Musis and Another 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	20 June 1992
Citation / Document Symbol	[1992] Imm AR 520
Cite as	Musis and Another v. Secretary of State for the Home Department, [1992] Imm AR 520, United Kingdom: High Court (England and Wales), 20 June 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b65818.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.

MUSISI and another v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1992] Imm AR 520

Hearing Date: 20 June 1992

20 June 1992

Index Terms:

Political asylum -- refusal of application by Secretary of State two years after application made -- claim raised again in appeal against Secretary of State's decision to initiate deportation proceedings -- that decision taken five years after initial claim for asylum -- radical changes in appellants' native country in intervening years -- whether adjudicator erred in assessing the validity of the asylum claim in the light of altered circumstances in appellants' native country. Immigration Act 1971 (as amended) s 3(5)(a): HC l69 para 134: HC 251 paras 161, 173: United Nations Convention relating to the status of refugees 1951, Protocol 1967 arts 1A(2), 1C(5), 33: UNHCR Handbook on procedures and criteria for determining refugee status paras 28, 136.

Held:

The appellants were citizens of Uganda, husband and wife, who arrived in the United Kingdom in 1984 and were given leave to enter as visitors. In 1985 they applied for political asylum. Those applications were refused in 1987. Appeals against those refusals were dismissed by an adjudicator in 1989. The appellants did not leave the country and in May 1990 the Secretary of State decided to initiate deportation proceedings pursuant to section 3(5)(a) of the 1971 Act.

The appellants appealed. An adjudicator dismissed their appeals. She noted that there had been radical changes in the appellants' native country between 1985 and 1990: those changes had removed the basis of the appellants' original claim.

On appeal to the Tribunal counsel argued that the adjudicator had erred in looking at the circumstances at the date of the Secretary of State's decision to deport the appellants. Their asylum claim should be assessed in the light of relevant circumstances at the date when it was made.

Held

1. It was well-settled in immigration law generally that the material date was the date of the decision under appeal.

2. There was no justification for making an exception to that rule in relation to applications for political asylum, or in relation to the review of a claim to be a refugee in the context of a deportation appeal.

3. Both article 33 of the 1957 Convention and paragraph 173 of HC 251 which reflected the provisions of the Convention, looked to the future: a claim had to be assessed in relation to present and future likely circumstances.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

A Riza QC for the appellants; Mrs P Culley for the respondent

PANEL: WB Scott Esq CBE JP (Chairman), GJ Brown Esq JP, UR Cadogan Esq JP

Judgment One:

THE TRIBUNAL: The appellants, citizens of Uganda, appeal against the determination of an adjudicator (Lady Anson DL) dismissing their appeals against the decision of the Secretary of State to initiate deportation proceedings pursuant to section 3(5)(a) of the Immigration Act 1971.

The appellants are husband and wife. The second appellant last arrived in the United Kingdon on 9 December 1984 with her small daughter and applied for leave to enter as a visitor. She was given leave to enter for six months but on 18 December 1984 she claimed asylum under paragraph 134 of HC 169. On 20 January 1985 her husband arrived, also as a visitor, and was granted leave to enter, and on 24 January 1985 he also claimed asylum. On 15 June 1987 the Secretary of State refused to grant them leave to remain because he was not satisfied that their alleged fear of persecution, if they were required to return to Uganda, was well-founded. Their appeal was heard by an adjudicator (Mr R G Care) and dismissed by him on 24 August 1989. The appellants did not apply for leave to appeal to the Tribunal.

On 15 May 1990 the Secretary of State gave notice to both appellants of his decision to make a deportation order. The notice to the first appellant commences "You were last given leave to enter the United Kingdom on 20 January 1985 for one month as a visitor" and that to the second appellant "You were last given leave to enter the United Kingdom on 9 December 1984 for six months as a visitor". In both cases the notices continued:

"An application for asylum was refused on 15 June 1987 with an extension of stay until 13 July 1987 under the (Variation of Leave) Order 1976 (as amended). Your appeal against that decision was dismissed by an adjudicator on 24 August 1989 and you did not apply for leave to appeal to the Tribunal. The Secretary of State is satisfied you are remaining without authority.

The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from re-entering while the order is in force. He proposes to give directions for your removal to Uganda, the country of which you are a national or which most recently provided you with a travel document."

The Secretary of State took their grounds of appeal as applications for asylum and noted that he had already considered applications for asylum from them and had refused them. He could see no reason to alter his previous decision.

Their appeals came before Lady Anson who noted that:

". . . the appellants had not been in the United Kingdom for seven years at the time of the Secretary of State's decision on 15 May 1990 and that therefore they were not people referred to in the Immigration (Restricted Right of Appeal Against Deportation) (Exemption) Order 1988. That means that the appellants' appeal is restricted under Section 5 of the Immigration Act 1988 to a claim that on the facts of the case there was in law no power for the Secretary of State to make a deportation order for the reasons stated in the notice of decision; and that the appellants' deportations would be contrary to the United Kingdom's obligations under the Refugee Convention -- namely the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol thereto."

In her determination she said:

". . . both before me and before the earlier adjudicator the appellants' claim for asylum referred to in the Secretary of State's decision originally on 8 January 1988 and now as far as deportation is concerned on 15 May 1990 and the appellants must therefore prove that at those dates they had a well- founded fear of persecution for a Convention reason".

The Secretary of State's original decision to refuse asylum was on 15 June 1987, as later mentioned by the adjudicator. She concluded her determination as follows:

". . . Not only do the appellants have to prove that there is a reasonable likelihood that they would be persecuted but also that they would be persecuted for a Convention reason and there is no evidence before me that they would be persecuted either for their race, religion, political opinion or their membership of a particular social group. There was some evidence that members of the Baganda tribe were being harassed and discriminated against but I find very little evidence of that from the papers before me or from other Amnesty International reports. I therefore find that neither the first appellant nor his wife have proved on the lower standard of proof that there is a reasonable likelihood that they would be persecuted for a Convention reason if they returned to Uganda at the time of the Secretary of State's decision on 15 May 1990 or today."

She dismissed both appeals on 12 September 1991.

The grounds in support of their applications for leave to appeal to the Tribunal were:

"The adjudicator's decision was against the weight of the evidence and should have been allowed. Further grounds will be submitted upon receipt of the same from Counsel, Mr Alper Riza."

Further grounds were submitted as follows:

"1 The Appellants have had their appeals dismissed by an adjudicator and it is proposed to remove them to Uganda a country which they are unwilling to go to owing to a well-founded fear of being persecuted for a convention reason. It is submitted that the Appellants are entitled to appeal by virtue of the provisions of Rule 14(2)(b) of the Immigration Appeals (Procedure) Rules 1984.

2 The adjudicator erred in law in her approach to the question of the date on which the Appellants had to demonstrate that they had a well founded fear of persecution.

3 It is submitted that the relevant date is, as a matter of a refugee law, the date on which they claimed asylum at the latest.

4 It is further submitted that the correct approach for an adjudicator to adopt, is for him/her to consider the position as at the relevant date and decide whether, as at that date, the test contained in Article 1(a)(ii) of the Refugee Convention is satisfied. If it is not then the appeal fails.

5 If, however, as at the relevant date the test is satisfied but that the decision of the Secretary of State and the determination of the appeal against that decision take place much later, then a different approach is required.

6 In such circumstances the correct approach is for the Secretary of State and the adjudicator to consider whether there has been a change of circumstances in accordance with the provisions of Article 1(c)(5) of the Refugee Convention. Moreover, the burden of establishing that there has taken place such a change of circumstances is, as a matter of construction, on the decision maker.

7 On the facts of this case as they appear from the adjudicator's determination the adjudicator not only erred in her general approach but, consequently, precluded herself from considering the case on the basis that as on the date on which she heard the appeal the burden of establishing that there had been a change of circumstances was not on the Appellants but on the Secretary of State."

Leave to appeal to the Tribunal was granted on 18 February 1992.

Before us Mr Riza accepted that by 1987 Obote had been ousted and a government headed by Museveni installed. There had been no explanation why the Secretary of State's decision refusing the appellants' leave to remain as political refugees had not been made until 15 June 1987. He pointed to the passage in Mr Care's determination where he said:

"I do not think it is necessary to go into the appellant's political involvement prior to the coup in which Obote was ousted and Museveni took over because it was Museveni's party whom both the appellants were supporting and both of them said quite clearly that they would "go back tomorrow if the government changed"."

This approach, he claimed, was contrary to the Convention. Mr Care had also recorded:

"Both the appellants said they would go back if Obote was overthrown. If in fact they had wanted to have a period of grace as it were to see how the new regime performed they could have said so but they did not. When in fact Obote was overthrown they made no efforts at all to leave and the excuse that the appellant gave that he did not know that he could do is one which I really cannot accept."

He referred to Mr Care's summary which concluded:

"As to any of the other claims I do not think there is anything in the arguments and I think the situation is just as Madrine said, that except for

JJJ's situation once Obote was toppled there was nothing to fear."

He turned to the letter from Miss Anne Timbiti concerning her enquiries in 1985 and the information which she obtained that the first appellant was on a wanted list of informers. This lady gave evidence before Lady Anson who recorded:

"I did have the evidence of Anne Timbiti before me and I do accept that in 1985 she was able to confirm that the Obote government had listed the first appellant as someone to be arrested and that his decision to leave Uganda as quickly as possible in December 1984/January 1985 and to join his wife in the United Kingdom had been a wise move."

He quoted this further passage from Lady Anson's determination:

". . . Still, I am prepared to accept that in spite of hesitations over the evidence of the witnesses before me that they were basically speaking the truth. I therefore accept that the second appellant did have some fairly ghastly experiences in 1979 and 1982 which were described by both her and her husband when she was raped by soldiers and that as a result of those experiences she and to a certain extent her husband are particularly frightened at the power and unruly behaviour of soldiers in Uganda at the present time. I also had submitted to me a copy of the Amnesty International paper "Uganda, Death in the Countryside" but I note that that document refers to deaths and rapes during the insurgency fighting in the north and to a certain extent the west of Uganda. There is no evidence there that in the town of Kampala where the appellants lived before they came to the United Kingdom, there was any particular danger. Indeed I note that the Amnesty International examples are all of leading people in the rural areas and do not refer to Kampala. I also have an open memorandum from Ugandan NRA officers and men which is a strong indictment of the unruly behaviour of the troops of the NRA and a statement to Museveni that he must restrict the activities of his troops, particularly those mercenaries and other foreign troops that he has enlisted in the NRA."

Mr Riza argued that, on the basis of the evidence, the appellants had both had a well-founded fear of returning to Uganda at the time when they made their applications for asylum.

He relied on paragraph 161 of HC 251 which reads:

"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

Similar provision is contained in paragraphs 98 and 21.

The definition of the term "refugee" is contained in article 1A(2) of the Convention. Article 1C(5) provides:

"This Convention shall cease to apply to any person falling under the terms of Section A if -- (5) he can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under Section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality."

Paragraph 28 of the Handbook on procedures and criteria for determining refugee status reads:

"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee."

The important words, said Mr Riza, are "as soon as". He referred to various other paragraphs in the Handbook and to the humanitarian principle mentioned in paragraph 136.

He submitted that the immigration rules must be construed in conformity with the Convention. While it was well-known that under the rules one had to look at the circumstances prevailing at the time of the decision, he raised the question whether the Convention either expressly or by necessary implication required the decision maker to consider the position at the time of the application for refugee status. He maintained that the Handbook and the Convention made this clear. A person becomes a refugee the moment he indicates his unwillingness, or inability, to return to his country for a Convention reason. The unwillingness is shown by the person's application for political asylum. To take the appropriate date, as the Secretary of State does, as that of his decision would be out of harmony with article 1C(5). The Convention has to be read as a whole, and given the provisions of article 1A(2) the burden of proving a change of circumstances to invoke article 1C(5) must be on the Secretary of State. Moreover, a refugee must not be deprived of protection by virtue of article 1C(5) because of some administrative failure, such as delay in processing the application. Uniquely in immigration law, it is the time of application which is relevant, and not the date of decision. The Convention says, by necessary implication, that one must look at the time of the application, otherwise one cannot make sense of it. Mr Riza was not saying that the appellants' case fell under article 1C(5) only that this provision helped him in the construction he sought to put on the definition of refugee. Construing article 1A(2) is helped by article 1C(5).

He therefore questioned whether the adjudicator had been right in regarding the relevant date, or dates, to be otherwise than when the applications for refugee status were made. It would not have been possible for the Secretary of State to prove the change envisaged by article 1C(5) and, moreover, Mr Riza said he would have succeeded on the humanitarian principle.

Mrs Culley responded by saying that paragraph 173 of HC 251 was the appropriate rule.

She claimed that the unwillingness to go must be at the date of decision and the adjudicator had acted quite properly. Mr Riza was asking us to move outside what has generally been accepted as the law. There has never been a challenge of this nature contrary to established case law. Neither the Secretary of

State nor the adjudicators had considered the appellants to be refugees.

Mr Riza replied that the appellants were claiming that deportation would be contrary to the Convention because they say they are refugees, and had been since 1985. It would be a breach of the Convention to send them back to Uganda.

Mr Riza has advanced an ingenious argument, but we are not persuaded he is right in his approach to the matter. The Handbook is not law, but a commentary and explanation of the 1951 Convention and 1967 Protocol. We are content to accept the contents of paragraph 28. It deals with someone who is recognised as being a refugee, and a person is a refugee as soon as he fulfils the criteria contained in the definition. He has to show a well-founded fear of being persecuted for a Convention reason. If he fails to do this he is not a refugee within the definition. It is well-established law that the relevant time is at the date of decision and we can find no justification for saying that there is, or should be, an exception in the case of immigration law, or at any rate in the case of asylum seekers. We feel it is an untenable argument that a person becomes a refugee when he applies for political asylum, but has never proved his claim and been recognised as a refugee. Mr Riza's argument seems to be that, at any rate the first appellant, was a refugee when he came here in 1985. That may have been so, but by the time his application was considered he could not satisfy the Secretary of State that he was entitled to refugee status. For two and a half years he was able to live safely in the United Kingdom and we can see nothing inconsistent with the terms of the Convention that the relevant date for considering the matter was the date of the Secretary of State's decision. If, at that date, the danger of persecution had not been proved or had by then been removed, there was no longer a need for the protection of the Convention.

What we have before us is an appeal against a decision to deport the appellants for remaining in the United Kingdom without authority. Under article 3 of the 1988 Order the appellants can only appeal on the ground that (a) on the facts of their case there is in law no power to make a deportation order for the reason stated in the notice of the decision; or (b) their deportation would be contrary to the United Kingdom's obligations under the Refugee Convention.

The obligation is to be found in article 33 headed "Prohibition of expulsion or return":

"1 No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2 The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

This is reflected in paragraph 173 of HC 251 which reads:

"In accordance with the provisions of the Convention and Protocol relating to the Status of Refugees, a deportation order will not be made against a person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race,

religion, nationality, membership of a particular social group or political opinion."

Both these provisions are looking to the future -- "where his life or freedom would be threatened" -- "if the only country to which he can be removed is one to which he is unwilling to go".

Would-be seekers of asylum have in effect two bites of the cherry. An application for political asylum and an objection to deportation. Clearly, it is the date of decision which is relevant because the unwillingness is expressed, logically, in the present tense.

We are bound to reject Mr Riza's argument that the appellants had been refugees ever since 1985, because they had never been recognised as such and they failed to satisfy the adjudicator that, at the date of the decision to deport them, they would be in danger of persecution if returned to Uganda.

The adjudicator, Lady Anson, gave a careful and reasoned determination. She correctly directed herself on the law, and her findings of fact on the evidence before her were, in our opinion, fully justified.

The appeals are dismissed.

DISPOSITION:

Appeals dismissed

SOLICITORS:

Solicitors for the appellants: Howard Cohen & Co, Leeds