Kingori v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	29 June 1994
Citation / Document Symbol	[1994] Imm AR 539
Cite as	Kingori v. Secretary of State for the Home Department, [1994] Imm AR 539, United Kingdom: Court of Appeal (England and Wales), 29 June 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b68e8.html [accessed 27 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

KINGORI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 539

Hearing Date: 29 June 1994

29 June 1994

Index Terms:

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 is 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.

Held:

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.

Cases referred to in the Judgment:

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

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

Counsel:

Y Serugo-Lugo for the applicant; S Kovats for the respondent

PANEL: Glidewell, Leggatt LJJ, Sir Michael Kerr

Judgment One:

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 JW 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 to use and which presumably he understands and speaks. We have in the bundle before us a copy of the note of that interview. On page 3, the fourth question, he was asked:

"Did you encounter any problems obtaining a passport?"

To which he answered:

"The passport contains a substituted photograph which is a forgery. But the passenger states that the passport is not forged and he obtained it himself through normal procedures at the Passport Office with no problems. The only evidence used to obtain the passport was a Ugandan Identity Card."

Paragraph 14:

"What was the method of leaving your own country and did you encounter any problems on departure?"

A. The passenger was driven in a private car by a friend from Tororo to the Kenyan/Ugandan border at Malaba. The passenger was driven over the border and then dropped off. At the border the passenger did not have his passport. He presented himself to an Immigration Officer. His friend bribed the Immigration Officer to let him through. The friend, Paul Musoke, is still in Uganda."

Paragraph 17:

"There is a Kenyan exit stamp in the passport for 23/5/93,"

that is the day on which the flight for Heathrow would have departed,

"and no entry stamp as he did not have the passport on entry. It was later brought to him. Was not able to have access to his passport when leaving Uganda."

He said that he had lived in Kenya from 1977 to 1989. He was studying at a secondary school for his B Ed. Then he was a teacher. From 1987 he worked in Kenya as a teacher. He left Kenya as he wanted to go home. He did not have a passport issued by the Kenyan authorities. He said he did not have a passport at all when he returned to Uganda. He first said he went back to Uganda in June 1989 but when the investigating officer pointed out to him that the passport was issued in Kampala on 18 April 1989 he said he had actually gone back in January to apply for the passport. Later at paragraph 38, when asked,

"Are you or have you ever been a member of any political party, group or organisation?"

he answered,

"The Uganda National Democratic Alliance.

Q. How did you become involved with the group or organisation?

A. From January 1992 to May 1993. I knew about the organisation for some time. Friends of mine were members of the organisation. I only agreed to join in January 1992."

Finally, there were two important answers to questions 48 and 49:

"Q. Have you ever suffered any form of persecution or harassment by the Government or any other body?

A. No

Q. Have you ever been detained?

A. No"

That was the information that was put before the Secretary of State, and it was upon the basis of that information that the Home Office decided not to grant his application for asylum in a letter of 11 October 1993. I should, however, say that before that letter was dispatched, on 1 October the applicant's solicitors had written a letter to the Home Office which we do not have in the bundle, saying that the applicant's true name was Arthur Kingori and not Mpyanguli, and that the passport was not his, and was indeed a forgery. That information, albeit it had reached the Home Office before this letter was issued, did not seem to form part of the information upon which the decision-maker based the decision. The letter says:

"The Secretary of State noted that you claimed to have joined the Ugandan National Democratic Alliance (UNDA) in January 1992 and that UNDA had been banned since its inception in 1987. However, he was aware that UNDA was founded in London on 13 October 1991 and he considered that the fact that you did not know when UNDA was founded, were unaware of their headquarters address in London and had not contacted them since your arrival in the United Kingdom cast considerable doubt on your claimed membership of this organisation. He also understands that UNDA is a United Kingdom based organisation, with an office in Nairobi, which does not undertake any major activities nor have any activists in Uganda.

. . .

The Secretary of State noted you were married to a Kenyan citizen and had lived there from 1977 to 1989. He therefore considered that you would have been entitled to the protection of the Kenyan government and your failure to seek such protection either as the spouse of a Kenyan national or by claiming asylum cast doubt on your need for protection. Kenya is a full signatory to the 1951 UN Convention relating to the Status of Refugees and the Secretary of State is satisfied that the Kenyan government would have fulfilled its obligations under the Convention."

At the end of the letter the Secretary of State concluded:

"You do not qualify for asylum."

It is against that decision that Mr Kingori appealed and his appeal was heard by the adjudicator, Mr Kingori giving evidence in person before Mr Freeman.

Having set out the circumstances, Mr Freeman noted that the appellant began his evidence by giving his false name and date of birth without mentioning his true one, which he said was a little confusing. He then recited the history which Mr Kingori had given about being in Kenya until 1987 and then going back to Uganda in 1989, and joining UNDA in 1992. He explained during the course of that evidence that UNDA had been founded in 1991 by amalgamation of two pre-existing bodies. He accepted the inaugural meeting was in London and the headquarters in London, but he did not seem to know where they were and he did not know the name of the leader.

He then gave evidence about what he described as his own troubles with the authorities in Uganda. He said that while he was working in Mbale, his father's home town, he was arrested and some other members of the organisation were arrested. They got out through bribing somebody. They were released as a result of bribes. He explained that when he said he had not been harassed he understood that as referring only to his escape from Uganda. He said that when he was in Jinja where he had a shop, he heard of the arrest of some other people. He was told he was on a hit list and so he arranged to escape into Kenya, leaving his wife and parents behind. Indeed, he said he assumed they were still there but he had not heard from them. He then said that he obtained the forged Ugandan passport in Nairobi, got a photograph of himself and fixed it in the passport. He said he did not feel safe in Kenya if on the run from the Ugandan government.

The special adjudicator set out the applicant's evidence in some considerable detail. His record of the evidence occupies two and a half pages of single space typescript. He came to reach his decision in a paragraph that begins as follows:

"Questions 48 and 49 of the appellant's interview are at the heart of this case, and I shall set them out in full.

'48Q. Have you ever suffered any form of persecution or harassment by the government or any other body?A. No

49Q. Have you ever been detained?

A. No'

I considered the appellant's explanation for these answers (that he thought the questions only referred to events immediately connected with his escape from Uganda). Of course any interview for an asylum seeker is a stressful business, whether he is telling the truth or not. However, I saw and heard the appellant giving evidence for some time, and he impressed me as being of well above average intelligence. By the time he was interviewed, he had been in this country for over 6 weeks, and was accompanied by a representative of his solicitors (Mr Abraham, who was also present at the hearing before me, but was not called to give evidence). I do not think this appellant could possibly have understood Q49 in the way that he claims, and I regard his account of his arrest and detention as having been invented since his interview to bolster his case. I do not think he could have understood Q48 in that way either; but if he did, then I think he would have made some reference to his escape of being warned of the later plan to arrest him in his answer to this question. These answers are so central to the appellant's case that, having rejected his oral evidence about them, I am not satisfied that anything else he told me about events in Uganda is true. There is certainly no independent evidence that UNDA (or for that matter UDA),"

which is one of the bodies which amalgamated with another to become UNDA,

"ever had any real-life existence in Uganda: all the activities mentioned in the documents produced (A1 and A4) appear to have been carried out by Ugandan exiles in Britain. [One document] which recalls the dismissal of Sam Luwero as Chairman of UNDA, is a circular mainly copied to diplomatic missions here.

Even if there had been any truth, which I do not accept, in what the appellant told me about his own UNDA's activities in Uganda, and he had been in genuine need of protection, then I am satisfied he could have found it in

Kenya. He had lived there for 12 years, was married to a Kenyan citizen, and it is accepted there was a UNDA office there, which on his own account materially helped him.

On all the aspects I have considered, I reject the appellant's evidence, and his appeal is dismissed."

On behalf of the applicant on this renewed application, Mr Serugo-Lugo makes three points on his behalf. The first is that the standard by which a special adjudicator dealing with an appeal against the refusal of a claim to asylum must consider whether the applicant has made out that he has a reasonable fear of persecution, is that set out in the speeches in the decision of the House of Lords in Sivakumaran [1988] 1 AC 958. In particular, at 994, Lord Keith of Kinkel says:

"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country."

That is the test the adjudicator had to apply. Mr Serugo-Lugo correctly says that he did not say in terms that that was the test he was applying. Therefore, we cannot be satisfied that he directed himself correctly in law. Therefore we must assume that there is or may have been a misdirection. Thus we should set aside his decision.

He asks us inferentially the question, "Is it proper for the Divisional Court or the court hearing the Crown Office list, to see whether there has been an infringement of the law or procedure and while doing so to consider the credibility of the applicant?" In this case the learned judge in the court below was of course obliged to consider what the adjudicator had said about the credibility of the applicant. It was the whole basis of the adjudicator's decision. While Hutchison J was not himself finding facts, he was required to consider whether there was material upon which the adjudicator could properly come to the decision he did, as there clearly was. For my part, I agree that there may well be cases in which the precise nature of the standard to which an adjudicator has to direct himself in finding whether there is a reasonably founded fear of persecution becomes material. But when, having heard the applicant, he says in effect, "I do not believe anything this man says that is material to the question," then questions of standards do not come into it. Whatever standard one applied the answer would still be the same: "He has not made out his case because I do not believe him." With a man who starts by coming in on a false passport and goes on maintaining that it is his passport for some time, and then gives the other accounts with their inherent improbability to which the adjudicator has referred, there is ample material upon which the adjudicator, who is the tribunal of fact, could properly find that he did not believe him.

It is then submitted that the adjudicator did not set out the issues and therefore his approach was inadequate. Again, it is correct that he did not say in terms, "I have to decide the following issues." But he is a special adjudicator doing one job, and one only. He is deciding an asylum application. He had to decide, first of all, whether the facts that he found to the required standard, might be established. Having found that he did not believe what the applicant said, it is quite clear that in relation to the central issue: has he made out his claim to asylum? he was entitled to be satisfied that he had not.

Finally, Mr Serugo-Lugo puts forward an interesting submission about the conclusion that Kenya was a safe third country. This is based upon an earlier decision of the House of Lords in Bugdaycay [1987] Imm AR 251. That was a case in which there was put before the court of first instance (and put before the adjudicator before that) evidence of a number of factual aspects and persons in respect of whom Kenya, at that time, had not complied with its obligations under the Convention and had returned persons to Uganda. The Home Office had filed an affidavit in reply which, in his speech, Lord Bridge of Harwich described as not "a sufficient and unchallengeable answer to the relevant question which the Secretary of State was bound to ask himself". He said that it contained what

"seems to amount to an admission that Ugandan refugees have been returned to Uganda by Kenya. If this is not the meaning, I do not understand the relevance, in the context, of the statement that 'it has been the case that Kenya has returned Ugandan nationals to Uganda in the past,' still less why this should have led to representations to the Kenyan government by the UNHCR."

What Mr Serugo-Lugo invites us to do is to say that, the House of Lords having reached that conclusion in that case which resulted in them quashing the Secretary of State's decision, thereafter there is a continuing obligation on the Home Office, if it wants to displace the finding that Kenya is not a safe third country, to call evidence in that respect. That was not done, he says, in the present case. Therefore the adjudicator was not entitled to make the finding which he did make in that regard.

However, each case depends upon its own facts. What the adjudicator in the present case was concerned with was the material before him which included, as he said, the fact that this applicant had lived for twelve years in Kenya, apparently perfectly satisfactorily and happily. Indeed he had been brought up there from his early teens until well into his twenties. He was married to a Kenyan citizen. He had only been in Uganda some four years when he left and then came to the United Kingdom. Moreover, the very organisation to which he claimed to belong and in relation to which he said he suffered the fear of persecution, was apparently accepted in Kenya because there was an office in Nairobi of that organisation which had been assisting him. Those were the facts upon which, in relation to this case, the adjudicator decided that it was reasonable to assume that if he were returned to Kenya, which is presumably what will ensue though it has not yet happened, there was no real reason to believe that he would not be treated by the Kenyan authorities in accordance with the Convention.

In my judgment, there is nothing in the points made by Mr Serugo-Lugo which gives me any reason to doubt the propriety of the adjudicator's decision or that of the Immigration Appeal Tribunal to refuse leave to appeal from it. On the contrary, I regard this as a case in which everybody concerned with this applicant has dealt with the matter with meticulous care from the beginning, when he was first interviewed through the special adjudicator, to the judgment of the learned judge. I would refuse this renewed application.

Judgment Two:

LEGGATT LJ: I agree.

Judgment Three:

SIR MICHAEL KERR: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Yogesh & Co, London NW6; Treasury Solicitor