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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mbanza, Re [1995] EWCA Civ 44 (24 October 1995) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1995/44.html Cite as: [1996] Imm AR 136, [1995] EWCA Civ 44

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: THE IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand London WC2
		24th October 1995

LADY JUSTICE BUTLER-SLOSS: 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 the 8th October 1993 and applied for asylum. His application was refused by the Secretary of State and, after absconding, he was removed to France on the 20th May 1994 but was returned to this country by

the French authorities. His second application for asylum was refused on the 2nd August 1994. He appealed to the Special Adjudicator who dismissed his appeal in a determination dated the 17th January 1995. He appealed, with leave, to the Immigration Appeal Tribunal who dismissed his appeal on the 22nd 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 Zairian decision made by him, (Bansende) and a further report as to the approach of the Zairian 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 considered 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 that:-

"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 1951 Convention Relating to the Status of Refugees which, by section 2 of the Asylum and Immigration Appeals Act 1993, is given primacy over the practice laid down in the Immigration Rules. Article 1 A paragraph 2 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 Rules, as amended in 1993, in accordance with the definition in the Convention, by Rule 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 Rule 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 endorsed both by the Special Adjudicator and by the Tribunal.

The appeal with leave to this court is provided by section 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 so recognised by the Tribunal, it is asserted by Mr Nicol QC in his submissions to us that, by making the application, this applicant has proved to the requisite standard of proof, (see ex parte Sivakumaran [1988] 1 AC 958), that he would be at risk of persecution if he was 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 parte Senga, 9th 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 the determination of the Tribunal in Senga it 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."

Laws J held:-

"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 upon 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 Rule 180G supra).

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 (supra) 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, insofar 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 they were 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 appellant. 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 needed to 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 UNHCR about the treatment accorded to those returning to Zaire.

It said (at page 12):-

"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 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.

LORD JUSTICE MILLETT: 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."

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 Article 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, 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 parte Senga (See the unreported decision of Laws J. delivered on 9th. March 1994.) 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 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 Articles 2 and 3 of the European Convention on Human Rights and Article 3 of the United Nations Convention against Torture. 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.

LORD JUSTICE WARD: When this matter was considered by the Adjudicator, he correctly directed himself that the appropriate question in this case was:-

"The question that I have to decide is 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- SSHD Ex Parte Sivakumaran (1988) AC 958 well in mind even if the major part of his judgment concentrated on the objective element. His findings were:-

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 Article 1 to explain my opinion that to come within Article 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 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 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."

On that aspect of the second limb the appellant failed again. The Adjudicator was, however, prepared to accept the conclusion of the report commissioned by the Dutch Government and he said:

"I now consider, having seen this report, that I had perhaps gone too far in Bansende 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, they:-

"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 their first point. They 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 he 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. They continued:-

"It would seem to us extraordinary if those

circumstances his completely fraudulent claim having been refused, he could then secure a asylum on the basis on 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 paragraph 61 of the Handbook 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 added). 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. They 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 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 Sivakumaran, 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 they were fully entitled to come on a review of all the evidence that was presented to them. As appeals to this court lie only on matters of law, it cannot in my judgment possibly established that their conclusion was perverse or that it was so wrong that this court should interfere.

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

ORDER: Appeal dismissed with costs. Legal aid taxation. Leave refused to appeal to the House of Lords.