Danian v. Secretary of State for the Home Department

DANIAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
His Honour Judge D. S. Pearl (President), Mr H. J. E. Latter and Mr C. M. G. Ockelton
9 June 1998

Asylum - Meaning of 'refugee' - Post-arrival political activity - Refugee 'sur place' - Whether post-arrival political activity carried out in bad faith precludes asylum-seeker from protection offered by United Nations Convention relating to the Status of Refugees 1951 - United Nations High Commissioner for Refugee Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, para 96

The appellant, a Nigerian national, obtained leave to enter the UK in April 1985 as a visitor and was then granted successive extensions of stay as a student. He eventually overstayed his leave and was served with a notice of intention to deport. In June 1989 he applied for asylum. The application was refused by the Secretary of State in September 1994 and a deportation order was signed and served in May 1995. The appellant's appeal against the refusal the refusal of asylum was dismissed by a special adjudicator in November 1995 and leave to appeal was refused by the Immigration Appeal Tribunal in September 1995. In July 1997 the appellant was deported from the UK but returned on the same day and made a second application for asylum. That application was also refused. The appellant appealed for a second time to a special adjudicator who found that the appellant had been involved with the Nigerian pro-democracy movement in the UK since approximately May 1995, after the refusal of his first asylum application, and that his actions would have brought him to the attention of the Nigerian authorities. The appeal was nevertheless dismissed in November 1997 on the grounds that the appellant's actions were calculated and motivated by the desire to demonstrate to the UK immigration authorities that he was known to the Nigerian authorities and that his actions in the UK were 'wholly unreasonable' and 'contrary to the spirit of the Geneva Convention'. Leave to appeal was refused by the Tribunal. The appellant obtained leave to move for judicial review in a renewed application in the Court of Appeal and subsequently the matter was remitted by consent to the Tribunal. Prior to the hearing before the Tribunal, the appellant wrote a letter stating that he intended to return to Nigeria rather than stay in detention.

Held- dismissing the appeal - an asylum-seeker who deliberately sought to undertake activities whilst in the UK in order purely to create a 'well-founded fear of persecution' could not be afforded the protection of the United Nations Convention relating to the Status of Refugees 1951 and 1967 Protocol: such a conclusion would follow regardless of whether the asylum-seeker's activities had come to the attention of the feared authorities or whether his fear of persecution was 'well-founded' Although the Convention required good faith on the part of the asylum-seeker, such a principle should be applied with caution, not zeal, on a case-by-case basis with a careful assessment of all the circumstances including the degree of bad faith, the nature of the harm feared and the degree of risk. Only in clear cases would an asylum-seeker fall outside the Convention by reason of the absence of good faith. Accordingly, as the appellant's activities were a cynical tailoring calculated at creating a false claim for refugee status. He had acted in bad faith and, as a consequence, fell outside the terms of the 1951 Convention. There was, in any event, no reason to believe either that a political opinion would be imputed to the appellant by the Nigerian authorities or that there was a reasonable degree of likelihood that he would be at risk of persecution for a 'Convention reason' on his return.

Re HB approved. R v Immigration Appeal Tribunal ex parte B and Gilgham v Immigration Appeal Tribunal considered.

Statutory provisions considered

Asylum and Immigration Appeals Act 1993 Sch 2. Para 5 (4) (c)

Asylum and Immigration Act 1996. S 1

International Treaties, Conventions and documents referred to in judgment

United Nations Convention relating to the Status of Refugees 1951 and 1967 Protocol

United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, para 96

Cases refered to in judgment

Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129, CA

R v Immigration Appeal Tribunal ex parte B [1989] Imm AR 166. QBD

International case referred to in judgment

HB, Re (Appeal No 2254/94) unreported) Refugee Status Appeals Authority, New Zealand

The appellant appeared in person.

Mr A. Mole (Home Office presenting officer) for the respondent

HHJ PEARL (PRESIDENT): The appellant in this case is a citizen of Nigeria who was born on 22 May 1951. The Secretary of State refused to grant him leave to enter the UK and refused his claim to asylum. The Secretary of State certified the asylum claim under the provisions of Sch 2, para 5 (4) (c) to the Asylum and Immigration Appeals Act 1993, as amended by s 1 of the asylum and Immigration Act 1996.

The appellant appealed and his case was heard by a special adjudicator, Mr R. Chalkley at Gravesend Hearing Centre. By a determination notified on 18 November 1997, the special adjudicator dismissed his appeal although he found 'that the Secretary of State was wrong to certify the appeal'.

The appellant sought leave to appeal to the Tribunal from the determination of Mr Chalkley. This application was refused by the Tribunal by a determination notified on 19 December 1997. There then followed judicial review proceedings, and on 12 February 1998, the Court of Appeal ordered that the matter be remitted to the Immigration Appeal Tribunal. The Court of appeal directed that leave to appeal be granted, and as a consequence of that direction the Tribunal granted leave to appeal by a determination notified on 17 April 1998.

The Tribunal directed that in view of the grounds of appeal the matter be heard by a Tribunal comprising three legal members. At the hearing before us on 11 May 1998, the Secretary of State was represented by Mr A. Mole. The appellant appeared in person, as indeed he had done before the special adjudicator. He had changed his lawyers subsequent to the Court of Appeal hearing, and his new legal advisers (Egole and Co) wrote to the Immigration Service at Terminal 4 that 'we think it... in the client's best interests to conduct his appeal himself'.

We heard the case, giving the Appellant every opportunity to present his case before us. He said that he wished to rely upon the grounds of appeal drafted by Mr Soorjoo of counsel on 26 November 1997 and Mr Leon Daniel of counsel on 29 January 1998. Mr Daniel's grounds are the more detailed and we set out here the factual background and the point of law upon which the Court of Appeal quashed the refusal of leave by the Tribunal:

'(1)The applicant is a Nigerian national who first arrived in the UK on 15 April 1985 and was granted leave to enter for one month as a visitor. He subsequently applied for and was granted successive extensions of stay as a student. The applicant eventually overstayed his leave to remain and was served with a notice of intention to deport. On 6 June 1989 the applicant applied for leave to remain in the UK as a Convention refugee. This application was subsequently refused on 26 September 1994 and a deportation order was signed against the applicant on 13 march 1995 and served on 9 May 1995. An appeal against the asylum refusal was dismissed on 20 November 1995. The applicant was deported from the UK on 4 July 1997. He subsequently returned to the UK on the same day and made a claim for asylum. This claim was eventually refused and the applicant appealed to a special adjudicator. His appeal was heard on 29 October 1997 before Mr Richard Chalkley. In a written determination dated 18 November 1997 the special adjudicator dismissed his appeal. Leave to appeal to the Tribunal was applied for on the following grounds:

"(1)In determining the appeal the special adjudicator stated that:

'I am prepared to accept the evidence of the appellant that he has been involved in pro-democracy movement in the UK... I do not believe that he became involved in such evidence [sic] until early 1995 and certainly not until after his first asylum application had been refused.'

And further:

'He is quite clearly a highly intelligent man and must have known that his actions would only cause to bring him to the attention of the Nigerian authorities.'

(2)The special adjudicator therefore having accepted that the applicant was involved with the pro-democracy movement since May 1995 and having accepted that his high profile activities would have come to the attention of the authorities rejected did considered [sic] that the applicant was not entitled to the protection of the 1951 Convention since, in his view, the applicant's actions:

'...were calculated and motivated by the desire to demonstrate to the United Kingdom Immigration Authorities that he was known to the Nigerian authorities.'

And further was:

'...wholly unreasonable. It is contrary to the spirit of the Geneva Convention...'

as a result the special adjudicator did not go on to consider whether or not the applicant would in fact be persecuted for a Convention reason at the date of the appeal contrary to Ravichandran.

(3)The special adjudicator erred in law in concluding that the applicant was not entitled to the protection of the 1951 Convention because, in his view, the applicant's conduct was unreasonable. The court of appeal left the issue of self-serving activities and unreasonable conduct open in the case of Gilgham [1995] Imm AR 129. The court reached differing views as to the consequences of self-serving activities and the relationship to the 1951 Convention and declined to decide whether or not ex parte B war correctly decided. Morritt LJ stated:

'I would find great difficulty in accepting that unreasonable conduct could debar a claimant from the status of a refugee...'

(4)The special adjudicator does not appear to have considered the Court of Appeal's decision in Gilgham and should have gone on to consider whether or not at the date of decision, against the background of the accepted facts, he would face persecution if returned to Nigeria. In the circumstances it is submitted that this case raises an important point of law requiring clarification that requires further consideration by the Tribunal."

(16)The special adjudicator erred in law concluding that the applicant's conduct in the UK for the pro-democracy movement, although giving rise to a well-founded fear of persecution, that the applicant's actions were unreasonable and not deserving of protection under the Convention. The Convention expressly states the ambit of persons who should be excluded from it's [sic] protection. This does not include persons whose actions are perceived to be unreasonable. Additionally, there is no support for such an approach in either Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129 or R v Secretary of State for the Home Department ex parte B [1989] Imm AR 166.'

This case therefore raises an important point of law, which has been considered on two occasions by the Court of Appeal in this country; namely Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129 and R v Secretary of State for the Home Department ex parte B [1989] Imm AR 166. It would seem that both these cases were identified by the Court of Appeal in the present proceedings as falling into a category of case where an asylum-seeker had involved himself in activity calculated potentially to bring himself to the attention of the authorities in the country in which he alleged to fear persecution in order to bolster his asylum claim but who had no well-founded fear of persecution. It remained open to consider whether an asylum-seeker who had similarly engaged in activity in the UK in bad faith but who none the less genuinely feared what would happen to him as a result of that activity if he were returned to the country in which he claimed to fear persecution. If this second category also falls outside the Geneva Convention then the appeal would be bound to be dismissed. However, if this second category can fall within the terms of the Convention, then it would be necessary to consider the detailed additional evidence presented to us by Mr Danian together with the documentary evidence which was before the adjudicator or which was presented to us for the first time.

The appellant claims to be a refugee sur place. Paragraph 96 of the UNHCR Handbook sets out the framework in the following way:

'A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.'

Hathaway in his seminal work The Law OF Refugee Status at p 35 writes:

'International law recongises that if while abroad an individual expressed views or engages in activities which jeopardise the possibility of safe return to her State, she may be considered a Convention refugee.'

The issue which we must consider is whether there is any requirement that the actions of an appellant need to be carried out in good faith.

Hathaway places an important restriction to the concept of refugee sur place by stating that it is legitimate to grant refugee status in this type of case only insofar as the claimant's post-departure activities may genuinely be seen to reflect his political opinion, or where there is evidence that those activities may lead to the attribution to him of a political opinion by authorities in his home State.

Grahl-Madsen in The Status of Refugees in International Law (1966), vol 1, p 242 ff makes a similar point. Thus he states clearly:

'But we may have to draw a distinction... between those who unwittingly or unwillingly have committed a politically pertinent act and those who have done it for the sole purpose of getting a pretext for claiming refugeehood. The former may claim good faith, the latter may not.'

In a New Zealand decision, Re HB (Appeal No 2254/94), the Refugee Status Appeals Authority undertook an analysis of contemporary case-law. For example, in Germany, it is found that actions undertaken outside of the country of origin for the sole purpose of creating a pretext for invoking a fear of persecution will not be considered. The trend of authority in Canada and Australia also is in favour of a good faith requirement.

In Re HB, the New Zealand authority set out four propositions. These are as follows:

'(a)First and foremost the Refugee Convention was intended to afford protection only to those whose fundamental marginalisation distinguishes them from other persons at risk of serious harm. This connotes the notion of disfranchisement or breakdown of basic membership rights in the society of the country of origin: Hathaway, The Law of Refugee Status (1991) 135. An individual who, as a stratagem, deliberately manipulates circumstances to create a real chance of persecution which did not previously exist cannot be said to belong in this category.

(b)The Refugee Convention was intended to afford protection only to the bona fide individual who is unable or unwilling to avail him or herself of the protection of the country of nationality.

(c)If there is no good faith requirement in the sur place situation, it places in the hands of the applicant for refugee status the means of unilaterally determining the grant to him or her of refugee status.

(d)By allowing the cynical manipulation of a refugee status determination procedure, the entire system of protection is brought into disrepute. While bona fide refugees are required to pass through a stringent examination of the circumstances of their case, a mala fide sur place applicant is free to engage in the most outrageous and cynical conduct, the more outrageous and cynical, the surer the prospect of success. The bona fide asylum-seeker would have little choice but to follow suit. The end result would be a system entirely lacking in integrity and indeed, entirely lacking in purpose. Asylum-seekers would be able to demand, as of right, the grant of refugee status simply because that status was sought. A person could become a refugee as a matter of his or her own choice. All that would be necessary would be to establish two propositions:

(i)I am able to cynically manipulate circumstances in New Zealand in order to create a well-founded fear of persecution in my country of origin.

(ii)I will cynically manipulate circumstances.

This the Authority cannot accept as a ground for granting refugee status for it permits a person to obtain refugee status by means of a stratagem. It is the very situation anticipated by Linn in the quotation taken from Grahl-Madsen, The Status of Refugees in international Law (1966), vol 1, 247-248 and which has been earlier cited. We intend repeating here only the English translation:

"That the decision regarding recognition of foreign refugee status can thus depend on the manifestation of will of the refugee [applicant] - which is not always based on motives that merit recognition."

See in this regard the analogous decision of Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department [1989] Imm AR 6,22 (CA).'

The New Zealand Authority summarised its conclusions as follows:

'We intend adopting and applying the three-part classification devised by Grahl-Madsen, namely:

(1)Actions undertaken out of genuine political motives.

(2)Actions committed unwittingly, or unwillingly (eg as a result of provocation), but which nevertheless may lead to persecution "for reasons of" (alleged or implied) political opinion.

(3)Actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution.

Our decision to interpret the Refugee Convention as requiring, implicitly, good faith on the part of the asylum-seeker turns on a value judgment that the Refugee Convention was intended to protect only those in genuine need of surrogate international protection and that the system must be protected from those who would seek, in a sur place situation, to deliberately manipulate circumstances merely to achieve the advantages which recognition as a refugee confers. The sooner abuses of this kind are detected and eliminated, the longer the integrity of the refugee status determination procedures and the protection afforded by the Convention will enable the bona fide asylum-seeker to escape persecution. Clearly this is the underlying assumption of the Convention.

However, the good faith principle must be applied with caution, not zeal. The precise application of Grahl-Madsen's third category must be determined on a case-by-case basis. It may be that a balancing exercise is called for and a careful assessment made of all the circumstances, including the degree of bad faith the nature of the harm feared and the degree of risk. We anticipate that only in clear cases will an asylum-seeker fall outside of the Refugee Convention by reason of an absence of good faith.'

We believe that all these principles reflect the present state of international decision-making in this area and we adopt these propositions in assessing the facts of the present case.

Mr Chalkley did not believe that any pro-democracy activities which the appellant may have been involved in prior to 1995 were such as to have brought him to the attention of the Nigerian authorities. We heard evidence from the appellant but we are drawn to the same conclusion as Mr Chalkley. He was further satisfied that the Nigerian pro-democracy campaign activities which he did become involved in from May 1995 were tailored solely with the intention of creating a false claim. Mr Chalkley found that the appellant's actions were not motivated by genuine political opinions but by a desire to enhance his claim for asylum. His actions in deliberately trying to bring himself to the attention of the Nigerian authorities by writing to the Nigerian High Commission were in the Tribunal's view a blatant and cynical attempt to manipulate circumstances to his own advantage.

In the Tribunal's view this behaviour is wholly inconsistent with the behaviour of someone who has a genuine fear of persecution. On his own account the appellant has voluntarily exposed himself to a risk of persecution. In a letter dated 21 April 1998 the appellant said that he had decided to return to Nigeria rather than remain in detention in the UK pending the outcome of his appeal. In our view this is a further indication of the fact that the appellant is not in fear of returning to Nigeria. Further in our view there is no reason to believe that the Nigerian authorities would impute to him a political opinion. They may regard him with some justification as a liar or an opportunist but in our view there is no reasonable degree of likelihood that he would be at risk of persecution for a Convention reason. Mr Chalkley said that he believed his conduct had been wholly unreasonable. We would not ourselves have used this language, bearing in mind the approach taken in Gilgham. In our view, however, the activities fell within the broad category of a 'cynical tailoring... so as to create a false claim for refugee status'. Thus, the appellant falls within that category of person who is a refugee sur place, but who has acted in bad faith. As he has acted in bad faith he falls out with the Geneva Convention. He is not a person to whom the Convention applies; this would be our view regardless of whether his activities post-1995 may have brought him to the attention of the Nigerians and regardless of whether his fear of persecution may be well founded.

Mr Mole acknowledged that in one respect Mr Chalkley's determination was defective. At p 12 he writes 'Looking at the evidence in the round and applying the lower standard of proof which I have earlier referred to'. In fact, Mr Chalkley had not referred to the standard of proof earlier in his judgment. We do not consider however that this fault is critical. We are opposed to the formulaic recitation of words for their own sake, and it is abundantly clear from the determination that Mr Chalkley applied the appropriate standard of proof of a reasonable likelihood, he refers to this as the 'lower standard', and it is clear from his determination that he has applied the standard correctly. It was in any event not a matter that exercised any of the counsel involved in this case, or indeed the Court of appeal.

The case raises an important area of law, and we of course have not had the benefit of counsel to present the case on behalf of the appellant. We have given the appellant every opportunity to present his case, which he has done with considerable skill and forensic ability. Re HB was not cited to us and it is in no sense binding upon us but it reflects the decision we had ourselves reached and as a result we have been content to adopt the wording of that case to express our own views. Further we believe that in this case there is a need to make clear our understanding of the legal position as quickly as possible, especially because as we understand it by a letter dated 21 April 1998, the appellant has decided to return to Nigeria.

The determination of Mr Chalkley is upheld, and we dismiss this appeal.

Appeal dismissed.

Solicitors: Egole & Co