Chiver (Asylum; Discrimination; Employment; Persecution) (Romania) [1994] UKIAT 10758 (24 March 1994 ) [1994] UKIAT 10758

UKIAT
Chiver (Asylum; Discrimination; Employment; Persecution) (Romania) [1994] UKIAT 10758 (24 March 1994 )
[1994] UKIAT 10758 · 1994-03-24
The Secretary of State appeals against the decision of an adjudicator (Professor K. Counter) allowing the appeal of Mr. Adrian Chiver against a decision to give removal directions as an illegal entrant, Mr. Chiver asserting that his removal would be contrary to the Refugee Convention. Before us the Secretary of State was represented by Mr. A. Gammons and Mr. Chiver by Mr. A. Kulacar of the Free Representation Unit.The decision to give directions was made on 14 September 1993. On his appeal the appellant gave evidence before the adjudicator. In his determination promulgated on 29 December 1993 the adjudicator set out in some detail the evidence before him commenting on the evidence as he reviewed it. The adjudicator concluded his determination:
"My overall conclusion is therefore this. There must be some doubt whether, if the appellant were returned to Romania, he would be detained and ill-treated. But whether that is the case or not there is a clear case of persecution for a Convention reason in the fact that he has been excluded because of his beliefs from both employment and benefit. I do not think that any of the discrepancies in his evidence nor indeed his disclaimers can destroy the general line of the story. I find that he was persecuted in the sense that he was discriminated against, deprived of the opportunity of employment and deprived on the same basis of State benefits. I believe that if he were returned to Romania that would continue. He is therefore in genuine fear of persecution, and for the reasons I have stated I find that he has a well-founded fear of persecution for a Convention reason. It is indeed the case that the picture in the round which emerges from the evidence as a whole shows an appellant who was actually fleeing persecution. It seems to me very clearly to be the case that the only circumstance in which that would not be so would be one where the discrimination was not properly regarded as persecution. I do not know what led to the signing of the disclaimers. But the discrimination actually preventing employment in this case is clearly based on the political opinions of the appellant and it has a radical effect on his life.

Accordingly, I allow the appeal."

The Secretary of State was granted leave to appeal on grounds which referred to doubts expressed by the adjudicator as to the appellant's version of events and the appellant's evidence. Further, it was said, the adjudicator had erred in that he had equated any discrimination that has occurred with persecution.

Mr. Chiver's evidence

The respondent's case, as Mr. Kulscar outlined to us and as the adjudicator indicated in his conclusion, is that he had suffered serious discrimination in being barred from employment and State benefits because of his political opinions. Mr. Chiver was a miner and he said a member of the Parti Dul Liberal, a political party supporting democracy and opposed to the Communist Party. In April 1990 there was a demonstration in the University Square of Bucharest by opponents of President Iliescu. On 13 June miners were summoned by Iliescu to disperse those gathered in the square. Mr. Chiver said that he was one of those ordered to go to Bucharest but because of his opposition to Iliescu he refused to go.As a consequence of his refusal, said Mr. Chiver, he was sacked from his job at the mine. As the adjudicator records, on 15 June Mr. Chiver went to the mine to talk to the Director but an argument ensued. He said he received a summons to report to the police station, but he refused to go. Police came looking for him but he avoided them by going to stay with his brother until October or November of 1990.About then Mr. Chiver returned to the mine but was unable to get his job back or secure the return of his work card. In November 1990 he attempted to leave Romania but was stopped at the Austria/Hungary border and returned to Budapest where he was held in a detention camp for six months and then in April 1991 returned to Romania. He spent more time with his brother and then left the country reaching the United Kingdom later that year. He was returned from the United Kingdom to Romania but during 1992 he made two more attempts to enter this country. On one of these occasions he jumped overboard and seriously injured himself. He then returned to Bucharest and to his parents.In April 1993 he decided to go back to the mine to ask for his work card. They would not give him the card nor would they give him work. He did not receive any state benefit. He then went to an employment agency and saw the Director. There then occurs an uncertainty as to his story. In his asylum interview he is recorded as saying that the Employment Centre needed his work card so he went to get it from the Director of the mine. It was stamped "drunkard, does not come to work any more". The Employment Centre would not help him with this stamp on his card. When he asked for invalidity benefit it was refused.Mr. Chiver told the adjudicator, however, that when he went to the employment agency he told the Director that he had been dismissed for three years from the mine because he had refused to go to Bucharest with the miners. The Director of the employment agency then rang the mine and was told Mr. Chiver was sacked for poor attendance. When the Director of the employment agency asked for the work card, the person at the mine put the telephone down. The Director of the employment agency told Mr. Chiver to go back to the mine. Mr. Chiver said there was no point - he could not get benefit or another job without the work cardMr. Chiver said that after this he went on a hunger strike, and was arrested. The police had a file on him and he was beaten by policemen. He was accused of being a monarchist and questioned about the miners' actions in 1990. Mr. Chiver described his journey from Bucharest to this country.In answer to questions by his counsel Mr. Chiver said that when he left the United Kingdom in 1992 to go to Bucharest he did not sign a form saying that he had no fear of persecution in Romania.He said he had signed something in November 1991. He said that the situation in Romania had not improved.

The Adjudicator's Determination

Mr. Kulscar took us in some detail through the adjudicator's determination.It is necessary to look at it closely, for the Secretary of State's case before us focused on two aspects - first, that the adjudicator had recorded that certain discrepancies needed explanation but then had not explained how he took into account the lack of explanation, and secondly, that there was no evidential finding in relation to the non-receipt of state benefits. These two points were made in the context of the general point that, as stated in the grounds of appeal, the adjudicator had on several occasions commented on the lack of credibility of Mr. Chiver's evidence.At the start of his determination the adjudicator referred to the background to the case and in particular to Mr. Chiver's former arrival and stay in this country and the Secretary of State's grounds for refusing asylum. The adjudicator then set out a number of issues which he thought the case posed - whether there had been significant changes in the political situation in Romania, the credibility of Mr. Chiver, the motivation for leaving Romania and coming to this country and finally whether in so doing he was fleeing persecution.As to the credibility of Mr. Chiver, the adjudicator pointed to numerous inconsistencies and evidence which he felt he (the adjudicator) could not believe. So, there were two different stories about the hunger strike and about the source of the failure to secure the return of his job. As to the latter, Mr. Gammons relied for his contention that the adjudicator's determination could not stand on the following passage:"The inconsistencies continue. At the hearing, the appellant entirely denies that his failure to secure the return of his job or to secure benefit was anything to do with what was written on his card or cards, held by the mine. It is inescapable, and it must require some explanation, that Mr. Chiver initially said that his card was marked to the effect that he was a drunkard and did not come to work any more." ;The adjudicator said that the claim of the appellant was based on events in 1990 and events flowing from them. But, continued the adjudicator, "the details as given by the appellant do lack credibility". The adjudicator had said earlier in his determination that it was strange that Mr. Chiver did not know the identity of others who had refused to go to Bucharest to put down the demonstrators and that there was some confusion about the description of the treatment he had received from the police. The adjudicator said that "very substantial discrepancies mar the credibility of the appellant but "on the other hand" he was someone who had shown a determination to enter the United Kingdom.In his conclusion the adjudicator said that there was evidence to suggest that there was an improvement in the situation in Romania but that were Mr. Chiver to return, the file recording his movements from Romania would still be in existence and probably bring the matter back to the notice of the police. The adjudictor continued:
"Then there is the matter of his employment itself. It seems to me that when the appellant left Romania he believed himself to be, and as far as I can see he was, discriminated against because of what he had refused to do when the miners were called upon to go to Bucharest. It does not seem to me that it is relevant what his motivation was for refusing, assuming that in any case he did not believe in what was going on because he was not in favour of it - that being one reason at least - he refused to join in. I am inclined to think that in that situation whatever was marked on his employment record may well have been an excuse for the way in which he was treated. At any rate, I believe his story that when he went back to resume his employment he was told that because he had not co-operated in quelling the demonstration in Bucharest there was no work for him."
The adjudicator's determination then concluded with the passage which we have already cited.

The case Mr. Chiver must make

When the case first came before the Tribunal it was adjourned for the parties to consider the case the appellant must make given that it is essentially dependent on the inability to obtain work or benefits. The relevant provisions of statute and rules are those contained in the Asylum and Immigration Appeals Act 1993 section 2 and HC 251 paragraph 180B (as inserted by HC 725). The "Convention" there referred to is the Convention Relating to the Status of Refugees l951 and the Protocol 1967.The 1993 Act "2. Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.

HC 251

180B. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:a. he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and

b. he is a refugee, as defined by the Convention and Protocol; and

c. refusing his application would result in his being required to go, (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Persecution and discrimination

As is well known the Convention provides the definition of a refugee in Article 1(2). So far as relevant to this case the provision reads that a refugee is a person who
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..."
To establish that he is a refugee the appellant must show that he is in such fear and that there is a reasonable degree of likelihood of persecution for a Convention reason were he to be returned to Romania (Sivakumaran v. Secretarv of State [1988] Imm AR 147 ).The Handbook of the United Nations High Commissioner for Refugees on procedures and criteria for determining refugee status deals with the question of discrimination as persecution. It is pointed out that discrimination may amount to persecution "if measures of discrimination lead to consequences of a substantially prejudicial nature for the persons concerned, e.g. serious restrictions on his right to earn his livelihood..." In R v IAT ex narte Jonah [1985] Imm AR 7 it was held that "persecution" in the context of Article 1A of the Convention should be given its ordinary meaning of "to pursue with malignancy or injurious action". In Jonah, which in the grounds of appeal the Secretary of State sought to distinguish from the present case, it was held that it was persecution where to escape material risk to his life the applicant would have to live in a remote village.We accept that this case is to be distinguished from Jonah. However, the Secretary of State did not seek at the hearing to rely on any contention that if the appellant's story is to be believed it still would not amount to persecution. We agree with the adjudicator that persecution for a Convention reason will be shown if the appellant establishes a reasonable likelihood that he will be unable to obtain employment because of the lack of a work card, that the lack of the work card was due to the sackinq from the mine and that the sacking from the mine was due to the refusal to participate in putting down the demonstration in 1990. The case for the appellant that he is a refugee depends therefore, as so many do, on the view taken of the appellant's version of events. We return to this issue after deciding whether the showing of such persecution establishes the asylum claim.Does the showing of "persecution" establish the asylum claim?The legal issue is, whether it is sufficient for the appellant to establish that he is a refugee or whether he must in accordance with the apparent wording of HC 251 paragraph 180B show, in addition that his life or freedom would be threatened if returned to Romania. If Mr. Chiver must establish that, there must then be a question as to whether the prohibition entering employment is a threat to his freedom.Mr. Gammons and Mr. Kulscar were agreed on the primacy of the Convention over any inconsistency in the rules. It then must follow that Mr. Chiver's task is solely to show that he is a refugee within the meaning of the Convention. We should consider, however, whether there is any inconsistency.The reference in 180B paragraph c. to the threat to life or freedom is a reflection of the non-refoulement provision of the Convention as set out in Article 33. Article 33.1 reads:
"No contracting state shall expel or return ("refoule") a refugee in any manner whatsoever to the frontiers of territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
Mr. Kulscar drew our attention to a comment in Sivakumaran on the relationship between Article 1A and Article 33 of the Convention and put before us a note from the United Nations Commissioner for Refugees in respect of the issue in the case before us. In Sivakumaran Lord Bridge adverted to a suggestion which had been made in the Court of Appeal that "even if the Secretary of State decides that an applicant is a refugee as defined in Article 1 nevertheless he has then to decide whether Article 33 which involves an objective test prohibits "the return of the applicant to the relevant country".Lord Bridge said he was unable to accept that approach but considered it plain "that the non-refoulement provision in Article 33 was intended to apply to all persons determined to be refugees under Article 1 of the Convention". In other words, it would appear that the dominant provision is in Article 1A and that the right of non-refoulement attaches to a "refugee" rather than being a part of the definition of that status.In the comment on behalf of the High Commissioner it is said that Article 33 in focusing on life or freedom was not intended to lay down a stricter criterion than "well-founded fear of persecution" appearing in Article 1A.2. The different wording, it is suggested, was introduced to make it clear that "the principle of non-refoulement applies not only in respect of the country of origin but any country where a person has reason to fear persecution". The note also points out that the application of Article 33 is not dependent on the lawful residence of a refugee in the territory of a contracting state and to that extent presumably must be matched with the obligation in Article 32 not to expel a refugee lawfully in the territory of the state "save on grounds of national security or public order".These comments support the view therefore the rights of expulsion or non-refoulement flow from the status of a refugee and that the basic obligation of member states under the Convention is not to return a person to a country of his nationality if in the relation to that country there is a well-founded fear of being persecuted for a Convention reason. The obligations set out in Articles 32 and 33 are additional.As Mr. Gammons and Mr. Kulscar further said, it is recognised that it would be no breach of the Convention to return a person to a country other than that of his nationality in relation to which there was no fear of persecution nor any fear of being returned to the country in which persecution was feared - in other words, a "safe third country". The safe third country concept is set out in paragraph 180K in the immigration rules and is defined as one
"in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention..."
In so far as paragraph 180B referred to the threat of life or freedom it must, said Mr. Kulscar, be referring to the third safe country case. In this case, however, if Mr. Chiver was required to leave the United Kingdom it would be to the country in which he faced persecution and sub-paragraph c. of 180B has no role to play. Mr. Kulscar commented that the rules perhaps had not been drafted in quite as precise a manner as would have been desirable. We agree.We are happy to adopt the basic proposition on which Mr. Gammons and Mr. Kulscar are agreed, i.e. the primacy of the Convention. Without entering the somewhat sensitive area of jurisdiction to discuss or consider whether a rule is "ultra vires" it must be incumbent on the Tribunal to apply a statutory provision rather than an immigration rule where the two are inconsistent.In this case we are, however, more than content to read paragraph 180B as suggested to us. This means reading sub-paragraph c. as referring only to a "third country" and to the principle~in respect of such a country set out in paragraph 180K. It would therefore be highly desirable if the rules were amended so that sub-paragraph c. simply referred to paragraph 180K and read to the effect that"there is no safe country to which he could be sent within the meaning of paragraph 180K".The task for Mr. Chiver is to establish that he is a refugee. As we have held, he may do this by showing (according to the criteria set out in Sivakomaran) that he fears that he would be prohibited from obtaining employment and that there is a reasonable likelihood that this would occur. His case therefore turns on the credibility of his evidence.

The Tribunal's appellate role in regard to evidential matters

The Tribunal will interefere with an adjudicator's decision based essentially on assessment of a witness which the adjudicator has seen and the Tribunal has not, only in exceptional cases. In the words of the Court of Appeal"an appeal Tribunal would be extremely sparing in reviewing an adjudicator's decision as to the credibility of a witness or witnesses whom the adjudicator had seen or heard giving oral evidence and the Tribunal had not" (see Alam Bi v. IAT [1979-1980] Imm AR 146 at p.151).The adjudicator's approach - is the determination flawed?In our view the concluding paragraph of the determination illustrates that the adjudicator did bear in mind when reaching his conclusion the various discrepancies to which he had earlier referred. As Mr. Kulscar said, the critical sentence is probably that in which the adjudicator expresses the view that none of the discrepancies, or indeed Mr. Chiver's disclaimers, made in respect of an earlier entry "can destroy the general line of the story" In that sentence the adjudicator is finding that although there may have been embellishments and there remain uncertainties, he is satisfied first, that the series of events starting with the refusal to participate in putting down the demonstrators has been shown to have occurred and secondly, that because of those events there would be a reasonable likelihood of persecution in the sense of prohibition of employment. That is a finding based on the view taken by the adjudicator of Mr. Chiver.Mr. Gammons focused on the paragraph in which the adjudicator said that the difference in accounts by Mr. Chiver as to the reason for the failure to secure the return of his job "must require some explanation". That explanation, said Mr. Gammons, did not appear to have been given and the matter was left in the air. Mr. Kulscar argued that the adjudicator was simply commenting on the fact that there was no explanation for the difference in the accounts and that this was a matter adverse to Mr. Chiver which must be balanced as part of the concluding exercise. Further, said Mr. Kulscar, as the adjudicator had said the general story was consistent in that it was the lack of the work card which caused the prohibition of employment.There are indeed inconsistencies but they are not inconsistencies which the adjudicator ignored. We agree with Mr. Kulscar that the structure of the determination reflects the adjudicator's approach in listing matters adverse to Mr. Chiver and then concluding that these do not affect the adjudicator's belief in the kernel of Mr. Chiver's story. It cannot be said that this approach is so inherently illogical as to render the determination flawed. In effect it adopts precisely the approach which is urged upon adjudicators, i.e. to weigh up the evidence and to indicate that which is believed and that which is not.It is only when an adjudicator after stating that evidence is believed or disbelieved reaches a conclusion which has no foundation in the belief or disbelief that a determination cannot stand because of inherent inconsistencies. In this case this is patently not so for the adjudicator's findings on credibility adverse to Mr. Chiver go as the adjudicator said to the details of the story. It is perfectly possible for an adjudicator to believe that a witness is not telling the truth about some matters, has exaggerated the story to make his case better, or is simply uncertain about matters, but still to be persuaded that the centre piece of the story stands. This is particularly so where the critical criterion for an adjudicator is the reasonable likelihood of persecution occurring were a person to return to a particular country.The appeal is dismissed.