Fawehinmi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1990 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 1990 |
Court of Appeal
Neill, Nicholls, Butler-Sloss LJJ
J R MacDonald QC and D O”Dempsey for the appellant
N Pleming for the respondent
Cases referred to in the judgments:
Khawaja v Secretary of State for the Home DepartmentELR [1984] AC 74: [1982] Imm AR 139.
in re Bamgbose [1990] Imm AR 135.
R v Secretary of State for the Home Department ex parte A bisola Fawehinmi (unreported, QBD 23 February 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).
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.
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...
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