MI & Anor v Secretary of State for the Home Department

Whether ill-treatment is capable of constituting persecution is a question of law. Whether particular ill-treatment constitutes persecution is a mixed question of fact and law requiring a fact-sensitive evaluation.

Persecution requires past or apprehended harm attaining a substantial level of seriousness. Discrimination, harassment or social disapproval does not suffice unless its nature, repetition or cumulative effect severely violates basic human rights. Where non-state actors are responsible, the claimant must also establish that the home state is unable or unwilling to provide protection.

An appellate tribunal may intervene where the first-instance tribunal fails to identify the correct threshold or merely asserts that the threshold has been crossed without evaluating the seriousness and persistence of the harm.

Two asylum appeals were heard together. MI, a Pakistani national with albinism, relied on past bullying, harassment, employment discrimination and one violent attack. The First-tier Tribunal allowed his appeal, but the Upper Tribunal identified an error of law, remade the decision and dismissed his asylum, humanitarian protection and human rights claims.

MF, a Venezuelan opposition activist, relied on prolonged intimidation, threats, surveillance, discrimination and one incident causing physical harm. Following an earlier flawed First-tier Tribunal decision, the Upper Tribunal reheard and dismissed his appeal.

The central issue was whether the facts found by the tribunals were legally capable of establishing a well-founded fear of persecution, or alternatively a real risk of serious harm. MI also challenged the Upper Tribunal's jurisdiction to set aside the First-tier Tribunal's decision.

1. Both appeals dismissed. The Upper Tribunal was entitled to conclude that neither appellant had experienced, or faced a real risk of experiencing, treatment sufficiently serious or persistent to constitute persecution. The findings also did not establish serious harm for humanitarian protection or treatment contrary to article 3 of the Convention.
2. Persecution is a strong concept requiring harm of substantial seriousness. Under article 9(1) of the Council Directive 2004/83/EC and regulation 5 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, the harm must, by its nature, repetition or cumulative effect, amount to a severe violation of basic human rights. Discrimination or social disapproval alone is insufficient. The Refugee Convention supplies surrogate protection against persecution; it does not guarantee standards equivalent to those prevailing in the state of refuge.
3. Determination of a legal threshold ordinarily involves three stages: finding the primary facts; identifying the legal meaning of the threshold; and evaluating whether the facts cross it. The meaning of persecution and the kinds of ill-treatment capable of being persecutory are questions of law. Their application to particular facts is a mixed question of fact and law involving evaluation. An appellate court gives appropriate weight to a tribunal which heard the evidence, although an error in defining or applying the threshold remains reviewable.
4. MI's First-tier Tribunal had made a material error of law. It failed adequately to identify the requisite seriousness threshold and replaced the necessary evaluation with a conclusory assertion that the treatment amounted to persecution. The Upper Tribunal therefore had jurisdiction to set aside and remake the decision.
5. MI's historical bullying, employment difficulties and single unreported attack did not compel a finding of persecution. The Upper Tribunal could also find no real future risk and no sustained or systemic failure of Pakistani state protection, particularly because MI had never sought police protection. MF's intimidation, threats and single physically harmful incident likewise did not compel the legal characterisation of persecution. The Upper Tribunal evaluated the cumulative evidence and reached a conclusion available to a properly directed tribunal.

Gloster LJ delivered the leading judgment. Sir Stanley Burnton and Gross LJ agreed that both appeals should be dismissed.

1. Court of Appeal (Civil Division): Dismissed both appeals. It upheld the Upper Tribunal's conclusions that the requisite persecution and serious-harm thresholds had not been crossed.
2. Upper Tribunal (Immigration and Asylum Chamber)—MI: Set aside the First-tier Tribunal's decision for error of law, preserved its factual findings, remade the decision and dismissed the appeal on asylum, humanitarian protection and articles 3 and 8 grounds.
3. First-tier Tribunal—MI: Allowed the appeal on asylum and article 3 grounds.
4. Upper Tribunal (Immigration and Asylum Chamber)—MF: Following an accepted error of law in the First-tier Tribunal's reasoning, reheard the appeal and dismissed it.
5. First-tier Tribunal—MF: Dismissed the appeal against refusal of asylum and humanitarian protection.