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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nyakonya, R (on the application of) v Immigration Appeal Tribunal & Anor [2002] EWHC 1544 (Admin) (18 July 2002) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2002/1544.html Cite as: [2002] EWHC 1544 (Admin) |
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
THE QUEEN on the application of Yamoyembe Nyakonya | Claimant | |
- and - | ||
THE IMMIGRATION APPEAL TRIBUNAL | 1st Defendant | |
-and – THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | 2nd Defendant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Andrew Hunter (instructed by Treasury Solicitor for the Second Defendant)
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Ouseley:
Human Rights before the Special Adjudicator
“34. As stated above after considering the evidence as whole (and the doubts and problems referred to cumulatively) I found the second appellant to lack credibility as a witness. I had carefully considered the case of Chiver as urged to by Ms Naik, but found that the appellant’s lack of credibility affected the core of her story. She failed to satisfy me that she had the problems in the Democratic Republic of the Congo that she claimed. She failed to satisfy me to the standard of a reasonable degree of likelihood that she had ever been arrested, detained or mistreated. She failed to satisfy me that that she had been a slave to the Rwandan leader or anyone else. She failed to satisfy me that she had been of interest to any of the authorities in the Democratic Republic of the Congo. I was satisfied that she had concocted a story of problems, so as to be able to join the first appellant in the UK.
35. I accepted to the low standard that the second appellant had spent time staying with her sister, the first appellant’s wife, but not that she was in any sense adopted as a part of the first appellant’s family. I saw no reason why the second appellant would be of interest to the authorities in the Democratic Republic of the Congo if she was returned. The first appellant’s wife had been released and, I was satisfied from the evidence, the second appellant had no problems there before leaving.
36. I had not found that the appellant would be persecuted in her home area and therefore no question arose of internal flight or whether or not relocation would be unduly harsh.
37. Having considered the evidence as a whole I found myself not satisfied, to the standard of a reasonable degree of likelihood, that the appellant had previously, or had at the time of the hearing, a well founded fear of persecution for a convention reason if returned to the Democratic Republic of the Congo. She was not a refugee.”
“39. In the case of the second appellant the opposite applies. For the reason given above I considered that there were not substantial grounds for believing that there was a real risk that the second appellant would be ill treated if returned to the Democratic Republic of the Congo. Her Article 3 rights would not be breached.
40. Regarding Article 8 I saw no reason to conclude that there were substantial grounds for believing that there was real risk that the second appellant’s ‘physical and moral integrity’ would be harmed if she was returned. Although she was a single woman I was not satisfied that there were substantial grounds for believing that she did not have family in the Democratic Republic of the Congo to whom she could turn.
41. No evidence was given of the second appellant having significant elements of private life in the UK.
42. It was claimed that she was a part of the family unit in the UK. As stated above I accepted that she had spent time with the first appellant’s wife, her sister, but not that she was in any sense adopted by that family. After her arrival in the UK family life was however established. There were insurmountable obstacles to the whole family going to the Democratic Republic of the Congo and therefore family life would be interfered with if the second appellant was returned.
43. I found that the second appellant’s return was in accordance with the law and was for the legitimate aim of immigration control for the purposes of avoiding disorder. Such controls were necessary in a democratic society. The decision was in my view not disproportionate. I was not satisfied that there was any real family reason why the second appellant needed to be in the UK rather than in the Democratic Republic of the Congo. She had one sister in the UK but 3 brothers and 1 or 2 sisters in the Democratic Republic of the Congo. Her mother was there. I was not satisfied that there were insurmountable obstacles to her joining her family in the Democratic Republic of the Congo. The evidence suggested to me that the second appellant was attempting to join her family in the UK simply out of preference. That I found was not a sufficient reason to override the need for applying normal immigration controls. I therefore found that there was no lack of respect for the second appellant’s family and private life.
44. I had not been specifically urged to find that there would be lack of respect for the second appellant’s home or correspondence nor did I conclude that there would be. I found that return would not breach her Article 8 rights.
45. I was only asked by Ms Naik to make findings regarding Article 3 and Article 8. However I asked myself whether or not any other rights of the second appellant under theHuman Rights Act
would be breached by her return but concluded that they would not be.”
“So far as the human rights claim is concerned, the adjudicator had jurisdiction to deal with this and he was urged to do so by the applicant’s counsel, no objection being raised by the Home Office. He has correctly dealt with this. His conclusions are valid.”
“(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.
(2) For the purposes of this Part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of theHuman Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.”
“(4) The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.”
“(7) A statement required under this section must –
(c) if he claims that an act breached his human rights, include notice of that claim.”
“(3) In considering –
(a) any ground mentioned in section 69, or
(b) any question relating to the appellant’s rights under Article 3 of the Human Rights Convention,
(c) the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4) In considering any other ground, the appellate authority may take into account only evidence –
(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
(b) which relates to relevant facts as at that date.”
“24. As is well known, the Secretary of State has directed himself in many such cases, that he has already had regard to Article 8. In those circumstances, as it seems to us, the adjudicator is entitled and indeed is bound to consider Article 8 because the Secretary of State himself has considered it. There is then nothing to be gained from a fresh application because, as we say, human rights have already been considered, and in such cases, as now, following the decision of the High Court in ex parte Ali [2000] INLR 89, we think that it is clearly appropriate for this issue to be decided. ”
“The notice of decision takes into account the reasons you gave for wishing to enter or remain in the United Kingdom. You are now required to state any reasons you think you have or may have for staying in the United Kingdom which you have not previously disclosed: these will be your “additional grounds”. The decision will be reviewed in the light of what you say. It is in your own interest to now disclose all your grounds for staying in the United Kingdom. But you should not make false claims: do not, for example, apply for asylum unless you have genuine reasons for believing that you qualify in the terms of the 1951 Convention.”
“If you make a valid appeal and if the decision is maintained in the light of your additional grounds, those grounds will form part of your appeal so long as they could have done so if you had disclosed them earlier. In that case you will be told why your additional grounds were not acceptable and given the chance to add to your grounds of appeal before your papers are sent to the adjudicator.”
The renewed grounds of challenge
The challenge to the decision of 22nd May 2002
“(7) Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.
(8) The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion –
(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
(b) the appellant had no other legitimate purpose for making the application.”
“UNHCR is not opposed to the return of failed asylum seekers to the DRC insofar as they have had access to a full and fair hearing. However we would urge that an individual approach be taken on the basis of the circumstances of each case and with regard to the ever changing political and security context of the DRC.
According to information available to UNHCR, agents of the security services frequently interrogate Congolese returning to Kinshasa from abroad, particularly those who are known to have sought asylum. UNHCR is aware of instances where interrogation at the Airport has been followed by arbitrary detention and serious ill treatment by DRC security agencies. If the returnee is not already known to the DRC authorities, there is a strong likelihood that were he to be returned to Kinshasa, his background would be revealed in the course of interrogation upon arrival.”
The identity and circumstances of the individual returnee referred to were not capable of ascertainment from the Report, because it was written in connection with an individual whose circumstances were known to the recipient.
“The CIPU report which your client relies on was considered by the Adjudicator who did not accept your client would be at risk if returned to the DRC.
The Secretary of State disagrees with your client’s contention that she is entitled to a fresh human rights appeal. Your client has already had the benefit of a human rights appeal in which she raised the same arguments that are being raised in your letter dated 8 May 2002. Although the facsimile from the UNCHR dated 20 November 2001 was not available to your client at the time her appeal was heard, the Secretary of State would like to point out that the UNCHR does publish country report information on an ongoing basis, which would have been available to your client at the time of her appeal. Your client mentions that the Secretary of State should not certify her claim under S73 of the 1999 Act because she could not have made her application for leave to remain as a dependent of her brother-in-law before he was granted refugee status. The Secretary of State’s position is that regardless of the timing of your client’s application for leave to remain, the outcome would be unsuccessful. The reasons for this are the fact that your client’s mother and siblings remain in the DRC and your client’s age.
In light of the circumstances of your client’s particular case, the Secretary of State considers that is actions are proportionate to the social need being fulfilled. He does not therefore accept that the decision to proceed with your client’s removal from the United Kingdom would breach Article 3 and/or Article 8.”
MR JUSTICE OUSELEY: For the reasons given in the judgment which has been handed down, the various applications are dismissed.
MR JORRO: My Lord, I appear today, only today, for the claimant in lieu of Miss Naik.
MR JUSTICE OUSELEY: Yes.
MR JORRO: My Lord, my instructions are to apply to you at this stage for permission to appeal only that part of your judgment in which you refused permission to apply for judicial review against the certification made by the Secretary of State in his decision of 22nd May 2002. My understanding from the Civil Procedure Rules is that it is an application for permission to appeal which would then have to go to the Court of Appeal.
MR JUSTICE OUSELEY: Yes. Obviously you are entitled to argue that I have got it wrong, but the problem is I refused you permission on the basis that I did not think your case was arguable.
MR JORRO: Yes, my Lord.
MR JUSTICE OUSELEY: So it would be inconsistent with that approach to accept that you had a reasonable prospect of success on appeal. I am going to refuse you leave, insofar as you need it from me, and you will have to make your application to the Court of Appeal.
MR JORRO: Yes, my Lord.
MR JUSTICE OUSELEY: Any other matters?
MR HUNTER: My Lord, no.
MR JORRO: My Lord, the claimant does have the benefit of a CLS funding certificate. I would ask at this stage merely for an order for detailed assessment.
MR JUSTICE OUSELEY: Yes, detailed assessment.
MR JORRO: Thank you, my Lord.
MR JUSTICE OUSELEY: Thank you very much.