OO v The Secretary of State for the Home Department

TS (Political opponents–risk) Burma CG remains applicable country guidance unless very strong grounds, supported by cogent evidence, justify departure. Political reforms and elections do not alone establish that such guidance has been overtaken where reliable evidence still shows surveillance, monitoring, detention and ill-treatment of government critics.

Risk must be assessed cumulatively, through the returnee’s profile in the eyes of the state. Material considerations include political activity abroad, intended activity on return, associates, and ethnicity or activity concerning sensitive minority issues. A person with a genuine and continuing profile critical of the government may face a real risk of detention after monitoring, even if not detained on arrival.

The appellant, a Burmese national, claimed asylum after arriving in the United Kingdom in 2010. His first appeal was dismissed. Following further submissions, a second First-tier Tribunal allowed his appeal on Refugee Convention grounds, but the Upper Tribunal set that decision aside because the assessment had omitted material factors in TS (Political opponents–risk) Burma CG [2013] UKUT 00281 (IAC).

The preserved factual findings were remade after further evidence. The central issues were whether political conditions in Burma justified departure from TS, whether the appellant’s political profile created a prospective risk on return, and, alternatively, whether passport or travel-document issues created a separate risk.

1. Appeal allowed on Refugee Convention grounds. The Tribunal remade the decision and concluded that the appellant would be at real risk of persecution if returned to Burma.

2. The Tribunal held that country guidance remains authoritative unless it has been superseded, replaced, rendered inconsistent with binding authority, or cogent fresh evidence supplies very strong grounds for not following it. The updated evidence showed political progress after the 2015 election, but it also showed continuing military influence, monitoring of critics, arrests and detention for political activity, and a continuing risk of serious ill-treatment in detention. It was materially similar to the evidence underlying TS [2013] UKUT 00281 (IAC). There was therefore insufficient cogent evidence to depart from that guidance.

3. Applying TS, the decisive issue was the appellant’s profile in the eyes of the Burmese authorities and whether post-return monitoring was likely to lead to detention. The appellant had engaged in sustained and genuine political activity in the United Kingdom, including demonstrations outside the Burmese Embassy. He was likely to continue publicly opposing military power and supporting minority rights on return. He had also been seen with higher-profile government critics and his activities had a sensitive ethnic dimension.

4. Those factors, assessed cumulatively, made it reasonably likely that the authorities would know of him, monitor him after return, and ultimately detain him for questioning. Detention carried the risk of persecution and serious harm identified in TS.

5. It was unnecessary to determine the alternative passport and certificate-of-identity issue under HM (Risk factors for Burmese citizens) Burma CG [2006] UKAIT 00012. The Tribunal nevertheless observed that the evidence suggested that its guidance probably required updating. An anonymity order was made under Rule 14.

• Upper Tribunal (Immigration and Asylum Chamber): remade the preserved appeal and allowed it on Refugee Convention grounds.
• Upper Tribunal: on 26 June 2016, set aside the second First-tier Tribunal’s allowance of the appeal because material TS risk factors had not been addressed, while preserving its factual findings.
• First-tier Tribunal: on 25 January 2016, allowed the appellant’s appeal on Refugee Convention grounds.
• First-tier Tribunal: on 13 August 2010, dismissed the appellant’s original asylum appeal.