Once the beating heart of Arab nationalism, Syria is a country in ruins. After achieving independence in 1946, dozens of constitutions and cabinets came and went in quick succession. In 1949 alone, Syria experienced no less than three coups d’état. Unsurprisingly, even Egypt’s Gamal Abdel Nasser himself – dubbed The Last Arab by the acclaimed Palestinian journalist Saïd Aburish – could do little to control Syria’s internal schisms and thus, Nasser, the father of pan-Arabism, eventually abandoned the United Arab Republic (1958 – 1961) experiment with the Syrians. Yet more instability followed and in 1963 the Arab Socialist Ba’ath Party seized the reins of power in Syria only to be ousted by the Neo Ba’athist movement which, after more infighting and another coup d’état, culminated in the three-decade long ruthless military dictatorship of Hafez al-Assad. After Hafez’s death in 2000, his son Bashar – who trained as a doctor in the UK – succeeded him and has since ruled Syria with an iron fist.
KB, an Arab from near Tartous, arrived in the UK in the back of a lorry. When arrested by the police in 2009, he claimed to have arrived that very day and – to conceal that he was refused a visit visa in Beirut – said that he was Palestinian. KB then stated that he traversed several countries to reach Italy and then Belgium from where he was smuggled into the UK so that he could work to send money to his poverty stricken family in Syria. The SSHD sought to remove KB but this was not achieved. One year later, in 2010, KB claimed asylum. In his screening interview he said that went from Syria to Lebanon and stayed there for a couple of years and was ultimately smuggled onto a ship which ferried him to an unknown country from where he was put on a lorry which landed up in the UK. (His uncle paid an agent €2000-3000 for this.) Subsequently – twenty days after the screening interview – in the asylum interview, KB produced a Syrian passport which showed that he was refused a visit visa to the UK in 2007.
KB also claimed that he and members of his family had demonstrated against the regime and, fearing retribution, had fled to Lebanon (historically a Syrian client state). But KB also said that he demonstrated because his family members were detained and that prior to fleeing to Lebanon he was not involved with a political party. While in Lebanon, KB claimed to have became involved in political activities against the Assad regime owing to which he felt that he needed to escape from that country as well.
First-tier Tribunal (FTT)
Upon appeal, the FTT – where KB added that in searching for him the regime had descended upon his household and arrested and detained his brothers – remained negative about the credibility of his account. Judge Canavan rejected the account given to her by KB as inconsistent with someone who has a well-founded fear of persecution. But, sensitive to the deteriorating situation in Syria, the judge nevertheless allowed the appeal because she felt that the country guidance in SA & IA (Undocumented Kurds) Syria CG  UKAIT 6 was undermined by the US State Department’s view that there were “numerous reports” that the despotic Syrian regime “routinely arrested dissidents and former citizens with no known political affiliation who tried to return to the country after years or even decades in exile.” In the judge’s mind, all this could only mean that there was a serious possibility or a reasonable degree of likelihood that even a person with no known political affiliations would be ill-treated upon return.
Aggrieved, the Secretary of State for the Home Department (SSHD), appealed because she felt that reliance on ambiguous terms such as “numerous reports” and “routine arrests” alone did not merit departing from SA & IA.
Upper Tribunal (UT)
The UT (Judge McKee) granted permission to appeal because the phrase “former citizens with no known political affiliation” could not apply to KB because he was still a Syrian national. Of course, the Home Office went to town on this point in a subsequent hearing and Judge Moulden decided that the FTT – although correct in its credibility finding – had erred in law by departing from the guidance in SA & IA. Problems arose as KB’s solicitors ended their practice and had to be replaced. The case was adjourned to be heard further on the sole issue of whether, given the FTT’s findings of fact and credibility, KB would be at risk on return. The new solicitors requested more time to get expert evidence. Subsequently, the case was thought to be appropriate for country guidance on Syria and, of course, the SSHD resisted this. But the UT  felt that since “the Assad regime could remain in power for a very long time” and given that there had been no country guidance since the turmoil began in March 2011, there was a “clear need for an update on whether the guidance in SA & IA is still to be followed.”
Ultimately, the case was heard in the UT by judges Eshun, McKee and Pitt and KB claimed that he was quite actively involved in demonstrating against the Syrian regime in London. KB also said that his Syrian passport was sent to him from Lebanon by a relative after he travelled to the UK. The UT  remained unimpressed with KB’s attempts to bolster his claim by making unconfirmed assertions that he had attended numerous demonstrations against the Syrian regime in London and that his family at home had been detained, ill-treated and harassed: “It is trite that asylum seekers may not be able to provide corroboration of a genuine claim, but when corroborating evidence should be easy to obtain, its absence may well affect credibility.”
Observing that torture and ill-treatment of Syrians at the regime’s hands was rife, the UT  recalled  &  of SA & IA whereby “a person with an actual or perceived profile of being anti-regime would be at real risk of persecution on return to Syria.”
But the UT’s real task was to discern whether, in light of the present situation in Syria, the guidance in  to  of SA & IA – whereby failed asylum seekers were not be perceived as being opponents of the regime simply by reason of having claimed asylum abroad and will not as such be at real risk of persecutory ill-treatment on return –was still valid?
Dr Alan George, a leading expert on the Middle East who also featured in SA & IA, gave oral evidence to the UT and provided written reports. Amnesty International submitted a report specifically on KB’s behalf, whereas the SSHD relied mainly on Country of Origin information and the Syria Operational Guidance Notes of 2011 and 2012. Other written submissions were provided by the parties which the UT considered in formulating its view .
Observing that like the US and European countries the UK Border Agency (since January 2012) had deferred all escorted removals to Syria, the UT – drawing parallels from the Zimbabwe litigation – remarked that this did not demonstrate “on its own … that Syrian asylum seekers in the United Kingdom must be granted refugee status” . The central question of a real risk of persecution or serious harm or ill-treatment contrary to Article 3 turned on the available evidence . In SA & IA, Dr George thought that people would face mistreatment on return to Syria merely because they were forced returnees and he also opined that Syrians claiming asylum abroad were identified as the regime’s foes and would inevitably be detained and maltreated on return. But in SA & IA judges Batiste and Taylor disagreed on this issue. So in KB’s case, in light of the recent evidence, could the conclusion be different?
From  to , the UT considered a variety of sources of evidence. These included the report of the Austrian Red Cross and the Danish Immigration Service published in May 2010, unidentified western diplomatic sources, the SSHD’s Operational Guidance Notes for 2011 and 2012 and her most recent Country of Origin Information Report (COIR, August 2012) on Syria.
The Austrian-Danish report contained the views of Human Rights Watch (HRW) in Beirut which considered that it was most likely that failed asylum seekers who were returned to Syria would be detained (albeit not lengthily) and it was highly likely that they would be ill-treated and even tortured during that time. In fact, the security forces decided who would be ill-treated or tortured and if released people were still required to report. Inevitably, all returned failed asylum seekers were automatically detained and interrogated: see . The UT noted  that even the SSHD expressly admitted that it was “possible that returnees would be viewed with suspicion” and “that even failed asylum seekers may be at risk of ill-treatment”. So the guidance in  to  of SA & IA was incompatible with today’s Syria where the “extremely high level of human rights abuses” meant that the brutal regime would do just about anything to keep itself afloat.
Ultimately, the UT allowed KB’s appeal and granted him refugee status and it explained that:
- This country guidance replaces previous guidance in SA & IA (Undocumented Kurds) Syria CG  UKAIT 00006.
- In the context of the extremely high level of human rights abuses currently occurring in Syria, a regime which appears increasingly concerned to crush any sign of resistance, it is likely that a failed asylum seeker or forced returnee would, in general, on arrival face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. That is sufficient to qualify for refugee protection. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime.
It is clear that Syrian regime’s demise is just a matter of time. But no one can say for sure when its fall will come?
Alive to the possibilities of what might happen in the months to come, the UT  was of the view that the predicament in Syria “may provoke … outside intervention or it may be, as we commented at the outset of this determination that the Assad regime will cling on to power for a long time yet.”
When the present dictatorship in Damascus finally fizzles out, no doubt, yet more mayhem will follow. More Syrians will arrive in the UK to claim asylum. Many of them are likely to be members or supporters of the present regime who will have to be treated fairly and it will be the SSHD and the judiciary’s unenviable job to make sense of it all.