United Kingdom Asylum and Immigration Tribunal

AH v Secretary of State for the Home Department [2002] UKIAT 00062
HX-23318-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18/12/2001

Date Determination notified: 07/02/2002

Before
The President The Hon Mr Justice Collins Mr C M G Ockelton Mr. P. R. Moulden
Between

 

AH	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Representation: For the Appellant: Mr. R. Scannell, Counsel For the Respondent: Mr. P. Deller, HOPO
DETERMINATION AND REASONS
1. The appellant is a citizen of Libya. He attempted to enter the United Kingdom illegally on 17 January 1999 using a forged Moroccan passport. He claimed asylum. That claim was refused on 8 January 2001 and on 6 March 2001 he was refused leave to enter and was informed that it was proposed to give directions for his removal to Libya. He appealed to an adjudicator under s.69 (1) of the 1999 Act and in addition raised objections to removal under s.65, alleging that his removal to Libya would breach his human rights and would in particular contravene Article 3 of the European Convention on Human Rights.
2. The appellant had left Libya in 1991 and had travelled around and resided in a number of different countries before coming to the United Kingdom. He said he had left Libya because of his political activities, in particular the distribution of leaflets which were anti-government. He had had to leave Saudi Arabia, Syria and Qatar, where he had been living, in turn because of adverse interest in him as a result of his Libyan nationality and because his use of a forged passport had been discovered.
3. When the appeal came before the adjudicator (Hugh Macleman) on 4 September 2001, he did not consider or reach any conclusion on the credibility of the appellant's account, but expressed an unsurprising scepticism at what was being said in the statement provided. He had his attention drawn to a CIPU Bulletin of 11 May 2001. This reads:

"ENFORCED REMOVAL OF FAILED ASYLUM SEEKERS

Summary

1. In Apri1 2000 Amnesty International made representations to us in the specific case of a failed Libyan asylum seeker where we had enforced his removal to Libya. It was said that this individual was arrested and imprisoned on return to Libya. A temporary hold was placed on further removals whilst we made further enquiries. Amnesty International Canada also produced a report last year in which they said that, in addition to being detained, several returned asylum seekers have been subjected to serious human rights violations, including torture.

2. On the basis of the information from Amnesty International, UNHCR urged caution in returning failed asylum seekers to Libya. They also point to an incident in March last year concerning several Libyan nationals, who were extradited from Jordan to Libya, at least 3 of whom were killed on arrival at Tripoli airport.

3. The Foreign and Commonwealth Office advised that: any Libyans returning to that country after an absence of six months or more are subject to an interrogation by the Libyan security authorities. Failed asylum seekers are routinely imprisoned by administrative (as opposed to judicial) order for `having shown disloyalty to the state'.

4. In the light of this information we do not believe that we can at present safely enforce removals of failed asylum seekers to Libya. Any representation made under Article 3 of the Human Rights Act against the removal to Libya of a refused asylum applicant, and based on information currently available in the public domain is likely to succeed. The Foreign and Commonwealth Office has said that they do not expect a significant change in the human rights situation in Libya within the next twelve months.

New Policy

5. As a consequence of the above it has been decided that a limited exceptional leave policy for failed asylum seekers from Libya will be introduced as follows:

(a) refused Libyan asylum seekers to be granted 6 months ELR/E.

(b) senior case workers to submit, to the Minister, advice on individual cases involving applicants who have been convicted of a serious crime and those subject to a recommendation to deport by the courts.

(c) There will also be close, ongoing monitoring of the situation, to facilitate a review of this policy in twelve months or sooner if new information becomes available on the safety of return."

The appellant's solicitors had written to the Home Office on 15 June 2001 drawing attention to paragraphs 3 and 4 of the Bulletin and stating:

"In the light of the information given by the FCO we would invite the Secretary of State to grant refugee status and indefinite leave to enter to our client as the information clearly demonstrates that our client will be considered to have a political opinion (`disloyalty to the State') regardless of any conclusion that the Secretary of State has reached in relation to the particular facts of his claim. He clearly will experience persecution as a result of that imputed political opinion."

That letter was also put before the adjudicator.

4. The Home Office had not replied to the letter nor did any representatives attend the hearing. While we are well aware of the pressures on the Home Office and the manpower problems, it is to say the least surprising that nothing should have been done to deal with the solicitor's suggestion and that at the very least exceptional leave in accordance with the new policy should not have been granted. That at least would have disposed of the appeal under s.58 (9) of the 1999 Act. The adjudicator concluded as follows in Paragraph 5 of his determination:

"The respondent is the source of that information, has not replied to the letter from the appellant's agents, has not appeared at the hearing, and has made no submission in writing. The conclusion is irresistible that the return of the appellant to Libya would breach, at least, the United Kingdom's obligations under Article 3 of the Human Rights Convention."

He accordingly allowed the appeal.

5. The appellant sought leave to appeal on the basis that his asylum claim should have succeeded. The grounds themselves are somewhat ill-thought out and raise foolish points such as an alleged failure to indicate the standard and burden of proof. They also allege that the appellant's counsel was misled in that the adjudicator indicated to her that he would allow the appeal on the basis of the Refugee Convention. We have not considered that allegation nor have we asked the adjudicator for his comments. It has not been necessary to go into that issue to enable us to determine the appeal. Leave was granted and our determination was to be starred because the following question was said to arise:

"Whether an adjudicator who allows on human rights grounds an appeal against removal has an obligation also to consider any asylum grounds argued against the same decision."

6. Paragraph 22(1) of Schedule 4 to the 1999 Act entitles any party to an appeal (subject to leave being given) to appeal to the Tribunal "if dissatisfied with [the adjudicator's] determination." Thus there is no bar to an appeal by an appellant whose appeal was allowed by the adjudicator. Mr. Scannell has submitted an elaborate skeleton argument which questions whether there is in reality only one appeal before the adjudicator. He also asked us to await the decisions of the Court of Appeal in Saad & others v Secretary of State for the Home Department and R(Secretary of State ) v I.A.T. which were due to be and which were in fact given on 19 December 2001. These would, it was said, be likely to give useful guidance on the points involved. We have considered the decisions. They assist us in the sense that they confine the approach which we would in any event have considered to be correct.
7. There is in our view one appeal but there may be different grounds for attacking the particular decision.In this case, removal in consequence of the refusal of leave to enter was said to be impossible because it would breach both the Refugee and the Human Rights Conventions. The Home Office for reasons which are not immediately obvious has decided that those recognised as refugees should be treated more favourably than those given exceptional leave to enter or to remain on other grounds, for example because to return them would breach Article 3 of the European Convention on Human Rights. The main difference is that refugees are, notwithstanding the provisions of the Immigration Rules, given indefinite leave to enter or to remain. There are said to be additional benefits, but it is not clear to us what these are or why they should exist. Certainly there is nothing in the Refugee Convention which on its face would be inappropriate for those granted exceptional leave for a limited period, particularly as the Convention itself does not require the grant of leave for more than a limited period until the situation in the refugee's home country enables him to return. However, there are clearly advantages from a refugee status.
8. It follows in our judgment that an appellant is entitled if he wishes to have his grounds of appeal which will lead to greater benefits decided. Any claim before a court may be based on a number of grounds. If the result is the same whatever ground succeeds, it is clearly unnecessary to consider others if one succeeds. But if there are added advantages from one as opposed to another, that one must be determined. The question posed approaches the issue the wrong way round. The reality is that an adjudicator should first consider the asylum appeal. If he decides that in favour of the appellant, there is normally no need to consider the alternative human rights grounds. If he decides that he is going to allow an appeal on human rights grounds, he may ask the appellant whether he wishes to have a decision on the asylum grounds. If the appellant is content that the appeal should be decided in his favour on human rights grounds, the adjudicator need not decide the asylum grounds. Otherwise he must. This is all, of course, subject to the Secretary of State not granting exceptional leave. If he does, s.58(9) brings the appeal to an end (unless it is an appeal under s.69(3)).
9. The difficulty with the Home Office policy set out in the CIPU Bulletin is that it ignores the decision of the High Court (Laws J) in R v I.A.T. ex p. Senga (9.3.94). If returned to Libya, there is clearly a real risk that the appellant will suffer imprisonment and so persecution because he has `shown disloyalty to the State' by absenting himself. The persecution will be for a Convention reason, namely imputed political opinion. Thus the Bulletin itself establishes that the appellant is a refugee, not on the grounds he relied on but because on return he would face persecution. Mr. Deller properly accepted that this must follow and that the appellant had inevitably to be regarded as a refugee. Since that suffices to enable him to achieve what he desires, it is unnecessary to consider whether he has made out his case to be regarded as a refugee on other grounds. We have not done so.
10. It follows that we must allow this appeal and direct the Secretary of State to treat the appellant as a refugee. Since we can only give directions which are in accordance with the Rules, we cannot require that he be given indefinite leave to enter. However, if the Secretary of State does not immediately treat him as a refugee and grant all the benefits which a refugee is granted, he will be vulnerable to judicial review in the form of a mandatory order and it is difficult to see that he would have any defence, unless, of course, the situation in relation to those returned to Libya changed overnight.
11. We are bound to say yet again that we cannot understand why the Secretary of State has created the rod for his own back by his policy of granting indefinite leave. The Court of Appeal decision in Saad would be immaterial if he only complied with his Convention obligations and did not choose to give more to refugees than their entitlement; and gave the same rights to those granted limited leave on other grounds. There may often be a situation arising in a country which compels many to flee because they face a real risk of persecution for a Convention reason, but it is anticipated that the risk will after a time disappear. Such people are refugees and should be treated as such while the risk exists. But they do not need nor should they receive indefinite leave since in due course they should be able to return in safety. Ethnic Albanians forced to leave Kosovo. are a good example. Before the NATO bombing and the protection given by UNM1K and KFOR they were often properly to be regarded as refugees; since the situation has changed, they are not normally to be regarded as refugees. We hope that the Home Office will reconsider its policy since it is not only contrary to the Rules but is leading to problems which should not exist.

Sir Andrew Collins (President)