Serunkuma v Secretary of State for the Home Department

Past detention and ill-treatment do not establish a well-founded fear of Convention persecution where the evidence shows that the authorities released the claimant after assessing his involvement in an insurgent organisation as peripheral and would have no continuing interest in him. Police or military brutality is not, without more, persecution for a Convention reason. A person perceived to hold political opinions may be protected where that perception creates a real risk of persecution, but the principle does not assist where the factual findings exclude such a risk. A possible prosecution as a fugitive from justice does not itself establish entitlement to refugee protection.

The appellant, a Ugandan national, claimed asylum after alleging that he had been arrested, detained and ill-treated because of assistance given by his family’s farm to the Lord’s Resistance Army. The Secretary of State rejected the claim. A Special Adjudicator accepted that the appellant had been arrested and ill-treated, but found that he had been released because his involvement was peripheral, and that he was a fugitive from justice rather than persecution. The Immigration Appeal Tribunal dismissed his appeal, finding that the authorities would have no continuing interest in him and noting the possible application of an amnesty.

The appeal to the Court of Appeal challenged the findings concerning past ill-treatment, the alleged inconsistency in the Special Adjudicator’s reasoning, the fairness of any future trial, and the relevance of perceived political opinion.

Appeal dismissed. Lord Justice Simon Brown delivered the judgment, with Lord Justice Keene and Lord Justice Longmore agreeing.

1. The central factual finding was that the appellant had been released because the Ugandan authorities regarded his involvement with the Lord’s Resistance Army as peripheral. That finding meant that he would be of no further interest to the authorities on return and would not face further detention or ill-treatment of the kind previously suffered.
2. The findings that the appellant was a fugitive from justice and that the authorities had exhausted their interest in him were cumulative, not inconsistent. He would not be apprehended again because of his limited role, but, if apprehended, the authorities would be entitled to pursue him for criminal wrongdoing.
3. The reliance on R v Immigration Appeal Tribunal ex parte Shokar [1998] Imm Ar 447 provided an additional difficulty. Police brutality, however reprehensible, is not per se persecution for a Convention reason. The Court did not need to decide that issue finally because the factual finding of no continuing official interest was more fundamental.
4. The Court accepted the principle in Asante v Secretary of State for the Home Department [1991] Imm AR 78 that Convention protection can extend to a person persecuted because those in power attribute political opinions or likely political activity to him. The principle did not assist this appellant because the factual findings showed that the authorities would not persecute him on return.
5. The Court also noted, without needing to explore the point, the concurrent finding that the appellant’s case would in any event be covered by an amnesty granted in Uganda for members or supporters of rebel groups. The appeal was dismissed, subject to Legal Aid assessment.

• Court of Appeal (Civil Division): Serunkuma v Secretary of State for the Home Department [2001] EWCA Civ 694; appeal dismissed.
• Immigration Appeal Tribunal: appeal dismissed on 31 March 2000.
• Special Adjudicator: appeal dismissed on 18 May 1999 after the Secretary of State had rejected the asylum claim on 14 July 1997.