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Reported Case

MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826 (18 June 2014)

Date: 18/06/2014
Duncan Lewis, Reported Case Solicitors, MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826

In the Court of Appeal (Civil Division)- On Appeal from the Upper Tribunal (Immigration and Asylum Chamber)

In this conjoined appeal the substantive issue was whether the conduct that the Appellants, MI and MF, had been subjected to amounted to ‘persecution’ within the meaning the definition of ‘refugee’ under the Geneva Convention 1951, as to entitle each to refugee status. Interestingly, one element of the definition of refugee, namely ‘persecution’ is not itself defined in the Convention.

MI, is a national of Pakistan, now aged 30 years. He asserted that his persecution, stemmed from his genetic condition of albinism (ie lack of melanin pigment in his skin). This is an immutable characteristic. The ill-treatment he suffered comprised: bullying at school between the ages of 8-15 years, and name calling, between the ages of 15-22 years, and being beaten when he was aged 23 years .

MF, is a national of Venezuela, now aged 62 years. He asserted that on account of his substantial political history in Venezuela, including assisting Antonio Ledezma to be elected Mayor of Caracas in 2008, he had been the subject of constant physical and psychological abuse at the hands of officials who acted on behalf of President Chavez.. This ill-treatment included being attacked with his own vehicle, being stalked by plain clothes officers-January to July 2009-, and being spat at.

In both cases the Appellants’ claim to asylum had been refused by the Secretary of State. And MI’s appeal had been allowed and MF’s appeal had been dismissed by the First-tier Tribunal. In both cases the Appellants’ appeal had been dismissed by the Upper Tribunal. The matter came to be appealed to the Court of Appeal.

In respect of MI the Court of Appeal ruled that the First-tier Tribunal (IJ Camp) had not properly determined why the relevant conduct he had been subjected to had amounted to persecution, and thus the Upper Tribunal were correct to conclude that the First-tier Tribunal had made an error of law, and to find that the past treatment was not sufficiently severe or persistent to constitute persecution

In respect of MF, who was represented by Duncan Lewis, the Court of Appeal ruled that there was “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”, at paragraph 72.

Further, the Court ruled, that the Tribunal were not in error in finding that the ill-treatment MF received was not sufficiently serious to constitute persecution, and that the Tribunal had ‘a margin of appreciation’ when making its evaluation, at paragraph 75.
Both appeals were dismissed, and each Appellant is now seeking leave to appeal to the Supreme Court.


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