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Queen’s Bench
Division R v IMMIGRATION
APPEAL TRIBUNAL ex parte ‘B’ CO/1852/87 [1989] Imm AR 166 COUNSEL: C Ume for the applicant; D Pannick for the respondent SOLICITORS: Sampson & Co, London SE17; Treasury
Solicitor JUDGE: Simon Brown J DATES: 28 October 1988 SIMON BROWN J: This is an asylum case brought against the
Immigration Appeal Tribunal. What is singular and important about it is that
the Tribunal have refused to regard the applicant as qualifying for political
asylum even whilst expressly recongising that he could well suffer persecution
upon return home. That on the fact of it is a surprising and disturbing
conclusion, not readily to be arrived at. Rather than that the applicant remain
any longer in suspense, I must nevertheless say at the outset of this judgment
that I regard the decision to be valid in law and so immune from interference
by this court. I turn at once to the facts. The applicant is an Iranian citizen, thirty-eight years old,
married with two children. On 27 August 1985, shortly after being ordered to
the front line in Iran’s war against Iraq, he brought his family to
England for a visit. Earlier that month he had obtained in Tehran entry
clearance for the purpose. He was granted one-month’s leave to remain.
That leave was extended to 27 March 1986 so that his wife could receive medical
treatment. On 29 October 1985, within the currency of that extended leave, the
applicant applied to the Home Office for political asylum. He asserted that he
was a refugee from Iran and that he and his family were unable to return here.
That application fell to be considered under the provisions of paragraph 134 of
HC 169: “Asylum “A person may apply for asylum in the
United Kingdom on the ground that, if he were required to leave, he would have
to go to a country to which he is unwilling to go owing to well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion. Any such claim is to be carefully
considered in the light of all the relevant circumstances. ” On 9 January 1986 solicitors instructed on the
applicant’s behalf wrote to the Secretary of State pressing his
application. They said that he had always been a Monarchist and opposed to the
Khomeini regime and they enclosed various documents, including photographs
showing him taking part in anti-Khomeini London demonstrations. On 10 March
1986 the applicant was called to the Home Office for interview. He explained in
detail why he feared returning home. He claimed to have belonged to a
pro-Monarchist group in Iran which distributed anit-Khomeini literature. He
also said that since his arrival in the United Kingdom he had been put in
charge of the finance section of Sepah, a Monarchist organisation of which his
brother, who had been granted asylum, was secretary. He told also of having
attended three demonstrations in the United Kingdom and produced photographs
confirming his participation. On 1 July 1986, some eight months after his
application, the Secretary of State refused it: he was not satisfied that the
applicant had a well-founded fear of persecution upon return to Iran. But in
view of the particular circumstances of the case he granted the applicant and his
family exceptional leave to remain for a further year. The applicant appealed against that refusal of asylum. On 18 March
1987, shortly before the appeal was due to go before the Chief Adjudicator, the
applicant’s solicitors wrote further to the Secretary of State
inviting reconsideration of the decision in the light of “a material
change of circumstances”. The letter relied in particular upon the
applicant having taken part in yet further public demonstrations against the
present Iranian regime outside their London embassy respectively on 27 July and
5 August 1987. Once again, confirmatory photographs were enclosed, one of which
had appeared in a Sepah publication distributed in Iran; thus the
applicant’s identity and activities would be well known to the
authorities there. The Secretary of State remained unmoved. On 3 April 1987 the
Home Office replied to the solicitors’ letter. They pointed out that
the last two demonstrations relied upon had taken place after the Secretary of
State’s decision and were, therefore, not admissible as evidence upon
the appeal. More fundamentally, however, they contended that the
applicant’s activities since his arrival in the United Kingdom had
been “self-serving, an attempt to bolster his exceedingly weak claim
to political asylum”. The applicant’s solicitors wrote on 21
April joining issue upon that crucial allegation. The appeal came before the Chief Adjudicator. The parties had
agreed for it to be dealt with solely on the documents, without a hearing. It
was rejected. In his written determination dated 12 May 1987, after reciting
much of the relevant material, the adjudicator said: “Whilst I appreciate the
appellant’s very understandable apprehension at being called upon to
participate in the bloody war with Iraq, I am fully satisfied from the evidence
before me that, at the date of his arrival in this country and, indeed, at the
date of his application for political asylum in October 1985, the appellant did
not have a well-founded fear of persecution in Iran for reasons of race,
religion, nationality, membership of particular social group or political
opinion. His political involvement in Iran had been of a minimal nature and,
even taking into account that his father had served as a Lieutenant in the army
of the late Shah, this could not provide the appellant with any cause to
believe that he would be subject to persecution in Iran. Furthermore, there is
no evidence before me to indicate that the appellant’s activities in
this country prior to application could place him in any real jeopardy.
However, I must accept that, after the appellant’s application but
prior to the respondent’s decision, the appellant took part in various
overt political activities demonstrating his support for the late Shah, certain
of which could well have been brought to the attention of the Iranian
authorities and which could lead to his interrogation and persecution if he was
now to return to Iran. ” He then referred to two previous Tribunal determinations which had
briefly considered the problem raised by someone voluntarily engaging in
hazardous acts whilst seeking asylum. The determination then continued thus: “After reviewing the totality of
evidence before me I am drawn to the irresistible conclusion that the
appellant’s overt participation in demonstrations outside the Iranian
Embassy and the publication of his picture in the broadsheet produced by his
brother’s pro-Shah orgnisation was part of a calculated policy to
enhance his claim to asylum. I see no particular significance in the fact that
the appellant has continued his political activities after the decision was
taken since such actions could possibly be of relevance in any further appeal should
the Secretary of State make a subsequent decision to deport the appellant. In
reaching this conclusion I have taken judicial notice of the fact that numbers
of those who attend demonstrations outside the Iranian Embassy take reasonable
precaution to avoid being identified by wearing dark glasses, or masks. “It would be a travesty of justice if
a person was permitted to qualify for asylum by deliberately placing himself in
jeopardy for this purpose. In these circumstances and in view of my findings
recorded above this appeal must fail. I have noted that the respondent has
granted the appellant and his immediate family exceptional leave to remain in
the United Kingdom and I am in little doubt that full consideration would be
given to a further application for them to remain for a limited period to
enable them to seek admission to a third country. Be that as it may this appeal
must be dismissed. ” The applicant appealed again. Leave was granted by the Immigration
Appeal Tribunal. This time there was a hearing at which the parties were
represented. It took place on 20 July 1987. Counsel for the applicant produced
additional photographs showing the applicant attending yet further
demonstrations outside the Iranian embassy. It was the dismissal of this appeal
which is the decision now under challenge. In their written determination dated
14 August 1987 the Tribunal cited much of the adjudicator’s
determination (substantially more than I have done), recorded and considered
the main arguments upon the further appeal, and concluded as follows: “Taking into account the evidence as
a whole we agree with the Chief Adjudicator’s findings of fact set out
in the extract from his determination quoted above. The appellant was in secure
employment, living in Iran under the present reigime with his wife and children
for several years before coming to the United Kingdom. He was interrogated on
one occasion but was not detained or harassed. His wife has been back to Iran
and returned unharmed to this country. From the evidence, the
appellant’s political involvement in Iran was minimal. He was able to
leave openly with a visit visa obtained in Tehran. Significantly he left
shortly after being called for military service. After coming to the United Kingdom
the appellant stepped up his involvement in politics and has drawn attention to
himself and his activities in no uncertain manner … We have come to
the same conclusion as did Mr Patey for the reasons which he has given. Though
the Chief Adjudicator in his determination did not specifically deal with the
question of the standard of proof, in considering the matter in the light of
the facts found by the adjudicator we ourselves have applied the lower standard
of proof appropriate to asylum cases. In our view the appellant has not
established a well-founded fear of persecution should he have to return to Iran
and does not qualify for asylum under the immigration rules. “Accordingly, his appeal is
dismissed. ” That penultimate sentence requires a comment. What the Tribunal
plainly meant by it was that, putting aside the applicant’s
self-serving activities, upon which they had decided that he was not entitled
to rely in asserting his asylum claim, he could not establish the relevant risk:
it was those activities which had created the risk. The Tribunal were clearly
not suggesting that the applicant would in fact run no risk upon return to
Iran. On the contrary, they clearly shared the adjudicator’s view that
the applicant had indeed taken part in “various overt political
activities demonstrating his support for the late Shah … which could
lead to his interrogation and persecution if he was now to return to Iran.
” Before turning to the main thrust of this challenge, it is
convenient at this stage to deal breifly with one of the arguments raised by Mr
Ume for the applicant. He submits that the question whether or not there exists
a “well-founded fear of being persecuted”for a Convention
reason -- to put it more shortly, the question of risk -- falls to be
determined by the Tribunal in the light of all that has occurred by the date of
their determination rather than by reference to the situation obtaining when
the Secretary of State came to his decision. That submisison I reject. The
contrary appears to me clearly estaablished by the Court of Appeal in R v
Immigration Appeal Tribunal, ex parte Kotecha [1983] 1 WLR 487 and, perhaps more
pertinently because itself an asylum case, in R v Immigration Appeal Tribunal,
ex parte Hassanin [1987] 1 All ER 74. But the point is in any event of no real
relevance in the instant case. True, since the date of the Secretary of
State’s decision, the applicant has continued to act in such a manner
as still further to endanger himself were he to return to Iran, but it is
accepted that even before the Secretary of State’s refusal of asylum
the applicant had engaged in sufficient overt political activity to create such
risk as would ordinarily attract refugee status. Furthermore, to the extent
that any subsequent activities have aggravated that risk, it will be necessary
for the Secretary of State to pay regard to this when he comes to decide
whether now to make a deportation order against the applicant as an overstayer.
If he does so decide, the appellate authorities will similarly have to consider
these matters upon appeal. That was clearly recognised in the penultimate
paragraph of the adjudicator’s determination and, in my judgment, it
remains the position even despite the reduced scope for appeals against section
3(5)(a) decisions following the recent coming into force of section 5 of the
Immigration Act 1988. All of these considerations, however, are at the fringe of this
case. At its heart lie the applicant’s contentions that only
activities plainly undertaken in bad faith could vitiate what would otherwise
be recognised as a valid claim for political asylum and that it was not here
open to the adjudicator and the Immigration Appeal Tribunal to regard his activities
in this light. I turn to consider separately the two limbs of that argument. It will readily be apparent that there must exist some principle
whereby an immigrant cannot become entitled to political asylum merely by
choosing so to conduct himself in the host country as to create the very risk
of persecution which then founds his claim to refugee status. But the precise
limits of such a principle are not altogether easily determined. I am not
disposed to accept that the position is precisely as was suggested by the
Europeaan Commission of Human Rights in A v Switzerland in the analogous
context of an Article 3 complaint that expulsion would expose the immigrant to
political persecution and torture. The Commission, in rejecting A’s
complaint at a 1986 hearing into admissibility and merits added this: “Nor can he invoke his political
activities in Switzerland in order to avoid being expelled, as any asylum
seeker must restrict his political acitivities in his own interest, otherwise
he must bear the consequences. ” That seems to me to put the principle somewhat too widely and
harshly against the immigrant. Surely not all voluntary activiity in the host
country which enhances the risk of persecution should be disqualified from
consideration. If, for instance, someone was so disaffected by his home regime
that, having taken whatever steps were there safely open to him, he felt
impelled to go abroad to expose and campaign against its evils, I would not
myself regard the consequences of that conduct abroad as necessarily irrelevant
to his asylum claim. But of course at the other end of the spectrum would fall
a case where an asylum seeker, with no history of political antagonism towards
his home country’s regime, nevertheless on leaving it acts out a
pretended hostility calculated to attract refugee status. Mr Pannick for the Immigration Appeal Tribunal submits that not
only will cases of bad faith fall outside the protection of the asylum
convention but so also will cases where the post-arrival activity, although
motiviated entirely by political commitment and conviction rather than the goal
of asylum, is nevertheless unreasonable in all the circumstances. These cases
would involve consideration of the applicant’s political activities in
his home country, the nature of his voluntary activities in the United Kingdom,
the strength of his political convictions, the steps taken to protect has own
future safety were he to be returned home, any advantages likely to accrue to
his cause through his post-arrival activities (including any advantages
consequent upon refusal to hide his personal identity); above all the essential
reasonableness or otherwise of the applicant’s conduct which he then
seeks to invoke to found or advance his asylum claim. In support of these
submissions Mr Pannick draws my attention to a transcript of the recent Court
of Appeal decision in Mendis v Secretary of State for the Home Department, and in particular
this passage from the judgment of Balcombe LJ: “It seems to me that Mr Laws, for the
respondents before us, was correct when he said that the purpose of the 1951
Convention (as amended by the 1967 Protocol) is to protect people against the
risk of being persecuted for reasons of political opinion: it is not a
guarantee of world-wide freedom of speech. In my judgment a person is not at
risk of being persecuted for his political opinions, if no events which would
attract such persecution have yet taken place. If this were not so, a person
could become a refugee as a matter of his own choice; all he would have to do
would be to establish the following two propositions: “ (1) If, when I return to my native
country, I speak out, I will be persecuted. “ (2) I will speak out. “This is tantamount to saying that
person who says he proposes to invite persecution is entitled to claim refugee
status. That I do not accept.” Although that passage was concerned with the rather different
situation arising when nothing has yet been said or done to create the relevant
risk of persecution, and although the other two members of the court left over
for future decision “the question whether there may not be cases where
a man of settled political conviction may be able to claim refugee status because
it would be quite unrealistic to expect him, if he were returned to a foreign
country, to refrain from expressing his political views for ever”, (in
the words of Neill LJ) the Court of Appeal was plainly there recognising that
the asylum convention is designed essentially to promote physical safety rather
than the exercise of fundamental freedoms. It is I think sufficient for the purposes of the instant
application to conclude, as I do, that not only bad faith will disqualify an
applicant for asylum from relying upon post-arrival activities; so too on
occasions will unreasonable conduct. How unreasonable must be left to be
decided hereafter on a case by case basis. The plain fact here is that the adjudicator and the Tribunal found
this applicant’s case to fall at the bad faith end of the spectrum.
They have found that he deliberately conducted himself pursuant to “a
calculated policy to enhance his claim to asylum … deliberately
placing himself in jeopardy for this purpose. ” This finding is
clearly one of bad faith, the cynical tailoring of the applicant’s
activities so as to create a false claim to refugee status. At the very least
his conduct cannot but be viewed as totally unreasonable: a quite gratuitous
exposure to risk. Turning to the second limb of Mr Ume’s argument, it is
necessary to ask: was there, then, material before the appellate authorities
sufficient to permit of such a conclusion? In my judgment there was. The
evidence disclosed a continuing enthusiastic voluntary involvement in public
demonstrations without the least effort to disguise the applicant’s
identity; with on the contrary, consistent supply of identifying photographs.
And all this against the background of an essentially inactive political life
in Iran. It really would be exceeding this court’s proper authority to
designate the Tribunal’s decision here as perverse. It follows that the challange fails and the application must be
dismissed. I add just this final word. Asylum seekers should henceforth be
careful to ensure that after arrival here they do not needlessly enlarge, let
alone create, the risk of persecution to which they would be exposed if and
when they return home. If they do, particularly (although not exclusively) if
they appear to have acted unscrupulously in the matter, their asylum claims are
likely to fail. Application dismissed |