Asylum Appeal Win for El Salvador National Who Escaped Gang Persecution
Client Story
Gita Patel’s client was a national of El Salvador with Latin ethnicity who moved from Apopa to Ayutextepeque after getting married in 2009.
Ten years later the infamous 18th Street gang ‘Barrio 18’, also known as ‘Calle 18’, ‘Mara 18’, and ‘La 18’ visited their business to extort money, demanding payments of $50 per week.
Barrio 18 came to the workplace every Monday from July 2019 to April 2020 so they could collect the $50 in an envelope.
From April 2020 to September 2020 there were no demands or payments made due to the pandemic. Then, on 10 September 2020, when the El Salvador citizen was leaving work two gang members followed him on a motorbike armed with a gun and came alongside his vehicle.
The Salvadoran civilian tried to ward them off by opening his car door which made them lose their balance. The gangsters retaliated by shooting at his car as he drove off. The Salvador national was able to get away, driving into a gated house situated less than a kilometer from his work, where he borrowed the resident’s telephone and called for his brother to collect him.
That night his brother helped them move into their mother’s house for safety. The next day they went to put in an official complaint at the legal prosecutions’ office, however, no investigation was carried out.
Two weeks later the El Salvador citizen received threats from Barrio 18 demanding $200 per week. Using money from the business and personal savings he continued making payments for a month.
Despite making the increased weekly payments Gita Patel’s client received multiple threats from the gang towards himself and his family. Too scared to leave his mother’s house, he subsequently asked a colleague to get the money out of the bank and pay Barrio 18 at a petrol station.
Shortly afterwards he transferred the legal responsibilities for the company to another individual and fled El Salvador. He travelled to the UK on 31st October 2020 to claim asylum because his cousins live here and because he believed the UK is beyond the control of Barrio 18.
Background
Gangs operate throughout El Salvador and exercise high levels of social control over members of the population. Gangs and the state are closely politically intertwined as the government cooperates with the gangs. The two main gangs in El Salvador are Barrio 18 and MS 13.
Gangs have territorial control. They cordon off neighbourhoods and streets. When entering a new neighbourhood, it is customary to roll windows down to indicate allegiance to the controlling gang and avoid violence, effectively making it impossible to freely travel through many of El Salvador’s cities.
Barrio 18’s influence and reach covers the whole country, which is roughly the size of Wales.
Any relocation within El Salvador would put not only Gita Patel’s client’s life at risk but also those of their family as they would not be able to remain in permanent hiding. Every time they would go out to shop, work, or study it would involve crossing city and town boundaries. Due to informants and the level of social control gangs have, they would likely be spotted upon their return before being able to settle down or relocate.
The Internal Displacement Monitoring Centre (IDMC) 2018 report states that there is an implicit risk that starts as soon as someone has been targeted to pay extortion money with those forced to pay constantly harassed and many having to shut their businesses down finding themselves working solely for the gangs’ benefit. The risk rises if the individual is unable to pay. Indeed, Drivers of commercial goods vehicles and public transport are systematically targeted and regularly killed for refusal to pay.
How Kenworthy’s Chambers Helped
The Home Office case was that the appellant did not qualify for asylum because the reasons he gave for claiming protection did not engage the Refugee Convention.
Furthermore, they did not accept that he was subjected to extortion in El Salvador by the Barrio 18 gang, or that gang members from Barrio 18 attempted to assassinate him.
Article 1 of the 1951 Refugee Convention defines a refugee as someone who is unable, or owing to fear, is unable to return to their country because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Gita Patel argued that her client had expressed his opinion to the gangs in El Salvador by refusing to pay them. Her argument to the Judge was that objecting to paying the gang money had an imputed political opinion attributed to him and therefore came within the Refugee Convention definition.
She relied upon the UNHCR Eligibility Guidelines for El Salvador which states that expressing objections to the activities of gangs may be considered as amounting to an opinion that is critical of the methods and policies of those in control and, thus, constitute a “political opinion” within the meaning of the refugee definition.
Immigration Barrister Gita Patel further argued that since the government and police were infiltrated by gangs it was difficult for her client to seek protection from the authorities. Plus, if he did report matters to the police, as he stated he did, then he would be considered a police informant and be at further risk. Placing him in a category of individuals recognized by the UNHCR as being at risk on return.
Gita Patel drew background evidence from the country policy and information notes (CPIN) to the Judge’s attention. This includes evidence from the BBC, Insight Crime, and Human Rights Watch. She argued that her client’s account of ill-treatment by the gangs was consistent, both with this background evidence, and overall, internally. Threatening text messages demanding increasing amounts of money were presented as evidence that backed up their account of being extorted.
Given that gangs have high levels of control over all aspects of life in El Salvador, and the appellant objected to paying them extortion money, Gita Patel argued this objection should be considered as an opinion that is “critical of the methods and policies of those in control” and thus constitutes as a ‘political opinion’, within the context of this case.
The Results
The Judge ruled it probable that Gita Patel’s client would face persecution from gangs if returned to El Salvador for numerous reasons.
Firstly, gangs such as Barrio 18 are extremely violent, engage in mortal conflict, and pose a risk to any who dare oppose them. The Salvadoran man is expected to be at risk upon any return because they were harassed, threatened, and extorted before leaving the country. Barrio 18 knew where they worked and assumed they had access to monies from the business they worked at.
The El Salvador citizen’s description of the extortion was highly credible. They described how the extortion was interrupted by COVID-19, then subsequently increased which falls in line with reports from the European Union Agency for Asylum (EUAA) about El Salvador. Plus, their description of how the gang approached them, using a gun to knock on the window, and the car chase that followed were credible because it was likely they were being targeted for increased extortion rather than assassination.
Their diligent actions following the threats demonstrated both the severity of the danger and the effectiveness of Barrio 18’s intimidation. To try and avoid detection they immediately moved into their mother’s home in another town and barely left the house for fear. They also transferred the legal responsibilities for the company to another individual before leaving the country.
Furthermore, the Judge found no factors that undermined the credibility of the El Salvador citizen’s claim. He concluded that the state is unable to provide a reasonable level of protection through its legal system for citizens, like Gita Patel’s client, who fear criminal acts from gangs due to corruption and the state’s weak investigatory capacity.
The Judge allowed the appeal and granted the Salvadoran anonymity. The individual and their family are safe from gangs now.
Gita Patel said: “This was the first case I had after the success my colleague, Craig Holmes, and I had last year in the Upper Tribunal in the country guidance case of EMAP (Gang violence, Convention Reason). In that case, defiance of extortion from gangs in El Salvador was recognised as amounting to a political opinion and it was that new law with regards to El Salvador which helped me in this case.”
The Legal 500 describes Gita Patel as a “specialist in immigration and human rights cases”.
To check the availability of Immigration Barrister Gita Patel for your asylum case call our Immigration Clerks Courtney Richards and Daniella Howarth on 0161 832 4036, email [email protected], [email protected] or fill out our contact form.
