KS (Burma) & Anor v Secretary of State for the Home Department

Opportunistic political activity undertaken abroad to manufacture an asylum claim does not automatically prevent refugee status. The applicant’s motive is relevant, but the decisive question is whether the activity objectively creates a well-founded fear of persecution, including persecution for an imputed political opinion.

Country guidance may address matters extending beyond the facts necessary to decide the originating appeal. When its legality is challenged, however, the court must scrutinise whether the disputed guidance was based on properly evaluated evidence and full argument. Guidance cannot presume, without evidential support, that an arbitrary and repressive regime will reliably distinguish a genuine opponent from an opportunistic demonstrator.

Two unrelated Burmese nationals entered the United Kingdom as students and later claimed asylum. Each participated in anti-regime demonstrations after leaving Burma. The First-tier Tribunal found that their activities were undertaken to enhance their asylum claims rather than from genuine political commitment.

The First-tier Tribunal dismissed both appeals, applying the country guidance in TL (Sur Place activities-risk) Burma [2009] UKAIT 00017. That guidance stated that an opportunistic “hanger-on” was unlikely to face a real risk of persecution merely for participating in demonstrations. The Upper Tribunal found no error of law.

The appellants appealed against those decisions. The central issue was whether the country guidance concerning hangers-on was legally flawed and, alternatively, whether it had been misapplied.

1. The appeals were allowed and both cases remitted to the Upper Tribunal. The country guidance concerning opportunistic demonstrators in TL (Sur Place activities-risk) Burma [2009] UKAIT 00017 was legally flawed. It was therefore inappropriate to decide whether that guidance had also been misapplied in the individual cases.

2. A person who undertakes political activity solely to create or aggravate a risk on return is not automatically excluded from refugee protection. Article 4.3(D) of the Council Directive 2004/83/EC makes motive relevant to assessing whether the activity will expose the person to persecution or serious harm. Motive is not dispositive. The objective question remains whether the person has a well-founded fear of persecution, including persecution for an imputed political opinion.

3. The country-guidance system is anomalous but well established. Guidance may be authoritative even where, in a strict sense, it extends beyond the facts necessary to decide the originating appeal. A later appellant may challenge guidance on legal grounds. The reviewing court must then rigorously examine whether the disputed guidance rested on evidence properly evaluated after full argument, including where it did not strictly apply to the original appellant.

4. A specialist tribunal may reject uncontradicted expert evidence, provided its reasons withstand scrutiny. In TL, however, the rejection of the expert evidence concerning hangers-on rested on two unsustainable steps. First, the Upper Tribunal drew a false analogy between opportunistic demonstrators, whose activities were routinely photographed and reported, and failed asylum seekers, whose claims were not shown to be routinely known to the Burmese authorities. Secondly, it assumed without evidential support that an arbitrary and repressive regime would rationally and reliably distinguish opportunistic demonstrators from genuine political opponents.

5. Risk assessment must remain individual. Relevant matters may include the nature of the sur place activity, the likelihood of identification, circumstances triggering inquiry on return and the consequences of identification. Maurice Kay LJ suggested that future country guidance might benefit from a structured, non-exhaustive approach comparable to that used for Iranian demonstrators. Moore-Bick and Rimer LJJ agreed.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 67, unanimously allowed both appeals because the applicable country guidance was legally flawed, and remitted the cases to the Upper Tribunal for redetermination after the forthcoming country-guidance decision.

2. Upper Tribunal (Immigration and Asylum Chamber): In each case, held that the First-tier Tribunal had made no error of law in applying the existing country guidance and dismissing the appeal.

3. First-tier Tribunal: Dismissed both appellants’ asylum and human-rights appeals. It found that their United Kingdom political activities were undertaken to enhance their asylum claims and that neither faced a real risk of persecutory ill-treatment as an opportunistic “hanger-on”.