R v. Secretary of State for the Home Department, Ex parte Alaa Mohamed El Sayed Hashem

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ALAA MOHAMED EL SAYED HASHEM

Queen's Bench Division

[1987] Imm AR 577

Hearing Date: 30 July 1987

30 July 1987

Index Terms:

Political Asylum -- army deserter -- the factors properly taken into account in assessing claim to asylum -- whether lies told to immigration officer on arrival were a factor to be considered in evaluating the credibility of the applicant -- whether to do so was to impose a "penalty" within article 31 of the Convention. United Nations Convention relating to the status of refugees (1951) art 31(1): Handbook on criteria and procedures for determining refugee status (1979) paras 167-174: HC 169 para 16, 73.

Held:

The applicant for judicial review had been refused recognition as a refugee by the Secretary of State. He was a regular officer in the Egyptian army. He came to the United Kingdom as a visitor and was admitted subject to a prohibition on employment. He broke that condition and was convicted. He then applied for extension of leave as a student: while that was under consideration he again worked. A year after his arrival in the United Kingdom he applied for political asylum. By then he had been sentenced in absentia as a deserter by the Egyptian authorities. He did not claim to have a conscientious objection to military service per se but alleged that his unit, he suspected, was to be sent to Iraq and he disapproved of the Iraq-Iran war. It was common ground between the parties that deserters could, in some cases, be refugees. It was contended by the Secretary of State that on the facts the applicant had not discharged the burden of proof that was on him to show he had a well-founded fear of persecution. In assessing the case the Secretary of State had clearly taken into account the deception practised by the applicant when seeking admission to the United Kingdom. It was submitted by counsel for the applicant that for that deception to tell against the applicant was contrary to the provisions of article 31(1) of the Convention, being the imposition of a "penalty" for illegal entry into the State where asylum was sought. Held: 1 Article 31(1) of the Convention required such persons as entered illegally into a state seeking asylum to "present themselves to the authorities without delay" which the applicant had not done. 2 The Secretary of State was entitled to take the facts into account in assessing the applicant's credibility and his conclusions could not be faulted. 3 Likewise on the facts and without the applicant showing any conscientious objection to military service, per se, the Secretary of State's decision was not open to successful attack on Wednesbury principles.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] Imm AR 250; [1987] 2 WLR 606.

Counsel:

A Riza for the applicant; REL Ter Haar for the respondent. PANEL: Schiemann J

Judgment One:

SCHIEMANN J: This is an application to quash by way of certiorari a decision by the Minister of State for the Home Office dated 21 January 1985 refusing to grant asylum to the applicant. There is a further application to quash a notice of removal as an illegal entrant made against the applicant on 29 January 1985. It is agreed upon both sides that if the first decision is quashed then it would be right to quash the second decision. The reasons for the first decision are evidenced, as was then the practice by a letter dated 21 January 1985 signed by the Minister of State directed to an MP which explains the grounds upon which asylum was refused. The matter has taken so long to reach the court because the parties agreed to a wait the decision in the case of R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] 2 WLR 606, a decision by the House of Lords which was delivered in February of this year. That decision establishes, in the words of Lord Bridge of Harwich at page 619: "that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." The background to the present case is that the applicant was a captain in the Egyptian army. He was given leave by the Egyptian army authorities to come to this country by way of holiday. He decided to stay here. This amounted to desertion under Egyptian law. The applicant feared that this would render him liable to severe punishment in Egypt. He therefore, indue course, applied for asylum. This was refused. Apparently, not long after his refusal he was sentenced in absentia, to 15 years' hard labour by the appropriate Egyptian authorities. I have been referred by both sides to paragraphs 167 to 174 of the Handbook on procedures and criteria for determining refugee status issued by the office of the United Nations High Commissioner for Refugees. Clearly that Handbook is not part of English law. It does, however, usefully set out the sort of problems which face a Home Secretary in this type of case. It is useful for me to read some of these paragraphs. Paragraph 167 says this: "In countries where military services compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft-evasion does not, on the other hand, exclude a person from being a refugee and a person may be a refugee in addition to being a deserter or draft-evader. 168 A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution. 169 A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion. 170 There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, ie when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience. 171 Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution." I do not need to read paragraphs 172 and 173 where are not really germane to this case. Paragraph 174 says: "The genuineness of a person's political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions." So much for the Handbook. The relevant paragraphs in the Statement of Changes in Immigration Rules, HC 169, are paragraphs 16 and 73. Paragraph 16 provides: "Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees . . . Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments." Paragraph 73 provides: "Special considerations arise where the only country to which a person could be removed is one 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." I do not think I need read the rest of that paragraph. It is common ground in the present circumstances that the only country to which the applicant could be removed is Egypt. It is agreed that the question before me is whether the Home Secretary was entitled to come to the conclusion on 21 January 1985 that the applicant's unwillingness to return there was not owing to a well-founded fear of being persecuted for reasons of political opinion. It is common ground that the burden is on the applicant to show that the Minister was not so entitled and that the burden is on the applicant to satisfy him that the applicant had a well-founded fear of being persecuted for reasons of political opinion and thus fell within the definition of refugee so far as presently relevant. What then was the material before the Secretary of State? Before coming to his decision, the Secretary of State had caused his officers to interview the applicant on 7 November 1984 and again on 5 December 1984. From those interviews it emerged that the applicant had obtained an entry clearance visa issued by the British Embassy in Cairo on 30 August 1983 endorsed "Visitor". The applicant, on 4 September 1983, after an interview by an immigration officer, was granted limited leave to enter the United Kingdom for a six months' period as a visitor on condition that he did not enter employment (paid or unpaid) and did not engage in any business or profession. Shortly thereafter the applicant took up employment in breach of his conditions of leave to enter. On 22 February 1984 he was arrested for breach of his landing conditions. He was charged with an offence contrary to section 24(1)(b)(ii) of the Immigration Act 1971. He appeared at West London Magistrates' Court on 23 February 1984 when he was given a conditional discharge for three months and ordered to pay @20 costs. Shortly thereafter, on 29 February 1984, he wrote to the Home Office stating that he had decided to study the English Language and wished to extend his visa in order to do so. He ended by stating: "My family will be sending me regular finance to cover the school fees and the cost of living." On 7 March 1984 the Home Office wrote to the applicant asking a number of questions to which no reply was received until 12 September 1984 when he indicated that he wished to study computer programming and stated: "I think these studies will get me good job in the computer field in my country after I finish my course and come back to Egypt." In the original words "in my country" and "come back to Egypt" were underlined, presumably by the applicant. He stated that money was coming from his family. At the beginning of November 1984 it came to the attention of the Home Office that the applicant was working as a receptionist at a hotel in London. He was interviewed. The relevant parts of the interview read: "(Q) What were your intentions for coming to the UK when you were in Egypt (A) I came here to settle down and find work, in the computer field, because I did not want to return to Egypt. (Q) You were a Captain in the Army in Egypt -- did you have permission to be absent from the Army until now? (A) I had only one month's permission. (Q) What did you tell the Visa Officer in Cairo? (A) I told him that I wanted to visit the UK as a tourist for one month. (Q) What did you tell the Immigration Officer on arrival? (A) I told him the same thing -- that I wanted to visit my brother here for a holiday and that I was a Captain in the Army. (Q) Why did you not tell the Immigration Officer that you wished to settle and work here? (A) Because I was afraid that he might send me back again." Following a letter from a Member of Parliament dated 19 Novembr 1984, an application for asylum was accepted for examination and, in accordance with the usual practice, the applicant was interviewed on 5 December 1984 by another Immigration Officer. Throughout the interview the applicant insisted that the reason he had delayed his application for asylum was that he wished to keep a low profile and to try to remain in the United Kingdom within the law and without having to resort to claiming asylum as he considered that it would be held against him if he were sent back to Egypt. He was asked to explain his motives for now applying for asylum and he explained that in June 1983, whilst he was a Captain in the Army at Heliopolis, a group of Iraqi soldiers and officials had been shown around his unit. Following this he had heard rumours that his units was to be sent to Iraq to assist the Iraqis in their war with Iran. It was then that he decided to come to the United Kingdom to study/work and settle. The applicant admitted that he had not been officially told that his unit was to be transferred. He was asked why he had not applied for asylum in the United Kingdom: firstly, to the Visa Officer when applying for his visa; secondly, to the Immigration Officer on arrival on 4 September 1983; thirdly, to the Home Office once he had been granted leave to enter the country; fourthly, to the Home Office when he subsequently applied on 29 February 1984 for an extension of his leave; and fifthly, to the Home Office on 12 September 1984 when he had replied to their request for details of his proposed course of studies. In reply to those points, the applicant maintained that he had been trying to stay by lawful means and that he had kept his asylum application in reserve in case it was not necessary. He was referred to his letter dated 12 September 1984 to the Home Office and his statement that he would be returning to Egypt on completion of his studies. The applicant said that this was a lie to obtain an extension of stay in the United Kingdom. On 17 December 1984 the United Kingdom Immigrants Advisory Service wrote to the Home Office on behalf of the applicant. One of their officers stated that she believed the applicant's reasons for desertion were based on genuine conscientious objection and that punishment on return would be persecution. She said that it must be borne in mind that Mr Hasem had a good career and that he would not give all this up in the absence of fear. She stated that his basic distaste of the Iran/Iraq war was understandable and widely shared for the shocking waste of life that it had generated. She enclosed a note of an interview in which he (the applicant) had stated that he was not prepared to fight in the Iran/Iraq war: that he believed his job was the defence of Egypt and not an obligation to fight in a war between two foreign countries; that further he could not accept that there was any sense in the war; and that he did not apply for asylum until forced to do so as he was frightened. I comment at this stage that it was accepted before me that the applicant, a professional soldier, never has had and does not have now a conscientious objection to military service as such. That then was the material before the Secretary of State when he made his decision evidenced in the letter of 21 January 1985. The material is in general accurately summarised in that letter. The letter ends with the following two paragraphs: "Under the Immigration Rules a person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality membership of a particular social group or polticial opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances. I have looked at this case very carefully in the light of your representations, together with those from Mr Sayed Hashem and the United Kingdom Immigrants Advisory Service who wrote to the Department on 17 December. However, I am not persuaded that Mr Alaa Hashem qualifies for asylum or that there are any grounds to justify the grant of exceptional leave to remain. It may well be that Mr Alaa Hashem is a deserter from the Egyptian army and that he will have to account to this national authorities for his actions, but I can see no reason why he should be allowed to stay here and arrangements will now be made to remove him to Egypt as soon as possible." That is the end of the quotation from the letter which was signed by David Waddington, the Minister of State for the Home Office. Most of the original grounds upon which relief was sought in this application were not relied upon before me because they were no longer tenable in the light of the decision in Bugdaycay to which I have already referred. At the hearing without objection, I gave leave to amend the grounds so as to substitute the following for the original grounds: "The decision to treat the applicant as an illegal entrant and to issue removal directions is action inconsistent with the United Kingdom's obligation under the Convention and Protocol. The court is empowered within its review jurisdiction to subject the decision-making process to rigorous and anxious scrutiny to ensure that it is not in any way flawed: per Lord Bridge in Bugdaycay." The second ground is this: "It is submitted that deserters are capable in law of being refugees and that to the extent that the Minister was of the view that the applicant was not a refugee because he was a deserter, the Minister's decision is wrong in law -- see United Nations' High Commissioner for Refugees Handbook for Guidance. Those were the new grounds. So far as the first of those grounds is concerned, the first sentence is very general and the second sentence indicates the approach which I propose to adopt. So far as the second ground is concerned, it is common ground between the parties that deserters are capable in law of being refugees. Mr Riza who appeared on behalf of the applicant, has sought to persuade me that while that may be common ground now, it is apparent from the decision letter under challenge that the Home Secretary did not accept this on 21 January 1985. I do not accept that submission. In that letter, the Minister of State does not indicate that in no circumstances will the Secretary of State accept a submission that a deserter is a refugee. The letter merely indicates that the Secretary of State is not persuaded that this applicant qualifies for asyalum. Mr Riza accepts that not all deserters qualify for asylum. As the Handbook usefully points out, it all depends on the facts of a particular case. Mr Ter Haar for the Home Secretary, made a simple submission that it was a question of satisfying the Secretary of State that the applicant was unwilling to go to Egypt owing to a well-founded fear of being persecuted for reasons of political opinion; that the burden of so doing was on the applicant; and that the applicant had not so satisfied the Secretary of State. And, in view of the applicant's repeated lies to the Secretary of State's officers in time past, there was nothing unreasonable in the Secretary of State not being so satisfied. Mr Riza, in his careful argument, took me firstly to various affidavits filed on behalf of the Secretary of State and, in particular, one by a Mr Dolphin sworn on 13 January 1986. He made the point that, at any rate in the absence of any indication by the deponent that he had advised the Secretary of State to the same effect before the Secretary of State made the relevant decision, such an affidavit was not admissible to show the motivation of the Secretary of State. Mr Ter Haar, rightly in my view, conceded that that was so. He further conceded that Mr Riza was entitled, himself to use Mr Dolphin's affidavit to attack the decision of the Secretary of State if Mr Riza could show that Mr Dolphin erred in law in the approach set forth in that affidavit. The affidavit in paragraph 11 casts some doubt upon the circumstances surrounding the applicant's reasons for leaving Egypt. It makes a number of assertions which Mr Riza describes as irrelevant, namely, firstly, "If the applicant is indeed a deserter from the Egyptian army, he left that country in the full knowledge of the penalties he might suffer". Secondly, that the applicant "had not officially been told that his unit was to be transferred. His 'desertion' appears, therefore, to have been premature". Thirdly, "He admits that he has not had any contact with any members of his unit since coming to this country and does not know if any were in fact sent to the war". In my judgment, a genuine refugee will often leave in full knowledge of the penalty he might suffer. Assuming genuine fears of persecution, it is obviously sensible to desert before being told that one's unit is to be transferred: thereafter leave is unlikely to be granted. Failure to contact members of his unit since coming to this country and lack of knowledge whether in fact they were or were not sent to the war seems to me to be equally irrelevant. So those criticism of the affidavit I accept. So far as paragraph 13 of this affidavit is concerned, the deponent indicates that in his view the applicant lacked credibility because of his repeated lies to the immigration authorities and because he failed to mention any question of desertion until he had been in this country for over a year. Mr Riza said that the deponent was wrong to use this as evidence of general unreliability. He referred in this context to article 31 of the Convention. That read as follows (and I am only concerned with the first paragraph of the Article): "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". Mr Riza said that people who are genuine refugees often intially break the law of a country which they are trying to enter for the purpose of seeking asylum. Of course, I accept this. Boat people land where they know they should not. People crawl under the wire when seeking to escape from countries which will not let inhabitants emigrate. Such a crawler is in all probability breaking the law of the country into which he crawls. But as the proviso to the Article makes clear, in order to avoid appropriate penalties, one must present oneself without delay to the authorities. The applicant here took over a year before he raised the matter of desertion. That is not determinative of the point but the Secretary of State is entitled to take that into account when deciding upon the person's reliability and I reject Mr Riza's submission to the contrary. The crux of Mr Dolphin's reasoning is contained in paragraph 14 when he said this: "I accept that in certain circumstances deserters are capable in law of being refugees and, in his grounds on which reliance is sought, the applicant refers to paragraphs 167 to 174 of the United Nations' High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status. As the Handbook says, fear of prosecution and punishment for desertion does not in itself constitute well-founded fear, of persecution under the definition (paragraph 167). I do not accept that, if what he says is true the applicant had a valid reason of conscience or other reason for his desertion and he has not demonstrated that the type of military action against which he objected was condemned by the international community as contrary to the basic rules of human conduct. It must not be forgotten that the applicant was a volunteer soldier and had remained voluntarily in the Egyptian army for some 5 years." I can see no legal error in this reasoning. There was no material put before the Secretary of State by the applicant to the effect that the type of military action to which he objected was condemned by the international community as contrary to the basic rules of human conduct nor, even in answer to a specific question from me, was Mr Riza able to indicate any reason why such condemnation should take place, still less that it had taken place. I reject Mr Riza's submission that the Secretary of State's decision is vitiated by his failure ex proprio motu himself to address this matter. There was nothing before the Secretary of State or me which indicates that the applicant faced persecution for not participating in military action because of genuinely held political convictions. Still less was the material before the Secretary of State such that he could not fail to come to the conclusion that the applicant faced such persecution. Looking simply at the Minister's letter, I do not consider that there is anything in it which renders the decision evidenced by it liable to be quashed. Looking at the surrounding evidence, I can see nothing in that which renders the decision to refuse asylum one that can be described as perverse. Mr Dolphin's affidavit has given me cause for anxiety in as much as there are, as I have held, three assertions mentioned in paragraph 11 of the affidavit which are irrelevant. Nonetheless, looking at the matter in the round, and bearing in mind the totality of the matters referred to in the affidavit and also bearing in mind the terms of the Minister's letter, I do not accept that those assertions were considerations which played a material part in the decision of the Secretary of State not to accept the applicant's claim for asylum. In consequence, I reject this application.

DISPOSITION:

Application dismissed.

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor. D1FE03

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