Scottish Court of Session Decisions

[1] Section 1 of the Immigration Act 1971 (c. 77) empowers the respondent to lay before Parliament rules as to the practice to be followed for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter. The respondent's Statement of Changes in Immigration Rules (HC 395), initially laid before Parliament on 23^rd May 1994 but amended thereafter, contains rules regarding those claiming political asylum in terms of the United Kingdom's obligations under the United Nations Convention relating to the Status of Refugees executed at Geneva in 1951 (Cmd. 9171) as amended by the Protocol made at New York in 1967 (Cmd. 3906). The Convention and Protocol provide :

The rules stipulate :

336. An application which does not meet the criteria set out in paragraph 334 will be refused."

[2] In the event of such refusal, the respondent is entitled to give directions for the applicant's removal and may authorise his detention pending that removal. As a general rule, however, an applicant will not be removed pending substantive determination of his claim. He may make a fresh application for asylum even if an earlier one has been refused. The rules therefore make provision for the determination of whether any further application falls to be treated as a fresh one requiring substantive determination as follows:

"346. Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:

1. is not significant; or
2. is not credible, or
3. was available to the applicant at the time when the previous application was refused or when any appeal was determined."

This rule was formulated after the English Court of Appeal decision in R. v Secretary of State for the Home Department ex parte Onibiyo [1996] 2 WLR 490 where Sir Thomas Bingham MR said, in relation to an earlier formulation of the rule (502 G-H):

Similar remarks were made when analysing the earlier formulation by Sedley J. in R v Secretary of State for the Home Department ex parte Hamid Habibi [1997] Imm AR 391 at 395 and again by the English Court of Appeal in R v Secretary of State for the Home Department ex parte Boybeyi [1997] INLR 130, where Nourse LJ said (at 136 C-D) :

I confess, in the Scottish context, not to be at all familiar with this sort of test.

[3] The petitioner is an Algerian national. He entered the United Kingdom illegally in 1991. He first came to the notice of the immigration authorities on 2^nd November 1994 when he was arrested for offences of dishonesty. At that time he claimed to be called Kamel Tajzouit, a person who, he said, had been given leave to enter as a visitor for one or two months having arrived directly from Algeria in November 1990. He applied for political asylum. In the detailed interview of 6^th December 1994 (No. 7/1 or process) he was noted as stating, as the basis for his claim, that:

He was granted temporary leave to enter, subject to a monthly reporting condition which he obtempered once in December 1994, pending determination of his asylum claim. The Immigration Officer's Report (No. 7/2) recorded:

[4] He was arrested again on 27^th April 1995 in connection with another criminal investigation and was found to be carrying an Algerian passport and identity card in the name of Mustapha Bourib. He was bailed to appear at Tottenham police station on 6^th June 1995. He did not appear. He was arrested again on 5^th December 1996 when, upon interview, he admitted his real name of Mustapha Bourib and that he had entered the United Kingdom in 1991 using a false French identity card. Otherwise, he claimed that the grounds for asylum previously given were accurate.

[5] By letter dated 4^th March 1997 (No. 7/5), the petitioner's application for asylum was refused. The decision letter noted his previous deceptions and observed:

The petitioner appealed to a Special Adjudicator and was, once again, allowed to remain on a temporary basis. He was not detained.

[6] The Special Adjudicator dismissed the appeal in terms of a determination of 25^th August 1997 (No. 7/6). The Special Adjudicator observed that, at his original interview, the petitioner had made no claims of being involved in any political activity or of persecution or harassment by any government agencies. The petitioner gave evidence before the Special Adjudicator and said very little about any possible dangers. The Special Adjudicator was looking to see if there was any evidence of there being a prospect that the petitioner would, on a return to Algeria, be persecuted for a Convention reason. He concluded:

The petitioner absconded and evaded the authorities until he was arrested on a theft charge on 6^th May 2000. He was sentenced to a period of imprisonment for that but has been in detention since his release from the sentence on 15^th July 2000.

[7] Meantime, the petitioner instructed new law agents and they wrote a letter to the respondent dated 23^rd June 2000 (No. 6/1) which included the following :

[8] By letter dated 5^th July 2000 (No. 6/2 and 7/7) the respondent wrote in connection with paragraph 346 of the Rules :

[9] Counsel for the petitioner submitted that the decision of the respondent refusing to accept the re-application as a fresh one under rule 346 ought to be reduced as : (a) unreasonable; and (b) failing to take into account certain relevant considerations.
(a) REASONABLENESS

[10] The argument was based on the proposition that the original decisions of the respondent and the Special Adjudicator had proceeded upon an application predicated solely on the petitioner's disinclination to repeat a period of military service. The re- application, on the other hand, specified a reason for not serving in the Algerian military, namely the atrocities which that military were perpetrating to the condemnation of the international community. As distinct from a pure desire to avoid being conscripted, such atrocities could form the basis of a case for persecution in terms of paragraph 171 of the UNHRC Handbook. According to the petitioner's submissions at one point, a refusal to join a military engaged in such atrocities was of itself sufficient for refugee status if such refusal was punishable even if the applicant had no ideological reasons for his refusal and his reasons for not wishing to join the military were unconnected with the perpetration of atrocities. This seemed to be the reasoning of the Immigration Appeal Tribunal in Scotland in Tallah v Secretary of State for the Home Department [1998] INLR 258 at 260 B - D)

(b) RELEVANT CONSIDERATIONS

[11] The respondent had failed to take into account the atrocities element of the claim and the terms of the UNHRC Handbook. The respondent had also failed to take account of the terms of the reports quoted by the petitioner in his letter. These reports, copies of which the Secretary of State would undoubtedly have had, all contained information post dating the original decision and ought to have been looked at. Although it could not be affirmed that a consideration of these elements would inevitably have resulted in a different decision, it was sufficient for the petitioner if such considerations could potentially have led to a different conclusion.

[12] Counsel also reminded me of the need to consider cases such as this with "anxious scrutiny". I was invited to allow the petitioner his liberation in the event of a reduction of the respondent's decision.

[13] Counsel for the respondent submitted that the respondent was entitled to reach the decision he reached in terms of rule 346, namely that the re-application contained in the letter of 23^rd June 2000 did not amount to a fresh claim for asylum in that the representations made therein were not sufficiently different from the earlier first one.

[14] So far as the first application was concerned, the decisions of the respondent and the Special Adjudicator had to be read together. The original claim had been rejected by the respondent because he did not consider it to be a genuine claim for refugee status. This approach had been sustained by the Special Adjudicator who concluded that the petitioner's reasons for being in the United Kingdom were economic and thus unconnected with any potential military service in Algeria. The purported new claim was simply the original one with a gloss added relative to a potential reason for the petitioner not wishing to do military service, albeit that the petitioner did not himself express such a reason.

[15] Even if the re-application could be said to contain different material, it still did not provide the respondent with a basis for saying that it had realistic prospects of success. For such success to be a prospect, the petitioner had to show that he had a case involving potential persecution by reason of his race, religion, nationality or membership of a particular social or political group (Stuart-Smith LJ in Manvinder Singh v Secretary of State for the Home Department quoted in Onibiyo (supra) at 502 E-F). The respondent did not dispute, for the purposes of this action, that the military did carry out atrocities which were condemned by the international community. Furthermore, if a person were to object to serving in the military because of these atrocities then he could certainly become part of a political group potentially subject to persecution if punished for refusing to be conscripted. Membership of that group coupled with the persecution could result in an applicant obtaining refugee status. The petitioner here had not made such a claim. The case was distinguishable from Tallah (supra) where the applicant had genuine convictions (262 G-H; 263 D-E).

[16] It was upon the terms of the rule, rather than the dicta in past cases upon which the rule followed, that the Court should concentrate. Contrary to the need to look at the matter with "anxious scrutiny", care should be taken not to subject it to too close an analysis (R v Secretary of State for the Home Department ex parte Nassir [1999] INLR 92, Lord Woolf MR at 95 F-G). The refusal letter of 5^th July 2000 made it clear that the respondent had applied the correct test, taken all matters into account and made a reasoned determination that the new information could make no material difference to the outcome of the asylum application.

[17] The legitimacy of rule 334 is not under challenge. In relation to the first application, therefore, since the applicant was (a) in the United Kingdom, the respondent required to determine: (b) whether he was a refugee in the sense of having a well founded fear of persecution; and (c) whether an enforced return of the petitioner to Algeria would involve him going to a country where his life or freedom would be threatened on account of the reasons stipulated in the Convention and repeated in the rule.

[18] There were two bases originally proffered, albeit in vague terms, by the petitioner as to why he did not want to return. The first was because of the political turmoil. This most general of reasons was rejected as insufficient to merit political asylum and was not pursued in the current process. The second was because he did not want to repeat military service. It appears clear from the respondent's decision letter of 4th March 1997 that he did not accept the petitioner's actions were those of a genuine refugee, i.e. he did not believe that the petitioner had a fear of persecution in terms of rule 334(b) whether or not connected with military service. He went on to determine that even if the petitioner was unwilling to do military service then that did not stem from any political, religious or moral conviction.

[19] The decision of the Special Adjudicator does have to read along with that of the respondent. It is not materially different from it. The Special Adjudicator also did not believe that the petitioner had a fear of persecution. He thought that the reasons for the petitioner coming to the United Kingdom were purely economic, i.e. unconnected with any reluctance to do further military service. In that state of affairs, a determining element of the decisions on the first application was that the petitioner did not have a fear of persecution and that his reasons for coming to, and being in, the United Kingdom had nothing to do with the prospect of military service in the event of a return to Algeria. This was quite apart from the fact that he had in addition given no reason for wishing to avoid military service which could have put him into a category of a type described in the Convention.

[20] The re-application drew attention to atrocities carried out by the Algerian military but remained coy about whether that had anything to do with the petitioner's reluctance to return to Algeria or his purported reluctance to do further military service. It was skilfully worded with a view to placing the petitioner at least into an appropriate Convention category. In that connection, it can hardly be doubted that if a person does object to performing in a military because of its perpetration of recognised and condemned atrocities, then that person can, in certain circumstances, claim refugee status. That is because, if it were the case that he could be imprisoned for refusing to join that military, the resultant punishment would be because of his political opinion in terms of the Convention. However, the Convention still requires that the applicant actually has a fear of persecution of this type. It is not sufficient that he would be punished for refusing to join such a military, for example if he does not want to do so for economic reasons or fear of being injured or killed in action. He must be someone who objects to joining because of his disapproval of the atrocities and fears that he will lose his liberty in the event of his acting in accordance with his objection. In this connection, the Tribunal in Tallah (supra) seem to be going too far in qualifying or modifying what the Special Adjudicator in that case regarded as the real dispute (260 B-C).

[21] When the Secretary of State came to look at the re-application, he did so under rule 346, the terms of which are again not challenged as illegitimate. He had to determine whether the re-application was "sufficiently different" from the first one "that there was a realistic prospect" of a different result being reached. In so determining, he was entitled to disregard material which was not significant or was available to the applicant at the time of the previous determination. The Secretary of State's decision was that the re-application did not meet the test in rule 346. That decision was one which he was entitled, if not bound, to reach.

[22] The first point is that the decisions on the first application, read together or separately, concluded that the applicant was not a genuine refugee in that he did not have a fear of persecution related to military service or otherwise. His reasons for being in the United Kingdom were not, according to these decisions, connected with compulsory military service. Rather they were purely economic. Accordingly, it mattered not to the petitioner's case whether the Algerian military were carrying out atrocities or whether that might, in another case, give a person legitimate grounds for asylum. The fact remained that this was not the reason for the petitioner coming to or remaining in the United Kingdom nor was it the basis for any reluctance to return to Algeria. In these circumstances the respondent's decision to refuse to entertain the re-application as a fresh one cannot be said to be unreasonable. On the contrary, it was based upon a sound reason, namely the stated one that the material on the atrocities did not effect the fact repeated in the decision letter on the re-application that the petitioner's motives were economic and not a fear of persecution.

[23] So far as failing to take relevant considerations into account, there is no substantial basis for supposing that the respondent failed to take into account any of the new factual material put before him. Indeed, in the decision letter he said that he had considered the information provided in the re-application letter. It is certainly unfortunate that the respondent's decision letter said that the respondent was unable to comment on certain documents not copied to him. That was unfortunate because these well known materials must have been known to and in the possession of the respondent and to say that no comment was to be made on them because further copies were not sent to him was, putting it at its lowest, less than helpful. However, his failure to comment on the documents does not mean that he failed to take into account the facts which the contents of these documents evidenced, i.e. the atrocities of the Algerian military which had by then been condemned by the international community. Equally, his failure to make a specific mention of a particular paragraph of the UNHRC Handbook is not to be taken as demonstrating that he was unaware of it or paid no heed to it. Indeed, the contents of the decision letter on the re-application suggest that the respondent was quite aware that, in certain circumstances, avoidance of military service could form the basis for asylum but, as the Handbook says, these circumstances have to be made out.

[24] I should add that even if had been demonstrated that the respondent had failed to take account of the matters complained of, these could still not be regarded as significant in the sense of being capable of producing a different outcome than that reached on the first application.

[25] Having scrutinised and analysed the matter, I hope with the appropriate degree of care and closeness, I consider that the respondent applied the correct test, took all relevant matters into account and reached a reasonable decision. I will therefore repel the petitioner's first plea-in-law, sustain the second and third pleas-in-law for the respondent and refuse to grant the remedies sought in the petition.