Secretary of State for the Home Department v. X (A Chilean Citizen)
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 19 December 1977 |
| Citation / Document Symbol | [1978] Imm AR 73 |
| Type of Decision | TH/13209/77 |
| Cite as | Secretary of State for the Home Department v. X (A Chilean Citizen), [1978] Imm AR 73, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 19 December 1977, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b66634.html [accessed 4 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
SECRETARY OF STATE FOR THE HOME DEPARTMENT v 'X' (a Chilean citizen), TH/13209/77
Immigration Appeal Tribunal
[1978] Imm AR 73
Hearing Date: 19 December 1977
19 December 1977
Index Terms:
Political asylum -- Application made in country of applicant's citizenship and residence -- Whether application for political asylum could be entertained (under the relevant provision in the immigration rules for Control on Entry) other than on arrival at a port of entry -- HC 81, para 55.
Held:
In the determination reported below the Tribunal held that an application for political asylum made by a citizen of Chile at the British Embassy in Santiago was properly refused, because applications for political asylum could, under para 55 of HC 81, clearly only be entertained on the arrival of the person concerned at a United Kingdom port of entry.Counsel:
K. E. R. Rogers for the appellant Secretary of State. Ms S. Ashtiany for the applicant/respondent. PANEL: P. N. Dalton Esq (Vice-President), E. A. Lewis Esq, Mrs B. WarburtonJudgment One:
THE TRIBUNAL: This is an appeal by the Secretary of State for the Home Department. The respondent, to whom we shall refer as 'the applicant', is a Chilean national now 40 years old. On 23 April 1975 the applicant applied, with his wife and son, at the British Embassy, Santiago, for entry clearances to enable them to come to the United Kingdom for an indefinite period. He told the entry clearance officer that, though he had been in employment from June 1959 until December 1973, he had been dismissed on 31 December 1973. He had been detained by the authorities on 16 September 1973 on suspicion of subversive activities but released on 24 December 1973. He admitted to having been an active member of the Communist Party since 1972 and alleged that he had been detained because of his ideals. When the application was referred to the Home Office, the Secretary of State considered the case but was not satisfied that the applicant and his wife and son qualified to enter the United Kingdom under any of the immigration rules. The applicant appealed to an adjudicator n1, Mr I. M. S. Donnell, and as the applicant did not nominate any representative in the United Kingdom and the Secretary of State did not request a hearing the appeal was considered under the provisions of r 12 of the Immigration Appeals (Procedure) Rules 1972. Mr Donnell said in his determination that the matter of political asylum was not, as far as he had been able to ascertain, referred to in the Immigration Act 1971. He then referred to para 55 of HC 81 which reads: n1 In his notice of appeal 'X' referred to a further and continuing detention under the State of Emergency Law. From this detention lasting several months he was, however, released in November 1976."55. A passenger who does not otherwise qualify for admission should not be refused leave to enter if the only country to which he can be removed is one to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion."
After referring to two 1976 appeals (TH/14684/75 and TH/1735/76) the adjudicator said with reference to the immigration rules for control on entry: "It is not generally provided that the same rules or criteria apply when a person is seeking entry clearance as when he is actually seeking entry. This has never given rise to difficulty previously however, because it has simply been assumed that the same considerations apply. For example when, in paragraph 13 of HC 81 it states: 'A passenger is to be admitted if he satisfies the Immigration Officer...', it is accepted that if on appeal he can establish the matters in question he is entitled to be given an entry clearance in his country of origin. Paragraph 55 of HC 81, read as it stands, does give some ground for thinking that it applies only to those actually presenting themselves at the ports. But if this be so, then other provisions of the rules should be construed thus, as there is no apparent difference in principle between them. Since they have not been so construed, I prefer to read para 55 in this way, that a person who is subject to persecution in the country in which he is, may properly claim asylum and may ascertain in advance his eligibility for asylum. If this is not the case, then in my humble opinion the rules ought to be amended so as to show clearly that political asylum may be claimed only by a person actually arriving in this country." The adjudicator then turned to what he termed the scanty information before him, to see whether the applicants had made out a case for political asylum. The adjudicator, who did not pretend to any detailed knowledge of the present situation in Chile, said he thought he was entitled to draw on his experience of other appeals, which was that the relatives of those out of favour with the regime were not necessarily persecuted. He said that there was no evidence of persecution of a direct and serious nature and so he found that the wife and son of the applicant were not entitled to claim asylum and their appeals were dismissed. The adjudicator then said:"So far as the first appellant is concerned, the position is rather different. It seems to me that he provides a classic instance of a person who is persecuted because of political views which he holds, without having done any act which endangered the security of the State. If he had, no doubt he would have received condign punishment. In these circumstances he is entitled to asylum. There is no suggestion that he would constitute a danger to the peace or security of the United Kingdom."
The adjudicator allowed the applicant's appeal. The Secretary of State applied to the Tribunal for leave to appeal on the following ground:"The adjudicator erred in law in finding the appellant to be a person in a position to benefit from para 55 of HC 81. That paragraph can only apply to a person properly described as a 'passenger' liable to be 'removed' and having 'to go' to another country."
Leave to appeal was granted. The adjudicator for the reasons he gave did not think that para 55 of HC 81 only applied to persons actually presenting themselves at the ports, but in our view the adjudicator was wrong in his interpretation of para 55. In TH/14684/75 to which Mr Donnell referred, the adjudicator, Mr Hawthorn, said: "Paragraph 55 clearly does not apply to the situation of the appellant who claims to have a well founded fear of being persecuted in the country in which he is presently residing", and Mr Patey in another 1976 appeal (TH/1462/76) held that para 55 precluded a person from applying for political asylum from abroad and applied solely to persons who have arrived at a United Kingdom port and have not yet been given leave to land. Ms Ashtiany said that para 13 of HC 81, for example, deals not only with persons arriving at a port in the United Kingdom but is also used for people applying for entry whilst abroad and if they are refused they can appeal. This indeed is so, and there is nothing in those parts of the rules which deal with persons coming to the United Kingdom in the ordinary course of events which precludes this procedure. However, the clear and unambiguous wording of para 55, which stands alone in a different part of the rules, Part VI headed 'Political Asylum', can only be taken to refer to persons who have travelled to this country and on arrival seek to enter; such passengers are not to be refused leave to enter if the only country to which they can be removed... etc. In our view the wording of this paragraph is quite explicit, and this appeal is therefore allowed.DISPOSITION:
Appeal allowed.Copyright notice: Crown Copyright
