R v Immigration Appeal Tribunal, ex parte Gilgham (Mustapha Yousef)
| Jurisdiction | England & Wales |
| Judgment Date | 21 October 1994 |
| Date | 21 October 1994 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Leggatt, Millett, Morritt LJJ
A Riza QC and A Dias for the appellant
R Tam for the respondent
Cases referred to in the judgments:
Sivakumaran and ors v Secretary of State for the Home DepartmentELR [1988] AC 958: [1988] Imm AR 147.
Viraj Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department [1989] Imm AR 6.
R v Immigration Appeal Tribunal ex parte B [1989] Imm AR 166.
R v Secretary of State for the Home Department and Immigration Appeal Tribunal ex parte Mustapha Gilgham (unreported, QBD, 12 July 1994).
Political asylum citizen of Libya no persecution or significant harassment in Libya before departure asserted he disapproved of regime asylum claimed on basis of anti-government activities in the United Kingdom no evidence that activities had come to the notice of the Libyan authorities validity of claim whether observations in ex parte B overridden by the terms of HC 251 para. 180G the meaning of calculated in paragraph 180G. HC 251 para. 180G: United Nations Convention relating to the status of refugees (1951) Protocol (1967) paras. 1A(2), 33: Handbook on procedures and criteria for determining refugee status (1979) para. 96.
Appeal from the judgment of Macpherson J in which he had refused judicial review of the decision of the Tribunal to refuse leave to appeal from the dismissal of a political asylum appeal by a special adjudicator.
The appellant was a citizen of Libya. He had been granted leave to enter for medical treatment: a request for a variation of that leave was refused. He applied for political asylum: that was refused. He became an overstayer: he was served with notice of intention to deport: he went to ground: subsequently when arrested he made a second application for asylum. That was refused: he appealed.
The appellant accepted that nothing of significance had occurred to him while still in Libya. In the United Kingdom however he joined the National Front for the Salvation of Libya: he took part in phone-ins in which he expressed views hostile to the regime: he also took part in one demonstration in London. He claimed those activities were known to the Libyan authorities and would put him at risk if he returned to Libya. The adjudicator concluded that the applicant had not been at risk when he left Libya: his activities in the United Kingdom were of a minor nature: there was no evidence they had come to the notice of the authorities and he dismissed the appeal on that basis. He went on to conclude that even if he were now at risk, that was attributable to his voluntary activities in the United Kingdom, and following ex parte B, the appellant could not rely on those activities to found a claim for asylum.
Before Macpherson J it was argued that the provisions of paragraph 180G of HC 251 excluded such activities if there were bad faith on the part of a participant, but not otherwise. To that extent those provisions overrode the wider obiter dicta in ex parte B, which did not exclude only activities undertaken in bad faith but also those that were unreasonable in all the circumstances. Macpherson J concluded that ex parte B was still good law.
On appeal to the Court of Appeal the same arguments were put forward by counsel.
Held
1. The fact that there was no evidence before the adjudicator to show that the applicant's activities in the United Kingdom had come to the notice of the authorities was sufficient to lead to the conclusion that there was no reasonable degree of likelihood he would be persecuted if he returned to Libya.
2. It was not necessary to decide whether ex parte B insofar as it asserted, if it did, that unreasonable conduct in the host country would exclude an applicant from the grant of asylum, was correctly decided, and the court declined to do so.
3. Per Millett LJ, calculated in paragraph 180G means likely and not deliberately intended, [to create a claim to refugee status]: however, where an asylum seeker does not engage in political activities against the regime in his own country until after he has already decided to apply for political asylum in the United Kingdom it is open to the Secretary of State and to a special adjudicator to reject his claim on the basis that his political opinions are not genuinely held but have been assumed to found the claim.
4. Per Morritt LJ: on a proper reading of the judgment in ex parte B, it was not in conflict with paragraph 180G of HC 251. I would find very great difficulty in accepting that unreasonable conduct could debar a claimant from the status of a refugee, even though, notwithstanding that unreasonable conduct, the Tribunal was satisfied that the conditions expressed in the Convention had been established.
Leggatt LJ: The appeal before the court is from the decision of Macpherson J on 12 July 1994 that the Immigration Appeal Tribunal had not erred in dismissing the application of Mustapha Yousef Gilgham for leave to appeal against a determination of an adjudicator who had himself dismissed the applicant's appeal against the refusal of his claim for asylum.
The essential facts of the matter are to be found in the decision letter of 1 December 1993 which reads:
The Secretary of State considered your application for asylum in the United Kingdom. The basis of your claim was the persecution you stated you will receive on account of your activities against the Gadhafi regime in this country.
You have said that you fear return to Libya as a result of your anti-Gadhafi activities in the United Kingdom as well as your membership of the National Front for the Salvation of Libya. However, you did not take up your public anti-regime stance until after you had claimed asylum in the United Kingdom and have admitted that you were not involved in politics while in Libya. Moreover, your political activities have been at a low level comprising attending meetings and one demonstration in London in July 1991. The Secretary of State does not accept that such low level activities would have brought you to the adverse attention of the Libyan authorities or that they would therefore have any particular interest in you on your return to Libya. The Secretary of State was also aware that you had not taken part in any political activities whatsoever prior to your initial application for asylum in 1988 and that you only joined the National Front for the Salvation of Libya in April 1989, three months after you had been interviewed in connection with your asylum application. The Secretary of State was therefore sceptical of your motives in joining this organisation.
You stated that whilst in Libya you were taken to the offices of the Revolutionary Committee in Andalulia in about 1985 because you had resisted their requests to utilise your company's premises, however, you reluctantly agreed to co-operate and were released the same day. As this incident took place almost eight years ago the Secretary of State did not accept that the authorities would have any interest in you after this length of time, especially as you had eventually agreed to co-operate with them.
At your asylum interview on 2 September 1993 you claimed that the Libyan Internal Security have regularly visited your home since 1988 to intimidate your family and yet you made no mention in your original claim of your family in Libya being harassed. Furthermore, as you had stated that you left Libya to avoid completing your military service, it was not surprising that the authorities would wish to contact your family concerning your disappearance.
In your original asylum interview in 1989 you claimed that you left Libya in order to avoid having to complete your military service as you had received call-up papers 2 months previously. However, in your interview in 1992 you claimed that you were no longer required to complete your service as you were exempt for medical reasons. The Secretary of State found that this discrepancy had undermined the credibility of your asylum claim and, in any event, he did not accept the avoidance of military service as a valid reason to claim asylum under the terms of the 1951 United Nations Convention relating to the Status of Refugees.
You came to the United Kingdom originally for medical reasons but you only claimed asylum in this country after your leave to remain here had expired and following the breakdown of your marriage to a British citizen. The Secretary of State believed that this delay in claiming asylum and your original stated reason for claiming asylum in order to avoid your military service cast serious doubt on the genuineness of your application.
In the light of all the evidence before him the Secretary of State was not satisfied that you had a well-founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion and therefore refused your application for asylum in the United Kingdom.
The...
To continue reading
Request your trial
-
Danian v Secretary of State for the Home Department
...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 ......
-
Danian v Secretary of State for the Home Department
...Local Government and Ethnic AffairsUNK [1991] 31 FCR 100. Re HB (Refugee Appeal 2254/94). Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129. Chahal v United KingdomHRC [1996] 23 EHRR 413. Mbanza v Secretary of State for the Home Department [1996] Imm AR 136. Khan v Minister of Immigra......
-
Thomas Danian v The secretary of State for the Home Department
...raises an important point of law, which has been considered on two occasions by the Court of Appeal in this country; namely Gilgham [1995] Imm AR 129 and B [1989] Imm AR 166. It would seem that both these cases were identified by the Court of Appeal in the present proceedings as falling int......
-
Danian v Secretary of State for the Home Department
...claim for asylum. The correctness of that approach had been considered by the Court of Appeal in Gilgham v Immigration Appeal Tribunal ((1995) Imm AR 129) and in Mbanza v Secretary of State for the Home Department ((1996) Imm AR 136). In Australia the courts had recently focused on the need......