R v. Secretary of State for the Home Department, Ex parte Mukoko
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 23 June 1994 |
| Citation / Document Symbol | [1994] Imm AR 529 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Mukoko, [1994] Imm AR 529, United Kingdom: High Court (England and Wales), 23 June 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b66220.html [accessed 30 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. |
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MUKOKO
Queen's Bench Division
[1994] Imm AR 529
Hearing Date: 23 June 1994
23 June 1994
Index Terms:
Political asylum -- dismissal of appeal recommendation by special adjudicator that applicant be granted exceptional leave to remain -- Secretary of State made further relevant enquiries -- decided not to adopt adjudicator's recommendation -- whether Secretary of State had an obligation to advise applicant of the further information which contributed to his refusal to follow the adjudicator's recommendation and allow applicant opportunity to comment.
Held:
The applicant for leave to move for judicial review was a citizen of Angola whose claim for asylum in the United Kingdom had been refused by the Secretary of State. An appeal had been dismissed by a special adjudicator: she had however made a strong recommendation that the applicant be granted a period of exceptional leave. The Secretary of State made further enquiries into relevant circumstances in Angola and decided not to follow the recommendation. Before the court counsel argued, inter alia, that the Secretary of State, having made those enquiries, should have put the information he had secured to the applicant so that he might have had the opportunity to make representations in relation to it. Held: 1. When considering a recommendation by an adjudicator, the Secretary of State had no obligation to disclose to the applicant the information which would affect his decision. 2. Nor did the Secretary of State have any obligation when deciding not to follow a recommendation, to give extensive reasons.Counsel:
M Gill for the applicant; N Garnham for the respondent PANEL: Latham JJudgment One:
LATHAM J: This is an application for leave to move for judicial review to quash a decision of the Secretary of State for the Home Department, dated 2 June 1994, refusing to grant this applicant either political asylum or exceptional leave to remain in this country. The position is that the appellant is a citizen of Angola who came to this country on 6 February 1989 and, in April 1989, he made a claim for political asylum based on the assertion that he was a person who had deserted from the Angolan Army (FALPA) in circumstances which justified him in making an application as a political refugee. The Secretary of State disbelieved his account of matters and refused his application for asylum. The matter came before an adjudicator who, having heard all the evidence, decided that the applicant was to be believed. It then followed that, against the facts that the adjudicator found proved, she had to consider whether or not this was a situation to which paragraph 171 of the United Nations Handbook applied. The relevant paragraph reads as follows: "Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution." It follows that if the adjudicator had been able to discern that the reason for the desertion, which he says he will be punished for if he returns to Angola, was because of a determination not to engage in military action which falls into the category set out in the paragraph, then asylum should be granted. The adjudicator, when making her final comments, said as follows: "He was I think very honest at the hearing when asked why he had refused to return to the fighting. He said he was sick of the killing and did not want to be involved any more. Nothing of what he said could amount to a reason of conscience. The appellant came to dislike his military service and to fear a return to combat. The appellant fears he will be executed. I do not know whether his fear is well-founded. No evidence has been put before me as to the likely punishment in Angola for desertion. There is no evidence before me that the appellant would suffer disproportionate punishment for his desertion on account of any reason of race or religion, nationality or membership of a social group or political opinion. I have considerable sympathy for the appellant in his present predicament, but I must reluctantly find that he cannot bring himself within the terms of the 1951 Convention." She, therefore, refused his appeal insofar as it related to the claim to remain as being entitled to refugee status. However, in the light of her findings as to credibility, she recommended most strongly that the appellant's case be considered again with a view to exceptional leave being granted to remain. It was in those circumstances that the matter was reconsidered by the Secretary of State. It is to be noted that the decision as to this applicant's entitlement to be treated as a refugee was not the subject matter of an appeal to the Immigration Appeal Tribunal which was a route open to the applicant. He, instead, chose to rely on the recommendation against the background of the Secretary of State's assertions, or rather his predecessor's assertions in the House of Commons, that it is only in exceptional cases that such recommendations are not followed. The position, thereafter, was that the Secretary of State did consider the matter and, indeed, made further enquiries as to what the position was in Angola. It is part of the complaint made today that the Secretary of State did not disclose to this applicant the nature of those enquiries or their results. But having made those enquiries, the Secretary of State came to two conclusions. First, that the applicant would not be subject to excessive or disproportionate punishment on return to Angola. He came to that conclusion in the context of considering whether he should reconsider the issue of this applicant's entitlement to asylum. He concluded that there was no information to support the contention that he would be subjected to excessive or disproportionate or severe punishment and therefore refused that particular basis of the application. He then went on to consider whether or not the special adjudicator's recommendation should be followed. He said: "Having reviewed all the circumstances he was not prepared to grant leave to enter the United Kingdom exceptionally." As far as the first part of the conclusions are concerned, realistically, Mr Gill cannot mount any challenge, other than one of procedural impropriety, because this was the Secretary of State carrying out an exercise which he was not bound to carry out in relation to the merits of the application based upon a refugee status. There is nothing in the reasoning which suggests that, even in the exercise of that very exceptional discretion, he in any way went wrong in a challengeable way. The procedural impropriety, as I have already indicated, that is alleged, is that he should have indicated to this applicant the basis upon which he was proposing to proceed in the sense that he should have indicated that he was obtaining further information or at least should have indicated that he had obtained further information and the nature of it so that this applicant could deal with it. That, in my view, was to misunderstand the nature of the exercise that the Secretary of State was here engaged in. He was simply considering the recommendation for special dispensation to this applicant. I do not think that is the sort of exercise which carries with it the consequences in relation to disclosure of material which, undoubtedly, applies in other circumstances. I say that fully conscious of the fact that this is in the context of a person who is claiming an entitlement to be treated as a refugee. The next question is whether or not the Secretary of State did take any proper consideration of the adjudicator's recommendation. All one can say is that in the past it has been clear that it has been only on rare occasions, that the Secretary of State would not follow a recommendation. That does not, in my judgment, mean that where he declines to follow a recommendation he must, in some way, be under a legal obligation to either, (as Mr Gill put it) approach the case as if there is a lower threshold over which the applicant has to get, nor, in my judgment, does it mean that he has to give extensive reasons when he is simply dealing with that which is, by definition, exceptional. In all those circumstances, I can see absolutely no basis upon which this decision is capable of challenge by judicial review. This was, essentially, a matter which fell to be decided in the exercise of the Secretary of State's discretion. I do not consider that he has gone wrong, as a matter of law, in a way which could result in this court interfering. I therefore refuse this application.DISPOSITION:
Application refusedSOLICITORS:
Nimoh Akainyah & Co, London SE5; Treasury SolicitorCopyright notice: Crown Copyright
