UK - Court of Appeal, 28 October 1999, Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000

Country of Decision:
Country of Applicant:
Date of Decision:
28-10-1999
Citation:
[1999] EWCA Civ 3000
Additional Citation:
[2000] Imm AR 96, [1999] INLR 533
Court Name:
Court of Appeal
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Headnote: 

The 1951 Refugee Convention should not be interpreted so that a refugee sur place who has acted in bad faith is excluded from its protection and can be deported to his home country notwithstanding that he or she has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although such an applicant’s credibility is likely to be low and the claim must be rigorously scrutinised, he or she is still entitled to the protection of the Convention if a well-founded fear of persecution is accepted. 

Facts: 

The applicant was a Nigerian national who had first come to the UK in 1985. His immigration history was long and complicated. He eventually applied for asylum in 1990 after a deportation order was made against him following a criminal conviction for working in breach of the conditions of his leave to remain in the UK as a student. His claim was based partly on discrimination and ill-treatment that he claimed to have suffered in Nigeria, but predominantly focused on political activities that he had undertaken in the UK on behalf of the pro-democracy movement. The Tribunal found that his political activity before 1995 would not have come to the attention of the Nigerian authorities and his political activities after 1995 were motivated by a desire to tailor a false claim for asylum.  It further held that a refugee sur place who has acted in bad faith to create a risk of persecution is not entitled to the protection of the Refugee Convention.

Decision & Reasoning: 

The Court of Appeal allowed the appeal on two grounds.

First of all, that the Tribunal’s conclusion that the applicant was not at risk of persecution was based on an erroneous assessment of the evidence in the case.

Secondly, the Tribunal had applied an incorrect interpretation of the 1951 Refugee Convention. Brooke, L.J. held that “… I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith falls outside the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered.”

Buxton, L.J., in a concurring judgment, set out a series of reasons why the Tribunal’s interpretation of the 1951 Refugee Convention was incorrect:

“(i) The basic principle of articles 1 and 33 of the [1951 Refugee] Convention is the protection of persons who have well-founded fears of persecution for a Convention reason.

(ii) Since the Convention is concerned with protection against what may be extreme forms of danger, injury or even loss of life, that protection should be withheld only in specific and extreme cases.

(iii) The Convention itself having provided specific exceptions, their number should not be added to unless there is a clear international consensus to that effect, or the exception is required by international practice. Neither of these criteria are fulfilled in the case of "bad faith": or, at least, not fulfilled to the extent that a national court can assume that the "international meaning" of the Convention includes a bad faith exception.

(iv) A further difficulty in the way of adopting a "bad faith" exception is the problem of formulating that exception with sufficient precision. The formula contended for by the Secretary of State in our case is properly limited: albeit…at the expense of almost no case ever falling under it. It is, however, different from other formulations that have been essayed, such as "pretext" for invoking fear of persecution …; genuineness of political opinion…; and that the applicant's activities must not be "self-serving"…. These differences underline the elusiveness of the necessary international meaning that must be found before the exception can be recognised. They also strongly indicate that any claim of a more general exclusion of unmeritorious cases would amount to a claim to an impermissibly vague and discretionary power to dispense from the international requirements of the Convention.

(v) The considerations set out in paragraphs (i)-(iv) above are sufficient to preclude the courts of this country from establishing a "bad faith" exception to the plain wording of the Convention. However, although it is very doubtfully open to a national court to take into account policy considerations when interpreting an international treaty, I will nonetheless indicate why I consider misplaced the alarm that has been expressed in some of the authorities as to the implications of the absence of a good faith requirement.

(vi) Any applicant will still have to establish that he has a well-founded fear of persecution. As has been frequently pointed out, someone who changes his position, or makes allegations inconsistent with the attitude that he adopted in his home country, may not find that burden easy to discharge. When the United Nations High Commission (sic) for Refugees acknowledged, in the letter written in connection with this case…,that a more stringent evaluation of the applicant's claim was likely in such a case, it was not formulating any new theory, but simply acknowledging reality.

(vii) The persecution feared must be persecution for a Convention reason. The applicant may find it difficult to establish that….

(viii) For the reasons stated in sub-paragraphs (vi) and (vii) above, I cannot agree with the [Federal Court of Australia’s decision in] Somaghi and [Refugee Status Appeals Board of New Zealand in] HB, which considered that a bad faith exception was necessary to prevent what amounted to refugee status on demand, thereby giving mala fide applicants an advantage over bona fide applicants. This complaint entirely overlooks the stringent evaluation of the claim that the host country is likely to and entitled to engage in. It also, in HB … wrongly assumes that mere assertion of an intention to engage in unwelcome (to the native country) activities in the host country will suffice to ground a successful claim. True it is that that possibility was raised by Balcombe LJ in Mendis …; but it is notable that in that case the applicant's assertions were held not to suffice to establish a well-founded fear of persecution. I would also venture to think that if the native country regime is such that it can be established that, even without any actual activity on the applicant's part, there is a sufficient chance of his being persecuted should he engage in certain political activities in his native country, then serious questions arise as to whether it is compatible with this country's international obligations to return him there.”

Outcome: 

Appeal allowed and remitted to the Tribunal for reconsideration.

Observations/Comments: 

The decision in Danian pre-dates the transposition date of the Qualification Directive. The decision was considered, in the light of the provisions of the Directive, in YB (Eritrea) (see separate summary).

Other sources cited: 

Oppenheim's International Law (9th Edition), Grahl-Madsen The Status of Refugees in International Law, Vol 1 (1966), Malcolm N Shaw, International Law (4th Edition), James C. Hathaway The Law of Refugee Status (1991), K R Petrine, "Basing Asylum Claims on a Fear of Persecution Arising from a Prior Asylum Claim" (1981) 56 Notre Dame Law Review 719

Case Law Cited: 

Australia - Somaghi v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 F.C.R. 100

New Zealand - Khan v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal (1997) 47 ALD 19

New Zealand - Re HB (1994)

United States - Bastanipour v. Immigration and Naturalisation Service 980 F.2d 1129 (1992)

UK - R v Home Secretary ex p. Adan (CA) [1999] 3 WLR 1274; [1999] EWCA Civ 1948

UK - R v. Immigration Appeal Tribunal, ex p. B. [1989] Imm A.R. 166

UK - R v Secretary of State for the Home Department ex p Puttick [1981] 1 QB 76

UK - R v Registrar-General ex p Smith [1990] 2 QB 253

UK - Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129

UK - Mbanza, Re [1995] EWCA Civ 44

UK - Mendis v Immigration Appeals Tribunal [1989] IAT 6