YB (Eritrea) v Secretary of State for the Home Department

Activities undertaken sur place, including activities pursued opportunistically to strengthen an asylum claim, do not automatically prevent recognition as a refugee. The decisive question is whether the activities will expose the claimant to persecution or serious harm on return.

Under the Qualification Directive 2004/83/EC, the tribunal must assess whether the authorities of the country of origin are likely to observe, identify and act upon the activities, including whether they will regard them as insincere. Where objective evidence shows systematic repression of political opponents, a tribunal should not demand affirmative evidence before drawing realistic inferences about surveillance by overseas representatives.

YB (Eritrea) v Secretary of State for the Home Department concerned an Eritrean asylum seeker whose account of political activity in Eritrea was rejected, but whose substantial political activity in the United Kingdom was accepted by the Asylum and Immigration Tribunal.

The Tribunal dismissed the appeal. It treated the claimant's recorded political activity as deliberately created to assist his asylum claim and found no evidence that the Eritrean authorities could monitor, identify or act upon it. The claimant appealed from the Tribunal’s determination, reference AS/06016/2005.

The central issue was whether the Tribunal had applied the correct approach to opportunistic activity sur place and to the likelihood of overseas surveillance.

1. Appeal allowed in part. The Court remitted the issues arising from the claimant’s activity sur place to a differently constituted Tribunal. It did not disturb the Tribunal’s rejection of his account of political activity in Eritrea.

2. The Tribunal had materially erred by relying on the AIT decision in Danian without recognising this court’s reversal, reported at [2000] Imm AR 96. A claimant does not cease to be eligible for refugee protection merely because activities undertaken after departure were calculated to create or increase a risk of persecution. If the resulting fear is genuinely and objectively well-founded, opportunism is not an automatic bar.

3. The court read article 4(3)(d) together with article 5 of the Qualification Directive 2004/83/EC and rule 339P of the Immigration Rules. The relevant inquiry is whether the activities will expose the claimant to persecution or serious harm if returned. That inquiry may include whether the authorities are likely to observe and record the activity and, in an opportunistic case, whether they will understand or be persuaded that it is insincere. If they will do so, the claimant’s fear may be ill-founded; motive alone does not answer the question.

4. The Tribunal’s finding on surveillance was unrealistic. Where objective material depicts a government’s severe suppression of political opponents, little or no additional evidence may be needed to support a strong possibility that its foreign mission photographs demonstrators, receives information from expatriate opposition groups, or monitors online opposition material. The necessary individual assessment is what the information is likely to show about this claimant and the resulting risk on return.

• Court of Appeal (Civil Division): allowed the appeal to the limited extent of remitting the sur place issues for redetermination: [2008] EWCA Civ 360.

• Asylum and Immigration Tribunal: dismissed the asylum appeal after a full reconsideration: AS/06016/2005.