Mbanza v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE MILLETT,LORD JUSTICE WARD |
| Judgment Date | 24 October 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1024-8 |
| Docket Number | NO: 95/0659/D |
| Court | Court of Appeal (Civil Division) |
| Date | 24 October 1995 |
[1995] EWCA Civ J1024-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: THE IMMIGRATION TRIBUNAL
Before: Lady Justice Butler-Sloss Lord Justice Millett and Lord Justice Ward
NO: 95/0659/D
MR A NICOL (instructed by Hereward & Foster, Canning Town, London E16) appeared on behalf of the Appellant.
MR R TAM (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
Tuesday, 24th October 1995
.
The appellant is a citizen of Zaire and has no right of abode in the United Kingdom. He came to the United Kingdom from France on the 8th October 1993 and applied for asylum. His application was refused by the Secretary of State and, after absconding, he was removed to France on the 20th May 1994 but was returned to this country by the French authorities. His second application for asylum was refused on the 2nd August 1994. He appealed to the Special Adjudicator who dismissed his appeal in a determination dated the 17th January 1995. He appealed, with leave, to the Immigration Appeal Tribunal who dismissed his appeal on the 22nd March 1995 but gave him leave to appeal to this court on a point of law.
The appellant's account, in his first interview, of his reasons for seeking asylum was based upon his employment as a messenger in the Town Hall in Kinshasa and the loss of a top secret document which was attributed to him. He gave an account of imprisonment and ill-treatment after which his family arranged his release and secret departure from Zaire. In later interviews he also claimed to be working for two political parties and gave a different account of the circumstances leading to his arrest and his imprisonment and escape from Zaire which was entirely at variance with his first account. The Special Adjudicator heard evidence from the appellant and found that he was:—"totally devoid of any credibility," and that he could not accept:—"any part of his evidence unless there is some corroboration of it." He then found:-
"I am unable to accept to the required standard that the appellant was ever arrested and detained in Zaire in connection with any missing secret letter. I therefore do not find that there is any reasonable likelihood that he will be persecuted in connection with the letter. The appellant has not expressed any fear for any other Convention Reason."
The Special Adjudicator was asked to consider the risk to the appellant of having made an asylum application which failed and then being returned to Zaire as a deportee. Having considered an earlier Zairian decision made by him, (Bansende) and a further report as to the approach of the Zairian authorities to failed asylum seekers which he accepted, the Special Adjudicator concluded that, having decided that the appellant never was in prison or arrested in connection with a secret letter, he was not satisfied that the appellant would be at risk of arrest on return to Zaire.
The Tribunal granted leave to appeal and on the appeal it was asked to considered the question whether there would be a reasonable likelihood of the appellant being persecuted if he were returned to Zaire because he had made an asylum claim or because he had been deported from the United Kingdom. The Tribunal pointed out that the appellant was a fraud and knew it and did not come to the United Kingdom because of any fear of persecution.
The Tribunal held that:-
"A person who puts forward a fraudulent and baseless claim for asylum, as this appellant was found to have done, is not, in our view, able to bring himself within the Convention."
I turn now to the 1951 Convention Relating to the Status of Refugees which, by section 2 of the Asylum and Immigration Appeals Act 1993, is given primacy over the practice laid down in the Immigration Rules. Article 1 A paragraph 2 sets out the relevant requirements for defining a refugee as one who:-
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;"
The Immigration Rules, as amended in 1993, in accordance with the definition in the Convention, by Rule 180B, provide for the granting of asylum. Rule 180G sets out matters to which the Secretary of State may have regard which may damage the credibility of the applicant which include, at Rule 180G(b):-
"that the applicant has made false representations, either orally or in writing;"
The adverse view of this appellant's credibility taken by the Secretary of State was endorsed both by the Special Adjudicator and by the Tribunal.
The appeal with leave to this court is provided by section 9 of the 1993 Act 'on any question of law material to that determination [of the Tribunal]', and is based upon the finding that the appellant gave an entirely false story to support his application for asylum and never was in fear of persecution on the grounds raised by him. The issue which is raised is whether, despite a bogus claim, the appellant nevertheless comes within the requirements of the Convention on the basis of the making of the application for asylum. Unattractive though such an argument is and was so recognised by the Tribunal, it is asserted by Mr Nicol QC in his submissions to us that, by making the application, this applicant has proved to the requisite standard of proof, (see ex parte Sivakumaran [1988] 1 AC 958), that he would be at risk of persecution if he was returned to Zaire as a failed asylum seeker.
The Tribunal in granting leave formulated the issue as follows:-
"the extent to which, if at all, a person whose claim for asylum has been found to be fraudulent, can nevertheless benefit from the terms of the convention in the light of the observations of Laws J in Senga."
In R v Immigration Appeal Tribunal ex parte Senga, 9th March 1994, (unreported) the parties were agreed that the decision of the Tribunal ought to be quashed. One of the points of the case, according to the judgment of Laws J, was whether on the facts of that case, the very fact of making the asylum application might itself create the possibility of persecution by the authorities for a Convention reason. In the determination of the Tribunal in Senga it said:—
"It cannot be right that an applicant's case failing on the merits, the applicant should be granted asylum because it is said, he will be at risk through the act of claiming asylum: In that way all applicants would be granted asylum."
Laws J held:-
"With respect to the Chairman it seems to me to be erroneous as a matter of law to hold that there can never be a case in which, by the very act of claiming asylum, an applicant puts himself at risk of persecution. Whether and in what circumstances such a state of affairs would arise is, of course, something else altogether. But the Chairman has held that in principle no such case can arise. In that he was in error and the decision falls to be quashed."
Expressed as a matter of law I respectfully agree with Laws J that the proposition is not sustainable.
Mr Tam, for the Secretary of State, has sought to draw a distinction of principle between the making of a claim which the applicant cannot prove to the required standard and the making of a fraudulent claim which is discovered to be false. In the latter case, he has argued, unlike the former, there is a question of principle that an applicant ought not, as a matter of public policy, to be able to rely upon the fact of a false claim to prove his claim to asylum.
In my view Mr Tam's submission is creating an unnecessarily complicated and probably unworkable distinction between highly theoretical possibilities. Mr Nicol accepted that in practice to rely upon the making of the application rather than its contents would be exceptional and I would consider it to be in any event an extremely rare case, but hypothetically possible. If the applicant made a bogus application for asylum in order to create a climate in which he might then assert that by the making of the application he had made himself at risk in being returned to his homeland, his application would be likely to be treated as self-serving and rejected on that ground. In a fraudulent application based upon false facts in which the applicant's story is disbelieved, his credibility would be called into question and even if he can establish he did not set up the application for asylum to create a danger of persecution, he would be likely to find it extremely difficult to demonstrate to the required standard a genuine subjective fear coming within the definition of the Convention, ( see Rule 180G supra).
In the present appeal, the suggestion of fear stemming from the making of the application itself was raised for the first time on appeal by the appellant's lawyers and suffers from all the defects of a late variation to the appellant's admittedly bogus case.
I would therefore answer the Tribunal's question as follows:—I agree with the issue of principle as set out by Laws J in Senga (supra) and with the reservations in its implementation implicit in the passage which I have already set out. An unsuccessful claim for asylum may be seen within a spectrum ranging from a truthful but over-optimistic account through various degrees of inaccuracy to a totally false and fraudulent story. The making of a false claim cannot act as a total barrier to reconsideration of the applicant's status as a possible refugee, but the further along the spectrum of falsehood and bogus...
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