Mbanza, Re

A fraudulent or baseless asylum claim does not create an absolute bar to refugee protection. In an exceptional case, the act of making the claim may itself create a risk of persecution for a Convention reason. The claimant must still prove a genuine subjective fear, linked to a Convention reason, and an objectively well-founded fear of persecution on return. A failed asylum seeker or liar is not, without more, a member of a particular social group and does not necessarily hold a relevant political opinion. Exposure of a false claim will ordinarily make proof extremely difficult. On the facts, no genuine Convention fear or reasonable likelihood of persecution was established.

The appellant, a citizen of Zaire, entered the United Kingdom from France and made an asylum claim which was refused. After being removed to France and returned to the United Kingdom, he made a second claim, also refused. A Special Adjudicator dismissed his appeal on 17 January 1995, finding him wholly lacking in credibility and rejecting his account of arrest and detention.

The Immigration Appeal Tribunal dismissed his appeal on 22 March 1995 but granted leave to appeal on a point of law. It held that a person who had made a fraudulent and baseless claim could not rely on the Refugee Convention. The central issue before the Court of Appeal was whether, despite the bogus claim, risk arising from the making of the asylum application or from return as a failed asylum seeker could engage the Convention.

1. Appeal dismissed. The order was made with costs. Leave to appeal to the House of Lords was refused.
2. The Tribunal’s general proposition that a person who had made a fraudulent and baseless asylum claim could not thereafter come within the Refugee Convention was wrong in principle. The Court agreed with the principle identified by Laws J in Senga: the act of claiming asylum could, in a rare case, itself create a risk of persecution. A false claim was not an automatic legal bar, although exposure of the falsehood would usually make the necessary proof exceptionally difficult.
3. The claimant nevertheless had to satisfy both elements of the refugee definition. He had to establish a genuine subjective fear of return, and that fear had to be for a Convention reason. The fear which caused unwillingness to return had to be the same Convention-based fear. A fear based only on fabricated facts, or on matters unrelated to a Convention reason, was insufficient.
4. The fact of being a failed asylum seeker, deportee or liar did not itself constitute a Convention reason. Failed asylum seekers and liars were not thereby a particular social or political group, and persecution directed at deterring false claims or securing admission to the United Kingdom would not necessarily be persecution for political opinion. A claimant could succeed if the claim or its supporting evidence created a real risk of persecution for a Convention reason, but that risk had to be proved.
5. Applying the lower standard identified in [1988] 1 AC 958, the evidence did not establish a reasonable likelihood of persecution on return. The Tribunal was entitled to rely on the Dutch Government report and UNHCR material, and its factual conclusion was not shown to be perverse or legally defective. Under section 9 of the Asylum and Immigration Appeals Act 1993, the appeal was confined to a material question of law.
6. In obiter observations, Millett LJ noted that separate international obligations could prevent return where there were substantial reasons for believing that the person faced torture, loss of life, or inhuman or degrading treatment, even without a Convention reason. Such humanitarian matters were not appropriate issues for determination in the asylum appeal itself.

• Court of Appeal (Civil Division) dismissed the appeal with costs and refused leave to appeal to the House of Lords.
• Immigration Appeal Tribunal dismissed the appeal on 22 March 1995 but granted leave to appeal to the Court of Appeal on a point of law.
• Special Adjudicator dismissed the appellant’s appeal on 17 January 1995, rejecting his account and finding no reasonable likelihood of persecution on return to Zaire.