Abisola Abebonale Fawehinmi v. Secretary of State for the Home Department
ABISOLA ABEBONALE FAWEHINMI v SECRETARY OF STATE FOR THE HOME DEPARTMENT
COURT OF APPEAL (CIVIL DIVISION)
 Imm AR 1
Hearing Date: 6 March 1990
6 March 1990
Judicial Review -- application to move -- Secretary of State had concluded applicant was an illegal entrant -- applicant asserted he was a British citizen -- burden of proof on applicant -- case raised issues of fact -- whether where that was so, leave should be granted to allow cross-examination of deponents to affidavits -- the test the court would apply in deciding whether to grant leave. Immigration Act 1971 ss 3(8), 33(1).
Held:The appellant appealed from the order of Hutchison J dismissing his application for judicial review of the Secretary of State's decision to treat him as an illegal entrant. The Secretary of State had concluded that the appellant was a citizen of Nigeria. The appellant contended that he had been born in the United Kingdom. Counsel for the appellant argued that leave to move for judicial review ought to have been granted because the appellant's account of his background raised issues of fact and those could only be properly tested by the cross-examination, at a full hearing, of the deponents, to affidavits before the court. Held: 1. Counsel's submission went too far. Following Khawaja it would not always be necessary for the court to require the attendance of deponents, in a case concerning an illegal entrant where it was for the court itself to determine as a matter of fact whether the onus of proof had been discharged. 2. The proper approach by the court was to consider, at the stage when leave was sought, whether or not the appellant had any prospect, if the matter did proceed to a hearing, of establishing the facts which it was necessary for him to establish. 3. In the light of the evidence adduced by the Secretary of State there was no such prospect of a court on a full hearing, concluding that the applicant was likely to discharge the onus of proof which lay on him under the Act, of showing that he was a British citizen.
Cases referred to in the Judgment:Khawaja v Secretary of State for the Home Department  AC 74:  Imm AR 139. in re Bamgbose  Imm AR 135. R v Secretary of State for the Home Department ex parte Abisola Fawehinmi (unreported, QBD 23 February 1990).
Counsel:JR MacDonald QC and D O'Dempsey for the appellant; N Pleming for the respondent PANEL: Neill, Nicholls, Butler-Sloss LJJ
Judgment One:NEILL LJ: This is a renewed application by the applicant which is brought in the name of Abisola Abebonale Fawehinmi (whom I shall hereafter refer to as 'the applicant') for judicial review of a removal direction dated 16 January 1990 made by an immigration officer. The direction of which judicial review is sought is set out at page 51 of the bundle before us in which the immigration officer states that having considered all the information available to her she was satisfied that the applicant was an illegal entrant as defined in section 33(1) of the Immigration Act 1971. That notice was addressed to the applicant in the name of Owolabi Sikiru Afe, that being the name which, at that time, the immigration authorities considered to be the right identity of the applicant. It is now thought he is in fact Rasheed Afe Adeko. In these proceedings the applicant is seeking to counter the allegation that he is an illegal entrant by relying on the fact, as he asserts, that he has a right of abode in the United Kingdom and is not subject to immigration control because he is a British citizen. It is his contention that he was born in this country in Camberwell on 11 March 1969 and that he was taken by his parents back to Nigeria when he was a very small child of two. He then returned to England in 1986 where he has been since with the exception of a short period in October 1989 when he returned to Nigeria for something like three weeks, returning on 27 October 1989. It is now conceded that, for the purpose of this present application, the onus is on him to establish that he is who he claims to be and that he is a British citizen. That concession, as it seems to me, is rightly made in the light of the provision in section 3(8) of the Immigration Act 1971, which is in these terms:
'When any question arises under this Act whether or not a person is partial, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is,'That subsection was considered quite recently in this court in the case of In re Bamgbose which came before another division of the Court of Appeal on 14 November 1989 where the court was satisfied that the judge had correctly applied the provisions of section 3(8) to a case where the applicant was claiming, as here, that he was a British citizen.That being the position, the next matter to consider is how the application should be approached as a matter of law. It is accepted on behalf of the Secretary of State that, although the onus is on the applicant, it is for the court itself to determine as a matter of fact whether that onus has been discharged. Mr Pelming also accepts that in this case, as in all immigration cases, the matter has to be scrutinised with great care by the court before a finding can be reached which, if adverse, would have a serious effect on the applicant's future life. It was Mr MacDonald's submission, however, that where you have a case, as here, where the applicant puts forward a version of his background which raises issues of fact, then, except in the very exceptional case, those issues of fact cannot properly be resolved without the deponents to any affidavits attending for cross-examination. The issues certainly cannot be resolved at this stage when there is merely an application for leave to move for judicial review. Speaking for myself, I consider that submission by Mr MacDonald to go some way beyond what is the appropriate approach in cases of this kind. There may well be cases where at the hearing of the application once leave has been given the court will require the attendance of deponents. But, as was made clear by the House of Lords in Khawaja  AC 74, that will certainly not always be the position, as emerges from the speech of Lord Bridge in that case at page 124G. It seems to me that in this case one has to consider at this stage whether or not the applicant has any prospect, if the matter did proceed to a hearing, of establishing the facts which it is necessary for him to establish under section 3(8). For that purpose I should make some short reference to the facts, which have already been carefully examined by the learned judge in the course of his judgment when this matter was before him. It is clear, as Mr MacDonald pointed out, that there was a child of Nigerian parentage who was born in Camberwell on 11 March 1969. The question which is raised by this application is whether it is arguable that that child is the applicant. The applicant was arrested in January of this year. At that time he had in his possession a number of documents, which have been exhibited to the affidavits and to which we have been referred. Two points emerge from those affidavits and exhibits: (1) That there is no documentary proof whatever that the applicant was in this country at any period before June 1989. (2) That since June 1989 the applicant has been making use of the identity of someone called Afe, and we have seen a number of documents, including railcards and travelcards, bearing that name. The applicant has had an opportunity to explain how it has come about that he has been making use of that name, and, as Mr Pleming has demonstrated in his submissions to us, different explanations have been given on different occasions, I, for my part, have found none of the explanations given to be satisfactory explanations of why he has been making use of that name, not merely on one occasion but over a period. The relevance of it is that there was someone called Afe who came to this country in 1988 and applied for leave to remain in the summer of 1989. That leave was refused and almost immediately following that refusal the applicant adopted the name of Afe. At the same time he began to apply for documents in the name which he is now saying is his correct name. Thus on 22 June 1989 he obtained a birth certificate in the name of Fawehinmi. On 27 October 1989, which incidentally is the same date as he says he returned from Nigeria, he was married in that name to the lady who is now his wife. On 26 September 1989 he obtained a passport in the name of Fawehinmi. In addition at that time when he was arrested he produced a national insurance card, which is undated, in that name. But it is only after the Afe leave to remain was refused in June 1989 that, as far as is known, for the first time the applicant adopted the name of Fawehinmi. It is for that reason that great importance has been attached in submissions on behalf of the Secretary of State to the fact that there is no documentary proof available whatever of Mr Fawehinmi's presence in this country before June 1989 bearing that name or that the applicant used that name before June 1989. We have some affidavits which have been sworn by Mr Farrell, who is the applicant's solicitor. In the most recent of those, which was put before the court in the course of the mid-day adjournment, there is exhibited a detailed statement taken from the applicant yesterday at Winchester prison. We have had an opportunity of considering that document, which goes into a considerable amount of detail as to what the applicant says has been his career both in this country and before. But, even having studied that document, I, for my part, can find no satisfactory explanation either for the use by the applicant of the documents in the name of Afe, nor any satisfactory explanation why he has been unable to produce any earlier documents of what he claims to be his present identity. It seems to me that the applicant has by now been given every opportunity to fill in the gaps that emerged at the time of the first application before the judge on 23 February when the application for leave to move for judicial review was refused. Despite all that Mr MacDonald has put before us I can see no reason to give leave now. We have also seen a number of documents which have been put in on behalf of the applicant, including one particular document which is in the name of Mr Braimoh in which he says that he has been in continuous contact with the applicant since his arrival in the United Kingdom. That seems to suggest that Mr Braimoh is claiming to have known and been in contact with the applicant since 1986 when the applicant, according to paragraph 6 of that affidavit, first came to the United Kingdom in order to settle. There is other material which, in other circumstances, might have made it necessary for this matter to be further investigated on a full application. But in the light of the evidence which has been adduced on behalf of the Secretary of State and which is referred to in detail in the judge's judgment at pages 5 to 8, I, like the judge, have come to the conclusion that there is no prospect of a court on a full hearing concluding that the applicant is likely to discharge the onus of proof which lies on him under the Act. Accordingly, despite the careful arguments that have been addressed to us, I for my part would refuse this application.
Judgment Two:NICHOLLS LJ: I agree.
Judgment Three:BUTLER-SLOSS LJ: I also agree.
SOLICITORS:Glenn Evans & Co, Reading; Treasury Solicitor
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