Tocmo Lucia Duarte v. Secretary of State for the Home Department

TOCMO LUCIA DUARTE
APPELLANT(S)
AND
The Secretary of State for the Hold Department

RESPONDENT

Mr. R.E. Maddison (Chairman), The Countess of Mar, Mr. N. Kumar, JP

DETERMINATION AND REASONS

The appellant is a citizen of the Philippines. On 15 November 1992 the Secretary of State decided to initiate deportation proceedings against her, pursuant to Section 3(5)(a) of the 1971 Act (as amended). An appeal was dismissed by an adjudicator (Mr. R.J. Oliver) in a determination dated 19 March 1993. On 20 April 1993 she was granted leave to appeal to the Tribunal.

Before us Mr. J. Chhotu, instructed by Crosse Wyatt and Samuel, solicitors of Barnstable, Devon, appeared for the appellant: Mr. A. Gammons represented the respondent.

The appellant was last granted leave to enter the United Kingdom on 23 August 1991: she had an entry clearance endorsed "single visit - accompanying employer A Al Rajhi": she was granted leave to enter for six months with employment prohibited. That was of course not a reflection of the true position: she was a servant and the Home Office well knew she would be employed throughout her visit. Be that as it may, after some four or six weeks she left or ran away from her Saudi employers. She went to her cousin who lived in Essex: by that relative she was found a post with a Belgian family. She has worked with them ever since, as a domestic servant, earning some £118 per week. In December 1991 she met a Mr. Earle Henningham at his birthday party in Holland Park: they were married on 26 June 1992, it seems, at Brent Register Office: the marriage broke down and she left him after some two months. She now has an association with a Mr. Keith Blakely whom, if free to do so, she has said, she wishes to marry.

She came to the notice of the Home Office through "denunciation received" and was interviewed on 15 November 1992. Mr. Chhotu was present at that interview. In her interview she asserted that she had been beaten and abused by her employers and faced with returning to Riyadh she "fled rather than be subjected to further abuse".

The grounds of appeal to the adjudicator read:

"1.The decision is wrong, I came to UK with my employer who assulted (sic) me and had to ran away.

2. I did not know how to apply and what to do about my visa, I thought my husband was going to deal with my visa.

3. I do not wish to be removed to Philippines or to Saudi Arabia when I was working.

4. Its wrong to ask me to leave the UK. I have no where to go to. If I go to Saudi or the Philippines were (sic) my employer will beat me for running away."

"1..Because if I am remove to Philippines my employer and his agent will beat me for running away from them. If I go to Philippines or Saudi, the police there will beat me for running away from the Saudi family to whom I was sold.

2. If I go to Saudi I will be beaten and so will the other workers in Saudi house.

3. If I must go then I would like to go to USA or somewhere else like Canada were (sic) I will not be beatin (sic) for sex."

We note that she sought to appeal against the removal directions to the Philippines, but she has not put forward any alternative destination and shown that that country would be willing to receive her: she has therefore no valid appeal against the removal directions.

It is not disputed that the appellant is an overstayer nor that it is less than seven years since she was last granted leave to enter the United Kingdom. The jurisdiction of the appellate authorities is limited therefore to determining whether the Secretary of State had power in law to take the decision he took. On the facts he undoubtedly had that power.

That would be the end of the matter except for the fact that Mr. Chhotu has asserted that the appellant has a well-founded fear of persecution in the Philippines and that the Secretary of State has failed to consider her application for political asylum. Mr. Chhotu says that the applicant is a member of a social group - which he defines as a group of female contract workers from the Philippines subject to harassment if not persecution by those who engage them in the Philippines and who employ them in the Arab states, especially Saudi Arabia.

Three issues arise: first has there been an application for political asylum, second has it been considered by the Secretary of State and third has it any merit.

There never has been, in our view, an application in terms for political asylum. Mr. Chhotu was present at her initial interview with the immigration authorities following her arrest. There was ample opportunity for an application for asylum then to be made by an applicant already professionaly assisted. None was made. Her account, as we note above merely states that she was, as an individual, beaten and abused. Albeit that is deplorable treatment, it does not amount to an assertion of harassment within the Convention: it is not associated with a particular social group. Mr. Chhotu submitted that the appellant could not be expected to know the technicalities of the Convention. We agree but it is not necessary to know those technicalities in order to put forward a genuine case for asylum. A knowledge of the technicalities only becomes necessary when an applicant wishes to adjust an otherwise unmeritorious application so as to give it a greater chance of success. Immigration officers conducting interviews with overstayers are experienced in identifying ill-phrased but prima facie substantive claims for asylum. Despite the presence of Mr. Chhotu at the interview it is manifest that the appellant (as the assessment correctly notes) "does not wish to return to Manila as her family are poor and she has no prospects there". It is not possible reasonably in our view to identify any asylum claim from that interview.

Mr. Chhotu likewise submitted that the grounds of appeal we quote above were inherently an application for asylum which the Secretary of State had not considered. In fact, as Mr. Gammons pointed out, the Secretary of State had reviewed the case on receipt of those grounds, but clearly had not seen them as incorporating a claim for political asylum as properly understood. We agree. There is nothing in those grounds that remotely approaches a case under the Convention.

Only before the adjudicator did Mr. Chhotu define his position in seeking to identify a social group into which the appellant could fit, however uneasily. We do not accept that any such social group, within the meaning of the Convention, exists. True it is that the concept has been left deliberately vague in the Convention, but as commentators have made clear there must be some cohesive quality to constitute a social group (see G S Goodwin-Gill The refugee in international law p30) and there must also be in our view, a suggestion that the group per se is subject to hostility or harassment. Foreign workers are likely often to be economically oppressed and some individuals may be open to abuse. There is no evidence that contract workers from the Philippines are harassed or persecuted because they are from the Philippines or for any other reason linked with their origin: indeed there is no evidence that they are harassed or persecuted as a social group. The "social group" of the Convention is usually, but not exclusively one identified by ethnic, linguistic, religious or cultural characteristics, which constitutes a minority within a particular society and are regarded with hostility by government or the majority of the population on those grounds.

We conclude without hesitation that the appellant, in her circumstances is not a member of a social group within the meaning of the Convention or has demonstrated that any group to which she belongs is subject as a group, to harassment or persecution. It is not surprising that the Secretary of State on reviewing the case, failed to identify a single element which would turn this case into an arguable case for asylum.

The contentions that the applicant has any case for consideration on the basis of a claim for asylum, is without merit.

The appeal is dismissed.

R. E. MADDISON

CHAIRMAN

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