R v. Secretary of State for the Home Department, Ex parte Awuku, Otchere and Dzivenu

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE AWUKU, OTCHERE AND DZIVENU

Queen's Bench Division

[1988] Imm AR 606

Hearing Date: 23 September 1987

23 September 1987

Index Terms:

Judgment was given by McCowan J in these three cases heard together, on 23 September 1987. The three applicants had been members of Military Intelligence in Ghana: they had all been refused political asylum by the Secretary of State. Mr N Blake appeared for the applicants, Mr T Briden for the respondent. In the case of Mr Awuku various reasons for the refusal were given initially by the immigration officer. Subsequently different reasons were given by the Secretary of State. It was in relation to that change of rasons that the learned judge made the observations to which Hutchison J refers in ex parte Yemoh above. The relevant portion of McCowan J's judgment reads (pp 9-12 of the transcript): " . . . So much for the reasons given by the immigration officer. In my judgment they lack any substance. "In response to the United Kingdom Immigrants Advisory Service the Home office, on 13 January 1986, gave reasons for not reversing the decision to refuse asylum. This letter is to be found at page 32 of this applicant's bundle. Mr Briden for the respondent says, having regard to the terms of paragraph 73 of HC 169, which I have read, that this is what I have to have regard to. This is the decision of the Secretary of State. Here are to be found the reasons for the Secretary of State's decision, and no regard therefore should be had, he said, to the reasons relied on by the immigration officer. No doubt Mr Briden is right about that. It is indeed to be noted, when I read the relevant parts of the letter, that the immigration officer's reasons appear to have been wholly jettisoned. It may be that I can reasonably conclude that the department thought as little of them as I do. The relevant part of the letter of 13 January 1986, which is to be found at page 32 of the applicant's bundle, reads as follows. "Mr Awuku, a sergeant, says that he was imprisoned immediately after the coup of 31st December 1981 and was detained until 5th May 1983. However, during this time he was questioned only once about his work and suffered no ill treatment. He also continued to receive his army pay. All those imprisoned with him have now been released. After his release he was discharged from the army. His discharge papers show his conduct to have been exemplary. Furthermore, it is stated that he was loyal, dedicated, and that his departure would be a loss to the service. He is currently in receipt of a pension. It appears most unlikely that a person detained for so long by the authorities would receive a testimonial of this kind and an army pension. He obtained a passport and left Ghana without difficulty." "The penultimate sentence of that paragraph is not a very sensible one. If it means anything, it would appear to cast doubt on his assertion that he was detained for some 17 months. But that is not in fact disputed. "The new point taken in this paragraph is the suggestion that if the government still had any suspicion of him they would never have given him a pension and gratuity and an exemplary character on discharge. This point has on the face of it some force but Mr Blake, it seems to me rightly, complains that his client was never questioned about it. He has an explanation, which is to be found in paragraph 10 of his affidavit sworn on 9 April 1986, at page 13 of the applicant's bundle. This reads: "As to my pay, pension and discharge, I should state that the Ghana armed forces still apply the Queen's regulations. It is not the Government of the day that writes a soldier's character reference but a superior commissioned officer under whom he serves. Since all the officers serving in the military intelligence unit at the time of the coup escaped from the Country, I approached Major Amuzo to write my reference. When he had done so the Camp Commander completed the discharge book for me as a matter of formality. I had served under Major Amuzu from 1972 until 1974 when we were both in military intelligence. As he was no longer in military intelligence at the time of the coup, he remained in the army. At the time of my discharge he was back in Burma Camp in the Ordinance Directorate and as my own officers had disappeared, gave the reference for the completion of the dishcharge book for myself and Mr Otchere. That was why I obtained a favourable discharge. Regarding pensions, that again is an entitlement under regulations for those who served for over eighteen years. Whilst in detention it seemed that the Government were considering discharging all military intelligence personnel without pension rights but the representatives of the Chief of Defence staff and also the forces' chaplains who visited us in detention assured us that because of pressure from the troops, the Government intended to honour the MDI instructions for those who had served the eighteen year period. As to my pay, I did not receive pay for the first three months whilst in detention. This was a matter of complaint to the army commander during his visit to the prison. Again, after representations and protests, the Government agreed to pay one third of our pay to our families. This was the position during my first detention at James Fort Prison." It seems to me a perfectly reasonable explanation. If this was the real reason why he was refused entry, and it appears now that it was, he should in my judgment have been given the opportunity to deal with it. For him not to have been given the opportunity was unfair and contrary to natural justice. Mr Briden's answer to that, if he had been given the opportunity and had given the explanation which I have read, it would not have affected the Minister's mind. I am quite unable to say that it could not have made a difference. I find that the Secretary of State took into account matters which he ought not to take into account. On the material which he was entitled to take into account I conclude that no resonable Secretary of State could fail to be satisfied that it was reasonably likely that the applicant would face injurious consequences if returned to Ghana. For all those reasons I hold that the decision of the Secretary of State refusing this applicant leave to enter the United Kingdom must be quashed. PANEL: McCowan J

DISPOSITION:

Appeal allowed