Montoya v Secretary of State for the Home Department

A well-founded fear of serious harm does not establish refugee status unless the feared persecution is for a Convention reason. The causal inquiry is contextual and fact-sensitive. A persecutor’s independent financial motive does not invariably defeat a claim, but a tribunal may find on the evidence that extortion is directed at wealth rather than political opinion or membership of a particular social group.

Political persecution depends upon the persecutor’s perception of, and motivation concerning, the claimant’s actual or imputed opinion. The ideological character of the persecutor does not itself establish the required nexus.

The appellant, a Colombian national, feared murder by the EPL after refusing demands for substantial protection payments. He was accepted as credible. The adjudicator found that he had a well-founded fear of persecution and was a refugee as a perceived private landowner.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that the risk arose from financially motivated extortion, not political opinion or membership of a particular social group. It also held that private landowners did not qualify as a particular social group in the circumstances.

The appellant appealed to the Court of Appeal. The central issue was whether the Tribunal had made an error of law in finding that his fear of persecution was not for a Convention reason.

Appeal dismissed. Schiemann LJ gave the judgment of the court.

1. The appellant’s accepted risk of murder and the Colombian authorities’ inability to protect him did not alone engage the Refugee Convention. International surrogate protection is confined to persons persecuted for a Convention reason. The court accepted the account of state protection in Horvath v Home Secretary, [2001] 1 AC 489, but protection was not disputed on the facts.
2. The Tribunal was entitled to reject political opinion as the relevant reason. The proper focus was the persecutors’ perception of the appellant’s political beliefs and their motivation, rather than the political beliefs of the EPL. The evidence entitled the Tribunal to find that the family’s prosperity made it a target for extortion.
3. The words “for reasons of” require a causal nexus between the Convention ground and the feared persecution. Causation in this setting is to be decided case by case and in context. A persecutor’s personal motive being independent of a Convention ground does not invariably defeat a claim, but the Tribunal lawfully found that the operative reason here was the desire to obtain money.
4. The court did not need finally to determine whether private landowners formed a particular social group. It assumed the point in the appellant’s favour and held that the causal-nexus finding was sufficient. It nevertheless accepted that it could not depart from the immutability formulation in Re Acosta, as approved in Islam and Shah, [1999] 2 AC 629.
5. Under Schedule 4, Paragraph 23 of the Immigration and Asylum Act 1999, the court could set aside a Tribunal conclusion only for legal error. No such error was shown. The appeal was dismissed, with no order for costs; permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal in [2002] EWCA Civ 620.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal from the adjudicator and held that the appellant’s feared harm was not for a Convention reason.
• Adjudicator: allowed the asylum appeal, finding that the appellant had a well-founded fear of persecution and was a member of a particular social group.