Shramir v. Secretary of State for the Home Department

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	26 June 1992
Citation / Document Symbol	[1992] Imm AR 542
Cite as	Shramir v. Secretary of State for the Home Department, [1992] Imm AR 542, United Kingdom: High Court (England and Wales), 26 June 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6510.html [accessed 3 June 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.

SHRAMIR v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1992] Imm AR 542

Hearing Date: 26 June 1992

26 June 1992

Index Terms:

Political asylum -- application for transfer of refugee status -- citizen of Iran -- recognised refugee in France -- visit to United Kingdom -- request for leave to remain indefinitely -- assertion by applicant that he had had difficulty in assimilating into French society -- relatives in United Kingdom -- the test to be applied to justify a transfer of refugee status -- the relevance of the European Agreement. European Agreement on transfer of responsibility for refugees 1980 (Cmnd 8127). (The Agreement is reprinted in R Plender Basic documents on international migration law pp (Dordrecht) 141-6)

Held:

The appellant was a citizen of Iran who had secured refugee status in France. He had relations in the United Kingdom. He was granted leave to enter the United Kingdom as a visitor. He asserted that he had found it difficult to assimilate into French society: he had found life with his relatives in France irksome. He applied for indefinite leave to remain in the United Kingdom, an application treated as a request for the transfer of his refugee status. The Secretary of State refused the application. An appeal was dismissed by an adjudicator who held that there had to be "extraordinary compassionate circumstances" for the appellant to succeed. The appellant appealed to the Tribunal.

Held

1. Following Rahman and Nguyen, the normal circumstances in which consideration should be given to transferring refugee status were where there had been residence in the United Kingdom on some basis other than that of being a refugee.

2. Generally there would have to be "compassionate circumstances which put the case into an exceptional category".

3. In the events which had happened, the appellant could not rely on the provisions of the European Agreement.

4. On the facts, the difficulties which the appellant claimed he had experienced with his relatives in France and in integrating into French society were not such as to bring his case into the category of the exceptional, looking at those facts in the light of the circumstances of refugees generally.

Cases referred to in the Judgment:

Jinnah Rahman v Secretary of State for the Home Department [1989] Imm AR 325. Nguyen (unreported) (8125).

Counsel:

R Scannell for the appellant; D Wilmott for the respondent

PANEL: Proffessor DC Jackson (Vice President), Miss PG Liverman JP, ML James Esq

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Iran, appeals against the decision of an adjudicator (Lady Anson DL) dismissing his appeal against the decision to vary his visit leave so as to allow him to remain in this country on the basis of asylum.

The initial decision was couched solely in terms of an application for asylum on the ground that, if required to return to Iran, the appellant would be persecuted. However, it is clear from all the evidence that the application is, and was, in reality, for a transfer of refugee status from France to this country. The original explanatory statement did not deal with the transfer issue, but it was raised before the adjudicator and considered by her. Since the adjudicator's determination, a supplementary explanatory statement has dealt specifically with the question of transfer, and the issue before us turns entirely on that matter. The adjudicator's determination was promulgated on 10 January 1991, and the case was initially listed for hearing by the Tribunal in September 1991. There followed a number of hearings on preliminary issues, first on the question as to whether the Secretary of State had looked at the transfer issue and, secondly, whether the adjudicator's approach was such that, without hearing evidence, the Tribunal could sensibly approach it.

As we have said, it became clear that the Secretary of State had addressed his mind to the question of transfer, and it was common ground that that exercise of discretion was reviewable by the appellate authorities following the decision in Rahman [1989] Imm AR 325.

The adjudicator was uncertain, understandably in the light of the initial explanatory statement, whether the Secretary of State had exercised his discretion to consider the transfer of refugee status. The adjudicator doubted whether she had the jurisdiction to consider the matter outside the rules as the Secretary of State had acted under the rules, but stated that she had been asked "also to consider the special circumstances of the present appellant to ask the Secretary of State to consider his case outside the rules on the facts before me".

The adjudicator then summarised the facts as she saw them and, in the context of the issue as she saw it then before her, applied the criterion that "extraordinary compassionate reasons" had to be shown for the appellant to make his case.

It is not clear whether the adjudicator was considering the question of transfer in the context of a recommendation, and it is certainly arguable that the criterion applied was too strict. Because of the uncertainty as to whether the adjudicator approached the transfer issue as the primary issue, we thought it right that we should give the appellant the opportunity to adduce evidence before us so that we can assess that evidence specifically in the light of the application for transfer of status. As a consequence we heard evidence from the appellant and his brother (Farrokh Shamir), who lives with his wife and daughter in this country.

In addition to the oral evidence we had before us documentary evidence, some of which was before the adjudicator, that evidence consisting of:

i the two explanatory statements;

ii correspondence between the appellant's representatives and the Home Office;

iii a medical certificate dated 31 August 1989 from a doctor in Cheshire, stating that the appellant had been receiving treatment from him for depression for a year and had improved markedly;

iv the record of proceedings before the adjudicator;

v a copy of a refugee certificate issued by the French authorities valid from 22 September 1986 until 21 September 1989;

vi a copy of the refugee travel document valid from 22 October 1986 until 21 October 1988, and extended in Liverpool to 21 September 1989;

vii a medical certificate dated 16 February 1990 from a different doctor to the one who signed the earlier certificate, stating that since 23 October 1989 the appellant had been under the care of the writer of the certificate. The certificate stated that when he was first seen he was on regular doses of tranquilizers but since that time there had been a marked improvement in his mental state, and the tranquilizers had been stopped, the writer giving the opinion that the improvement was coincidental with the appellant's stay in this country.

The oral evidence

We find both the appellant and his brother to be credible witnesses, and there seems to us to be little relevant factual dispute. The issue will therefore turn on whether the facts, as they emerged, justify a transfer of refugee status.

It emerges from the evidence that the appellant fled from Iran in 1984 going to Turkey. Mr Farrokh Shamir said that it did not surprise him that his brother had to get out of Iran, but it did surprise him that he took the risk. It seems that after arriving in Turkey the appellant applied, probably, for a visit visa to this country, but when he was asked to produce an airline ticket he could not do so and, in addition, he had false documentation. The appellant and his brother had a great-uncle who lived in France, and who had political connections. When the appellant had difficulty in obtaining a visa for this country, arrangements were made through his uncle to obtain entry into France. He went to France in November 1984.

While in France he lived with his uncle in Nice. His uncle was then 85 or 86 years old, and was not in good health. He helped his uncle, sometimes preparing meals and taking him to the doctor. He tried to learn French for some three years and also went to college to study finance, accounting and computer studies, being financed by his uncle. This was a two year course, but he was unable to complete it and left at the end of the first year. He found the course difficult, particularly because of French law.

During 1986 he became homesick and depressed. Tranquilizers were prescribed, and he took valium at about 30 to 40 each week. He visited England in December 1986 and in the summer of 1987. On the latter visit he stayed with his brother and felt a bit more happy. After that visit he went back to France to try and finish his finance and accounting course, but his uncle stopped the finance.

The appellant then took a job at the American International School doing administrative work.

The appellant thought that his uncle may have been in financial difficulties as his medical expenses were large. As far as the appellant was concerned, his uncle used to give him pocket money and his brother sent him presents from time to time. He said that his brother could have helped him if he had asked. He did not approach him in regard of financing his studies as he did not imagine that his brother could afford that. He said it was a part-time course, and he could have taken employment while studying.

The appellant came to this country in January 1988, he told us intending to return to France. His job had finished by then. He yet again stayed with his brother, and his brother financed his visit here. After about a month, there were family discussions as to whether he should move away from his uncle, and his uncle suggested that he should stay in this country. The appellant's brother said that he had visited the appellant while the appellant was in France, and he could see how frustrated he was becoming. In January 1988 the situation was deteriorating, and there was no progress. The appellant had made all the efforts he could, and he could not get a job and there were language difficulties. His medical and psychological condition was deteriorating. There was a risk in severing his link with France, but he decided to make the break. The appellant's brother said that there had been a family council, and that his uncle had reached the conclusion that it was difficult for the appellant in France and could see that coming to England had its merits.

Since coming to this country the appellant attended the Adult Education Centre to update his English. He said that he had been studying English, and it was part of his education in Iran until he was 18.

In addition to the course at the Adult Education Centre he took a course in finance and computing, and was studying for the certificate of the Association of Accounting Technicians (AAT). As he had worked as a bookkeeper he got some exemptions from some subjects and, after a failure, he had managed to pass the second part of the course. He was now studying for the final part and would become a member if he succeeded. He had had some training with accountants for two months in 1989, and had been employed by a number of companies and had, on three occasions, been made redundant. He had worked as an independent contractor and had now been offered a position in a fourth firm.

The appellant said that he would find great difficulty in obtaining work in France because of the different accounting procedures and legislation, and lack of knowledge of French. In this country he had not faced the same difficulties and, in addition, there were connections which would help his employment. When it was put to the appellant that he had not given it a fair chance in France to establish himself, he replied that he had given it four years. He had acquired an adequacy of the French language on an everyday basis, but not enough to seek a job. He had not kept up his French studies here, although he had tried. He said he had not had time because he had been busy doing something else. In France he had got together with Iranians. His life in France was not pleasant -- his uncle was a strict person, and he had not been allowed to stay out and enjoy himself like other young people. When he was asked why he did not leave his uncle's flat, he said that he had to follow what his elders said and he had to respect his uncle.

The appellant said his uncle had died in 1989 or 1990. His only blood brother lived in this country, and he had a step-brother in Iran whom he had not seen for 10 or 11 years. His parents had visited this country three times since 1988. They lived in Tehran.

The appellant's brother said that in 1984 his parents had let him know that his brother was fleeing the country. It was better for his brother to join him than go to France, but he was prepared to see if he could get his brother into France through his uncle's political connections. France would be better than Turkey as there were stories of repatriation from Turkey to Iran. There were however difficulties, thought Mr Farrokh Shamir, in terms of a successful life for the appellant in France. He did not speak French and, except for the great-uncle, he had no friends or relatives there. His brother, however, was here and could advise him in settling in.

When the appellant went to France, it was not anticipated that he would be looking after his uncle. He was very homesick and, as we have said, frustrated at his lack of progress. The appellant's brother said he had difficulty in appreciating why his brother was having difficulties in settling down in France, and he went to see him. He could see that he was not happy, and he was struggling to cope with the pressures of looking after the uncle and study.

The appellant's brother said that he did not realise that his uncle had stopped financing the appellant's studies. It would appear that his uncle was concerned about the lack of progress, but it was possible that he was concerned also about the appellant's view of the restrictions on his lifestyle.

Mr Farrokh Shamir said that since coming to this country the appellant was fulfilling his potential. He was regarded as someone who could benefit society, and this had to be compared with the time in France. The appellant's health had improved since his arrival here. He could not translate his experience over the last four years here to France because of the different business expertise. He was not sure that the appellant would survive economically or physically. Their parents had not financially supported his brother because they had not the means to support.

Conclusions

Mr Scannell referred us to the two decisions of Rahman and Nguyen (8125), both of which were concerned with transfer of refugee status. Mr Scannell had raised a point on the European agreement on transfer of responsibility for refugees 1980. The United Kingdom is a party to this agreement, but the agreement has not been enacted into English domestic law. The agreement had a role to play in Rahman as the applicant in that case had been recognised as a refugee in the Netherlands, a party to the agreement. In this case, as in Nguyen, transfer is sought from France to the United Kingdom, and there is no evidence that France has ratified the agreement. Apart from the contention,

mooted in Rahman, that the principles of the agreement should in the interest of consistency be applied whenever a question of transfer is raised, the agreement has no direct part to play in this case. In particular, the appellant cannot rely on any provision of the agreement for any entitlement to a transfer.

In Rahman the Tribunal pointed out that the philosophy of the European agreement on transfer was that a refugee recognised in one country who had resided in another for a period of time should be entitled to have his refugee status transferred to the second country. In Rahman the Tribunal said of the approach to the question of transfer:

"We treat the European agreement as an important factor. It does seem us that there is a need for uniformity and consistency and that a decision as to transfer of responsibility must be taken in the light of the fact that a refugee is no longer in danger of being persecuted. The immediate and urgent problems of the "refugee" have been resolved. It seems to us eminently understandable that a refugee seeking to transfer the responsibility for his status to a second State should be able so to do only once that State has, as it were, agreed to let the refugee remain in its territory with full knowledge of the status. The length and purpose of the residence provide sensible guidelines for transfer of the responsibility for that status".

While, as we have said, the European agreement plays, at most, an indirect and general part in any decision making process in this case, we agree with the principles expressed in the passage cited which we think to be generally applicable to the question of transfer whether or not the agreement is directly relevant.

The Tribunal in Nguyen said:

"We approach the case, as the Tribunal did in Rahman, from the basis that the normal rule for a transfer of refugee status would be a consideration of the granting of that status for a period of residence on another ground in this country. It is to be noted that in Rahman the applicant came to the United Kingdom very shortly after attaining refugee status in Holland, and there was no evidence that the authorities in Holland did not provide an opportunity for assimilation. The Tribunal was further of the view that it would only be strong compassionate circumstances which would take a case out of the normal criteria that, at the least, would require a certain period of residence on a permitted ground in this country followed by an application for transfer. We therefore must consider the question of assimilation of the Nguyen family in France both from the point of view of the French authorities and the appellants, and also consider whether there are compassionate circumstances which put the case into an exceptional category".

Each case must depend upon its own facts but, in the interest of fairness and consistency, it is appropriate to consider the relevant circumstances in Nguyen and Rahman when approaching this case. Just as in the other two cases, so in this, there is no evidence that the authorities of the state granting refugee status ie France did not provide an adequate opportunity for the appellant to assimilate himself in that country. As Mr Scannell said, unlike Rahman, the appellant before us did reside in France for some four years and the evidence is certainly capable of being construed as an attempt to assimilate himself into French society.

As Mr Wilmott argued, and as in the other two cases, the application is, in effect, based on the converse of the principles of the European agreement. The appellant came to this country for a visit and has simply stayed on. He seeks to achieve asylum status and therefore residence, instead of using the residence as a basis for the status. It is obvious to all that the refugee problem is acute enough in regard to those claiming persecution if they were returned to the country whence they came. Further, we think we must bear in mind, in any application for transfer of refugee status, the view taken by Lhe United Kingdom government and indeed reflected, at least to some extent, in the Dublin Convention as to the obligation to consider applications for refugee status from those who come from a third safe country.

The question is whether there are in the context of refugee claims as a whole, in the words of the Tribunal in Nguyen, "compassionate circumstances which put the case into an exceptional category".

We have no reason to doubt that the appellant and his brother were telling the story as it was. We have no doubt that the appellant found settling down in France to be difficult, and we have no doubt that part of that difficulty was caused by the necessity of having to live with an elderly relative. It is clear that had the appellant been able to come and live with his brother and to make a life in England, his life would have been a great deal easier. Events have shown that he has been able to obtain some qualifications and indeed some employment in England. His life in England is firmly based, at least at the moment, on living with his brother and this has given him a domestic base in his "settling in" period.

The appellant found difficulty in his domestic circumstances in France, but it has to be borne in mind that his circumstances were vastly superior to the lot of many refugees who find themselves in a country about which they know nothing and in which they have no friends or relatives. The appellant, when asked if he could not have moved away from his uncle's house, replied that he had to respect his elders. That might well be true, but we do not think that such respect can possibly form a basis for a conclusion that the appellant finds life impossible in France for a reason which would support a transfer of his refugee status.

At the date of decision, the appellant was some 25 years old and was, at that time, seeking to obtain professional qualifications. On the evidence, he is able to be employed in this country and indeed, looking to post decision events, it may well be that he will have achieved the qualification he seeks. We have not the slightest evidence that the appellant could not use these skills in France, and there seems to be little attempt on his part to make enquiries as to that possibility. Further the appellant seems not to have made any preparations for the possible return to France -- a possibility which should have been appreciated and indeed, from the appellant's brother's evidence, seems to have been appreciated by the family. We must be cautious, in our view, about placing too great a weight on the appellant's success in this country and in the light of his apparent ignoring any preparation for his return to France, given that his application is not based on the granting of leave in this country. Mr Wilmott argued that the appellant's activities in this country were self-serving and we have to say that he has a point. We have no doubt that once the appellant was here he intended to make his future here and we must guard against the realisation of that intention, being itself a basis for the transfer of refugee status.

Mr Scannell said that the primary point that we had to face was whether the appellant always intended to come to this country. We are prepared to accept that in 1984, although the appellant would have preferred to come to this country, he was prepared, at least in the early stages, to try and assimilate himself in France. It may well have been that the very domestic circumstances which assisted him in finding a base there also worked against him in assimilation.

We find it difficult to believe that it would have been impossible for the appellant to leave his uncle's flat and strike out on his own, and there is certainly no evidence that at the date of decision the appellant could not have returned to France and made a life of his own there. It may well be more difficult for the appellant to familiarise himself with the French approach in accountancy, but in a refugee context this seems to us to be a challenge which, from a refugee's standpoint, might well be thought to be one which he would welcome rather than the challenge of simply staying alive in a refugee camp or in circumstances entirely alien to him.

All in all we are not satisfied that this case is exceptional in the sense that the refugee status should be transferred. We appreciate the difficulties the appellant has had in assimilation, but they are not difficulties which, on the scale applicable to refugees, would of themselves form the basis of transfer of responsibility from one state to another. Further, at the date of decision the appellant was more mature than he was when he got to France, and no doubt had recovered from the immediate trauma of escape from Iran, is supported by a family even if that family is not in France and was well on his way to obtaining knowledge and expertise which, no doubt, can be employed to good use in France. In our view, therefore, the appellant fails to make his case.

The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Birnberg & Co, London SE1.