EMAP v Secretary of State for the Home Department

Where gangs are actors of persecution under the Qualification Directive, an opinion, thought or belief about their policies or methods is a political opinion. Whether ensuing harm is inflicted for reasons of that opinion remains a fact-sensitive inquiry.

In El Salvador, the major gangs are political actors. Their political and criminal activities heavily overlap. The less immediately financial the reason for adverse attention, the more readily resistance may establish the required causal nexus.

On the law then applicable, a particular social group could be established by either protected characteristics or social perception. A person opposing gangs for reasons of conscience may satisfy the former criterion: Nationality and Borders Act 2022 subsequently requires both criteria.

The appellant, a Salvadoran national, had been granted humanitarian protection because he faced serious harm from gangs and could not obtain effective state protection. The Secretary of State refused refugee status, contending that the feared harm was ordinary criminal violence rather than persecution for a Convention reason.

The First-tier Tribunal dismissed his appeal. It found that the gangs were not pseudo-governments wielding the relevant major power and that the appellant's private report to police could not establish a particular social group.

The Upper Tribunal considered whether the major Salvadoran gangs were actors of persecution, whether resistance to them could amount to political opinion, and whether the appellant's feared harm was for a Convention reason.

1. Appeal allowed on asylum grounds. The First-tier Tribunal's decision was set aside for material errors of law and the Upper Tribunal remade the decision.

2. The proper starting point was Articles 6 and 10 of Council Directive 2004/83/EC. MS-13 and B-18 were non-state actors from whom the Salvadoran state could not provide protection and were therefore actors of persecution. A person holding an opinion, thought or belief about their policies or methods consequently held a political opinion.

3. The Tribunal approved the fact-sensitive approach in Gomez (Non-state actors: Acero-Garces disapproved) Colombia [2000] UKIAT 00007. It held that the gangs had become political actors in El Salvador: they exercised extensive territorial and social control, had infiltrated state institutions, and had negotiated with political parties to pursue political and social objectives. Criminal and political motives could overlap. Extortion alone would ordinarily be financially motivated, but resistance, reporting gang activity or refusing recruitment could establish that political opinion was an effective reason for persecution.

4. The Tribunal followed the disjunctive approach to membership of a particular social group. A claimant could qualify by showing an innate or immutable characteristic, or a belief so fundamental to identity or conscience that it should not be renounced, without additionally proving social perception. A visible public stand against gangs could satisfy social perception in any event. The Tribunal noted that Nationality and Borders Act 2022, which did not govern this appeal, now mandates the conjunctive approach.

5. The First-tier Tribunal had failed to apply the Directive's framework and had not adequately engaged with the UNHCR evidence. It also wrongly required direct proof that the gangs knew of the appellant's police report, rather than assessing reasonable likelihood in the evidence of gang infiltration and the accepted threats.

6. The initial kidnapping and extortion were not shown to be for a Convention reason. However, it was reasonably likely that the subsequent threats and targeting of family members followed the appellant's deliberate report to police. That action revealed opposition to gang policies and methods. He therefore had a well-founded fear of persecution for reasons of political opinion; alternatively, on the disjunctive approach, as a police informer with an immutable past.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal on protection (asylum) grounds and set aside the First-tier Tribunal's dismissal.
• First-tier Tribunal: dismissed the appellant's appeal against refusal of refugee status while humanitarian protection had been granted.