M v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	24 October 1995
Citation / Document Symbol	[1996] 1 All ER 870, [1996] 1 WLR 507
Cite as	M v. Secretary of State for the Home Department, [1996] 1 All ER 870, [1996] 1 WLR 507, United Kingdom: Court of Appeal (England and Wales), 24 October 1995, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6b820.html [accessed 21 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

M v Secretary of State for the Home Department

COURT OF APPEAL, CIVIL DIVISION

[1996] 1 All ER 870, [1996] 1 WLR 507

Hearing Date: 21, 26 September, 24 October 1995

24 October 1995

Index Terms:

Immigration - Leave to enter - Refugee - Asylum - Fear of persecution held by applicant for refugee status - Applicant making fraudulent and baseless application for asylum - Home Secretary refusing application - Appeal - Applicant claiming risk of persecution as a failed asylum seeker - Whether fraudulent application an automatic barrier to grant of asylum - Convention relating to the Status of Refugees, art 1A(2).

Held:

The appellant was a citizen of Zaire who applied for asylum in the United Kingdom on the grounds that he feared persecution in Zaire as a result of the loss of a secret document which had been attributed to him. He gave a number of inconsistent accounts of his arrest, imprisonment and escape from Zaire during various interviews, and his application was subsequently refused by the Home Secretary. On M's appeal, the special adjudicator found that M was 'totally devoid of credibility', that he had not established to the required standard that he had ever been arrested and detained in Zaire in connection with any missing secret letter, so that he was not likely to be persecuted in connection with any such loss, and that he had not expressed fear for any other reason which would bring him within the protection of the 1951 Geneva Convention relating to the Status of Refugees. M appealed to the Immigration Appeal Tribunal, contending that he was at risk of persecution if he returned to Zaire because he had made an asylum claim, but the tribunal dismissed the appeal on the basis that (i) a person who put forward a fraudulent and baseless claim for asylum could not bring himself within the convention and (ii) in any event, the evidence was insufficient to show that there was a reasonable likelihood that the appellant would be persecuted, as required by the convention. The issue on M's subsequent appeal was whether a person whose claim for asylum has been found to be fraudulent could nevertheless benefit from the terms of the convention.

Held - The making of a false claim for asylum could not act as a total barrier to reconsideration of an applicant's status as a potential refugee, since it was possible that, by the very act of claiming asylum, an applicant could put himself at risk of persecution. However, it was clear that in a fraudulent application based on false facts in which the applicant's story was disbelieved, his credibility would be called into question, and even if he could establish that he had not set up the application solely in order to create a danger of persecution, he would be likely to find it extremely difficult to demonstrate to the required standard a genuine subjective fear of persecution coming within art 1A(2)a of the 1951 convention. It followed that, in so far as the tribunal in the instant case found as a matter of principle that any person who put forward a fraudulent and baseless claim could not thereafter bring himself within the convention, it was in error; it had nevertheless proceeded to assess the merits of the appellant's case, and had reached an unassailable decision on the facts, in view of the lack of evidence as to M's subjective fear of persecution and the objective likelihood that he would be persecuted on his return to Zaire. The appeal would accordingly be dismissed.

R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193 considered.

Notes:

For control of immigration with respect to refugees, see 4(2) Halsbury's Laws (4th edn reissue) para 82.

For refugees and stateless persons under the 1951 Geneva Convention on Refugees, see 18 Halsbury's Laws (4th edn) paras 1717-1722.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal, ex p Senga (9 March 1994, unreported), QBD. R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958, [1988] 2 WLR 92, HL.

Cases cited in the Judgment:

Ahmad v Secretary of State for the Home Dept [1990] Imm AR 61, CA. Asante v Secretary of State for the Home Dept [1991] Imm AR 78, IAT. Bolton Metropolitan DC v Secretary of State for the Environment (24 May 1995, unreported), HL.

Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129, CA. Kwasi Boayke-Yiadom v Secretary of State for the Home Dept (12 December 1994, unreported), IAT.

Mendis v Immigration Appeal Tribunal [1989] Imm AR 6, CA. R v Immigration Appeal Tribunal, ex p B [1989] Imm AR 166. R v Secretary of State for the Home Dept, ex p Binbasi [1989] Imm AR 595. R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7. R v Immigration Appeal Tribunal, ex p Ntando [1994] Imm AR 511. Yavari v Secretary of State for the Home Dept [1987] Imm AR 138, IAT.

Introduction:

Appeal

By notice dated 5 May 1995 M appealed with leave pursuant to s 9 of the Asylum and Immigration Appeals Act 1993 from the decision of the Immigration Appeal Tribunal on 22 March 1995 dismissing his appeal from the decision of Mr I Khan, sitting as a special adjudicator under s 8 of the 1993 Act on 17 January 1995, whereby he dismissed his appeal from the decision of the Secretary of State for the Home Department set out in a letter dated 2 August 1994 refusing his request for asylum in the United Kingdom. The appeal was on the point of law whether a person who made a fraudulent claim for asylum was thereby deprived of the protection of the Convention Relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171). The facts are set out in the judgment of Butler-Sloss LJ.

Counsel:

Andrew Nicol QC and John Walsh for the appellant; Robin Tam for the Secretary of State.

Judgment-READ:

Cur adv vult 24 October 1995. The following judgments were delivered.

PANEL: BUTLER-SLOSS, MILLETT AND WARD LJJ

Judgment One:

BUTLER-SLOSS LJ. The appellant is a citizen of Zaire and has no right of abode in the United Kingdom. He came to the United Kingdom from France on 8 October 1993 and applied for asylum. His application was refused by the Secretary of State and, after absconding, he was removed to France on 20 May 1994, but was returned to this country by the French authorities. His second application for asylum was refused on 2 August 1994. He appealed to the special adjudicator, who dismissed his appeal in a determination dated 17 January 1995. He appealed, with leave, to the Immigration Appeal Tribunal who dismissed his appeal on 22 March 1995, but gave him leave to appeal to this court on a point of law.

The appellant's account, in his first interview, of his reasons for seeking asylum was based upon his employment as a messenger in the Town Hall in Kinshasa and the loss of a top-secret document which was attributed to him. He gave an account of imprisonment and ill-treatment after which his family arranged his release and secret departure from Zaire. In later interviews he also claimed to be working for two political parties, and gave a different account of the circumstances leading to his arrest and his imprisonment and escape from Zaire which was entirely at variance with his first account. The special adjudicator heard evidence from the appellant and found that he was 'totally devoid of any credibility', and that he could not accept 'any part of his evidence unless there is some corroboration of it'. He then found:

'I am unable to accept to the required standard that the appellant was ever arrested and detained in Zaire in connection with any missing secret letter. I therefore do not find that there is any reasonable likelihood that he will be persecuted in connection with the letter. The appellant has not expressed any fear for any other convention reason.'The special adjudicator was asked to consider the risk to the appellant of having made an asylum application which failed and then being returned to Zaire as a deportee. Having considered an earlier Zairean decision made by him, and a further report as to the approach of the Zairean authorities to failed asylum seekers which he accepted, the special adjudicator concluded that, having decided that the appellant never was in prison or arrested in connection with a secret letter, he was not satisfied that the appellant would be at risk of arrest on return to Zaire.

The tribunal granted leave to appeal, and on the appeal it was asked to consider the question whether there would be a reasonable likelihood of the appellant being persecuted if he were returned to Zaire because he had made an asylum claim or because he had been deported from the United Kingdom. The tribunal pointed out that the appellant was a fraud and knew it and did not come to the United Kingdom because of any fear of persecution.

The tribunal held:

'A person who puts forward a fraudulent and baseless claim for asylum, as this appellant was found to have done, is not, in our view, able to bring himself within the convention.'I turn now to the Convention Relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171), which, by s 2 of the Asylum and Immigration Appeals Act 1993, is given primacy over the practice laid down in the immigration rules. Article 1A, para 2 of the convention sets out the relevant requirements for defining a refugee, as one who --

'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . .'The Immigration Appeals (Procedure) Rules 1984, SI 1984/2041, as amended by the 1993 Statement of Changes in Immigration Rules (HC Paper (1993) No 725) in accordance with the definition in the convention, by r 180B provide for the granting of asylum. Rule 180G sets out matters to which the Secretary of State may have regard which may damage the credibility of the applicant, which include, at r 180G(b), 'that the applicant has made false representations, either orally or in writing'. The adverse view of this appellant's credibility taken by the Secretary of State was indorsed both by the special adjudicator and by the tribunal.

The appeal with leave to this court is provided by s 9 of the 1993 Act 'on any question of law material to that determination [of the tribunal]', and is based upon the finding that the appellant gave an entirely false story to support his application for asylum, and never was in fear of persecution on the grounds raised by him. The issue which is raised is whether, despite a bogus claim, the appellant nevertheless comes within the requirements of the convention on the basis of the making of the application for asylum. Unattractive though such an argument is and was recognised to be by the tribunal, it is asserted by Mr Nicol QC in his submissions to us that, by making the application, the appellant has proved to the requisite standard of proof (see R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958), that he would be at risk of persecution if he were returned to Zaire as a failed asylum seeker.

The tribunal in granting leave formulated the issue as follows:

'. . . the extent to which, if at all, a person whose claim for asylum has been found to be fraudulent, can nevertheless benefit from the terms of the convention in the light of the observations of Laws J in Senga.'In R v Immigration Appeal Tribunal, ex p Senga (9 March 1994, unreported) the parties were agreed that the decision of the tribunal ought to be quashed. One of the points of the case, according to the judgment of Laws J, was whether on the facts of that case, the very fact of making the asylum application might itself create the possibility of persecution by the authorities for a convention reason. In its determination the tribunal in Senga said:

'With respect to the chairman it seems to me to be erroneous as a matter of law to hold that there can never be a case in which, by the very act of claiming asylum, an applicant puts himself at risk of persecution. Whether and in what circumstances such a state of affairs would arise is, of course, something else altogether. But the chairman has held that in principle no such case can arise. In that he was in error and the decision falls to be quashed.'Expressed as a matter of law, I respectfully agree with Laws J that the proposition is not sustainable.

Mr Tam, for the Secretary of State, has sought to draw a distinction of principle between the making of a claim which the applicant cannot prove to the required standard and the making of a fraudulent claim which is discovered to be false. In the latter case, he has argued, unlike the former, there is a question of principle that an applicant ought not, as a matter of public policy, to be able to rely upon the fact of a false claim to prove his claim to asylum.

In my view Mr Tam's submission is creating an unnecessarily complicated and probably unworkable distinction between highly theoretical possibilities. Mr Nicol accepted that in practice to rely upon the making of the application rather than its contents would be exceptional, and I would consider it to be in any event an extremely rare case, but hypothetically possible. If the applicant made a bogus application for asylum in order to create a climate in which he might then assert that by the making of the application he had made himself at risk in being returned to his homeland, his application would be likely to be treated as self-serving and rejected on that ground. In a fraudulent application based on false facts in which the applicant's story is disbelieved, his credibility would be called into question and even if he can establish he did not set up the application for asylum to create a danger of persecution, he would be likely to find it extremely difficult to demonstrate to the required standard a genuine subjective fear coming within the definition of the convention (see r 180G of the 1984 rules).

In the present appeal, the suggestion of fear stemming from the making of the application itself was raised for the first time on appeal by the appellant's lawyers and suffers from all the defects of a late variation to the appellant's admittedly bogus case.

I would therefore answer the tribunal's question as follows. I agree with the issue of principle as set out by Laws J in Senga and with the reservations in its implementation implicit in the passage which I have already set out. An unsuccessful claim for asylum may be seen within a spectrum ranging from a truthful but over-optimistic account through various degrees of inaccuracy to a totally false and fraudulent story. The making of a false claim cannot act as a total barrier to reconsideration of the applicant's status as a possible refugee, but the further along the spectrum of falsehood and bogus claims, the infinitely more difficult it would be to prove to the requisite standard the requirements of the convention. It is important not to underestimate the difficulties for an applicant after exposure of his bogus claim for asylum. Neither the Secretary of State nor the appellate tribunals are expected to suspend disbelief in the assessment of asylum applications.

Turning to the present appeal, in so far as the tribunal found as a matter of principle that any person who put forward a fraudulent and baseless claim could not thereafter bring himself within the convention, it was, as a matter of principle, in error. But the matter does not end there since the tribunal went on to consider the merits of the case, to which I now turn.

The first element of the convention requirements is the subjective fear of the applicant. Mr Nicol raised the question as to the extent to which the subjective fear has to coincide with the ground put forward as the basis for that fear. He suggested that there need be no coincidence between subjective fear and the second limb of the definition. It seems to me that the issue is simpler than the propositions advanced to us. If an applicant has told a false story and attributed his fear to bogus grounds, he cannot come within the convention for those reasons. If, however, he genuinely fears return to his homeland then it will be necessary for him to identify the reasons for that fear and that his genuine fear, stripped of the bogus elements, is well founded for a convention reason. To take an extreme example, an applicant who was afraid to go home because he owed great sums of money and was in danger of injury or death from his creditors, would not have a well-founded fear of persecution for convention reasons.

Mr Nicol has criticised the tribunal for failing to consider the element of subjective fear to be attributed to his client. Mr Tam for the Secretary of State, in his respondent's notice, raised the issue that there was no evidence before the special adjudicator or before the tribunal that the appellant actually had the subjective fear that he would be persecuted if he were returned to Zaire because of his unsuccessful application for asylum.

It is correct that the subjective element of the convention was not specifically dealt with by the tribunal, but the submissions before it revolved round the second limb of the convention, and the matter in my view had been conclusively dealt with by the special adjudicator. He found that the fear expressed by the appellant related to grounds which were found to be bogus and did not exist. No further evidence on the issue of subjective fear was provided to the tribunal. Mr Nicol has nonetheless attempted to convince us that there was evidence, which the tribunal overlooked, upon which this court should rely to demonstrate a genuine subjective fear by this appellant of return to Zaire. He was, however, trying to make bricks without straw and an examination of the evidence contained in the interviews has not begun to convince me that the special adjudicator was wrong to find that the appellant had not expressed a fear for any other convention reason. Consequently the tribunal had no need to investigate the first issue any further, nor was it asked to do so. There is no evidence of fear, and the decision of the tribunal cannot be faulted on that ground. The first requirement of the appellant's case cannot be proved.

On the second limb of the convention, the tribunal considered with care the evidence provided to it of treatment which might be meted out to the appellant upon his return to Zaire. It referred in the decision to a report commissioned by the Dutch government, a press release from a court in The Hague and a letter from the United Nations High Commissioner for Refugees (UNHCR) about the treatment accorded to those returning to Zaire. It said:

'. . . we would think one way or another it is more likely than not that the appellant would be identified as a returned asylum seeker or deportee. However, both the report commissioned by the Dutch government and the UNHCR letter suggest that those who have been found to have been [sic] made asylum applications without foundation and those who have no record of imprisonment in Zaire are not likely to be at risk of serious harassment or persecution.'Mr Nicol sought to convince us that the possibility of initial questioning of the appellant and of bribing officials to effect a release from detention came within the second part of the convention. The tribunal concluded that the appellant, if he was a person who came within the convention, had not shown that there was a reasonable likelihood that he would be persecuted, and on the evidence before the tribunal I can see no reason to disagree with that conclusion. It follows therefore that, although the tribunal was wrong in its general proposition of law, it nevertheless assessed the merits of this appellant's case and came to a decision on the facts which is unassailable. I would dismiss the appeal.

Judgment Two:

MILLETT LJ. I have had the advantage of reading in draft the judgments of Butler-Sloss and Ward LJJ. I agree with them and add a few words of my own in relation to the question of law which was referred to us for decision, only because of the general importance of the issues which the question raises. The question is whether the tribunal was correct in law in directing itself that 'a person who puts forward a fraudulent and baseless claim for asylum . . . is not . . . able to bring himself within the convention' (ie the Convention Relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171)).

I agree with the conclusion of Butler-Sloss and Ward LJJ that that proposition is untenable. A person who puts forward a fraudulent and baseless claim for asylum may be guilty of an attempt to pervert the course of justice and, in theory at least, at risk not only of having his claim dismissed but of finding himself the subject of criminal proceedings. But he is not thereby deprived of the protection of the convention. Article 33 of the convention prohibits any contracting state from expelling or returning a refugee 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' (a convention reason). A 'refugee' is defined by art 1 of the convention as a person who 'owing to well-founded fear of being persecuted [for a convention reason] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'. Express exceptions are provided for in the convention itself; they do not include the case where the applicant for asylum has made a previous claim which has been found to be fraudulent and baseless. If, therefore, despite having made such a claim and having had it rejected he can nevertheless at any time thereafter and on whatever basis satisfy the authorities that he has a well-founded fear of persecution for a convention reason if he is returned to the country of his nationality, it would be a breach of the United Kingdom's international obligations under the convention to return him to face possible death or loss of freedom.

The tribunal considered that the applicant was guilty of 'an abuse of the system' and may well have been unconsciously influenced by the reasoning of an earlier tribunal in propounding a similar doctrine in R v Immigration Appeal Tribunal, ex p Senga (9 March 1994, unreported). There, the chairman said:

'It cannot be right that, an applicant's case failing on the merits, the applicant should be granted asylum because, it is said, he will be at risk through the act of claiming asylum; in that way all applicants would be granted asylum.'Concern may reasonably be felt at the prospect that every asylum seeker could have a second bite of the cherry after his original claim had been dismissed by claiming to have a well-founded fear of facing persecution for having made the claim.

The solution, however, does not lie in propounding some broad principle of abuse of the system or attempt to pervert the course of justice in order to justify a breach of the United Kingdom's international obligations, but in bearing in mind the cardinal principle that it is for the applicant to satisfy the Secretary of State that he has a well-founded fear of persecution for a convention reason. Whether he can do so or not will largely turn on his credibility, and an applicant who has put forward a fraudulent and baseless claim for asylum is unlikely to have much credibility left. The mere fact that he made such a claim will be a convincing reason for concluding that he had no genuine claim at the time he made his false one; and the question will then turn on his ability to satisfy the Secretary of State that he had a well-founded fear that the mere fact that he made the claim or the nature of the evidence which he gave to support it would expose him to a risk of persecution for a convention reason.

His difficulties of doing so should not be underestimated. He will have to explain why he voluntarily exposed himself to the risk of persecution where none previously existed by making a false claim which was liable to be exposed. It will be open to the Secretary of State to conclude that the mere fact that he voluntarily took the risk of his claim failing showed that he did not possess a genuine fear of persecution if it did. Even if he does satisfy the Secretary of State that he has a genuine fear of persecution for having made a fraudulent application which failed, it will not be easy for him to satisfy the Secretary of State that this is fear of persecution for a convention reason. Failed asylum seekers are not a social or political group. Nor are liars. Such persons do not necessarily hold any particular political opinion. Large numbers of persons in Third World countries seek admission to the United Kingdom because of a desire to improve their conditions of life and they falsely claim asylum because this gives them a means of admission. If they are persecuted on their return this is not persecution for a convention reason, whether the object of the persecution is to deter others from seeking admission to the United Kingdom or to deter them from lying or making derogatory remarks about their own country or otherwise acting in a way which brings it into disrepute. It is persecution for conduct which is actuated by a wish to enter the United Kingdom and not by the holding of any political opinion. If, on the other hand, the applicant claims to have a well-founded fear of persecution because of the nature of the evidence he gave to support his false claim, he will have to satisfy the Secretary of State that there is a real risk that the evidence will come to the attention of the authorities, and that he is likely to be ill-treated in consequence because of the risk that his claims to have been engaged in political activities which were disbelieved by the tribunal in this country will nevertheless be believed by the authorities in his own.

Accordingly, I do not believe that the rejection of any such proposition of law as that enunciated by the tribunal in the present case is likely to lead to a significant number of successful albeit unmeritorious candidates for asylum. For completeness, however, I should make it clear that it is not the policy of the Secretary of State to expel or return to his country of origin a person who can satisfy him that there are substantial reasons for believing that he would be in danger of torture, loss of life or inhuman or degrading treatment, even though not for a convention reason. To do so would be in breach of the United Kingdom's international obligations under arts 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) and art 3 of the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984; TS 107 (1991); Cm 1775). The Secretary of State has informed Parliament that a person who is not recognised as a refugee entitled to asylum will nevertheless be considered for the grant of exceptional leave to remain in the United Kingdom if there are compelling humanitarian reasons for not returning him to his country of origin. Such matters are not, however, fit to be raised before the adjudication officer or the tribunal at the hearing of the asylum seeker's appeal.

I agree that the appeal should be dismissed.

Judgment Three:

WARD LJ. When this matter was considered by the adjudicator, he correctly directed himself that the appropriate question in this case was 'whether the appellant has satisfied me that he has a well-founded fear of persecution for a convention reason were he to return to Zaire'. It seems to me he had both limbs of R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958 well in mind, even if the major part of his judgment concentrated on the objective element. His findings were as follows.

(1) As to the subjective element: 'I found him to be totally devoid of any credibility.' His evidence which, if he was to succeed, must have included evidence of his being fearful of return to Zaire for the reasons he gave (the stolen letter, prison, escape, etc) was disbelieved. It did not end there. The adjudicator made the further crucial finding: 'The appellant has not expressed any fear for any other convention reason.' The consequence of that finding is this: if being returned as a failed asylum seeker is a convention reason because such a person is at risk of persecution for reasons of being, as was submitted, a member of a particular social group (failed asylum seekers), or more likely, for the hostile political opinions likely to be ascribed to him by virtue of the making of his claim for asylum, he did not claim that 'owing to such fear' he was again 'unwilling to avail himself of the protection of that country'. I have added the emphasis to those words in art 1 to explain my opinion that to come within art 1A, the fear of persecution must be for a well-founded convention reason and such fear, ie the same well-founded convention fear, subjectively held, must induce the unwillingness to return. Having found on the evidence, or rather on the lack of evidence, that he was not in fear for a convention reason, the adjudicator rightly concluded he was not a refugee.

(2) As to the objective element, the adjudicator found:

'I now consider, having seen this report, that I had perhaps gone too far in [a previous Zairean case] and the right criterion to apply is on the basis of this report. Having concluded that I do not accept that the appellant was in prison, or that he was arrested in connection with the letter, I am not satisfied to the requisite standard that the appellant would be at risk of being arrested when he returned to Zaire.'That shut the appellant out on the alternative way the objective element was presented to him.

Leave was granted to appeal to the Immigration Appeal Tribunal. The tribunal observed:

'It is difficult to phrase a more adverse finding on credibility [than "to be totally devoid of any credibility"]. Not surprisingly, therefore, on appeal no substantial grounds were submitted going to the merits of the case as put forward to the Secretary of State or the adjudicator. The grounds of appeal related essentially to what it is contended will happen to the appellant if he be returned to Zaire as the Secretary of State intends.'The appeal tribunal then continued:

'It seemed to us therefore that two questions arose in this case. First, was the appellant a person who could rely on an application based solely on what might occur if he were returned to Zaire? Second, on the evidence, would there be a reasonable likelihood of his being persecuted if he were returned to Zaire, because he claimed asylum in the United Kingdom or because he had been deported from the United Kingdom?'Having taken that view of the case, the tribunal --

'put these two issues to Mr Cox [counsel for the appellant] inviting him to address us on both; he chose, however, to confine his submission to the second issue.'Despite counsel's reticence, the appeal tribunal proceeded to address the first point. It noted:

'In the light of the adjudicator's findings on credibility the appellant was never a genuine asylum seeker. Whatever impelled him to come to the United Kingdom -- economic incentives or some other personal motive -- he did not come because of any fear of persecution. Because of the story he fabricated, he must have known he had no basis in truth for a claim for asylum. He was a fraud and knew it.'The appeal tribunal could well have gone further and referred to the consequences of the adjudicator's finding on credibility, namely that not only did he not hold the fear he professed, but also that he did not have any fear for any other convention reason. It continued:

'It would seem to us extraordinary if in those circumstances, his completely fraudulent claim having been refused, he could then secure asylum on the basis of what might occur if he returned to Zaire.'That is a perfectly proper comment on the facts, but the tribunal characterised it in this way: 'That seems to us to be an abuse of the system'. I am not sure that it is helpful to analyse this part of the case as 'an abuse of the system.' It may well be appropriate robustly so to uphold the administration of justice as to give short shrift to the fraudulent claim and to deny the fraudster relief; but keen as I am to support that very important pillar of public interest, I am dubious whether it can outweigh the importance of honouring international obligations, especially when they are expressly enjoined to have primacy. Having moved from a particular consideration of this appellant's total lack of credibility to the more general pronouncement on abuse of process, the leap from the particular to the general is completed by this assertion:

'A person who puts forward a fraudulent and baseless claim for asylum, as this appellant was found to have done, is not, in our view, able to bring himself within the convention.'That must be taken as being a direction of law. As such it is wrong in the same way and for the same reasons as were expressed by Laws J in Senga. It is far too wide a proposition. It also purports to enunciate a test which is so imprecise as to become unworkable. Where is the line to be drawn between the little white lie -- or any greater gilding of the lily -- and 'a fraudulent and baseless claim'? Such a test deflects the attention away from the two crucial questions of Sivakumaran which are the foundation of this jurisprudence. Had the appeal tribunal properly directed itself to the subjective element, then the only conclusion which could be drawn from the evidence or, more precisely, from the lack of any evidence going to the point, was that the applicant had failed to show, in the language of para 61 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979) on which the appeal tribunal relied, that 'his motives for leaving or remaining outside the country are related to the reasons enumerated in Article 1A (2) of the 1951 Convention' (my emphasis). If the appeal tribunal had reminded itself that there was no appeal against the adjudicator's findings in this respect and that no other evidence had been adduced before them relating to the subjective element, then the appeal tribunal properly directing itself could have concluded only that this appellant had no fear of persecution for a convention reason. His claim for asylum failed for his failure to establish that he was unwilling to return owing to a convention fear. That should have been the end of the matter.

Instead the tribunal went on to consider the second question. The tribunal concluded after full consideration:

'However, both the report commissioned by the Dutch government and the UNHCR letter suggest that those who have been found to have been [sic] made asylum applications without foundation and those who have no record of imprisonment in Zaire are not likely to be at risk of serious harassment or prosecution.Thus, after reviewing all the evidence, we conclude that applying the lower standard of proof as set out in R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958 if the appellant were returned to Zaire, and if he is a person who would fall within the convention in these circumstances, he has not shown that there is a reasonable likelihood that he will be persecuted.'

That is a conclusion to which the tribunal was fully entitled to come on a review of all the evidence that was presented to it. As appeals to this court lie only on matters of law, it cannot in my judgment possibly be established that the tribunal's conclusion was perverse, or that it was so wrong that this court should interfere.

I agree, therefore, that the appeal should be dismissed.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Hereward & Foster; Treasury Solicitor