Marchano Singa v. Secretary of State for the Home Department

MARCHANO SINGA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 160

Hearing Date: 4 November 1991

4 November 1991

Index Terms:

Political asylum -- refusal by Secretary of State -- citizen of Zaire -- arrived in United Kingdom from the Congo -- whether procedures adopted had been fair -- whether in the events which had happened reliance could be placed on the notes of interviews -- whether the Secretary of State had taken proper account of all material matters before deciding to remove the applicant to the Congo.

Judicial review -- refusal by single judge -- renewed application to move to the Court of Appeal -- application for legal aid -- the duty of counsel and instructing solicitors -- the obligation to sign an opinion only on full information and where they believe there is a reasonable chance of success.

Held:

The applicant had been refused leave to move for judicial review by Hodgson J. A renewed application was made to the Court of Appeal. The court considered the application misconceived and did not find it necessary to call on counsel for the Secretary of State: the court however reviewed the facts because it was an asylum case and expressed its views on the responsibilities of counsel and instructing solicitors in seeking legal aid for such an application. The applicant was a citizen of Zaire. He claimed that after a quarrel in which he injured a nephew of the President, he had fled to the Congo whence he came to the United Kingdom. After four interviews the Secretary of State decided that he was not a refugee, and proposed to remove him to the Congo. Counsel argued that there had been misunderstanding during the interviews with the applicant: he spoke the Zairean dialect of French and the interviewing officer had spoken European French. It was also asserted that the applicant, if returned to the Congo, had a well-founded fear that he would be sent on to Zaire, and this factor had not been given consideration by the Secretary of State. Held 1. The procedures adopted by the Secretary of State had been fair: on the facts it could not be said there had been misunderstanding during the interviews. 2. The court emphasised the duty of counsel and instructing solicitors: they should not put to the legal aid board a request, in relation to an intended renewed application to the Court of Appeal, unless on full information they could express the opinion that the application would have a reasonable chance of success. In this case counsel had not had the full information before him.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Marchano Singa (unreported, QBD, 25 October 1991).

Counsel:

R Scannell for the applicant; I Ashford-Thom for the respondent PANEL: Glidewell, Balcombe, Woolf LJJ

Judgment One:

WOOLF LJ: This is a renewed application for leave to apply for judicial review by Mr Marchano Singa against an order made by Hodgson J on 25 October this year. The respondent, the Secretary of State for the Home Department, has appeared before this court by Mr Ashford-Thom, and although we are grateful for his presence, it has not proved necessary to call on him for assistance, other than concerning a document, which he produced and to which I shall make reference hereafter. The document was not before the judge but it in fact confirms the conclusion to which he came, namely, that there was no basis for granting leave in this case. This renewed application could in fact be shortly dealt with by merely saying that, having considered the judgment of Hodgson J, I agree with it and that, having regard to its contents, it is clear that this application is misconceived, but bearing in mind that this is a renewed application concerning a person seeking asylum in this country, I consider it right to set out in some detail the matters relating to the application and to indicate the reasons why Hodgson J came to the conclusion which he did. The applicant, Mr Singa, arrived in this country on 19 October 1990 from the Congo, although he is in fact a national of Zaire and it was in relation to Zaire that his claim for asylum was put forward on 19 October. That claim was referred to the Home Office, and on 22 October 1990 he was interviewed again. Having considered what it is alleged the applicant said at that interview on 22 October, the Secretary of State came to the conclusion that he was minded to refuse the applicant's claim for asylum and, in accordance with the practice which now exists, the applicant was seen again on 8 April 1991, and on that occasion he was informed of the contents of a letter from the Secretary of State indicating the reasons why the Secretary of State had come to the conclusion that he was minded to refuse Mr Singa's application for asylum. However, a fourth interview took place on 2 September 1991, and on that occasion the applicant was given the opportunity of dealing with certain material which the Secretary of State had received with regard to the applicant's alleged employment in Zaire. That interview however is the least important of the four interviews and in my judgment nothing which took place at that interview detracts from the case which Mr Scannell has forcibly argued before this court on behalf of the applicant. With regard to the first interview on 19 October 1990, the date of the applicant's arrival in this country, with the assistance of Mr Ashford-Thom there is before the court a copy of the pro forma referral document which was completed on that date. That document contains two entries of significance; first, is that in answer to the question: "Is there a fear of a return to any country, and if so, give details". The answer begins by describing the applicant's father's position and continues: "The applicant works for a company owned by the presidential family and the younger son of the Director-General insulted the applicant's mother" -- and I emphasise the word "mother" -- "and in response the applicant stabbed him in the stomach and seriously injured him on 25 September 1990. The applicant then went into hiding in Kinshasa and then left Zaire". There then follows a further question: "Details of any readily apparent political/terrorist connections (in depth investigation is not required at this stage)" and the answer is: "No, says no political involvement save detests and dictatorship. Says will stay five years in the UK". The detailed interview of 22 October was conducted in French by an immigration officer, who presumably spoke "European" French, and it is important to bear in mind that the dialect spoken in Zaire is described as "Zairean French". At this interview the applicant was asked a number of questions, and his answers are recorded in the form. In Part B of that form, he was asked: "Any reason why the applicant would not want to return to that country? If 'Yes', full details please" and the answer is given: "Applicant is afraid that the authorities may arrest him and return him to Zaire. He has known cases where this has happened". It is clear that in that answer the clear reference is not to Zaire but to the Congo, and that the applicant is expressing concern as to being returned to the Congo. In Part C of the form, the question is: "Basic of present claim for asylum" and the answer is recorded as: "On 25 September the applicant stabbed the younger brother (name unknown) of the Head of Administration, Mobutu Kwadeba Ngbonga of UCI, the company the applicant worked for. The applicant had a mango on the table and a knife to cut it up with. The victim insulted the applicant's father" -- and I emphasise the word "father" -- "The applicant recalled the wrongs done to his father by the Zairean government and reacted immediately by knifing the victim in the stomach. The applicant ran away and hid with friends. He had a passport already which . . ." and there is a note at the bottom of that page which reads: "The father of Mobutu Kwadeba Ngbonga is the younger brother of the President of Zaire". That would make the victim concerned on this incident the nephew of the President. The next question is: "Details of political or other involvement including details of any organisation of which a member (aims, structure, names of leading members; office held, degree of involvement with relevant dates)" and the answer is "None". Over the page the next question is: "Details of persecution, harassment whether by government or any other organisations" and the answer is "None". Then follows a similar question relating to family matters, and the answer there is: "In 1978 the Zaire government snatched all the applicant's father's possessions and froze all his accounts. He was arrested and the applicant did not know whether his father was dead or alive for a long time. He subsequently heard that his father had escaped to Gabon. The government acted thus because of false reports about his father". Part E of the document contains a declaration by the applicant indicating the purpose of the interview had been explained to him to enable him to explain why he wished to claim political asylum. It continues, "I have read/had read to me the notes which have been made by the interviewing officer and have been able to add or correct anything I want." The continuation sheet at the back of the document concerns the passport to which the applicant had previously referred and it reads that it "contained a French visa because he was due to go to France on business for the company. He hid with friends until he was able to make his way over the border between Zaire and the Congo by canoe. "The applicant is opposed to the system of dictatorship in power in Zaire. He chose England because of its reputation for justice and democracy. He wishes to remain in the UK until the government changes in Zaire. "The applicant said his victim was seriously injured by the stabbing, but he did not know whether the victim died". There is then an additional page to the document, headed "Additional information" and that says: "(1) A discrepancy was noticed between information on the original pro forma and on the full PAQ. On the former the victim is alleged to have insulted the applicant's mother. On the latter his father. The applicant thought he had said on his initial interview that the victim had insulted the applicant's parents." An explanation was also given as to how certain stamps were made in his passport relating to a crossing between Zaire and the Congo, and it was said: "A friend, who is both Zairean and Congolese, obtained the stamps from his immigration friends. There were no immigration officials on the section of the Zaire river where the passenger crossed, only guards who were friendly with the sailors crossing there. They did not ask to see the applicant's passport". When the applicant was interviewed on 8 April 1991 he was informed of the contents of a letter of the same date which gave reasons why the Secretary of State was minded to refuse his application. Among the reasons given was the fact that the Secretary of State considered it was highly unlikely that the applicant crossed the border, illegally, as he claimed. The letter then continues: "The Secretary of State considers that, even if you did stab the Head of Administration's younger brother as you claim, you would on return to Zaire face prosecution not persecution as defined under the 1951 United Nations Convention relating to the status of refugees." When that letter had been read to the applicant, he then made two comments as to his state on 22 October 1990. First of all he indicated that at the earlier interview he was not feeling well and so he had difficulty in remembering what was said. In addition, he indicated he was not sure that he had said things that it was suggested he had said; and that he did not understand everything. His explanation was that at that time he was feeling unwell, but he added: "We did not understand each other", which presumably was a reference to the immigration Officer who was interviewing him and he himself -- neither understanding each other. That is the matter which gives rise to a primary issue on this application for leave to apply for judicial review because it is contended that the interviewing officer and the applicant were not able to understand each other satisfactorily because the interviewing officer was speaking European French, and the applicant, who spoke Zairean French, would therefore have difficulty in understanding. With regard to the differences between European and Zairean French, this court has before it an affidavit which makes it clear there are very real distinctions between the two and problems could arise concerning comprehension between the parties. The other significant matter which arose from the interview of 8 April was that the applicant then gave a radically different account of the incident with the knife, which had been referred to in earlier interviews. It is not necessary to read his account, as then recorded, of that interview in detail, but it is clear that he first gave a different account as to how the incident started. The important matter is that (for the first time) on 8 April he alleged that the victim had started beating him, but there had been no reference to that at the previous interview. He then added: "At the same time I was eating a mango using a knife which I had with me, not really sharp, just a table knife. I then threw the knife over-arm as I was afraid and angry. At the same time two officers entered". However, later he made it clear there was no question of the nephew of the President being stabbed. This was clearly in conflict with the account which he had given earlier. Having considered the additional material, the Secretary of State on 23 September this year sent a copy of the proposed refusal letter to those who were then advising the applicant. On 10 October, the decision was reached which has resulted in the present application. The letter of refusal goes into considerable detail; it makes clear that the Secretary of State has considered carefully the various interviews which had taken place. The Secretary of State indicates specifically that he has carefully considered the accounts of the interviews of 8 April and 2 September; he also indicated he has considered the representations made by the applicant's solicitors, including the possibility of a lack of comprehension of what occurred at the interview of 22 October 1990. However, the Secretary of State came to the conclusion that he had no reason to doubt the interview on 22 October. In the final paragraph of the refusal letter, this is said: "On the totality of evidence the Secretary of State is not satisfied that you have established a well-founded fear of persecution in Zaire under the terms of the 1951 United Nations Convention relating to the status of refugees and therefore formally refuses your application." The notice of refusal refers to that letter and gives a further ground of refusal, namely that the applicant did not qualify for entry under the immigration rules. In support of his application, Mr Scannell seeks to advance different arguments with regard to his main ground which is based on the possible failure of comprehension at the interview on 22 October 1990. He put the matter in different ways, but in my judgment it is not necessary to give separate consideration to the way he seeks to advance his contentions. Basically he submits that the Secretary of State has not fairly considered the respondent's application for asylum, in particular because there has been no investigation into the qualifications of the immigration officer who interviewed the applicant on 22 October to conduct such an interview with this applicant, who spoke only Zairean French. In support of this argument, Mr Scannell relies upon the contrast between the way in which this application has been dealt with, and another application made by a seeker of asylum from Zaire. He refers to what was said by the Secretary of State with regard to that application in which a similar allegation of non-comprehension was made. The response of the Home Office in that case was that all complaints concerning the way in which immigration officers perform their duties are viewed seriously, and therefore the matters which were raised have been carefully investigated. Although the interviewing officer was not persuaded that serious misunderstanding occurred, in the interests of natural justice, "arrangements have been made for the immigration officer's ability for communicating French be assessed, and the Immigration Service now accepts that her command of the language was not sufficiently fluent to conduct a formal asylum interview without some risk of misunderstanding occurring." Thereafter instructions were given to prevent a similar occurrence in the future. However, Mr Scannell points to the fact that the relevant dates are such that those instructions could not apply to the present case, and he submits that if the applicant's application for asylum were to be properly considered, the Secretary of State should carry out a similar investigation here. This being an ex parte application, the court is not aware whether any investigation has in fact been made as to the immigration officer's ability to speak French, or as to the ability of that officer to understand Zairean French. However, for the purposes of this present renewed application I assume that the Secretary of State has not conducted such an investigation, and on that assumption (and I emphasise it is only an assumption) the question is: has there been any breakdown in the procedures which vitiate the decision of the Secretary of State? In my judgment it is impossible to contend in this case that there was a break down of communication which could undermine the Secretary of State's decision in any way. The notes of the interview which took place on 22 October contain detailed account of what the applicant is alleged to have said. Either those remarks were made by the applicant, or they were invented by the immigration officer concerned. Mr Scannell does not suggest and says he is not in a position to suggest, invention, but nonetheless he submits the source of those remarks could be due to lack of comprehension. For my part, I do not accept that that is a realistic possibility. Now that there is before the court a note of the first interview, that possibility becomes even more remote because, apart from the worrying detail of a reference to "mother" in one interview and "father" in the other interview, the accounts given by the applicant are basically the same. Different immigration officers conducted the interviews so that if Mr Scannell's contention be correct, one would have the remarkable situation here that there were two occasions on which there was a lack of proper comprehension and that on both occasions the different officers mis-comprehended in the same way. When the interview of 8 April 1991 is compared with what is alleged to have been said on 22 October, it is apparent that the story which the applicant was telling on 8 April was totally different, in fact irreconciliably different, from that which is recorded as his story on 22 October -- and, for that matter, on 19 October 1990. Such a difference in my view could not be attributable to any possible confusion, and that being so it undermines the credibility of the applicant in a serious way. It also, in my judgment, confirms that if this be the situation the Secretary of State could reasonably take the view that an investigation as to the immigration officer's ability to speak French who conducted the interview on 22 October would be of no assistance because here was a situation where on any basis, the applicant was given different accounts of events. Furthermore, it is important to note there is a conflict as to the applicant's political involvement. The original two interviews give one account of no political involvement by the appellant, but significant details of persecution and harassment against his family; whereas the interview of 8 April indicates that if the applicant was giving a true account of his political involvement, in fact he had a political record which would be relevant to any consideration of a claim for asylum. When the Secretary of State came to make his final decision, in the circumstances he had to make a judgment of the credibility of the applicant. In the letter giving his reasons for refusal he indicates that he does not accept the applicant's account and he bases that decision on his assessment of the facts, bearing in mind that he could not accept the accuracy of the information he had been given by the applicant. In those circumstances it is not possible for this court to say that the Secretary of State, on that basis, was not entitled to come to the conclusion which he did on the totality of the evidence which was before him, namely, that the applicant had not established satisfactorily that he had a well-founded fear of persecution. As I for my part am satisfied that the earlier procedures were not only extremely detailed but also entirely fair, it follows in my judgment that so far as the main ground on which Mr Scannell relies is concerned, there is nothing in that ground which would justify this court to give leave to apply for judicial review. The remaining matter put forward by Mr Scammell is the fact that in this case it is proposed to remove the applicant to the Congo. Representations have been made to the Secretary of State indicating that the current position in Zaire is such that it would be wrong to remove the applicant to that country. However, the Secretary of State has not adopted the course of seeking to remove the applicant to Zaire. Mr Scannell accepts that the Secretary of State is entitled, if it is reasonable for him to do so, to remove the applicant to the Congo. The grounds upon which he submits that it was improper for the Secretary of State to conclude in this case that it was appropriate to remove the applicant to the Congo are that this was an unreasonable decision on the part of the Secretary of State. But the only basis upon which it could be said that the Secretary of State was acting unreasonably was because of the reference to possible problems which could arise if the applicant were to be returned to the Congo, and from there to Zaire. There is nothing in the documents before the court to indicate that the Secretary of State did not have such a problem in mind when he came to his decision. It cannot be said by this court that the Secretary of State was not entitled, in his assessment of the situation, to come to the conclusion that the applicant should be removed to that country, because it was to the Congo that the applicant, on his own account, fled when escaping as he said from Zaire. He was able to leave that country and arrive in this country without difficulty. In my judgment that supports the conclusion of the Secretary of State that the applicant should be removed to the Congo. I therefore have reached the same conclusion concerning Mr Scannell's second ground as I did with regard to his first ground, namely that it is entirely without substance. Accordingly, I would dismiss this application.

Judgment Two:

BALCOMBE LJ: I agree.

Judgment Three:

GLIDEWELL LJ: I also agree. I add one further short point which the solicitors now acting for the applicant raised for the first time in a letter of 23 July 1991, as to the extent to which there was a misunderstanding due to linguistic difficulties during the course of the interview of 22 October 1990. In that letter they asserted that, at that interview, no interpreter was used, and that it was the problem of the French spoken by the immigration officer which was in issue. For the purposes of this application we have accepted the accuracy of that assertion, and for my part I am perfectly prepared to continue to do so in agreement with my Lord and to agree with his reasons. But I do note that when one looks at the two forms, it is recorded that whereas at the interview of 19 October 1990, on arrival, no interpreter was engaged, and the interview was conducted solely by a French-speaking immigration officer, at the interview of 22 October 1990, it is said that there was an interpreter present. If that be the case (and we are not in a position to clarify the matter) it makes it even less likely that this is a question of misunderstanding. With that additional, modest point, I emphasise that I agree entirely with the judgment given by my Lord, Woolf LJ, and the application should be refused. MR SCANNELL: My Lord, the applicant is legally aided, and I would ask for legal aid taxation. GLIDEWELL LJ: Mr Scannell, before the application was made for legal aid for the renewed application, were you asked to advise? MR SCANNELL: Yes, my Lord. I discussed the matter after the original hearing before Hodgson J, and I . . . GLIDEWELL LJ: Presumably a further application had to be made for legal aid for this renewed application? MR SCANNELL: Yes my Lord. I can take instructions on the detail. I can say that the position may have been different if I have seen the pro forma referral document, which of course seriously hindered my case, and I might have taken a different view of the whole case had I seen that beforehand. But certainly in the light of the investigations carried out by the Secretary of State in relation to the JCWI Zaire asylum seeker, I take the view that as matters then stood the point could and should still have been aired, for the reasons I have advanced. GLIDEWELL LJ: Very well. We are prepared to grant you an order for legal aid taxation, but we want to add this, and we want it to be recorded, that when an application such as this, or any application for leave for judicial review, has already been considered orally, at an oral hearing before a single judge and has been refused, while we understand that the legal aid authorities are reluctant to refuse legal aid for a renewed application, if they have the opinion of counsel saying that the application has a reasonable chance of success, nevertheless we emphasise that it is the duty of both counsel and instructing solicitors only to express an opinion on full information and when they are themselves convinced that the opinion they are expressing is correct. We do not in the present case suggest that Mr Scannell did not hold that view, but he did not express it on full information. We draw to the attention of both counsel and instructing solicitors the necessity of ensuring that they do not pursue what, in the end, so frequently turns out to be completely fruitless applications to this court -- as, indeed in our view, this one was.

DISPOSITION:

Application refused

SOLICITORS:

Wilson & Co, London N 17: Treasury Solicitor

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