R (Kpangni) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 2005 |
| Neutral Citation | [2005] EWHC 881 (Admin) |
| Date | 21 April 2005 |
| Court | Queen's Bench Division (Administrative Court) |
QUEEN'S BENCH DIVISION
Before Mr Justice Munby
Asylum - asylum-seekers - 'real risk' in law is less than 'probability'
A real risk in law relating to asylum-seekers was something less than a probability.
It was not appropriate for the Secretary of State for the Home Department to require a claimant to demonstrate a consistent pattern of gross and systematic violation of fundamental human rights in order to establish that he should not be returned.
Mr Justice Munby so held in the Queen's Bench Division when granting judicial review of two decisions by the Home Secretary on July 14 and December 9, 2004 when he refused to consider representations made on behalf of the claimant, Florent Kouakou Kpangni, a refugee from Ivory Coast, as a fresh human rights claim.
Mr Upali Cooray for the claimant; Mr Jeremy Johnson for the Home Secretary.
MR JUSTICE MUNBY said the claim was made under paragraph 353 of Statement of Changes in Immigration Rules (HC 395) which provided for the making of a fresh human rights or asylum claim, if the content of the submission had not previously been considered, and, taken together with previously considered material, it had a realistic prospect of success.
In Hariri v Secretary of State for the Home DepartmentUNK (unreported (2003) EWCA Civ 807) Lord Justice Laws had said it would be inappropriate to return someone to a country where there was a consistent pattern of gross and systematic violation of fundamental human rights.
The Home Secretary's rejection letter of July 2004 had treated Hariri as good law.
But the law had...
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BF (Albania) v The Secretary of State for the Home Department
...less than a probability, and it cannot be elevated by lexicographic stages into something more than it is.” 25 In R (Kpangni) v Secretary of State for the Home Department [2005] EWHC 881 (Admin) at [8], Munby J (of course a member of the constitution in Batayav), quoted the relevant passag......
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Upper Tribunal (Immigration and asylum chamber), 2006-04-18, [2006] UKAIT 44 (FN (Article 8, Removal, Viable Options))
...to probability. Such was the unanimous view of the Court of Appeal in Batayev No 1 [2003] EWCA Civ 1489 as observed by Munby J in Kpagni [2005] EWHC 881 at paragraph Absent these conditions, if an appellant fails to perform military service and thereby renders him liable to prosecution, his......