Venezuelan IT businessman allowed appeal in persecution asylum application

The petitioner and reclaimer, CM, claimed he was at risk of persecution if he returned to Venezuela. He argued that the Upper Tribunal had erred in refusing permission for him to challenge the decision of the First-tier Tribunal to refuse his appeal against the initial decision of the Secretary of State for the Home Department.

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Woolman, and Lord Doherty. The appellant was represented by Bovey QC, and the respondent by McKinlay from the Office of the Advocate General.

Pinned against a car

The petitioner, who had owned an IT business in Venezuela, arrived in the UK with his wife and young son in June 2017. Along with his wife and some of his friends, he had previously participated in peaceful protests against the Venezuelan government during periods of civil unrest in the country.

It was claimed by the petitioner that he had witnessed a friend of his being fatally shot by a member of the Bolivarian National Guard (the GNB) during one such protest in April 2017. He claimed that his friend, T, had been grabbed by a GNB officer and shot in the face at point blank range, with T dying two days later in hospital.

The petitioner also claimed that, following a visit to T in hospital on the night of the shooting, he had been pinned against a car by two GNB officers who told him that he would have “serious problems” with them and that his family would be killed if he spoke out about the shooting. The petitioner’s wife later received a series of disturbing phone calls falsely claiming that their son had been kidnapped.

Following a conversation with an individual in the Venezuelan national security service, the petitioner was advised to forget about the incident and stay away from protests, otherwise his life would be in danger. After this, he decided to flee to the UK and flew to Edinburgh to seek protection either as a refugee or on the basis of humanitarian protection.

In his application for asylum, the petitioner stated that he was at risk of persecution if he returned to Venezuela. The Home Office declined to grant him asylum, and the First-tier Tribunal refused the petitioner’s initial appeal against the decision. The FtT concluded that the petitioner was not at risk of persecution as he would not report the matter to the authorities in order to protect the safety of himself and his family, and he could not identify the perpetrators of the attack.

Both the FtT and the Upper Tribunal refused permission to appeal, holding that there was no arguable error of law in the FtT decision. A petition for judicial review of the UT’s decision to the Outer House was also unsuccessful. It was submitted to the Inner House that the UT had erred in not recognising that the FtT had erred in concluding that the petitioner was not at risk of further persecution.

Ruthless men 

The opinion of the court was delivered by Lord Woolman. On the general continued risk to the petitioner, he said: “It is arguable that it was unreasonable in the circumstances for the FtT to conclude that the petitioner is in no danger because he has not made a complaint. He is a witness to a murder by state actors. The murderers know that he witnessed the commission of the crime and they believe that he can identify them as the perpetrators.”

He continued: “It may reasonably be inferred from the circumstance of the murder and from their subsequent threats to the petitioner that the perpetrators are ruthless men with scant regard for human life. They run the risk that at some point the petitioner might speak up, with potentially grave consequences for them. In those circumstance it may be reasonable to conclude that they represent a danger to the petitioner.”

Addressing the petitioner’s ability to identify the officers who shot his friend, he said: “Even if the petitioner was unable to identify the perpetrators, he might nevertheless have important information to impart to the authorities, viz - when, how and by whom (ie GNB officers) T was shot. Matters may go further in any investigation. Witnesses are typically asked to view photographs, to create photo-fit images or drawings, and to attend identification parades. Sometimes this can jog an individual’s memory.”

He went on to say: “He stated that he might well be able to recognise the perpetrators - he recollected their faces. We think that there is, at the very least, a substantial argument that it may reasonably be inferred that the petitioner understood the judge’s [question about his ability to identify them] to be asking something different, viz. apart from recollecting what they looked like, had he any other way of being able to establish who they were?”

Lord Woolman concluded: “We think it arguable that, on a reasonable reading of the entirety of the relevant passage, the petitioner indicated that he thought he would be able to recognise the killers.”

For these reasons, the reclaiming motion was allowed. The case was remitted to the UT to proceed as accords in light of the Inner House’s findings.