Gurung v Secretary of State for the Home Department

An asylum decision must assess the claimant’s risk at the date of hearing, on the precise facts and in light of material changes since departure. Where a claimant has been individually targeted because of particular activities, leaving the relevant employment does not by itself establish that the risk has ended. The decision-maker must consider whether the persecutors know of the changed status, whether retaliation remains possible, and how the claimant’s circumstances on return may be understood. Protection need not be guaranteed, but the assessment must address whether the authorities are reasonably willing and able to provide sufficient protection to that individual. A decision is inadequate where it fails to engage with material evidence or key risk factors.

The appellant, a Nepalese police inspector, claimed asylum after receiving repeated threats from Maoists because of his counter-terrorism activities. The adjudicator accepted his account and the objective basis for his fear but concluded that his fear was no longer well-founded because he had left the police force and a cooling-off period had passed. The Immigration Appeal Tribunal dismissed his appeal on 22 April 2004. The Court of Appeal considered whether the decision-making had properly addressed the police evidence, the possibility of revenge, the appellant’s changed civilian status, and the sufficiency of protection on return. The central issue was whether it was safe to return him without breaching the Refugee Convention or Article 3 of the ECHR.

1. Appeal allowed. The matter was remitted to a different Immigration Appeal Tribunal for reconsideration. Costs were subject to assessment.
2. The adjudicator had accepted that the appellant left Nepal because he feared persecution and that his fear had an objective basis. The adjudicator nevertheless failed to assess the present risk adequately. In particular, he did not explain the weight given to the letter from the Nepalese anti-terrorist unit, which indicated that the threat remained high and that individual protection could not practically be guaranteed.
3. The appellant had been individually singled out because of his activities, rather than targeted merely as a member of a general class. The decision-maker therefore had to examine his particular circumstances. That included whether the Maoists knew that he had left the police, whether they might regard him as acting undercover, and whether the threats involved possible revenge for his past actions as well as an attempt to force him to abandon police work.
4. The fact that the appellant had become a civilian did not, without further analysis, establish that his risk had ended. The prior inability of the authorities to protect him while he was a police officer, and the possibility that he would receive less protection as a civilian, required consideration.
5. Protection could not be guaranteed, but the sufficiency-of-protection assessment had to focus on this individual. General risks faced by security forces, or the existence of an insurgency, did not answer whether the Nepalese authorities were reasonably willing and able to provide sufficient protection in the appellant’s case. The Immigration Appeal Tribunal was not justified in endorsing the conclusion without addressing the deficiencies in the adjudicator’s reasoning.
6. The Article 3 claim added nothing in practical terms to the asylum claim. The appeal was therefore determined on the asylum analysis, with the case remitted for a fresh assessment of the precise facts and their likely impact on return.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter to a different Immigration Appeal Tribunal. [2004] EWCA Civ 1863
• Immigration Appeal Tribunal: On 22 April 2004, dismissed the appellant’s appeal from the adjudicator.
• Adjudicator: Uphheld the Secretary of State’s refusal of asylum, accepting the appellant’s account but finding that his fear was no longer well-founded.