Appollinaire Egny v. Immigration Officer Heathrow, and Secretary of State for the Home Department, and United Nations High Commissioner for Refugees ad Litem

Appollinaire EGNY
Appellant
and
Immigration Officer Heathrow
First Respondent
and
Secretary of State for the Home Department
Second Respondent
and
United Nations High Commissioner for Refugees
ad Litem

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993

Heard: 22.12.1993 & 13.1.1994

Determined: 13.1.1994

Written Determination

Prepared: 13.1.1994

Promulgated: 13.1.1994

Before:
I. Khan Esq
Special Adjudicator
at HATTON CROSS

DETERMINATION AND REASONS

The appellant, a citizen of Ivory Coast, born on 23 July 1968, appeals against the decision made by the Immigration Officer, Heathrow on 26 November 1993 refusing him leave to enter the United Kingdom. The appellant had applied for asylum, but the Secretary of State refused to consider his application substantively on the basis that Ivory Coast was not the only country to which he could be removed since he had arrived from France. The Secretary of State has certified the appellant's claim to be without foundation, (paragraph 180k).

At the hearing, the appellant was represented by Mr Puddicombe of RLC and the respondent by Miss S Bhundia. The United Nations High Commissioner for Refugees has asked to be treated as a party but has also indicated that it will not be present at the hearing, being content that their written submissions be taken into account.

The appellant told me that he left Ivory Coast, on 23 November 1993 because he felt that his life was in danger. He had been helped by a policeman who had advised him that it would not be prudent to apply for asylum in France because of the very close links between the two countries. The appellant left Ivory Coast with the intention of applying for asylum in United Kingdom. Owing to engine trouble, the appellant arrived in Paris about midnight when all flights to London had already left. He was accommodated in a hotel at the airport, and left Paris for London at 6 am the following day. He applied for asylum on his arrival at Heathrow. His passport shows an entry visa and stamp for France on 23 November 1993, and exit visa from France on 24 November 1993.

After examination, the appellant was served a notice of refusal of leave to enter and given directions for his removal to Abidjan. The Immigration Officer obviously realised that that was a mistake, and on 16 December 1993, issued him a notice of further removal directions - this time to France. Mr Puddicombe argues that the original removal directions were invalid because they directed his removal to Ivory Coast, and that if they had been acted upon the Secretary of State would have been acting in breach of the 1951 Convention in sending back an applicant to the country where he feared persecution without substantive consideration of his claim. He submits that by virtue of paragraph 6, Schedule 2 to the Immigration Act 1971, the notice had to be given within 12 hours, in the absence of which the appellant was deemed to have been given leave for 6 months. He submits that in these circumstances, the Secretary of State had to consider the appellant's claim substantively.

Mr Puddicombe accepts that in the refusal letter of 26 November 1993 it is stated clearly that the appellant is returnable to France.

Mr Puddicombe accepts very fairly that the appellant in this has not been prejudiced but submits that there could have been unpleasant repercussions if some official in the Immigration Department had tried to enforce the original removal directions. Miss Bhundia accepts that the removal directions were wrong but says that the appellant must have been aware that he was not going to be sent back to Ivory Coast. In my view, the wrong destination in the notice of refusal does not make it invalid to the extent that it can be said that the appellant had not been given notice of refusal. I am fortified in my conclusion in this case as I am satisfied that the appellant was not prejudiced by that mistake, and that the letter refusing him asylum also made it clear that the appellant was being sent to France, not Ivory Coast. The appellant's case is (i) that in view of the close links between France and Ivory Coast, I should not be satisfied that France was a safe third country, and (ii) that he did not have an opportunity to make an application for asylum in France.

The question that I have to decide is whether the Secretary of State has made good his certificate: in the context of this case whether France is a safe third country. The Secretary of State's case being that on the basis of his knowledge of the immigration policies and practices of France, and on previous experiences of returning passengers to France, he has no reason to believe that, in the circumstances of the appellant's case, the authorities there would not comply with their obligations under the Convention.

The appellant, in support of his case, has put in publications supporting his contention of the close links between France and Ivory Coast. Mr Puddicombe says that these documents had also been put in to support what the appellant had in his mind. Miss Bhundia submits that no evidence had been produced that France would not be safe for the appellant. She says that the documents submitted by the appellant did not mention the appellant personally, that, United Nations High Commissioner for Refugees who had intimated an interest, had not put forward any evidence that France was not safe, that France was a signatory to the Convention, that it was a democratic country and that it would comply with her obligations under the Convention.

Whilst I accept that France is a signatory to the Convention, and that by and large, it is a "safe country" on the whole, but there is knowledge in public domain that France has not been regarded safe in cases involving citizens of former French colonies. The publications submitted, show - if evidence was needed that the ties between France and Ivory Coast are close, and this taken with the appellant's evidence, which I accept, I cannot be satisfied that the Secretary of State has made his certificate good.

As far as United Nations High Commissioner for Refugees' representations on the concept of safe third country are concerned they were rejected by Laws J in Mehari and I am bound to follow him. As for the opportunity to apply, I am satisfied that the appellant did have the opportunity.

On the totality of evidence, I find that the Secretary of State has not made good his certificate and under the provisions of paragraph 5(6) refer the case back to Secretary of State to reconsider whether France is a 'safe' country for this appellant.

I Khan
Special Adjudicator

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993
Before:
Mr. M.W. RAPINET

Special Adjudicator

at HATTON CROSS

Mustafa EREN and Appellant
Immigration Officer - Dover and First Respondent
Secretary of State for the Home Department and Second Respondent
United Nations High Commissioner for Refugees ad Litem

DETERMINATION AND REASONS

At the original hearing before me on 14th December 1993 the appellant was represented by Mr. Nicholson of the Refugee Legal Centre and the respondent by Mrs. Stone. At the adjourned hearing the appellant was represented by Miss Field and the respondent by Miss Marston.

The appellant is a citizen of Turkey, born in 1968 who arrived in this country from Ostend on 13th November 1993 and claimed asylum. The Secretary of State by letter dated 13th November 1993 indicated that, in his view, the appellant should be returned to Belgium under the provisions of paragraph 8 (1) (c) of the Second Schedule to the 1971 Act, that country being a signatory to the 1951 Convention and that, on the basis of his knowledge of the immigration policies and practices of Belgium, he had no reason to believe that in the circumstances the Belgian authorities would not comply with their obligations under the Convention. On 14th November 1993 the Secretary of State therefore refused to grant leave to enter under paragraph 180K of HC 725 and has stated that he has certified that the appellant's claim is without foundation under the provisions of paragraph 5(3) of the 1993 Asylum and Immigration Appeals Act. It should be noted that no such certificate appears on the file and Miss Marston apologised for the fact that the respondent had omitted to provide such a certificate. It is not in dispute that the certificate has been issued and, following the determination of the Tribunal in the Mustafaraj case, I am satisfied that the statement in the decision letter is adequate evidence that such a certificate has been issued although I deprecate the failure of the respondent to provide such certificate.

The appellant appeals under section 8(1) of the 1993 Act.

The appellant gave evidence through an interpreter. He informed me that he is a Turkish Kurd who left Turkey on 17th September 1993 for political and ethnic reasons and went to Syria where he remained for about 40 days although he did not claim asylum in that country. He obtained, through an agent, a false passport for Belgium by means of which he then left Syria for Ostend where he remained for approximately 13 days during which period he met some Turkish Kurds living in Ostend and stayed with them in a café in that town used largely by the Turkish Kurd community. He did not claim asylum in Belgium because he did not consider it to be safe in that country and he had been informed by the Turks with whom he mixed in Ostend that Turkish Kurds were frequently returned to Turkey by the Belgian authorities. Furthermore, no arrangements were made by the Belgian authorities to accommodate refugees. He had gone to Belgium because the agent whom he had employed to obtain a passport for him in Syria had obtained a passport for that country. After remaining in Ostend for 13 days he decided to come to the United Kingdom because he realised that he was in Belgium on a false passport and because he did not feel secure in that country.

Mrs. Stone in her submission stated that the appellant had admitted that he spent 13 days in Belgium and he therefore had the opportunity to seek asylum in that country. He was not held in custody there nor were his movements restricted. He was therefore perfectly at liberty to claim asylum had he wished to do so. There was no evidence before me that he would be refused by the Belgian authorities and she relied on the letter of refusal dated 13th November 1993.

Mr. Nicholson in his submission accepted that the appellant had been in Belgium for 13 days but submitted that his return to Belgium would be a breach of the United -Kingdom's obligations under the Convention and he referred me to a UNHCR fact sheet on asylum procedures in Western Europe and the Belgian procedure for considering claims. He submitted that the appellant's case could be decided by an Immigration Officer and that there was no proper procedure for appeal. He referred me to a letter dated 27th October 1993 from a firm of lawyers in Brussels which indicates that an 8-day rule was introduced by the Belgian authorities in February 1988 which makes it incumbent upon an asylum applicant to seek asylum within that period and if they fail to do so, would be returned to their country of origin. The letter goes on to state:

"This provision concerns also people who were in Belgium, try to enter on British territory without result and are returned to Belgium where they claim asylum".

The next paragraph of the letter reads:

"If the applicant can give evidence that he can have a legal stay in Britain or that the British authorities agree to examine his asylum case he can go to Great Britain. If he cannot produce such evidence, he will be sent to his home country".

Mr. Nicholson submitted that on the basis of the correspondence contained in the bundle which he placed before me and which I have quoted, there is some doubt as to whether or not the 8-day rule applies from the date when the appellant first arrived in Belgium or the date when he is returned to Belgium by the British authorities. In the same bundle of correspondence is a letter from the Immigration and Nationality Department, signed by the Senior Presenting Officer of the Immigration Office, dated 29th November 1993 which reads:

"We have been in contact with the British Embassy in Brussels and they in turn have contacted the Refugee Department and the Legal Section at the Belgian Ministry of Justice. We have been advised that there are no rules laid down as to the operation of this law but that common sense would dictate that the period starts when the applicant is returned to Belgium. Any time spent in Belgium previously is irrelevant. We have also been advised that this point has not been litigated in Belgium".

Mr. Nicholson emphasised that the statement that this point had not been litigated in Belgium and therefore there was some doubt as to whether or not the 8-day rule ran from the date when the appellant first arrived in Belgium or the date when he is returned to Belgium.

In view of the fact that this letter had clearly been passed by the respondent to the appellant's representative I asked Mrs. Stone if she could produce to me the correspondence between the British Embassy in Brussels and the Refugee Department and Legal Section of the Belgian Ministry of Justice referred to in that letter and she informed me that she did not have this correspondence upon her but would endeavour to produce it.

At this point I indicated to Mr. Nicholson and Mrs. Stone that, in my view, as there is clear reference to legal advice being given to the British Embassy by the Belgian Ministry of Justice and the Refugee Department I would like to see that correspondence in view of the fact that there appeared to be some reasonable doubt as to when the 8-day rule operative under Belgian law applies. I suggested to Mr. Nicholson that notwithstanding the fact that he had at that point completed his submissions to me, I would be prepared, if such correspondence were produced, to give him and Mrs. Stone an opportunity to make further submissions in the light of the contents of such correspondence. This was agreed and I therefore adjourned the case for 7 days to enable Mrs. Stone to obtain copies of the relevant correspondence.

Unfortunately the respondent was not able to produce this evidence within the relevant time and the case was further adjourned and came before me on 11th January.

At the adjourned hearing the appellant was represented by Miss Field and the respondent by Miss Marston. Miss Marston produced a letter dated 22nd December 1993 from the Ministry of Justice to the Asylum Policy Unit of the Immigration and Nationality Department which states:

"I hereby confirm that the said Article 50, as modified requires that an asylum-seeker who enters or has entered the Realm and does not hold the prescribed entry documents must apply for refugee status when entering the Realm or at any rate, within 8 working days.

On the other hand, no other article of the law prescribes on which occasional visit an asylum application should be done.

The time spent in a third country has no repercussion on the asylum application, unless this period exceeds three months and the asylum seeker has left the said third country without fear of persecution as defined by the Geneva Convention (Article 52 - § 1.4)."

Miss Marston submitted that this letter made it clear that the 8-day period would run from the time when the appellant re-entered Belgium.

Miss Field submitted that the letter was ambiguous contrary to the views expressed by the Brussels lawyers to which reference had been made at the original hearing and which I have quoted above. I would mention that later on the same day of the original hearing Mrs. Stone had informed me that in fact there had been no correspondence between the UK Embassy in Brussels and the Ministry of Justice but this had been dealt with by telephone and had indicated that she would obtain for me the relevant telephone attendant notes. These have not been produced.

The United Nations High Commissioner for Refugees has indicated a wish to be treated as a party to the proceedings by letter dated 24th November 1993 and has stated that he would not be attending the hearing but has submitted what I consider to be his standard form of letter in relation to safe third countries and the summary of his views with regard to this country's policy on safe third countries. These representations have been considered extensively by Laws J. in the Mehari case and dismissed.

At the conclusion of the submissions I delivered my determination in the following terms. The facts in the case are not in dispute and it is accepted that the appellant spent 13 days in Ostend before coming to this country albeit that he entered Belgium on a false passport. He did not claim asylum in Belgium, maintaining that he did not consider it to be a safe country in which a Turkish Kurd could claim asylum. The question which I have to decide is whether the certificate of the Secretary of State issued under paragraph 5(3) of the Second Schedule to the 1993 Act has been properly issued in the light of the provisions of paragraph 180K of HC 725 and therefore whether Belgium is a safe country to which the appellant could be returned and whether the appellant had opportunity to claim asylum in that country. I have no doubt whatsoever that the appellant has had ample opportunity within which to claim asylum in Belgium and for his own reasons has failed to do so.

So far as the question of Belgium being a safe third country is concerned, I am satisfied that it is a Convention country and that it is a country which observes its obligations under that Convention. However, doubt is raised in my mind with regard to the current law in Belgium. It would appear that the Belgian authorities have a rule under which asylum has to be sought within a period of 8 days of arriving in that country. The appellant's representatives had placed before me a letter by lawyers in Brussels indicating that there is some doubt as to the date from which this 8-day period operates i.e. whether it operates from the date on which the appellant first sets foot in Belgium or the date on which he returns to Belgium having been to England and been refused entry in this country. If the former period is the relevant period it is quite clear that under the Belgian 8-day rule the authorities would not consider his claim for asylum were he to be returned to that country and therefore the provisions of paragraph 180K would not be applicable. If on the other hand the 8 days run from the date when he is returned to Belgium having been refused entry to this country, then he does have opportunity to claim asylum and his application would be considered by the Belgian authorities. There is no dispute that the Belgian authorities would do otherwise than consider such a claim in a proper manner.

The letter dated 29th November 1993 indicates quite clearly that this matter has been dealt with either by correspondence or by telephone between the British Embassy in Brussels and the Refugee Department and the Legal Section of the Belgian Ministry of Justice. Unfortunately the respondent has not been able to produce either the correspondence or the relevant telephone attendant notes in relation to that exchange that has taken place and to which reference is made. The letter in its very terms, which I have quoted in full above, makes it clear that there are no rules laid down as to the operation of the law and that the parties would appear to be depending upon common sense. The letter also states that this point has not in fact been litigated in Belgium. The letter which Miss Marston has produced to me dated 22nd December 1993 from the Ministry of Justice in Brussels has clearly been brought into existence following my adjournment of the initial hearing on 14th November 1993. It does not represent in any way the original correspondence of the British Embassy to which reference is made in the letter of 29th November 1993. However, this letter of 22nd December 1993, which I have again quoted in full above, states that "no article of the law prescribes on which occasional visit an asylum application should be done". This again would appear to underline an ambiguity which may exist as to the interpretation of the relevant section of Belgian law and until such ambiguity has been fully addressed, by way of a legal opinion which makes it clear beyond doubt the date from which the relevant 8-day period during which an asylum seeker must seek asylum in Belgium, or until the matter has been resolved by litigation in Belgium, I cannot be satisfied that an asylum-seeker from Belgium who has not claimed asylum within 8 days of his original arrival in Belgium and who has subsequently come to this country and who it is proposed to return to Belgium under paragraph 180K would have his case for asylum considered by the Belgian authorities on his return by this country to that country. So long as such doubt exists in my mind I cannot therefore be satisfied that in circumstances such as arise in this case Belgium can be considered to be a safe country within the meaning of paragraph 180K.

I therefore determine that the matter be referred back to the Secretary of State for reconsideration under the provisions of paragraph 5(6) of Part II of the 1993 Act and would ask that the Secretary of State should address himself in particular to this ambiguity which would appear to exist with regard to the relevant Belgian Refugee and Asylum law.

Before:
Mr. R. E. Maddison (Chairman) Mr. D. M. Froome Mrs. J. M. Abrahams, JP

ABDEL KAMEL TILMATINE, APPELLANT(S)

and

The Secretary of State for the Home Department RESPONDENT

DETERMINATION AND REASON

The appellant is a citizen of Algeria born on 11 may 1965. He entered the United Kingdom in breach of the immigration laws on 14 March 1993: he was arrested on 8 April 1993. He claimed asylum. His application was refused by the Secretary of State on 3 September 1993. He appealed. His appeal was dismissed by an adjudicator (Mr. J. Fox) in a determination dated 29 March 1994. On 12 April 1994 he was granted leave to appeal to the Tribunal.

Before us Mr. L. Daniels of counsel, instructed by Gordon, Doctors and Walton, solicitors of London, S.E.17, appeared for the appellant, whom he had also represented before the adjudicator: Mr. G. Saunders appeared for the respondent.

During the appellate proceedings, the basis of the case has radically changed. In his asylum interview the appellant put forward a history of activity in Algeria, which the Secretary of State did not believe. In consequence, and taking account of the circumstances that led to the application for asylum, the Secretary of State concluded that the appellant did not have a well-founded fear of persecution if he were returned to Algeria. Only very briefly does the letter of refusal refer to the claim by the appellant that he was a member of the Front Islamic du Salut (FIS), the fundamentalist group in Algeria associated with violence against the State. The letter states:

"The Secretary of State notes that you stated, at interview on 13 August 1993, you escaped Algeria after being charged with "conspiracy to plot explosions". The Secretary of State is not satisfied that this claim is true, as you had failed to provide this information at your previous interviews, despite this appearing to be a central aspect of your claim. Indeed, the Secretary of State notes that at interview on 23 April 1993 you state you had been arrested on four occasions, following meetings/demonstrations and were detained for 24-28 hours, "but most important was in October 1991 during the march for political prisoners" when you were detained for six days. In any event, the Secretary of State considers the story to be lacking in credibility and believes it extremely doubtful that a military tribunal would grant you bail given the nature of the charge against you. Furthermore, if you were involved in such acts, then you may fall within the exclusion clauses of the 1951 United Nations, Convention, and, therefore, may not benefit from its protection."

When the case went before the adjudicator, that issue became more prominent. The adjudicator's determination dealt with two aspects in parallel: first, the credibility of the appellant's account of his history; second, his position in relation to the Convention and his membership of the Islamic Front. We do not find it easy to follow the adjudicator's reasoning because after he had heard oral evidence from the appellant, he stated that he did not find the appellant a credible witness. Nevertheless he concluded his determination by writing:

"Accordingly, I am of the opinion that if the appellant's account is accepted he falls within the exclusion clauses of Article 1F of the 1951 Convention and he does not qualify for asylum in the United Kingdom. On the balance of probabilities I accept the account he has given that he was a member of FIS and was involved in the planning of the bombing at the airport and the raid to obtain arms. I therefore dismiss his appeal."

That finding is based entirely on the evidence of the appellant and so in that regard the adjudicator must have found the appellant credible.

Before us, the sole issue argued by the representatives was whether on the facts, the appellant was excluded from the benefit of the Convention because of his activities as a member of the Islamic Front. It appears that the Secretary of State would now accept that the exclusion clauses in the Convention apart, the appellant has a valid claim to asylum.

That issue raises questions on the interpretation of the exclusion clauses in the Convention. The Convention states, (article 1F):

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)he has been guilty of acts contrary to the purposes and principles of the United Nations."

Those loosely drafted provisions are analysed in the UNHCR Handbook. We accept that the Handbook is not part of the law. It has however some weight. We think Mr. Daniels was correct to submit that, at least on the basis of the interpretation given in the Handbook, neither sub-paragraph (a) nor sub-paragraph (c) could apply to the appellant. Annex VI to the Handbook lists the international instruments to which sub-paragraph (a) relates: the appellant clearly does not fall within those. As to sub-paragraph (c), it appears to be confined to those "in a position of power in a member State [of the United Nations] and instrumental to his State's infringing these principles". If that be the correct interpretation, then clearly the appellant does not come within that sub-paragraph either.

The grounds submitted in support of the application for leave to appeal to the Tribunal were:

"1.The learned Adjudicator has misdirected himself in law in assuming that the appellant's support for the FIS would automatically place him out with the protection of the Refugee Convention. The exclusion clauses within Article 1F referred to in paragraphs 147-163 of the UNHCR Handbook provide that it is incumbent upon the Contracting State to prove that the exclusion clauses apply and it is asserted that the learned adjudicator cannot have been satisfied that the exclusion clauses were applicable given that their applications to be severely restricted.

2.In the event that the exclusion clauses are said to be relevant to the instant case, it is submitted that there is no evidence upon which the learned Adjudicator could be satisfied that the appellant was himself involved with terrorist activity that would bring him outside of the Convention

3.Mere membership of and the holding of a particular ideology cannot per se enable a Contracting State to avoid obligations under the Convention by invoking the exclusion clauses when there is no evidence that an Adjudicator properly directing himself as to the law could have concluded that the appellant had committed a crime against humanity, a serious non-political crime, or an act contrary to the principles of the United Nations.

4.The learned Adjudicator accepts that the appellant was a member of the FIS and concludes on the balance of probabilities that he was involved with the bombing attack. Whilst the Adjudicator is correct in asserting that the appellant is under an obligation to prove on the lower standard of proof that he has a well founded fear of persecution, it is submitted that the learned Adjudicator would have to be satisfied to a considerably higher degree fo the fact that the exclusion clauses and any evidence in support thereof applied to him bearing in mind the caveat as to the restrictive approach to be taken when determining whether the exclusion clauses are applicable.

5.The learned Adjudicator states that the appellant's inability to recall specific dates "casts doubts into whether he was an active member as he states" (page 14), yet the Adjudicator appears to have no difficulty in accepting that the appellant was responsible for the bombing attack which appears to indicate an inconsistency of reasoning.

6.The learned adjudicator accepts that the appellant has demonstrated a fear for a Convention reason if returned to Algeria (page 15)

7.The learned Adjudicator takes the view that the appellant would not attract a fear of racism in view of his appearance and that he has been uncooperative in his dealings with the interviewers and has concluded that for those reasons the appellant is not a credible witness, yet he concludes that the appellant is a member of the FIS and concludes that he has been involved with a bombing attack. It is submitted that if the Adjudicator finds the appellant not to be a credible witness, it is inconsistent to accept that he is a member of the organisation.

8.In accepting that certain aspects of the claim for asylum are credible and that certain are not the learned Adjudicator is under an obligation to specify which facts are accepted and which are not and give reasons which are clear intelligible and adequate to indicate the basis of the what he does and does not accept.

9.The learned Adjudicator failed to deal with specific issues raised by the Secretary of State in refusing the appellant's application for asylum

10.It is respectfully submitted that the Adjudicator has failed to consider the matter with the most anxious scrutiny"

In developing these grounds Mr. Daniels expanded on a skeleton argument which he provided and which for convenience we append to this determination. We agree with Mr. Saunders' submission that neither point 3 nor point 4 is an issue. The facts which lead to the appellant's exclusion, if they do, are facts he himself has put forward and do not depend on any proof by the respondent. Point 5 is not relevant because it is not mere membership of the Islamic Front that forms the basis of the case, either way.

Two incidents in connection with his involvement with the Islamic Front are germane. First, an attack on an army barracks to obtain arms. In evidence the appellant said (in relation to a cousin):

"…But you said he was attempting to obtain arms from army barracks. Nor true did not say that (Grounds of appeal) One person was killed and another captured and given cousins name. I planned the operation. That is all correct."

Second, a bomb planted at an airport. The record of proceedings reads:

"...I was in trouble on 27 August 1992 on the 27 August 1992 I came from East of Algiers a suburb 40 km and when I got the airport at Bome there had been an explosion at the airport. It was a bomb."

"The target for that bomb was the National Economy of the State. A Security member had infiltrated the Group. The group was FIS Army. The lives of 10 people were lost at the Airport. It led FIS to be taken as a Terrorist organisation. The State wants FIS to be thought of as a terrorist organisation."

"Because of my association with the FIS. I have no physical relationship to the bombing because I was only passing by. I knew people would be injured but not fully aware it was to be."

"Adiudicator I knew one 1 night before the explosion took place. Not involved in planning. I did not know where it was to explode. I knew it was to be at the airport. As to the raid I was given information from one side for the other. I was working secretly and no force was in question. I was passing information from the military to FIS."

We find as a fact, on the basis of that evidence that the appellant was involved directly in the planning of an attack that led to the death of one person, and he was involved in, and had prior knowledge of a bomb attack in which ten people were killed. We do not accept Mr. Daniels, submission that his degree of involvement was such that he was not personally and knowingly involved.

We conclude that the appellant, in common parlance was actively involved in a terrorist organisation, one that was prepared to advance its aims by random killings and the appellant was closely associated with one such incident.

It is perhaps indicative of the date of the drawing up of the Convention and the Protocol that in terms neither pays any attention to terrorists. That phenomenon is of more recent development. There is very little case law to guide us. The standard textbooks on refuge law make virtually no reference to terrorists in relation to the Convention. Mr. Daniels provided us with excerpts from a number of cases in other countries in which relevant issues had been considered, but we did not find those cases of much assistance. We do not know the full facts in any of the cases, nor the local law within which they were decided: in any event they would not be binding on us. So far as we know, the High Court has only considered the issue in one case-that of Baljit Singh [1994] Imm Ar 42. That case of course was decided on Wednesbury principles and was concerned with a number of issues: it is therefore not of much assistance to us, but the learned judge did observe that the Secretary of State had quite properly (our emphasis) borne in mind that a person engaged in terrorist activities should not normally be accorded refugee status.

We have to ask ourselves whether the terrorist activities in which we have found as a fact he was involved were, in the terms of the Convention, non-political crimes. There is a difficulty there because the only definition of terrorism of which we are aware is that contained in the Prevention of Terrorism Act 1989, in which it is defined as "the use of violence for political ends". That might at first sight suggest that a terrorist crime was indeed a political crime. It seems to us however, that to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes so as to remove them from the exclusion clause would be against commonsense and right reason. It cannot have been the intention of the Convention to accord protection to those who engage in such activities, and we would not so conclude unless bound by high authority.

It follows that we conclude that the activities in which the appellant engaged fell within sub-paragraph 1F(b), of the Convention and he is not entitled to the protection of the Convention.

The appeal is dismissed.

IN THE IMMIGRATION APPEAL TRIBUNAL THANET HOUSE
BETWEEN:
ABDEL TILMATINE
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

SKELETON ARGUMENT

1. This appeal raises the following issues relating in particular to the interpretation of Article 1 F of 1951 Convention relating to the Status of Refugees; namely, where the burden of proof lies and the appropriate standard of proof. Additionally, the degree of seriousness of the criminal offence sufficient to trigger the operation of the said exclusionary clause.

Submissions

2. The Special Adjudicator accepted that the appellant had a well founded fear of persecution under Article 1 A of the Convention as a result of his membership and involvement in the FIS.

3. The burden of proof with regard the operation of the exclusionary clauses is incumbent on the Contracting state in whose territory the applicant seeks recognition.[para. 149 UNHCR]

4. The standard of proof in considering the application of the exclusion clauses is one which takes account of the serious affect of excluding an asylum-seeker under Article 1 F and is therefore higher than a balance of probabilities. Alternatively, if the standard of proof is on a balance of probabilities then the evidence justifying exclusion must be cogent. [see Article 1 F...paragraph 149 "serious reasons for considering"]

5. A person must normally be "personally and knowingly involved in persecutory acts" to be excluded under Article 1 F. Thus, mere membership of a political group will not normally be sufficient to merit exclusion. (Ramirez v. Canada Federal Court of Toronto, 7th Feb. 1992]. Further, "A finding of persecution requires a some degree of intent on the part of the persecutor to produce harm.."[Matter of Rodriguez-Majano, Board of Immigration Appeals, 28th Sept. 1988 and S.A.M. V. B.F.F.]

6. In any event, bearing in mind the principle that the exclusion clauses of the convention should be restrictively applied [para. 149] and the reason for the enactment of Article 1 F, it would be contrary to the spirit of the Convention to exclude the appellant on the evidence that he has given.

LEON DANIEL
14 TOOKS COURT
CURSITOR ST.
LONDON EC4.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.