the semi-autonomous city.

Hundreds of protesters, including secondary school students, have been trapped inside for
more than 24 hours, after clashes on Sunday during which protesters launched petrol
bombs and shot arrows at police, who threatened to use live rounds.

Police said they had allowed Red Cross volunteers into the university to ferry out injured
protesters but said the rest had no option but to give themselves up. “Other than coming
out to surrender, I don’t see, at the moment, there is a viable option for them,” Cheuk Hau-
yip, regional commander of Kowloon West district, told a press conference, adding that
police had the ability and resolve to end the standoff peacefully so protesters should not try
their luck.

Parents of some of the activists trapped inside the university gathered in front of police
cordons on Monday night with signs that read “Save Our Kids”, while hundreds of other
supporters poured into the streets around the campus to try to break the police blockade.
Police used teargas and water cannon to keep them at bay.

When a group of protesters tried to escape from the campus, police fired teargas and
rubber bullets at exits, preventing them from leaving. When another group attempted to
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flee later on, hiding under umbrellas and shields made from scraps, officers fired further
rounds of teargas and deployed a water cannon, engulfing the area in smoke. Several
protesters were arrested.

The game of cat and mouse followed a night of mayhem in the Chinese-ruled city in which
roads were blocked, a bridge was set on fire and a police officer was shot by a bow and
arrow.

Some protesters abseiled off a footbridge to a road below, where they were met by
motorbike riders helping them flee. It was unclear whether they got away safely.

Michael Zhang 張雨軒

@YuxuanMichael
This was probably the most surreal thing I have ever witnessed in the Hong Kong protests.
Protesters just attempted a daring escape through a bridge at Polytechnic University.
Volunteers on motorbikes came in drives to drive them out asap. Police fired teargas.
#HongKongProtests

People have been hiding in buildings throughout the campus, said Seze Li, a 26-year-old
protester from inside the university. “It’s a disaster. Everyone is running around, looking
for exits. We heard the protesters [trying to break the siege] are coming. We are just
waiting for them,” she said. Some people have escaped by climbing out of the building, she
said, “but not everyone can do that”.

Democratic lawmaker Hui Chi-fung told Reuters: “The police might not storm the campus
but it seems like they are trying to catch people as they attempt to run. It’s not optimistic
now. They might all be arrested on campus. Lawmakers and school management are trying
to liaise with the police but failed.”

Hong Kong’s chief executive, Carrie Lam, posted a statement on her Facebook page about
the crisis, her first remarks about it since it began almost 36 hours ago. Lam criticised the
protesters for shooting arrows at police, as well as throwing bricks and petrol bombs.
“Police have many times made appeals. Those inside the campus should listen to police
without delay,” she said.

Earlier, the university’s president, Jin-Guang Teng, had urged protesters to leave, saying
the police had agreed to a ceasefire on the condition that protesters stopped their attacks
but police then fired on demonstrators who tried to leave.

By mid-afternoon local time, about 300 to 400 people were left in the university, according
to Tang Siu Wa, 41, a volunteer on the campus. Asked what they planned to do, she said:
“They are 20-year-old kids. They don’t have plans. Everyone is nervous.”

Tang said the group was exhausted and faced dwindling supplies. Some peaceful protesters
wanted to leave and others wanted to stay, she added. “People are getting tired but they
don’t want to surrender.”

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Journalists have not been allowed near the university.

The intensifying violence came as local media reported that district council elections may
not be held this Sunday as scheduled because of the demonstrations.

Cancelling or postponing polls is likely to worsen tensions: some protesters have been
demanding that the government promise to hold the elections, seen as one of the last
formal venues people have for expressing their views.

In another development, Hong Kong’s high court ruled that a ban on face masks
implemented by the government was unconstitutional. The ban made wearing any facial
coverings during public assembly punishable by prison time and fines.

Police had previously issued a statement ordering everyone inside the university to drop
their weapons, remove their gas masks and leave. “The rioters are hereby warned to stop
their unlawful acts,” the police said.

Representatives of the university’s student union posted a statement on Facebook saying

police had blocked all exits since Sunday night. The union said several protesters were in
need of medical help, including three people with eye injuries and about 40 experiencing
hypothermia after being hit by water cannon.

Q&A
Why have universities become a flashpoint in the Hong Kong protests?

“Because most of the emergency relief team and first-aiders have been arrested and taken
away, there are insufficient resources and personnel within campus to treat the injured,”
the statement said, calling the situation “a severe humanitarian crisis”.

In other neighbourhoods, police fired teargas and water cannon at protesters and other
supporters who had occupied streets and built barricades in an attempt to divert police
resources overnight on Sunday. Dozens were seen being arrested when they returned on
Monday. Volunteers with cars blocked roads to slow the police.

Hong Kong is experiencing its most serious political crisis in decades after the government
attempted to push through a controversial extradition bill that would have allowed
suspects to be sent to mainland China, seen by many as another move to extend Beijing’s
control over the city, which Britain returned to its control in 1997.

Protests over the now withdrawn bill pose a direct challenge to China, which governs Hong
Kong under the “one country, two systems” framework.

The US secretary of state, Mike Pompeo, urged the city’s government to address the
protestors’ concerns, calling on the Chinese Communist party to honour its commitment to
uphold freedoms and liberties.

“The Hong Kong government bears primary responsibility for bringing calm to Hong
Kong,” Pompeo said. “Unrest and violence cannot be resolved by law enforcement efforts
alone. The government must take clear steps to address public concern.”
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The European Union urged restraint on all sides, stressing that “any violence is
unacceptable”.

“It is crucial that all sides exercise restraint and engage constructively in de-escalation
efforts,” the EU’s foreign policy chief Federica Mogherini said in a statement.

Earlier, the People’s Daily, the official mouthpiece of the Chinese Communist party,
published an editorial on its front page saying there was no room for compromise: “What
we are facing today is a struggle between safeguarding ‘one country, two systems’ and
destroying it.

“On an issue involving national sovereignty and the future of Hong Kong, there is no
middle ground and absolutely no room for compromise.

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