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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	16 May 1991
Citation / Document Symbol	[1991] Imm AR 505
Cite as	R v. Secretary of State for the Home Department, Ex parte Range, [1991] Imm AR 505, United Kingdom: High Court (England and Wales), 16 May 1991, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b64b28.html [accessed 3 June 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 RANGE

Queen's Bench Division

[1991] Imm AR 505

Hearing Date: 16 May 1991

16 May 1991

Index Terms:

Political asylum -- overstayer -- illegal entrant -- late claim for political asylum -- same officer as had investigated illegal entrant issue conducted political asylum interview -- whether that was, in the circumstances, unfair -- whether there was evidence of bias in the interview -- whether Secretary of State acted unfairly in not revealing until later that he was aware of warrant out for the arrest of the applicant for criminial offences in his own country. HC 388 para 140.

Held:

The appellant for judicial review was a citizen of South Africa who had been granted leave to enter as a visitor. He became an overstayer. He was then arrested on criminal charges. On investigation the Secretary of State concluded he was an illegal entrant. After that decision was made, the applicant claimed political asylum. The Secretary of State refused that application.

Both decisions of the Secretary of State were challenged on judicial review. The Secretary of State's decision to refuse the applicant asylum was attacked on grounds of procedural unfairnes. The same officer was used for the political asylum interview as had conducted the investigation into the issue of illegal entry. It was clear from the record that she began the interview with an adverse provisional view as to the credibility of the applicant. The Secretary of State had not revealed, at that stage, that he was aware that there was a warrant out for the applicant in South Africa, for criminal offences: in consequence, it was said, the applicant had had no opportunity to deal with that issue. The interviewing officer had been hostile: references were made in her report to the quality and purpose of the applicant's marriage, a matter which had not been investigated.

Held:

1. On the facts, the Secretary of State proved to the standard laid down in Khawaja, that the applicant was an illegal entrant.

2. There was no procedural irregularity or unfairness in the interview and report relating to the investigation of the asylum claim, save that there should not, in the circumstances, have been reference in the report to the applicant's marriage, a matter that had not been fully investigated.

3. There was nothing unfair or improper in the Secretary of State arranging for the immigration officer who had investigated the issue of illegal entry, to conduct the asylum interview. That officer would be in a better position to assess the applicant's credibility, taking one interview with the other.

4. It was not unfair, in the events which had happened, for the Secretary of State not to reveal his knowledge of the South African warrant, to the applicant at the interview. "In the inquisitorial process the inquisitor is entitled to hold matters back": the applicant had had a full opportunity to explain why he had left South Africa, and his case generally.

5. The immigration officer went into the interview with an adverse provisional view as to the credibility of the applicant. That the record showed. However where an interviewer who was not the final arbiter did approach an interview with such a view, it was proper that the report should record it, so that the Secretary of State could then take that matter into account.

6. There was no bias in the report: "strong views expressed at the judgment stage. . . are not evidence of any prejudgment of matters."

7. The application would be dismissed.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139.

Counsel:

R Scannell for the applicant; I Ashford-Thom for the respondent

PANEL: Henry J

Judgment One:

HENRY J: The applicant, a citizen of South Africa, born in 1962, challenges the decision of the immigration officer of 4 September finding him to be an illegal entrant to this country and the decision of the Secretary of State of 30 March refusing him asylum as a refugee.

He entered the United Kingdom on 18 January 1989 whe nhe was given six months to enter as a visitor. In February 1989 he met a lady. They began to live together in April or May 1989. He overstayed his leave to enter and they were married on 1 November 1989 whilst the applicant was in detention. He was in detention because on 3 September he had been arrested in connection with allegations of deception and theft. The following day he was interviewed by an immigration officer, Miss Savill, who served him with a notice treating him as an illegal entrant.

Subsequent to that, at the end of September, he applied for political asylum and was first interviewed in relation to that claim in the detention centre at Haslar on 26 October 1989. A more comprehensive interview was held in relation to it again with Miss Savill on 19 September 1989. The conduct of that interview is attacked and it is a matter that I will have to consider in some detail.

In January 1990 the United Kingdom Immigrants Advisory Service, who were representing the applicant's interests, were informed by telephone that the Secretary of State was minded to refuse the applicant's application for asylum. The minded to refuse letter was sent on 31 January 1990. UKIAS responded to it by a detailed letter dated 26 March 1990. The application for political asylum was finally refused by letter of 30 March.

There are two separate strands to this application. The first is that the immigration officer has failed to prove that the applicant obtained leave to enter by the making of false statements. That is the attack on the first decision. If that attack succeeds then the second question becomes academic for my purposes; if the attack fails then the applicant seeks to set aside the refusal of asylum on the basis that it was procedurally unfair.

The case made out in relation to procedural unfairness is: first, that the immigration officer who conducted the important interview of 19 December should not have been the same officer who found the applicant to be an illegal entrant; secondly, it is said that she was biased against him; and, thirdly, it is said that he had not been given a proper opportunity to deal with allegations of his criminal activities in South Africa. It is said that the answers were not taken down in question and answer form and he was not given the opportunity contemporaneously to write them. Finally, he said wrong conclusions were drawn as to his motives for marriage which should not have been drawn as the state of his marriage had not been investigated by the Home Office.

I turn to the first of those issues. This has to be approached in the light of the decision in Khawaja [1982] 1 WLR 625: am I satisfied on the evidence that his entry was unlawful? The illegality relied on by the immigration officer is under section 26(1)(c) of the Immigration Act 1971 on the basis that he made to an immigration officer a statement or representation which he knows to be false or does not believe to be true and that is in relation, of course, to entry to this country. The onus is on the respondent to satisfy me of this. The burden of proof is the civil burden of proof, but with that high degree of probability as reflects the seriousness of the allegation against him, namely, one of fraudulent deception.

As the arrival interview was apparently routine there is no record of it. As I have indicated in my summary the applicant overstayed his leave to be here and was first questioned about it the day after his arrest on 4 September, he having arrived in January. The case against him is founded largely on the admissions that he made at the interview in question. The interview was conducted in question and answer form. It was an interview under caution. On completion of the interview the applicant initialled each of the answers and signed at the bottom of each page. In relation to his entry he says this; I read first from the beginning of the interview.

"Q. When did you enter the UK.?

A. January about the 18th.

Q. This year?

A. That's correct.

Q. What did you come to the UK to do?

A. I wanted to make a new start."

That, as will be seen, is a very important answer.

"Q. Did you tell that to the immigration officer at Heathrow?

A. I don't think I did.

Q. What did you tell him you were coming here for?

A. First of all pleasure and to trace my family. Because my mother was British and I thought that would help me as well.

Q. Have you ever been to the UK before?

A. No."

Then there were various questions about his mother. He was then asked what job he had done in South Africa and he mentioned that he had been in the army, and then working for a company. He then said this:

"After that I went into a friend of mine's business. He couldn't use his name because he'd been bankrupt. So he used my name. Then I found out he was using me and I thought I've got to make a new start for myself."

In that interview, which on the form extends over five pages, there was no asylum claim. It will be recalled that the applicant was detained at the time and in detention some three weeks later he made an asylum claim.

The first interview in relation to that took place at the detention centre at Haslar and on the form the basis for the present claim for asylum was this:

"The claimant does not agree with the present apartheid system in SA and has therefore lost many friends and been ostracized by the white community. Claims his life has been 'made hell' for having black friends. If he returns to SA he will be made to serve in the SADF [South African Defence Force] who had been and still are, used to help suppress any anti-apartheid demonstration dispersing groups of people."

He stated that it goes against his principles to be used to suppress another person's freedom. Then he is asked details of his political or other involvement including details of any other organisations of which he was a member and he said: 'Made donations to the ANC and supported their aims.' His reasons for involvement was that he was against the apartheid regime. He said: "You read about it: I lived with it." As to details of persecution and harassment whether by Government or any other organisation he says: "None other than harassment by friends/family."

That concluded that interview. There had been nothing said about apartheid in his first interview at which it was found that he was an illegal entrant.

On 31 October 1989, five days after this interview, a UKIAS referral proforma was sent to that body and they were notified as to him. They were told that he had made an asylum claim on the basis that he did not agree with the present apartheid system, and that body were told this much about him:

"He has done military service 81/82 completed and been promoted to corporal and has been commended. The applicant is wanted for fraud in South Africa and has committed similar offences in the UK. Appears to be trying to escape prosecution."

The UKIAS investigated the matter and they wrote to the authorities on 29 November 1989 a long and careful letter setting out his whole history and summarising it in this way. First, that he had been called up to do military service when he was 18: because he had led a sheltered life in an orphanage, he did not know about apartheid until he went into the army. It came as a great shock to him when he met it in the army. When his national service was over in January 1983 he was still liable to be called up to do camps that would last somewhere between a month and three months and failure to attend was punishable by imprisonment. He received the call to go to such camps but ignored the matter. Instead he enlisted in the military police and served with them for three years but having had a year off in the middle when he was recovering from a car accident. He then left the military police in June 1987. On leaving the military police he then became liable for camp call up again. He had been told that he had been so called up and he had ignored the call." The UKIAS concluded by saying:

"Mr Range was called up for camp duty in 1988. At that time he had managed to trace his mother and was in contact with her living in the same town. The army had contacted his father trying to trace Mr Range. His father contacted his ex-wife who informed Mr Range that he is wanted for camp call up. Mr Range could not face this prospect and decided to leave South Africa as he felt he could not contribute to change in any way."

Then they went on to say:

"It is our view that Mr Range's objections to performing camp call up are conscientiously held. He refuses to participate in any action involved in suppressing the black population and thus participating in the maintenance of the apartheid system."

They conclude by saying:

"It is our view that Mr Range's refusal to answer call up for camp duty is based on conscientiously held beliefs. We would be grateful therefore if his application could be sympathetically reconsidered particularly in view of his marriage to Miss Meredith."

As to that, they say that it is also their view that that marriage was a perfectly genuine marriage. So it was that the interview of 19 December was set up. At this stage of this judgment I am not considering the fairness of that interview, I am simply examining it for the light that it throws, if any, on why this applicant came to England and what he said about it.

It is a lengthy interview. The report covers some 16 handwritten pages. The first passage deals with his leaving South Africa. He deals with the troubles that the company that he was involved in in South Africa had got into. It reads like this:

"The subject had accepted this and had agreed to be managing director in return for board and lodging and the occasional handout which amounted to

[@500 approximately] over a period of three months. When the subject had realised that [his partner] was diverting funds into his own account and that the police were investigating the company, he fled to the UK. I asked him why, if he was as innocent as he claimed he had not stayed to assist the police, he said that this was because his name was on all the documents.'

In relation to camp call up the report first questions his account of the warning and concludes in this way:

"Furthermore, if this account is true, the warning about the camp call up must have come some weeks before the subject left South Africa before his mother went into hiding."

The conclusion is that it is not this, but the police investigation into his business activities which prompted his flight, a fact which he freely admits. That was 19 December. As a result of that, she minded to refuse letter was sent on 31 January. I again look at that letter simply for the light it throws on the illegal entry part of the case. On page 77 the Secretary of State says this:

"The timing of your departure from South Africa casts considerable doubt on your claimed motive for leaving that country. The Secretary of State is satisfied that you would have been aware on leaving the Military Police in 1987 that you were liable to be call-up for further Military Service. You have not given a satisfactory explanation as to why you did not leave South Africa at that time rather than wait until 1989 at which time you ackowledged that you were being sought by the South African authorities for questioning in connection with alleged grand offences." [That clearly should read fraud offences.] "The Secretary of State notes that when interviewed on 19th December 1989 you admitted that it was this investigation rather than call up to undergo further Military Service which prompted your departure.

At some time, we do not know when, after the receipt of that minded to refuse letter, a full statement was taken from the applicant by his solicitors and that is exhibited. The account he there gives is as follows. First, he says:

"I did not leave South Africa until January of 1989, despite the fact that I had been out of the army since 1987. By the time I left the country I was fully aware of the effect of apartheid, both within and outside the army. However, I had hoped that things would change and I was also financially unable to leave the country until January 1989. In addition, it was an emotionally difficult decision. Even though I despised the regime and had been ostracised by my family and friends, South Africa was still my home and it was an emotional wrench to finally leave.

My reasons for finally leaving were all connected to the South African regime. I had been considering leaving the country for some time but as explained above, was constrained by various factors. I finally decided to leave the country after my mother alerted me to the fact that the SADF was seeking me for further call up. I strongly objected to being recalled into the army, because of my objections to the aparthied motivated behaviour I had witnessed. I therefore came to the United Kingdom as a visitor with a view to considering where next to go. I had no intention of returning to South Africa, but I did not intend at that time to stay in the United Kingdom."

Then he dealt with that if he were to return and refused to answer call up he could be imprisoned and that would be something which would be repated each time he was called on to go to camp and refused. Then he deals with the minded to refuse notice in these terms:

"In my Minded to Refuse Notice it stated that I told the Immigration authorities that my real intention in coming to the United Kingdom was "to make a new start.' I admit I did say this but would like to enlarge upon this. When I arrived in the UK I had no intention of returning to South Africa, for the reasons outlined above. However I had no intention at that time to remain in the UK. I came to the UK as a visitor with a view to giving myself time to think about where I wished to settle. The reason I chose the United Kingdom to come was that it was the first flight available out of South Africa when I decided to leave. Until I met my wife I was not sure where I was intending to settle. I met my wife in February of 1989 we got married on 1st November 1989 . . . We discussed the question of marriage for sometime before we decided to get married and it was only when we decided to get married that I had any intention of remaining in the United Kingdom. Our marriage was totally genuine and there was no question my marrying my wife with the intention of remaining in the United Kingdom."

Then he deals with why he left South Africa.

My mother informed me that the army was seeking me for further call-up and this is what finally decided me to leave. I know of no criminal charges outstanding against me in South Africa. If I had been wanted for questioning in connection with criminal offences the authorities would not have given me a full passport to travel to the United Kingdom. They would have just given me temporary travel papers. I was aware that I was wanted for questioning by the police but I think this was probably because the army were looking for me and enlisted the help of the police . . .

I am not aware of any outstanding warrant or charges against me in South Africa and I therefore could not have had such charges or investigations as a motive for leaving the country."

Finally, he says, having set out his account of his dealings with the company:

"I had no reason to believe at that time that any criminal investigations were being made into the running of the company, and when I left South Africa I felt sure that I had acted properly in resigning at the time I did. I knew that the police were looking for me, as I had heard from my mother before resignation from the company. I had no reason to believe that the police were looking for me except in repsect of my military service. My motive for leaving South Africa was purely due to the fact that I had been alerted to the authorities seeking me for military service, and nothing to do with any criminal investigation."

He says that he was unaware of any criminal charges against him or warrant for him in relation to them, that there was no reason to believe there was any criminal investigation into the company, and that the police were looking for him, he thought, but it was for military reasons and not for reasons of fraud.

On 19 February, the UKIAS were provided with the report that Miss Savill had prepared in the important interview on 19 December. They wrote a long letter on 26 March which I will consider in detail in the later fairness context, but for present purposes it deals with the applicant's leaving of South Africa. It says:

"He began checking the company's affairs and discovered that if the company got into trouble, he not Mr Crouse would have to carry the burden. He therefore decided to pull out, around December 1988, and wrote to his partner informing him of this decision. At no time had police been to carry out any investigations. The only people who came were debt collectors as Mr Crouse had got behind on car and truck payments."

Then the writer says:

"I cannot repeat too strongly that Mr Range categorically denies that a police investigation was taking place at the time he left South Africa. He did not freely admit this fact and insists this is the Immigration Officer's own interpretation of the situation."

Following that came the final refusal letter when the Immigration and Nationality Department say:

"It was represented that you have always denied that you are wanted in South Africa in connection with possible fraud offences and your representatives questioned the basis for the Secretary of State's statement that you were. On 5th December 1989 the Embassy of the Republic of South Africa informed the Immigration Service that you were the subject of fraud enquiries in South Africa. The South African police subsequently contacted the Immigration Service direct to inform them that you were subject of an arrest warrant in connection with alleged fraud offences in that country. The Secretary of State is entirely satisfied that that information is factually correct and that you are, as has been stated, wanted in South Africa in connection with possible common law criminal offences,"

It is clear on the applicant's own account of matters that when he left South Africa it was a permanent departure. It is also clear, on the applicant's own account, that that was a departure triggered by police interest in his acitivies. The reason for the interest in his activities are either that they were trying to get him because he had not responded for the camp call up, or because they were tracing him in relation to his business activities in which it seems the authorities assert that a warrant had been issued.

In any event when he arrived here he made no claim for political asylum on entry, or when first detained and interviewed as a suspected illegal entrant, but only after that. It is clear from his own admission that he was asked the question as to the reason for his visit and was clearly being treated as an ordinary visitor. The ordinary visitor comes for a limited purpose and intends to return, particularly a visitor from South Africa who needs a visa for most places. The applicant had no visa. In his statement to his solicitors he said this:

"Leaving South Africa was more on my mind when I came to the United Kingdom than where I would eventually end up. I knew that I did not want to go back to South Africa -- I wanted out. The United Kingdom was more or less the first flight and about the only place I could go with just my passport and no visa. There were other places it was conceivable I might end up. I know I have relatives in Canada and I wanted to look them up. I also considered Israel. There is a distant Jewish connection in my family and I have had many Jewish friends."

It was clear that the applicant was no ordinary visitor. The answer that he admitted making to the question as to the reason for his visit is:

"First of all pleasure and to trace my family; because my mother was British and I thought that would help me as well."

In that answer he made no mention of wanting or having to make a new start, no mention of any permanet departure from South Africa, no mention of any police interest in him causing his departure or no mention that he wanted that he wanted a breathing space after leaving South Africa to look for another place. To put the matter another way, was the reason for his visit conceivably pleasure and to trace his family in the circumstances that I have summarized above?

It seems to me that if there is no conceivable way that those were the reasons for his visit, the question that I have to ask myself on this part of the case is, whether there was a fraudulent deception of the immigration officer when that answer was given such as would offend section 26(1)(c) of the Act. I have no hesitation in saying that yes there was. In making that statement he made a statement which he knew to be false with a view to obtaining entry to this country. Therefore I am satisfied that he was an illegal entrant. That disposes of the first issue.

As one who entered illegally, he should be returned unless he is a refugee who should be given asylum. The Secretary of State found that he is not entitled to refugee status and that finding is now attacked on the grounds of unfairness.

First of all, it is necessary to examine the finding itself. That is set out in the letter of 30 March that I have already referred to in fact. I need not read again the Secretary of State's findings that he was wanted for fraud in South Africa and there was an arrest warrant issued against him. In relation to that the Secretary of State then goes on to deal with police interest in him in England, and says this:

"The Metropolitan Police informed the Immigration Service that there was sufficient evidence to pursue the charges of fraud and theft against you, [this is for alleged English offences] but that in view of the fact that you were to be removed from the United Kingdom as an illegal entrant (this being before you made an application for asylum), the charges would not be pursued. It was also added that if your removal were to be deferred for any length of time the charges might be reinstated. Your wife was so informed on the 6th September 1989. The Secretary of State considers that it is quite proper in these circumstances to take account of the existence of these charges and the matters for which you are wanted in South Africa in assessing the credibility of the claims made in support of your asylum application."

That is the first strand towards the decision on credibility. The Secretary of State then went on to deal with the fact that he had achieved promotion in the South African army and had received a congratulatory letter which he had valued sufficiently to keep. The Secretary of State said this:

"In referring to your promotion the Secretary of State was seeking to make the point that he does not consider that your achieving promotion within the South African armed services is consistent with your claim to hold and to have demonstrated anti-apartheid belief."

A second strand is his assessment as to credibility. He then deals with the interview of 19 December which I will come to deal with in more detail. That interview had been strongly criticised by the UKIAS. The Secretary of State says this about it:

"Your representatives were also critical of the report of the interview you had with an immigration officer on 19th December 1989 which was conducted in order to enable the Secretary of State to make an assessment as to whether the anti-apartheid views which you claim to hold were genuinely and conscientiously held. Your representatives said they were 'appalled' that a decision on your asylum application should be taken on the basis of the report of that interview and that they find the 'insinuations' and the opinions expressed in the report 'insulting'. The report of that interview included, of necessity, an expression of subjective opinion of the interviewing officer. The Secretary of State is satisfied that you were given every opportunity at the interview, at other interviews and in representations submitted on your behalf to demonstrate to the Secretary of State's satisfaction that you hold anti-apartheid veiws genuinely and conscientiously. The Secretary of State is not howver satisfied on the basis of all the interviews undertaken in connection with your application and the other evidence available that you have done so."

In all those circumstances the Secretary of State announced that he was not satisfied that the applicant qualified for asylum.

Dealing now with one of the attacks made on his decision, to get it out of the way, it is alleged that the decision refusing asylum was unfair in that the applicant had not been given any proper opportunity of dealing with the allegations of criminal activity in South Africa on which an adverse assessment of his credibility is based.

It will have been seen from the analysis that I have already made of the evidence that the only new matter that emerged in the Secretary of State's decision letter was that the Secretary of State had known since 5 September that there was a warrant out for him in South Africa. In the inquisitorial process the inquisitor is entitled to hold matters back. The applicant had had a fair opportunity of dealing with the question as to why he left. Of course, if he left because he was wanted by the police in connection with the fraud activities that, as the Secretary of State found, was something that he was entitled to take into account in considering the credibility of what this applicant said in relation to apartheid. The question is, did the applicant have a fair opportunity of dealing with the allegations made against him that he was wanted in South Africa? It seems to me quite clear that on all the evidence he did.

I come to the fairness of the interview of 19 December. The applicant submits, and I accept, that this interview was crucial, because it was necessary to assess his credibility in the circumstances in which it was made. Here you have an applicant who comes here and only claims political asylum after he has been detained and after the first interview to discover why he came here. That raises suspicions. Those suspicions are notified to the UKIAS on the basis that he had been wanted for fraud and had come to try and escape prosecution and it was nothing to do with not agreeing with the present apartheid system, which was mentioned for the first time in his October interview. The UKIAS say that they believe him to be credible and ask that there should be a sympathetic interview to establish his credibility.

The first question to be asked is, what is the Secretary of State to do as to the selection of an interviewer when faced with a late claim for asylum after there had been a long interview at which one would have expected the claim for asylum to be raised in some form? Should he use the person who conducted that original interview or should he use another person altogether?

It seems to me that there are clear advantages in using the person who conducted the original interview: first, he or she will be known to the applicant; secondly she will be in a better position to judge as to whether the reason for the late claim is significant or understandable; she will be in a better position to judge consistency than any stranger. It is clearly desirable particularly when the original interviewer had touched on his time in the army and there has been no complaint about apartheid or anything of that matter. It seems to me in order to have an accurate assessment of credibility it is desirable as a general rule that such omissions be explained to the person to whom one would have expected mention of them to have been made on the earlier occasion. It seems to me that such a person is in a better position to judge the real credibility of the person questioned than if two different people conduct the interviews.

If that is right as a general rule, the second question is, was there any reason to disqualify Miss Savill from conducting the second interview known to the Secretary of State before? One has it against the background that there was available to the Secretary of State the notes of the original interview, an interview under caution, each answer initialled by the applicant and it is there to be read. On reading open questions are asked. There is no cross-examination or any sign of harassment. In the UKIAS letter which asked for a further interview there was, first no complaint as to the conduct of the earlier interview nor indeed any attempt to deal with the lateness of the asylum claim or with the question of any inconsistency. It was not suggested by them that there should not be the same interviewer. There were no complaints of omissions from that interview or anything of that kind. It seems to me that there was no reason known to the Secretary of State why Miss Savill should not have conducted that interview.

One then comes to the conduct of the interview itself. In Miss Savill's introduction to the interview she does not mince her words. She says this:

"On 19th December of 1989 I interviewed the subject in Winchester Prison about his anti-apartheid views as requested by Group A. As the PA claim had come somewhat late in the day I had not done the PA interview myself and there were a number of matters of my own which I wanted to clarify. I noted from Mr Weelhouse's minute of 12.12.89 that Group A consider it not inappropriate that I should give a subjective opinion as to whether or not the subject's answers genuinely reflect his views. I can only state plainly that at the end of the interview, which was lengthy and detailed, I believed, as I did at the beginning, that the subject's PA claim was as cynically entered into as was his marriage to a woman twenty years his senior. His sole aim being to avoid removal to South Africa where he faces charges of fraud. He would have been charged with similar offences here, had I not advised the police that he would be removed as an illegal entrant. I now profoundly regret this action as criminal charges in this country might have helped to set this case in its proper perspective."

She then goes on to deal with the conduct of the interview. In the content of the interview one traces the following course. Not surprisingly she asked the applicant why he had not claimed political asylum at the original interview at Southall Police Station. The applicant said that the reason for that was the attitude of Miss Savill and DC Wilkinson was such that he did not feel they would be receptive to it. Furthermore, he thought that he would be allowed to remain on the basis of his British mother although he later learned that this would not avail him. Then she says:

"Detailed examination of the verbatim notes of the interview at Southall shows that there was nothing confrontational about this exchange. The subject admitted illegal entry and the whole affair was very low key." Having read that note I endorse that view. It then continues: "As an officer of fourteen years experience I am well aware of the devices used by illegal entrants to avoid removal and which nationalities can find a reason to claim PA. Therefore, after the formal interview, without openly asking the subject if he wanted to claim PA I gave him the opportunity to do so, but he did not."

Then she asked him why he had not regularised his position as wanting to claim political asylum and as an overstayer earlier. He said he was waiting until he got married. The interviewer regarded that as a non sequitur and complained that he hedged and procrastinated in giving his answers. He was then asked why he had not been aware of apartheid before he went into the army and he said that was because he had not been allowed to watch television except sport and he went into the army naive. The interviewer did not believe him on this. She commented on his two spells in the army coming back to join the military police. She questioned him as to his business activities and there is the passage that I have already read about when he realised the police involvement he fled because his names were on all the documents.

Finally, she came to the detail of his involvement in anti-apartheid organisations. He said this took the form of donations to the ANC. He was evasive in all his answers to these questions, so she thought. He said that he had given something like approximately @160 over three months. He could not name any black contacts. When describing the evils of apartheid he came up with generalities and not specific incidents and he could not satisfy her with chapter and verse as to the genuineness of his feelings about apartheid. Finally, as I have already said, her understanding of the interview was that he admitted that he had to leave the country quickly because of the police investigation of him and it was that and not the camp call up.

In relation to that interview strong criticisms are made by UKIAS in their letter and they say this:

"We are quite frankly appalled that a decision to refuse an application for asylum could be taken on the basis of such a report. We understand that the interview was conducted in order to enable you to make an assessment as to whether Mr Range's views are genuinely and sincerely held. We fail to see how an objective decision could have been reached on the basis of the insinuations and opinions contained in this report. Mr Range did not trust this officer and was unwilling to be interviewed by her. He states he had felt animosity from her at the time of his arrest and was not encouraged by having to undergo a further asylum interview with her. The report does not appear to us to be a record written during the interview. It is not written in the form of question and answer usual at such interviews and Mr Range was not aware of what was written until receiving a copy of the report from us. It is our view that, given the seriousness of the issues, questions and answers should have been written during the interview and then read back to Mr Range. The tone of the report in general is insulting."

I have read what the Secretary of State said about that. The allegation here is essentially one of bias. I approach the matter on the basis that in asylum claims there must be high standards of fairness. It is clear that strong views as to the credibility of this applicant are made, but in each case chapter and verse are given as to the justification for those views. It seems to me that strong views expressed at the judgment stage in themselves are not evidence of any prejudgment of matters. Where chapter and verse is given as it is here then a view can be formed as to whether there was prejudgment or not and the more cogent the reasons for having doubts as to credibility the less the likelihood of any prejudgment. It seems to me that the reasons given as to credit are reasons that would have struck anyone as affecting credit.

It is also clear that the interviewer went into this interview with an adverse provisional view as to the credibility of the applicant. This is probably not surprising and indeed unavoidable in view of the timing of the claim, because it is very surprising if this was a genuine asylum claim that it was not made at the time of the earlier interview or any any time before. Where an interviewer, who is not the final arbiter (because that of course is the Secretary of State,) goes into an interview with an adverse provisional view, it seems to me better that that is admitted so the Secretary of State can take it into account than that it is concealed.

The third comment I would make is that until the report of the interview was received by the United Kingdom Immigrants Advisory Service in February 1991 there had been no complaint at all as to the conduct of the interview or any complaint of hostility.

Lastly, when one is looking at questions of fairness one looks to see whether the questioned person had the opportunity to put forward hs side of matters. One sees that so far from being shut out or discouraged from giving detail, the questioner was trying to get from him chapter and verse as to his anti-apartheid views and anti-apartheid actions, and was unable to get unable to get such detail, finding that the applicant was rambling and evasive in relation to it. With those comments I answer that question: No. First, was it unfair that Miss Savill should have conducted this interview? I asked myself that question? No. Was the interview unfair? It seems to me that first there was ample opportunity for the applicant to comment on it. It is clear that the questioner was trying to get detail from him and was frustrated by his answers. The fact that she was trying to get the detail that would support his case from him is an indication of the fairness of the procedure. He complains that the interview was rushed because she had an appointment for lunch. In fact her appointment for lunch was cancelled because of riots in the prison. The notes, which are extensive, suggest it was not a rushed interview. Her evidence is that it was an hour long. As to the animosity as I have indicated there was no contemporary complaint as to it.

As to the introduction of this man's marriage into the interview it seems to me that that was unfortunate. This was not the subject of the interview nor had the quality of that marriage or the motives for it had any independent examination. The Minister was quite right to ignore the references to that. I do not believe that the interrogator's adverse view as to the reasons for his entering into the marriage shows more than the provisional view as to his credibility that she expresses in the report. I do not think it distorted her eventual conclusion that this man's account was not credible nor do I think that the inclusion of the reference to the marriage was sufficient to vitiate either the conclusions of the interviewer or the Secretary of State's final decision based, as it was not just on this interview but also on the other matters which I have referred to.

In all those circumstances this application fails.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley-Burgess; Treasury Solicitor

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

Index Terms:

Held:

Cases referred to in the Judgment:

Counsel:

Judgment One:

DISPOSITION:

SOLICITORS:

Search Refworld

Countries

Topics