NT (Togo) v Secretary of State for the Home Department

This is a renewed application for permission to appeal following refusal by Sir Henry Brooke who considered, and I agree, that this was not a Mibanga ([2005] EWCA Civ 367) case, that is to say one where the appellant has been disbelieved before and without reference to the medical evidence and other corroborative material, and the latter forms of evidence are then rejected separately as immaterial. In this case the immigration judge has been careful not to fall in to such an error (see paragraphs 18 to 19, 20 to 21 and 22 of the decision).

One thing in the decision which does, however, give concern is the application by the immigration judge of section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. This, as summarised by the immigration judge, requires him to take into account when assessing the credibility of the appellant’s claim not only her failure to take the opportunity to apply for asylum in France but her production to the immigration officer on arrival here of a false French passport as if it were a valid passport. This the immigration judge did take into account as reinforcing his conclusion that the applicant was not telling him the truth. I will come to this in a moment.

It seems to me that in this case, and it is not the first such case, there is a serious question of law about the application of section 8 to a case such as this. It is one thing to recognise that an applicant could have applied for asylum in France and to hold against her, if there was no good explanation for it, the fact that she did not. It does not require legislation to tell an immigration judge that that may be material. It is arguably another thing to hold against an individual, not because it has any intrinsic weight but by command of law, the fact that she has come to this country using a false passport when, if her story is correct, she would have had no other way of getting here. To be driven by legislation to hold something like that against an applicant is a constitutional anomaly in relation to the independence of a fact finding judicial tribunal; and in my judgment a question arises as to whether, if the use of a false passport seems to have been ineluctable, any weight or any more than token weight is required by section 8 to be given to that fact.

Unfortunately for the applicant many of the fact findings have to be lived with. Making them is the function of the Asylum and Immigration Tribunal, and disagreeing with them is no part of this court’s function. But this decision seems to me arguably -- I put it no higher -- to go further than simply making adverse fact findings. On one view it pours a cascade of disbelief upon the applicant’s by no means obviously implausible account of the violence meted out to her and others in a student demonstration of 30 April 2004. I quote two paragraphs of the decision paragraph 10:

“Finally, on 30 April 2004, a further major demonstration was organised, and it is this event which forms the main basis of the appellant’s claim. At the demonstration, the appellant was seated near the podium, taking notes. Soldiers arrived and began shooting at the students, and letting off tear gas canisters. The appellant was seized by three men and dragged out of the meeting. She was kicked in the face and the lower abdomen and her clothes were torn. She bled severely as a result of the kick to her stomach, and lost consciousness. When she came to, she found that she was lying among dead and injured students. The appellant was able to escape, despite her weakness, the soldiers’ attention being diverted by the ongoing demonstration, students having by this time set fire to military and other vehicles.”

That is the account given by the applicant of it. The immigration judge said this at paragraph 17:

“The main event relied on by the appellant is the violence on 30 April 2004. The detention in 2001, if it occurred, was three years earlier and, as originally described by the appellant, of limited gravity, being a 24-hour detention in poor conditions followed by release at the request of her brother. It can therefore have [played] little part in the appellant’s decision to leave Togo. The appellant’s account of the demonstration is implausible. Despite being a new student and a recent recruit to G5, the appellant claims to have held a senior secretarial position, giving her a prominent place at the demonstration. Notwithstanding this claim, when the demonstration was broken up, the appellant was not shot or arrested, as she claims many others were, but merely removed from the venue and kicked, before being allowed to escape. If the appellant was a high profile G5 member, such as might now cause her to be known to and of adverse interest to the authorities, I do not accept that she would have been allowed to escape in this way. The appellant surmises that the authorities thought she was dead because of the bleeding and her unconsciousness, but if she had had a high profile role at the demonstration, as she claims, I do not think they would have abandoned her without first checking.”

There is no indication in the determination that the Home Office presenting officer, who had access to in-country and historic material about Togo, had suggested that this demonstration had not occurred or that it had not been violently broken up by troops who had used firearms; nor, therefore, that students had been left dead and wounded. With the greatest respect, one would need reasons before it could be said to be implausible that the applicant had been beaten up and left for dead. One would also want to know what there was about the evidence that gave her a “senior secretarial position” rather than simply being a member of the organisation seated near the podium and taking notes. One would want to know why it has to be inferred had she been of interest she would have been killed. One would want to know how it comes to be said that she was “allowed” to escape. In other words this paragraph may seem to an objective reader to have gone beyond fact finding and moved towards factitious reasons for disbelieving everything the applicant has said. If -- and I make no judgment about it; that is for others -- if that is thought to be the case then it would be arguable that this applicant has not had a fair hearing.

There are a number of other elements to the case which for reasons I have given, are not themselves open to legal challenge. But it seems to me at least arguable that if paragraph 17 it taken away as untenably reasoned, the space that is left is not necessarily filled by the other findings. This issue, together with the section 8 issue, seems to me to furnish grounds which merit the attention of this court and which have a more than fanciful chance of success as grounds of appeal.

The applicant has had the assistance of solicitors and counsel in the past; and indeed has used as her grounds of appeal in this court the grounds settled by counsel for her appeal to the Asylum and Immigration Tribunal. The appeal for which I would give leave would of course proceed upon these grounds, as I have indicated, and I hope that they will form part of an amended set of grounds of appeal. Whether they do so depends upon whether the applicant can now find legal assistance again. She will be very anxious to do so as she has run out of money and simply has not been able to afford a lawyer. If, as I would hope, the grant of permission enables her to reinstruct lawyers I would expect that, if my Lord agrees, what features in this judgment will be reflected in the amended grounds of appeal. In any event it is upon those grounds that this applicant may come back in due course before the court.

This is not an easy case but, having listened to what my Lord has said in his judgment, I too am content that the matter will proceed on the basis indicated by him.