Kingori (Arthur) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date29 June 1994
Date29 June 1994
94/5933/D

Court of Appeal

Glidewell, Leggatt LJJ Sir Michael Kerr

Arthur Kingori (aka John Wanzaala Mpyanguli)
(Applicant)
and
Secretary of State for the Home Department
(Respondent)

Y Serugo-Lugo for the applicant

S Kovats for the respondent

Cases referred to in the judgments:

Bugdaycay and ors v Secretary of State for the Home DepartmentELR [1987] 1 AC 514: [1987] Imm AR 250.

Secretary of State for the Home Department v Sivakumaran and orsELR [1988] 1 AC 958: [1988] Imm AR 147.

Political asylum relevance of standard of proof refusal of application by Secretary of State appeal dismissed special adjudicator did not believe applicant's evidence adjudicator failed to specify standard of proof applicable to establishing a well-founded fear of persecution whether that failure material when applicant found not to be credible whether special adjudicator obliged specifically to set out the issues before him in an asylum appeal.

Political asylum safe third country Kenya finding in Bugdaycay that Kenya not a safe third country for Ugandans whether to displace that finding Secretary of State obliged to lead evidence to show that Kenya was a safe country.

Renewed application for leave to move for judicial review following refusal by Hutchison J.

The applicant was a citizen of Uganda who had lived for many years in Kenya. The Secretary of State had refused his application for asylum: on the facts he had concluded that the applicant did not qualify, but in any event he could return to Kenya as a third safe country. The applicant appealed.

The special adjudicator heard the applicant as a witness. He did not believe his account of events. He dismissed the appeal.

Before the court it was argued that the special adjudicator had failed to state the standard of proof he had applied in assessing whether the applicant had a well-founded fear of persecution. He had also failed to set out the issues before him. Counsel also argued that following the finding by the House of Lords in Bugdaycay that the Secretary of State's affidavit in that case had not shown that Kenya was a safe country the Secretary of State was obliged to lead evidence in subsequent cases to show that Kenya was a safe country.

Held

1. The adjudicator had concluded that the applicant had not been credible. Once he had reached that conclusion, the standard of proof to be applied to determine whether the applicant had a well-founded fear of persecution became irrelevant.

2. The special adjudicator was a person specially appointed to hear asylum appeals. It was obvious what the issues would be before him, and his determination was not vitiated by a failure to set them out.

3. On the facts the special adjudicator was entitled to conclude that Kenya was a safe country for the applicant.

Glidewell LJ: This is a renewed application to move for judicial review. I start by saying that the case should be entitled R v Secretary of State for the Home Department ex parte Kingori, perhaps, aka Mpyanguli. The decisions which it sought to challenge are three in number: a decision of the Home Secretary dated 11 October 1993 that the applicant did not qualify for asylum, a decision of Mr John Freeman, a special adjudicator, of 28 February 1994 dismissing an appeal against the Home Secretary's decision, and a decision of the Immigration Appeal Tribunal refusing leave to appeal to the Tribunal against the special adjudicator's decision, that decision being made on 15 March 1994. The effective decision which is here under challenge is that of the special adjudicator.

The facts established with some certainty appear to be these. Mr Kingori is a citizen of Uganda who was born there on 21 February 1963 and is therefore now aged 31. He arrived at London Heathrow on 24 May 1993 on a flight from Nairobi in Kenya. He claimed asylum immediately on his arrival. He presented what purported to be his passport but which he later admitted to be a passport which was not his and which, to an extent, he had forged, in the name J W Mpyanguli. In particular, the forgery was that he pasted his own photograph into a passport issued in the name of somebody else. On arrival he was given temporary admission to the United Kingdom pending consideration of his asylum application.

On 12 July 1993, when he was still using the name Mpyanguli, he was interviewed about his claim in the presence of a representative of his solicitors. The language used was English, which he said that he was happy...

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