QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JEAN SHANGU UTSHUDIEMA||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
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MISS L GIOVANNETTI (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
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"15. The lack of credibility regarding the central issues in this claim have caused me to doubt the truthfulness of the appellant. In any event, the substantial lack of credibility in the claim for asylum leads to me conclude that large parts of the claim is entirely fabricated.
16. The appellant has not met the standard of proof required that establishes he has a well founded fear of persecution due to an imputed political opinion associated with the MPR. The appellant's testimony on this matter is not credible.
17. The appeal is dismissed.
18. However, given the fact that the Secretary of State does not dispute the mixed ethnicity of the appellant and the decision of the Home Office afforded to Dannhy Utshudiema Omba, the appellant's brother, consideration for exceptional leave to remain must also be available to the appellant.
19. I strongly recommend that the same terms and conditions to remain in the UK be given to the appellant as to his brother."
"The Secretary of State is not bound to accept a recommendation made when an appeal is dismissed or withdrawn. Such recommendations should be acted upon only where the determination and/or the recommendation discloses clear exceptional compassionate circumstances which have not previously been considered and would warrant the exercise of the Secretary of State's discretion outside the Immigration Rules."
The Secretary of State decided that the mere grant of exceptional leave to remain to a sibling, absent any evidence of dependency or other extraneous circumstances, was not a reason to think that there were exceptional compassionate circumstances for applying that policy. It is submitted there can be no criticism as a matter of law of that decision.