NT (TOGO) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Maurice Kay |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1431 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2007 |
| Docket Number | Case No: C5/2007/1469 |
[2007] EWCA Civ 1431
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lord Justice Maurice Kay
Case No: C5/2007/1469
[AIT No: AA/06684/2006]
THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is a renewed application for permission to appeal following refusal by Sir Henry Brooke who considered, and I agree, that this was not a ( Mibanga [2005] EWCA Civ 367) case, that is to say one where the appellant has been disbelieved before and without reference to the medical evidence and other corroborative material, and the latter forms of evidence are then rejected separately as immaterial. In this case the immigration judge has been careful not to fall in to such an error (see paragraphs 18 to 19, 20 to 21 and 22 of the decision).
One thing in the decision which does, however, give concern is the application by the immigration judge of section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. This, as summarised by the immigration judge, requires him to take into account when assessing the credibility of the appellant's claim not only her failure to take the opportunity to apply for asylum in France but her production to the immigration officer on arrival here of a false French passport as if it were a valid passport. This the immigration judge did take into account as reinforcing his conclusion that the applicant was not telling him the truth. I will come to this in a moment.
It seems to me that in this case, and it is not the first such case, there is a serious question of law about the application of section 8 to a case such as this. It is one thing to recognise that an applicant could have applied for asylum in France and to hold against her, if there was no good explanation for it, the fact that she did not. It does not require legislation to tell an immigration judge that that may be material. It is arguably another thing to hold against an individual, not because it has any intrinsic weight but by command of law, the fact that she has come to this country using a false passport when, if her story is correct, she would have had no other way of getting here. To be driven by legislation to hold something like that against an applicant is a constitutional anomaly in relation to the independence of a fact finding judicial tribunal; and in my judgment a question arises as to whether, if the use of a false passport seems to have been ineluctable, any weight or any more than token weight is required by section 8 to be given to that fact.
Unfortunately for the applicant many of the fact findings have to be lived with. Making them is the function of the Asylum and Immigration Tribunal, and disagreeing with them is no part of this court's function. But this decision seems to me arguably —I put it no higher —to go further than simply making adverse fact findings. On one view it pours a cascade of disbelief upon the applicant's by no means obviously...
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Bm (ap) For Judicial Review
...v Secretary of State for the Home Department [2007] EWCA Civ 306; and NT (Togo) v Secretary of State for the Home Department [2007] EWCA Civ 1431. [10] Counsel then analysed in detail the findings of the immigration judge at paragraphs 64 to 90 of her determination. He accepted that the imm......
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Upper Tribunal (Immigration and asylum chamber), 2015-11-09, AA/01150/2015
...reference to the authorities on “structural error” (Mibanga [2005] INLR 377, S [2007] Imm AR 1, HH [2007] EWCA Civ 306, and ND (Togo) [2007] EWCA Civ 1431) and took us carefully through the order and format in which the judge set out his conclusions. He aimed to persuade us that the judge c......