Revisiting Asylum Standards for Witnesses to State-Sanctioned Violence: Analysis of CM v Secretary of State for the Home Department [2021] ScotCS CSIH_15

Introduction

The case of CM v Secretary of State for the Home Department ([2021] ScotCS CSIH_15) addresses critical issues surrounding asylum claims by individuals who have witnessed state-sanctioned violence. The petitioner, referred to as CM, arrived in the United Kingdom from Venezuela in June 2017 with his wife and young son, seeking asylum on the grounds of fearing persecution due to his involvement in peaceful protests and eyewitness account of a lethal event perpetrated by members of the Bolivarian National Guard of Venezuela ("GNB"). The Home Office denied his asylum claim, leading CM to pursue judicial review against the decision.

Summary of the Judgment

The Scottish Court of Session reviewed the decision to deny CM asylum. The First-tier Tribunal (F-tT) and the Upper Tribunal (UT) both upheld the Home Office's refusal, citing a lack of reasonable likelihood of persecution. The primary reasoning was CM's failure to report the incident and inability to identify the perpetrators, implying reduced risk of harm. However, the Court of Session identified arguable legal errors in these assessments. Specifically, it questioned whether the mere perception by the GNB that CM could identify them posed a credible threat, irrespective of his actions in reporting. Consequently, the court allowed the reclaiming motion, urging the UT to reconsider the case, thereby signaling potential shifts in asylum adjudication standards.

Analysis

Precedents Cited

The judgment references significant precedents, notably HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2011] 1 AC 596. In these cases, the House of Lords (now the Supreme Court) recognized that individuals may face persecution even without active political participation if their mere association or passive resistance is perceived as threatening by authorities. The petitioner argued that this precedent was applicable, as his reluctance to report the incident should not negate the inherent risk due to his witness status.

However, both the F-tT and UT dismissed the applicability of HJ (Iran) to CM's circumstances, asserting that CM did not belong to a protected social group and that his actions were based on personal safety rather than political ideology.

Legal Reasoning

The crux of the legal reasoning revolves around the interpretation of well-founded fear of persecution under the Refugee Convention. The F-tT concluded that CM's failure to report the crime and identify the perpetrators diminished the perceived threat. Conversely, the Court of Session posited that the GNB's perception of CM's potential ability to identify them could, in itself, constitute a credible threat regardless of his actual reporting actions.

Furthermore, the Court scrutinized the F-tT's reasoning that absence of complaint equated to lack of danger, arguing that passive risk due to witness status should be sufficient for asylum consideration. The Court emphasized that legal assessments should consider not only actual threats but also perceived ones by persecutors, aligning with the principles established in HJ (Iran).

Impact

This judgment holds significant implications for future asylum cases, particularly those involving witnesses to state-perpetrated violence. By challenging the notion that lack of complaint negates persecution risk, the Court of Session broadens the scope for assessing asylum claims based on perceived threats. This aligns asylum law more closely with the realities faced by individuals in oppressive regimes where fear of retribution exists inherently due to their ability to testify or identify perpetrators.

Moreover, by potentially applying the principles from HJ (Iran), the judgment encourages tribunals to adopt a more nuanced approach in evaluating the fears of asylum seekers, considering both objective risks and subjective perceptions by authorities.

Complex Concepts Simplified

Well-Founded Fear of Persecution: A genuine and reasonable fear that one will be harmed due to reasons such as race, religion, nationality, membership in a particular social group, or political opinion.
Humanitarian Protection: A form of protection granted to individuals who do not qualify as refugees but face real risks of serious harm if returned to their home country.
Particular Social Group: A group that shares a common characteristic inherent to their identity, which cannot be easily changed, making it a basis for protection under asylum law.
Persecutor Perception: The idea that the persecutor believes the individual possesses certain qualities or knowledge that make them a target, regardless of the individual's actual circumstances.

Conclusion

The CM v Secretary of State for the Home Department [2021] ScotCS CSIH_15 judgment marks a pivotal moment in asylum law, emphasizing the necessity to account for perceived threats by persecutors, even in the absence of direct actions like filing complaints. By challenging previous tribunal decisions, the Court of Session underscores the importance of a comprehensive assessment of an asylum seeker's circumstances, especially regarding their witness status to state-sponsored violence. This case potentially paves the way for more inclusive and protective standards in asylum adjudication, ensuring that individuals facing inherent risks due to their association with critical events receive the necessary legal consideration and protection.