Atibo v. Immigration Officer, London (Heathrow) Airport

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	28 February 1978
Citation / Document Symbol	[1978] Imm AR 93
Type of Decision	TH/23674/78(1162)
Cite as	Atibo v. Immigration Officer, London (Heathrow) Airport, [1978] Imm AR 93, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 28 February 1978, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b627c.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.

ATIBO v IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/23674/78(1162)

Immigration Appeal Tribunal

[1978] Imm AR 93

Hearing Date: 28 February 1978

28 February 1978

Index Terms:

Political asylum -- Leave to enter refused -- Religious persecution in home country alleged -- Member of evangelical Christian sect -- Church attendance permitted but outside evangelizing, proselytizing, prohibited by Marxist regime -- Law of general application restricting public meetings (political, religious, social, etc.) -- Whether applicant had "well-founded fear of being persecuted for reasons of religion" -- Whether should have been granted political asylum on religious grounds -- HC 81, para 55.

Held:

A citizen of Mozambique, who was a member of an Evangelical Church sect, was permitted to practise his religion in private by attendance unharassed at services of his church, which continued to function unproscribed. He was, however, prohibited from following his evangical vocation to preach and proselytize his religion publicly, i.e. outside the precincts of his church. He suffered no other form of discrimination. The prohibition against outside preaching appeared to be based on a law of general application by which the Marxist regime -- in what they regarded as being in the interest of law and order -- prohibited all public meetings (religious, political, social, etc.) unless organised or expressly permitted by the Frelimo.

In these circumstances the adjudicator and, on appeal from his decision, the Tribunal held that the laws of Mozambique did not provide a basis for a well-founded fear on the appellant's part of being persecuted for reasons of religion. Accordingly, he was properly refused leave to enter the United Kingdom as a person claiming political asylum under para 55 of HC 81. n1

n1 Paragraph 55 of HC 81 is set out on p 98, post.

Principle enunciated by the Tribunal in Doonetas v Secretary of State for the Home Department (TH/12339/75(820) d 14.10.76) applied.

Introduction:

The facts are fully set out in the determination below.

Counsel:

Miss M. Connelly of the United Kingdom Immigrants Advisory Service, for the appellant.

G. Treadwell for the respondent.

PANEL: A. Hooton Esq (Chairman), Mrs J. M. Abrahams, R. S. Charnley Esq

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr J. K. Brownlees) dismissing the appellant's appeal against the refusal of leave to enter by the immigration officer on 9 January 1978.

Only one issue was raised before us, namely whether the appellant Mr Francisco Atibo qualifies for political asylum under para 55 of HC 81 -- he claims to be unwilling to return to Mozambique, the country of which he is a citizen, by reason of a "well-founded fear of being persecuted for reasons of religion".

Mr Atibo arrived at Heathrow Airport from Paris on 27 December 1977. He held a visitor's visa authorised by the Home Office and issued in Matupo but was not allowed to enter under it because, for good reason, the immigration officer found that there had been a change of circumstances since its issue in that his intention now was permanent settlement and not just a short visit. The immigration officer's reasons for refusing admission under the visa were not challenged at the hearing before the adjudicator; it was agreed at the commencement of that hearing that the appeal was against the refusal of entry under para 55 of HC 81.

In the days following the appellant's arrival at the Airport the immigration officers conducted a lengthy investigation which was not concluded until 9 January 1978, when he was refused entry. During this investigation the officers learned much of his religious background and observances. He produced a letter from the Pastor of the Congregacion de Evangelicos in London dated 6 April 1977 in which he assured the appellant of a warm welcome; it was understood that he would like to join the group whilst in England and worship at their church.

A missionary of the Congregacion in Canada, Mr Casqueiro, was at the airport to meet the appellant. He described himself as the latter's spiritual father. The Home Office had been in touch with Mr Casqueiro at the time of the appellant's visa application: in a letter dated 15 March 1977 he had then described the appellant as his adopted spiritual son who had worked with him as an assistant pastor at a Church of the Assemblies of God in Porto Amelia, Mozambique, and that as he was now unable to exercise his religion in public he was coming here for one or two years to help him (Mr Casqueiro) in his ministry. At the airport he told the immigration officer who interviewed him that he had known the appellant since 1973. He himself had left Mozambique because he had been unable to practise Christianity there in public. The appellant had come to try to obtain permanent settlement and would work here as his assistant to train for the ministry. The appellant agreed that permanent settlement was his real intention in coming to the United Kingdom. He disclosed that he came from a Moslem family but was converted to the Pentecostal church in 1975 when he left home and went to live with Mr and Mrs Casqueiro. He had worshipped about three times a week at Mr Casquiero's church (a private house in Matupo) -- the total membership was between 20 and 30. Asked if he had any function in the church he replied that he had not -- he worked as a lorry driver whilst staying with the Casqueiros -- and further asked if he was aware of any harassment on the part of the Mozambique authorities, he replied that he was not.

The day following the immigration officer's refusal of entry the appellant by letter indicated his wish to appeal. He alleged that in the circumstances prevailing in Mozambique it was impossible for him to exercise his profession there. He wrote:

"I confirm that I worked as Assistant Pastor with Rev Casqueiros in Porto Amelia (Mozambique) till the present Government ordered all churches to reduce their activities to the minimum including ceasing to challenge anyone on matters of the faith and are doing their best to stifle all religions. Under these circumstances it is impossible for me to exercise my profession, but Pastor Casqueiros has a great need of assistance here in London with African students such as myself whose spiritual and other problems are enormous and it is obvious that I can exercise my profession as a missionary here in London in a way that is impossible in Mozambique at this time."

In amended grounds of appeal to the adjudicator, Miss Connelly on 23 January 1978 made it clear that the appeal was being made in accordance with para 55 of HC 81 -- the appellant would be persecuted for his religious beliefs were he to exercise his religion publicly in Mozambique -- he was claiming political asylum, on the grounds of religious persecution, until such time as he might return to his country of origin and freely practise his religion publicly. Miss Connelly enclosed a letter to her dated 19 January 1978 from the Rev James L. Wilkie, Executive Secretary (Africa) of the British Council of Churches, setting out that body's appreciation of the situation in Mozambique. The following is the text of that letter:

"As agreed to do in our telephone conversation last week, I am now sending you some observations on Religious Freedom in Mozambique.

I think it is important that we take seriously what Mozambican Christians are saying themselves about the religious situation in their own country. I therefore enclose a photocopy of a statement prepared by leading Christians from Mozambique who took part with representatives of Churches in the United States and Canada in a Consultation held near New York in March 1977.

You will see that in the statement there is no suggestion that the Church is persecuted by the regime. I myself visited Mozambique in May 1977 and attended public worship on a Sunday in a rural situation where there was no chance that the service could have been specially laid on for my benefit. Representatives of the Christian Council of Mozambique visited this country in March 1977 on their return from the Consultation whose report I enclose with this letter. They gave an interview to 'The Methodist Recorder' at that time, in which they said that there is no persecution. Any assessment we make here must take this very seriously. However, there is no doubt that those whose Christian obedience leads them to feel that they must practise a certain style of evangelism, must be finding it difficult to operate under the new regime. I imagine that street preaching must be difficult, if not impossible.

Mobilising of the masses is a prerogative of the party in power. Likewise transporting children to Sunday school, especially if there are those among them who are not children of the congregation, could be viewed with suspicion.

From my experience of life in an independent African country, I can well believe that the Missionary concerned was right in concluding that he could not continue his work, and the young man who was strongly influenced by him interpreted the situation correctly when he felt inhibited by the state from practising what he regarded as his Christian vocation.

To sum up:

1. The Government is committed to an atheist Marxist policy.

2. Most Mozambican Christians are able to continue their Christian faith and practise under the present Government which they support and to which they are grateful since it led them to liberation.

3. A minority of Christians who conceive their Christian obedience in a particular way, may well be finding difficulties under the regime. Your young man seems to be one of these latter, and while I personally at this stage would make no criticism of the regime's policies, I think that he individually probably has a case when he applies for political asylum on religious grounds."

The Legal Adviser to the Representative of the United Kingdom and British Commonwealth Office of the United Nations High Commission for Refugees (Dr G. S. Goodwin-Gill) wrote to the adjudicator on 25 January 1978 confirming that the Representative did not wish to be treated as a party to the appeal but gave him briefly the benefit of his inquiries as follows:

"The inquiries which I have made reveal that, while there is no evidence of persecution of Christians in Mozambique, there has been some restriction on proselytizing, particularly by adherents of 'protestant' and evangelical sects. This is perhaps understandable in the light of the present government in Mozambique, which proclaims itself to be both Marxist and secular." Dr Goodwin-Gill wrote a further letter on 30 January 1978 after reading the Rev James L. Wilkie's letter. In this he said that Mr Wilkie's views amplified the very general statement made in his earlier letter and that he saw no reason to dissociate himself from them.

Also on 30 January 1978 the appellant was re-interviewed by the immigration officer. He agreed that he had said, during the investigation at the airport that he was not aware of any harassment on the part of the Mozambique authorities. He confirmed that this was still correct but said that, although he had been allowed to practise his religion within the church, he had not been allowed to do so outside.

At the hearing before the adjudicator, the appellant gave evidence. This is summarised in Mr Brownlees' determination as follows:

"The appellant, in Portuguese through an interpreter, stated that he was brought up in the Muslim faith and converted in 1973 to Christianity, joining the Church of the Assembly of God, where he had been prepared as an assistant pastor and trained as a preacher. Whilst training he went out on a regular basis to invite people to come to the preaching, and he preached himself. All of his training had taken place in Pemba, where he was with the Frelimo, but he had left there in 1975 for Matupo because with the Frelimo he did not have the liberty to work in a church, or to preach, for at that time the Frelimo were taking pastors as prisoners. He had been tricked into joining them by being told that he would only act as a nurse, whereas it turned out he had to be a solider. When with them he even had to sneak out to go to church and the opportunity to desert arose when, still a guerilla, he was given leave in 1975 prior to joining the regulars. He knew of two people who had been put in prison because they refused to give up evangelizing; one, whose name he gave, having been in prison since 1975. Since then he had lived in Matupo and had been unable to practise his religion in public, and had only been able to worship as a private person. He wished to continue as an Evangelical preacher on a permanent basis.

In cross examination Mr Atibo stated that the Frelimo were against any sort of religion -- they prevented Muslims and Roman Catholics from practising their religions. The authorities knew where his church was, and he only went there as a member of the congregation and did not go out preaching any more: whilst he had been there the authorities had never tried to close it, and he had got spiritual comfort and solace from his attandance there. So long as he practised his religion in the church he was free to do so, but not outside: only the Frelimo were permitted to preach their doctrines outside. The authorities had done nothing to him as a deserter, although he had not changed his identity to evade them. He had told the Visa Officer he was coming on a visit but he wanted to leave Mozambique for a longer period than that just to be in a free country."

The adjudicator summed up the appellant's case and came to his conclusion as follows:

"Put very broadly the appellant's case is that he would be persecuted by being prohibited from preaching anywhere than in his church, and in danger of imprisonment if he did: a church which he attends unharassed and where apparently the services continue in their normal way without fear. However the prohibition on what can loosely be described as public meetings extends to all except those organised, or expressly permitted by Frelimo: in other words to every organisation -- religious, political, social etc -- except the virtually ruling body itself. This to my mind is not persecution, if that be the word, because of the appellant's membership of religion, but because in Mozambique he is not a member of the ruling group.

Furthermore it is clear that, if I am wrong and this be persecution, it can well be argued it is not because of his religion, which he is permitted to practise freely in a place designated for worship, and respected as such by the authorities, but because of his desire to proselytize where he pleases in a partly atheistic, partly religious (of various faiths) society: a desire which, if not restrained, could in many countries not associated with persecution within the meaning of para 55 of HC 81, lead to a breakdown of law and order. Any prohibition of Mr Atibo's proselytizing zeal may well be in the interest of such law and order and not aimed at any particular group, religious or otherwise. Indeed, his own frank and open evidence on this aspect of life in Mozambique supports the view, and it is here that the Tribunal's determination in Kyriakos Doonestas n2 is so relevant.

n2 Doonetas v Secretary of State for the Home Department, TH/12339/75(820) (unreported).

I am not satisfied, on the balance of probabilities, that any fear the appellant may have of being persecuted in Mozambique for reasons of religion is well founded within the meaning of that expression in para 55. The appeal is dismissed accordingly."

The grounds of appeal to the Tribunal are:

"1. The Adjudicator erred in law by holding that it was not persecution to deny the opportunity to practise his profession as an evangelist.

2. Because the appellant would suffer such persecution should he be returned to Mozambique and follow his profession he is a refugee within the meaning of Art 1 of the Convention and para 55 of HC 81 and the Adjudicator should therefore have allowed the appeal."

Miss Connelly in her address to us submits that the adjudicator had given insufficient weight to the inability of the appellant to follow his profession in Mozambique. He was a member of the evangelical church and as such it was insufficient for him to be allowed to worship in private. He committed a crime against the State if he preached in the streets. Miss Connelly relied, in support of her submissions, on the letter of the Executive Secretary (Africa) of the British Council of Churches dated 19 January 1978, the text of which we have already set out.

Paragraph 55 of HC 81, under the heading "Political asylum", provides as follows:

"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 well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion."

A footnote to this rule in HC 81 explains that "the criterion for the grant of asylum is in accordance with Article 1 of the Convention relating to the Status of Refugees (Cmnd 9171)".

There is no question of the appellant being imprisoned, let alone being put on the rack or burned at the stake in Mozambique, for his religious beliefs or for worshipping in private or in church. He told the immigration officer that he had not encountered harassment by reason of worshipping in Mr Casqueiro's church, and he confirmed this in his evidence to the adjudicator. The authorities never tried to close the church. It was only if he preached in the streets that he would get into trouble; he knew of people who had been imprisoned because they refused to give up evangelizing. The letter from the British Council of Churches confirms that there is no suggestion that the Church in Mozambique is persecuted by the State. There is a restriction on proselytizing by members of evangelical sects -- this is confirmed by Dr Goodwin-Gill as a result of inquiries he has made -- but the teachings and private meetings of the evangelical sect to which the appellant belongs are not proscribed. The appellant cannot evangelize in Mozambique because of a law prohibiting assemblies -- a law apparently of general application which has the incidental effect of restraining the appellant from practising in full what he believes to be his vocation.

Reference was made during the hearing before the adjudicator to the case of Kyriakos Doonetas n2. In that case the appellant, a Greek citizen, was a member of the religious order known as Jehovah's Witnesses, who are precluded by their faith from undertaking military service. He had received his calling-up papers while in this country and if he returned to Greece would face a long term of imprisonment for contravention of the law on conscription. Now the law of conscription was one of general application -- Jehovah's Witnesses were not singled out -- and imprisonment was for refusing to comply with that law and not for holding particular religious beliefs, even though in the case of the appellant his religious beliefs were the reason for his refusing to obey the law. The Tribunal held that the appellant did not qualify for an extension of stay under para 28 of HC 82 by reason of a "well-founded fear of being persecuted for reasons of religion". n3 That case may not be on all fours with the present appeal but, as the adjudicator said, was relevant in considering the effect of prohibitions arising from the application of general laws not aimed at any particular group.

n3 In Doonetas (ibid) the Tribunal expressed their view as follows: "In our view there is no doubt that the appellant has a well-founded fear of being punished if he has to return to Greece. We also consider that the sort of sentences being imposed in Greece for refusal of military service amount to persecution. The question remains: In this case is it persecution for reasons of religion or political opinion? We do not think that it is. The immediate cause of the persecution is a refusal to obey the law of the land, and the fact that such refusal may be due to religious beliefs or political opinion is in our view only the secondary cause. If the Jehovah's Witnesses in Greece were being persecuted for reasons of religion one would expect that their teaching and meetings would be proscribed. This is evidently not the case and they appear to be free to worship as they please. We do not consider that the relevant law is discriminatory, because it appears to us that other religious orders with similar views as to military service (Quakers for example) and indeed persons with no religious beliefs at all but whose conscience compelled them to refuse service, would all be treated in the same way. Looked at in this way the law in question does not discriminate against those breaking it any more than does the Theft Act in this country discriminate against thieves: and the fact that the only persons so affected happen to be Jehovah's Witnesses seems to us to be no more than a matter of geographical and cultural accident."

The Tribunal, while dismissing Mr Doonetas's appeal, concluded by expressing their satisfaction that in this particular case the Secretary of State had decided in April 1976 to exercise his discretion outside the rules by allowing Mr Doonetas exceptionally to extend his stay in this country for an initial period of 12 months and permitting him to take employment.

"Persecution" is a strong word. One cannot think that in the days of the Spanish Inquisition a Protestant would have complained of persecution if he had been allowed openly to state that he was of that faith and to worship in church with others of that persuasion without fear of molestation or punishment. Those who were Roman Catholics in times of Protestant ascendancy would never, had they been subjected to no greater restrictions than the appellant, had had to hide themselves in priests' holes. In our view those laws of Mozambique which have the effect of prohibiting the appellant's proselytizing zeal do not provide a foundation for a well-founded fear on his part of being persecuted for reasons of religion.

We affirm the adjudicator's determination. We do not agree with Miss Connelly's contention that he erred in law or that the appellant is entitled to political asylum.

DISPOSITION:

Appeal dismissed.