Faraj v Secretary Of State For the Home Department

For asylum purposes, persecution requires more than isolated or random violence. It ordinarily involves a persistent course of conduct or sustained or systematic failure of protection. A single incident of torture may qualify where it forms part of persecution directed against a group. The assessment of a well-founded fear is a single composite question, combining the nature of the past treatment, its Convention reason and the likelihood of future repetition. The burden lies on the asylum seeker, but the standard is a real danger or substantial possibility. The issue is principally one of fact and degree, and an appellate court may interfere only where no reasonable tribunal could have reached the conclusion reached.

The appellant, a Kenyan national and Muslim of Arab origin, claimed asylum after alleging repeated detention, torture and mistreatment connected with his membership of the Islamic Party of Kenya. The Secretary of State refused leave to enter and rejected his asylum claim. A Special Adjudicator dismissed his appeal, finding that the evidence did not establish a serious possibility of persecution for a Convention reason. The Immigration Appeal Tribunal upheld that determination. The appellant appealed to the Court of Appeal under section 9 of the Asylum and Immigration Appeals Act 1993, arguing that the Tribunal had erred in law and that the evidence compelled a finding of persecution. The central issue was whether the Tribunal’s conclusion was legally unsustainable.

The appeal was dismissed unanimously. Lord Justice Peter Gibson delivered the leading judgment, with whom Lord Justice Potter agreed. Lord Justice Thorpe concurred in the result, while expressing reservations about aspects of the Tribunal’s evaluation of the evidence.

1. The Convention requires a genuine subjective fear which has caused the claimant to be outside the country of nationality, together with an objectively well-founded fear. The burden lies on the asylum seeker. The applicable standard is a real danger or substantial possibility of persecution, rather than the balance of probabilities.
2. Persecution may involve physical or mental ill-treatment, but it ordinarily requires a persistent course of conduct involving sustained or systematic failure of protection. Casual or random violence inflicted on citizens generally is not, without more, persecution. Isolated torture may amount to persecution where other incidents affect a group of which the claimant is a member.
3. Whether there is persecution for a Convention reason, and whether the claimant has a well-founded fear of its future repetition, are questions of fact and degree. They form a single composite question. The Court may interfere only if the tribunal’s conclusion was unreasonable in the sense that no reasonable tribunal could have reached it.
4. The Special Adjudicator and Tribunal were entitled to assess the evidence in the round and to conclude that the appellant’s mistreatment arose from crowd-control and peace-keeping activity, rather than persecution for membership of the Islamic Party of Kenya or for being Muslim. The Tribunal’s reference to the absence of a deliberate policy did not impose a higher Convention threshold.
5. The Tribunal was also entitled to treat the Balala letter and later supporting evidence as unreliable or overstated. The additional evidence was admitted despite not satisfying the Ladd v Marshall criteria because the respondent properly raised no objection in an asylum case involving possible risks to life and liberty. It did not alter the result.

• Immigration Appeal Tribunal: dismissed the appellant’s appeal from the Special Adjudicator’s determination.
• Court of Appeal (Civil Division): dismissed the appeal under section 9 of the Asylum and Immigration Appeals Act 1993, holding that no material error of law had been shown.