Wembo, R (on the application of) v Secretary of State for Home Department

MR JUSTICE NEWMAN: In this application for judicial review, the claimant challenges a decision of the Secretary of State for the Home Department which was communicated to him by letter dated 25th July 2003. By that letter he was refused asylum support on the grounds that he had not made his claim for asylum as soon as reasonably practicable.

The decision in that regard has been challenged by Mr Fullwood on his behalf today on, essentially, these grounds: namely that the conclusion was irrational and/or failed to pay regard to a relevant consideration.

Section 55 provides:

The claimant's case is that he entered the United Kingdom via an unknown London airport on 4th June 2003. That was a Sunday. He claimed asylum in Manchester on 8th June. The chronology of events is more particularly as follows. He maintained that he had travelled to the Zambia from the Congo on 2nd May. On 3rd May he had left Zambia, flying direct to London, and arrived on the 4th. His case was that he travelled in a group of other Congolese nationals. The size of the group is not disclosed by any of the material. The group was supervised on its arrival by an agent.

I shall need to come back to the account, or accounts, which have been given as to what happened at the airport but for the moment I move on to later events on 4th May. Having arrived at the unknown London airport, he was taken in the group to the Tottenham area where, it is said, the agent believed there was a Congolese community.

It is not in dispute that the claimant has a brother who was, at the material time, living in this country; indeed, had claimed asylum. He lived in Oldham, close to Manchester. The claimant's account is that he asked a Congolese shopkeeper in Tottenham about his brother but that apparently led to little information. However, he was able to find out about his brother from an organisation which operates as a charity or support for Congolese citizens. It is to be noted that this organisation, LOSALO, was not mentioned at any time in the course of the interview. Its part in events, as claimed by the claimant, has been disclosed since.

Having found out about his brother and where he was, it is the claimant's case that he travelled to Oldham on 4th May. The 5th May, the Monday, was a bank holiday. On 6th May, acting on the advice of his brother, he visited the brother's solicitors in Manchester in order to inquire about the availability of advice for him. He was given an appointment on 6th May to attend on 7th May. He then attended on 7th May when he was given advice that he should claim asylum. He did so, but he did not claim until 8th May when he travelled to Liverpool to do so.

The decision letter which is, as it happens, although subsequent representations were made, essentially the decision under challenge, was, as I have indicated, dated 25th July 2003 and it followed screening interviews in the usual way. Perhaps I could mention a short point which has been raised about it, namely that the responsible officer for the particular screening interview, level 2, was one Tracy Moore who, on the evidence before the court, was the author of the letter, but it seems, having regard to her level of seniority within the Home Office, despite the fact that she was the author of it, and indeed, wrote it on 22nd May 2003 or thereabouts, it was sent out after having been seen by a more senior Home Office officer at Croydon. The technical jargon for this operation is, apparently, "quality control". The letter was initialled by the quality controller although, it has to be said, it also had, at the bottom of the letter, "Tracy Moore, NASS Liverpool.

Mr Fullwood, who has relied on the decision of the Court of Appeal in the case of Q, to a significant degree, takes up a small point from that case and submits that there is an irregularity here in that it should have been signed by Tracy Moore, not by the quality controller. If I may say so, his submissions were advanced with considerable persuasion and skill in substantive matters, to which I shall come. This was not one of his best points. In my judgment it does not matter in these circumstances, and is it not out of line with what the Court of Appeal had in mind for this process. Indeed, it is very right and sensible that there should be internal administrative procedures which ensure that there is a measure of supervision and control over the officers who have to carry out these onerous responsibilities.

Let us turn, then, to the decision letter. It is probably convenient if I set it out since it will then enable such points as are made to be made rather more shortly than they might otherwise be:

Mr Fullwood drew my attention, as I have indicated, to the case of R on the application of Q v Secretary of State for the Home Department [2003] EWCA Civ 364 where the Master of the Rolls held the following, and these but summarise the principal points of relevance:

Then by reference to the case of S, D and T v Secretary of State for the Home Department [2003] EWHC 1941, namely the judgment of Maurice Kay J, Mr Fullwood draws attention to the fact that the learned judge observed in his judgment, which went on to the Court of Appeal, that it was likely, to put it at its lowest, that a newly arrived asylum seeker would not see or digest notices at Heathrow airport and that there can be cases where an asylum seeker is genuinely ignorant of the procedure, and there can be cases where an applicant is reliant, to a very substantial extent, upon an agent.

I have said enough about the law, then, to turn to Mr Fullwood's principle ground. The principle ground for advancing the challenge stems from the absence from the decision letter of any reference to the instructions received from the agent. Thus, it is submitted, there has been a failure to pay regard to a relevant factor and the approach of the decision-maker must be regarded as flawed in law. It is said that what has occurred amounts to a disregard of what the Court of Appeal said in Q. For that reason, it is perhaps right that we should remind ourselves of what is in paragraph 40. The Master of the Rolls stated:

It is important to emphasise from that paragraph that what the Court of Appeal are concerned to establish as a principle is that the effect that agents have had on asylum seekers in these situations is a matter which must not be disregarded, or, putting it positively, it is a relevant factor to which regard should be paid. The Court of Appeal are not going any further and, of course, suggesting what weight should be attached to the factor when regard is paid to it, nor to the conclusions which should be drawn. These are all matters which, of course, are for the fact-finder and will depend upon the particular facts of any case.

It may well be that, according to the material which has been given, that the part played by the agent or the facilitator is not, in itself, central to what has occurred, and that may be according to what is said about the role that the agent played and what instructions the agent gave to the asylum seeker. Those are matters to which I must come but to complete the submission of Mr Fullwood, to its full effect, he says, this point is borne out by the absence in the screening interview notes of the question 2.98 which is to the effect: "Why did you follow these instructions?" not being put to the claimant. For convenience, I should add, since it comes into the response of Miss Laing for the Secretary of State, question 2.99 was asked, namely the question: "Did the agent place any pressure on you?" The answer to that was "No" .

Again, in order to lay out the material which does become relevant, the account, of course, as I have already summarised included an account in answer to earlier questions to the effect that the agent was the one who had presented the documents. When he was asked whether the agent had told him how to claim asylum he said, "No, he just told us that his mission was accomplished so he left us alone to do it." That was after he had arrived. In relation to other instructions, in response to another question, he said:

Miss Laing responded to this submission in effect by submitting that, having regard to the answers that had been given and, in particular, to the answer excluding the possibility that any pressure had been brought to bear by the agent, it was not sufficiently relevant for the instructions from the agent to require any particular mention in the decision letter. She submits that the role of the agent in this case, or the possible impact of the agent in this case, was not central to the decision and the reasons given in the decision letter.

In summary, she submits that the matters to which regard was paid can be summarised as follows. The claimant was asked whether he had travelled with a passport in his own name and he said he travelled with a Zambian passport in the name of John. He had said it had someone else's photograph and it was in someone else's name, and that he did not know the full name on the passport. He said that he was not asked any questions by the Immigration Officer who spoke in English and only to the agent, but he then later qualified this by saying the agent presented all the documents to the Immigration Officer with the rest of the group and that the Immigration Officer then called them one by one to confirm that the document belonged to him.

Pausing there, she submits that this is an instance in which, on his account, he was travelling on a Zambian passport and therefore there was no possible suggestion that he could have been on an European Union passport and therefore avoided what, on the evidence, normally occurs when those with other than European Union passports arrive at Immigration. He was maintaining that he was only known in the name of John, or only knew he was travelling in the name of John, and there was a photograph which was not of him, yet he had gone on to add that somehow or other the Immigration Officer had called them one by one.

How the Immigration Officer could have called his name in a way which he would have recognised if he did not know what his name was, other than John, obviously gives rise to queries, and how it is that the Immigration Officer then, whose whole purpose in calling him would have been to check him against the photograph, could have missed the fact that he was not the person in the passport, again, calls for comment and enquiry.

He had been asked whether the agent had told him how to claim asylum and he said, "No, he just told us that his mission was accomplished so he left us alone to do it." He said he came to the United Kingdom specifically to claim asylum and he was asked how he intended to apply for it. He said he was going to do it after speaking to his brother who advised him how to go about it. He said he felt safe and calm on arrival in the UK. It is also open to comment, and the decision letter bears upon it, that although it was his brother upon whom he relied, plainly when he arrived, he did not know where his brother was. He asked questions fortuitously, so the Secretary of State would submit, when he arrived in Tottenham when he was asking the Congolese shopkeeper about his brother, and he gave an explanation explaining how he found his brother which was open for the Secretary of State to consider. But more than that, he said he felt safe and calm on arrival. When the posters issue was put to him, and on being told the importance of applying for asylum was stressed by them, he replied, "No, I was very confused and did not take any notice."

When he was asked why he did not apply to an Immigration Officer for asylum, he said, "Although I had to follow his instructions, I still had some reservations about him because I didn't know him. That is why I relied more on my brother's advice instead of the agent." Asked about what instructions he had been given, he then gave the answer I have already quoted about him coming to the hotel. He was told that the account he was giving appeared implausible and he replied, "I don't know how things work here. We rely more on the chief of delegation; the agent." He was asked why he did not apply for asylum immediately on arrival and his reply was that he did not know he should have done it there and he had it in mind to meet his brother first before doing so. He was warned that his explanation was not credible and he said, "As I said before, I was very confused and did not notice any posters in the airport, and the agent told us to get out first as a group and then we can claim asylum individually."

So it is that Miss Laing submits that when one looks at the content of the decision letter, what one sees is that the Secretary of State, or the decision-maker in this case, has concentrated attention on what is perfectly permissible material, which has to be taken into account in coming to a decision as to whether the account given is credible.

Mr Fullwood has, if I may say so, correctly and with good judgment, not sought to submit to the court that the matters which are referred to in the decision letter are matters which did not give rise to grounds for the Secretary of State, or the decision-maker, reaching a conclusion that the explanation being given was not credible. What he has submitted, and emphasised throughout, is that the decision is flawed because unless one filters into those considerations and the credibility to which the account of why things occurred at the airport in the way that they did, the role of agents, generally, and the measure of control that they can have over an asylum seeker, inadequate consideration is given to all the relevant considerations.

I reject the rigour of the underlying import of that submission. Each case must be considered according to the factors which are before the decision-maker. It is not immaterial to observe, for example, in the context of this case, that the momentum for the complaint that the degree of pressure in this case was particularly relevant, in effect comes from a matter which was not raised in the screening interview, but was only raised subsequently in the representations which were made by solicitors after the decision. It was said then, for the first time, that the agent told the claimant that he was not to talk to anyone in the airport in London and warned him that if he was approached by any of the authorities in the airport and told them he was an asylum seeker, he would be sent right back to the Democratic Republic of the Congo.

The Secretary of State adhered to his original decision in the face of that representation. So far as it is necessary, Miss Laing has indicated that plainly he was entitled to do so, certainly in respect of this particular complaint, it not having been mentioned beforehand. The gravamen of the submissions which Mr Fullwood has very ably presented to the court is contrary to what was in the interview, or any information provided in the interview. Rather than being an intelligent man -- which is undoubtedly the case as he is a man with a degree -- who was calm when he arrived at the airport, he was somebody who was confused and very nervous and that that was highly material to the way in which he behaved.

In my judgment the point, which was perfectly fair for Mr Fullwood to take, simply does not cover the necessary mileage to undermine this decision which quite plainly was reached upon the basis of other factors. In my judgment it was not necessary for the decision-maker, on the basis of the information and the nature of the case as then presented, to make any particular reference to the role of the agent.

I ought to mention one other point which relates to a policy statement made by the Secretary of State for the Home Department which Mr Fullwood prayed in aid in relation to the subsequent course of events. In Hansard on 17th December 2003 Mr Blunkett stated:

As Miss Laing points out, the 72 hours flexibility was conditional upon the person having given an honest appraisal of how they reached the country and how long they had been here. That, of course, in the light of the decision letter, was not an appraisal which had been made of the account given by this particular claimant. The submission which was advanced was advanced upon the basis that if, at least the decision was flawed, so far as the airport is concerned, then it was submitted that what thereafter occurred was within a 72-hour timetable. In accordance with that timetable, it was submitted it was reasonable for an asylum seeker to seek the advice of a solicitor before claiming asylum.

It is unnecessary, in the light of the conclusion to which I firmly come; namely, that the challenge to events at the airport cannot succeed, for me to determine the rectitude of that argument. Suffice it to say that I entertain serious reservations as to how far, as a matter of principle, an asylum seeker can delay the time in which he applies for asylum because of an express intention to take a solicitor's advice before doing so. If that principle was to be accepted, it would fundamentally affect the way in which this legislation has been seen and operated to date. One can never exclude the circumstances of a particular case, and thus nothing I say must be taken as foreclosing that altogether, but the circumstances must be exceptional. As I say, I entertain grave reservations as to whether, on the facts of this case, if we had need to get to the second limb of the challenge, this claimant could have demonstrated that he had claimed asylum at the first reasonable opportunity. He did not follow that which was said to be his first intention; namely, to seek his brother's advice. Had he sought his brother's advice he need not have sought an appointment with solicitors and that would not have delayed his claim for asylum.

It seems to me that on any basis, however one looks at this case, this claimant has not discharged the burden of showing that he made his asylum claim at the first reasonable opportunity and for that reason this challenge must fail. Thank you very much.

MR FULLWOOD: Just one issue in relation to costs. The claimant has the benefit of a CLS public funding certificate.

MR JUSTICE NEWMAN: You would, no doubt, like a detailed assessment order which you may have. Thank you both very much.