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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mwaura & Ors v Secretary Of State For Home Department [2002] EWCA Civ 1664 (15 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1664.html
Cite as: [2002] EWCA Civ 1664
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME
Strand London, WC2 Tuesday, 15 October 2002 |
||
B e f o r e :
LORD JUSTICE BUXTON
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| MWAURA and Others | Applicant | |
| -v- | ||
| SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |
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Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
The Respondent was not represented and did not attend
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- LORD JUSTICE KENNEDY: This is a renewed application for permission to appeal from the decision of the Immigration Appeal Tribunal of which the parties received notification on 7 June 2002. Issues arose in relation to the timing of this renewed application and the documentation to be placed before this court with which we have already dealt, in relation to which it is unnecessary to say more.
- I turn to the substantive issues presented to us by Miss Naik. Mr Bonniface Mwaura, who is now 27 years of age, is a native of Kenya and so is his wife, Tabitha Wanjuku. They have two children, the eldest of whom, Richard Waihro Mwaura, was born on 8 October 98. In December 1995 Mr Mwaura came to the United Kingdom as a student, and a year later in December 1996 he claimed political asylum. His wife came to the United Kingdom in March 1996 and at once claimed political asylum. Her application was refused on 3rd June 1997 and her appeal to a special adjudicator was dismissed in March 1998. In July 1999 solicitors acting on her behalf asked that her position and that of her son, who had been born on 8 October 1998, should be considered in their capacity as dependants of Mr Mwaura whom she married on 10 July 1999. On 31st January 2001 the application of Mr Mwaura for political asylum was refused together with that of his son. Thus on 17 July 2001 the appeal of the family unit, if I can so express it, was considered by the special adjudicator who gave his decision on 9 November 2001. It was from the decision of the special adjudicator that there was an appeal to the Immigration Appeal Tribunal heard on 13 March 2002, and the decision was given on 7 June 2002 dismissing the appeals.
- As to what happened in Kenya before Mr Mwaura came to the United Kingdom, he did not contend that he was personally involved in politics but he said that his mother was an active supporter of Safina, an opposition party, and that his late father and two of his uncles were politically active. He has had no contact with his mother since 1996 and the uncles are in the United States of America. His claim that he feared that if returned he would suffer persecution for a Convention reason rested largely on his involvement in this country with the Kenyan Movement for Democracy and Justice (KMDJ).
- The claim of his wife was more closely related to her time in Kenya. She claimed that in September 1995, because of her involvement with Safina, she was arrested and detained for 32 days. When allowed her liberty she fled to the United Kingdom because she heard that she would be charged.
- Having listened to the evidence, the special adjudicator was not impressed. He was not happy with Mr Mwaura's credibility and he concluded that his relatives had no significant political profile, and furthermore that he joined KMDJ to enhance his prospects of gaining political asylum. The conclusion in relation to his wife was that if she did suffer ill-treatment in 1995 that was now a long time ago and, with a new married name, if she chose to adopt it, she was not seriously at risk were she to be returned to Kenya.
- The Immigration Appeal Tribunal found some fault with the special adjudicator's assessment of credibility but not such as to impact on the ultimate findings. It found that if returned there would be a remote risk to Mr Mwaura and his wife and that as the children were of the age that they are they could, in the circumstances, be expected to be returned with their parents.
- In those circumstances Miss Naik submits to us that the Immigration Appeal Tribunal failed properly to engage with the expert evidence laid before it, as it had been laid before the special adjudicator, in relation to the situation in Kenya. But it is clear from what was said both by the special adjudicator and by the Immigration Appeal Tribunal that that expert evidence was specifically addressed. Furthermore, she submits that so far as the children in particular are concerned, the Immigration Appeal Tribunal was wrong to find, as they put it, that Article 8 was not invoked. Article 8 had, in reality, no significant part to play in the circumstances of this case, having regard to the necessity for the United Kingdom to exercise immigration control, and therefore the Immigration Appeal Tribunal was entirely right, as it seems to me, to treat it as a matter of no significance. It, like the special adjudicator, was charged with the fact finding exercise of discovering properly, on the evidence, where the risk lies and evaluating that risk.
- Having looked at these determinations, I, for my part, cannot find any reason to conclude that there was an error in law in the approach of the Immigration Appeal Tribunal.
- Accordingly, I would dismiss this renewed application.
- LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord. As my Lord has said, all the issues in this case were ones of assessment, both of facts and of the implications of those facts. They were all matters uniquely for the adjudicator and for the Immigration Appeal Tribunal. Neither tribunal committed or came near to committing any error of law in their approach to the case. In those circumstances applications to this court are quite hopeless, and I would dispose of the matter in the way my Lord has proposed.