R v. Secretary of State for the Home Department, Ex parte Zibirila-Alassini
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 11 March 1991 |
| Citation / Document Symbol | [1991] Imm AR 367 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Zibirila-Alassini, [1991] Imm AR 367, United Kingdom: High Court (England and Wales), 11 March 1991, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b66c30.html [accessed 29 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. |
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ZIBIRILA-ALASSINI
Queen's Bench Division
[1991] Imm AR 367
Hearing Date: 11 March 1991
11 March 1991
Index Terms:
Political asylum -- applicant claimed he was likely to be selected as sacrificial victim -- Secretary of State had accepted that applicant had a genuine fear of returning to home country but concluded not for a Convention reason -- late evidence not before Secretary of State suggested that selection of applicant might have been occasioned by his religious beliefs -- whether Secretary of State's decision open to challenge on basis of late evidence. HC 251 para 75: United Nations Convention relating to the status of Refugees (1951) and Protocol (1967), art 1(A)2.
Judicial review -- assertion that to return applicant to country where he had a genuine fear of inhuman treatment was breach of European Convention on Human Rights -- argument never put to Secretary of State -- whether therefore a ground for judicial review. European Convention on Human Rights art 3.
Held:
Ex parte application for leave to move for judicial review of Secretary of State's refusal to grant political asylum. The applicant was a citizen of Togo who asserted that if he returned there he would be selected as a sacrificial victim in the "old religion". The Secretary of State appeared to have accepted that the applicant had a genuine fear of returning to Togo, but concluded that it was not for a Convention reason. Counsel produced fresh evidence, which had not been before the Secretary of State, to suggest that the selection of the appellant for sacrifice was related to his being a Muslim. Counsel also argued that to return the applicant to Togo, his fear being genuine was, in the circumstances, a breach of the European Convention on Human Rights: that argument had not been put to the Secretary of State. Held: 1. On the evidence before him, the decision of the Secretary of State could not be challenged. 2. In the light of the fresh evidence, associating the selection of the applicant with his own religious beliefs, the Secretary of State might wish to review the case, but that was not a matter for the court. 3. The argument based on the European Convention on Human Rights had never been put to the Secretary of State: it was not open to the court to say that the Secretary of State's decison should be challenged on the basis that consideration was not given to an argument which was not advanced before him.Cases referred to in the Judgment:
Soehring v United Kingdom [1988] 11 EHRR 439.Counsel:
R Scannell for the applicant; The respondent was not represented PANEL: Rose JJudgment One:
ROSE J: This is a renewed application for leave to move for certiorari in relation to a decision of the Secretary of State on 14 November 1990. The letter from the Home Office on that day was in these terms: "It is accepted that Mr Zibirila may well have genuine fears of return to Togo but we are not persuaded that he has demonstrated a well-founded fear of persecution for a reason as defined in the 1951 United Nations Convention." A Convention reason is, of course, one of race, religion, nationality or political opinions giving rise to a reasonable degree of likelihood that he will be persecuted. On any view, this is a very unusual case. The applicant fears that he will be a victim of ritual sacrifice if he returns to Togo. He is a Muslim. He does not subscribe to the older religion of his homeland which worships "the Throne" and which gives rise, from time to time, to ritualistic slaughter. The question for me, as it was before Pill J who considered the papers only and refused leave, is whether the Secretary of State's decision is one which is arguably open to challenge. Mr Scannell puts the matter essentially on two grounds. The first is in ground 10 of the grounds, namely, that the applicant's fear is on religious and/or political grounds because of the circumstances to which I have referred. Secondly, he puts it on ground 13 in the written grounds, namely, that the decision to remove the applicant when his fear is accepted as genuine is a breach of article 3 of the European Convention on Human Rights. He relies on the well-known Soehring case in the European Court of Human Rights. So far as the second of those submissions is concerned, it is accepted by Mr Scannell that that was not a matter which was canvassed before the Secretary of State either in the letter from the applicant's solicitor dated 14 August 1990, which is before the court, or in her earlier letter or otherwise. Whatever may be the merits of those arguments based on article 3, it does not seem to me that it is open to me to say that the Secretary of State's decision should be challenged on the basis that consideration was not given to an argument which was not advanced before him. Turning to the principal submission made by Mr Scannell, he invites my attention to a number of passages in the material which was before the Secretary of State. There is at page 37 of the bundle a record of the minded to refuse interview where the applicant is recorded as saying: "I did not follow them in their worship because of the ritualistic nature of it. I was singled out because of this." There is a letter from the applicant's solicitors of 14 August 1990 which contains the following passage: "My client instructs me that on his return home he worked on the family farm for only a few weeks before he was forced to flee. My client and his mother are Muslims. Although the village is nominally Muslim my client instructs me that the majority of the village do not pray but follow the old religion and worship the 'Throne'. This worship necessitates ritual human sacrifice." There is then a description of the way in which that was carried out. There is, and was before the Secretary of State, a report from Dr Bracken which contains the following passage: ". . . Mr Zibirila-Alassini said that he and his immediate family do not believe in ancestor worship and are Muslims. Because of this, his family has been singled out by the local religious people and some members of his family have already been killed in sacrifice to the throne." That was the limit of the material before the Secretary of State on this aspect. There is before me, exhibited to an affidavit produced to the court today and sworn by the applicant's solicitor, a report dated 13 December 1990 from Susan Druker-Brown of the Department of Social Anthropology at the University of Cambridge. That, in paragraph 4 on page 3, contains the following: "The fact that the victims have been Muslims may well also be relevant. His Muslim status suggests that your client might belong to a branch of the family which is of slave origin. Slaves and persons of slave origin are particularly likely to become converted to Islam. Slaves also were often adopted as members of lineages to which they were attached, and their descendants were then particularly vulnerable as potential sacrificial victims." As I say, that report was not before the Secretary of State. It seems to me that the material to which Mr Scannell invites my attention clearly shows that the applicant's religious views differ from those of others who perform, or who are said to perform, ritualistic slaughter. What, as it seems to me, is lacking from that information, save in the report from Dr Bracken to which I have referred which contains the word "because", is an indication that it is the applicant's religious beliefs or, indeed, his political beliefs, if they are so to be regarded, which is the reason and cause for his selection, if it is indeed the case that he has been selected, as a candidate for ritualistic slaughter. That being so, it does not seem to me that the Secretary of State's decision is open to challenge on this ground. Accordingly, this application must be dismissed. But I add this. Having regard to the material which is before me, in particular the report from Dr Drucker-Brown to which I have referred, and the argument not advanced before the Secretary of State arising from article 3, it may well be that the Secretary of State will wish to look again at this matter. At the lowest it may well be, having regard to the Secretary of State's conclusion that the applicant may well have genuine fears on returning to Togo, that the Secretary of State may wish to consider whether, even outside the rules, this is a case for exceptional treatment. But that is a matter for him and not for me. For the reasons I have given it does not seem to me that the decision on the material before the Secretary of State is open to challenge and accordingly this application is dismissed.DISPOSITION:
Application dismissed.SOLICITORS:
Joint Council for the Welfare of Immigrants.Copyright notice: Crown Copyright
