The Upper Tribunal has issued country guidance about the risk from gangs in El Salvador. In EMAP (Gang violence – Convention Reason) El Salvador CG  UKUT 00335 (IAC), the Upper Tribunal makes helpful findings about the general context in which persecution by gangs takes place in El Salvador and specifically that many people are targeted by the gangs because of their political opinion.
The Upper Tribunal also makes helpful comments about whether victims of persecution by gangs are within the scope of the Refugee Convention through forming a Particular Social Group. However, the appeal was heard a few weeks before Section 33 of the Nationality and Borders Act 2022 came into force and there is likely to be fierce dispute about the application of the Tribunal’s guidance in the new statutory context.
Rise of gangs in El Salvador
The background to this case is that El Salvador suffers domination by two major gangs, known as MS-13 and B-18. As the Tribunal explains:
The major gangs of El Salvador – by which we mean MS-13 and B-18, to whom the vast majority of gang members owe their allegiances – are agents of persecution as defined by Article 6(c) of the Qualification Directive. They are non-state actors, from whom the state is, the Secretary of State expressly accepts, unable or unwilling to provide protection.
We are wholly satisfied that MS-13 and B-18 must today be regarded as political actors in El Salvador. These gangs, whose leadership now work in tandem against the government, are now estimated by the ICG to have a presence in 94% of municipalities. They are in control, or have a significant degree of control, across “vast” areas of the country, where they subject the resident population to “an extraordinary level of social control”. This may not involve the provision of ‘services’ as we would understand it, but they do not have to be acting as a proxy government in order to be exercising power. The Supreme Court of El Salvador has declared gang violence to be “politically motivated” in its designation of the gangs as ‘terrorists’. The evidence consistently indicates that they have infiltrated all major branches of government and the security services, at both national and local level: to borrow the phrase used in Gomez [at 40], here “criminal and political activities heavily overlap”
The Upper Tribunal identified that persecution by the gangs will vary along a spectrum from persecution which clearly takes place because of the political opinions of the victim, for example, where the targeted individual is involved in anti-gang youth programmes. On the other hand, the gangs will seriously harm some people without giving any consideration to their political opinions, for example, when extorting money from a shopkeeper.
For intermediate cases, the Upper Tribunal provided helpful guidance that in general victims will be likely to be able to establish that they were persecuted because of their political opinions, particularly when the reason they came to the adverse attention of the gang is not “immediately financial”:
In between those two poles is the area of overlap where the criminal and the political motivations of the gangs are harder to separate. It is true that punishment for resistance will often be inflicted in pursuit of criminal, economic objectives, but in the context of El Salvador that is not all it is. The subject of extortion who takes a stand and refuses to pay, the victim of violence who turns to the state for assistance, the youth who resists the pressure to join a gang are all in our view likely to be able to establish that an effective cause of the persecution they fear is the opinion or belief that they hold about the gang. The less immediately financial in nature the point of the adverse attention, the more likely it is going to fall towards the political end of the spectrum.
Particular Social Groups
As fall back, the Upper Tribunal also noted that individuals who resist gangs in El Salvador can establish that they are a member of a particular social group. The Tribunal did not give definitive guidance on the extent of the potential particular social groups, but did provide some quite widely drawn examples:
Individuals who resist the gangs in El Salvador will be able to establish that they are members of a particular social group if they can demonstrate that they share an innate characteristic, a common background that cannot be changed or that they share a characteristic or belief that is so fundamental to identity or conscience that they should not be forced to renounce it. We are satisfied that this could include women, LBGT individuals, former gang members and those who for reasons of conscience take a stand against the gangs.
Disjunctive or conjunctive
However, the Upper Tribunal’s ruling on the potential particular social groups is complicated by the changes in UK asylum law which came into effect this year. The case heard by the Tribunal on 9 June 2022 and then a couple of weeks later on 28 June 2022, Section 33 of the Nationality and Borders Act 2022 came into force.
The new statutory provision is significant because the Tribunal, following some of its own previous decisions and obiter comments by the House of Lords in Fornah v Secretary of State for the Home Department  UKHL 46;  1 AC 440, interpreted Article 10 of the Qualification Directive disjunctively rather than conjunctively. The Upper Tribunal held that a particular social group can exist where “members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it”. There is no need to consider whether that group also has a distinct social identity.
But Section 33 imposes the conjunctive test which does require the group to have a distinct social identity:
(2)A group forms a particular social group for the purposes of Article 1(A)(2) of the Refugee Convention only if it meets both of the following conditions.
(3)The first condition is that members of the group share—
(a)an innate characteristic,
(b)a common background that cannot be changed, or
(c)a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.
(4)The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.
Coming back to El Salvador, the distinction is significant because it would make it more difficult for discreet opponents of gangs to qualify for refugee status as they do not have a distinct social identity. As the Tribunal explains:
“We are also satisfied that those who make a public or visible stand against the gangs would qualify since they are likely to be perceived as different by the surrounding society. Those who privately, discreetly oppose the gangs are not, and taking the conjunctive approach their claims would fail.”
Overall, the decision is a positive development for those claiming asylum based on gang violence in El Salvador. The full headnote reads:
(i) The major gangs of El Salvador are agents of persecution.
(ii) Individuals who hold an opinion, thought or belief relating to the gangs, their policies or methods hold a political opinion about them.
(iii) Whether such an individual faces persecution for reasons of that political opinion will always be a question of fact. In the context of El Salvador it is an enquiry that should be informed by the following:
(a) The major gangs of El Salvador must now be regarded as political actors;
(b) Their criminal and political activities heavily overlap;
(c) The less immediately financial in nature the action, the more likely it is to be for reasons of the victim’s perceived opposition to the gangs.
(iv) As the law stands at present, so taking the disjunctive approach, those fearing gang violence in El Salvador may be considered to be members of a particular social group where they can demonstrate that they share an innate characteristic, a common background that cannot be changed, or a characteristic so fundamental to their identity or conscience that they should not be forced to renounce it.