Hammid Tuama Abdul Sali v. Secretary of State for the Home Department, Immigration Officer Heathrow and United Kingdom Representative of the United Nations High Commissioner for Refugees, ad Litem

Hammid Tuama ABDUL SALI
Appellant
and
Secretary of State for the Home Department
First Respondent
and
Immigration Officer Heathrow
Second Respondent
and
United Kingdom Representative of the
United Nations High Commissioner for Refugees,
ad Litem

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993

Before:
Mr J. Fox
Special Adjudicator
at HATTON CROSS

DETERMINATION AND REASONS

This is an appeal against respondent's decision of 18 October 1993, refusing the appellant asylum in the United Kingdom. The appellant was represented at the hearing before me on 7 January 1994 by Mr Walsh Counsel for Messrs Aaronson and Co. and the respondent by Mrs Beck of the Home Office. The United Kingdom representative of the United Nations High Commissioner for Refugees has indicated that he wishes to be treated as a party to the appeal and has submitted certain representations to which I will refer later in this determination. The respondent's decision has been given in the following terms:-

'The appellant applied for asylum in the United Kingdom on the grounds that he had a well-founded fear of persecution in Iraq. However Iraq is not the only country to which the appellant could be removed. The appellant arrived from Austria where on his own admission he had spent one day. Under Section 8 (1) (c) of Schedule 2 of the Immigration Act 1971 the appellant was returnable to Austria which is a signatory to the 1951 United Nations Convention relating to the Status of Refugees.'

The Secretary of State or officer duly authorised by him issued a certificate on 16 October 1993 to the effect that the appellant's claim was without foundation.

The appeal now falls to be determined under the provisions set out in paragraph 5 of Schedule 2 to the Asylum and Immigration Act 1993.

The Notice of Appeal given on 19 October 1993 gives the following grounds:-

'The Secretary of State failed to take into account all the relevant evidence and therefore arrived at an erroneous decision against the weight of the evidence'

After reviewing the evidence submitted by the respondent and hearing the appellant's testimony at the hearing, it would seem that there is no conflict in the facts material to the Secretary of State's certification in this case.

The appellant is a citizen of Iraq. He arrived in the United Kingdom on 14 October 1993 from Austria. He presented a Greek passport in the name of Nikolaos Toutoudakias which contained a substituted passport photograph of him and an altered date of birth. He subsequently produced an Iraqi passport which had been issued in Belgrade on 29 June 1988 and contained a Hungarian visa issued on 24 September 1993. The appellant told the Officer that he had gone to Belgrade in 1982 to study medicine. The appellant said that he had spent four months in Hungary before travelling to Slovenia and crossing the border into Austria.

At the hearing the appellant told me that he had left Iraq in December 1980 and had made one visit in 1982 for two weeks. He had left Iraq in order to study in Yugoslavia and had stayed in Yugoslavia until 1993. From the time he had been studying in Bosnia war had broken out. He had been questioned by the Bosnian police as to whether he had any connections with the Bosnian muslims. He had been refused a visa by the Serb authorities.

He told me that he left Bosnia at the end of May 1993 and went to Slovenia. He had stayed in Slovenia for four or five months and had been an illegal immigrant. He had been scared that he would be arrested.

He had taken a bus to Vilar from Lublijana. Vilar was approximately 45 minutes from the border. He had arrived at 10.30pm at night and had met someone who had advised him as to how to cross the border into Austria illegally. He had walked at night from Vilar to the border. He crossed the border canal and had gone under the wire and avoided the border check point.

He had then gone to the nearest town and taken a train to Vienna and the journey had lasted some nine or ten hours. Upon arrival in Vienna he had found a ticket office and had purchased a ticket to travel to London by air. He had not specifically named the United Kingdom but had asked for a flight between 3 and 4 pm.

He had travelled to the airport where he had spent forty-five minutes and had produced his Greek passport in order to travel through immigration controls. The flight had left at 15.55 hours.

Prior to joining the flight his passport had been looked at but not stamped.

He said that he had not claimed asylum in Austria because he was there illegally. Two of his friends had claimed asylum in Austria. One had been returned to Iran and the other had been returned to Yugoslavia and he had personal knowledge of the circumstances of the friend who had been returned to Yugoslavia.

Mrs. Beck submitted to me that she relied upon the reasons set out in the letter of 16 October 1993. She accepted the appellant's account of his journey. The appellant had arrived from Austria. He had had an opportunity of claiming asylum there.

As to whether Austria was safe so far as this appellant was concerned the appellant's belief was based upon what had happened to his friends. Newspaper articles had been produced and a letter from the Austrian Embassy. As to the letter from the Austrian Embassy it was her submission that the letter which had been written requesting the Austrian authorities to consider the appellant's position invited the answer that had been given namely that he would be refused entry. It did not deal with the question of whether the appellant would have a fair hearing. In her submission the fact that Austria would apply the same principles as the United Kingdom did not mean that his claim would not be considered.

Mr. Walsh submitted to me that the newspaper article indicated that there had been a dramatic decline in the number of those entering Austria. In his submission the climate was hostile.

He also relied on the document which had been obtained from the UNHCR in particular the quote 'Experience has shown that potential asylum seekers who come from a country or have transitted a country which Austria considers safe do not have a fair chance to file an asylum application'. He advised me that he did not propose to address me on the question of opportunity. In his submission Austria was not a safe third country as far as this appellant was concerned.

I am satisfied from the totality of the evidence before me that Austria will not comply with her obligations under the 1951 Convention relating to the Status of Refugees.

The evidence before me shows that the appellant left Iraq in 1980 and has made one visit since 1982. He had gone to Yugoslavia and had remained there until 1993. He had become the object of attention of the Bosnian authorities and had fled to Slovenia where he was an illegal entrant. The appellant entered Austria illegally and took a train to Vienna where he purchased a ticket to fly to the United Kingdom. He passed through passport controls at the airport in Vienna. I am satisfied that the appellant did have the opportunity to claim asylum in Austria but did not do so.

The appellant has told me that he did not do so because he had two friends who were Iraqis who claimed asylum in Austria. He tells me that one friend was returned to Iraq and the other friend was returned to Yugoslavia and that he has personal knowledge of the circumstances of his friend in Yugoslavia. I find the appellant to be a credible witness and I accept that part of his evidence.

The appellant's Solicitors also took the trouble to write to the British Section of the Austrian Embassy. They disclosed the circumstances in which the appellant had entered Austria. The Austrian Embassy responded by fax on 29 November advising the appellant's Solicitors that due to the fact that the appellant did not acquire a legal right to stay in Austria he would be refused entry by Austrian Immigration. The answer of course does not answer the question of whether the appellant's claim for asylum would be considered.

However evidence has been obtained from the UNHCR in regard to national rules now prevailing in Austria in particular the 1991 Asylum Law and 1992 Aliens Law. The appellant fears persecution in Iraq if he is returned to Iraq. He also fears persecution in Bosnia. The appellant came into Austria illegally. It may well be that the Austrian Authorities would consider Yugoslavia is safe so far as the appellant is concerned. Clearly he has not come directly from Iraq. The information which has been obtained from the UNHCR refers to the fact that experience has shown that potential asylum seekers who come from a country or have transitted a country which Austria considers safe do not have a fair chance to file an asylum application.

The appellant has the benefit of a lighter burden of proof. In my view he has taken steps to show the Secretary of State certificate is not well-founded.

In these circumstances I must find that the Secretary of State has not made good his certificate that the appellant's claim to asylum in the United Kingdom is unfounded.

I have considered the arguments put forward by the UNHCR. Those arguments were put forward in Mehari and rejected.

I therefore allow this appeal to the extent that the appellant's claim for asylum is referred back to the Secretary of State for him to investigate the same.

Mr J. Fox
Special Adjudicator