ZB and AK (Kurds, Article 3, Risk, IFA) Syria [2004] UKIAT 00217 (5 August 2004) [2004] UKIAT 00217

UKIAT
ZB and AK (Kurds, Article 3, Risk, IFA) Syria [2004] UKIAT 00217 (5 August 2004)
[2004] UKIAT 00217 · 2004-08-05
[1]These appeals were listed before the Tribunal with the intention that they should give general country guidance on the position of ethnic Kurds of Syrian nationality, but at the commencement of the hearing, Mr Morris indicated for the Secretary of State that he would not seek to contest either appeal further and that the Secretary of State accepted that in the case of each claimant he was entitled to succeed both in his asylum claim under the Refugee Convention 1951 and in his claim that return would be in breach of his human rights under Article 3 of the European Convention of 1950.[2]For convenience, we shall refer to the two claimants as B and K respectively.[3]It is right to record that a considerable amount of background material had been filed for the purposes of these hearings, in particular on the part of B, but we are of the view that it is not appropriate to designate this determination as a country guidance determination in view of the fact that it has been resolved on the basis of limited concessions made by the Secretary of State so that we have not heard full argument on the range of the evidence before us. Nevertheless, we have decided that it is appropriate that these should be reported appeals because they will define the position of the Secretary of State in relation to the situation of certain Syrian citizens as at today's date in these appeals. The concessions made, however, will, of course not bind the Secretary of State other than in relation to their effect upon the status of B & K and there will be nothing to prevent him taking a different view in the case of other applicants in the future if he considers that the evidence which has led him to make the concessions which we record below has changed.[4]B and K have certain common characteristics in that they are each citizens of Syria of Kurdish ethnicity as distinct from those Syrian born ethnic Kurds, who, or whose fathers or remote paternal ancestors, had been deprived of their Syrian citizenship under the policy of Arabisation which took place following the 1962 census in Syria in accordance with policies of the ruling Ba'ath party. Each of them also left Syria illegally in order to come to the United Kingdom to seek asylum. Each also claimed that they or their families in the past had been associated with Kurdish political support although in neither case had the full extent of their claimed support of pro-Kurdish parties in Syria been accepted by the Adjudicator. Those claims would, had the hearings proceeded on a contested basis, have been part of the issues which we would have been asked to resolve because each claimed that to the extent that adverse credibility of findings had been made they were unsustainable. Nevertheless, in each case, there was some past family political association accepted, and in the case of K a more direct political involvement on his part in Syria had also been accepted.[5]It is appropriate that we should also record at this point that in the case of B the Adjudicator had dismissed his asylum appeal but had allowed his Article 3 claim on the basis of risk upon return. The Secretary of State had sought and been granted permission to appeal against the allowing of his appeal on Article 3 grounds, and shortly thereafter permission had also been given to B on his application for permission to challenge the dismissal of the asylum claim by the Adjudicator, so that there was a cross appeal in the case of B.[6]The Secretary of State had filed in evidence the United States Department of State Country Report on Human Rights Practices for 2003 in relation to Syria, which had been published on 25 February 2004, together with the Amnesty International Report on Syria for 2003, covering the period to December 2002, with a note from the Canadian section of Amnesty International of December 2002 dealing with the concerns of Amnesty International regarding risk on return to Syria.[7]The State Department Report summarised the Syrian Government's human rights record in the following terms:
"The Government's human rights record remained poor, and it continued to commit serious abuses. Citizens did not have the right to change their Government. The Government prevented any organised political opposition, and there have been very few anti-Government manifestations. Continuing serious abuses included the use of torture in detention; poor prison conditions; arbitrary arrests and detention; prolonged detention without trial; fundamentally unfair trials in the security courts; and infringement on privacy rights. The Government significantly restricted freedom of speech and of the press. Freedom of assembly does not exist under the law, and the Government restricted freedom of association. The Government did not officially allow independent domestic human rights groups to exist; however, it permitted periodic meetings of unlicensed civil society forums throughout the year. The Government placed some limits on freedom of religion and freedom of movement. Proselytizing by groups who were considered Zionist was not tolerated. Violence and societal discrimination against women were problems. The Government discriminated against the Stateless Kurdish minority, suppressed worker rights, and tolerated child labour in some instances."
[8]That general summary is, of course, examined in more detail in the remainder of the document and it is clear that Kurdish ethnicity may be an exacerbating factor for those who come to the adverse attention of the State Authorities.[9]The Amnesty International report for the preceding year recorded that scores of people were arrested during 2002 for political reasons, including Syrian exiles who had voluntarily returned and others suspected of membership of unauthorised political groups. It recorded also that those arrested for political reasons included former political activists affiliated to the Muslim brotherhood who had been in exile but had been given clearance to return home by the authorities as well as suspected members of unauthorised Kurdish political organisations and Islamist activists suspected of links with Al Qa'eda. In the case of such arrests, there followed incommunicado detention, apparently without charge or trial, with fears that those so detained might be tortured or ill-treated.[10]The note regarding risk on return to Syria said that Syrians seeking political asylum abroad are perceived to be Government opponents by the Syrian authorities and that the very fact of leaving the country to seek asylum abroad is imputed to be a manifestation of opposition to the Syrian Government. If the asylum seeker has been affiliated with an unauthorised political party or group, then there is a risk of arrest and torture upon return to Syria in order to extract information about the group and its members. According to recent reports torture in Syria was said to continue to be systematic. Former political prisoners who had been released had been constrained to sign documents in which they renounce their political opposition activities so that when such persons sought asylum abroad that also was likely to be considered as proof of their continuation of opposition activities so that they would risk persecution if returned to Syria. Nobody could leave without authorisation and those who did so illegally were generally at risk of arrest and detention upon their return with a risk of imprisonment in Syria for between 1 month and 2 years and an additional sentence of imprisonment if the seal of the Syrian authorities had been falsified on documents used for departure. If a refused asylum seeker was accompanied by officials from the deporting country, the Syrian Government would be likely to be aware of the person's demand for asylum and, additionally, Syrian secret service agents working abroad might become aware of requests for asylum as their task is to monitor the Syrian community and opposition abroad. In general terms the report said that beyond the risk of being detained, interrogated and/or tortured, Amnesty International had limited information about the ultimate fate of returned failed asylum seekers but that over the past years they had registered an increase in cases of detention of refused asylum seekers after their return to Syria and that supporters of unauthorised organisations were usually at risk of being persecuted.[11]It was on the basis of this filed evidence that in the case of both B and K and having regard to their characteristics which we have identified earlier in this determination, the Secretary of State conceded that each would be likely to be identified as a failed asylum seeker who had left the country illegally and was being returned on the basis of temporary papers obtained for that purpose from the Syrian Embassy. This would lead to a real risk that each would be stopped and detained on return. The real possibility of persecutory treatment for the combined reasons of ethnicity and perceived or imputed political opinion contrary to the Refugee Convention 1951, and of treatment prohibited by Article 3 of the European Convention of 1950, must be accepted to exist.[12]On the basis of the concessions made by Mr Morris it accordingly follows that in the case of B the Secretary of State's appeal is dismissed and B's cross appeal is allowed; in the case of K his appeal is allowed on both asylum and human rights grounds. J BARNES VICE PRESIDENT

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