MB v The Secretary of State for the Home Department [2010] UKUT 448 (IAC)

[2010] UKUT 448 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 3 November 2010
THE IMMIGRATION ACTS
Before
MR JUSTICE OWENSENIOR IMMIGRATION JUDGE JARVIS
Between
mBAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMs MC Benitee (Hayat & Co Solicitors) for AppellantMrs Monica Tanner (Home Office Presenting Officer) for Respondent1. There can be no doubt as to the willingness of the authorities in Trinidad and Tobago to operate an effective system for detection, prosecution and punishment of acts constituting persecution or serious harm of its citizens.2. However, given the current crisis in the policing and criminal justice system, in general, even persons who are witnesses or potential witnesses in trials involving serious organised crimes, will not receive effective protection either in the short or longer term, whether or not admitted to a witness protection programme.3. For persons facing a real risk of being persecuted and/or other serious harm at the hands of Jaamat al Muslimeen (JAM), the state is currently unable to afford effective protection.DETERMINATION AND REASONS
[1]On 8 March 2010 the Court of Appeal, on appeal from the Asylum and Immigration Tribunal, ordered by consent that the appellant’s appeal against the determination of the AIT promulgated on 26 March 2009, dismissing the appellant’s appeal against the respondent’s decision of 13 April 2004 to remove him to Trinidad and Tobago be allowed, that the determination be set aside and that the case be remitted to the Upper Tribunal for a second stage reconsideration. The Court of Appeal directed that the determination of the Upper Tribunal be limited to determining:a. Whether the authorities of Trinidad and Tobago can provide sufficient protection to the appellant andb. Whether the authorities can take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm in relation to the appellant and his claims at being at risk of persecution from non-state actors in Trinidad and Tobago. It further directed that the findings of fact made by Immigration Judge Talbot were to stand.[2]Mindful of the strict limitation of the scope of the appeal that is before us as set out in the order of the Court of Appeal when remitting the matter to us, we have not considered it appropriate to raise, for the very first time, of our own volition, the matter of potential exclusion of the appellant from surrogate protection at this late stage in the proceedings. We note the nature of the appellant’s claim and his history, as well as the fact that his unsuccessful claim to asylum in the UK was made in 2004, his appeal against that decision dismissed, but his subsequent appeal to the Court of Appeal was successful and that his case now comes before us in 2010 without there ever having been any question raised at any stage as to whether he should be excluded from surrogate international protection. We have proceeded on the basis that this was because he has always claimed that his involvement with JAM was not voluntary and because he left JAM in difficult circumstances at a key moment in the course of the 1990 coup. We summarise below the appellant’s case and the findings of fact of Immigration Judge Talbot.[3]The appellant, whose stated date of birth is 3 November 1964, sought asylum on 3 April 2004, claiming that he was a national of Trinidad and Tobago and that he had arrived in the United Kingdom on 21 December 2002. His claim to asylum was made on the basis that in 1987 he had been forced to become a member of the Muslim group Jaamat al Muslimeen (JAM), and that he feared persecution and ill treatment from members of JAM having disobeyed the orders of their leader, Yasin Abu Bakr to assist in the attempted coup mounted by JAM against the government of Trinidad and Tobago in July 1990. Following the attempted coup the appellant fled to the USA arriving in New York in November 1990. About a year after his arrival he applied for asylum in the USA; but the application did not proceed to a final determination, and was eventually withdrawn by him before his return to Trinidad and Tobago in March 2000. He then remained in Trinidad and Tobago for two years before travelling to the United Kingdom.[4]Although there were some aspects of the appellant’s history in relation to which the Immigration Judge was not satisfied that he had been given a full or adequate account, he made a number of material findings of fact. First he made the general finding that he accepted substantial elements of the appellant’s account given the extent of the detail provided by him, and its consistency with the extensive background material before him.[5]Secondly he accepted the details given by the appellant as to his background and family. The appellant was one of ten children. One of his sisters became involved in a relationship with Abu Bakr, and as a result the appellant was often in his company. Abu Bakr subsequently became the leader of JAM in Trinidad. Another of the appellant’s sisters, J, became involved with a man called Trevor, one of Abu Bakr’s followers. A third sister, A, was married to another of Abu Bakr’s followers.[6]The Immigration Judge found that the appellant joined JAM in the 1980’s and converted to the Muslim religion as part of the process of joining. He also found that the appellant “took part in various unlawful activities with the Jaamat including the transportation of illegal weapons and drugs and the murder of a man who was deemed to be an enemy of the Jaamat.” As to his role in the attempted coup, the appellant’s evidence was that he had been instructed to use his lorry, the lorry that he drove as a result of employment obtained for him by Abu Bakr, to pick up armed members of JAM and drive them into the police compound where the attempt to overturn the government would begin. He said that it was on the evening before the coup, that he decided not to go through with the plan, and went to ground. The Immigration Judge accepted that the appellant had been given a part to play by Abu Bakr, and continued:
“I accept that he has fallen out with the Jaamat and/its leader Abu Bakr, which may relate at least in part to his failure to carry out his assigned role in the 1990 coup, and that before his departure for the UK he was shot at by two men whom he believes were from the Jaamat. I accept that he fears retribution from Jaamat if he were to return to Trinidad and that these fears are based on threats that have been made against him and the attempted shooting in 2002.”
[7]At paragraphs 49 – 52 the Immigration Judge made what he described as ‘Overall Findings’. Paragraph 50 is in the following terms:
“I acknowledge the brutal character and methods of the Jaamat and I accept that for the appellant, who was previously involved with the Jaamat but has fallen out with them, there is a risk of violence from them on his return.”
[8]But the Immigration Judge then went on to consider the evidence as to the period of two years during which the appellant had lived in Trinidad on his return from the United States, working as an estate constable for the police. Whilst accepting that the appellant had been shot at by men whom he believed to be associated with JAM, he considered that the appellant had failed to take serious steps to avail himself of state protection. The appellant had given evidence that he had gone to a police station with the intention of reporting the incident, but that the duty officer was a man whom he believed to be associated with JAM, and he did not therefore identify the men who had shot at him as JAM members. The Immigration Judge expressed the view that it was possible that the appellant’s reluctance to seek police assistance was partly or substantially motivated by concern as to the consequences of disclosing to them his own past association with the Jamaat and involvement in criminal activities, and went on to conclude that the fact that he had been able to live a relatively normal life for a period of two years suggested that both the risk and the level of interest by Jaamat might be relatively limited.[9]He concluded at paragraph 53 of the determination that:
“Taking all these factors into account, I am not satisfied to the standard of proof required that the appellant has a well-founded fear of persecution or that he would be unable or owing to such fear unwilling to avail himself of the protection of the Trinidadian authorities. Whilst the Trinidadian state has shown very manifest deficiencies in combating organised crime from Jaamat and other groups, I am not satisfied on the evidence before me that there would be an insufficiency of protection in relation to this appellant.”
[10]The Immigration Judge had before him an expert report from Professor Andrew Silke. We have had the benefit of a supplementary report in which Professor Silke addressed the specific issue of the ability and willingness of the Trinidad and Tobago authorities to protect the appellant. We also heard evidence from Professor Silke. At paragraphs 34 – 43 of the determination the Immigration Judge provided a summary of the country material and the report from Professor Silke: “34. I have been provided by the Appellant’s representatives with a substantial quantity of documentation on Trinidad and the Jaamat al-Muslimeen group consisting of a large number of press reports, journal articles and other reports together with Professor Silke’s report. I have to take into account that much of the materials particularly the numerous press reports are of a rather anecdotal and/or subjective nature and whilst they carry weight, I give somewhat greater weight to more objective sourced reports such as that from the International Commission of Jurists. So far as the expert witness Dr Silke is concerned, I note that he has a strong academic background in the study of terrorism and terrorist organisations. His report appears to be well researched and sourced, albeit he confirmed at the hearing that he does not have any special expertise on the Jaamat or on Trinidad apart from a study he has carried out on the Trinidadian prison system. Nevertheless his report seeks to present a balanced view based on his information about the Appellant, his background knowledge of terrorist organisations and the more specific background sources consulted by him in preparation of his report.[35]Jaamat al-Muslimeen is described in an article from the issue of ‘Terrorism Monitor’ (21.6.07) as follows:
‘JAM’ was founded in the 1980s by Yasin Abu Bakr, an Afro-Trinidadian Muslim convert born Lennox Philip and a former police officer. The organisation has traditionally been comprised primarily of Afro-Trinidadian Muslim converts to Sunni Islam. Its ideology and discourse combine a mix of the most extreme fringes of pan-African nationalism and black identity politics with Islamist rhetoric and symbolism.’
Professor Silke states:
‘Whilst JAM is certainly a partly religiously motivated group, it would be a mistake to view it as an offshoot or affiliate of groups such as al-Qaeda … What is clearer is that JAM remains involved in serious organised crime activities. These include gun smuggling, drug trafficking, kidnap murder and extortion … For the Trinidad and Tobago authorities, JAM thus presents many of the characteristics of an organised crime gang albeit one with serious political interests and ambitions.’
[36]The involvement of Jaamat in the coup attempt in 1990 is extensively documented. It appears that the Prime Minister and most of his cabinet were taken hostage and for five days the capital was plunged into violence and disarray. Eventually, Jaamat was persuaded to surrender after a period of negotiations and the promise of some form of amnesty. However, the terms and validity of the amnesty were contentious and the government pursued legal action against Abu Bakr and other Jaamat members. This has become a long-running saga. A report from the Immigration & Refugee Board of Canada states (p.77 of bundle):
‘Although Trinidadian government lawyers argued that the pardons were invalid because they were given under duress, the Privy Council in London upheld the legal status of the pardons in December 1991 … In July 1992 the Court of Appeal upheld the government amnesty given during the crisis and all 114 Jaamat members jailed since the coup were released.’
[37]The violent and ruthless nature of the group under the leadership of Abu Bakr is very apparent and this ruthlessness clearly extends to treatment of its own members or former members. Professor Silke states that ‘cases of former members being attacked by the movement are reported relatively regularly in the media’ and there is indeed reference to a number of such cases in the reports and newspaper articles before me.[38]The background materials also focus on the nature of the legal and judicial system in Trinidad which is relevant to the issue of its ability to protect its citizens from groups such as the Jaamat. The report from the International Commission of Jurists on the legal and judicial system in Trinidad is headed ‘Attacks on

Justice ‘ Trinidad & Tobago’ and states in its opening section:

‘Judicial independence is entrenched in the constitution and safeguarded in law and in practice … The areas of concern remain the heavy workload of judges, poor conditions of detention and lack of effective access to justice for the most impoverished sectors of the community …’
In a section on impunity, the report highlights problems with the abuse of prisoners by police and prison guards, the use of lethal force by the police …, lengthy delays in trial proceedings and poor prison conditions.

In another section on access to justice, the report states:

‘The standards required for a fair trial have been undermined by the failure of the government to institute an effective system of witness protection, provide legal aid, exclude coerced confessions from court evidence and in many instances ensure that suspects are informed of their right to counsel.’
[39]A 2008 Amnesty International report on Trinidad refers to a parliamentary report which was highly critical of the police service, highlighting ‘the persistent failure by police officers to appear in courts as complainants or witnesses leading to many cases being dismissed. The report noted a disturbingly high number of disciplinary charges against officers and the need to combat increased levels of indiscipline within the police service. The report also spoke of a serious lack of accountability from top to bottom in the force.’ On

the justice system, the report stated:

‘The Justice Protection Programme to protect witnesses was widely criticised with many witnesses reportedly declining to give evidence at the last moment because of threats.’
[40]A 2008 report on Trinidad from ‘Freedom House’ refers to similar problems. ‘Trinidad & Tobago is believed to suffer from high levels of official corruption … Trinidad & Tobago was ranked 79 out of 180 countries surveyed in Transparency International’s 2007 Corruption Perceptions Index.’ ‘The judicial branch is independent but it is subject to some political pressure and corruption. As a result of rising crime rates the court system is severely backlogged in some cases for up to five years with an estimated 20,000 criminal cases awaiting trial …’ ‘Corruption in the police force which is often drug-related is endemic and law enforcement inefficiency results in the dismissal of some criminal cases. The police have however won praise for establishing a branch of Crime Stoppers …’[41]A BBC report dated 4.12.06 headed ‘Abu Bakr Freed’ illustrates the difficulties of obtaining convictions. It describes the end of the trial of Abu Bakr for conspiracy to murder, in which the jury was directed by the judge to bring in a not-guilty verdict. The reasons given by the judge were that the evidence given by the state’s main witness was weak, manifestly unreliable and disintegrated under cross-examination. ‘During the trial, which was a re-trial as a previous jury could not return a majority decision, state witness Miller on several occasions crossed himself up, he said too that he had lied in his original statement to the police. And he told the court that he did not feel safe. Even one police officer when he came before the judge said he could not remember vital evidence.’ Professor Silke also referred to this unsuccessful trial in his report, pointing out also that ‘one of the alleged targets … was later shot dead by an unknown gunman in 2007.’[42]An article in Terrorism Monitor of 9.3.06 refers to perceptions of Abu Bakr’s untouchability but suggests that the authorities’ are beginning to act in a more determined way. ‘Until now Abu Bakr’s influence among a narrow albeit vocal segment of the Afro-Trinidadian population and his willingness to resort to violence and other radical measures made him virtually untouchable. His reach extends from corrupt elements of the police and security services all the way to the upper echelons of political power including Trinidad’s major political parties. This influence insulated him from prosecution. Abu Bakr sees himself as a ‘kingmaker’ of sorts in Trinidad’s volatile political scene especially but not exclusively among political parties that count Afro-Trinidadians as a base of support. ‘Abu Bakr is no stranger to Trinidad’s legal system. He and many of his followers have faced serious jail time on numerous occasions only to be released in the end for political reasons after serving modest sentences or no time at all. Due to his impressive track record, many local sources think that he may even escape the latest charges as well. At the same time the prosecution’s strong case against him and the government’s efforts to go after his organisation have taken on a greater sense of urgency. For example Abu Bakr continues to be denied bail which was unheard of in the past despite Jaamat assurances that they will do everything in their power to topple the current government if their leader is not freed on bond … The state is also moving to confiscate his properties and to evict his four wives from his numerous homes. It is also pressing the Jaamat to pay back over $30 million to the state for property damaged during the coup attempt.’[43]Professor Silke’s report contains a section on the ability of the criminal justice system to protect witnesses and vulnerable individuals. He quotes from a press source that in one month period in 2008, eight state witnesses were killed before they could testify. He quotes also from a Magistrate’s report that the retraction of evidence or deviation from statements was the single biggest cause of failed prosecutions and of witness intimidation being identified as one of the principal reasons. Professor Silke’s view, which was based on his expert knowledge of terrorist groups combined with his reading of reports on Trinidad, is that the police would be unable to protect the Appellant adequately from the threat he faces. This view was backed up by reference to evidence of the lack of resources, ineffectiveness and corruption of the police services, the documented cases of former members of the Jaamat who have been murdered, and the poor conviction rates against Jaamat members for crimes committed including those associated with the coup itself. Professor Silke also considers that the Appellant would not be covered by the Trinidad witness protection programme which is in any event not effective in protecting perceived enemies of the Jaamat.”[11]At paragraph 34 the Immigration Judge described Professor Silke’s first report as “well researched and sourced”, and said that it “seeks to present a balanced view based on his information about the appellant, his background knowledge of terrorist organisations and more specific background sources consulted by him in the preparation of his report.” Having heard evidence from Professor Silke that is a view with which we are in full agreement.[12]In his supplementary report, which was dated 25 October 2010, Professor Silke drew attention to the murder rate in Trinidad and Tobago, which has risen from 118 in 2000 to 506 in 2009, and which now represents one of the highest national murder rates in the world currently standing at 41.03 murders per 100,000 people. In comparison the murder rate in England and Wales is 1.49 murders per 100,000 people. The current police statistics indicate that the murder rate in Trinidad and Tobago will either be the same or slightly higher in 2010. Detection and conviction rates appear to be extremely low. The crisis in policing in Trinidad and Tobago is well recognised. In July 2009 Acting Commissioner of Police, James Filbert, acknowledged that the Police Service owed the nation an apology for the poor quality of policing experienced by some sectors of society over the years. Professor Silke observes that the exact causes of the crisis are unclear, although a variety of factors are believed to play a role, in particular under-manning, poor training and systemic corruption. Whilst a reform process has been introduced since 2006, which has involved inter alia the supplementing of the police force with officers from the UK and from Canada (in September 2010 Senior Canadian officers were appointed Commissioner and Assistant Commissioner, the two most senior positions in the police force), to date the measures taken to improve the situation do not appear to have had a significant positive impact.[13]Professor Silke also drew attention to the particular problems faced by the authorities in providing effective protection for witnesses in criminal cases. As he observes, an observation based upon a number of examples derived from authoritative sources, “state witnesses are shot dead every year while others simply disappear. The circumstances behind the killings vary. In the past year, witnesses have been murdered at their own homes, while others have been killed in and around the court buildings while being escorted by police officers.” Mrs Tanner, the Home Office presenting officer, made the point that the appellant is neither a witness, nor likely to become one, arguing that the apparent inability of the state to afford protection to witnesses is therefore not of relevance to the instant case. But as Miss Benitez submitted in response, the fact that the State is unable to provide effective protection for those under a witness protection scheme, adds considerable weight to the argument that the state would not be able to give adequate protection to an individual at risk, but not within such a scheme.[14]The respondent introduced in evidence a letter from the Foreign and Commonwealth Office dated 6 October 2010 and headed “Trinidad and Tobago Legal System – Sufficiency of Protection”. The letter is terse, consisting of three short paragraphs. The relevant paragraph, paragraph 3, is in the following terms:
“Legal sources advise that the witness protection scheme which is in place is not hugely secure – Trinidad and Tobago are small islands and it is hard to keep locations secret (there have been incidences of people in witness protection being murdered) for some cases (mainly high profile capital cases) witnesses have been moved to the US or the UK.”
There is nothing in the letter that is inconsistent with the content of the reports from Professor Silke.

Conclusion

[15]There can be no doubt as to the willingness of the authorities in Trinidad and Tobago to operate an effective system for the detection, prosecution and punishment of acts constituting persecution or serious harm of its citizens. The issue is the adequacy of such protection (see e.g. IM(Sufficiency of protection) Malawi [2007] UKAIT 00071). Mrs Tanner readily acknowledged the deficiencies in the system, but argued that the appellant would not have a profile likely to attract the attention of JAM given that he has been away from Trinidad for 18 of the past 20 years, and had lived there for a period of 2 years immediately prior to his entry to the United Kingdom. She therefore argued that any risk to which he is subject is that of the population at large.[16]But that submission fails to take account of the express finding by the Immigration Judge, preserved before us, that the appellant would be at risk of violence from JAM given his previous involvement with that organisation, the fact that he was pressured to join them in the first place and then left suddenly, just before the attempted coup. Whilst a considerable period has elapsed since that abortive coup in 1990 and the appellant’s subsequent flight from Trinidad, the aftermath of the coup continues to resonate. As the Immigration

Judge noted at paragraph of 37 of the determination:

“The violent and ruthless nature of the group under the leadership of Abu Bakr is very apparent and this ruthlessness clearly extends to treatment of its own members or former members. Professor Silke states that ‘cases of former members being attacked by the movement are reported relatively regularly in the media’ and there is indeed reference to a number of such cases in the reports and newspaper articles before me.”
[17]In his first report Professor Silke concluded that the appellant’s fear that he would be targeted by JAM members (either directly or indirectly) if he returned to Trinidad was credible and realistic. He concluded his supplementary report by saying:
“Given the current crisis facing policing in the Islands and the authorities’ long-running problem of protecting witnesses and vulnerable witnesses in similar cases, there is no expectation that the authorities will be effectively able to protect Mr B in the short or medium term. In cases where the police have been able to provide very strong protection to individuals it has either been in the context of a very short time frame (hours or days) or else has involved very high profile cases which have attracted a great deal of national media interested. Mr B’s circumstances do not fall into the second category, and a permanent return to Trinidad and Tobago requires more than the short-term protection seen in other instances (although it is unlikely that Mr B would be deemed to qualify for even this short-term protection).”
[18]In the light of that conclusion, based as we are satisfied that it is, on a careful and comprehensive analysis of the country material produced by both parties, in the light of the findings of fact made by the Immigration Judge and of the limited ambit of the task as given to us by the Court of Appeal, we are satisfied to the requisite standard of proof that the appellant has shown a well founded fear of persecution by reason of his political opinion, actual and/or imputed, through his anti-JAM stance and his pro-government activity, in particular as a precepted estate constable, that being the work he performed during the 2 year period prior to his arrival in the UK, were he to be returned to Trinidad and Tobago now, and secondly that there would be an insufficiency of protection were that to happen. It follows that in our judgment he is entitled to international protection in the form of refugee status under the 1951 Refugee Convention and to protection on human rights grounds under article 3 ECHR.[19]The Immigration Judge materially erred in law and his decision has been set aside. The decision we re-make is to allow the appellant’s appeal. Signed Date Judge of the Upper Tribunal APPENDIX: LIST OF DOCUMENTATION CONSIDERED Key Documents Item