Danian v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1998 |
| Date | 09 June 1998 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
His Honour Judge D S Pearl (President) H J E Latter Esq, C M G Ockelton Esq
The appellant in person
A Mole for the respondent
Cases referred to in the determination:
R v Immigration Appeal Tribunal ex parte “B” [1989] Imm AR 166.
Mustapha Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129.
Re HB (1995) IJRL 332.
Asylum — claim to be a refugee sur place — activities in the United Kingdom that would have brought appellant to the notice of his government — whether appellant acted in good faith — the criteria for determining if such activity brought the appellant within the Convention. UNHCR Handbook on procedures and criteria for determining refugee status para. 96.
The appellant was a citizen of Nigeria. He was refused asylum by the Secretary of State. His appeal was dismissed by a special adjudicator. Following a direction by the Court of Appeal, the case was considered by the Tribunal.
The basis of the appellant's claim for asylum was that his work in the United Kingdom for a pro-democracy movement gave rise to a well-founded fear of persecution if he were returned to Nigeria. The special adjudicator had concluded that the appellant's activities had been calculated to bring him to the attention of the Nigerian authorities and to bolster his claim for asylum. The special adjudicator accordingly concluded that his activities had been self-serving, not in good faith and put him outwith the protection of the Convention.
The Tribunal considered the test to be applied to determine whether an appellant could claim to be a refugee sur place because of activities undertaken in the country of refuge.
Held:
1. The Tribunal endorsed and adopted the propositions set out in the New Zealand case re HB.
2. Activities such as those in which the appellant had engaged were to be assessed either as undertaken out of genuine political motives or as committed unwittingly or unwillingly but which might lead to persecution, or undertaken for the sole purpose of creating a pretext for invoking a fear of persecution.
3. On the facts, the appellant's activities had been a blatant and cynical attempt to manipulate circumstances to his own advantage.
4. The appellant had acted in bad faith and was outwith the Convention.
Determination
The appellant in this case is a citizen of Nigeria who was born on 22 May 1951. The Secretary of State refused to grant him leave to enter the United Kingdom and refused his claim to asylum. The Secretary of State certified the asylum claim under the provisions of paragraph 5(4)(c) of schedule 2 of the Asylum and Immigration Appeals Act 1993 as amended by section 1 of the Asylum and Immigration Act 1996.
The appellant appealed and his case was heard by a special adjudicator, Mr R Chalkley at Gravesend Hearing Centre. By a determination notified on 18 November 1997, the special adjudicator dismissed his appeal although he found ‘that the Secretary of State was wrong to certify the appeal.’
The appellant sought leave to appeal to the Tribunal from the determination of Mr Chalkley. This application was refused by the Tribunal by a determination notified on 19 December 1997. There then followed judicial review proceedings, and on 12 February 1998, the Court of Appeal ordered that the matter be remitted to the Immigration Appeal Tribunal. The Court of Appeal directed that leave to appeal be granted, and as a consequence of that direction the Tribunal granted leave to appeal by a determination notified on 17 April 1998.
The Tribunal directed that in view of the grounds of appeal that the matter be heard by a Tribunal comprising three legal members. The appellant had changed his lawyers subsequent to the Court of Appeal hearing, and his new legal advisers (Egole and Co) wrote to the immigration service at Terminal 4 that ‘we think it…in the client's best interests to conduct his appeal himself.’
We heard the case, giving the appellant every opportunity to present his case before us. He said that he wished to rely upon the grounds of appeal drafted by Mr Soorjoo of counsel on 26 November 1997 and Mr Leon Daniel of counsel on 29 January 1998. Mr Daniel's grounds are the more detailed and we set out here the factual background and the point of law upon which the Court of Appeal quashed the refusal of leave by the Tribunal:
‘1. The Applicant is a Nigerian national who first arrived in the United Kingdom on 15 April 1985 and was granted leave to enter for one month as a visitor. He subsequently applied for and was granted successive extensions of stay as a student. The Applicant eventually overstayed his leave to remain and was served with a notice of intention to deport. On 6 June 1989 the Applicant applied for leave to remain in the United Kingdom as a...
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