Danian v Secretary of State for the Home Department

A refugee sur place is not excluded from protection under the Geneva Convention merely because post-flight political activities were undertaken in bad faith or to strengthen an asylum claim. If the claimant has a genuine and well-founded fear of persecution for a Convention reason, the Convention applies.

Opportunistic conduct is highly relevant to credibility and warrants rigorous scrutiny. It may commonly prevent proof of a genuine fear or of a real risk of Convention persecution. It does not create an additional, implied exception to the Convention. The assessment must address all material evidence and the facts at the date of the tribunal hearing.

The appellant, a Nigerian national, claimed asylum on the basis of past ill-treatment and political opposition to the Nigerian military regime. A special adjudicator dismissed his appeal against the refusal of asylum. Following a later asylum claim, another special adjudicator dismissed the appeal after finding that the appellant's later United Kingdom pro-democracy activities had been tailored to create a false refugee claim.

The Immigration Appeal Tribunal dismissed the further appeal. It held that a refugee sur place who had acted in bad faith fell outside the Geneva Convention, irrespective of whether the activities had created a genuine and well-founded fear of persecution. It did not fully consider the further documentary and medical evidence. The central issue was whether bad-faith post-flight activities could, without more, deprive an otherwise qualifying claimant of Convention protection.

1. Appeal allowed unanimously. Brooke LJ gave the principal judgment. Buxton LJ agreed and added reasons. Nourse LJ agreed with both judgments. The matter was remitted to a differently constituted Immigration Appeal Tribunal for a complete rehearing.

2. The Tribunal erred in treating bad faith as an exclusion from the Geneva Convention. Articles 1 and 33 contain defined qualifications and exclusions, but none excludes a person because post-flight conduct was opportunistic or undertaken solely to obtain asylum. The court rejected an implied bad-faith term. Such a term lacked both a sufficiently precise formulation and any demonstrated international consensus.

3. A claimant whose activities have been cynically tailored may have little credibility. The claim may therefore fail because the claimant cannot establish a genuine fear, a real risk of persecution, or persecution for a Convention reason. However, if those requirements are established, protection cannot be denied merely because the conduct creating the risk was voluntary or self-serving. The court approved the approach in Mbanza [1996] Imm AR 136 and Mohammed [1999] FCA 868.

4. The Tribunal's factual findings could not stand. Its erroneous legal conclusion had caused it to leave material evidence, including evidence potentially bearing on the appellant's political activities, credibility and risk on return, insufficiently examined. The Tribunal was required to assess the position at the date of the rehearing, including current country evidence.

5. Buxton LJ additionally held that the Tribunal had to consider whether removal would breach Article 3 of the European Convention on Human Rights. Under Chahal (1996) 23 EHRR 413, the protection against torture or inhuman or degrading treatment is absolute regardless of the person's conduct.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter for a complete rehearing before a differently constituted Immigration Appeal Tribunal.

• Immigration Appeal Tribunal: On 9 June 1998, dismissed the appeal. It treated bad-faith post-flight activities as excluding the appellant from the Geneva Convention.

• Special adjudicator: On 18 November 1997, dismissed the appeal against the Secretary of State's refusal of the appellant's further asylum claim.