QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF PATRICK SYLVAIN KIHUYU WEMBO | (CLAIMANT) | |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT | (DEFENDANT) |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS E LAING (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
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"The Secretary of State may not provide or arrange for the provision of support for a person under a provision mentioned in (2) if --
(a) the person makes a claim for asylum which is recorded by the Secretary of State; and
(b) the Secretary of State is not satisfied that the claim is made as soon as reasonably practicable after the person's arrival in the United Kingdom."
The provisions to which references are made include, of course, the provisions for support for asylum seekers in the Immigration and Asylum Act 1999.
"You claim you arrived in the United Kingdom on 4th May 2003 and that you did not speak to an Immigration Officer because you do not speak English. You claim that the agent you travelled with presented the passports to the Immigration Officer and spoke to him in English, then you were allowed through. The Secretary of State does not consider your claim that you were allowed to pass Immigration Control without being asked detailed questions by an Immigration Office to be plausible. He is aware that everyone who enters the United Kingdom is seen by the Immigration Officer on arrival, in person, and is questioned about their journey to the United Kingdom, what their intentions are, and the duration of their stay. The Secretary of State considers you have failed to substantial your claim of how you entered, where you entered, and through which port you entered the United Kingdom.
You claim that you and the group you were travelling with were called one at a time by the Immigration Officer to confirm that your passport belonged to you. The Secretary of State considers that the Immigration Officer would have questioned you at this point, particularly if you and the group you were travelling with were called up by the Immigration Officer one at a time. You also claim that the passport you were using to travel with to the United Kingdom did not contain your photograph. The Secretary of State considers that if the Immigration Officer was checking if this passport belonged to you, then he believes that he would have noticed that there was a different photograph in your passport and would therefore have noticed that this passport did not belong to you.
You claim upon arrival you felt safe and calm and that you were coming to the United Kingdom to claim asylum. The Secretary of State also notes that you claim you did not see the posters stressing the importance of claiming asylum on arrival because you claim you were very confused and did not take much notice. The Secretary of State does not consider your claim to be believable. He is aware that these posters are written in numerous languages at the airport and he considers a genuine asylum seeker would have approached Immigration Officials at the airport to inquire about the procedure involved in claiming asylum. He does not accept your explanation that you were 'very confused' and 'did not take any notice'. He considers that your failure to claim at the airport undermines your credibility.
You claim you travelled to the United Kingdom using a Zambian passport under the name of 'John' and that there was someone else's photograph in this passport. You claim that the agent submitted the passport to the immigration control and retained the passports afterwards. However, the Secretary of State considers that you would have been aware of the full name in the passport you were using to travel to the UK. He considers it impossible to use a passport at immigration and airline checking desks, unaware of the full name you were travelling under. Furthermore, he considers it highly improbable that the agent would allow you to travel, being unaware of the full name you were assuming, as this would considerably increase your likelihood of detection.
The Secretary of State considers your inability to give such salient details to be an attempt to deceive him as to when, where and how you travelled to the United Kingdom. He considers your failure to be forthcoming with the truthful answers to questions to undermine the credibility of your claim.
You claim after arriving in the United Kingdom the agent took you to the Tottenham area and left you with a Congolese shopkeeper. You claim that you asked people there for your brother's address or telephone number because you claim your brother is quite a well-known person in the Congo and you claim you then rang your brother, telling him that you were in London. The Secretary of State considers it highly unlikely you would have been able to obtain your brother's telephone number in Oldham, simply by asking other Congolese people in a shop in Tottenham, even if your brother was quite well-known in the Congo. The Secretary of State considers that you have materially embellished your account, concealing material facts. He considers your actions have seriously undermined your credibility to be a genuine asylum seeker."
"(1) The burden of proof is on the applicant to show that it was not reasonably practicable to have made the asylum claim sooner.
(2) To disregard the effect that agents have upon their charges would be unrealistic and unjust. [I shall come back to that as it is really the substance of the challenge, at paragraph 40 of the judgment].
(3) When considering whether an asylum seeker claimed asylum as soon as reasonably practicable, it is right to have regard to the effect of anything that the asylum seeker may have been told by his or her facilitator."
Then other points which do not really arise, but for completeness I will mention them:
"When interviewing the claimant, at the very least the claimant must be given the chance to rebut a suggestion of incredibility, and to explain if he can."
"We do not consider that an agent who arranges by generally fraudulent means for an asylum seeker to come to this country is, as a matter of legal principle, to be equated with a solicitor or professional advisor, so as to preclude the asylum seeker from relying upon inaccurate and self-interested advice or information given by agents when claiming that it is not reasonably practicable to claim asylum at the port of entry.
Mr Alexander Buchan, the Chief Executive of Refugee Action put in evidence Home Office research which demonstrates the degree of control that some facilitators have over their charges. The Attorney General recognised the possibility of duress by threats against the families of asylum seekers, and this phenomenon is recorded in the Home Office research. It is also clear that some asylum seekers are so much under the influence of the agents who are shepherding them into the country, that they cannot be criticised for accepting implicitly what they are told by them. There is no valid comparison between agents of this kind whose interests at the point of entry may well be in serious conflict with those of the asylum seekers and professional advisors. To disregard the effect they may have on their charges would be both unrealistic and unjust."
"When he came to collect me from my hotel, he told me you will travel with me using the name John in this passport and he told me as you do not speak English do not say anything, leave everything to me and you will be free to do anything you want after leaving the airport in London."
"As well taking measures to ensure that people have to present their case honestly, retain their documents and tell the truth about their country of origin, we need to be sensitive in understanding the difficulties that some asylum seekers face when they reach the country. The process and legality of section 55 of the Nationality Immigration Asylum Act 2002 is upheld by the courts and we intend to respond to that through the Bill. The measures that we are taking, following discussions with refugee organisations who have asked we be more flexible in assisting people who have been in the country for any length of time. That is why my honourable friend, the Minister for Citizenship and Immigration, will announce today that he will provide for those who make the decision the necessary adjustment and advice to allow them, subject to people giving a honesty appraisal of how they reach the country and how long they have been here, 72 hours rather than the current 24 hours in relation to people claiming asylum and being entitled to benefit."