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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> IH (s.72; 'Particularly Serious Crime') Eritrea [2009] UKAIT 00012 (09 March 2009) URL: https://www.bailii.org/uk/cases/UKIAT/2009/00012.html Cite as: [2009] UKAIT 12, [2009] UKAIT 00012 |
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IH (s.72; 'Particularly Serious Crime') Eritrea [2009] UKAIT 00012
Date of hearing: 12 February, 3 and 9 September 2008
Date Determination notified: 09 March 2009
IH |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
The presumptions in s.72 of the Nationality, Immigration and Asylum Act 2002 that in the circumstances specified a person has been convicted by a final judgment of a "particularly serious crime" for the purposes of Art 33(2) of the Refugee Convention if read as irrebuttable are inconsistent with Art 21.2 of the EU Qualification Directive (Council Directive 2004/83/EC) which gives effect to the autonomous international meaning of Art 33(2) as part of EU law. As a consequence, the presumptions in s.72 must be read as being rebuttable.
Introduction
Outline of the Issues
The Legal Framework
1. The Refugee Convention
"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."
2. The Qualification Directive
"Protection from refoulement
1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.
2. Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:
(a) there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
3. Member States may revoke, end or refuse to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies."
3. The Immigration Rules
"334. An asylum applicant will be granted asylum in the Unted Kingdom if the Secretary of State is satisfied that: ….
(iv) …having been convicted by a final judgment of a particularly serious crime, he does not constitute [sic] danger to the community of the United Kingdom."
4. Section 72 of the 2002 Act
"(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection)."
"72. Serious Criminal
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is -
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if –
(a) he is convicted outside the United Kingdom of an offence,
(b) he is sentenced to a period of imprisonment of at least two years, and
(c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.
(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if –
(a) he is convicted of an offence specified by order of the Secretary of State, or
(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).
(5) An order under subsection (4) –
(a) must be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence –
(a) is pending, or
(b) could be brought (disregarding the possibility of an appeal out of time with leave).
(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.
(9) Subsection (10) applies where -
(a) a person appeals under section 82, 83 , 83A or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, and
(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).
(10) The Tribunal or Commission hearing the appeal –
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9) (a)."
Article 33(2) of the Refugee Convention
1. Autonomous Meaning?
"…the enquiry must be into the meaning of the Refugee Convention approached as an international instrument created by the agreement of contracting states as opposed to regulatory regimes established by national institutions. It is necessary to determine the autonomous meaning of the relevant treaty provision. This principle is part of the very alphabet of customary international law."
And then (at p.517):
"It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in arts 31 and 32 and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty. If there is disagreement on the meaning of the Refugee Convention, it can be resolved by the International Court of Justice: art 38. It has, however, never been asked to make such a ruling. The prospect of a reference to the International Court of Justice is remote. In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning."
UNHCR
"Article 33(2) applies to refugees who become an extremely serious threat to the country of asylum due to the severity of crimes perpetrated by them in the country of asylum. It aims to protect the safety of the country of refuge and hinges on the assessment that the refugee in question poses a major actual or future threat. For this reason the Article 33(2) mechanism has always been considered as a measure of last resort, taking precedence over and above the application of criminal sanctions and justified by the exceptional threat posed by the individual – a threat such that it can only be countered by removing the person from the country of asylum, including, if necessary, to the country of origin."
"UNHCR recognises that the term "serious crime" may have different connotations in different legal systems. In UNHCR's understanding, the gravity of the crimes should be judged against international standards, not simply by its categorisation in the host State or the nature of the penalty. Crimes such as petty theft or the possession for personal use of illicit narcotic substances would not meet the threshold of seriousness. Examples of a "serious crime", inter alia, include murder, rape, arson and armed robbery. Certain other offences could be considered serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct. Factors to be considered include the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, and whether most jurisdictions would consider the act in question as a serious crime. The qualification "particularly serious" indicates that only crimes of a particularly serious nature should be considered egregious enough to warrant an exception to the non-refoulement principle."
"…it is generally understood that a 'serious crime' is a capital or a very grave crime normally punished with long imprisonment…."
"Importance of individual assessment and proportionality
A judgement on the potential danger to the community necessarily requires an examination of the circumstances of the refugee as well as the particulars of the specific offence. Relevant considerations include whether the refugee may be regarded as incorrigible in light of prior convictions for grave offences, and the prospects for the refugee's reform, rehabilitation and reintegration into society. Where the refugee has responded to rehabilitative measures, or where there are indications that the refugee can be reformed, Article 33(2) should not apply because the potential threat to the community would have been (or could be) removed. Other relevant considerations would include the refugee's behaviour while serving his earlier sentence, the fact that they are released on parole, and the refugee's co-operation in the reform programs.
The particulars of the offence are crucial pointers as to whether the convicted refugee poses or is likely to pose a danger to the community. UNHCR is very concerned more generally that Section 72 NIAA provides for a presumption that an offence is deemed "particularly serious" exclusively on the basis of a custodial sentence of two years or more. This is not appropriate inasmuch as it completely excludes from judicial consideration the overall context of the offence, including its nature, effects and surrounding circumstances, the offender's motives and state of mind, and the existence of extenuating (or aggravating circumstances). In UNHCR's view, it is imperative that contextual factors such as these should be considered carefully if Article 33(2) is to be properly applied.
With respect to proportionality, UNHCR has consistently advocated for the need to weigh up the gravity of the offence for which the individual appears to be responsible against the consequences of refoulement. In UNHCR's view, the proportionality text is necessary in order to ensure that the exceptions applied in manner consistent with the overriding humanitarian object and purpose of the 1951 Convention. Although the concept of proportionality is not expressly mentioned in the 1951 Convention, it is a fundamental principle in international human rights and international humanitarian law (for example, in the jurisprudence of the European Court of Human Rights, as well as in the context of the International Covenant on Civil and Political Rights). UNHCR therefore recommends that proportionality considerations be taken into account when reaching a decision leading to application of Article 33(2)."
"Burden of Proof
It is a general principle of law that the burden of proving a particular fact falls upon the party asserting it. In the case of Article 33(2), the burden of proof is on the State to prove that one or several convictions are symptomatic of the criminal, incorrigible nature of the person and that he is likely to do it again, thereby constituting a danger to the community. Both Section 72 NIAA and the list of offences in the Order shift the burden of proof from the State to the refugee to prove that he is not a danger to the community. Such a presumption is, however, excessively onerous and virtually impossible to rebut."
"CONCLUSION
In UNHCR's view, the broad regime set out by the Order and Section 72 NIAA is not necessary or appropriate. UNHCR considers the compilation of a list that removes the need to consider individual cases to be generally undesirable and the long list set out in the Order to be particularly alarming. As outlined above, the analysis to apply Article 33(2) is a two-step process: the first one to establish whether there is a conviction for a particularly serious crime and then whether by this fact, the refugee presents a danger to the community.
In line with general principles of law, the exception to the non-refoulement principles contained in Article 33(2) should be interpreted restrictively. The large number of offences listed in the Serious Crimes Order and the wide discretionary powers granted to the Secretary of State regarding analogous offences committed abroad, instead increase the scope of interpretation. The creation through various pieces of legislation of open-ended exceptions to the rule against non-refoulement, weaken it for all intents and purposes and seriously impair the good-faith application of the 1951 Convention in the United Kingdom.
This is additionally undermined by the use of an administrative instruction extending this wide ranging qualification of particularly serious crimes to deny examination of an asylum claim in substance altogether."
"The views of the UNHCR, which has the responsibility under the governing statute for administering the Refugee Convention as it applies to nations and individuals, are of course entitled to the very greatest respect. Those views are not, however, binding on us and they do not necessarily reflect the correct interpretation of the Convention."
Joint Committee on Human Rights
"25. The Guidelines and Background Note also provide some guidance on the relationship between Articles 1F(b) and 33(2) of the Refugee Convention—
10. Article 1F should not be confused with Article 33(2) … Unlike Article 1F which is concerned with persons who are not eligible for refugee status, Article 33(2) is directed to those who have already been determined to be refugees. Articles 1F and 33(2) are thus distinct legal provisions serving very different purposes. Article 33(2) applies to refugees who become an extremely serious threat to the country of asylum due to the severity of crimes perpetrated by them. It aims to protect the safety of the country of refuge and hinges on the assessment that the refugee in question poses a major actual or future threat. For this reason, Article 33(2) has always been considered as a measure of last resort, taking precedence over and above criminal law sanctions and justified by the exceptional threat posed by the individual—a threat such that it can only be countered by removing the person from the country of asylum.
…
44. Article 1F(b) also requires the crime to have been committed 'outside the country of refuge prior to [the individual's] admission to that country as a refugee'. … Individuals who commit 'serious non-political crimes' within the country of refuge are subject to that country's criminal law process, and in the case of particularly grave crimes to Articles 32 and 33(2) of the 1951 Convention; they do not fall within the scope of the exclusion clause under Article 1F(b). The logic of the Convention is thus that the type of crimes covered by Article 1F(b) committed after admission would be handled through rigorous domestic criminal law enforcement and/or the application of Article 32 and Article 33(2) where necessary.
26. The UNHCR guidance confirms what to us appears from the wording of Article 33(2) compared to Article 1F(b): that the phrase "particularly serious crimes" in Article 33(2) of the Refugee Convention has a narrower meaning than the phrase "serious crimes", which can lead to the exclusion from refugee status under Article 1F(b). Where a refugee who has already been recognised as such commits a serious non-political crime in the country of refuge, this should be dealt with through the ordinary criminal law process of that country; it is only in the case of "particularly grave crimes" that Article 33(2) applies.
Assessment of compatibility
27. We therefore have grave concerns about the compatibility of the Order with the Refugee Convention, properly interpreted. In our view, the crimes included in the Order go far beyond what can be regarded as "particularly serious crimes" for the purposes of Article 33(2). The list of crimes which are specified for the purposes of s. 72(4)(a) of the 2002 Act includes a number of crimes which cannot on any view be regarded as "particularly serious crimes" as that phrase is to be interpreted in the context of the Refugee Convention. It includes, for example, theft, entering a building as a trespasser intending to steal, aggravated taking of a vehicle, criminal damage, and possession of controlled drugs. We doubt whether these offences, per se, would amount to "serious crimes" for the purposes of Article 1F(b), and are even more doubtful that they are capable of amounting to "particularly serious crimes" for the purpose of Article 33(2).
28. By specifying such offences, the Order is in effect expanding the exceptions to the important principle of non-refoulement, and thereby weakening the strength of that principle. In our view this is incompatible with the Refugee Convention properly interpreted. In view of the humanitarian purpose of that Convention, the exceptions to the principle of non-refoulement in Article 33(2) should be given a restrictive interpretation, not an interpretation which expands their scope and correspondingly weakens the principle itself. We draw this matter to the attention of each House."
"33. In the course of our consideration of this question, however, it has become clear to us that the very scheme of s. 72 itself may be incompatible with the Refugee Convention in a number of respects. We have concerns, for example, about the appropriateness of a conclusive presumption in relation to whether a crime is "particularly serious". It is clear to us that the applicability of the exceptions to the principle of non-refoulement in Article 33(2) must be judged on a case-by-case basis, taking into account all the individual circumstances of the case, including the particular circumstances of the commission of the specified offence. There may, for example, have been significant mitigating circumstances surrounding the offence which lessen its seriousness. By the same token, there may be aggravating factors which make an otherwise less serious offence more serious, for example the use of a deadly weapon, or serious injury to people. Section 72 precludes any consideration of such factors, because it provides for a conclusive (i.e. non-rebuttable) presumption that certain offences are "particularly serious crimes" for the purposes of Article 33(2).
34. We are also concerned that s. 72 of the 2001 Act reverses the burden of proof in relation to whether a refugee is a "danger to the community". Article 33(2) appears to presuppose that the burden is on the State to establish that an individual, having been convicted of a particularly serious crime, is also a danger to the community. The effect of section 72 of the 2002 Act, however, is that where an offence of a particular kind has been committed by a refugee or a claimant for refugee status, they are presumed both to have committed a particularly serious offence and to be a danger to the community, unless they can demonstrate that they are not a danger to the community.
35. We are further concerned that by adopting a rebuttable presumption approach to the applicability of Article 33(2) of the Refugee Convention, s. 72 of the 2002 Act precludes the application of a proper proportionality test to the particular circumstances of an individual case. In determining whether the exception to the principle of non-refoulement in Article 33(2) applies in a particular case, it is necessary for a balancing exercise to be carried out, weighing the nature of the offence and the degree of danger to the community on the one hand against the degree of persecution feared on the other if the individual were to be returned. Section 72 of the 2002 Act gives effect to an approach to the application of Article 33(2) which has no regard to the individual circumstances of each case other than to the extent that the individual can prove that he is not a danger to the community. Even this limited opportunity to consider the individual circumstances of the case is narrowly circumscribed: the seriousness of the offence is not relevant to this inquiry (see above), and the gravity of the fear or threat of persecution is expressly ruled out as a relevant consideration. The only question is whether the individual can show that he is not a danger to the community. If he cannot prove this, Article 33(2) is deemed to apply simply by virtue of a particular type of offence having been committed.
36. We do not, however, go any further into the question of the compatibility of s. 72 of the 2002 Act with the Refugee Convention, as no purpose would be served reporting to Parliament on the compatibility of a provision which has already been enacted and which there is no imminent occasion for Parliament to reconsider. We merely draw to the attention of each House our concerns about the compatibility of s. 72 of the 2002 Act with Article 33(2) of the Refugee Convention. We may return to this question at an appropriate juncture in the future."
Academic Literature
"Along with a number of other jurisdictions, Australia has now legislated contrary to this reasoning, by prescribing crimes which are to be regarded as 'particularly serious' for the purposes of article 33(2) of the 1951 Convention. An approach in terms of the penalty imposed alone will likely be arbitrary. In our view, and as a matter of international law, the interpretation and application of this concept in the context of an exception to non-refoulement ought necessarily to involve an assessment of all the circumstances, including the nature of the offence, the background to its commission, the behaviour of the individual, and the actual terms of any sentence imposed. As in the case of article 1F(b), a priori determinations of seriousness by way of legislative labelling or other measures substituting executive determinations for judicial (and judicious) assessments are inconsistent with the international standard which is required to be applied, and with the humanitarian intent of the Convention. After all, what is at issue here is action by the State in manifest disregard of what is recognized as serious danger (persecution) to the life or liberty of a refugee. It is the nature of presumptions that they disregard context and circumstances, and therefore also the principle of individual assessment."
"The jurisprudence is relatively sparse and the notion of a 'particularly serious crime' is not a term of art…"
"…the criminality exclusion set by Art. 33(2) exists to enable host states to protect the safety of their own communities from criminal refugees who are shown to be dangerous. This right to engage in the refoulement of dangerous criminals is, however, carefully constrained.
First, the gravity of criminality which justifies refoulement under Art. 33(2) is higher than that which justifies the exclusion of fugitives from justice under Art. 1(F)(b) of the Convention. Art. 1 denies protection to an extraditable criminal who has committed a "serious non-political crime outside the country of refuge prior to his admission to that country as a refugee." "Serious" criminality in this context is normally understood to mean acts that involve violence against persons, such as homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery. The gravity of harm necessary to justify the refoulement of a person who qualifies for refugee status – expressly framed as a "particularly" serious crime – is clearly higher still, and has been interpreted to require that even when the refugee has committed a serious crime, refoulement is only warranted when account has been taken of all mitigating and other circumstances surrounding commission of the offence. ....
Second, while refugee status is to be withheld from persons reasonably suspected of criminal conduct under Art. 1(F)(b), the refoulement of refugees is permissible only when there has actually been conviction by a final judgement. Appeal rights should therefore have expired or been exhausted, limiting the risk of refoulement strictly to those whose criminality has been definitively established in accordance with accepted, general legal norms.
Third and most important, the nature of the conviction and other circumstances must justify the conclusion that the refugee in fact constitutes a danger to the community from which protection is sought. Because danger follows from the refugee's criminal character, it does not matter whether the crime was committed in the state of origin, an intermediate state, or the asylum state. Nor is it relevant whether the claimant has or has not served a penal sentence or otherwise been punished. In contrast to exclusion from refugee status under Article 1(F)(b) of the Convention, however, particularized refoulement cannot be based on the refugee's criminal record per se – as seems increasingly to be the practice in the United States, for example. Refoulement is instead authorized only as a "last resort" where there is no alternative mechanism to protect the community in the country of asylum from an unacceptably high risk of harm. The practice of some states to give dangerous refugees the option of indefinite incarceration in the asylum state as an alternative to refoulement is therefore one mechanism to be considered, since it protects the host community, yet averts the risk of being persecuted. In the end, however, the Refugee Convention accepts that in extreme and genuinely exceptional cases, the usual considerations of humanity must yield to the critical security interests of the receiving state. Thus, if the demanding criteria of Art. 33(2) are satisfied , an asylum state may, assuming there is no other option, remove a refugee convicted of a particularly serious crime who poses a danger to the host community's safety – even if the only option is to send the refugee to his or her country of origin."
Overseas Case Law
"The expression "particularly serious crime" in Article 33(2) is not defined in the Convention. The expression shows that it is not enough for the crime committed to be a serious crime. It must be "particularly serious" as well as a crime that shows that the refugee is a danger to the community.
On its proper construction, Article 33(2) does not contemplate that a crime will be characterised as particularly serious or not particularly serious merely by reference to the nature of the crime that has been committed although this may suffice in some cases. The reason is that there are very many crimes where it is just not possible to determine whether they are particularly serious without regard to the circumstances surrounding their commission. "
"If this is what his Honour meant then I regret to say that I am unable to agree with him. There will be occasions when a threat to kill cannot be treated as a particularly serious crime. It all depends upon the circumstances. While it is true that rape is a serious crime there will be occasions, rare though they may be, when a rape could not be treated as a particularly serious crime. Again, it all depends upon the circumstances.
The view that I have formed concerning the proper approach to be adopted in determining whether a crime is particularly serious for the purposes of Article 33(2) is one that has been applied in the United States of America. For example, in In the matter of Frentescu, (1982) 18 I & N Dec 244 a refugee had been convicted of burglary and sentenced to a term of imprisonment of three months. The question arose whether this was a conviction for a "particularly serious crime" within the meaning of s 243(h)(2)(B) of the Immigration and Nationality Act 1952 (US) thus enabling the refugee to be deported from the United States. Section 243(h)(2)(B) was in substantially the same terms as Article 33(2) of the Convention. The Board of Immigration Appeals held that while there are crimes which on their face are particularly serious crimes, in most cases it is necessary to analyse each crime on a case by case basis to decide whether it is particularly serious. The Board said (at 247):
"In judging the seriousness of a crime, we look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstance of the crime indicate that the alien will be a danger to the community. Crimes against persons are more likely to be characterised as "particularly serious crimes". Nevertheless we recognise that there may be instances where crimes (or a crime) against property will be considered as such crimes".
This formulation of principle was approved by two decisions of the Court of Appeals for the 9th Circuit, namely Ramirez-Ramos v Immigration and Naturalisation Service (1987) 814 F (2d) 1194 and Beltran-Zavala v Immigration and Naturalisation Service (1990) 912 F (2d) 1027.
In Beltran-Zavala the Court of Appeals was concerned with a refugee who had been convicted of selling marijuana to an undercover police officer. The refugee, Beltran, pleaded guilty to a violation of the Californian Health and Safety Code and was sentenced to two years probation. Shortly thereafter Beltran was arrested for an alleged theft from an automobile. As a consequence he had his probation revoked. While imprisoned Beltran received from the Immigration and Naturalisation Service an order to show cause why he should not be deported. An immigration judge held that Beltran did not qualify for the withholding of deportation because he had been convicted of a "particularly serious crime". An appeal from this decision to the Board of Immigration Appeals was dismissed and that decision was the subject of review by the Court of Appeals. The court reversed the decision of the Board. It said (at 1421):
"In the case at hand, however, the BIA did not examine the type of sentence or the underlying facts. It simply leapt directly from the fact of conviction to the determination that it could not withhold deportation. In fairness, it may not have given as much consideration to this factor as it should have, because of its error regarding asylum. Had it been correct about Beltran's eligibility for asylum, the BIA could have concluded that Beltran was not entitled to withholding of deportation in any event. The BIA was not correct."
In this case the Tribunal fell into the same error. It failed to have regard to the facts and circumstances underlying the commission of the various offences of which the appellant had been convicted. It simply decided that those offences were "particularly serious offences" because of the nature of those offences. The Tribunal should have taken into account the fact that it was the appellant's psychological illness that led to the commission of the offences. It should have taken into account that the appellant's conduct was directed to a person whom he believed, as a consequence of his psychological illness, had been conspiring to cause him harm. The Tribunal should have considered the extent to which that psychological illness reduced the moral culpability of the appellant in much the same way as his psychological illness was taken into account in sentencing the appellant for having committed those offences: as to the relevance of a psychological illness in sentencing …."
"Finkelstein J made it clear that a crime will not necessarily "be characterised as particularly serious or not particularly serious merely by reference to the nature of the crime", although he thought it might be in a particular case. That was because its seriousness would depend on the circumstances surrounding its commission."
"As to whether A had been convicted of a particularly serious crime within the meaning of Art 33(2), in Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95 at 100 (Finkelstein J) held that, in order to determine whether a crime is a particularly serious one for present purposes, it is generally necessary to have regard to the circumstances in which it was committed, although he accepted the possibility that there can be crimes which are particularly serious per se. In Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 16 (unreported, 15 January 1999), a later case involving the same parties, Marshall J (at par 8 of his reasons for judgment) agreed with the approach of Finkelstein J."
Domestic Case Law
"The Convention, and section 72, refer to "a" particularly serious crime. Of course, convictions for several "particularly serious crimes" also suffices, but convictions for several "not particularly serious crimes" do not cause the protection against non-refoulement to be removed. There must be at least one conviction for "a particularly serious crime". This is not a piece of pedantic focus on an indefinite article. The removal of protection is serious; the disqualifying offence has to attain a particular level not met by persistent low level offending. Incorrigible criminality and danger to the community do not suffice of themselves."
"74. This offence, by itself or as a single offence, does not quite reach the threshold, even though it was a nasty attack, on people in their homes, and undertaken because the Appellant thought that he was entitled to take the law into his own hands. However, in the context of the Appellant's previous offending, which involved dishonesty and violence, and an earlier occasion on which he had gone to someone's house to deal with a perceived wrong, outside the law, it does reach that threshold."
2. Analysis and Conclusions
"[Articles 32 and 33] do not affect his refugee status: they merely diminish the incidents of that status."
The consequence is that Art 33(2) contemplates the return of an individual who has established a risk on return to their own country. It might be thought that Art 33(2) potentially has therefore an even greater impact upon an individual which would justify a higher threshold than Art 1F(b) before it is engaged. But even that argument loses some force when it is appreciated that the exclusion provisions in Art 1F can be applied to an individual who has already been recognised as a refugee (see, MT (Algeria) v SSHD [2007] EWCA Civ 808 approving KK at [87]).
"On its proper construction, Art 33(2) does not contemplate that a crime will be characterised as particularly serious or not particularly serious merely by reference to the nature of the crime that has been committed although this may suffice in some cases. The reason is that there are very many crimes where it is just not possible to determine whether they are particularly serious without regard to the circumstances surrounding their commission."
Compatibility of the 2004 Order and s.72 with Art 33(2)
"The logic of the syntax of [Art 33(2)] moves in the opposite direction. The principal statement of exclusion is 'who constitutes a danger to the community'. The phrase 'having been convicted…of a particularly serious crime' adds an additional element, but it is not expressed as if the additional element swallowed up the principal statement….both of two things are required, not that one of them negates the need to consider the other."
Ultra vires and Incorporation
1. Ultra Vires?
"…we would need a very great deal of persuasion indeed that we had the power to disregard any legislative provision, be it primary or secondary legislation."
"We are…satisfied that, although 'the general law' and 'established principles of administrative or common law' are to be applied, adjudicators and the tribunal cannot decide whether Immigration rules or any subordinate legislation is ultra vires."
"[The submission that the Immigration Rules should be struck down as ultra vires] is not one which could have been advanced before the Tribunal. Only the High Court has power under its supervisory jurisdiction to strike down such a provision. The Tribunal, having construed it, had simply to apply it, however unreasonable and unfair they regard it to be."
"If para 289A(iv) did bear the meaning contended for by the Secretary of State and if it were ultra vires, the AIT should nevertheless have given it full force and effect. They have no power to declare it to be ultra vires, nor did they purport to do so."
"In the light of the interpretation put upon the phrase "in accordance with the law…applicable" by the Court of Appeal in Abdi (above), whereby an adjudicator or the Tribunal is permitted to consider whether a decision is in accordance with the established principles of administrative or common law, it is hard to see why the issue of vires should be excluded from consideration. In the Tribunal's view the approach taken by the House of Lords in Foster (above) in respect of the jurisdiction of Social Security Commissioners should apply equally and for the same reasons to the Immigration Appeal Tribunal. In our view the decision of Manshoora Begum (above) should be treated as superseded by Foster (above). Accordingly the Tribunal are satisfied that they do have jurisdiction to consider the vires of the Immigration Rules."
"One would expect a defendant in a criminal case, where the liberty of the subject is at stake, to have no lesser rights. Provided that the invalidity of the byelaw is or maybe a defence to the charge a criminal case must be the paradigm of collateral or defensive challenge."
"That decision contemplates that, despite the invalidity of a byelaw and the fact that consistently with Reg. v. Wicks such invalidity may in a given case afford a defence to a charge, a magistrate court may not rule on the defence. Instead the magistrates may convict a defendant under the byelaw and punish him. That is an unacceptable consequence in a democracy based on the rule of law. It is true that Bugg's case allows the defendant to challenge the byelaw in judicial review proceedings. The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge. My Lords, with the utmost deference to eminent judges sitting in the Divisional Court I have to say the consequences of Bugg's case are too austere and indeed too authoritarian to be compatible with the traditions of the common law. In Eshugbayi Eleko v. Government of Nigeria [1931] AC 662, a habeas corpus case, Lord Atkin observed, at p. 670, that "no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of justice." There is no reason why a defendant in a criminal trial should be in a worse position. And that seems to me to reflect the true spirit of the common law.
There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence."
"…where subordinate legislation (e.g. statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case. A smoker might have made his first journey on the line on the same train as Mr. Boddington; have found that there was no carriage free of no smoking sign and have chosen to exercise what he believed to be his right to smoke on the train. Such an individual would have had no sensible opportunity to challenge the validity of the posting of the no smoking signs throughout the train until he was charged, as Mr. Boddington was, under Byelaw 20. In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train. I can see nothing in section 67 of the Transport Act 1962 or the byelaws which could displace that presumption. It is clear from Wandsworth London Borough Council v. Winder [1985] AC 461 and Reg. v. Wicks [1998] AC 92, 116, per Lord Hoffmann that the development of a statutorily based procedure for judicial review proceedings does not of itself displace the presumption.
Accordingly, I consider that the Divisional Court was wrong in the present case in ruling that Mr. Boddington was not entitled to raise the legality of the decision to post no smoking notices throughout the train, as a possible defence to the charge against him."
(Lords Slynn of Hadley, Browne-Wilkinson and Hoffmann agreed with the speeches of Lord Irvine of Lairg LC and Lord Steyn that the magistrates were entitled to determine the vires of the byelaw.)
"An appeal lies to a Commissioner from any decision of a social security appeal tribunal on the grounds that the decision of the tribunal was erroneous in point of law."
"the central question… is whether a claimant otherwise entitled to some social security benefit which has been denied to him by the adjudication officer and the appeal tribunal in reliance on some provision in a regulation which the Secretary of State had no power to make is entitled to succeed on appeal to the commissioner on the ground that the decision against him was 'erroneous in point of law' or whether, as must follow if the Court of Appeal were right, before he invokes the statutory machinery by which alone his claim can be enforced, he must first proceed by way of an application for judicial review to have the offending provision quashed or declared invalid. It is common ground that the principle of O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237 has no application, since there can be no abuse of process by a party who seeks a remedy by the very process which statute requires him to pursue. It was further rightly accepted by [counsel for the Chief Adjudication Officer and secretary of State] before your Lordships that a decision giving effect to secondary legislation which is ultra vires is, indeed, in the ordinary meaning of the words 'erroneous in point of law'. The question then is whether, when that phrase is used in s 101 of the 1975 Act, there is something in the context in which it appears which requires by necessary implication that it be given a restricted meaning so as to exclude from its ambit any errors of law referable to a misuse by the Secretary of State of his regulation making power."
"My conclusion is that the commissioners have undoubted jurisdiction to determine any challenge to the vires of a provision in regulations made by the Secretary of State as being beyond the scope of the enabling power whenever it is necessary to do so in determining whether a decision under appeal was erroneous in point of law. I am pleased to reach that conclusion for two reasons. First, it avoids a cumbrous duplicity of proceedings which could only add to the already overburdened list of applications for judicial review awaiting determination by the Divisional Court. Secondly, it is, in my view, highly desirable that when the Court of Appeal, or indeed your Lordships' House, is called upon to determine an issue of the kind in question it should have the benefit of the views upon it of one or more of the commissioners, who have great expertise in this somewhat esoteric area of the law."
"if the commissioner can base his decision in any case on the invalidity of some provision in regulations made under the Act, it must follow that appeal tribunals and adjudication officers can do likewise."
2. Incorporation
"The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law."
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the [Refugee] Convention."
"41….It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. After all, it would be bizarre to provide that formal immigration rules must be consistent with the Convention but that informally adopted practices need not be consistent with the Convention. The reach of section 2 of the 1993 Act is therefore comprehensive.
42. Parliament must be taken to have been aware, in enacting the 1993 Act, that the courts had treated references in the immigration rules to the Refugee Convention as "indirectly" or "for practical purposes" incorporating it into domestic law: Bennion, Statutory Interpretation, 4th ed (2002), p 469. In the context of the decisions of the Court of Appeal and House of Lords in 1987 Parliament must have intended that the strengthened reference to the Refugee Convention in primary legislation would be treated by the courts as an incorporation of the Refugee Convention into domestic law. Moreover, the heading of section 2 is "Primacy of the Convention." This is a relevant and significant pointer to the overriding effect of the Convention in English law: R v Montila and Others [2004] UKHL 50, paras 31-37, per Lord Hope of Craighead. It is true, of course, that a convention may be incorporated more formally by scheduling it to an enactment, eg the Carriage of Goods by Sea Act 1971 which enacted the Hague-Visby Rules. But there is no rule specifying the precise legislative method of incorporation. It is also possible to incorporate a treaty in part, e.g. the European Convention on Human Rights was incorporated into our law without article 13: see Human Rights Act 1998. In my view it is clear that the Refugee Convention has been incorporated into our domestic law."
"29. The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990G; Lord Steyn in R (European Roma Rights Centre and others) v Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees Intervening) [2004] UKHL 55, [2005] 2 AC 1, paras 40-42; section 2 of the Asylum and Immigration Appeals Act 1993; and para 328 of Statement of Changes in Immigration Rules (HC 395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation."
"The giving effect in domestic law to international obligations is primarily a matter for the legislature. It is for Parliament to determine the extent to which those obligations are to be incorporated domestically. That determination having been made, it is the duty of the courts to give effect to it."
Art 21 of the Qualification Directive
"Protection from refoulement
1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.
2. Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:
(a) there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
3. Member States may revoke, end or refuse to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies."
"The Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees."
"The European Council at its special meeting in Tampere on 15 and 16 October 1999 agreed to work towards establishing a Common European Asylum system, based on the full and inclusive application of the Geneva Convention relating to the Status of Refugees of 28 July 1951 (Geneva Convention), as supplemented by the New York Protocol of 31 January 1967 (Protocol), thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution."
"16. The second basic principle concerns the interpretation and application of a provision of United Kingdom legislation which is inconsistent with a directly applicable provision of Community law. Where such an inconsistency exists the statutory provision is to be read and take effect as though the statute had enacted that the offending provision was to be without prejudice to the directly enforceable Community rights of persons having the benefit of such rights. That is the effect of section 2 of the European Communities Act 1972, as explained by your Lordships' House in R v Secretary of State for Transport, Ex p Factortame Ltd [1990] 2 AC 85, 140, and Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) (No 2) [1999] 1 WLR 2035, 2041.
17. Thus, when deciding an appeal from a refusal by an inspector to allow group relief the appeal commissioners are obliged to give effect to all directly enforceable Community rights notwithstanding the terms of sections 402(3A) and (3B) and 413(5) of ICTA. In this regard the commissioners' position is analogous to that of the Pretore di Susa in Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629. Accordingly, if an inconsistency with directly enforceable Community law exists, formal statutory requirements must where necessary be disapplied or moulded to the extent needed to enable those requirements to be applied in a manner consistent with Community law. Paragraph 70 of Schedule 18 to the Finance Act 1998 is an instance of such a requirement. Paragraph 70 provides that a claim for group relief requires the consent of the surrendering company, which must be given by notice in writing to its own inspector of taxes when or before the claim is made. This provision cannot be applied literally in the case, say, of a German subsidiary which makes no tax returns in this country. So if the residence restriction is found to be inconsistent with Community law this provision will need adapting so as to give effect to the overriding Community rights. In this regard the appeal commissioners have the same powers and duties as the High Court." (emphasis added)
"A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person."
Credibility
"7. I have to say that the now prevalent practice of finding that an applicant is lying because the events described by him are "implausible" is not attractive and may even be said not to be intellectually respectable. We all know from our own lives that the improbable and the implausible happed repeatedly. It is the task of the fact-finder to decide not whether a particular occurrence or set of occurrences is probable or plausible in the sense that it was likely to happen, but whether, however objectively improbable or implausible, it is what did happen. Increasingly, as it seems to me, immigration judges are substituting the former for the latter."
"27. The difficulty of the fact-finding exercise is particularly acute in asylum cases, as has been said on more than one occasion in this court - see for instance Gheisari –v- Secretary of State [2004] EWCA Civ 1854 at paragraphs 10 and 12 per Sedley LJ and at paragraphs 20 and 21 per Pill LJ. The standard of proof to be applied for the purpose of assessing the appellant's fear of persecution is low. The choice is not normally which of two parties to believe, but whether or not to believe the appellant. Relatively unusually for an English Judge, an Immigration Judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial Judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases. That is normally through nobody's fault: it is the nature of the beast.
28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."
30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background"."
"23. We have considered the statements by the general practitioner and consultant which have been submitted. We note the possible explanation attributed by the general practitioner referred to at page 111. We note the analysis where injuries could be consistent with descriptions of injury given by the Appellant. We note that the general practitioner Dr Phythian-Adams could not comment on the mechanism of fracture in relation to the fractured bone in the Appellant's left hand which the Appellant described. We note that the consultant plastic and reconstructive surgeon, Mr Mark Ho-Asjoe stated that it was unfortunately difficult to suggest any form of aetiology to the scars referred to at page 119. There was multiple scarring relating to his profession. It has been accepted by the respondent that the Appellant was in the military. From the scar point of view, the author stated it was difficult to associate any form of aetiology to the scarring because of the regular repetitive damage to the medial and inferior aspect of the feet from walking. We do not find that the medical evidence submitted bears out the causation claimed by the Appellant on the basis of his description of the events which have befallen him."
"It was usual for the Eritrean army to get together after an offensive and to conduct an evaluation of that offensive. It was also not unusual for a considerable time to pass between openly expressed criticism and arrest, or for deserters to be punished by their superiors without trial".
"Given the nature of the accusations against the Appellant and his own account of what he said at the big military conference we find it astounding that following his detention he was sent back to his old division".
"There were substantial reports that prison conditions for persons temporarily held for evading military service were also poor. Unconfirmed reports suggested there maybe hundreds of such detainees. Draft evaders were typically held for one to twelve weeks before being reassigned to their units."
"We find the account given by the Appellant of the circumstances of his escape from Barentu prison to be intrinsically implausible. In his witness statement dated 5th May 2004 the Appellant described the Eritrean military retreat after which the Appellant and the others broke the doors of the prison and they fled. It was a high security prison as the Appellant has described at paragraph 13. The Appellant repeats this description at paragraph 27 of his statement dated 30th August 2006. The people who are there were to be killed in secret. Again the Appellant refers to breaking the doors of the prison with the others and fleeing. However in the SEF interview in answer to question 56 the Appellant described the prison. He stated it was an underground prison and there was only one door. There were guards at the door. They are there for 24 hours in turn. The Appellant has described one of the inmates being handcuffed so they managed to unlock by a nail and then they unlocked the handcuffs and then broke the padlock on the door by hitting it with the handcuffs. We find this description to be intrinsically implausible. The Appellant amplified his explanation in the proceedings before us. We have set this out above. Despite the lack of technological barriers we find it astounding that a handcuff unlocked by means of a nail and which featured spikes would be capable of use to break down the single door of an underground prison classified as a high security institution. The guards had already left. Nonetheless the physical achievement described by the Appellant we find intrinsically implausible. We note the Appellant has stated that while he described the prison as a high security prison it was only considered such because there were many guards present to prevent escape. The actual technology was very poor. In that explanation to be found at pages 12 and 13 of the Appellant's witness statement dated 30th August 2006 the Appellant refers to being given the opportunity because all the guards had fled at this time to break though the doors of the cell."
"Ethiopian troops Wednesday captured the town of Barentu, about forty five miles north of the border.
Wrku Tesfamichael, Director of the state run Eritrean Relief and Refugee Commission, said Ethiopia's military campaign already had driven a total of 550,000 Eritreans from their homes or the temporary camps where they were sheltered".
"We have noted in particular the evidence obtained by Counsel for the Appellant from the internet in relation to the fall of Barentu."
"We were referred to the 18th May report. We were referred to the US State Department Report 2001. This stated that Barentu fell to the Ethiopian troops. There was a coincidence to this being so close to the Appellant's account."
"21. The Appellant has described taking around three days on foot having escaped Barentu prison to reach Kassala in Sudan. Prior to the Appellant's transfer to Barentu prison the Appellant had been tied with a rope by the division administrator and taken to the prison. This punishment, the Appellant states, is called "helicopter." Despite this treatment, the back injury which the Appellant had sustained during his period of about six months' detention and the debilitating circumstances of his detention in Barentu prison which the Appellant has related he was nonetheless able to cover a very considerable distance to Sudan from Barentu on foot. During the hearing the Appellant submitted a note that the distance from Barentu to Kassala is about 120-130 kilometres and the climate was very hot so that it was impossible to walk for a long time at any one time. Despite the climatic conditions and the physical condition of the Appellant he was clearly, it appears, able to cover some 40 kilometres each day. We find this intrinsically implausible in relation to someone who had suffered the physical privations and injuries described by the Appellant. The Appellant stayed in the Sudan from May 2000. It was only in February 1999 that the Eritrean government, on the Appellant's account, had been forced to release the ex-soldiers in prison and make them including him join the fighting. The Appellant was sent back to his old division. In his witness statement dated 30th August 2006 the Appellant refers being sent to the hospital in Asmara in March 2000 while he had problems with his back and caught malaria and was very ill. His wife and child visited him. In his witness statement dated 20th April 2004 the Appellant refers being given permission to stay with his fiancée for a week. He went back to the military camp after a period of one week as expected. Thereafter he was taken to another military camp and stayed at this military camp until April 2000. At the end of that month he was told by his sister his wife and daughter had been deported. There is no mention in that witness statement of the Appellant going to hospital in March 2000. In the Appellant's supplementary witness statement of 5th May 2004 the Appellant refers at paragraph 11 to the marriage ceremony and being given permission to stay with his wife for a week. He was allowed to stay with her in another camp in the military front. In March 2000, he states, he received a letter from his sister saying his wife had been deported with his daughter. Straight away the Appellant went to the division administrator and told him there was no reason for him to continue fighting. After that the Appellant was tied up and taken to Barentu prison. There was no mention in this witness statement of the Appellant being in hospital in March 2000. We find that the Appellant has further embroidered his account. We find that the significance of the Appellant's receiving treatment in March 2000 is to assist in explaining how the Appellant was able to reach the Sudan having escaped from Barentu prison. Without being in hospital in March 2000 the Appellant would have received no treatment for his back and would have endured the difficulties originating with his detention for about six months following his speech at the military conference and having been sent back to fight without any or proper attention. We do not find it plausible that the Appellant would have been able on the account he has given including of his treatment and injuries and wounds that he would have been able to accomplish such an arduous and lengthy journey in the time he has claimed to the Sudan. Plainly the Appellant has realised this difficulty in the time which has elapsed from his original statement and supplementary statement to which we refer of 2004 and has attempted to improve the level of plausibility of what is already an intrinsically implausible account. Had the appellant suffered and continued to suffer such back problems in March 2000 it is even more extraordinary that he was able to accomplish the journey to the Sudan."
"In March 2000, I went to a hospital because my back bone started to deteriorate and I was poorly with malaria."
"22. The Appellant arrived in Sudan in May 2000 and only left on 6th April 2004. In his screening interview at page A12 the Appellant stated that he tried to claim asylum in Sudan but they would not accept an ex-soldier. In his witness statement dated 20th April 2004 the Appellant stated I did not apply for asylum in Sudan as I feared I will be deported back to Eritrea like many other people were being deported. In the SEF interview the Appellant explained that his friends had been asked by him about asylum and they told him not to claim. He also explained that if you are an ex-soldier they do not accept you as a refugee because of strained relationship with Eritrea and secondly you are an ex-soldier and if they send you into a refugee camp you do not need military training to join the Islamic Movement which is a big plus. Given the reasons that the Appellant has set forward for not claiming asylum in Sudan namely that he was told by his friends that if you claim asylum first they will take you into a refugee camp and then they will force you to join the Islamic Movement against Eritrea so he did not want to get into politics again and war we find it very surprising that the Appellant spent so long in Sudan. He was separated from his wife and child. He had been told to wait effectively until 2003 in relation to his desire to go to America. He did not leave the Sudan until 2004. Had the Appellant truly been at risk we find that he would not have spent so long in the Sudan having made up his mind that he could not claim asylum there. We find that the reality of the situation is that the Appellant was determined to go to America and that was his priority. We find that the Appellant is using the United Kingdom as a transit point for his original ambition of going to America. We do not find that the Appellant has been at risk. At page B4 of the Respondent's bundle the Appellant stated that his intention was not to stay in England but to try to get to America to stay with his family. We find that that comment amply reflects our conclusions. He stated in answer to section 2.2 that his intention is to go to America to live with his family. At question 2.79 at page B11 he was asked did you come to the UK specifically to seek asylum. He replied yes but as a means of getting to America. We find that had the Appellant genuinely required asylum he would have come to the United Kingdom much sooner or left the Sudan for another country in which he could have claimed asylum much sooner."
"20. In his statement of 20th April 2004 the appellant referred to "when I went to meet my fiancée I got married to her in the church. I intended to leave the country with my wife at this point however as it was not a convenient time to escape I could not leave." The Appellant then explained he went back to the military camp after a period of one week as expected by the military officers. In his statement dated 5th May 2004 the Appellant referred to the wedding being done without his presence. No adequate explanation has been put forward by the Appellant as to how the mistaken version of events was given in the first witness statement to which we refer. In the first witness statement in which the Appellant comments on the Home Office refusal letter to be found at page 10 of the main bundle the appellant does not comment on paragraph 31 of the reasons for refusal of asylum letter which deals with this issue. His comments cease in respect of paragraph 20. The Appellant has made a supplementary statement commenting on the reasons for refusal letter. This is to be found at page 1 of the Appellant's supplementary bundle. Again there is no comment on paragraph 31 of the reasons for refusal of asylum letter. We have set out the Appellant's explanation in cross-examination. We reject that. The statement of 20th April is detailed and relatively complex. The part relating to the place of the marriage is preceded by the Appellant stating that he went to meet his fiancée. We reject the possibility of double error by the interpreter on one such point alone. We find no adequate explanation has been given for the discrepancy for the same reasons we have set out in the preceding paragraph. We find it intrinsically implausible that the Appellant would have been refused permission to attend the actual wedding but after the marriage ceremony be given permission to stay with his wife for a week after she came to his division. The Appellant states at paragraph 23 of his witness statement at page 6 of the main bundle that he was allowed to stay with her in another camp in the military front. We find it extraordinary that the Appellant made no attempt to escape during this period. He had already been in detention for about six months and suffered considerable ill-treatment which he has related. The Appellant states at paragraph 13 of his witness statement at page 4 of the main bundle that he thought they would kill him. However it was only in May 1999 that he was allowed to stay with his wife. We find it extraordinary that the Appellant should contradict himself within a short period of time with regard to the circumstances of his marriage. We find it intrinsically implausible given the fear which he had already experienced that he did not seek to escape given the circumstances in which he found himself."
"Authorities generally permitted three visits per week by family members except for detainees arrested for reasons of national security or for evading national service."
"It has been accepted by the Respondent that the Appellant served in the military. Having rejected the Appellant's account we do not accept that on return he would be perceived as a deserter and an escapee from a military prison. The Appellant therefore fails to come within the criteria set out in KA. We do not accept the Appellant's account in relation to his departure from the country. We therefore do not conclude that he did not leave on a legal basis."
"…where a person has come to this country and given what the fact-finder concludes (according to the requisite standard of proof) to be an incredible account of his or her experiences, that person may well fail to show that he or she exited illegally."
"348. As noted at paragraph 205 above, Dr Kibreab told us that those not affected by National Service and considered as trustworthy by the government, and thus unlikely to have difficulty in obtaining exit visas, comprised Ministers; ex-Ministers; Party Activists; Eritrean expatriates; namely those who could be British citizens working in Eritrea but of Eritrean origin; elderly people over fifty who were forty or over in 1994, those who wanted to go on Haj or visit relatives abroad; government officials; scholarship students (although Dr Kibreab's evidence was that the government now restricted their movements as many did not return); government employees who attended conferences (although Dr Kibreab maintained this had recently stopped); and relatives of those in power who might arguably obtain exit visas as a result."
Decision
SENIOR IMMIGRATION JUDGE GRUBB