MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826

[2014] EWCA Civ 826Case No C5/2012/3140Case No C5/2013/0004
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE ALLEN AND UPPER TRIBUNAL JUDGE FRENCH
AA/13307/2011 & AA/13177/2011
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 18 th June 2014
Before
LORD JUSTICE GROSSLADY JUSTICE GLOSTERSIR STANLEY BURNTON
Between
MI (PAKISTAN)AppellantsMF (VENEZUELA)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Abid Mahmood (instructed by Fountain Solicitors) for Appellant (MI)Ms Mavelyn Vidal (instructed by Duncan Lewis & Co) for Appellant (MF)Mr William Hansen (instructed by Treasury Solicitors) for Respondent
Hearing Hearing dates: Thursday 6 th February 2014JudgmentGloster LJ:Introduction
[1]The substantive issue which arises in these two appeals, which were directed to be heard together, is whether, on the facts as found in each case by the relevant tribunal, the appellant in each case was entitled, as a matter of law, to claim that he had a well-founded fear of persecution such as to entitle him to refugee status.

The relevant facts in MI (Pakistan)

[2]The appellant in the case of MI (Pakistan) (“MI”) is a national of Pakistan. He is now aged 30 having been born on 1 March 1984 in Gujarat. He is a genetic albino. Albinism is a genetic deficiency of melanin pigment production and is usually an inherited condition. It is an immutable characteristic.[3]MI entered the United Kingdom in October 2009 on a visitor visa valid until 19 April 2010. He accepted that he used false documents to obtain that visa. He then overstayed, was found working illegally in May 2011 and consequently was detained. He then made a human rights claim under Article 8 of the European Convention on Human Rights ("the ECHR") on the basis that his proposed removal would be an interference with his right to respect for his private or family life. That claim was refused and certified by the respondent Secretary for State for the Home Department ("the respondent") on 7 July 2011. It does not appear that at that stage there was any reliance by MI on his albinism or on any allegation of mistreatment if he were returned to Pakistan.[4]Having failed in his Article 8 claim, on 5 August 2011 MI applied for asylum in the United Kingdom and asked to be recognised as a refugee under the Convention Relating to the Status of Refugees made at Geneva on 28 July 1951 as amended by the New York Protocol dated 31 January 1967 (together "the Geneva Convention"). The basis of his claim was that it would be contrary to the United Kingdom's obligations under the Geneva Convention for him to be removed from, or required to leave, the United Kingdom because he claimed to have a well-founded fear of persecution in Pakistan by non-state agents on the grounds of his albinism. In particular he complained of: i) bullying at school between the ages of 8-15; ii) name calling between the ages of 15-22; iii) finding it difficult to find work and getting the sack after two weeks because of remarks by customers about the colour of his skin; iv) being beaten up by a group of men on one occasion when he was 23 (i.e. in 2007), when he responded to their name calling; v) trying to relocate to Karachi and then Quetta but suffering the same harassment.[5]He also renewed his claim that the removal to Pakistan would be a breach of his right to a family life under article 8 of the ECHR.[6]By a decision letter dated 25 November 2011 the respondent refused his claim on all grounds and directed his removal from the United Kingdom. The respondent indicated that consideration had also been given to whether or not MI qualified for a grant of Humanitarian Protection in accordance with Articles 2 and 3 of the ECHR and paragraph 339 C of the Immigration Rules (HC 395) (“the Immigration Rules”). However the respondent expressed the view that MI had not established that substantial grounds had been shown for believing that MI would face a real risk of suffering serious harm if he returned to Pakistan.[7]MI then appealed to the First-tier Tribunal ("the FTT") pursuant to section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). He appealed on the grounds that his removal from the UK would be in breach of the UK's obligations under the Geneva Convention and that such removal would be incompatible with his rights under the ECHR. His appeal was heard by First-Tier Tribunal Judge Camp ("IJ Camp”) who heard live evidence from MI, his brother and sister. He also took account of certain documentary evidence produced, including an expert "country" opinion from Professor Christopher Bluth dated 20 December 2011. In a decision promulgated on 23 February 2012, IJ Camp allowed the appeal on both asylum grounds and under Article 3 of the ECHR. IJ Camp did not consider it necessary to consider the impact of Article 8 of the ECHR. At paragraphs 38 to 46 he said: “38. I accept Professor Bluth’s expressed conclusion that he does not doubt the appellant’s assertion that he may be at risk of being the target for attacks, if he returns to Pakistan, and that the authorities will be unable or unwilling to provide significant protection. 39. I bear in mind the guidance given in the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR re-edited Geneva 1992): 51. There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons - would also constitute persecution. 40. I accept that, as a result of his albinism, the appellant has been physically and verbally abused in Pakistan, that his education has suffered severely and that he is unlikely to be able to work there. This amounts to persecution. Relocation would not resolve these problems. 41. Although there was some discussion at the hearing about whether albinos in Pakistan constituted a particular social group, it does not appear to me that there can be any real doubt about the matter: see Shah and Islam [1999] 2 AC 629. Albinism is an immutable characteristic.42. Using the standard of proof applicable, I find that the appellant would be at risk of persecution in Pakistan, as a member of a particular social group.43. For these reasons, the appellant has satisfied me, to the standard set out earlier, that he has a genuine and well-founded fear of persecution in Pakistan for a Refugee Convention reason.44. Humanitarian protection pursuant to paragraph 339C of HC 395 does not therefore arise.45. For the same reasons, the appellant has shown that there is a real risk that he would be subjected to torture or inhuman or degrading punishment in Pakistan. His removal to Pakistan would constitute a breach of the United Kingdom’s obligations under article 3 of the ECHR.46. I need not consider the impact of article 8 of the ECHR.” 51. There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons - would also constitute persecution.[8]By an application dated 25 February 2012, the respondent appealed with the permission of the FTT (First-Tier Tribunal Judge Brunnen) to the Upper Tribunal ("the UT") on the basis that IJ Camp's decision contained material errors of law, namely(a) that the ill-treatment to which MI might be exposed on return to Pakistan would amount as a matter of law to persecution; and(b) that the judgment failed to give adequate reasons for the judge's finding that MI had suffered physical and verbal abuse in the past, given that MI and his witnesses had been found by IJ Camp to have lied in connection with the visa application and that an expert report noted the lack of direct evidence as to the alleged persecution of albinos in Pakistan.[9]At the first hearing before the UT on 15 August 2012, Deputy Upper Tribunal Judge French ("UTJ French") came to the conclusion that IJ Camp had not given adequate reasons as to why, in law the conduct complained of amounted to persecution and set aside his decision on this ground; see paragraph 4 of the judgment dated 6 November 2012. However he rejected the respondent's challenge to IJ Camp's factual findings and concluded that the reasons which had been given by IJ Camp for accepting MI's evidence and for reaching his findings of fact, were sufficient. He decided that a further hearing was required at which submissions could be made as to whether the treatment which IJ Camp had found MI had encountered in Pakistan amounted to persecution as a matter of law and as to whether a real risk of persecution would obtain if he were returned. UTJ French also stated that oral evidence could "also" be given in relation to the appeal under Article 8 of the ECHR upon which no findings had been made by IJ Camp.[10]At that stage UTJ French identified what he referred to as the “preserved” findings of fact from the decision of IJ Camp, which would form the basis of the UT's second stage consideration of MI’s asylum and Article 3 claims. At paragraph 5 of the UT's judgment dated 6 November 2012, the UT set out those preserved findings as follows:
“(i) [MI], as a result of his albinism, had been verbally abused and physically attacked, he said this was on an occasion when he was aged 23; (ii) he was bullied at school and his education suffered accordingly; (iii) he was unlikely to be able to find work; (iv) he had attempted to relocate to Karachi and to Quetta but had still encountered harassment and discrimination there. It was accepted that he had not sought help from the police, for which he had advanced reasons.”
[11]At the resumed hearing on 24 October 2012, UTJ French heard oral evidence from MI, his brother and sister and further submissions from each side's representatives. The evidence appears to have related not merely to the Article 8 claim but also to the other issues. Having earlier set aside the FTT's decision, and having considered both the preserved findings and the evidence before him, UTJ French "remade" the decision in relation to MI's appeal against the respondent's decision to remove him from the United Kingdom.[12]He dismissed the appeal on all grounds. In relation to the asylum grounds and Article 3 of the ECHR, he said at paragraph 47:
“47. Having regard to all of the evidence I have come to the view that although this Appellant did suffer bullying at school and taunting and has difficulties finding work if returned he would not be alone in Pakistan, he lives in a province where there are some positive comments about the police, he has not attempted to access their protection, he has suffered one act of violence after responding to a group of youths who taunted him. Although one feels sympathy for the Appellant that single past act of violence, bearing in mind that he made no attempt to access the protection which is available, does not demonstrate that he has been persecuted or faces a real risk of persecution in the future nor do the bullying and taunts in themselves or taken together with the act of violence and his difficulties in finding employment reach the standard necessary to meet the requirements of the Refugee Convention nor for humanitarian protection or protection under Article 3 ECHR.”
[13]UTJ French rejected MI's claim on Article 8 grounds on the basis that he had not established that he enjoyed family life with his brother or sister within the meaning of that term in Article 8. UTJ French concluded that, although they were obviously members of the same family and there were emotional ties between them, MI was not an integral part of either of their families. Having considered proportionality, UTJ French placed reliance on the fact that MI had used false information to secure entry to the United Kingdom. At paragraph 53 he said:
“53. It is also significant and cannot be discounted that he, with the sister and others contrived to secure his entry to this country using false information and the sister even gave false evidence at the Tribunal hearing following which his appeal against refusal was allowed. Such a factor has to weigh heavily against the Appellant; it cannot be in the public interest for such a deception to be allowed to succeed. I also bear in mind that the Appellant has found himself more settled in this country than he did in Pakistan and finds that his albinism is not commented upon in the same way. If he returns he may well face some further unpleasant comments but that is not to my mind a sufficient reason to allow him to remain on the basis of Article 8. The respondent has established that the Appellant’s removal is proportionate to the legitimate aims pursued.”
[14]Accordingly he concluded that MI did not succeed under the Geneva Convention, in his claim to humanitarian protection, or under Articles 3 or 8 of the ECHR and dismissed his appeal.[15]By an Appellant’s Notice filed on 31 December 2012 MI sought permission to appeal against the UT's decision. Elias LJ refused permission on the papers on the basis that: “1. It seems to me that the Judge was entitled to find that there was an error of law in the decision of the First Tier Tribunal in that the single act of violence, coupled with bullying and taunts, was not sufficient as to amount to persecution under Article 3. The single judge was also entitled to find that the police could provide adequate protection. But strictly that is not necessary once he has established there is no breach of Article 3. 2. The judge considered in terms the best interests of the children: since they were the children of his brother and sister, they plainly would not weigh in the same way as if they were his own children. The judge gave cogent reasons why that did not render his removal (dis)proportionate: see paragraph 52”.[16]The application for permission was orally renewed. Counsel for MI, Mr Abid Mahmood, prepared a statement pursuant to paragraph 17 of CPR PD 52C in support of the renewed application in which he identified what he said was an “important point of principle”, namely “whether a single past act of violence, coupled with accepted discrimination is sufficient for asylum to be granted”. He also submitted that there was “some other compelling reason” for the appeal to be heard: “because(a) the favourable findings(b) the Appellant’s physical appearance of a European or American when(c) combined with the continuing worsening violence and anti-Western sentiments in Pakistan are all such serious factors as to mean that the Appellant will at least face continued discrimination (which appears to be accepted), but according to the expert, it will be much worse than ‘mere’ discrimination that he will face on return”.[17]On 3 May 2013 permission was granted by the Court of Appeal (Aikens and Underhill LJJ). In giving permission Aikens LJ said:
"5. I have decided that permission to appeal should be granted. This is a second appeal. I am not satisfied that there is a point of principle or practice involved in this case, but I am satisfied that there are other compelling reasons why the appeal should be heard. First of all, this is a case where the Upper Tribunal allowed an appeal from the FTT on an “error of law” which, with great respect, seems to me to be somewhat flimsy. The conclusion as to whether some conduct was persecution or not is ultimately one of fact. The reasons for that conclusion lie in the evidence, which was referred to copiously by the FTT judge. At least that seems to me to be an arguable point. 6. Secondly, but more importantly, the key test is not what has happened in the past but whether there is a serious possibility or reasonable likelihood of persecution in the future. Deputy Upper Tribunal Judge French appears, by a process of induction, to have concluded that because the facts of the past do not (in his view) amount to persecution and so forth, there is no sufficient likelihood of it happening in the future. It is arguable that this does not follow. Having read the admirable “Practice Direction statement” of Mr Abid Mahmood, it seems to me that in the circumstances this case should be heard by this court in order to explore all those matters. 7. Lastly among my reasons, when a person claims protection as a refugee, and there are two conflicting decision of the courts that are founded on the interpretation of the facts, as is the case here, then, at least in this case, it seems to me there are compelling reasons for the matter to be heard by this court."

The grounds of appeal presented on behalf of MI in this court

[18]Before this court Mr Mahmood pursued three grounds of appeal on behalf of MI. These were as follows: i) The jurisdiction ground: By way of preliminary issue, Mr Mahmood submitted that the UT had no basis for interfering with the decision of the FTT because IJ Camp had made no material error of law. Accordingly the FTT's determination ought to have remained. The UT merely disagreed with IJ Camp’s determination. ii) The substantive ground: Mr Mahmood submitted that, if contrary to the jurisdictional argument, the UT was right in law to re-open the appeal, nonetheless it dismissed the appeal on the wrong legal basis. This ground, he submitted, raised the important issue of principle as to the meaning of the word "persecution" and the test to be applied under the Geneva Convention. It was MI's case that the past violence, harassment and discrimination that he had suffered, and the harassment and discrimination which he would suffer on return to Pakistan, as a matter of law amounted to persecution, engaged Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ( OJ 2004 L304, p 12) ("the Qualification Directive"), or alternatively that humanitarian protection should have been granted by the respondent and, or alternatively, that his removal was a breach of Articles 3 or 8. (He did not pursue his ground of appeal that his removal was not in the best interests of his brother’s and sister’s children). iii) The inefficiencies of the police and the authorities in Pakistan: These were evidentially well-documented. Even had MI sought the protection of the police in Pakistan, their inefficiencies and the well-documented allied corruption meant that there would be no sufficiency of protection on return. This ought to have led to the appeal being allowed on protection grounds. Determination of the preliminary jurisdiction issue in MI (Pakistan)[19]I deal with this issue first as it does not arise in the second case of MF (Venezuela).

The parties’ submissions

[20]Mr Mahmood submitted that there had been no material error of law in IJ Camp's judgment. The respondent had to establish that the error of law was material, in the sense of being "vital" and "critical"; see R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982 and, in particular, paragraph 15 in the judgment of Brooke LJ. In the present case IJ Camp adequately addressed the relevant law at paragraphs 38-45 and applied the law to the facts as he had found them. He balanced all the evidence (including, in particular, the expert evidence) and rightly concluded, after careful assessment, that the events suffered by MI did amount to persecution and would be likely to continue if he returned to Pakistan. The fact that the UT came to a different conclusion as to whether persecution was demonstrated did not show a material error of law. Mr Mahmood also relied on the statement made by Aikens LJ, when granting permission to appeal, that the "error of law", upon the basis of which the UT allowed the appeal, seemed to him to be "somewhat flimsy".[21]Mr William Hansen, who appeared for the respondent in both cases, submitted that there had indeed been a material error of law; and that, having made the findings of fact set out in paragraph 40 of his judgment, IJ Camp failed to analyse or engage with the fundamental question which arose on the facts, namely whether the treatment complained of was sufficiently serious and/or persistent to amount in law to persecution and whether, in the circumstances, MI would be at risk on return. The respondent fully accepted that the Court of Appeal would not entertain appeals against decisions of the FTT which involved little more than a challenge to findings of fact presented as a failure to give reasons: see e.g. R (Iran) v. SSHDsupra. However, Mr Hansen further submitted that the present case was not a challenge to findings of fact presented as a failure to give reasons; whether ill treatment was capable of being persecutory was a question of law and whether ill treatment in a particular case constituted persecution was a mixed question of fact and law: MA (Ethiopia) v. SSHD [2009] EWCA Civ 289 at [62]. Discussion and

Determination of the preliminary jurisdiction issue in MI (Pakistan)

[22]With respect to the view expressed by Aikens LJ on granting permission to appeal, I conclude that there was indeed a material error of law in the FTT’s decision in the present case.[23]In MA (Ethiopia) v. SSHDsupra Stanley Burnton LJ said at [61] – [62]:
“61. There has been an unfortunate tendency in the law of asylum to treat findings of fact as decisions on points of law, and binding authority in subsequent cases. This is such a case: the decision of the Court of Appeal in EB (Ethiopia) was regarded as authority for the proposition that the removal of a person's nationality by the authorities of his or her home state is as a matter of law sufficiently serious ill treatment as to constitute persecution which, if done for reasons referred to in Article 1(A)(2) of the Convention relating to the Status of Refugees, entitles that person to refugee status. This understanding of the effect of EB was, I think, largely responsible for the unnecessary length of the Tribunal's determination and the complexities of its reasoning. 62. I am troubled by this proposition. What is the meaning of persecution in Article 1(A)(2) is a question of law. It has been the subject of helpful exegisis, as by Laws LJ in Amare [2005] EWCA Civ 1600, in a judgment with which the other members of the Court agreed. Thus what ill treatment is capable of being persecutory is a question of law. But whether ill treatment in a particular case constitutes persecution is a mixed question of fact and law: it is the application of the denotation of persecution to the particular facts.”
[24]Moreover, as the Supreme Court pointed out in the recent case of In the matter of B (a Child) (FC)[2013] UKSC 33, whether a particular statutory threshold has been crossed (in that case whether a child was "likely to suffer significant harm" under section 31(2) of the Children Act 1989) usually requires the judge to take at least three steps:(i) he has to determine the factual issues on the evidence before him;(ii) he has to identify the nature of the threshold, which involves the construction of the relevant section; and(iii) he has to decide, whether on the primary facts he has found, and the assessments which he has made, the relevant threshold has been crossed; see e.g. per Lord Neuberger at paragraphs 49 to 50. As Lord Neuberger pointed out at paragraph 52, a Court of Appeal will only very rarely even contemplate reversing a trial judge's findings of primary fact in relation to this first stage. But the second stage is to determine the meaning of the relevant statutory or other threshold. That is an issue of pure law as Lord Neuberger stated at paragraph 55:
“The second step is to determine the meaning of section 31(2), which is an issue of pure law. In relation to such an issue, the function of this Court (like that of the Court of Appeal) is uninhibited by the fact that it is an appellate tribunal. That is because there is a single “right or wrong” answer, which an appellate court has to determine for itself, although it often derives assistance from the reasoning of the court or courts below. ”
[25]The third and final step in relation to a determination as to whether a threshold has been crossed is an evaluation by the judge as to whether, on the primary facts he has found, the threshold has been crossed in the particular case before him. As Lord Neuberger pointed out at paragraphs 57-60, that decision is not one of law or of primary fact: “57. The final step in relation to the section 31(2) threshold issue required the Judge to address the question whether, on the primary facts he had found and assessments he had made, the threshold was crossed in this case. The decision on that question is certainly not one of law, but it is not one of primary fact either. It is a type of decision which is often described as involving the exercise of judgment, but it may fairly be said that this is not a very illuminating characterisation, because the determination of an issue of law or of an issue of fact also involves the exercise of judgment. As Lady Hale at para 199 and Lord Wilson at para 44 each say, it can be categorised as a value judgment (as Ward LJ said in In re MA (Care: Threshold) [2010] 1 FLR 431, para 56, and Black LJ said below, [2012] EWCA Civ 1475, para 9). It can also be said to be an appraisal, as Lord Kerr describes it in para 109, or an evaluation, to use Clarke LJ’s characterisation in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, paras 16 and 17, cited with approval by the House of Lords in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, para 46. 58. In many cases, reversing the trial judge’s evaluation on an issue such as whether the section 31(2) threshold has been crossed, would involve an appellate court effectively disagreeing with(i) primary findings of fact made by the judge, or(ii) the impressions he obtained from seeing the witnesses (eg in terms of trustworthiness as to future conduct). In such cases, depending on the precise basis on which the appeal is mounted, the reasons for giving primacy to the trial judge’s conclusion (good sense, policy, cost, delay, and practicality) will either apply in the same way as, or will apply with somewhat less force than, they do in relation to findings of primary fact. …… 59. ……. 60. When it comes to an evaluation, the extent to which the benefit of hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal will vary from case to case. Accordingly, it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation (see also in this connection Robert Walker LJ in Bessant v South Cone Inc [2002] EWCA Civ 763, para 26, May LJ in EI du Pont de Nemours & Co v ST Dupont [2003] EWCA Civ 1368, para 94, and Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56, para 44). Accordingly, as already explained, even where the issue raised is not one of law, the reasons which justify a very high hurdle for an appeal on an issue of primary fact apply, often with somewhat less force, in relation to an appeal on an issue of evaluation. “[26]In my judgment, in the present case IJ Camp made errors of law at both the second and third stage of the evaluation process described above.[27]First he failed, or failed adequately, to identify the nature of the threshold which had to be satisfied for the relevant conduct to amount to persecution. Thus, apart from the reference in paragraph 39 of his judgment to the guidance given in the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR re-edited Geneva 1992) as to the meaning of persecution, he made no attempt to consider what treatment - as a matter of law - amounted to persecution for the purposes of the Geneva Convention.[28]Second, at the third stage of the process, IJ Campdid not address the question whether MI's past ill-treatment, or any likely continued ill-treatment, if he were to return to Pakistan, was sufficiently serious and/or persistent to amount in law to persecution. The statement in paragraph 40 of the judgment that "This amounts to persecution" was no more than a conclusory assertion. His third stage evaluation was thus flawed as a matter of law, as he did not address the question whether the treatment which he had found as a fact MI had suffered, passed the threshold test of being sufficiently serious or severe to constitute persecution within the meaning of the Geneva Convention, by reference to the relevant standard. Alternatively, although this involves consideration of the conclusion actually reached by IJ Camp on the merits of the case (as to which see below), one can characterise his error of law as being the application of too lax a test to determine whether the single act of violence, coupled with bullying and taunts was sufficient to amount to persecution under Article 3.[29]Accordingly, although I would articulate my reasons slightly differently, I consider that the UT was correct to conclude that the FTT had made an error of law and, having done so, was entitled to remake the decision on MI's appeal. I would therefore dismiss MI's appeal to this court on the preliminary jurisdiction ground.

The relevant facts in MF (Venezuela)

[30]I turn now to consider the relevant factsin MF (Venezuela) before addressing the issue which is common to both appeals, namely whether, on the facts as found in each case, the appellant was entitled, as a matter of law, to claim that he had a well-founded fear of persecution such as to entitle him to refugee status, or, alternatively, that he was entitled to humanitarian protection pursuant to paragraph 339 C of the Immigration Rules.[31]The appellant in the second case of MF (Venezuela) ("MF") is a citizen of Venezuela, who was born there on 17 March 1952. He first arrived in the United Kingdom in 1974, as a student. He most recently arrived in the United Kingdom on 21 September 2011, with his wife, and daughter, who was aged 17 years on arrival (born 27 May 1994). He claimed asylum on the day of his arrival in the United Kingdom.[32]In the 1970s, MF had initially worked as an actor, then a producer in media, in the 1980s. He comes from a politically active family. Later he became politically active, in a prominent way. In the 1990s he assisted in the electoral campaign of Carlos Andres Perez who won the presidency. MF was appointed Director of International Affairs of the Civil Defence. In 1999 Hugo Chavez was voted in as President. In 2001, MF left Venezuela and worked in Los Angeles in the entertainment industry. In 2005 he came to the United Kingdom on a visitor's visa and, whilst here, his daughter was diagnosed with a congenital heart disease. She was treated in the United Kingdom. On return to Venezuela, MF assisted a former associate, Antonio Ledezma, in his political campaign to be elected as Mayor of Caracas. Mr Ledezma was elected Mayor of Caracas on 25 November 2008. MF was appointed as Director of Institutional Affairs on 1 January 2009.[33]President Chavez then sought to prevent the newly elected officials from entering their respective offices. The mayor went on hunger strike on 3 July 2009. MF took part in a protest which presented a document to the Supreme Court. MF and fellow protestors were prevented from presenting their document. MF fled by hiding in nearby houses.[34]From 2009 to 2011 MF worked as the Co-ordinator of Environmental Affairs in Caracas. MF claimed that he had suffered constant physical and psychological abuse as a result of his campaigning for the opposition against President Chavez. He claimed that the abuse comprised inter alia the following: i) He was involved in a road accident when delivering material to city mayor; a man with a gun had told him to leave the materials outside the building, get out of the car as the man said that he wanted to take control of the truck and escape with the materials; MF argued with him at which point four more policemen arrived and switched on the engine of the truck; he claimed that he ran in front of the truck and said that they must pass through him first; the driver then drove the truck at him and threw him in the air; they were however eventually stopped by other members of the local police; the police had later lied by claiming they were searching for stolen goods. ii) Between January and July 2009 police officers in plain clothes had followed him, stolen his car, screamed at him and spat at him and there had been constant intimidation. iii) He had once received an anonymous telephone call on his way to the office; the caller said he was right behind him and then hung up; that scared MF. iv) He was also approached by various people who tried to provoke him by insulting him; and then showing him a concealed gun in order to scare him. v) He experienced difficulties obtaining a new pacemaker for his daughter at a state hospital, although ultimately he obtained funding for private treatment to ensure that she received the necessary procedure. He and his wife also experienced major difficulties in finding his daughter a school place when they returned from the United Kingdom, as the schools turn them away because it was said they had not provided evidence that she had studied in the United Kingdom. vi) Finally, MF was threatened that, if he took part in the 2012 elections, he would be killed.[35]In September 2011 he resigned his post and fled Venezuela.[36]The respondent refused MF's claim to asylum in a refusal letter dated 18 November 2011 and made pursuant to paragraph 336 of the Immigration Rules. In that letter the respondent stated that: "in the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum…. It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK and that you do not qualify for Humanitarian Protection.[37]MF lodged an appeal against that decision pursuant to section 82(1) of the 2002 Act. He claimed that he was a refugee according to The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 ("the 2006 Regulations"). Alternatively he claimed humanitarian protection pursuant to paragraph 339 C of the Immigration Rules.[38]In a judgment dated 5 January 2012 and promulgated on 18 January 2012 the FTT (FTT Judge Greasley) dismissed the appeal on all grounds. On 10 February 2012 MF was granted permission to appeal to the UT against the FTT’s decision. At the hearing before the UT it was common ground between the parties that the FTT’s decision was flawed as a result of errors of law in failing to give adequate reasons for particular findings and failing to address particular aspects of the evidence. The hearing before the UT was thus a full re-hearing of MF’s appeal.[39]On 23 July 2012 MF’s appeal came before the UT (UT Judge Allen and UT Judge Reeds). The Tribunal heard evidence from MF and his wife and had placed before it a considerable volume of background country evidence. The Tribunal accepted most, but not all, of MF’s evidence. Thus for example it accepted that he had “experienced harassment and intimidation on the part of people acting or purporting to act on behalf of the president” (paragraph 30, page 33). But it did not accept MF’s “claim to be on any kind of list of President Chavez” (para. 32, page 35). But the tribunal decided that it did not accept that what MF said had happened to him amounted to persecution. I quote the material parts of paragraphs 30-32 of the Tribunal's decision:
“30. A great deal of what the appellant claims has been accepted on behalf of the Secretary of State. As was said by Mr. Tarlow, his political activities and diplomatic career are accepted. However, it is argued on behalf of the Secretary of State that the incidents the appellant describes are the actions of criminals or people masquerading as police. Given the background evidence and the extent to which the appellant’s claim has been found credible, we accept that he has experienced harassment and intimidation on the part of people acting or purporting to act on behalf of the president. It is clear that Mr. Ledezma is seen as an opponent of President Chavez, and given the association of the appellant with Ledzema at least prior to his resignation before he came to the United Kingdom, we accept that he could have been seen as being at a level where the degree of harassment was seen as an appropriate way of trying to deal with him and influence him. 31. However, we do not accept that what the appellant says happened to him and what his wife says happened to him and other members of the family amounts to persecution. The Refugee Convention does not define persecution. A real risk of serious harm or threat of serious harm may be said to be the essence of what persecution entails. It is said in MacDonald at paragraph 12.48 that mere discrimination is probably not enough, though evidence of discrimination will make it easy to demonstrate persecution. It is also said that where discrimination is so severe, frequent or protracted that it inhibits freedom to exercise basic human rights such as the right to a livelihood or to practice religion that it may amount to persecution. [The Tribunal then referred to be Qualification Directive and Regulation 5 of the Refugee or Person in Need of International Protection (Qualification) Regulations.] … 32. We do not consider that what has happened to the appellant in the past or what he might face in the future is such as to cross the necessary threshold. He has been subjected to the forms of intimidation that are set out in his evidence, including the difficulties that were experienced in getting treatment for his daughter and access to education, and harassment of a regular but not in our view, serious nature. It is relevant also to bear in mind that since he has left his employment with Mayor Ledezma, it may well be that he faces less risk of intimidation and harassment on return to Venezuela. The reasons are harassing him out significantly diminished. He has not substantiated claim to be on any kind of list of President Chavez. He is a person who had a profile at a certain level, supporting an opponent of Chavez's, who has experienced unpleasant treatment which falls some way short of being serious. The incident with the truck was perhaps the most serious incident, and we mean no criticism the appellant when we say that what happened was that in a sense provoked by him. He would have suffered no harm had he simply allowed the lorry to be driven away and although it is understandable that he would wish to resist this, it is nevertheless the only incident in which physical harm has been inflicted on him. Bringing these matters together we conclude that he has not experienced persecution in the past and does not face a real risk of persecution on return to Venezuela.”
[40]Accordingly the tribunal dismissed MF’s appeal.[41]Mr Hansen pointed out that President Chavez is now dead and there have recently been fresh elections in Venezuela. On the other hand, Ms Mavelyn Vidal, counsel for MF, submitted that the death of President Chavez had not led to a change of government in that the new President was chosen by the deceased president, and had been called in media circles, ‘Baby Chavez.’ Thus, she submitted, MF’s fears of ill-treatment were still well-founded and that, in any event, the focus of the analysis had to be upon the events leading up to MF’s last departure from Venezuela in 2011.[42]On 1 February 2013 MF was granted permission by the Court of Appeal (Lloyd-Jones LJ) to appeal the decision of the UT.

The applicable provisions of the relevant statutes, treaties, rules and regulations

[43]Both appellants had the right to appeal against the respondent's refusal to grant them asylum and humanitarian protection under section 82 of the 2002 Act on the basis of the grounds set out in section 84(1) of that Act. In so far as material section 84(1) provides: (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds— (a) that the decision is not in accordance with immigration rules; (b) ….. (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights; (d)…… (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee [the Geneva] Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights. “[44]The relevant provisions of the Immigration Rules for present purposes which set out the procedures applying to the consideration of asylum and humanitarian protection claims are the following:
“Definition of asylum applicant 327. Under the Rules an asylum applicant is a person who either; (a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom's obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or (b) otherwise makes a request for international protection. "Application for asylum" shall be construed accordingly….. Applications for asylum 328. All asylum applications will be determined by the Secretary of State in accordance with the Geneva Convention… Grant of asylum 334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; (ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006; (iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom; (iv) ……; and (v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group……. Refusal of asylum 336. An application which does not meet the criteria set out in paragraph 334 will be refused. Where an application for asylum is refused, the reasons in fact and law shall be stated in the decision and information provided in writing on how to challenge the decision…. Grant of humanitarian protection 339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; (ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or person in Need of International Protection (Qualification) Regulations 2006; (iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and (iv) he is not excluded from a grant of humanitarian protection. Serious harm consists of: i) the death penalty or execution; ii) unlawful killing; iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict….. Refusal of humanitarian protection 339F Where the criteria set out in paragraph 339C is not met humanitarian protection will be refused.””
Applications for asylum Grant of asylum Refusal of asylum Grant of humanitarian protection (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; (ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or person in Need of International Protection (Qualification) Regulations 2006; (iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and (iv) he is not excluded from a grant of humanitarian protection. i) the death penalty or execution; ii) unlawful killing; iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict…..

Grant of humanitarian protection

[45]The definition of a refugee in international law is contained in Article 1A(2) of the Geneva Convention. Article 1A(2) provides, inter alia, that: “For the purposes of the present Convention, the term 'refugee' shall apply to a person who...owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” [My emphasis.] However, the Geneva Convention does not define persecution as such.[46]The Qualification Directive (Council Directive 2004/83/EC) (“the Directive”) laid down minimum standards applicable throughout the EU for the qualification or third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. It did so by reference to the Geneva Convention as "the cornerstone of the international legal regime that the protection of refugees"; see recital (3). Article 2 (c) of the Directive likewise defines "refugee" as: “ a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to available himself or herself of the protection of that country …”.[47]The Directive also lays down minimum standards for the qualification of third country nationals or stateless persons (in addition to the position of refugees) as "persons who are otherwise in need international protection and the content of the protection granted." Thus Article 2(e) defines a "person eligible for subsidiary protection" as a third country national or stateless person:
“ who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of the stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17 (1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.”
[48]The Directive sets out a definition of “acts of persecution” in Article 9(1) as follows:
“QUALIFICATION FOR BEING A REFUGEE in the year one Article 9 Acts of persecution 1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). 2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); (f) acts of a gender-specific or child-specific nature.”
Article 9

Acts of persecution

[49]Article 4 of the Directive, which deals with the assessment of applications for international protection, provides (so far as material) as follows: “ASSESSMENT OF APPLICATIONS FOR INTERNATIONAL PROTECTION Article 4 Assessment of facts and circumstances 1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application. 2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection. 3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm. Article 4

Assessment of facts and circumstances

[50]The 2006 Regulations implemented the Directive. They contain the following definitions: “Interpretation 2. In these Regulations— “application for asylum” means the request of a person to be recognised as a refugee under the Geneva Convention; “Geneva Convention” means the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the New York Protocol of 31 January 1967(1); “immigration rules” means rules made under section 3(2) of the Immigration Act 1971(2); “persecution” means an act of persecution within the meaning of Article 1(A) of the Geneva Convention; “person eligible for humanitarian protection” means a person who is eligible for a grant of humanitarian protection under the immigration rules; “refugee” means a person who falls within Article 1(A) of the Geneva Convention and to whom regulation 7 does not apply; “residence permit” means a document confirming that a person has leave to enter or remain in the United Kingdom whether limited or indefinite; “serious harm” means serious harm as defined in the immigration rules; “person” means any person who is not a British citizen.[51]Regulation 3 sets out who, for the purposes of the Regulations, can commit "persecution or serious harm". “Actors of persecution or serious harm 3. In deciding whether a person is a refugee or a person eligible for humanitarian protection, persecution or serious harm can be committed by:(a) the State;(b) any party or organisation controlling the State or a substantial part of the territory of the State;(c) any non-State actor if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including any international organisation, are unable or unwilling to provide protection against persecution or serious harm.”[52]Regulation 5 defines what is an act of persecution:
“5. —(1) In deciding whether a person is a refugee an act of persecution must be: (a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms[6]; or (b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a). (2) An act of persecution may, for example, take the form of: (a) an act of physical or mental violence, including an act of sexual violence; (b) a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7. (3) An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention.”
[53]We were also referred to the United Nations "Handbook on Procedures and Criteria for Determining Refugee Status” under the Geneva Convention. This states:
“51. There is no universally accepted definition of ‘persecution’, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights-for the same reasons-would also constitute persecution.”

The substantive issues on the appeals

[54]Thus the substantive issues in the two appeals before us were, in effect: i) in relation to the appellants’ respective applications for asylum on the grounds that they were refugees, whether, as a matter of law, as applied to the facts as found by the tribunals: a) the appellants were refugees, as defined in regulation 2 of the 2006 Regulations; and b) refusing their applications would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group; and ii) in relation to their respective applications for humanitarian protection, whether, as a matter of law, as applied to the facts as found by the tribunals, substantial grounds had been shown for believing that the respective appellants, if they returned to the country of return, would face a real risk of suffering serious harm; and were unable, or, owing to such risk, unwilling to avail themselves of the protection of that country. In fact no separate argument was addressed by any party in relation to the second issue articulated above (humanitarian protection). The arguments presented to us were focussed on the meaning of the word “persecution” and whether the facts as found in relation to the respective appellants, amounted to persecution within the meaning of the Geneva Convention.

The authorities

[55]Before setting out the submissions of the parties, it is useful to set out the well-established principles articulated in this area of the law. Although there is no universally accepted definition of “persecution”, the meaning of the word has been addressed in a number of cases, all of which emphasise that “persecution” is a “strong word” (per Lord Bingham in Sepet v SSHD [2003] UKHL 15) and that the ill-treatment complained of must generally involve a reasonable likelihood of serious harm. (The emphasis in the citations is mine.)[56]In Sepet, Lord Bingham described the correct approach to the issue as to whether an appellant was a refugee as follows:
“7. To make good their claim to asylum as refugees it was necessary for the applicants to show, to the standard of reasonable likelihood or real risk, (1) that they feared, if they had remained in or were returned to Turkey, that they would be persecuted (2) for one or more of the Convention reasons, and (3) that such fear was well-founded. Although it is no doubt true, as stated in Sandralingham v Secretary of State for the Home Department; Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97, 109, that the Convention definition raises a single composite question, analysis requires consideration of the constituent elements of the definition. At the heart of the definition lies the concept of persecution. It is when a person, suffering or fearing persecution in country A, flees to country B that it becomes the duty of country B to afford him (by the grant of asylum) the protection denied him by or under the laws of country A. History provides many examples of racial, religious, national, social and political minorities (sometimes even majorities) which have without doubt suffered persecution. But it is a strong word. Its dictionary definitions (save in their emphasis on religious persecution) accord with popular usage: “the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it;” “A particular course or period of systematic infliction of punishment directed against the professors of a (religious) belief …”: Oxford English Dictionary, 2nd ed, (1989). Valuable guidance is given by Professor Hathaway (The Law of Refugee Status (1991), p 112) in a passage relied on by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495: “In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community.”
In this passage Professor Hathaway draws attention to a second requirement, no less important than that of showing persecution: the requirement to show, as a condition of entitlement to recognition as a refugee, that the persecution feared will (in reasonable likelihood) be for one or more of the five Convention reasons. As Dawson J pointed out in the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247–248:
“By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees.””
[57]As Mr Hansen submitted, the threshold as to what amounts to persecution, is set reasonably high for a reason. In Amare v. SSHD [2005] EWCA Civ 1600, Laws LJ explained the reasons as follows:
“[27] But the alignment of the State obligations imposed by the Refugee Convention with the protection of basic or fundamental human rights is subject to important qualifications. These are well known, and are no less important than the alignment itself. First is the fact that the Convention only requires protection to be afforded in case of particular violations of human rights norms: those arising "for reasons of race, religion, nationality, membership of a particular social group or political opinion”
. Secondly, the violation, or rather prospective or apprehended violation, must attain a substantial level of seriousness if it is to amount to persecution. [28] These two limitations or, as I would prefer to call them, conditions of the scope of the Refugee Convention are in no sense ancillary or incidental. They are the very focus and expression of the distinct obligation of international protection accepted by the contracting States. Certainly, there is much learning to show that the Convention is to be treated over time as a living instrument and construed as such (see for example the passage from Schiemann LJ's judgment in Jain which I have cited). But this is no licence for the courts, in the cause of protecting or enlarging human rights, in effect to impose on the State obligations which in truth they have not undertaken. [31] More generally, I have to say I think that Professor Hathaway's definition of persecution and it is expressly offered as a definition has to be treated with a degree of caution. Its terms are "the sustained or systemic violation of basic human rights demonstrative of a failure of state protection". These words give no very clear place to the requirement of gravity or seriousness, and they contain no recognition of the condition that protection is only to be afforded under the Convention in case of violations arising for the stated reasons.”[58]Finally, in HJ (Iran) [2010] UKSC 31, Lord Hope said (after citing the passage quoted above from Lord Bingham’s speech in Sepet) at [13]:
“12. The Convention does not define "persecution". But it has been recognised that it is a strong word: Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, para 7, per Lord Bingham. Referring to the dictionary definitions which accord with common usage, Lord Bingham said that it indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it. Article 9(1)(a) of the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ("the Qualification Directive") states that acts of persecution must "(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights … or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)." In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said: "Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it." 13. To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." The Convention provides surrogate protection, which is activated only upon the failure of state protection. The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals. 14. The reference in the preamble to the Universal Declaration of Human Rights of 1948 shows that counteracting discrimination was a fundamental purpose of the Convention. Article 2 states: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Lord Steyn emphasised this point in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 639. He also drew attention to the first preamble to the Declaration, which proclaimed the inherent dignity and the equal and inalienable rights of all members of the human family. No mention is made of sexual orientation in the preamble or any of its articles, nor is sexual orientation mentioned in article 1A(2) of the Convention. But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight. 15. The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention. But the Convention itself has, as the references in para 12 show, a more limited purpose. It is not enough that members of a particular social group are being discriminated against. The contracting states did not undertake to protect them against discrimination judged according to the standards in their own countries. Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin. Its purpose is to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge. It does not guarantee universal human rights. So the conditions that prevail in the country in which asylum is sought have no part to play, as matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, paras 16, 46. As Laws LJ said in Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2006] Imm AR 217 para 31: "The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states." 16. Thus international protection is available only to those members of the particular social group who can show that they have a well-founded fear of being persecuted for reasons of their membership of it who, owing to that fear, are unwilling to avail themselves of the protection of their home country. Those who satisfy this test cannot be returned to the frontiers of a territory where their life or freedom would be threatened on account of their membership of that group: article 33(1). To be accorded this protection, however, the test that article 1A(2) sets out must first be satisfied. As Lord Bingham of Cornhill said in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5, the words "owing to well-founded fear of being persecuted for reasons of … membership of a particular social group" in the definition of "refugee" express a causative condition which governs all that follows.”
[59]The principles are well-established. There is thus no need for this court to amplify them in any way. The appellants’ submissions in relation to “persecution” The arguments presented on behalf of MI (Pakistan)

The appellants’ submissions in relation to “persecution”

[60]In summary, Mr Mahmood submitted that: i) The Geneva Convention had to be construed generously and purposively bearing in mind its humanitarian objects and the broad aims reflected in the preamble; see for example per Lord Hope in Regina (ST) v SSHD[2012] 2 WLR 375 at paragraph 30; per Lord Dyson in SSHD v RT (Zimbabwe), KM (Zimbabwe) v SSHD [2013] 1AC 152 at [31]. ii) The past ill-treatment suffered by the Appellant, as based on the preserved findings of facts of the FTT and the additional findings of facts of the UT, (namely beatings, not being able to find work, taunts, and harassment - all because of the way MI looked) indeed amounted to persecution. That severe treatment, and its consequences, was likely to continue on his return to Pakistan. Whilst it was accepted that, taken on their own, taunts might not be enough, taken cumulatively with the inability to obtain work, and the other likely harassment, his anticipated treatment on return would indeed amount to persecution. iii) His past treatment and his anticipated treatment on his return had occurred, and will occur, for reasons connected to the Geneva Convention. That is because of the way he looks - because of his ethnicity, or colour. Indeed it could also be because he is part of a particular social group – namely the group of ‘white’ people. It could also be because of a political opinion that is imputed to him: namely that because he is regarded as “white”, and therefore perceived to be Western and thereby part of the alliance against the Taliban and others in Pakistan opposed to the West. iv) This was not a case where MI could conceal himself or live discreetly, or internally relocate within Pakistan. The fundamental purpose of the Geneva Convention was to protect a claimant’s right to live freely and openly in accordance with his race, religion, nationality, membership of a particular social group or political opinion, without risk of persecution. Refugee status could not be denied to an applicant where, in order to avoid persecution, he will (or is required) to give up that right to live freely and openly; see HJ (Iran) and RT (Zimbabwe), KM (Zimbabwe) supra. v) At paragraph 53 of its judgment, the UT erred in placing too much weight on the fact that MI had relied on false evidence to secure his entry to this country. vi) MI was not able to avail himself of the protection of the Pakistan state, because the evidence showed that the state was unable or unwilling to protect him to the requisite standard. There had been good reason why MI had not sought protection from the police in Pakistan. That was because there was no effective police assistance that he could have got. vii) Accordingly, it was submitted that the UT materially erred in law in dismissing MI’s appeal against the respondent’s decision. MI did face a real risk of persecution if he returned to Pakistan or inhuman or degrading treatment within Article 3 of the ECHR, such that his return would constitute a breach of his human rights.

The arguments presented on behalf of MF (Venezuela)

[61]In summary, the principal arguments presented on behalf of MF by Ms Vidal were as follows: i) On the evidence as found by the UT, the tribunal was wrong to conclude that the actions of harassment to which MF was subjected to over a period of years, were not of a sufficiently serious nature to amount to persecution. Whilst Ms Vidal did not dispute that the treatment had to be severe to amount to persecution, in MF’s case, the severe harassment, threats, intimidation and stalking to which MF had been subject to over a number of years, and one serious act of assault, as a matter of law amounted to persecution. ii) Having found that MF had indeed been subjected to the acts of intimidation which it described, it was illogical for the tribunal not to have concluded that he had a well-founded fear of persecution. iii) Whilst, taken individually, some of the threats and actions of harassment, might not have been sufficiently serious to have amounted to persecution, taken cumulatively, and given the long period of intimidation, they were sufficiently severe to amount to persecution; see, as an example of verbal telephone threats amounting to persecution, Lucreteanu v SSHD I2126, 15 May 2006. iv) Moreover, there was no requirement that an asylum seeker had to have been physically harmed. It was sufficient that he had been put in fear as a result of threats and attacks on others; see Baballah v Ashcroft 367 F. 3d 1067, U.S. COA 9th Circuit 2004. The UT placed too great weight on the fact that MF had only been the subject of a physical attack on one occasion and wrongly stated that the truck incident was “in a sense provoked by him.” v) The UT erred in failing (when considering the issue of persecution) to give due weight to MF’s present age (60 years), and to his profile, first as a family member of political family, then as an actor and, later, as a politician in his own right. It also failed to give sufficient or any weight to the cumulative effect upon MF of years of psychological abuse prior to his departure. vi) The UT erred in ‘narrowly’ construing the term ‘persecution’. The relevant authorities indicated that a single beating could amount to persecution: see Demirkaya v. Secretary of State for the Home Department [1999] EWCA Civ 1654. vii) In all the circumstances the UT erred in law in its conclusion as to what constituted ‘persecution’ in the peculiar circumstances of MF’s case.

Discussion and determination – MI (Pakistan)

[62]Largely for the reasons put forward by Mr Hansen in his written and oral submissions (which accordingly I do not rehearse), I conclude that MI’s appeal against the UT’s decision should be dismissed. My reasons may be shortly stated as follows.[63]As the authorities, which I have cited in paragraphs 53 to 56 above, clearly demonstrate, the concept of persecution for the purposes of the Geneva Convention (and indeed the Directive) requires that the past or apprehended harm to the asylum seeker must attain a substantial level of seriousness. Similar considerations apply to the demonstration of serious harm for the purposes of a humanitarian protection claim or an Article 3 claim. Family or social disapproval in which the state has no part lies outside its protection. Discrimination against members of a particular social group in the country of origin is not enough, even though such discrimination might be contrary to the standards of human rights prevailing in the state in which asylum is sought. As Lord Hope said in HJ (Iran), in the passage quoted above, the purpose of the Geneva Convention is:
“to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge.”
[64]In my judgment the UT was entitled to conclude, as a matter of law, as applied to the facts (namely the “preserved” findings of the FTT and the facts as found by the UT itself), that the past treatment of which MI complains, was not sufficiently severe or persistent to constitute persecution. Paragraph 47 of the UT's judgment adequately summarises the relevant evidence in this respect and was a conclusion which the UT was entitled to reach. This is a case where there was a single act of violence in 2003, when MI was 23, carried out by a group of youths (in other words non-state agents), which was not reported to the police. But MI did not choose to leave Pakistan until two years after this attack had taken place, during which time there was no evidence that he had been subject to any violent or other attacks of violence. Moreover, when he first arrived in the United Kingdom, there was no attempt by MI to rely on past persecution, or apprehended fear of future persecution, to support his application to remain in the United Kingdom. The bullying at school had occurred some time ago, and, again was not reported to the school authorities. There was therefore every reason which entitled the UT to conclude, on the evidence before it, that MI’s past ill-treatment was not sufficiently serious or severe to qualify as persecution within the meaning of the Geneva Convention or serious harm for the purposes of humanitarian protection. In my judgment, it cannot be said that the tribunal made any error of law in reaching the conclusion that MI’s past treatment was not sufficiently severe or serious to be characterised as persecution.[65]Moreover, in my judgment, the UT was entitled to take all these matters into account in assessing whether MI was in reality facing a real risk of persecution on any future return to Pakistan, as well as the circumstances of his family in that country, which the tribunal described as "not a family without substance … the family had land and they receive money from overseas."; see paragraph 45 of the judgment. The UT clearly took a sceptical view of MI’s evidence generally, and in particular his evidence that he was unable to seek assistance from the police; see ibid and paragraph 53. In my judgment, on the material before it, the UT was clearly entitled to conclude, whether as a question of mixed law and fact, or simply as a question of fact, that MI was not facing a risk of persecution or serious harm on any future return to Pakistan and that his Article 3 rights would not be infringed.[66]There was no separate argument before us to the effect that MI had not demonstrated that the harm which he had suffered was for a Convention reason; in other words that MI had not demonstrated that he had a well founded fear of being persecuted “for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Accordingly this judgment does not address that separate element. But, whilst the respondent did accept that there was "some societal discrimination against Albinos in Pakistan" (see paragraph 29 of the respondent's refusal letter dated 25 November 2011), that was clearly not equivalent to an acceptance on the part of the respondent that such discrimination amounted to persecution. Contrary to the thrust of Mr Mahmood’s submissions, it is not permissible to construe the Geneva Convention as requiring a contracting state to provide protection to an applicant against all forms of societal discrimination to the standard enjoyed in the state where refuge is sought; see Lord Hope in HJ (Iran) supra[67]Mr Mahmood criticised the weight attached by the UT to the fact that MI had used false evidence to secure his entry to the United Kingdom as stated in paragraph 53 of the judgment and, in particular the statement "it cannot be in the public interest that such deception be allowed to succeed". I do not consider that, on a proper analysis of the full judgment, and the reasons given by the UT for concluding that, on the evidence, MI did not qualify as a refugee or for humanitarian protection, that such a statement (which could be said to suggest (wrongly) the application of discretionary factors to that factual question), vitiates the UT’s conclusion in relation to the persecution issue. The claim was made in the context of consideration of MI’s Article 8 claim, as to which no separate argument was addressed to this court.[68]Whilst, like the UT, one feels sympathy for MI for the treatment which he has received in the past, and the potential discrimination which he may face on any future return to Pakistan, on grounds of his albinism, I would dismiss his appeal on this second ground. I conclude that, on the evidence before it, the UT was clearly entitled to reach the view that MI had not established that he was a refugee within the meaning of the Geneva Convention, or entitled to humanitarian protection, or that his return to Pakistan would constitute a breach of his human rights under Articles 3 or 8 of the ECHR.[69]On this basis, the issue of sufficiency protection by the Pakistan state does not strictly arise. However, were it necessary to do so, I would also dismiss the appeal on this ground. In my judgment the UT was clearly entitled to conclude, on the evidence before it, that MI had failed to establish any sustained or systemic failure of state protection, or state condonation, in relation to the discrimination against him on the grounds of his albinism; see paragraphs 44-47 of the judgment. That was particularly so having regard to the fact that MI had never sought protection. The case-law referred to by the UT established that there was no systemic insufficiency of protection in Pakistan (see e.g. AW (Sufficiency of Protection) Pakistan [2011] UKUT 31 (IAC)), so that, as Auld LJ said in R (Bagdanavicius) v SSHD [2004] 1 WLR 1207 at paragraph 55(6), the issue then turned on the particular circumstances in the individual case. The mere fact that police and allied corruption was said to exist in Pakistan was not of itself sufficient to demonstrate this requirement.[70]For the above reasons I would dismiss MI’s appeal.

Discussion and determination - MF (Venezuela)

[71]Once again, largely for the reasons put forward by Mr Hansen in his written and oral submissions, I conclude that MF’s appeal against the UT’s decision should be dismissed. My reasons may be shortly stated as follows.[72]In my judgment there is no basis for criticising the UT’s approach to the law. It correctly directed itself as to the relevant threshold requirement in order to establish "persecution" for the purposes of the Geneva Convention and the Qualification Directive; see paragraph 31 of the judgment.[73]Nor, in my judgment, in so far as the tribunal's characterisation of the ill treatment MF had received as not being sufficiently serious or severe to constitute persecution was a matter of law (as to which see per Stanley Burnton LJ in MA (Ethiopia) v. SSHD quoted above at [61] – [62]), can the decision be challenged either. On the basis of the tribunal's findings of fact, the harassment and intimidation which it found that MF had experienced before his departure from Venezuela was not per se so severe or serious that, “on the application of the denotation of persecution to the particular facts” (ibid), such treatment necessarily had (as a matter of law) to be characterised as persecutory within the meaning of the Geneva Convention. It was therefore a matter for the tribunal to evaluate whether, based on its primary findings of fact, the "seriousness" threshold had been crossed both in relation to past conduct and in relation to the prognosis as to future risk if he were to return to Venezuela.[74]I thus reject Ms Vidal’s submissions that the UT misdirected itself as a matter of law as to the meaning of "persecution" or construed the term too narrowly. The fact that, as she submitted, in one particular case a single beating amounted to persecution (Demirkaya v. Secretary of State for the Home Department supra), or that, in another (Lucreteanu v SSHD supra), telephone threats (without actual violence) were held to do so, does not vitiate the conclusions of the tribunal in this case. Its evaluation as to whether the severity of threshold had been crossed was one which was necessarily dependent on the particular facts of the case in front of it.[75]As Mr Hansen submitted, in relation to that evaluation, the UT clearly enjoyed a margin of appreciation; see for example Faraj v SSHD [1999] INLR 451, at 456. The tribunal had had the benefit of seeing MF and his witnesses in person and assessing the seriousness and extent of the intimidation and harassment which he had described, having fully reviewed the various witness statements and other evidentiary materials. This court does not have that advantage. Whilst the statement in paragraph 32 of the judgment, in relation to the incident with the truck, that "what happened was in a sense provoked by him", was unfortunate and tactless, it cannot be said that the UT reached a conclusion that no properly directed tribunal could have reached. Nor in my view can it be said that the UT failed to give due weight to MF’s present age (60 years), to his political profile or to the cumulative effect upon MF of the treatment which he received prior to his departure. All these factors were referred to, or sufficiently addressed, in the tribunal's very full judgment.[76]Accordingly, I reject Ms Vidal's contention that in all the circumstances the UT erred in law in its conclusion as to what constituted ‘persecution’ in the particular circumstances of MF’s case.[77]For the above reasons, I would dismiss MF's appeal.

Sir Stanley Burnton:

[78]I agree that MF’s appeal should be dismissed for the reasons given by Lady Justice Gloster. I also agree that MI’s appeal should be dismissed for the reasons set out in paragraphs 64 and 65 of her judgment, namely that the ill treatment of which he complained and that he risked on return was not sufficiently serious to amount to persecution within the meaning of the Refugee Convention or to a breach or threatened breach of his rights under Article 3 of the European Convention on Human Rights; and that the First-tier Tribunal erred in law in finding that it was sufficiently serious. For this reason too MI’s jurisdiction ground, which in reality raised much the same issue as his substantive grounds, must fail. Lord Justice Gross:[79]I agree that the appeal in MI should be dismissed for the reasons given in both judgments. I also agree that the appeal in MF should be dismissed for the reasons given by Gloster LJ.

Cited in 3 later judgments