El-Tanoukhi 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 September 1992
Citation / Document Symbol	[1993] Imm AR 71
Cite as	El-Tanoukhi v. Secretary of State for the Home Department, [1993] Imm AR 71, United Kingdom: Court of Appeal (England and Wales), 24 September 1992, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b631c.html [accessed 27 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.

EL-TANOUKHI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 71

Hearing Date: 24 September 1992

24 September 1992

Index Terms:

Political asylum -- application by citizen of the Lebanon -- fear of persecution in his home area of the Lebanon -- Secretary of State concluded he could safely return to another part of the Lebanon -- application for asylum refused -- whether approach adopted by the Secretary of State contrary to the Convention -- whether the terms "country" and "territories" in the Convention were concepts amenable to division so as to justify the Secretary of State's approach. HC 388 para 75: United Nations Convention relating to the status of refugees 1951 (Protocol 1967) arts 1A(2), 33: Handbook on procedures and criteria for determining refugee status para 91.

Held:

Renewed application for leave to move for judicial review refused by Laws J. The applicant was a citizen of the Lebanon: he came from a part of the country under Israeli control: he asserted that if obliged to return there he would be required to join the Israeli forces: he would then be under threat from Muslim groups.

The Secretary of State refused the application. He did not accept that the events which had occurred in the past gave grounds for granting the applicant political asylum. He also concluded that the applicant could return safely to another part of the Lebanon.

Counsel argued, inter alia, that the Secretary of State had erred in concluding that even if the applicant could return safely to another part of the Lebanon, it followed he could not successfully claim asylum. Contrary to the judgments in ex parte Yurekli and ex parte Gunes, the terms "country" and "territories" in the Convention referred to geographical entities which could not be divided, as the Secretary of State had divided them, in coming to his decision.

Held

1. The Secretary of State had not erred in his approach.

2. His approach was supported by the terms of paragraph 91 of the Handbook on procedures and criteria for determining refugee status. The terms "country" and "territories" were not indivisible concepts.

3. The cases of Yurekli and Gunes were correctly decided: a person might be refused political asylum if there were a part of his home country to which he could safely return.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Yurekli [1990] Imm AR 334: [1991] Imm AR 153.

R v Secretary of State for the Home Department ex parte Gunes [1991] Imm AR 278. R v Secretary of State for the Home Department ex parte Imad El-Tanoukhi (unreported, QBD, 22 September 1992).

Counsel:

Miss J Pasiuk for the applicant; R Jay for the respondent

PANEL: Lloyd, Stuart-Smith, Beldam LJJ

Judgment One:

LLOYD LJ: This is a renewed application for leave to apply for judicial review of a decision of the Home Secretary to refuse asylum in the case of Mr Imad Ali El-Tanoukhi. The applicant is a Lebanese national. He comes from the southern part of Lebanon, in an area which is currently occupied by Israeli defence forces. He arrived in this country by air on 18 April 1992. He was granted temporary admission. He was interviewed on 28 April. The ground on which he then claimed asylum was that he was liable to be compelled to join the Israeli defence forces if he was returned to the Lebanon. In a letter dated June 1992 the Home Secretary informed the applicant that he was minded to refuse his asylum application. The Home Secretary had some doubts about the applicant's truthfulness, but in any event he did not regard the ground put forward, namely, the applicant's fear of being compelled to join the Israeli forces, as a good reason within the Refugee Convention. The letter concluded:

"If you consider that it is unreasonable to expect you to return to that small area of Lebanon occupied by the Israelis, you should return to another part of Lebanon".

That letter was handed over to the applicant in the usual way at a further interview on 2 July. We have the manuscript notes of that interview. It appears from those notes that the applicant put forward further reasons for his fear of persecution if he were returned to the Lebanon. He explained that he was related to a family called Abdullah. Two members of that family had been killed by the Hezbollah on the ground that they had co-operated with the Israelis. He would himself be at risk.

On 24 July the applicant's present firm of solicitors were instructed. They wrote a long letter to the Home Secretary on 14 August, expounding the applicant's grounds. We have of course read that letter, together with the subsequent letters of 1 and 2 September. The next interview took place on 10 September in the presence of the applicant's solicitors. The Home Secretary's refusal letter was handed over at that interview. It deals at length with all the points which had been raised by the applicant and his solicitors. I need only quote two paragraphs of the letter as follows:

"The Secretary of State has carefully considered all the matters which you have put forward. He does not believe that the difficulties you have suffered in the Lebanon amount to persecution, and he does not accept from the claims you have made that you would be persecuted in Lebanon for any reason recognised in the 1951 United Nations Convention on Refugees. He does not therefore consider you qualify for refugee status. Your solicitors claim that your brother,

Nader, was killed two years ago in an Israeli bombardment, and that you yourself received shrapnel injuries in that, or a similar, bombardment although you had previously made no mention of your brother's death. The Secretary of State does not accept that when you return to Lebanon you will be compelled to return to that area of the country where such bombardments may occur and he does not therefore consider that these past events create a reasonable fear of return to Lebanon".

The Home Secretary then refers to a letter from Amnesty International dealing with the risk of persecution by the Hezbollah. He concludes:

"Amnesty International's assessment of the risks from Hezbollah are that such risks 'are greatest if he or she returns to Hezbollah strongholds [but that] it would not be beyond Hezbollah's means to apprehend an individual outside their normal area of operation'. The Secretary of State considers that it is not necessary for you to live in a Hezbollah stronghold if you are afraid to do so, and the Secretary of State does not believe that you are of such interests to Hezbollah that they would mount an operation outside their strongholds to harm you.

Having considered everything put forward, the Secretary of State has decided to refuse your application for asylum in the United Kingdom and considers that it is reasonable to expect you to return to the Lebanon."

Further points were made by the applicant or on his behalf at the interview on 10 September and they were considered by the Home Secretary in his subsequent letter of 15 September. Removal directions were given on 15 September. The date and flight was given as 10.45 am on 23 September.

On 22 September the applicant sought leave to apply for judicial review. That application was supported by a long affidavit sworn by his solicitor which we have read. The application for leave came before Laws J at 5.30 pm on 22 September. The application was refused. It was renewed before us at 10.20 am yesterday, 23 September, less than half an hour before the plane was due to take off. We were unable to consider the case properly in so short a time. Accordingly we stood the application over for consideration this morning. Mr Jay was unable to give any undertaking on behalf of the Secretary of State, but a telephone call was made and evidently the applicant was taken off yesterday's flight.

I come now to the grounds put forward in the application for leave to apply for judicial review. The first ground was that the applicant has had insufficient time to present his evidence. That was dealt with in a letter from the Home Secretary on 8 September and has not been pressed by Miss Pasiuk on his behalf this morning.

The main ground is contained in ground 4, and is that the Home Secretary, in reaching his decision, has misconstrued article 1A(2) of the Convention in the light of article 1C(4) and article 33. It is said that "territories" in article 33 and "country" in article 1A(2) are, as it were, indivisible concepts, and if the applicant has a well-founded fear of persecution in any part of the country in question, however small, then he is entitled, as a matter of law, to refugee status, even though he would be perfectly safe in the rest of the country.

I cannot accept that construction. The Home Secretary is, in my judgment, entitled to take into account conditions in the country as a whole in deciding whether it is safe to return the applicant to the Lebanon under article 33. That would be entirely consistent with paragraph 91 of the Handbook, which provides:

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so".

The implication of that paragraph is clear. If in the Secretary of State's view it is reasonable to expect an applicant to seek refuge in another part of the same country where he would be safe, then the Secretary of State is not obliged to grant refugee status. That was the view on the facts which the Home Secretary took in the present case. It was a view which he was clearly entitled to take.

A very similar, indeed identical point, arose in the case of Hidir Gunes [1991] Imm AR 278. That case concerned a Turkish Kurd. It was accepted by the Home Secretary that he had been subject to repeated harassment in the village in which he had lived, but he had left that village and had been living for three months in Istanbul immediately prior to his arrival in this country. Simon Brown J refused an application for leave to apply for judicial review. He said at page 281:

"On that approach to the facts it seems to me that the Secretary of State, so far from being bound -- as the applicant asserts -- to uphold his claim to asylum, is well entitled to refuse it on the footing that he can safely return, in effect, to all of Turkey save only his village of origin. That that is a proper approach to the case in my judgment is clear both as a matter of common sense and indeed upon such authority as exists. That consists of the decision both at first instance and by the Court of Appeal in R v Secretary of State for the Home Department ex parte Yurekli [1990] Imm AR 334, [1991] Imm AR 153. It is sufficient to cite this short passage from Otton J's judgment at first instance:

'If it was possible for the applicant to live in another part of his country without persecution that was a factor which the Home Secretary was entitled to take into account when he came to his decision.'"I agree with the view there expressed by Simon Brown J. The applicant's main ground fails.

There was a third ground put forward, namely, that the Home Secretary in reaching his decision acted in a manner which was Wednesburv unreasonable. I regard that as unarguable.

Finally, Miss Pasiuk had an argument based on paragraph 75 of the immigration rules. But the point there seems to me to be precisely the same as the point which I have already considered and rejected. This was a case which was considered very carefully by the Home Secretary. In my view he was fully entitled to reach the conclusion which he did. Accordingly, I would dismiss the renewed application.

Judgment Two:

STUART-SMITH LJ: I agree.

Judgment Three:

BELDAM LJ: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Aaronson & Co, London SW5; Treasury Solicitor