R v. Secretary of State for the Home Department, Ex parte Alupo
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 24 May 1991 |
| Citation / Document Symbol | [1991] Imm AR 538 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Alupo, [1991] Imm AR 538, United Kingdom: High Court (England and Wales), 24 May 1991, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6374.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. |
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ALUPO
Queen's Bench Division
[1991] Imm AR 538
Hearing Date: 24 May 1991
24 May 1991
Index Terms:
Political asylum -- application refused by Secretary of State -- whether it was reasonable for him, in assessing credibility of claim to take account of failure of applicant to claim asylum on arrival in United Kingdom -- whether Secretary of State obliged to make a finding on applicant's motive in making claim -- whether, in the circumstances, the Secretary of State had overlooked material issues. Immigration Act 1971 s 4(1): HC 251 para 75: UNHCR Handbook on procedures and criteria for determining refugee status paras 198, 203.
Held:
The applicant for judicial review was a citizen of Uganda: when she arrived in the United Kingdom she was refused leave to enter as a visitor. When she was about to board a plane to be returned to Uganda, she claimed political asylum. After a number of interviews and the consideration of representations, her application was refused. The Secretary of State in refusing her application had stated that it was not accepted that there had been any systematic persecution of members of her tribe, the Iteso: counsel argued that the use of the term "systematic" indicated that the Secretary of State had ignored random or unofficial persecution of the Itesos. It was asserted that the Secretary of State, contrary to guidance in the UNCHR Handbook, had attached significance to the fact that the applicant had not claimed asylum immediately on arrival: moreover she had not been given the benefit of the doubt in weighing her accounts of relevant events. It was contended that the Secretary of State had erred in making no finding on the motive of the applicant. Held: 1. The use of the term "systematic" did not, in the circumstances, demonstrate that the Secretary of State had ignored the possibility of random persecution. It had been used merely because it had appeared in an earlier letter from the applicant's advisers. 2. The Secretary of State had not ignored the guidance in the UNHCR Handbook and it was therefore unnecessary to consider its status. 3. It was not unreasonable for the Secretary of State, in assessing the credibility of the applicant's claim, to take into account the delay in claiming asylum or the discrepancies in the various accounts given by her of material events. 4. There was no obligation on the Secretary of State to make any findings as to the motive of the applicant.Cases referred to in the Judgment:
No cases are referred to in the judgment.Counsel:
G Warr for the applicant; D Pannick for the respondent PANEL: Henry JJudgment One:
HENRY J: The applicant, a citizen of Uganda, now twenty-five years old, challenges successive decisions of the Secretary of State dated 21 December 1988, 7 March 1989 and 26 May 1989 to refuse her asylum. The court's approach in these matters is well established. The determination of the question as to whether the applicant is a refugee entitled to asylum is a matter for the Secretary of State acting in accordance with the Convention and Protocol relating to the status of refugees. When the Secretary of State has made such a decision the court can only intervene to quash it if it is satisfied that the Secretary of State has gone outside the discretion given to him in some way that offends against public law. The challenge to an asylum decision is a conventional public law challenge, but conducted with that anxious scrutiny of the administrative procedures and with a special diligence having regard to the gravity of the decision that the Secretary of State has taken and its importance to the applicant. The claim made for asylum by the applicant in its final form is this. She is a member of the Iteso tribe. They, by and large, support the Ugandan Peoples Congress, Dr Obote's Party, and oppose the government of President Museveni of the National Resistance Movement, which government came to power in 1986. The claim that she makes is that the Itesos have been persecuted as a tribe. A cousin, who lived with her mother, herself, her other brothers and sisters, has vanished and is presumed to have been killed by the National Resistance Army. An uncle has been killed by the National Resistance Army apparently because it was believed that he was helping the Iteso rebels. She alleges that she personally has had warnings and suffered an unprovoked attack on her by an unidentified stranger in the street so she fled the country arriving at Gatwick on 5 June 1988. She has a half-sister in this country. She attempted to obtain entry as a visitor. She failed in this attempt and was due to be repatriated. As she was about to board the plane to go back to Uganda she then made an asylum claim. That claim having been made she was taken from the list of those going to travel and her claim was investigated. The chronology of the matter is this. Having arrived on 5 June she was twice interviewed on the next day, 6 June. There was a third interview on 22 June when the political asylum questionnaire was completed. On 30 August 1988 representations were received on behalf of the applicant from the United Kingdom Immigrants Advisory Service. On 21 December 1988 she was interviewed for the fourth time and her asylum application was refused for the first time; that was the first decision. On 12 January representations were made on her behalf by Mr Stuart Holland MP and he enclosed representations from the Uganda Community Relief Association. These were considered and the Secretary of State's second decision was by letter dated 8 March 1989 explaining his reasons for refusing asylum. There was a further interview on 12 May 1989; a sixth interview on 26 May 1989 followed by a further decision to refuse asylum; that is the latest and the most recent decision and the one that is principally under challenge. There was then, on 14 June 1989, a seventh interview. Further representations were received from another firm of solicitors acting on her behalf on 19 June. There were representations by Miss Kate Hoey MP on 22 June; a further letter from the Minister of State on 24 July; representations from a third firm of solicitors on 1 November; on 3 November there was notice of application for leave to move for judicial review and such leave having been initially refused on the papers was granted at an oral hearing by Hodgson J on 11 December 1989. The final decision in this matter is that of 26 May 1989 and I read it: "You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Uganda for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Secretary of State has considered your application. You said when you were first interviewed that your uncle was involved with the rebels in Uganda and because he visited you in Kampala he was killed by other rebels for leaving his home area of Teso and that you also received death threats from these rebels. However, in representations later submitted on your behalf by the Uganda Community Relief Association (UCRA) and the United Kingdom Immigrants Advisory Service (UKIAS), it was stated that your uncle was taken prisoner and killed after being tortured by government forces and that you had been warned about harbouring rebels by an NRM council. Furthermore, the representations made on your behalf by the UCRA stated that you had lived with a cousin, Jungle Odeke, who is said to have been a former UNLA soldier and who is now said to have disappeared, but you made no mention of Mr Odeke when you were first interviewed. You have also stated that the people of the Iteso Tribe have been subjected to discrimination and harassment by the Ugandan authorities but the Secretary of State does not consider that there is any systematic government persecution of the Iteso or any other tribe in Uganda. You only applied for asylum after you had been refused leave to enter the United Kingdom and the timing of your application taken with the discrepancies previously noted cast doubt on the validity of your stated fear of return to Uganda. On the totality of the evidence available the Secretary of State is not satisfied that you have established a claim for refugee status under the terms of the 1951 UN Convention Relating to the Status of Refugees. The Secretary of State has accordingly refused your application." In summary, what that document shows is that it is the Secretary of State's view first, that there is no systematic persecution of the Iteso or any tribe in Uganda; secondly, that there have been inconsistencies in the applicant's account given at various times; thirdly, that her claim was not made at once and that the second and third factors cast doubt on her credit and her stated fear of returning to Uganda. The first general point that needs to be considered is that of conditions in Uganda. The applicant exhibits press reports and reports from Amnesty International having regard to the National Resistance Army's brutal and indiscriminate killings of villagers and peasants in Kumi, Soroti, the tribal areas of the Iteso. So far as the Secretary of State is concerned, he is satisfied on the information available to him that there is no persecution by the government of the Itesos as a tribe, Mr Sprunt's first affidavit, paragraph 17. Indeed, as to the supposed cause of that persecution, namely the support the Iteso gave to the Uganda Peoples Congress, he has filed evidence indicating that twelve members of the present cabinet have affiliations with that party. So far as that finding of the Secretary of State is concerned the court cannot go behind it. There is clearly material on which he can make such a finding. The first major attack on the decision made by the applicant is that it is alleged that the Secretary of State has made an error of law in his approach to this question. This turns on the sentence used by the Secretary of State: "You have also stated that the people of the Iteso Tribe have been subjected to discrimination and harassment by the Ugandan authorities but the Secretary of State does not consider that there is any systematic" -- and I emphasise that word -- "government persecution of the Iteso or any other tribe in Uganda". The suggestion made by the applicant is that in looking for systematic or organised or authorised persecution of the Iteso the Secretary of State was shutting his eyes to unsystematic or random or unauthorised persecution of that tribe. It is said that such an approach would be wrong in law and so it would be, but the Secretary of State disavows it. The explanation for that sentence put forward is this: the source of the wording comes, so the Secretary of State deposes, from the letter of 30 August 1988 that the United Kingdom Immigrants Advisory Service wrote on the applicant's behalf when they said this: "I understand that Ms Alupo is a member of the Iteso tribe. She has consequently suffered a certain degree of harassment and discrimination under Museveni's government. Her reasons for leaving Uganda are based on the fact that she had numerous death threats. She was also harassed by individual soldiers who found out that one of the rebels had been living at her parents house. Furthermore, she has a cousin who had joined the rebels from Kampala and the soldiers had been looking for him. On one occasion in May 1988 she was beaten up and was hospitalised". There the allegation made is that the harassment and discrimination were directed against her by the government because of the fact that she was an Iteso. Therefore, the allegation was of systematic discrimination against her on that account, hence the response in the next decision letter which is that of December 1988, in these terms: "You also said that members of the Iteso tribe to which you belong are subject to persecution by the NRM government but it is not considered that there is any systematic government persecution of the Iteso or any other tribe in Uganda". It seems to me that such a response to the UKIAS's submission is quite understandable in the terms he uses. The point is a semantic one. The use of the word "systematic" is dictated by the allegation that there was government persecution. That there was no error of law in the Secretary of State's approach on this point is made clear by the affidavits filed on his behalf which state his view that there is no persecution of the Iteso as a tribe either systematic or non-systematic. The next point made on behalf of the applicant is that the Secretary of State should not have drawn any adverse inference from the fact that she did not immediately claim asylum, and here she relies on a passage from the Handbook of procedures and criteria for determining refugee status in these terms: "A person who, because of his experience, was in fear of the authorities in his own country may still feel apprehensive vis-a-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case". She also relies on the handbook to say that in the interview she was not given the benefit of the doubt and the approach to her asylum claim was not sufficiently sympathetic. So here there are two questions raised. First, was she given a proper opportunity to make the asylum claim; a fair opportunity to make that claim? Secondly, has the Secretary of State perversely regarded the lateness of the claim as casting doubts on her credibility because, of course, unless he was perverse in his approach it is a matter that is within his own discretion. The notes of the various interviews in fact show that on initial arrival she told the immigration officer that she sought leave to enter for three months in order to visit her sister. She indicated that she was hoping to go to university and was contemplating going to university in Uganda when she received her examination results. At a later interview she was asked whether she had experienced problems in Kampala and she said, on 5 June, that even though she is of the Acholi tribe, she has never experienced problems in Kampala although cattle rustling was endemic in her father's region around Tesu. The first the immigration service learned of any potential asylum claim was when her sister rang in the early hours of 6 June indicating that she was really claiming political asylum. Having received this information a decision to re-interview her was taken. The background of this interview was that she was about to be returned to Uganda; that was the factual situation. That interview was clearly conducted in a way that would give her the opportunity to make the asylum claim if she wished to do so. She was told the purpose of the interview was to discuss her removal from the United Kingdom and she was told of the flight details and then asked these questions: "Q. Is there any reason that you wish to offer as to why you should not be removed to Uganda as proposed? A. No reply. Q. Do you understand the question? A. Yes I do. Well if I go back I will be shamed. People might look down on me. Q. You mean it will be embarrassing for you to be sent back? A. Yes, that is what I mean. Q. Well, I understand that but is there any other reason for you to object? A. No, nothing else. Q. Are there any difficulties in your family which might arise as a result of your going back? A. They might think I am silly. Q. Is there anything else you wish to say? A. No. Q. Is there anything that I have said which you do not understand? A. No there is not." That was the conclusion of that interview. That interview concluded at 12.40. At 5.45 pm on the same day she was found in tears when about to board the aircraft and the claim was first made. The note made by the officer said: "She said she could not go back to Uganda because she would be persecuted so accordingly she was taken off the flight and the investigation was commenced". Sixteen days later, on 22 June, the political asylum questionnaire was completed. When it came to her claim for asylum that document records this: "Passenger states that at the end of last year her uncle, James Ikopit, came to her house in Kampala to bring her some food. He was a rebel against the Government based in Tesu. His colleagues in Tesu -- the other rebels -- heard that he had gone to Kampala and knifed him on his return to Tesu (he was apparently not supposed to leave the security of Tesu). He subsequently died. The passenger received an unsigned message saying that she should get ready to 'heap potatoes' (apparently slang for dying) in February 1988. In May 1988 someone came up to her in the street and punched her in the face -- then ran off. However, she has no reason to believe this man was a rebel or that this incident was related to her uncle's death. For these 2 reasons, passenger believes that the rebels are looking for her and she will be killed if she returns to Uganda". Under the paragraph at the end, "Immigration officer's comments and recommendations" he says this: "Passenger is a lucid, fairly intelligent girl. She has clearly had some time to think about her reasons for wanting to stay here. Although she did not mention any fear of her returning to Uganda until just before boarding the plane, subsequent removal, she claims to have told her parents of her intention to seek political asylum here before she left Uganda. Passenger fully accepts that the message she claims to have received, and the punch in the face, may be entirely unrelated. She says the reason she did not mention political asylum before was that she wanted to 'discuss' the procedure with her half-sister before applying to the Home Office, but insists that she had always intended to seek asylum in the United Kingdom. I am not qualified to make any recommendation in this case; but I am surprised that she made no mention of political asylum before she did, if she is as frightened to return as she claims. Prior to removal, because her 'sister' had brought up the subject of political asylum, the passenger was questioned very closely as to whether she had any fear of returning to Uganda, and had said that there was no problem." There is criticism of the immigration officer based on the fact that having said he was not qualified to make any recommendation in this case, he went on to make one. The explanation for this matter is to be found in the apparent mismatch between section 4(1) of the Immigration Act 1971 which provides: "The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers . . ." and rule 75, dealing with asylum, which states: "Every such case is to be referred by the immigration officer to the Home Office for decisions regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter". I have commented on this mismatch in other cases and the Court of Appeal have approved those comments. Where this immigration officer said that he was not qualified to make representations, he was simply setting out the situation as existed under rule 75 namely, that the decision was not for him but a matter that he should refer on. There was nothing improper in him expressing his view, having interviewed the applicant, and the Secretary of State was, in my judgment, quite entitled to take that view into account. So much for the original interviews and the account there given. That account changed when the United Kingdom Immigrants Advisory Service wrote in enclosing her statement. The changes were that now it was alleged that it was the NRA and not the rebels that had killed her uncle and her cousin was mentioned for the first time. The point is made on behalf of the applicant that the delay was only a day; that it was on her second day here that she made the claim and that that is not a very long time. The length of the delay does not seem to me to be as important as the reason for the delay. The only one advanced was that she wished to speak to her sister first before she made the claim and the Secretary of State was, in my judgment, quite entitled to take the view that that was not a compelling reason for the delay. In all the circumstances the Secretary of State was fully entitled to take the view that the late claim for asylum cast doubt on her credibility. He was fully entitled to take the view that the change in the details of what lay behind her fear of persecution case doubt on the credibility of her claim for asylum. It is unnecessary for me in this judgment to go into any detail as to the relevance of the Handbook in these proceedings. It is unnecessary because the passage in the Handbook relied on was specifically referred to by the first interviewing officer who saw her on arrival on 5 June and so from an early date there was this note on her file: "However guidelines are quite clear in such circumstances, where a relatively unsophisticated passenger might well conceal a real political asylum claim because of fear of disclosure on arrival. She should therefore be asked later this am." That was what in fact happened. In all of this enquiry into her claim for political asylum I see no breach of the Handbook principles. Accordingly, I see no reason to question the Secretary of State's decision on this ground. Next, complaint is made that in the first decision refusing asylum, that of December 1988, the following sentence appears, "The other members of your family remain in Uganda without any apparent difficulty". That sentence was not included in the later decision letters. The complaint that is made is that it ignores what had happened to the other members of her family, namely her uncle and cousin. The answer put forward on behalf of the Secretary of State is this; that what was said was true of her mother, her father and the children of the family. These were "the family" referred to in the political asylum questionnaire and the Secretary of State there was simply referring to her immediate family. It is apparent that it was not true of the remoter family; her uncle and her cousin, and in fact the decision letter of December 1988 specifically refers to her uncle to show that the Secretary of State had that matter in mind. In any event, he did not rely on those matters afterwards. It is suggested to me that the inclusion of that sentence in this first refusal shows a misunderstanding of the true position undermining all subsequent decisions even though in those decisions the Secretary of State did not rely on this point. That does not seem to me to be a submission that carries force and there is no reason in that for upsetting this decision. Lastly, criticism is made that the Secretary of State made no finding as to motive and that this flaws his decision. He was not obliged to make a finding as to what the applicant's motive was for coming here; it was not necessary for him with the task with which he was entrused. In all the circumstances the application to quash the Secretary of State's decision to refuse this applicant asylum must fail.DISPOSITION:
Application dismissedSOLICITORS:
Vallance Lickfolds; Treasury SolicitorCopyright notice: Crown Copyright
