R v. Secretary of State for the Home Department, Ex parte Dia By

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	11 March 1993
Citation / Document Symbol	[1993] Imm AR 433
Cite as	R v. Secretary of State for the Home Department, Ex parte Dia By, [1993] Imm AR 433, United Kingdom: High Court (England and Wales), 11 March 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6a30.html [accessed 29 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte DIA By

Queen's Bench Division

[1993] Imm AR 433

Hearing Date: 11 March 1993

11 March 1993

Index Terms:

Political asylum -- citizen of the Ivory Coast -- arrived in United Kingdom via Lagos -- sought leave to enter as visitor -- refused -- claimed political asylum -- application refused -- reliance by Secretary of State, inter alia, on discrepancies in interviews -- assertion, supported by consultant's report, that applicant was not fit to be interviewed on one material date -- whether reasonable for Secretary of State to rely on statements then made -- whether on review of all the evidence it could be concluded that applicant was then fit to be interviewed. HC 251 para 75.

Held:

Application for judicial review of a refusal by the Secretary of State to grant political asylum. The applicant was a citizen of the Ivory Coast who arrived in the United Kingdom, seeking leave to enter as a visitor. He was refused leave to enter and immediately claimed asylum.

After consideration the Secretary of State refused the application. He took note, inter alia, of the discrepancies in the various accounts that the applicant had given during interviews and in instructions to his representatives. Before the court it was argued that the account given by the applicant during his first interview should not be treated as significant because the applicant was at that time unfit to be interviewed. That contention was supported by a report from a consultant physician at Haslar.

The court made a detailed analysis of the evidence in reviewing the Secretary of State's decision.

Held

1. It could not be said that the Secretary of State had overlooked any material matters and his decision could not be attacked on Wednesbury principles.

2. In particular having regard to the evidence as a whole, a successful challenge could not be mounted on the basis of the report of the consultant who in any event had not seen the applicant at the time the first interview took place.

Counsel:

R Scannell for the applicant; Miss C Montgomery for the respondent

PANEL: McCullough J

Judgment One:

MCCULLOUGH J: Mohammed Ali Diaby moves for judicial review of the decision of the Secretary of State to refuse his claim for political asylum. One of the principal questions in the case concerns his fitness for interview on the day following his arrival in the United Kingdom.

The applicant is aged 33 and a native of the Ivory Coast. He married in July 1992. He arrived alone at London Heathrow Airport on 20 August 1992, having travelled from the Ivory Coast via Lagos. He sought leave to enter for a visit of five days. He speaks French.

He was interviewed by an immigration officer on the evening of the day of his arrival. That officer was not satisfied that leave to enter as a visitor should be given. He decided that the applicant should be interviewed in French the following day and meanwhile be detained overnight. He authorised his detention and in the usual way when detention is authorised the applicant was examined, it would appear, rather briefly by a medical inspector; one imagines that the purpose was to assess his fitness for detention. He was x-rayed, but which part of him was x-rayed was not explained. The probabilities are that it would have been the chest. The doctor did not draw attention to any medical condition.

The following day, 21 August 1992, the applicant was interviewed by Andrea Lockett, an immigration officer, in French. He conveyed to her that he could understand her. He told her that he was fit and well in answer to a specific enquiry. She found him speaking French fluently and without hesitation and says that his manner was relaxed. He told her, as he had told the officer to whom he had spoken in English the previous night, that he was here for, at the most, five days to practice English and have a holiday. He said he was a student, had worked part-time and had saved his fare. At the end of that interview he was refused leave to enter and directions for his removal were sent, whereupon he claimed political asylum.

Miss Lockett then completed an asylum application form. A document called a pro forma referral was completed and this recorded that the applicant was afraid for his life in the Ivory Coast where there had been student strikes. He had been in the students' union, he could lose his life if he went back, his family were poor and would not have the ability to defend him. This information must have been obtained from the applicant himself speaking French.

That afternoon another officer, Mr Hamilton-Stacey, assumed responsibility for the applicant's application. He interviewed him in French. Mr Hamilton-Stacey had passed a civil service examination in French the previous year; earlier in his career he had worked for a French company in Nigeria for five years and he had worked in France for two years. He had also visited Francophone countries in West Africa for business reasons and in the course of his duties with the immigration service he had interviewed a number of French-speaking nationals, including those from the Ivory Coast and other African countries. He found that the applicant spoke clearly and without hesitation and that during the interview he appeared to be at ease. In answer to specific enquiry the applicant said that he was fit and well. For the purposes of this case this is the vital interview. During the interview what is called the PAQ (Political Asylum Questionnaire) was completed and at the conclusion it was signed by the applicant. At the conclusion of the interview he signed this statement:

"It has been explained to me that the purpose of this interview has been to enable me to explain why I wish to claim political asylum. I have understood the questions put to me and have had an opportunity to tell the interviewing officer about any other facts which I think are relevant.

I have read/had read to me the notes which have been made by the interviewing officer and have been able to add or correct anything I want.

The interviewing officer's notes, as corrected/amended by me, give an accurate account of what I have said and of my circumstances."

Mr Hamilton-Stacey found that the applicant's command of the French language was significantly better than that of other Ivory Coast nationals whom he had interviewed. After each question and answer Mr Hamilton-Stacey read back the answer in French that the applicant had given and gave him there and then the opportunity to comment on, add to or change anything he had written. This was quite apart from the reading back of all questions and answers at the end of the interview.

In substance what the applicant then said was this. He had been a primary school teacher between October 1979 and October 1987 and that since then he had been a student. He had been elected to a student committee which complained about the conditions in the college, notably resources and food. This was part of a national campaign about student conditions. There had been a student strike which began in March 1992 and still continued. It took the form of non-attendance at lectures and classes. In May 1992 the army entered, at first he said, "the institute", but that was changed to "several institutes" living quarters. Several female students had been raped, male students had been attacked and wounded and two students had been killed. Thirty were arrested and some were still in detention. The army occupied the institute which the applicant attended for several weeks. Following the army incident the police had come looking for him at home and had threatened a relation, whom he then described as his uncle, with arrest if they did not find him within one month. He had then fled to his parents' home village where he had hidden until the situation calmed down and then he had fled to the United Kingdom.

It is to be noted that in that interview he did not say that he had been arrested, he did not say that he had been detained, he did not say that he had been tortured in any way, he made no mention of having had an injured shoulder and more significantly, he did not attribute his shoulder injury to any incident relevant to the presentation of his claim for political asylum. He made no mention of there having been any strike in 1991. He did not say that he felt ill during that interview, that he was in pain or that he was too tired to be interviewed. He did not say that he did not understand the questions. He did not say that he held any position of any prominence in the student organisation.

He was detained at the Harmondsworth Detention Centre. On 28 August he saw a doctor who understood that he was being consulted about the condition of the applicant's eyes and referred him in consequence to an optician.

On about 31 August or 1 September feverish symptoms were first experienced by the applicant. On 3 September he was transferred to the detention centre at Haslar at his own request, the reason for his request apparently being that he hoped he would be able to attend English classes there.

He was medically examined on reception at Haslar. This took place on 4 September. It was then noticed that he had a shoulder wound. It was also noted that he was experiencing what appeared to be malarial symptoms. The symptoms were not serious; otherwise he would have been removed to the Royal Naval Hospital at Haslar at once. A blood sample was taken for analysis.

On the same day a note in the file indicates that the applicant was saying that he had been misunderstood about his request for a transfer to Haslar, having been under the impression that he could take better English lessons there.

Shortly after this note was compiled he wrote a letter in French to the solicitors who were then acting for him. This was to the effect that he had arrived at Haslar on the Thursday morning, 3 September, that he did not like the food there and wanted to be moved elsewhere. He wanted the solicitor to do as much as possible to have him moved elsewhere before, as he put it, "the end of my present problem". He said he wanted to go back to JA, which means Harmondsworth.

There then follows this:

"Other details which I forgot to tell you. When I arrived by plane, Nigerian Airways, a member of the crew had given my passport along with a letter from an Immigration officer and I want to know what that letter said:

I would also like to tell you that the doctor at Haslar examined me on Friday, 4 September and discovered the wounds from the 1st strike inflicted on my body. These are the knife wounds inflicted by the police on to my shoulders. So he wants to see me again.

I would like you to come and see me so that I can discuss a problem with you."

He did not say what the problem was. The significance, for present purposes, is that there was the applicant early in September of 1992 referring to the first strike in a way which implies that he had already mentioned the first strike to his solicitor and referring to the wounds on his shoulders in such a manner as to suggest that he had already told his solicitor that those wounds had been inflicted in the first strike and had been inflicted by the police.

On 7 September it appears that another blood test was taken or analysed. The result of that was that the applicant was admitted to the Royal Naval Hospital under the care of Surgeon Commander ARO Miller, MA, MRCP, DTMH, consultant physician. Taking the history from the applicant when he first saw him, Dr Miller understood that he had arrived in the United Kingdom on 20 August when, apart from a discharging wound in his left shoulder, he was said to be well. It is implicit from what the doctor had said that this information was obtained on taking the history. In the same way he learnt that seven days prior to admission at Haslar the applicant had developed fevers and shivering attacks, which occurred most evenings and lasted for several hours. It did not appear to Surgeon Commander Miller that the applicant was suffering from fever; nor did he appear toxic. It was apparent that he had an extremely painful left shoulder with pain, restriction of movement and three suppurating sinuses at the top of the left humerus. There was also diminished movement in the right shoulder. The applicant was, in the Surgeon Commander's view, experiencing obvious distress from the condition of his left shoulder.

The applicant told the Surgeon Commander that in 1991 he had been involved in various altercations with the authorities as a result of his beliefs and that during one of these violent incidents he sustained knife wounds to both shoulders. X-rays and CT scans carried out at the Royal Naval Hospital confirmed a diagnosis of chronic osteomyelitis in the left shoulder. In the Surgeon Commander's opinion the wounds were entirely compatible with a history of having been stabbed.

The applicant remained in the Royal Naval Hospital until 29 September. On that occasion the Surgeon Commander wrote a letter of discharge addressed to the managing medical officer at Her Majesty's Prison Haslar, by which I assume he meant the detention centre. This recounted that the applicant had been diagnosed as suffering from malaria, chronic osteomyelitis secondary to trauma and three other conditions not relevant for present purposes. The same letter recorded that the discharge from the sinuses had dated from the original wounding. The letter recounted the treatment and investigations which had taken place in hospital. It was said that a consultant orthopaedic surgeon who had seen the applicant felt that he would need surgery for the left arm and had put him on a waiting-list for operation around Christmas-time. The letter concluded by saying that the applicant's only active medical problem, this being at the time of discharge, was chronic osteomyelitis. There is no need to refer to the other three conditions, but some mention needs to be made of the malaria. The Surgeon Commander had treated the malaria with drugs. He has since expressed the view that, as the applicant had been brought up in a malaria endemic area, he was regarded as semi-immune to malaria.

On 5 October 1992 the applicant was, for the first time, seen by the solicitors who now act for him in place of those who had earlier represented him. On 22 October 1992 the solicitors made to the Secretary of State the first of a number of representations on the applicant's behalf. A "minded to refuse letter", as it is called, was prepared at some stage prior to 11 December 1992 when, what is called, "the minded to refuse interview" took place. This was adjourned and resumed on 18 December 1992. There was a further interview by way of adjournment on 22 December 1992. This was followed in January 1993 by the formal letter refusing political asylum. This was communicated to the applicant on or prior to 24 January 1993 when he was told he would be refused leave to enter because he had been refused political asylum, and directions for his removal on 28 January were set. There was an interview on 25 January 1993 when the final refusal letter was handed to him and this constitutes the first of the decisions presently under challenge.

At that interview reference was made to a medical report which had been received from Dr Tonge of the Medical Foundation for the Care of Victims of Torture. Further representations were made by the applicant's solicitors on 26 January and a copy of Dr Tonge's report was enclosed with the letter containing them. The refusal of political asylum was confirmed by letter of 28 January 1993. On the same day the applicant's solicitors sent a medical report from Surgeon Commander Miller to the Home Office. I am not clear whether his earlier report of 29 September 1992 had by then already been submitted, but there is no significant difference between the two reports. The refusal was again confirmed on 29 January 1993. On the same date a refusal to allow the applicant to enter the country and remain here on compassionate grounds was communicated, a request for this having been made on 25 January.

The removal date had by then been deferred, but on 30 January removal was set for 7 February and directions to this effect were made. It is the making of these directions which constitutes the second of the decisions now under challenge. There is no need to consider them separately. Clearly they depend on the decision of 25 January to refuse political asylum. In any event, those particular directions have been overtaken by events, as the applicant has remained pending the outcome of the application to this court.

On 2 February the applicant's solicitors wrote again to the Home Office, this time enclosing a note which was understood to be an English translation of the letter written in French by the applicant to his previous solicitors early in September 1992.

On 4 February 1993 the applicant's solicitors made further representations sent by faxed communication. On the same day the refusal of political asylum was again confirmed. This is the third of the decisions presently under challenge. Further representations were made and on the same day application for leave to move for judicial review was presented to this court. Leave to move for judicial review was granted on 12 February by Potts J, who ordered that the motion be heard expeditiously. Potts J gave leave to amend the original grounds of application which then assumed present form.

Various affidavits have been filed on behalf of the applicant from the applicant's solicitor, Mr Southey, exhibiting a variety of documents. There has also been filed an affidavit from Surgeon Commander Miller expressing his medical opinion. On the respondent's side there are affidavits from Miss Lockett and Mr Hamilton-Stacey, the immigration officers previously referred to, Mr Palmer of the Treasury Solicitor's Department, Mr Sprunt, senior executive officer in the Asylum and Special Cases Division of the Home Office, who has considered this application in the course of his duties, and latterly today a further affidavit from Mr Gosling, an executive officer in the same division.

The reasons for refusal, taken in the various letters and repeated as necessary from time to time, in substance can be summarised as follows. There was no supporting evidence for the applicant's claims. There were considerable discrepancies in the things that he had said at different times. His claim for political asylum was made not initially but immediately after he had been refused leave to enter. He had, despite his assertion of going into hiding, been able to obtain a passport and leave the country through the normal exit channels. The medical evidence later presented, while establishing that there had been non-accidental injury to the shoulders, did not establish when or how those injuries had been sustained. In addition there was a point on which no special reliance was placed, because it was made plain at the outset that the decision did not turn upon it, viz that the applicant had not claimed political asylum when he passed through Nigeria on his way to England.

On the applicant's behalf it was claimed in correspondence (and these are my words summarising the claims rather than quotations from any individual letter or representation) that so far as could be expected there was supporting evidence, and in particular supporting medical evidence, that the discrepancies were capable of innocent explanation, that political asylum had not been claimed initially because the applicant had thought that the officers of the department of Customs and Excise whom he first saw were merely airport staff and he wished to get into the country before making his claim for political asylum and he had been able to obtain his passport and leave through the normal channels only with the assistance of an old school friend who had become a police officer. Various assertions were made, which will have to be examined in more detail, as to how it was that claims later made by the applicant in support of his application for asylum were not made during the interview in French on 21 August.

These cases, involving as they do questions of the liberty of the subject and the safety of his person, the safety even of his life, require consideration by or on behalf of the Secretary of State with the greatest care and when an application to this court is made it is the duty of the court to give the most anxious scrutiny to the decision making process to ensure that it is in no way flawed. It therefore becomes necessary to consider the matter chronologically, to examine the way the various accounts emerged, to examine the objections put forth by the Secretary of State and to examine the answers given on the applicant's behalf. I spent some hours engaged in that exercise last night, reading the papers in chronological order and making appropriate notes. The submissions today have principally been directed to what is said to have been the perversity, in the Wednesbury sense, of the Secretary of State's reliance on the discrepancies between what the applicant said on 21 August 1992 and what he later said through his solicitors in correspondence or personally at interview. In particular it is said that, having regard to the medical evidence before the Secretary of State and now before the court, it is manifestly unfair to take against the applicant such discrepancies.

I have already recounted how at the two interviews, the first with Miss Lockett when he was asking for leave to enter as a visitor, and later with Mr Hamilton-Stacey when he was seeking political asylum, he was interviewed, in French, spoke without hesitation, appeared to understand, appeared to be at ease and said on each occasion that he was fit and well.

The more detailed examination of the history can start with the representations of 22 October 1992. These were to the effect that the applicant was president of the student committee, that he had taken part in organising the students' strikes and that there had been a large student strike in 1991, as a result of which he had suffered severe knife wounds to the shoulders when the military raided the dormitories. It was on this occasion that two members of the student organisation died after torture from the military. It was said:

"As a result of his involvement in this strike he suffered severe knife wounds to his shoulders when the military raided the lAB student dormitories of the agricultural faculty at Cite Formoz, arrested students and held them in custody for a week, forcing them to face the sun with their eyes open for the whole of that week. They were beaten and tied up."

It is now said that this assertion was meant to convey that the applicant was one of the students who had been treated in this way. It would appear that when the Secretary of State read that letter he did not interpret it in that way, and when I read this letter I did not do so either. On the same occasion it was said that the second strike started in May 1992. This, of course, was the only strike that had been mentioned hitherto. It was said that the relation concerned had been detained for two days at a police station and threatened with imprisonment if he did not reveal the whereabouts of the applicant. He had escaped from the Ivory Coast with the help of the policeman friend, he had been 16 hours in Nigeria, he had been savagely attacked by the police (this presumably being a reference to the occasion when he was stabbed), and it was said that he was now a wanted person in the Ivory Coast due to the prominent position he held in the student organisation.

It will be immediately apparent that more assertions were made on this occasion that had been made on 24 August 1992. The first strike was now mentioned and it was said that he was wounded by stabbing on that occasion; that was new. Reference to other students being detained for a week and forced to face the sun with their eyes open for the whole week was new and references to them being beaten and tied up were new. The relation, it was now said for the first time, had been detained for two days at or after the time of the second strike and the applicant was now mentioned for the first time as having been president and thus having played a prominent part in the student organisation.

The minded to refuse letter followed and inter alia drew attention to these discrepancies. The applicant sought to deal with the points made in the minded to refuse letter in the interviews on the 18 and 22 December. On 18 December he said that he thought that the Customs and Excise officials at Heathrow were merely airport staff and he therefore did not have to tell them of his real problem. He said that in the Ivory Coast there were no such immigration officials. He said he had told them the story about wanting to come and visit his nephew because he thought that they were airport staff. He did not explain why he found it necessary to lie to people whom he thought were airport staff. He named the two people who were killed and said they were friends.

He explained an apparent contradiction, which had hitherto been held against him in the minded to refuse letter, viz that he had once referred to the relation concerned as a half-uncle and on another occasion as a stepbrother, and he explained how the same person could be both of these things and also indeed his adoptive father.

He pointed out that there was no contradiction in what he said about his being a member and also president of the student organisation, because he was a member of the wider federation and president of the local organisational committee. This was the first time that the committee had been called the "organisational committee".

He then said on 18 December that he personally had been tortured. He had his arms tied behind his back, he was made to face the sun and he had been detained for two days. That, to me at least, was the first clear indication that he was saying that this had happened to him and the first clear indication that he was saying that he had been detained in consequence of the 1991 strike. He blamed the fact that he had not mentioned at the interview of 21 August 1992 a number of things that he had later said on difficulties of communication which he claimed to have experienced on interview at Heathrow. There was at this stage no suggestion that he was unfit for any medical reason to be interviewed on 21 August. That, as will be seen, came later.

On 22 September 1992 he said that he could not reveal the name of the person who had helped him obtain his passport and helped him through the airport because he had promised the man that he would not reveal his name. He explained how Nigeria would not have been safe for him as a politically unstable country without passport control, where those from the Ivory Coast could easily enter and, if they so desired, reach him.

Having considered the representations that he made at these interviews, the Secretary of State said that he was satisfied that the applicant had had every opportunity to explain fully his claim at the Heathrow interview. It was pointed out that he knew well enough the immigration officers when he was asking them for leave to enter. His reason for not claiming asylum in Nigeria was not accepted. There is no doubt in my mind that, whatever doubts he might have had about who he was speaking to on the evening of 20 August 1992, when he was fresh off the plane in the hours of darkness in a strange country and no doubt tired and apprehensive, I am quite satisfied that he knew the following morning when he was being interviewed by Miss Lockett that she was an immigration officer. It was to her that he was talking about his visit to England and he must have realised that she was interviewing him to decide whether or not to give him leave to enter as a visitor which he was then seeking.

The medical report from Dr Tonge, dated 14 January 1993, revealed that he had told Dr Tonge that he had been arrested in 1991 and stabbed in both shoulders in 1991. The doctor noted that the discharging areas required dressings twice a day and he was satisfied that what he saw was highly suggestive of having been stabbed. He told the doctor, and this was new, that he had been held for two weeks at an army camp. He also said that he had his arms tied behind his back and he had been forced to lie on his back facing the sun for five to six hours on two consecutive days. His eyes had always been weak and they had been worse since that incident. The doctor said that direct glare would be likely to cause deterioration in visual acuity. He also told the doctor something that there is no record of his having said before, namely that he had been beaten with fists and belts and forced to do exhausting physical exercises, for example, push-ups, and to hold himself up with his hands behind him on the floor and his feet against the wall until he was exhausted or he would be beaten; that was new, as also was the fact that he told the doctor that he had been arrested in 1992.

The applicant's solicitors accused the Secretary of State of making no reference to the torture in his letters in reply and of having ignored what was called "strongly supportive medical evidence".

The question of the applicant's ability to express himself adequately on 21 August 1992 was again addressed and it was said that he did not have an opportunity to express himself freely, he had been tired and shocked, he did not know what he was doing and he felt very threatened at London Heathrow. It is significant that even at this stage, 26 January, no suggestion was made that he was medically unfit to be interviewed.

When the refusal was confirmed on 28 January the Secretary of State said he was prepared to accept that there was some confusion over relationships, but he did not accept that the applicant had had no opportunity to express himself fully when first interviewed and he did not accept that the medical reports established how and when the non-accidental injury to the shoulders had been sustained.

By the time the letter of 4 February 1993 was received (which is the third of the decisions sought to be challenged) the applicant's solicitors had written to the Secretary of State, both on 2 February and on 4 February. On 2 February as I have said, they enclosed the note of what the applicant had written in early September from Haslar to his previous solicitor, and on 4 February the question of his state of health at Heathrow was for the first time addressed. It was then said that it was unfair to rely on the initial interview to the extent that it had been relied on. It was asserted that the applicant was not fit to be interviewed, that he was feeling extremely unwell, that he was suffering greatly from his shoulder wounds and infection and malaria, and if they needed to be dressed daily now they must have needed to be dressed daily then. He was, it was asserted, undernourished, as should have been obvious. It was said that when the doctor saw him on 4 September he was clearly unwell. It was asserted that when he had arrived at Haslar he was like a frightened animal. It was said that doctors had confirmed that he was not fit to be interviewed and reference was made to the very high standards required in the assessment of applications of this kind. Medical evidence has not been filed to support an assertion of undernourishment and it is noteworthy, as Miss Montgomery for the Secretary of State has pointed out, that although we have the benefit of Dr Tonge's opinion and Surgeon Commander Miller's opinion, to which I will come in more detail, we have no affidavit evidence from the applicant himself about his state of health and how he was feeling physically on 21 August 1992.

All the assertions about his health at that time, his unfitness for interview, the pain that he was suffering and so on have been made by his solicitors in correspondence. There would have been no difficulty in obtaining sworn evidence in support of these assertions from the applicant himself. That is not to suggest that had such sworn evidence been before the court it would have made any difference. The significant fact is that the assertions of unfitness on account of ill-health were not made until 4 February 1993, although solicitors had acted for him throughout and the applicant's present solicitors had acted for him since 5 October 1992.

The applicant's solicitors spoke to the Home Office on 4 February 1993, passing on the opinion of Dr Tonge that, given the treatment the applicant had had since his admission to this country, he must have felt pretty rotten on arrival, he would not have felt like a detailed interview if he suffered from chronic osteomyelitis, he might not have done himself justice and Dr Tonge would have excused him from jury service. Those opinions, of course, can only have been expressed on the basis of Dr Tonge's own examination. Dr Tonge did not see the applicant until nearly five months after his arrival in the United Kingdom.

The affidavit from Surgeon Commander Miller, in addition to dealing with the matters to which I have already referred, contains this important paragraph:

"I have no details of Diaby's clinical condition prior to his admission to Haslar hospital. Although he had symptoms of malaria just for 1 week before admission he was obviously infected with malaria before leaving Africa and his infection could well have been active by the time of his arrival in the UK. Although he is regarded as semi-immune to malaria as a result of having been brought up in West Africa it is quite likely that at the time of his original immigration interview his mental faculties may have been dulled by malaria. On the basis of how Mr Diaby appeared to me when I first saw him in Haslar when he had numerous infections and a great deal of pain in his shoulder he would not have been able to acquit himself well in interview. When I saw him he was in obvious distress from his shoulder. On admission he was clearly disturbed by his situation and concerned by the language problem which made communication and a full explanation of his problems extremely difficult. I speak some French but Diaby's accent is such that combined with his distress I would say without hesitation that he was difficult to communicate with and I later required an interpreter to counsel Diaby regarding his HIV status. It is my opinion that he could not have given an accurate account of his situation because of his severe illness at the time of his interview. In my view full credence should not be put on his performance at this interview due to his medical condition."

This opinion was not of course before the Secretary of State at the time he took any of the decisions in question, but it is material because Mr Sprunt has deposed, in an affidavit dated 5 March 1993, that he has considered this case and he has read all of the documents, including all of those filed in support of the application for judicial review. He is satisfied, nevertheless, and was on 5 March that the interview of 21 August 1992 had been fairly conducted, without problem of communication at a time when the man was fit to be interviewed and able to do himself justice. As he points out, the Nigeria point was not particularly significant and in conclusion he says that the Secretary of State remains of the views that he had earlier expressed. Effectively, therefore, although he does not say so in terms, what Mr Sprunt says is that, looking at the whole of the material, the decision remains the same.

In the course of his submission Mr Scannell refers to the reluctance that one may have in being persuaded to change one's mind after one has come to a particular conclusion and announced it. Even though some of the grounds on which it was based are later invalidated, the original view may unreasonably be adhered to although, in fairness, it ought to be modified. It is a human trait liable to affect all of us, be we civil servants considering claims for political asylum, be we solicitors acting for claimants for political asylum or be we judges. It underlines the need for these matters to be considered with the closest care.

It is said by Mr Scannell that there is no objective evidence which can fairly be set against the opinion which Surgeon Commander Miller has expressed and that it ought to be accepted by any reasonable and fair-minded person. I am not able to accept that submission. I have looked at this matter in detail chronologically, I have paid the closest attention to when the various complaints were made and I am quite satisfied that the conclusion of the Secretary of State as to the applicant's state of health and fitness for interview on 21 August 1992 was not only a reasonable one but was entirely justified on the evidence before him at the time that he took the decision under challenge. I am further satisfied that it is an entirely reasonable conclusion which can and should stand despite the material which has been submitted to this court.

Surgeon Commander Miller speaks of a severe illness as being suffered by the applicant on 21 August 1992. I do not know to what he is referring. The malaria, on his own evidence, can hardly have been regarded as serious. The other three conditions, apart from the malaria and the condition of the shoulder, although serious were not severe illnesses and they were certainly not affecting him adversely at the time of his interview. One can only assume that he must have been talking about the discharging sinuses as a result of the osteomyelitic condition of the shoulder, but, reading the letter of discharge that he wrote at the end of September, it does not seem to me to be a report on a patient who entered hospital with a serious illness.

Miss Montgomery, on behalf of the Secretary of State, says that although there is no medical opinion presented on the Secretary of State's behalf challenging the opinion expressed by the Surgeon Commander, there is nevertheless evidence before the court which can justify the conclusion that he was fit for interview. The immigration officers who saw the applicant on 21 August 1992 are not, of course, medically qualified, but they are immigration officers, they were able to communicate freely with this man, they both say that he appeared relaxed or at ease, they both asked him if he was fit and well and he told them both that he was, there was no reference to him being ill or to his shoulder paining him, and there is absolutely no reason to believe that he was suffering from any fever or any of the malarial symptoms from which he was found to be suffering in early September because they did not begin until approximately ten days after the time with which one is presently concerned.

Indeed there is evidence at the beginning of the Surgeon Commander's affidavit to the effect that the applicant was well until seven days before he entered hospital. He made no complaint to the doctor whom he saw on the evening of 20 August. I say in the evening, it was probably about one o'clock in the morning when he was examined for fitness for detention. It is true that the probabilities are that his shirt was off for the purposes of X-ray and the doctor would have had a means of seeing the sinuses in the shoulder. The doctor did not remark to the immigration service about them, no doubt because the applicant had made no complaint to the doctor that they were troubling him at the time. One would have expected that if they were troubling him to any significant extent he would have said so to the doctor, but there is no indication that he did. He saw another doctor on 28 August, but that was in connection either with the condition of his eyes or because he was not feeling well because he had a cold. It is not even suggested on his behalf that he saw the doctor on account of pain in his shoulder. It is significant that the Surgeon Commander expressed his view without having seen any of the evidence from those who actually saw the applicant on 21 August 1992. The immigration officers did then see the applicant. The Surgeon Commander only saw him for the first time on 7 September, which was between two and three weeks later.

I fully accept that there are people who come to this country who are genuinely refugees, who are very frightened when they arrive and who feel that it is necessary to tell a false story in order to enter the country. This must be borne clearly in mind. But by the time of the significant interview with Mr Hamilton-Stacey the applicant had abandoned his false story; he knew he was speaking to immigration officers, he knew he was making his claim for political asylum and he knew he was being interviewed so that he could say anything he wanted in support of that claim. Nobody doubts that at some stage in the past he suffered non-accidental injury to his shoulder, but if that non-accidental injury had occurred as a result of a strike in which he had participated and if in consequence he was attacked by two police officers and wounded in the shoulder, and if that injury bore, as it is now suggested it does, on his application for political asylum, it is extremely difficult to understand how he could not have mentioned it during an interview in which it is suggested he was still feeling pain from those wounds and when he was, as I have said, being interviewed in connection with his application for political asylum. But he did not even mention the 1991 strike or his arrest or his being held in detention; he did not say that he had been unjustifiably attacked by the authorities; he did not say that he had been tortured, made to sit in the sun, beaten or made to adopt uncomfortable physical positions or anything of that kind.

In my judgment, having looked at this case with care, the Secretary of State's reliance on the discrepancies, based as it was on his conclusion as to the applicant's fitness for interview on 21 August 1992, is wholly justifiable. It is not just, as Miss Montgomery has pointed out, that he did not mention these things at that time, it is that when the discrepancies were pointed out to him, as they were for the first time in the minded to refuse letter which he was shown by 18 December 1992, no suggestion was made that they were to be attributed to medical unfitness at the time of the first interview. The suggestion found no place in his own representations when he was interviewed and it found no place in the representations advanced on his behalf by his solicitor on 26 January 1993. It was not made until 4 February 1993. For these reasons I am satisfied that the challenge based on the medical evidence of the Surgeon Commander fails.

A subsidiary challenge is made to the decision of 4 February 1993 on the basis that the letter of that date did not say that there had been taken into account the solicitor's note of the applicant's letter of early September 1992, which had been enclosed with the letter of 2 February 1993. The argument is that because it was not mentioned it could not have been taken into account. It was not clear until this morning that the decision of 4 February 1992 was under challenge. I then required Mr Scannell to amend his grounds. He was allowed to do so with the consent of the Secretary of State, provided that Mr Gosling, who happened to be in court, was given the opportunity to swear an affidavit to deal with this particular point. I take it that an undertaking has been given that an affidavit in the form of his draft will be sworn and filed. His draft affidavit was presented to the court in the course of this morning. In it Mr Gosling says that the letter of 2 February and its enclosures were considered on behalf of the Secretary of State. He continues:

"The enclosures did not cause a change of mind on the part of those officials dealing with the matter because it did not address their main concern, which was that the applicant had not mentioned the stab wounds at all at the political asylum interview on 21 August 1992 when he had every opportunity to do so and it was the point of the interview to establish the facts supporting his claim."

I quite take Mr Scannell's point that this affidavit does not expressly say that the letter of 2 February and its enclosures were considered before the letter of 4 February 1993 was written. On the other hand, it must be borne in mind that the affidavit was prepared with a degree of urgency. It is quite plain from paragraph three of the affidavit that Mr Gosling is not talking about a consideration of the case given after the application for leave to move for judicial review was made. He must have been talking about, at the latest, the last decision taken prior to the making of the application for leave to move for judicial review. As that application was made on 4 February, as the letter and enclosures in question were sent on 2 February, the only way paragraph three of his affidavit can be interpreted is as an assertion that the letter of 2 February and its enclosures were considered on behalf of the Secretary of State prior to the confirmatory refusal being sent on 4 February. Even if I were not satisfied about that, I would refuse relief in the discretion of the court because it is perfectly plain from Mr Sprunt's reconsideration of the whole of the material that if the matter were to be considered again precisely the same conclusion would be reached and for precisely the same reasons.

This is not, I am satisfied, a case of the Secretary of State reaching a point of view about an application for a variety of reasons, then finding that some of them are no longer sustainable and holding unreasonably to the remainder. The remaining reasons for the refusal are the substantial reasons for the refusal and they are wholly justified. After the most careful consideration of this matter and all too lengthy an explanation of it, this application for judicial review must be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Glazer Delmar, London, SE15; Treasury Solicitor