CM FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The Appellant arrived in the United Kingdom in June 2017 with his wife and young son, seeking asylum on the basis of a well-founded fear of persecution if returned to Venezuela. The risk arose from an incident two months prior in which members of the Bolivarian National Guard ("the GNB") fatally shot a friend of the Appellant during a protest. The Appellant witnessed the shooting and subsequently received threats from GNB officers warning him to remain silent. Additionally, his family received disturbing anonymous phone calls implying danger to their son. Due to these threats, the Appellant and his family fled to the UK where he applied for refugee status or humanitarian protection.

The Home Office initially refused asylum, and the First-tier Tribunal ("F-tT") dismissed the appeal, concluding the Appellant was not at risk of persecution because he would not report the incident and could not identify the perpetrators. The Upper Tribunal ("UT") and the Lord Ordinary refused permission to appeal and dismissed the judicial review petition, holding there was no arguable error of law. The Appellant challenged the UT decision by reclaiming motion, alleging errors in law by the F-tT and UT.

Legal Issues Presented

1. Whether the F-tT erred in law by concluding the Appellant was not at risk of persecution because he had not reported the shooting and could not identify the perpetrators.
2. Whether the UT erred in law in refusing permission to appeal on the grounds raised, including the applicability of the principle established in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department concerning the requirement to 'keep quiet' about persecution.

Arguments of the Parties

Appellant's Arguments

• The F-tT erred in law by concluding there was no danger to the Appellant simply because he had not made a complaint to the authorities.
• The UT erred in law by failing to recognize the arguable error of the F-tT regarding the risk assessment.
• The principle in HJ (Iran) was applicable, as the Appellant’s need to remain silent about the murder constituted an infringement of his human rights analogous to the applicants in that case.
• The Appellant might be able to identify the perpetrators despite the F-tT’s conclusion, and this undermines the basis for rejecting the risk of persecution.

Respondent's Arguments

• The Lord Ordinary’s analysis was correct, and the Appellant did not have a well-founded fear of persecution on Convention grounds.
• Any modification of the Appellant’s behaviour upon return would be based on personal safety concerns rather than political opinion.
• The HJ (Iran) principle did not apply to the Appellant’s circumstances.
• The F-tT, UT, and Lord Ordinary correctly proceeded on the basis that the Appellant could not identify the perpetrators, and this was not arguable otherwise.
• However, the Respondent conceded that if HJ (Iran) applies or if the identification evidence was misunderstood, the appeal should be allowed and remitted.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on whether the F-tT erred in law by concluding the Appellant was not at risk of persecution because he had not reported the murder and could not identify the perpetrators. The court found that the F-tT, UT, and Lord Ordinary misunderstood the Appellant’s evidence regarding his ability to recognize the perpetrators. The Appellant had stated he remembered their faces, and the court found it arguable that the Appellant could identify them, contrary to the tribunals’ findings.

The court reasoned that the perception of the perpetrators, who knew the Appellant witnessed the murder and believed he could identify them, placed him in danger regardless of whether he had formally complained. The ruthless nature of the perpetrators and their threats supported an inference of ongoing risk to the Appellant’s safety.

The court also questioned the significance attributed by the F-tT to the Appellant’s reluctance to report the incident, noting the threats and intimidation faced. The court did not decide on the applicability of the HJ (Iran) ground but allowed that it raised a novel point warranting further consideration by the UT.

Accordingly, the court concluded that the UT erred in law by refusing permission to appeal and that the F-tT’s decision was arguably legally flawed in its assessment of risk.

Holding and Implications

The court ALLOWED the reclaiming motion, RECALLED the Lord Ordinary’s interlocutor, SUSTAINED the Appellant’s first plea-in-law, REPELLED the Respondent’s fifth and sixth pleas-in-law, and REDUCED the decision of the UT.

The case was remitted to the UT to proceed in accordance with the court’s findings, with the expectation that the UT will grant permission to appeal and hear the substantive appeal. The decision directly affects the parties by allowing the Appellant a further opportunity to challenge the refusal of asylum and humanitarian protection. No new precedent was established beyond the clarification of arguable errors in the application of existing legal principles.