Marion Mamei Gaima v. Secretary of State for the Home Department

MARION MAMEI GAIMA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1989] Imm AR 205

Hearing Date: 6 December 1988

6 December 1988

Index Terms:

Political asylum -- adverse decision by Secretary of State -- case for asylum had been amplified by representatives in letters after applicant had been interviewed -- whether the Secretary of State was then obliged to re-interview the applicant -- late reliance by Secretary of State on applicant's lack of credibility -- whether it was unfair that the applicant was given no opportunity to explain the facts on which that assessment of credibility was based.

Held:

Appeal from Macpherson J. The appellant was a long-time overstayer who while detained pending removal on a deportation order as an overstayer, claimed political asylum. She was interviewed in prison. She subsequently claimed that she had been unable to put her case fully during that interview, in the circumstances in which it took place. The basis of her claim was subsequently fully set out by her representatives, in letters to the Secretary of State. She was not, however, re-interviewed. When the case came before the learned judge at first instance, there was an affidavit sworn on behalf of the Secreary of State which gave as an additional reason for the decision to refuse asylum, the adverse assessment of the appellant's credibility based, inter alia on the time which elapsed between her claiming asylum and the occurrence of certain events on which she based her claim. At first instance the learned judge held that the Secretary of State's decision could not be impugned as irrational; her case had been fully put by her representatives and thus there had been no unfairness in not re-interviewing her: he also held that the issue of the lapse of time and her credibility so affected had not played a significant part in the Secretary of State's decision. Before the Court of Appeal the same arguments were put to suggest that the Secretary of State's decision was flawed. Held: 1. The Secretary of State's decision was not irrational and considerations of neither fairness nor reasonableness required the Secretary of State to re-interview the appellant, her case having been fully put by others. 2. However, it was unfair for the appellant not to have the opportunity of giving her explanation of the facts on which, in the late affidavit, her credibility was for the first time questioned.

Cases referred to in the Judgment:

Re HK (an infant) [1967] 2 QB 617: [1967] 1 All ER 226. Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250. Secretary of State for the Home Department v Sivakumaran and ors [1988] 2 WLR 92: [1988] Imm AR 147.

Counsel:

I Macdonald QC for the appellant; D Pannick for the respondent PANEL: May, Croom-Johnson, Glidewell LJJ

Judgment One:

MAY LJ: This is an appeal from the dismissal by Macpherson J on 22 July 1988 of an application on behalf of Miss Marion Gaima for judicial review in the nature of certiorari to quash three decisions of the Secretary of State for the Home Department to refuse her political asylum in the United Kingdom and also consequential removal orders made against her. The applicant appellant was born in Sierra Leone in 1950. She was admitted to the United Kingdom in August 1973 for twelve months as a student. She obtained yearly extensions for the years 1974 to 1977. Her application in October 1977 for a further extension was refused on 13 April 1978 when she was directed to leave the United kingdom. A deportation order was made against her on 3 July 1981. She contends that she has a well-founded fear of persecution were she now to be returned to Sierra Leone. She bases her contention on her invovlement in the politics of Sierra Leone, both when she was there while her father was alive and before she came to the United Kingdom and thereafter in this country against the present ruling party in Sierra Leone. The stance of the Secretary of State throughout has been that even though the appellant may have that fear, it is not well-founded on all the information available to him. That is a sufficeint introduction to this appeal. The detailed facts are set out in the very clear judgment of the learned judge below and need no repetition in this court. The legal principles applicable are well-known. We were referred, first, to Re HK (Infant) 1967 1 QB 617 and a passage at page 630C: "Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly." Next, there was the well-known recent decision in their Lordships' House of R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514. Again it is unnecessary to go into the facts of the case. It was a refugee case in part at least. I refer merely to a passage, first at page 531E in the speech of Lord Bridge of Harwich: "I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." There is then a sentence from the speech of Lord Templeman at page 537H: "In my opinion, where the result of a flawed decision may imperil life or liberty, a special responsibility lies on the court in the examination of the decision-making process." Finally we were referred to the most recent case in this line of jurisprudence, R v Home Secretary ex parte Sivakumaran [1988] 2 WLR 92. The speeches of their Lordships in that case reflect the principles to which I have already briefly referred in the two earlier cases and I do not propose to make any specific quotation from the speeches in that last case. I accept Mr Pannick's submission on behalf of the Secretary of State that even though one is dealing with a refugee asylum case, the principles on which the court will act are no different from those when one has to consider any other administrative decision of a minister but, as Lord Bridge pointed out, a court is entitled to subject to the more rigorous examination a case such as the present, having regard to the gravity of the issue determined by that decision to the applicant. Before I turn to the contention which has been put forward on behalf of the applicant that the Secretaary of State has been unreasonable or unfair in the legal context, I breifly refer to the first submission that the Secretary of State's decision was irrational, that is to say perverse in the legal sense, that he reached a decision that no sensible person could have reached. The learned judge below thought that that was a contention wholly impossible to sustain. I agree and do not think that it needs further consideration. It was, secondly, submitted that it was apparent that the Secretary of State relied heavily on an interview of the applicant by one Kennedy in Holloway Prison on 12 November 1984. It is clear from an affidavit of the applicant sworn on 1 July 1988 that she was taken by surprise by the arrangement of the interview with no prior warning to her. She had little, if any, time to collect her thoughts. The interview occurred in prison, with all the disadvantages that that involved. She deposed that in those circumstances she was not able to put forward in answer to Mr Kennedy all the points that she would have wished. Then the Secretary of State was given a letter dated 21 January 1985 from a Mr Ganda and received a letter from solicitors acting on behalf of the applicant, Messrs Birnbergs, dated 7 March 1986. In those circumstances it was contended on the applicant's behalf that the Secretary of State had been unreasonable and had not acted wholly fairly in not arranging a second interview with the applicant at which she could put forward her own case and point of view on the fresh material. Again I cannot agree. To the extent that the applicant had not made to Mr Kennedy all the points about her situation in relation to the politics of Sierra Leone that she may have wanted to, the letters from Mr Ganda and Messrs Birnbergs made good the deficiencies. Further the Secretary of State's letter of 14 August 1986 made it quite clear that the Department's view was that, even if the applicant had a fear of persecution in Sierra Leone if returned there, this purpose not being disputed, it was not well founded. An earlier letter of 7 October 1985 showed that the Secretary of State had consulted with the Foreign and Commonwealth Office on these points. In those circumstances I do not think that considerations of fairness or reasonableness required the Secretary of State to arrange any further interview of the appellant. However, Mr Macdonald also drew our attention to paragraph three of an affidavit sworn by a Mr Parsons on behalf of the Secretary of State on 21 April 1988. There, "by way of amplification", that is of filling out the reasons for the Secretary of State's decision, he Mr Parsons, referred to the overall lack of credibility surrounding the applicant's application for asylum, referring in particular to the delay that had occurred and to the fact that the applicant, as he put it, had been willing to approach the Sierra Leone High Commission in London for assistance with her applications in 1975 to extend her leave to stay in the United Kingdom for a further year. Mr Macdonald submitted that these points should have been put to the applicant and her comments on them invited. It was unfair, he suggested, if the question of credibility was truly involved, for the Secretary of State not to do so. In reply Mr Pannick suggested that these matters were of little comparative relevance. They were of little weight in the decisions taken by the Secretary of State; they were not referred to in the decision letters; in another context they might be described as "obiter"; it was inconceivable that, had the applicant had the opportunity to make submissions on the points to which I have referred, the Secretary of State's decision would have been any different. In his judgment the learned judge said that he did not believe that the delay formed any part of the Secretary of State's decision, though he went on to comment that it would be unrealistic not to have it in mind. Further, he paid little attention to the appellant's use or the use by others on her behalf of the good offices of the High Commission in 1975, but he thought that this was a point which Mr Parsons had been entitled to ask the court to make on behalf of the Secretary of State. On these points I respectfully disagree with the learned judge. I have no doubt that the wording used by Mr Parsons in his affidavit was carefully chosen and, as I have already said, in these refugee asylum cases the court is entitled to, and should, subject administrative decisions to rigorous examination. The court should ensure that the decision-making process has been wholly fair throughout. Further, it is not for the courts to say whether this factor or that would be likely to have affected the decision of the department concerned. That is a matter for the administration. I think that it would be wrong to pass over paragraph three of Mr Parson's affidavit as containing matter akin to obiter dicta. An important matter in a plea for asylum is the credibility of it and of the person making it. If, as I think, one must assume from the affidavit that the alleged delay and the fact that help was sought from the Sierra Leone High Commission was taken into account by the Secretary of State in assessing the appellant's truthfulness, genuineness and credibility, then in my opinion fairness required that these matters should be put to her and her comments thereon invited. Whether, in the event, the Secretary of State's decision may or may not be the same, for the reasons I have already given that is no present concern of mine. I would, therefore, allow this appeal and quash the Secretary of State's decision to refuse the appellant political asylum. What happens hereafter must be a matter for all those concerned.

Judgment Two:

CROOM-JOHNSON LJ: I agree with May LJ's judgment and do not wish to add anything.

Judgment Three:

GLIDEWELL LJ: The applicant has sought to persuade the Secretary of State that she has a well-founded fear of persecution if she is returned to Sierra Leone. This raised two questions for him. Does she have such a fear (which is a question to be answered subjectively) and secondly, if she does, is that fear well-founded (which, according to the decision of the House of Lords in ex parte Sivakumaran, is to be answered objectively). The Minister of State's three letters of 9 January 1985, 7 October 1985 and 14 August 1986, which are the decision letters under attack, all deal with the question whether her fear is well-founded and assume, at least by inference, that she has such fears. The question whether she genuinely has such a fear is raised for the first time in paragraph three of Mr Parson's affidavit of 21 April 1988, to which my Lord has referred. In that paragraph for the first time doubt is cast on Miss Gaima's credibility. The issues which are briefly referred to in that paragraph which go to her credibility are matters upon which Miss Gaima has not had the opportunity to comment. I agree with May LJ that fairness requires that she should have that opportunity before a final decision is made. How the Secretary of State, as a result of our decision, gives her that opportunity is a matter for him. It does not necessarily mean that he has to afford her an interview. But that she, or those advising her, should in some way be able to answer what is said in that paragraph is, in my view, clear. I, therefore, agree for those reasons added to what my Lord has said that this appeal should be allowed and the Minister of State's refusals quashed.

DISPOSITION:

Appeal allowed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Clinton Davis & Co, Hackney; Treasury Solicitor

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