Is a solicitor under a duty to warn their client of risks falling outside their retainer?
In BA (demonstrators in Britain – risk on return) Iran CG  UKUT a short clip of an Iranian national was uploaded onto YouTube, where he is caught protesting outside of the Iranian Embassy in London, chanting anti-regime slogans following the re-election of the President of Iran. The Iranian national relied on his political activity to prove a ‘well-founded fear of persecution’ if he was to return to Iran and as a result was granted asylum.
The Geneva Convention Relating to the Status of Refugees (1951) holds that asylum seekers must show that they have a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group and are unable or unwilling to seek protection from the authorities in their own country.
Whilst many assimilate a ‘well-founded fear of persecution’ with tales of refugees fleeing war-torn and politically unstable countries, for the purposes of the Geneva Convention, the fear of persecution can originate from activities undertaken whilst residing in the UK. A ‘refugee sur place’ refers to an individual who, on leaving their country of origin was not a refugee, but due to a subsequent risk of persecution arising becomes one at a later date.
Under the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, a person may become a refugee ‘sur place’ in two situations:
These guidelines are incorporated into the UK’s Immigration Rules at paragraph 339P which reiterate the validity of a claim made in response to ‘activities which have been engaged in by a person since he left the country of origin’.
Such claims inevitably give rise to questions of credibility where, hypothetically, a failed asylum seeker could undertake political activities in the hope of assisting his or her claim. This has left those considering asylum applications questioning the validity of claims arising from political activism undertaken in a third country, for fear of encouraging foreign nationals to manufacture a ‘well-founded fear of persecution’.
Can self-serving actions taken in bad faith automatically disqualify an individual from protection under the 1951 Geneva Convention?
The seminal decision of the Court of Appeal in Danian v Secretary for Home Department  echoed the guidance of UNHCR publications and the underlying principles of the 1951 Geneva Convention in concluding that an applicant is entitled to protection from deportation provided that he can prove ‘a genuine and well-founded fear of persecution for a Convention reason and that there is a real risk that such a persecution may take place’. The Court further clarified that there was no legal requirement of good faith in asylum claims under the Convention, and as a result no asylum claim could be rejected on the basis that the activities undertaken were performed in bad faith, purely to enhance the applicant’s claim.
Whilst the idea of someone submitting an asylum claim in bad faith as a result of actions taken once based in the UK may seem unsettling, the applicant is still required to establish a ‘well-founded fear of persecution’. Each case is carefully analysed and factors such as the applicant’s adoption of an inconsistent attitude from their behaviour exercised in their country of origin is taken into account. By probing the conviction of that person’s political beliefs, the validity of an application is being cross checked. Proving a well-founded fear of persecution is not an easy feat, particularly if the motivation for the political activism that has given rise to the fear cannot be proven to be genuine.
Those reluctant to accept such an interpretation of sur place refugees are encouraged to consider the overarching principles that underpin asylum law, notably extending refuge to those who would be at risk of discriminatory persecution as a result of deportation. The 1951 Convention offers no legal basis for denying refugees sur place the protection that it generally affords. The critical distinction to be made is whether or not the applicant has a well-founded fear of persecution. Those who fall under the definition of a refugee under the Convention are entitled to international protection regardless of political activism in their country of residence, although those who act in bad faith risk jeopardising the credibility, and as a result success, of their claim.
Skip to content Home About Us Insights Services Contact Accessibility