R v. Secretary of State for the Home Department, Ex parte Yemoh

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE YEMOH

Queen's Bench Division

[1988] Imm AR 595

Hearing Date: 14 July 1988

14 July 1988

Index Terms:

Political asylum -- refusal of leave to enter -- nature and extent of enquiries to be undertaken -- Secretary of State relied inter alia on superficial medical examinations -- whether the decision was flawed. HC 169 para 73.

Natural justice -- need for fairness -- applicant offered no opportunity to give explanation of facts on which decision was based -- whether a denial of natural justice.

Held:

The applicant was a citizen of Ghana who applied for political asylum on arrival in the United Kingdom. He was refused leave to enter but granted temporary admission: in due course after enquiry his application for asylum was refused. The Secretary of State appeared neither to have accepted the applicant's account of physical ill-treatment before his escape from Ghana, nor the account of the way in which he succeeded in leaving the country. It was submitted by counsel that in coming to those conclusions the Secretary of State had not given adequate attention to one medical report but had relied on another of a superficial nature. He had not given the applicant an opportunity to explain the facts on which the adverse conclusions of the Secretary of State had been based. Held: 1. The Secretary of State had failed, on the facts, to make adequate investigation into material medical issues, or into the applicant's account of his departure from Ghana. 2. Fairness also required that the applicant should have been given an oportunity of considering and seeking to refute the two bases which led the Secretary of State to infer that the applicant was untruthful in his accounts.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680. In re HK [1967] QB 617; [1967] 1 All ER 226. In re Musisi [1987] 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. R v Secretary of State for the Home Department ex parte Awuku, Otchere and Dzivenu (unreported QBD 23 September 1987)

Counsel:

V Kothari for the applicant; T Briden for the respondent PANEL: Hutchison J

Judgment One:

HUTCHISON J: The applicant seeks judicial review of the decision of the Secretary of State dated 25 May 1986 refusing him leave to enter. He had arrived in the united Kingdom from Ghana on 14 December 1985 seeking asylum, and was temporarily admitted pending inquiries. The matter was, as usual, referred by the immigration officer to the Home Office. Effectively therefore the refusal on 25 May 1986 amounted to a rejection of his claim for asylum. Part of the delay since then is attributable to efforts being made on his behalf by others to have that decision reconsidered. The result of those efforts was that by a letter of 14 May 1987 the Secretary of State writing to a Member of Parliament who had taken up Mr Yemoh's cause, affirmed his decision. However it was in that letter that the Secretary of State for the first time gave his reasons for reaching his decision. By letter of 28 June 1988 the Treasury Solicitor indicates that that letter of 14 March 1987 is to be treated as embodying the Secretary of State's reasons for his decision. The application for judicial review is dated 18 June, and it treats 14 May 1987 as being the decision, whereas strictly it is the 25 May 1986, but no point is taken about that. Nor was the issue of delay raised. Had it been, I should have held that it was reasonable for the applicant to wait for the result of the Member of Parliament's intervention and for the giving of reasons. Leave was in fact granted in June 1987. The grounds of the application are set out under five heads, but essentially it seems to me that they come to this: what is being said is that the Secretary of State's decision is flawed by reason of his having failed to make any sufficient investigation of the applicant's claim, or to act fairly towards the applicant. The principles of law which should govern my approach are, as I understand it, as follows: "As is now too well known to need detailed rehearsal, the United kingdom's obligations in relation to refugees are enshrined in rules 16, 73 and 165 of the Statement of Changes in Immigration Rules 1983 (HC 169), made under section 3(2) of the Immigration Act 1971. For present purposes it is necessary to cite only rule 73, which reads: "Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees." Accordingly, the question that arose was whether the applicant had a well-founded fear of being persecuted for what has come to be called compendiously "a Convention reason". The decision of the House of Lords in Ex parte Sivakumaran [1988] 2 WLR 92 establishes that an applicant who asserts he has such a fear has to demonstrate to a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his country. Since, for reasons which will become clear, the issue in this case does not involve an inquiry as to the objective justification for the applicant's fear, it is unnecessary further to elaborate this particular aspect of the law. Secondly, my approach to the application should be in accordance with what is said in the following passages in the speeches in R v Secretary of State for the Home Department ex parte Musisi [1987] AC 514: Lord Bridge at page 522 of the report: "The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the immigration officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by section 4(1) of the Act. The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one required by paragraph 73 of HC 169 to be referred to the Home Office, of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bona fide visitor, student, businessman, dependant etc. Determination of such questions is only open to challenge in the courts on well known Wednesbury principles [Associated Provincial Picure Houses Ltd v Wednesbury Corporation [1948] 1 KB 223]. There is no ground for treating the question raised by a claim to refugee status as an exception to this rule." Again Lord Bridge at page 531: "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." Lord Templeman at page 537: "The actions of a statutory decision-making body may be controlled by the court in judicial review proceedings if there has been a defect in the decision-making process. In the case of Mr Musisi but not in the case of any of the other appellants, the evidence discloses that there may have been such a defect. The action of an authority entrusted by Parliament with decision-making can be investigated by the court: 'with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account': per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-234. 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." Such further reference to authorities as is necessary can conveniently be made after I have dealt with the relevant facts. On arrival on 14 December 1985 the applicant gave the immigration officer an account of the events which he said had led him to leave Ghana and claim asylum. The notes of the immigration officer have never been produced, but it is significant that it has never been suggested that the applicant's account has varied to any significant extent. The earliest record I have, which the Secretary of State also had before he reached his decision, is contained in the note of the applicant's interview with the United Kingdom Immigrants Advisory Service, which took place some time shortly after his arrival and which, in his first affidavit, he says is true. I should therefore quote at some length from that document containing his account. What he says, so far as is material, is this: "Mr Yemoh and his family lived in Accra and he was employed by the Greater Accra Regional Administration . . . In 1985 he was posted to the Attache at the Civil Defence . . . While on a tour of duty in July '85, Mr Yemoh was alone at the camp when two men in plain clothes approached him and urged Mr Yemoh to accompany them as they were short of staff. Mr Yemoh felt there was some urgency in this request and therefore agreed to go along with the two men in their car. He informs us that he had received no military training whatever; his time spent at the Civil Defence was purely in an administrative capacity. Mr Yemoh later discovered that the two men he had accompanied were from the Bureau of National Investigation. As soon as they were in the car they received a radio message which instructed them to proceed to a certain point and then follow the car which would be waiting. The man in the second car followed the road to Takrodi so the car in which Mr Yemoh was followed to Takrodi where they stayed for two days. Early on the morning of the third day they returned to Accra. Mr Yemoh explains that he felt uneasy as he had been made to sleep in the car for two nights so he felt he should go home and get himself together before going on with the two officers. He told the two men that he would go home and have a wash and then meet them at the office; he did not go back to the office however, as he felt very ill. On the following day, which was a Saturday, a car arrived at his house at 8.00 am to take him into the office for questioning -- instead he was taken straight to the Castle to Capt Tsikata. During his interrogation by Capt Tsikata, Mr Yemoh discovered that one of the men he had accompanied to Takrodi was a Commander Oppong." I interpolate there that the papers show -- it is unnecessary to go into any detail -- that of Commander Oppong it was alleged that he was in some way implicated with the CID, that he fled the country, that he may or may not -- it is a matter of dispute -- subsequently have returned, or alternatively he may still be seeking refuge in the United States. The note continues: "Mr Yemoh was questioned very closely about Commander Oppong and his own part in fleeing with Commander Oppong. Mr Yemoh protested his innocence at which point he was beaten by the soldiers, one of them using the butt of his gun, they also kicked him. Mr Yemoh fell unconscious and when he regained his consciousness he found himself in '37 Military Hospital'. He asked the doctor why he was there and the doctor replied 'I don't know, you will find out later'. He informs us that because of the severe body pains he experienced he had to spend 15 days in hospital. Later he was taken to Gonday Barracks where he was interrogated again. Mr Yemoh is of the opinion that they were trying to force a confession from him that he did conspire with Commander Oppong to flee the country. He was held at Gondar Barracks until mid-December and during this period he was beaten and brutally treated at intervals, he alleges he was subjected to electric shock. Mr Yemoh says he suffered severe pains in his shoulder as a result of constant 'bootings and beatings' and thought that his shoulder might be dislocated; his finger had been stood on which caused it to swell. He requested to see adoctor on many occasions but was denied but was given linament to massage the shoulder instead. While in Gondar barracks Mr Yemoh met a school-friend, . . . who assured him he would assist him to get out of Gondar. In December he was taken to '37 Military Hospital' as he was suffering from an eye infection. He received treatment and then [the friend] came in and told him that he had left an iron bar in the toilet and that he should use this to make good his escape. Me Yemoh obtained permission to use the toilet and knocked his guard unconscious and escaped from the hospital (he informs us that they are allowed to wear civilian clothes when being held in Gondar so he was not readily recognisable as someone escaping). He reached the airport which was about two miles from the hospital and met a friend who lived near there and then went into hiding for a short while in his friend's house near the airport. [The friend] and his friend then arranged to contact [a relative] who in turn contacted Mr Yemoh's girl friend who had his passport and together they helped to pay for an air ticket. [His relative] arranged for him to leave the country without going through the normal security channels as a security guard was a friend of his and escorted Mr Yemoh to the 'plane. Mr Yemoh informs us that if he is returned to Ghana he fears for his life for the following reasons: the treatment he had received in the Barracks was terrible and had he not escaped he knows he would have been killed by now; if he goes back he would be subjected to this further punishment and certain death; he escaped from the prison, so the authorities would not look too kindly on this; he has received a telephone call from Ghana since his arrival in the UK stating that his wife had been harrassed and as a result was in a critical situation; he has learned that she has lost her child as a result of this harrassment." For the purposes of this application, as will become clear when I read the Secretary of State's letter, it is common ground that I should assume that if those facts are proved, then Mr Yemoh is in a position to establish a well-founded fear of persecution for a Convention reason, and would therefore fall under rule 73 and have a good claim to be granted asylum. It is accordingly unnecessary to prolong this judgment by examining the situation in Ghana, as to which there is a wealth of evidence before me. In the notice of refusal dated 25 May 1986 the Home Office stated merely that it had been decided "that your fear of persecution is not well-founded". So it is to the letter of 14 May 1987 that we have to turn for the reasons. In so far as it is material, that letter reads as follows: "Mr Yemoh arrived in the United Kingdom on 14th December 1985 and applied for asylum on arrival . . . Mr Yemoh was interviewed to give him every opportunity to detail the reasons for his fear of return to Ghana. Mr Yemoh said that he had been employed in Ghana by the Civil Defence Organisation and that he had organised the provision of armed escorts for workers involved in village and farm projects. While at work he was asked to accompany a Commander Oppong and two other genetlemen on a trip. He was asked because he was the only person in the office at the time. On his return he was arrested and accused of assisting Commander Oppong to leave the country. He claimed that he had been held in custody for five months and that his fingers were broken and his shoulder dislocated during the frequent beatings." I pause there to say that, while it will be observed that that summary is to an extent different from the summary that I have read from the Immigration Advisory Service interview, no point has been made by Mr Briden that particular significance should be attached to that. He accepted, as I understood it, that matters of that sort, when retailed second and third hand might well be subject to differences. The letter continues: "He received no treatment for his injuries, but eventually escaped from a military hospital in early December of last year. He left Ghana from Accra Airport, being smuggled onto the aeroplane by his uncle. He used his own passport, however. Careful consideration was given to the results of the interview. Mr Yemoh had claimed that he was physically maltreated while in prison. However, the Port Medical Officer could find no sign that Mr Yemoh had been tortured. Indeed, he appeared to be fit and well. He also left Ghana on a scheduled flight, using his own passport. Although he is said to have been smuggled onto the aeroplane, I would have expected the Ghanaian authorities to have found him if they attached any importance to him. In view of these occurrences it was difficult to place any credibility on Mr Yemoh's story and the application was refused. Representations were then received from the United Kingdom Immigrants' Advisory Service. These added nothing to the case, but a further medical report was submitted from a Professor of Forensic Pathology. This report stated that there were no physical signs of Mr Yemoh's injuries and that Mr Yemoh had to indicate where he was experiencing tenderness. In view of this, it was decided that the decision to refuse asylum to Mr Yemoh should be maintained." I should comment on that paragraph. As will appear from what I have said, there appers to be a degree of confusion of expression and it gives a slightly misleading impression. I do not for a moment suggest anything other than inadvertence. The fact is that the United Kingdom Immigrants' Advisory Service note which I have quoted from and the report from the Professor of Forensic Pathology, Dr Knight, were both before the Secretary of of State before he took his initial decision to refuse the claim to asylum. It is necessary to see what it was precisely the Secretary of State had before him when he made his decision It can be summarised as follows: (1) He had some sort of note or report from the immigration officer of the interview on 14 December 1985 which, as I have already explained, can be taken to be essentially consistent with the United Kingdom Immigrants' Advisory Service interview and of which the third paragraph of the letter is only a precis. (2) He did not have (see page 111 of the bundle) any written report from the Port Medical Officer: but it may be presumed that the Port Medical Officer had conveyed to the immigration officer the results of his examination. However, we do know something about the examination, because Mr Yemoh gives evidence about it. Not only is his evidence uncontradicted, but it was accepted that I should assume for present purposes at least that it is accurate. What he says is to be found in his third affidavit at page 75, and is as follows: "I was examined by a Port Medical Officer. I was under a great deal of strain and thus entirely confused. I showed her the needle marks where I had been electrocuted. I did not have any conversation with her. She asked me to raise my arms and to do exercises. She never asked which parts of my body were paining me (as was the case). I did not know why I had been taken to her. "The examination which she gave me was superficial, and covered only the upper part of my body. She did not use a stethoscope. She did not ask me to take off my shoes and socks. Her only concern was to get me to do exercises and to raise my arms. I did tell her that I found it difficult to raise my left arm." (3) The Secretary of State had, as I have already indicated, the United Kingdom Immigrants' Advisory Service interview note and Professor Knight's report, both of which had in fact been sent to him on 11 March 1986. It is appropriate therefore that I should read Professor Knight's report of 12 February 1986, which is as follows: "On the 12 February 1986 at the Devonshire Diagnostic Clinic, Devonshire Place, London, I examined Mr Yemoh to determine whether there were any residual signs of previous physical abuse. A full history had already been obtained by Mrs Helen Bamber and this was not repeated. There was virtually no physical signs to be elicited, but attention was directd to various parts of the body because of the complaints of the patient himself. 1. The middle finger of the left hand was indicated as a place where pain and tenderness still occurred. The point indicated was over the terminal interphalangeal joint. There was no external sign of injury and no limitation of flexion of the joint. However, the area of the joint appeared to be generally painful to pressure. 2. On the lateral side of the right index finger over the proximal phalanx, there again was nothing visible to be seen, though the patient indicated that this point was painful. There appeared to be no tenderness on pressure. On the pad of the right thumb, no injuries were to be seen and the patient did not complain of pain, but indicated that this was the site where needles had been inserted during ill treatment. On the left foot, the base of the big toe was indicated as a point of pain. The patient said that it hurt particularly when putting on shoes. Although there was an absence of any physical sign, the area seemed slightly tender to pressure. 3. The patient subjectively complained of bilateral buzzing in the ears but short of expert ENT examination of the auditory meati, there would be no physical signs apparent on external examination. "In conclusion, apart from slight pressure tenderness over two of the indicated sites, there were no positive physical signs. However the patient's story was consistent and appeared reasonable and convincing. X-ray examination of the affected parts is recommended as the only possible way of revealing any objective signs of residual damage." It is particularly important to note that the Secretary of State did not have, and had not requested, any further interview with the applicant or any medical advice beyond that which was conveyed to him via the immigration officer. Mr Briden on behalf of the Secretary of State accepts that the letter gives as the Secretary of State's reasons for rejecting the applicant's claim for asylum, that he did not accept the truth of the applicant's account of the events preceding his leaving Ghana, on which he asserted that his fear of persecution was based, and that the Secretary of State was advancing two, and only two, reasons for his conclusion that the story was incredible: (1) the fact that on 14 December the medical examination of the Port Medical Officer disclosed no objective evidence that the applicant had been assaulted and tortured in the way he alleged and (2) had the Ghanaian authorities attached any importance to him, he would not have been able to leave by scheduled flight using his own passport. Mr Kothari on behalf of the applicant contends that this decision is flawed because (1) it was unreasonable and unfair to reach a conclusion on an issue of such immense importance to the applicant, that the applicant was lying without affording him an opportunity of seeking to counter or explain the factors said to justify that conclusion. (2) In particular, given that the primary reason advanced was the suggested inconsistency between the applicant's story and his apparent state of well-being and the absence of any overt signs of violence or torture, it was unreasonable and unfair (a) not to obtain some cogent medical evidence on the issue of the expected residual effects in December of such treatment during the preceding five months; (b) not to investigate, by interviewing the applicant further, the times at which he claimed to have been injured or tortured during that five-month period; (c) not to call for a proper medical examination, properly reported, to supplement the admittedly cursory one that there had been; (d) not to give any weight to Professor Knight's final remarks, or ask him to amplify them. (3) As to the mode of exit point Mr Kothari contends that, given the applicant's quite specific explanation of how he had managed to get himself smuggled onto the aeroplane, it simply was not reasonable for the Secretary of State to regard that as an indication that the story was a fabricated one; and that the least that fairness required was that the misgivings entertained about it should be communicated to the applicant so that he could comment upon them and, if necessary, in a further interview, explain with greater circumstantial detail how his escape had been managed. When assessing the weight of these criticisms, it is I think essential to keep well in mind first, that these two were the only grounds advanced for disbelieving the applicant. This was not the case where he had first sought entry on some different pretext, or told a different story on his arrival or given a significantly different version of his story on different occasions. It is also, I think, germane to note that there are in the evidence before me indications that, had inquiries been made on the medical front, it is likely that it would have been discovered that signs of ill-treatment do quite quickly disappear, leaving the examining doctor dependent on the subjective complaints of the patient and his own judgment of the consistency of those complaints with the story told. In this connection I have in mind the further report of Professor Knight and the reports of Dr Stuart Turner, from which I do not feel it necessary to quote. Mr Briden, for whose clear and eminently objective arguments I should like to express my gratitude, argues that the Secretary of State could perfectly reasonably conclude that assaults and torture such as those that the applicant described, occurring at unspecified times during the preceding five months, would have been bound to leave the applicant marked and obviously unwell, and that he could therefore reasonably think that further medical examination and/or advice would not help and was not necessary. The first examining doctor, he argues, plainly has the advantage -- as Professor Knight in his later report points out -- and there was nothing in the material placed before the Secretary of State to suggest that a further examination was necessary or to trigger off the sort of inquiry that Mr Kothari contends should have been undertaken. On the other aspect -- Professor Knight's favourable view of the applicant's credibility and consistency -- Mr Briden argues that the Secretary of State was justified in disregarding that, because (a) it was not based on Professor Knight's own investigation of the applicant's story and (b) it was in truth only Professor Knight's subjective impression. As to the mode of departure Mr Briden argues that there is a distinction between investigation of what may happen in the future and that of what has happened in the past. The Secretary of State had the story: he found it incredible: there was nothing that further investigation would have added. In weighing these rival contentions I have been greatly assisted by two authorities to which Mr Korthari referred me. The first is the decision of this Court in the case of In re HK [1967] 2 QB 617. In that case HK, an infant, travelling with his father, a Commonwealth citizen, resident in the United Kingdom, was refused entry and directed to return to Pakistan on the ground that the immigration officer was not satisfied that he was under 16 years of age. In the course of his judgment Lord Parker, CJ, said this: " . . . I myself think . . . that an immigration officer . . . must . . . give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly." In the case of ex parte Awuku (unreported, 23 September 1987), McCowan J said this: "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 is 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." Later, at page 20 of the transcript, there is this passage, to which I attach equal importance: "All these points well illustrate to my mind the importance, indeed the essential fairness, of seeking comments from an applicant on points that are going to be made against him upon which he has not yet been questioned before deciding an application." I appreciate that there is a possible distinction between a point which has emerged and has not been the subject of discussion and a decision to disbelieve an account which has been given in the course of an interview, but that seems to me to be a distinction of form rather than of substance. In deciding whether these dicta apply to the present case, I have regard in particular to the following matters. (1) The applicant came from a country which, as the evidence shows, has for some considerable time provoked widespread allegations of persecution for Convention reasons from numerous of its citizens. Therefore, that such allegations should be made by the applicant was not, on the face of it, startling. (2) The story that he told was specific, involving the naming of persons known to exist and the naming of the friends and relatives said to have assisted him. (3) His account was, moreover, not one which had been produced for the first time after he had achieved temporary entry: he gave it from the first. (4) The grounds on which it was disbelieved were only two, as to the first and predominant of which the evidence was extremely sparse, based as it was on a very cursory examination, the results of which were, it is presumed, conveyed to the Secretary of State via the immigration officer's report. As to the second, the applicant had given an explanation of how he had managed to leave the country and it was an explanation which could very easily have been tested and probed by further questioning. Moreover, I have to say that I can detect nothing so inherently improbable about it as to justify the conclusion that the applicant's story must be untrue. (5) The supposition that the applicant was lying involves that he had set off from Ghana with a ready fabricated and quite elaborate story that is to say that he was a person of disreputable character prepared to tell flagrant and persistent lies to secure entry to the United Kingdom. In mentioning this final point I am not of course being so naive as to suggest that such persons do not exist: what I do consider is that, since to attribute such conduct to any applicant is to conclude that he has been guilty of the most reprehensible and even criminal conduct, such an attribution should not lightly be made. The conclusion I have reached is that the Secretary of State's decision in this case is flawed in this sense that by failing to make any but the most cursory investigation into the vital medical issue as to (1) whether there were signs or symptoms of ill-treatment and torture and (2) if there were not, whether that necessarily indicated that the applicant's story had been invented, the Secretary of State failed to take into account matters which he should have taken into account, namely the matters with which he would have been acquainted had he inquired into those aspects of the case. The same can be said in relation to the further inquiries about the applicant's escape from Ghana. In addition I consider that fairness required that the applicant should have been given an opportunity of considering and seeking to refute the two bases which led the Secretary of State to infer that the applicant was being untruthful in his account of the events leading up to and the circumstances of his departure from Ghana. There is no reason to think that, had he been given this opportunity, the decision would inevitably have been the same. Indeed, as I have already indicated, the subsequent reports that I have seen strongly suggest that the inference of untruthfulness based on the initial and brief medical examination could have been readily dispelled: and it may well be that further investigation and questioning would have set at rest any doubts based on his ability to avoid capture by the authorities when leaving. For these reasons I hold that the decision of the Secretary of State refusing the applicant leave to enter the United Kingdom must be quashed.

DISPOSITION:

Application granted

SOLICITORS:

Lewis & Dick; Treasury Solicitor