Viva la Revolución? new Cuba guideline case

“… Liberators do not exist. The people liberate themselves.”

Contrary to what Castro’s close comrade Che Guevara claimed, Cuba is one of the world’s last remaining autocratic communist regimes. Historically, the revolutionary country was once considered a bastion against imperialism. Yet the oppression faced by Cubans in relation to freedom of expression is well reflected in the UTIAC’s recent decision in Fernandez (Dissidents and defectors) Cuba CG [2011] UKUT 343 which is a country guidance case.

In 1995 Mr Fernandez (F) left his native Cuba to work as a teacher in Botswana from where he arrived in the UK to study in 2006. In August 2009 the SSHD refused F’s application to extend his leave because of his failure to disclose a conviction: this prompted him to claim asylum in 2010 which was refused by the SSHD; a first instance Tribunal allowed F’s appeal. Subsequently, the SSHD’s appeal brought the matter before the second tier of the Tribunal.

The Tribunal granted the SSHD permission to appeal the first instance decision by Abebrese IJ on the grounds that he had failed to give any reasons for (i) believing F’s account; and (ii) distinguishing a binding country guidance decision. In January 2011 the UTIAC (Irwin IJ and Eshun SIJ) decided that the FTTIAC had erred in law by not considering OM (Cuba returning dissident) Cuba CG [2004] UKAIT 00120. Within the meaning of that case, F’s claim (at its apex) would be for “harassment” by the regime which – while unacceptable in a western liberal democracy – meant that F’s asylum claim would fail. Matters were resumed before Latter SIJ whose determination was promulgated in late August 2011.

F was a teacher in Guantánamo (not the detention camp). He had been educated in Cuba and Russia (where he married a Russian woman) and became a dissident. By the early 1990s F came to the Cuban authorities’ attention as he considered Castro’s regime to be a dictatorship. For his opinion F had his property sequestered, was detained for 24 hours and fined 60 pesos. Owing to connections in the Cuban government, F was able to escape Cuba by acquiring a job teaching physics and chemistry in Botswana.

The Cuban embassy’s refusal to allow F to visit his wife in Russia during his holidays lead him to publically reprimand the Cuban Ambassador in Botswana. For this rebuke the embassy threatened to have F forcibly returned to Cuba by having his employment contract terminated. However, F managed to carry on in Botswana by obtaining legal representation.

Since F’s marriage with his Russian wife became estranged because of geographic separation, he became involved with another Cuban in Botswana called Lena (L) and in 2004 they had a child called Mara (M). L became a known defector and the two encouraged dissent against the Cuban regime. In 2005, however, F began an affair with a Communist Party member named Amaryllis (A) which meant that the F’s relationship with L ended. Owing to F’s desire to teach in the UK, he entered the UK in 2006 believing that he would be able to switch to a working visa but upon arrival F discovered that his college did not want him to teach but to facilitate teaching practice instead. Banned from Cuba and unable to return to Botswana, F felt cheated but had no option but to stay in the UK. He was joined by A and they married in 2000. Thereafter, a visa application made by F was refused because he failed to disclose a criminal conviction following which A and him claimed asylum: when F discovered that A was pregnant with another’s child they parted company.

In his oral evidence F emphasised his problems with the Cuban regime. Equally, F expressed concerned for his undocumented child M who was still in Botswana. F said that not having declared his conviction for drink driving was an honest mistake and explained that he claimed asylum four years after arriving in the UK – rather than within three days – because he had not been sufficiently advised.

In mid-2010 the SSHD refused F’s asylum application because for her his absence from Cuba on a two year contract since 1995 amounted to a permanent right to work abroad granted by the Cuban government which naturally meant that he could return to his country without the fear of persecution. Moreover, F had provided a muddled chronological account of his passport renewals with the Cuban Embassy and although he had said that he would be permitted to enter Cuba for 21 days, F failed to provide any evidence in relation to having tried to obtain an entry permit. Furthermore, the SSHD made the point that F’s similarity with OM undermined his case – the Cuban authorities had never had any serious problems with him – and hence she was not satisfied that persecution or serious harm would follow upon return.

It is internationally acknowledged that Cuba, an inveterate human rights violator, is a one party system where even minor dissent is criminally punished with years of imprisonment. The country’s punitive criminal laws operate to preserve officialdom if someone “offends” the dignity of the state. This is at odds with Cuba’s obligations under Article 19 of the International Covenant on Civil and Political Rights which it signed in 2008.

The experts’ view was that F would be charged with treason upon his return to Cuba and that he was not imprisoned for his dissidence in 1992 because the authorities economically benefitted by sending him to earn foreign exchange in Botswana. Moreover, contrary to the SSHD’s conclusion, only Cubans who remained loyal to the authorities enjoyed permanent exits with a right to return because those who chose to emigrate to join family abroad not only exited permanently, they also surrendered their property to the state and required a visa for returning.

Thus, F’s entry into Cuba needed the government’s approval and upon entering F’s persecution would be imminent because of a “revolving door of repression” – which refers to Cuba’s policy of periodically mass-arresting dissidents, detaining some of them for up to three decades (without due process), trying them unfairly and then expelling them from Cuban soil. Coupled with deliberately vague criminal laws in relation to “dangerousness” – which allowed Cuba to prosecute/persecute anyone at will (for disrespecting the revolution, for being a “social parasite” and for antisocial conduct) – the revolving door policy meant that F would be “entering the lion’s den” if he returned to Cuba.

F’s counsel submitted that although F had held a Cuban passport from 2003-2009 and was allowed to enter for 21 days, this was a ploy by the regime to induce him into returning. Since F’s prospects of securing an exit visa within 21 days were low, any overstaying in Cuba beyond this time meant that F would naturally breach Cuban immigration law which in itself had penal consequences.

Owing to the fact that only a single page of F’s passport was produced by the SSHD, Latter SIJ – on the evidence before him – rejected the argument that issues of credibility arose as a result of F’s confused account of his passport renewals. Equally, Latter SIJ found F’s asylum claim to be credible as F produced evidence exhibiting that his (a) ex-wife L (who remained in Botswana) was ordered by Cuba to return there because she had links with a collaborator; (b) daughter M was refused Cuban citizenship; and (c) ex-wife A was denied entry into Cuba.

Given that F’s falling out with the Havana regime was quite emphatic because he had publically confronted Cuba’s Ambassador in Botswana and that he had also encouraged others to defect, Latter SIJ allowed F’s appeal and formulated the following points as guidance:

(i)  The human rights situation in Cuba is dismal and the government continues to deny its citizens basic civil and political rights.

(ii) The authorities are intolerant of any form of unauthorised opposition to its political agenda and the law is used to criminalise dissent.

(iii) The term “dissident” in the context of Cuba does not refer to a homogenous group of people but can refer to anyone engaging in activities regarded by the authorities as contrary to its political agenda.

(iv) The “dangerousness” law is used as a political tool against those seen as dissidents or otherwise opposing the regime’s political agenda

(v) Those regarded by the Cuban authorities as opponents, dissidents or defectors can be at risk of treatment of sufficient severity to amount to persecution.  Whether a particular individual will be at such risk depends upon his background and profile but in general terms an active political opponent who has come to the attention of the authorities or someone who has been openly disloyal to the regime is likely to be at such risk.

(vi) This guidance replaces that given in OM which is no longer to be regarded as providing country guidance.

Revolutionaries often seek to export revolutionary ideology but it is plain from this case that Che Guevara’s promise in relation to the human rights of “millions of inhabitants of Africa, Asia and Latin America” being achieved by virtue of their ability to “rise to meet a new life and demand their unrestricted right to self-determination” remains an illusion because “revolutionary” regimes such as Cuba, Iran, Syria, North Korea and Zimbabwe continue to violently repress their people denying them very basic human needs leave alone the rights and freedoms we take for granted in the UK.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Botswana, Cases, Che Guevara, Cuba, Freedom of Expression, Human Rights, Persecution, Revolution, Tribunals and tagged , , , , , , , , . Bookmark the permalink.

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