Petrovski v. Secretary of State for the Home Department

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	22 October 1992
Citation / Document Symbol	[1993] Imm AR 134
Cite as	Petrovski v. Secretary of State for the Home Department, [1993] Imm AR 134, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 22 October 1992, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6520.html [accessed 29 May 2023]
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.

PETROVSKI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal, TH/79/90 (9333)

[1993] Imm AR 134

Hearing Date: 22 October 1992

22 October 1992

Index Terms:

Political asylum -- overstayer -- application for asylum made after decision by the Secretary of State to initiate deportation proceedings -- whether it was proper for the appellate authorities to consider the claim for asylum -- whether on the facts the applicant had a well-founded fear of persecution in his own country -- the context within which a failure to perform compulsory military service was relevant to such a claim. Immigration Act 1971 s 3(5)(a) as amended: HC 251 paras 140, 161.

Held:

The appellant was a citizen of Yugoslavia. He had become an overstayer. The Secretary of State had decided to initiate deportation proceedings against him pursuant to section 3(5)(a) of the 1971 Act (as amended). After that decision had been taken, the appellant applied for asylum. That application was refused without right of appeal.

The decision to deport the appellant was appealed, inter alia on the ground that he had a well-founded fear of persecution in Yugoslavia. The appeal was dismissed by the Chief Adjudicator: the appellant appealed to the Tribunal which considered the validity of the appellant's claim that he would be persecuted because of his failure to perform military service.

Held

1. It was perhaps illogical for the appeal against an intention to deport to be based essentially on a claim to asylum which had only been made after that decision had been taken. Nevertheless, on the basis that the appellant had been at the date of decision a person entitled to claim asylum, it was proper for the issue to be before the appellate authorities.

2. There were no grounds, as had been contended, for concluding that the Chief Adjudicator had erred in law in his determination.

3. The wish to avoid military service and the possibility of punishment for failing to perform that service could not ground a claim for asylum: only if there were evidence that persecution would result from the refusal to perform that service might the appellant secure the protection of the Convention.

Cases referred to in the Judgment:

No cases are referred to in the determination

Counsel:

Miss G Oliso for the appellant; D Griffiths for the respondent

PANEL: I Kinnell Esq QC, AA Lloyd Esq JP, Major D Francombe

THE TRIBUNAL:

The appellant in this matter, a citizen of Yugoslavia, has appealed against a determination of the Chief Adjudicator (Mr M Patey, MBE) who, on 13 April 1992, dismissed his appeal against the decision of the Secretary of State for the Home Department (the respondent), taken on 23 January 1990, to make a deportation order against him in accordance with section 3(5)(a) of the Immigration Act 1971.

We find that the uncontroversial background to this appeal is accurately and fully set out in the opening pages of the Chief Adjudicator's determination, and it is, therefore, unnecessary to repeat that background here. Putting the matter shortly, however, it may be said that, when the respondent took the decision to make a deportation order on 23 January 1990, that decision attracted only a limited right of appeal confined to the question whether there was in law power to make an order for the reasons stated in the notice of decision. Shortly after that decision was taken, however, it was intimated on behalf of the appellant that an application for asylum would be made. A substantive application for asylum was made, and in due course rejected by the respondent: that decision did not attract a right of appeal. But, as we believe he was bound to do, the respondent considered whether, in view of the plea for asylum, to pursue the decision to make a deportation order would be in breach of the Convention and Protocol relating to the status of refugees. As appears from the respondent's supplementary explanatory statement dated 29 January 1991, it was concluded that the making of a deportation order would not be in breach of the Convention and that the decision of 23 January 1990 should, therefore, stand.

If the respondent was wrong in that conclusion, it appears to have been accepted on all sides, and at all stages of this appeal, that the decision of 23 January 1990 should be reversed, albeit that, when it was made, there had been no claim to asylum. We feel bound to say that we have some reservations as to the logic of this, but it can, perhaps, be justified -- certainly on the facts of the present case, where the intimation of a claim followed closely upon the decision -- by the postulate that, if it appears from the evidence that, at the date of decision, the appellant was a person entitled to claim asylum, a decision then to deport him can be demonstrated as having been wrong in law because of the overriding obligation to adhere to the requirements of the Convention. This is a highly pragmatic approach, but, insofar as it has enabled the appellant's claim to asylum to be fully tested within the framework of the immigration appeals system, it has much to commend it, and we proceed accordingly.

In opening the appeal on behalf of the appellant, Miss Oliso referred us to the detailed grounds of appeal, which are set out in a letter from the United Kingdom Immigrants Advisory Service dated 22 May 1992. Although these grounds apparently bear her signature, Miss Oliso at once acknowledged that the formulation of the first of the numbered grounds left much to be desired. She submitted that, in essence, the appellant's case could be broken down into three elements. These related to:

1his reluctance to return to Yugoslavia because of a fear of persecution as a result of his failure to undertake military service;

2his fear, as a Macedonian, of persecution by Albanians in Macedonia; and

3his fear of persecution from adherents to communism.

Concerning the first (and also the third) of these elements, the Chief Adjudicator had, Miss Oliso submitted, placed far too much reliance on the fact that the appellant had left Yugoslavia openly, and without difficulty, in 1984. The appellant had remained away from Yugoslavia for a very substantial period. He had, Miss Oliso submitted, been known as an opponent to the then regime in Yugoslavia, and his continued failure to make himself available for military service would have been seen as further opposition to that regime, which would be likely to result in his persecution. The Chief Adjudicator had referred to the appellant's evidence before him to the effect that he (the appellant) had in the past been detained by the authorities, but the Chief Adjudicator appeared to have ignored the authorities' continued interest in him evidenced by the letter of 24 March 1988, which had been before the Chief Adjudicator.

As to the appellant's fear of persecution by Albanian elements in Macedonia, it was true that the Chief Adjudicator had referred to the appellant's evidence concerning this, but in assessing that part of his evidence he had, in effect, discounted it merely because it was not a subject referred to in correspondence from his family.

Wisely, we believe, Miss Oliso did not seek to develop the second of the numbered grounds of appeal, in which it was suggested (by reference to certain passages in his determination) that the Chief Adjudicator had misdirected himself as to the standard of proof to be applied to the case before him.

Although, as this is an appeal by way of re-hearing, it may not greatly matter either way, we feel obliged to say, in fairness to the Chief Adjudicator, that this ground of appeal appears to us to be wholly spurious. In the brief passages quoted from his determination, the Chief Adjudicator was -- with some care -- merely evaluating the evidence that he had heard: neither expressly nor by implication was he in so doing addressing the standard of proof, and it is, we think, patently obvious from his recital (on page five of his determination) of the respondent's submissions before him, that the Chief Adjudicator had well in mind the correct approach to the standard of proof in asylum cases.

The third of the numbered grounds of appeal, as developed by Miss Oliso, suggested that the Chief Adjudicator had failed to give clear guidance upon his own assessment of the credibility of the appellant. Yet, she added, the Chief Adjudicator had accepted much of his evidence, and one could only wonder whether, having nonetheless dismissed the appeal, he had imposed upon the appellant too high a standard of proof.

These concluding submissions on behalf of the appellant lacked substance in our opinion. We find nothing to criticise in the Chief Adjudicator's careful evaluation of the appellant's evidence, and we find ourselves in no difficulty in drawing from his remarks sufficient guidance upon the credibility of the appellant. As we have already stated, although we have to review the evidence de novo (subject to that guidance upon the appellant's credibility), we are confident that the Chief Adjudicator had well in mind the appropriate standard of proof.

In his address, Mr Griffiths for the respondent reminded us that the appellant had first come to the United Kingdom for seasonal work in 1983 and had then returned to Yugoslavia. In the following year he again came to the United Kingdom, where he had since remained. Although, more recently the appellant had claimed that he had encountered difficulties with the authorities prior to coming to the United Kingdom, it was only after he was apprehended -- indeed it was much later, only after a decision to deport had been taken -- that the appellant had sought asylum in the United Kingdom.

Other than the appellant's oral evidence before the Chief Adjudicator, all that could support his claim to asylum was to be found in his answers to the asylum questionnaire and in the letters from his family that had been produced. His statements in the questionnaire disclosed no treatment that could be categorised as persecution within the Convention, and the letters suggested that the only interest in the appellant had been because of his failure to make himself available for military service. Asylum, Mr Griffiths submitted, had clearly suggested itself to the appellant only when the prospect of deportation loomed. Concerning those organisations of which the appellant had claimed membership, enquiries -- referred to in the supplementary explanatory statement -- had shown them to have been less than prominent and possibly non-existent, and while it might be accepted that there was some hostility from Albanian elements in the area from which the appellant came, it was, as the Chief Adjudicator had clearly felt, striking that in the correspondence that had been produced, the primary concern appeared to have been the economic situation.

To the foregoing submissions Miss Oliso briefly replied, pointing out -- correctly -- that adherence to, or membership of, a particular organisation or group was not a condition precedent to persecution.

We have approached this appeal bearing well in mind that, albeit the test itself is one of probability, the appellant has to do no more than satisfy us as to the reasonable likelihood of persecution for a Convention reason. Even applying that modest standard, however, it is clear to us that this appeal cannot succeed.

While it is, of course, by no means decisive, the circumstances in which the appellant's claim to asylum emerged only long after his last entry into the United Kingdom and, indeed, only when he was faced by the prospect of deportation, cannot be ignored, and inevitably demands a very careful appraisal of his claim and its foundations.

As we see it (leaving aside post-decision events to which we will later return), the only solid basis for the appellant's expressed apprehension stems from his failure to undergo military service. The wish to avoid military service -- and the possibility of punishment because of a failure to present oneself for it -- do not, either severally or collectively, require the recognition of refugee status. On the other hand, were there to be evidence that satisfied us to the required -- limited -- extent that, albeit stemming merely from a failure to undertake or to be willing to undertake, compulsory military service, the appellant had a well-founded fear of persecution, our conclusion would be otherwise.

Neither in the appellant's statement nor in his oral evidence before the Chief Adjudicator, nor even in the correspondence to which we were referred, has there, however, been made out a credible case to support that proposition.

And, further, there is, in our judgment, no compelling evidence to support the proposition advanced by Miss Oliso that the appellant's prolonged absence from Yugoslavia would have exacerbated his position either as an objector to military service or as an objector to the then communist regime.

As to the appellant's professed concern that he would be persecuted by Albanians resident in the area from which he comes, there are, we think, two points to be made. The first of these -- a point adverted to in the supplementary explanatory statement -- is that we are unable to accept that the appellant's alleged activities as a political agitator (a claim in respect of which we have, in any event, grave reservations) would, after such a prolonged absence from the scene, have left him as a "marked man". Secondly, as the Chief Adjudicator clearly was, we were markedly struck by the absence of any suggestion in the correspondence from the appellant's family of the inter-community hostility of which, in his evidence before the Chief Adjudicator, the appellant had sought to make so much.

What we in fact see in that correspondence is an obvious concern about the economic situation in Yugoslavia, and that, we are bound to say, appears to us to have been the most probable motivation for the appellant's continued stay in the United Kingdom beyond the expiry of his leave and up to the date of the decision to make a deportation order in respect of him.

Like the Chief Adjudicator, we are well aware of the changed situation in Yugoslavia since the date of decision, and, with the passage of time, that situation appears to become yet more confused and more harrowing. At the conclusion of her submissions, Miss Oliso urged upon us the making of a recommendation in the appellant's favour in event we felt unable to allow his appeal.

Although, for, we believe, understandable reasons, Mr Griffiths was a little coy, he made it clear to us that, whatever the outcome of this appeal, the respondent was at present acting with great circumspection when considering the deportation of anyone to Yugoslavia. That we are sure is the case.

It seems to us that we should, therefore, approach the possibility of a recommendation in the appellant's case upon the basis of his particular circumstances, and not upon broader, humanitarian, considerations. We regret to say that we found little merit in the appellant's claim for asylum judged, as we believe appropriate, as at the date of decision in January 1990. And, there being no post-decision facts, referable to the appellant as an individual which would, in our opinion, justify a recommendation that he be treated outwith the rules, we do not consider it appropriate to make any recommendation in the present case.

Otherwise than by virtue of the plea for asylum, it was not suggested that the respondent had no power in law to make the decision to deport the appellant for the reasons stated in the notice of decision. We are not satisfied that the plea for asylum was well-founded, and it must therefore follow that this appeal is dismissed.

DISPOSITION:

Appeal dismissed