R v. Secretary of State for the Home Department, Ex parte Nzamba-Lilonezeo

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	28 October 1992
Citation / Document Symbol	[1993] Imm AR 140
Cite as	R v. Secretary of State for the Home Department, Ex parte Nzamba-Lilonezeo, [1993] Imm AR 140, United Kingdom: High Court (England and Wales), 28 October 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6841c.html [accessed 3 June 2023]
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R v SECRETARY QF STATE FOR THE HOME DEPARTMENT ex parte NZAMBA-LILONEO

Queen's Bench Division

[1993] Imm AR 140

Hearing Date: 28 October 1992

28 October 1992

Index Terms:

Judicial review -- leave granted to move for judicial review of Secretary of State's refusal of political asylum -- Secretary of State withdrew decision under challenge -- second refusal made after review of case -- same reasons given for refusal -- whether ipso facto leave should be granted to move for judicial review of that decision.

Leave to enter -- refusal -- false passport -- whether it was unreasonable for the immigration officer to refuse leave to enter as conducive to the public good -- the breadth of the discretion given in that regard to the immigration officer. HC 251 paras 7, 78, 86.

Held:

The applicant seeking leave to move for judicial review was a citizen of Zaire. When he arrived in the United Kingdom, he was found to be travelling on a false passport. Shortly afterwards he claimed political asylum. After enquiry that application was refused. The applicant sought and was granted leave to move for judicial review.

The Secretary of State then withdrew his letter of refusal. He reviewed the application for asylum. He then refused the application a second time and for the same reasons as he had given in the earlier letter.

The applicant applied for leave to move for judicial review of that second refusal. Counsel argued that because leave to move had been granted in respect of the first decision, it followed, because the same reasons were put forward for the second refusal, that leave should be granted in respect of that second decision.

Following the refusal of political asylum by the Secretary of State, the immigration officer had refused the applicant leave to enter the United Kingdom, not only on the basis that he did not have a valid travel document but also, because of the false passport, as conducive to the public good, under paragraph 86 of HC 251. Counsel argued that was unreasonable.

Held

1. It did not automatically follow that because leave had been granted to move for review of the first decision, leave should be granted for review of the second decision on the ground that the reasons for the decision were the same.

2. When considering the application in respect of the second decision, the court had to consider whether that decision was Wednesbury unreasonable or in any way flawed.

3. On the facts, it was not arguable that the decision was unreasonable or flawed.

4. The discretion given to the immigration officer under paragraph 86 of HC 251 was wide, and his decision to invoke it against the applicant could not be challenged on Wednesbury principles.

5. The application would be refused.

Cases referred to in the Judgment:

Scheele v Immigration Officer, Harwich [1976] Imm AR 1. R v Immigration Appeal Tribunal ex parte Ajaib Singh [1978] Imm AR 59.

Counsel:

I Kumi for the applicant; N Garnham for the respondent

PANEL: Roch J

Judgment One:

ROCH J: This is an application for leave to move this court for judicial review of two decisions of the Secretary of State for Home Affairs, the first being a decision of 7 October this year refusing the applicant political asylum, and the second being a decision of 21 October of this year refusing the applicant leave to enter and giving directions for removal of the applicant from this country to Zaire.

The applicant is a national of Zaire and he arrived in this country on 16 September last year at Heathrow. He had with him a British passport and he presented it to the immigration authorities in order to gain entry. That failed, because the passport was not his.

On the following day he mentioned that he was seeking political asylum. He was interviewed in respect of an application for political asylum on 19 September and 5 December last year, and on that second date he was told the Secretary or State had considered his application, but was minded to refuse it.

Following that, his solicitors at that time produced further information in January this year. Part of that information were further assertions by the applicant of persecution of him and political activity by him in Zaire inimical to the Government of that country. The other was a letter of 20 January this year from Paris, apparently written by some lady who had arrived in Paris in December last year, not known to the applicant, but which contained information of misfortunes befalling members of the applicant's family in Zaire since his departure from it. It is clear that those events could not have been a reason for the applicant leaving Zaire or applying for political asylum in this country on 17 September last year, because by that time those events had not occurred.

The Secretary of State reached a decision on the application for political asylum against the applicant's interests on 22 May last year.

The applicant sought leave to move this court, and that application was made on 12 June. It came before Schiemann J who granted leave, Schiemann J

considering that there were possible arguments open to the applicant that that decision of 22 May was flawed.

The Secretary of State withdrew that decision and reconsidered the matter. There were further interviews with the applicant and, as a result of those interviews, and a reconsideration, the Secretary of State made the decision contained in the letter of 7 October.

Mr Kumi for the applicant makes these submissions in relation to the decision of 7 October. He says that the reasoning in that letter is the same as the reasoning of the letter of 22 May. As Schiemann J granted leave to move the court to review the decision of 22 May, so should I grant leave to move the court to review the decision of 7 October.

In my judgment there is nothing in that submission. My role is to look at the decision of 7 October and to see whether there has been any misapplication of law or whether it can be said the Secretary of State has arrived at an absurd or perverse decision, or whether it can be said that he has failed to take into account any relevant matters or he has taken into account some irrelevant matters.

On that aspect of the case Mr Kumi's submission is that the Secretary of State is in error, because he relies exclusively on the ground that the applicant on 16 September last year presented a false British passport in an attempt to gain entry to this country.

Again in my judgment there is no arguable case on that. It is clear that the Secretary of State in paragraph 13 of his decision directed himself correctly as to the law, namely that the manner in which the applicant sought entry to the United Kingdom has no direct relevance to his claim for asylum, and the Secretary of State accepted that it did not necessarily cast doubt on the truth of the applicant's claim.

The burden of the Secretary of State's decision is this, that because the applicant first attempted to enter the country using a false passport and made no mention of applying for political asylum until that had failed, and a night had passed, and because the additional information in January emerged so conveniently from a source which was not properly identified (and if indeed it was a lady who was not known to the applicant and who was in Paris, it is difficult to understand how she should know the whereabouts of the applicant in order to be able to write to him) the Secretary of State has decided that the applicant's word cannot be trusted, that the applicant is spinning a story. Those are matters of fact and that is a conclusion to which the Secretary of State is entitled to come in the circumstances of this case. It cannot be said that the Secretary of State's conclusion is absurd or perverse.

In my judgment there is no ground on which the decision of 7 October could be attacked.

Does the same apply to the decision of 21 October? In my judgment it does, because by 21 October the applicant was no longer to be treated as an applicant for political asylum. That application had been considered and had been refused.

The immigration rules, and in particular rules 7 and 78, meant that the applicant had to be refused leave to enter the United Kingdom, because he did not have a valid passport or other satisfactory document identifying him and his nationality. The immigration officer then went on to consider whether under rule 86 the applicant should be excluded from the United Kingdom on the basis that it was conducive to the public good that he be excluded.

This court has decided in two cases to which I was referred, which I do not need to cite, that the discretion given to immigration officers under that rule is wide and that the phrase "conducive to the public good" is deliberately left in broad terms. Here was a man coming to this country with a false British passport and seeking to obtain entry by means of that forged passport. In my judgment it cannot be said that the immigration officer's decision that that brought him within rule 86 was unreasonable in Wednesbury sense.

Consequently the conclusion that I have reached is that the application for judicial review in this case has no prospect of succeeding and I refuse leave.

DISPOSITION:

Application refused

SOLICITORS:

Virdi & Co, London SW18; Treasury Solicitor