Secretary of State for the Home Department v. 'Two Citizens of Chile'

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v 'TWO CITIZENS OF CHILE', TH/2537/76(803)

Immigration Appeal Tribunal

[1977] Imm AR 36

Hearing Date: 21 September 1976

21 September 1976

Index Terms:

Political asylum -- Political refugees -- Asylum already granted in another country (Romania) for one year initially -- Application for asylum while on visit to United Kingdom from country of original asylum and two other countries en route -- Uncertainty whether original country of asylum would re-admit applicants -- Absence of legal right to reside in any country other than country of nationality not the issue -- Onus on applicants to show that refuge no longer available to them in previous country of asylum or elsewhere -- Consideration in light of 'all the relevant circumstances' -- Contracting State to Convention Relating to the Status of Refugees (Cmnd 9171) not compelled to accept refugee who is able to go to a country where he will be free from persecution, whether or not that country is a Contracting State -- Application of immigration rules -- Convention Relating to the Status of Refugees, Arts 1, 32, 33 -- Immigration Act 1971, s 19 (1) & (2) -- Immigration Appeals (Procedure) Rules 1972, r 31(2) -- HC 82, para 28.

Held:

The applicants were political refugees from Chile. In June 1974 they were granted political asylum in Romania, initially for one year. In 1975 they left Romania and after staying 3 months in Sweden and a month in Berlin they came to the United Kingdom in October 1975; they were admitted for 2 months on their misrepresentation that their intention was only a visit to a Peruvian friend. One week later they applied for political asylum; this was refused on the ground that they had already been given refuge in Romania. The applicants' appeal to an adjudicator was allowed to the extent that he granted them 2 months' extension of stay to enable them to make arrangements either for re-admission to Romania or for acceptance into another country. On the appeal of the Secretary of State against the adjudicator's decision, and the cross-appeal of the applicants against his directions ordering only 2 months' extension, it was submitted for the applicants, inter alia, that an adjudicator's discretion when reviewing the Secretary of State's refusal of political asylum was not restricted to matters contained in para 28 of HC 82 n1 -- account should be taken of Articles in the United Nations Convention Relating to the Status of Refugees; and further that to succeed the applicants need only show that they had no legal right of residence in any country other than their country of nationality -- there was no onus on them to prove positively that no other country would grant them entry it was noted that it was uncertain whether they would be re-admitted to Romania. n1 Paragraph 28 of the Immigration Rules HC 82 is set out on p 42, post. In his address to the Tribunal counsel appearing for the Representative of the High Commissioner for Refugees advised that there was no likelihood of the applicants being persecuted in Romania, and that Arts 32 and 33 of the Convention did not compel a Contracting State to the Convention to accept a refugee who was able to go to a country (whether or not a Contracting State) where he would be free from persecution. Held: (i) the immigration appellate authority had to decide political asylum appeals in accordance with the Immigration Act 1971 and the Rules made thereunder, although the Convention and the Universal Declaration of Human Rights might be of assistance in indicating the way in which the Act and Rules should be interpreted; (ii) the only jurisdiction which an adjudicator had was that conferred on him by s 19 of the Immigration Act 1971; consequently he had no discretion to go outside para 28 of HC 82 when reviewing the Secretary of State's decision to refuse political asylum; (iii) the onus was on the applicants (under r 31(2) of the Immigration Appeals (Procedure) Rules 1972 to show that if they were not granted an extension under para 28 of HC 82 they would have to go to a country in which they had a wellfounded fear of being persecuted; the fact that they had no legal right of entry to any country other than Chile did not mean that they would have to return to Chile; and under para 28 the applicants' position had to be "carefully considered in the light of all relevant circumstances".

Counsel:

B. M. Birnberg for the applicants. K. E. R. Rogers for the Secretary of State. PANEL: D. L. Neve Esq (Vice-President), B. J. S. Edmond Esq, Sir Gordon Whitteridge

Judgment One:

THE TRIBUNAL: There are three parties to these cross-appeals -- two citizens of Chile (a husband and wife to whom we shall refer in the course of this determination as "the applicants"), the Secretary of State for the Home Department, and the United Kingdom Representative of the United Nations High Commissioner for Refugees whose Legal Adviser, Dr R. Plender, attended the hearing before the adjudicator (Mr M. Patey) and has appeared before us. The facts of this case are not substantially in dispute. The applicants are both citizens of Chile and it is agreed by all parties that they are political refugees within the meaning of the immigration rules and the United Nations Convention Relating to the Status of Refugees. They fled from Chile after the Government of President Allende was overthrown in September 1973 and went to Peru. They wished to go to the United Kingdom, but were unable to obtain the necessary visas, and eventually (through the good offices of the United Nations High Commissioner for Refugees) they obtained political asylum in Romania, where they arrived on 7 June 1974, being given permission to remain there for an initial period of one year. The applicants remained in Romania for about a year, leaving in June 1975. They left Romania because there were aspects of life in that country which they disliked. After leaving Romania they went to Sweden where they stayed for about 3 months. After this they went to Berlin where they stayed for about a month. On 6 October 1975 they arrived at Gatwick Airport. On arrival they told the immigration officer who interviewed them that they wished to stay in the United Kingdom only for 2 months to visit a Peruvian friend. This is now admitted to have been a misrepresentation. n2 They were admitted for 2 months on condition that they did not enter into employment. One week later (on 13 October) they called at the Home Office and requested political asylum. This was refused and against the refusal they appealed to an adjudicator. n2 The applicants later agreed before an adjudicator that they experienced little difficulty in obtaining entry into both Sweden and Germany, and it was agreed that when questioned on arrival at Gatwick Airport they specifically denied any intention to seek political asylum here. Their appeal was heard by Mr M. Patey and determined by him on 21 May this year. Mr Patey allowed their appeal to the extent that he found that they were entitled to an extension of their permission to stay in this country in their capacity as political refugees, but he directed that they be granted an extension of stay in this country of 2 months, as from 21 May 1976, to give them an opportunity to make application for re-entry visas to Romania and/or for acceptance in another country. This determination evidently pleased nobody, since the Secretary of State is now appealing to us against the adjudicator's finding that the applicants should be granted an extension at all; and the applicants are not satisfied with the extension granted, seeking in the first instance an extension of 12 months -- the usual extension in cases involving political asylum; they are consequently appealing against the directions given by the adjudicator. The question in issue in these appeals is really very simple and can be summarised as follows: are political refugees, who have been granted asylum in another country, entitled to come to this country and to claim political asylum here if they do not like the first country which has accepted them? In this case there is the added slight complication as to whether the first country of asylum would be willing to receive them back, but the above question sets out the nub of the matter. The grounds for the Secretary of State's refusal of the applicants' applications are contained in the penultimate sentence of para 7 of the Home Office explanatory statement: "The Secretary of State was not satisfied that the appellants met the criteria for the grant of asylum in this country as they had on their own admission been given refuge in Romania following their flight from Chile." And a letter dated 18 February 1976 signed by Mr Alex Lyon, the Minister with responsibility for immigration matters, in reply to a letter from Mrs Judith Hart, MP, contains the following passage:

"(The applicants) were interviewed in depth and their application was very carefully considered but it was not felt that they qualified for asylum here, mainly because they had been accepted by Romania as refugees from Chile and had in fact lived there for nearly a year. There is a very large number of Chileans in urgent need of refuge in another country who are only too pleased to travel anywhere they are accepted. We feel that our limited facilities should be directed towards the most deserving of these people and that we should not encourage refugees to change their countries of refuge. We are strongly supported in this view by the Refugee Organisations in this country, including the Child Solidarity Committee. In this particular case, (the appellants) had no valid reason for leaving Romania and I feel that they should return there."

Before Mr Patey, Mr Birnberg submitted that an adjudicator has complete jurisdiction to review the Secretary of State's decision to refuse political asylum, and that his discretion was not restricted to matters contained in the relevant paragraph of the immigration rules. He submitted that since the applicants' visas, permitting them to be in Romania, had expired on 5 June 1975, the only country to which they had a right to go was Chile and that -- it being conceded that the applicants were refugees -- they could not be returned to that country without breaching the United Nations Convention relating to refugees, and indeed the immigration rules. In reply to the contention on behalf of the Home Office that the onus was on the applicants to demonstrate that asylum was no longer available to them in Romania, Mr Birnberg submitted that all they had to show was that at the material time they had no legal right of residence in any country other than their country of nationality. In his submission there was no onus upon the applicants to prove positively that no other country would grant them entry. In his determination the adjudicator found that the only jurisdiction which he had was conferred upon him by s 19 of the Immigration Act 1971. This being so he had to consider the matter under para 28 of HC 82 n3 and, after setting out the arguments which had been advanced before him, in the penultimate paragraph of his determination he said this: n3 Paragraph 28 of HC 82 is set out on p 42, post

"After full consideration of these submissions I must find that at the time of application and indeed at the time of hearing the appellants had no right of entry or certainty of admission to any country save Chile, their country of nationality, and that if they were to go there they would have a well-founded fear of persecution. Although the Secretary of State has declined to exercise his personal and overriding discretion in the appellants' favour and grant them permanent asylum, which is, as I have found, a matter outside my jurisdiction, I consider that, as the appellants did not have an assured right of admission to any country apart from Chile, they are entitled under the provisions of para 28 of HC 82 to an extension of stay in the United Kingdom to afford them adequate opportunity to make arrangements for their acceptance in another country. As to the period of this extension, it is very relevant to note that the appellants have agreed that they experienced little difficulty in obtaining entry into both Sweden and Germany and moreover they are awaiting a decision on their application for re-entry visas to Romania. I would not therefore articipate that they would require any appreciable time to obtain the necessary permission to enter any of these or indeed other countries. I shall accordingly allow their appeals and I direct, under s 19(3) of the Immigration Act 1971, that they be granted an extension of stay in the United Kingdom of 2 months from date hereof to enable them to make the necessary arrangements for their departure."

Since the appeal before the adjudicator further enquiries have been made with regard to the applicants' prospects of being able to return to Romania. Mr Birnberg wrote to the Romanian Embassy enquiring whether the Romanian authorities would be willing to have the applicants back in Romania. This brought forth a letter from the head of the Consular section (annex A to a supplementary Home Office statement) which reads as follows:

"With reference to your letter, I would like to inform you that not returning to the country (Romania) within the period of 90 days (mentioned in your visa) is considered that you already renounced your political status as a political immigrant and you have no more the obligation to return to Romania. The same for your wife."

With regard to this letter the Home Office explanatory statement says this:

"3. In an endeavour to clarify the situation an officer of the Foreign and Commonwealth Office, at the request of the Home Office, spoke by telephone on 20 May 1976 to Monsieur Radvica of the Embassy of the Socialist Republic of Romania, London, regarding his letter to (the applicants') solicitors. The Officer informed Monsieur Radvica that his letter had been construed by the Home Office to be an indication that (the applicants) could not return to Romania when in fact that was the interpretation which had been placed on the letter by solicitors. Monsieur Radvica stated, however, that that interpretation was not correct and that his letter, which had been written as the result of an official instruction from Romania, had simply informed (the male applicant) that he and his wife werenot 'obliged' to return to Romania. He explained that (the applicants') exit permits had expired and that they were regarded, again, as being in the position of Chilean refugees outside Romania who would have to make fresh applications as political immigrants if they wished to return to that country."

In the course of his very helpful address to the Tribunal, Dr Plender informed us that he had made enquiries from the Romanian Embassy and discussed the matter with the writer of the letter above quoted. He had been informed that the applicants had no legal right to return to Romania but that it was open to them to make application to be allowed to do so. They would not have priority over those refugees currently in Buenos Aires. The Embassy official confirmed that the letter which he had written simply conveyed that the two applicants were 'not obliged to return' to Romania. Mr Rogers, for the Secretary of State, has submitted that this matter can only be considered under para 28 of HC 82; n4 this provides that a refugee "may claim that, if an extension were not granted, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted". He submits that the onus of substantiating such a claim is upon the applicants, and this by virtue not only of the ordinary rules of evidence but specifically by reason of r 31(2) of the Immigration Appeals (Procedure) Rules 1972, which reads as follows: n4 Paragraph 28 of HC 82 is set out in full on p 42, post. "31(2) If in any proceedings before an appellate authority a party thereto asserts any fact of such a kind that, if the assertion were made to the Secretary of State or any officer for the purposes of any of the provisions of the Act or any immigration rules, it would by virtue of those provisions or rules be for him to satisfy the Secretary of State or officer of the truth thereof, it shall lie on that party to prove that the assertion is true." He has submitted that the applicants in this case have failed to discharge this onus and that the adjudicator should consequently have dismissed their appeal. Mr Birnberg has repeated the submission which he made to the adjudicator -- that is to say, that the adjudicator had jurisdiction to interfere with the Secretary of State's findings and that he should not be confined to the provisions of para 28 of HC 82. He has referred us to Art 14 of the Universal Declaration of Human Rights, emanating from the United Nations Organisation, which reads as follows:

"Everyone has the right to seek and to enjoy in other countries asylum from persecution."

He has also referred us to Articles 15, 17, 18 and 19 of the 1951 Convention Relating to the Status of Refugees, to which Convention the United Kingdom was a Contracting State. With regard to the question of the onus of proof, Mr Birnberg submits that it is not incumbent upon the applicants to prove that no other country will accept them, because it would be patently absurd for the applicants to have to apply to every country in the world -- or at least to those Contracting States under the Convention -- to establish that they would not be receivable there before they could claim an extension of stay under para 28. He submits that they have proved all that they need to prove -- namely, that they are not legally receivable by any other country. He submits that the standard of proof which is required of them is similar to the standard of proof which was involved in the case of Fernandez v Government of Singapore and Others n5. In that case the House of Lords found that the standard of proof required of a person against whom proceedings were being taken under the Fugitive Offenders Act 1967, as to the treatment he might be expected to suffer if returned to his own country, was a very low one. Mr Birnberg suggests that this is also true of the standard of proof required from the applicants in this case. He suggests that the United Kingdom is the first true country of asylum for the applicants, since Romania is not a Contracting State under the United Nations Convention relating to refugees, and the United Kingdom had been the applicants' first choice when they were asked by the United Nations High Commission to which country they would like to go. He submits that the two applicants had not been allowed to work in Romaina and their life there was unsatisfactory. He suggests that there is support in the Common Law of this country for his submissions, since this country "has traditionally shown itself to be a beacon of liberty to those subject to oppression", and he refers to remarks to this effect in a pamphlet issued by the Central Office of Information commenting upon the Universal Declaration of Human Rights. He further submits that the adjudicator's directions were inconsistent with his findings: if the adjudicator was satisfied that the applicants were entitled to be allowed to remain in this country as refugees, it was in his submission inconsistent to allow them to remain here simply for a limited period of 2 months. n5 [1971] 2 All ER 691; [1971] 1 WLR 987. In his address to us Dr Plender stated that the sole interest of the United Nations High Commission in cases such as these was in seeing that Art 33 of the 1951 Convention was observed, and that no Contracting State should "expel or return a refugee" to a country "where his life or freedom would be threatened on account of his race, religion, nationality", etc. He advised that in the view of the Commission there is no likelihood of the applicants being persecuted in Romania, and in so far as his Commission was concerned it was a matter of indifference whether the applicants were received by the United Kingdom or by Romania. They were, however, interested in the precedent set by this case. His Commission do not consider that Art 32 and 33 of the Convention compel a Contracting State to accept a refugee who is able to go to a country where he will be free from persecution -- and this applies even if such country is not a Contracting State to the Convention. We have considered all these submissions. We would first observe that the immigration appellate authority have to decide political asylum appeals upon the basis of the law of England, and particularly in accordance with the Immigration Act 1971 and the Immigration Rules made thereunder. The United Nations Convention and the Universal Declaration of Human Rights cannot so far as the immigration appellate authority are concerned overrule the Immigration Act 1971 and the Rules made thereunder, although they may well be of assistance in indicating the way in which the Act and Rules should be interpreted. We also have no doubt that the only jurisdiction which the adjudicator had in this -- or indeed any other appeal -- is that conferred upon him by s 19 of the Immigration Act 1971. If he has any jurisdiction in addition to this, whence does it come? No suggestions have been advanced, and we are satisfied that he properly directed himself as to this question. It was therefore incumbent upon the adjudicator to consider the appeal under para 28 of HC 82, which applied to the applicants in this case. That paragraph provides (under the heading 'Political asylum') as follows: "A person who does not otherwise qualify for an extension of stay may claim that, if an extension were not granted, 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." n6 n6 The criterion for the grant of asylum is stated in a footnote to para 28 to be 'in accordance with Article 1 of the Convention Relating to the Status of Refugees (Cmnd 9171)". We have not the slightest doubt that the onus is upon the applicants to establish that they "would have to go" to such a country, and as to the submission that it would be patently absurd for them to have to apply to every other country in the world, we feel that the last sentence of para 28 is apposite. One of the relevant circumstances in this case is that the applicants lived in Romania for almost a year before coming to this country. We are satisfied upon the evidence before us that all the indications are that, had the applicants made timely application for an extension of their Romanian visa -- as they did not choose to do -- it would have been granted. The adjudicator found:

"That at the time of application and indeed at the time of hearing the appellants had no right of entry or certainty of admission to any country save Chile."

This was not to find that they "would have to go" to Chile if refused an extension of stay here -- a requirement of para 28. For these reasons we feel that the applicants failed to discharge the onus of proof which was upon them in their appeal before the adjudicator and that the adjudicator should consequently have dismissed their appeal to him. This being so we allow the appeal of the Secretary of State and dismiss the appeal of the two applicants.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

M. B. Birnberg & Co.

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