Nzamba-Liloneo v. Secretary of State for the Home Department

NZAMBA-LILONEO v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 225

Hearing Date: 18 November 1992

18 November 1992

Index Terms:

Political asylum -- applicant arrived in United Kingdom with false passport -- I refused leave to enter -- claimed political asylum -- application refused -- leave granted to move for judicial review -- Secretary of State withdrew refusal notice -- case reviewed -- application again refused -- whether Secretary of State's approach and conclusions unreasonable -- whether subsequent refusal of leave to enter on conducive grounds reasonable. HC 251 paras 75, 78, 86.

Held:

Renewed application for leave to move for judicial review, following refusal by Roch J. The applicant was a citizen of Zaire who arrived in the United Kingdom with a false passport. He was refused leave to enter. He then claimed political asylum. That application was refused after investigation. Leave was sought to move for judicial review. The Secretary of State withdrew the refusal notice and reviewed the case. The application was again refused. The immigration officer then refused the applicant leave to enter, concluding that, in view of the applicant's false passport it was conducive to the public good to do so. Application was again made to move for judicial review. The Secretary of State, in his second refusal letter, had relied almost entirely on the same grounds as had grounded the first refusal. Counsel, before the Court of Appeal, argued that in the circumstances of the applicant the Secretary of State had not properly approached the evidence nor given it proper weight. Held 1. The Secretary of State's approach could not be faulted on Wednesbury principles. It was his task "to examine all the material that is placed in front of him and then consider what weight he should give to each of the arguments and the material which supports them when arriving at his decision.": that he manifestly had done. 2. In considering the application for asylum the Secretary of State had quite properly taken no account of the false passport held by the applicant. However once the application for asylum had been refused, that false document was relevant to considering whether the applicant should be granted leave to enter.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Jean-Luc Nzamba-Liloneo [1993] Imm AR 140.

Counsel:

IJ Kumi for the applicant; N Garnham for the respondent PANEL: Dillon, Farquharson, Simon Brown LJJ

Judgment One:

FARQUHARSON LJ: This is a renewed application for leave to move for judicial review of two decisions. The first was made by the Secretary of State on 7 October of this year, whereby he refused the applicant political asylum, and the second was that of an immigration officer on 21 October 1992, refusing the applicant leave to enter the United Kingdom. The application comes after an initial refusal by Roch J on 28 October 1992. The applicant first came before this court on that same day when the proceedings were adjourned for service of further affidavits. The applicant is a national of Zaire, born on 6 June 1969. He attempted to enter this country on 16 September 1991 on the strength of a false passport. When that was discovered, he was refused leave to enter and was detained. The following day he applied to the Secretary of State for political asylum. He was interviewed on 19 September 1991 when a political asylum questionnaire was completed. The burden of his application at that time was that he was a supporter of an opposition party or group in Zaire, and that he had been involved in a demonstration in Zaire during the course of which somebody had been killed by the security forces. During the time that he was awaiting the Secretary of State's decision, he learnt of the death of a cousin that had taken place in Zaire, a young man to whom he was, apparently, particularly close. The Secretary of State duly considered the application for asylum, but on 15 November 1991 a "minded to refuse" letter was sent to the applicant on behalf of the Secretary of State. In January 1992 the applicant received further distressing news, this time that his father had been found dead and that his mother and brother were missing. The information was contained in a letter to which I must refer again later, written from Paris by a woman who was in fact unknown to the applicant at the time, she being called Maguy. After further representations from the applicant's solicitors and another interview of the applicant on behalf of the Secretary of State, the latter on 22 May 1992 refused the application for political asylum. By his decision letter the Secretary of State recognised that the applicant's attempt to enter this country on a false passport was not directly relevant to his claim for asylum. But the Secretary of State said he could not accept the applicant's account of the circumstances in which he had left Zaire at face value; and, further, that there were inconsistencies in his account in the later interviews compared with what he had said to the investigating officer when he had first arrived in this country. In the light of that decision, the applicant on 17 June 1992 applied for leave to move for judicial review of the Secretary of State's decision to refuse him political asylum. This application was granted by Schiemann J. The judge was concerned apparently, as appears from the subsequent affidavits, about the form of two paragraphs contained in the decision letter, specifically paragraphs 13 and 15, and he invited the Secretary of State to write a fuller and clearer decision letter. The Secretary of State took heed of that advice and cancelled the original decision letter of 22 June. He then invited those acting for the applicant to make further submissions on the applicant's behalf before he once again considered the matter of political asylum. He told them that he would reconsider his decision. Further material was duly submitted for his consideration but, without going into the details, the Secretary of State by a letter dated 7 October 1992 again refused political asylum. It was in those circumstances that thereafter, on 21 October, the immigration officer refused the applicant leave to enter the United Kingdom. In the light of those decisions a fresh application for judicial review was made on 11 November 1992. In support of his decision the Secretary of State relied on five matters culled from the decision letters. Those appear helpfully in the summary prepared for us by the applicant. Those were as follows: (i) that there were inconsistencies in the account of the persecution alleged to have been suffered by the applicant; (ii) that there were "delays in providing details of alleged persecution"; (iii) that there was a "lack of convincing evidence to support the accounts of the deaths of family members"; (iv) that there was "the inherent improbability of the Paris letter"; and (v) that there were "grounds for concluding that a person in the Applicant's position would not have grounds to fear for his safety in Zaire". Mr Kumi, who has addressed us most helpfully during the course of his argument this afternoon, faced these various reasons for supporting the Secretary of State's decision and addressed them one by one. Dealing firstly with the alleged inconsistencies in the account of the persecution, Mr Kumi points out, and indeed relies on a document relating to the position of those asking for political asylum, that there is a likelihood of persons finding themselves in the position of applying for asylum being unable to give a clear and coherent account at their first meeting; and that also there are likely to be delays in providing details of the reasons why they have come to this country at all. These are indeed good points, but it is fair to say that, in the decision letters already referred to, the Secretary of State took those matters into account. He was alive to the difficulties that persons in the position of the applicant found themselves when submitting material to him. The third point -- "lack of convincing evidence to support the accounts of the deaths of family members" -- is also dealt with by Mr Kumi. He points out there was a death certificate in relation to the cousin, Samuel, who died in September 1991, and that there was no indication that anyone had challenged the validity of that certificate. There was nothing, he submits, to show that it was not genuine. This is not really a matter for the Secretary of State to prove. It is his task to examine all the material that is placed in front of him and then consider what weight he should give to each of the arguments and the material which supports them when arriving at his decision. There is nothing to suggest that he did not take that factor into account, and he was critical of the lack of detail in relation to the death certificate of Samuel. The other matter of course was the account of the death of the applicant's father. I have already referred to a letter that was sent by a lady from Paris and remarked that the lady was in fact unknown to the applicant. The Secretary of State considered this letter and thought that it was unreliable, or at least not one to which effect could be given because of the lack of detail and information contained in the description of such a serious event. Once again it was a matter for the Secretary of State to decide what weight he should give to this document and what reliance he should place upon it and, once it was established that he has given consideration to the document, it is not a matter into which we can enquire. The other point that was raised by Mr Kumi on behalf of his client in this context was the condition in which the applicant found himself during the course of some of the interviews. He has, as appears from the dates already given, remained in custody for a considerable period of time and he was initially very apprehensive about speaking to those who he thought had come to interview him from the Home Office, and even, so it was submitted to us by Mr Kumi, became suspicious of his own solicitors. When the news of the death of his father reached him in the form of a letter to which I have just referred, he became very upset indeed, and that was remarked upon by an immigration officer who had come from the Home Office to attend one of the interviews with him. Finally, in January, he is said to have attempted suicide. With all those matters in mind, argued Mr Kumi, the Secretary of State ought to have found sufficient material in his reaction to these events to show that the applicant had a well-founded fear. Once again the same point has to be repeated. So long as the Secretary of State has taken these matters into account, and it is obvious from the reports of his own representative that he had, then there is no basis for this court to interfere with his decision, unless of course it could be said that the decision he has come to is so unreasonable as to be perverse. We are unable to come to that conclusion with regard to this decision. There are a number of other matters that were raised by counsel on behalf of the applicant. He remarked that, after the withdrawal of the decision letter following the application before Schiemann J, the material in the subsequent letter of 9 October 1992 was very much the same, although not entirely so, as that which had appeared in the earlier decision letter. As was remarked during argument, that indeed was practically inevitable, because plainly the Secretary of State would be relying on the same grounds. Indeed, if he had advanced different grounds for supporting his decision, it would indeed give cause for some suspicion. There was some criticism of Roch J's judgment in which Mr Kumi perhaps mistakenly considered that the learned judge was discounting the evidence of the death of the applicant's father and the difficulties in which his family were subsequently placed. But it is, I think, clear from a reading of the judgment that what Roch J was saying was that those unhappy events were not relevant to the application originally made for political asylum in the preceding September, obviously because those events had not then taken place. But they were all matters that were properly taken into account by the Secretary of State, as I have already demonstrated. None of these additional grounds that had been raised by Mr Kumi are sufficient, in my judgment, to disturb the conclusion to which we have come, namely, that the Secretary of State's decision cannot be characterised as being so unreasonable as to be perverse. The Secretary of State made it clear, in considering his decision on that matter, that he paid no account to the fact that the applicant had arrived on a false document, that is to say somebody else's passport. In the nature of things, those coming to this country seeking political asylum are unlikely to be equipped with the proper travel and entry documents appropriate for the country to which they are applying. So that was entirely discounted, a point that was made in both of the two decision letters. However, when it comes to considering the second application, that is to say, to consider the decision made by the immigration officer to refuse entry into this country, the fact of the false passport does become material. The grounds advanced by the immigration officer for refusing leave are that the exclusion of the applicant was conducive to the public good. In fact once the application for asylum was refused, the attempt to enter the United Kingdom on a false document becomes relevant. If the status of a refugee is denied by the Secretary of State, then it is open to the immigration officer to treat the applicant as someone who is not a refugee, someone who is not asking for asylum, and he can then take into account the circumstances of the applicant's initial application. Once that application fails, that is to say for political asylum, then the applicant has no grounds for justifying leave to enter. The immigration officer was bound to refuse entry. For those reasons I would hold that this court should not grant leave to move for judicial review in respect of that second decision either. I propose that the application should be dismissed.

Judgment Two:

SIMON BROWN LJ: I agree.

Judgment Three:

DILLON LJ: As my Lord has said, the applicant here seeks the quashing of two decisions: one, the refusal of his application for political asylum and, the other, the refusal of leave to enter the United Kingdom. But the refusal of leave to enter was inevitable after the refusal of the application for political asylum. The applicant is not a United Kingdom subject and has no right of abode here. He is subject to immigration control and he has no claim to come in under any recognised head, if it cannot be justified on the grounds of his application for political asylum. That application for political asylum has been considered by the Secretary of State over a long period. Mr Kumi, who has presented the applicant's case very clearly, says that at highest the case against the applicant is one of doubt; one of doubt as to the genuineness of his account of events leading to doubt whether there is objective justification for the applicant's subjective fears. Mr Kumi says forcibly that it is difficult -- he even suggested that it was impossible -- to provide convincing proof that the applicant, who is not a person in the public eye, will be in jeopardy if he returns to Zaire. We therefore look anxiously at the circumstances of this, as of other cases where there are claims for political asylum, to see if there are grounds for suspecting unfairness or error of law on the part of the Home Office. It is not for us to make the decision that a person is or is not entitled to political asylum. Our function is merely, as is well-known, supervisory. We do not know the circumstances in Zaire. Since we only get the cases where a claim for asylum has been rejected, we find it important to consider each case closely. We have to consider that there may be a possibility that the Secretary of State is so determined to refuse claims that he does not start to give them fair consideration. But having said that, I cannot see that this is a case where there is any indication of error of law on the part of the Secretary of State, or that the facts are such that they should be remitted to the Secretary of State for yet further consideration. As my Lord has indicated, everything that has been suggested for consideration by the applicant's advisers has been covered in the final decision letter of 7 October from the Secretary of State. It is irrelevant, as matters have developed, that there was originally the grant by Schiemann J of leave to move for judicial review. Had that proceeded and succeeded, the consequence would have been that the Secretary of State would have been directed to reconsider the case. As it is, he elected to withdraw his earlier decision, which had been the subject of the application to Schiemann J, and to reconsider it, offering the applicant a further opportunity to put forward any further representations he might wish to have considered. In those circumstances, I too would reject this application.

DISPOSITION:

Application refused

SOLICITORS:

Virdi & Co, London SW18; Treasury Solicitor