Mungu v Secretary of State for the Home Department [2003] EWCA Civ 360

Case No C1/2002/2006[2003] EWCA Civ 360
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 20 February 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE LATHAM
MR JUSTICE MORLAND
Between
MARIE FRANCE WETSHI MUNGUAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS S HARRISON appeared for Appellant/ClaimantMS L GIOVANNETTI appeared for Defendant/Respondent
J U D G M E N T(As Approved by the Court)
Crown copyright©

LORD JUSTICE PILL:

Lord

Justice Latham will give the first judgment.

LORD JUSTICE LATHAM:

[2]The applicant is a citizen of the Democratic Republic of Congo, formerly Zaire, who was born on 31 July 1968. She arrived in this country on 15 December 1997 and sought asylum. Her asylum claim was refused by the respondent on 15 January 2001. She appealed to an adjudicator who refused her appeal on 12 February 2002. She appealed to the Immigration Appeal Tribunal with leave of the Tribunal; but her appeal was dismissed on 25 June 2002. She now appeals to this court with the permission of this court.[3]Meanwhile, Mr Mukoka to whom she claimed to be married, arrived in the United Kingdom from the Democratic Republic of Congo on 2 April 1998, and also claimed asylum. On arrival, he asserted that the appellant was his wife. The Refugee Arrivals Project put him in touch with the appellant on 4 April 1998. They have lived together ever since. Mr Mukoka's application for asylum was refused on 15 January 2001. But he was granted four years exceptional leave to remain on 9 May 2001 until 15 March 2005. The appellant then applied for leave to remain on the same basis as Mr Mukoka. On 27 November 2001, leave was refused on the ground that an identification card which she had produced when she first entered the country, which had originally been accepted as genuine, was in fact a forgery.[4]Her claim for asylum was essentially based on her relationship with Mr Mukoka. Her evidence to the adjudicator was that she had met Mr Mukoka in February 1994 when her husband was the bodyguard to one of President Mubuto's sons, Kongolu Mobuto. In July 1997, soldiers came to their house. They pointed a gun at her husband's head and told him that they would shoot him if he did not tell them the truth. They asked where Kongolu Mobuto was. They did not believe him when he said he did not know. They tortured him, beating him with a whip. They slapped her on the face and kicked her in the stomach and then left. She and Mr Mukoka feared that if the soldiers returned, they would be shot. They went into hiding at her cousin's house in Kinshasa. On 10 September 1997, Mr Mukoka went out for a walk saying that he was going to buy some food. He did not return. She was later told that he had been arrested.[5]She then started to think about leaving the country. Her brother-in-law, who worked at the airport, helped her to escape. He bribed officers who were working at the airport; he arranged for her passport, which he did not give to her, but to an agent who was to accompany her to the United Kingdom. She entered the United Kingdom on that passport, but handed it back to the agent. When she was interviewed in relation to her asylum claim, the only document she had with her was the identity card which was retained by the immigration authorities. Her fear was that she was wanted by the authorities when she left Zaire and would be arrested on her return.[6]Mr Mukoka gave evidence in support of her appeal. He confirmed that they were married. He said that he had been visited twice by the army. On the second occasion, two men had come to the house. They beat him with their belts in the presence of the appellant. He saw her being hit in the stomach with a rifle butt. He said that the reason why the authorities were interested in him was that he still had some documents which he said that the army had taken. The army would still have an interest in him because they wanted to know more about what he did. He had been involved in a freight business and a money exchange business.[7]The adjudicator did not believe the appellant. He did not consider that there was any reasonable likelihood that the appellant's identity card was genuine. He did not believe that there was any serious possibility that the appellant was married to Mr Mukoka. He considered that whilst it might not be surprising if she had left her marriage certificate behind had she left home in the way she described, nonetheless it was surprising that she made no attempts to contact her sister or her brother-in-law to confirm either the marriage or the circumstances in which she left the Democratic Republic of Congo. He noted that there were conflicting accounts of what had happened to the appellant and Mr Mukoka in July 1997. He had the gravest doubts about her account of Mr Mukoka's arrest. Her evidence he described as vague in relation to an event which was clearly worrying and critical to her decision to leave. He was concerned that she nonetheless remained for a further three months in the Democratic Republic of Congo before leaving. Finally, he noted as "a very striking feature of this case" that he was told nothing about what happened to Mr Mukoka when he was arrested, nor anything about the circumstances of his release.[8]As far as the identification card was concerned, he acknowledged that the only material before him was what he described as a "poor" photocopy. Nevertheless, he was satisfied there were features readily apparent from the photocopy which pointed to the fact that it was a forgery. It had apparently been issued in 1984. Her "marriage" was noted on the document. However, the whole of the document appeared to have been written at the same time. Stapled to the document were photographs of the appellant and Mr Mukoka. But the photograph of the appellant overlapped that of Mr Mukoka which was surprising if the document had been amended to include Mr Mukoka after their marriage. He also noted that there were no official stamps or other indications of the document's authenticity. He described the appellant as being "particularly evasive" when asked about the document.[9]His conclusions were:
"33. The cumulative effect of all of this, including the evidence about the identity card and marriage, is that I do not believe that the appellant left Zaire for the reasons that she gave or that she fears returning to the DRC for any of the reasons she gave. Some of the matters to which I have referred on their own might seem inconsequential or of minor importance only. However, when taken together with the other short comings in her evidence, they result in my rejecting the appellant's evidence. 34. If I had accepted the appellant's evidence, I should not have found that her fears were well-founded. It is now nearly five years since the Mobutu regime collapsed. Although conditions are undoubtedly turbulent in the DRC and although scant regard may be paid to human rights, my attention was not drawn to any evidence to suggest that supporters of the Mabutu regime are still being investigated by the current regime. Still less that there remains any interest in the minor official such as personal bodyguards of the Mobutu family....."
[10]He then dealt with the appellant's claim that to return her to the Democratic Republic of Congo would involve a breach of Article 8 of the European Convention on Human Rights. He was satisfied that the appellant and Mr Mukoka had established a family life in the United Kingdom. In relation to this claim, he directed himself in accordance with the decision of this court in Mahmood [2001] Imm AR 229. Consonant with his conclusion as to the likelihood of there being any interest in minor officials of the Mobutu regime, he was not satisfied that there was any reason why Mr Mukoka could not return to the Democratic Republic of Congo in safety with the appellant if he wished to maintain his family life with her. Accordingly, there was no breach of Article 8. In any event he was satisfied that the maintenance of strict immigration control in relation to the appellant was not a disproportionate interference with her family life.[11]The Immigration Appeal Tribunal concluded that the adjudicator had been entitled, on the evidence before him, to determine that the appellant had not discharged the burden of proof to show that she had a well-founded fear of being persecuted for a Convention reason were she to be returned to the Democratic Republic of Congo. It also rejected the argument that the adjudicator was wrong to hold that there would be no breach of Article 8 were the applicant to be returned to the Democratic Republic of Congo, it considered that were she to be returned, there would be no obstacle in her being able to apply for leave to enter the United Kingdom to join her husband.[12]Miss Harrison, who has appeared before us on behalf of the appellant, puts forward three grounds upon which she submits that the decision of the adjudicator was wrong in law. The first ground is that he failed to direct himself properly, that the evidential burden of establishing that the identification card was not genuine was on the Secretary of State. Secondly, she submits that the adjudicator, when concluding as he did, that there was no bar to Mr Mukoka returning to the Democratic Republic of Congo failed to take into consideration the fact that Mr Mukoka had exceptional leave to remain in this country which should have resulted in his either asking the Secretary of State for the reasons for the grant of exceptional leave to remain, or should have resulted in his inferring from the fact that exceptional leave to remain had been granted, that there was indeed a real barrier to Mr Mukoka returning to the Democratic Republic of Congo. Finally, she submits that the adjudicator was wrong to conclude that there would be no breach of Article 8 were the appellant to be removed to the Democratic Republic of Congo.[13]In relation to the first submission, she has directed our attention to the authority of this court in R v Immigration Appeal Tribunal ex parte Shen [2000] INLR 389, where Dyson LJ said in relation to a case where there were allegations that documents were forgeries:
"20. Mr Kadri submitted that, as a matter of law, since the Secretary of State was contending that these documents were forgeries, the burden of proving this fell on the Secretary of State. Mr Ward, for whose helpful submissions on behalf of the Secretary of State I am grateful, does not take issue with that. There are now three decisions of the Immigration Appeal Tribunal which support that proposition, which is plainly right as a matter of general principle."
[14]She has also referred us to Schedule 4, to the Immigration and Asylum Act 1999, which in paragraph 6 deals with the question of hearings in private where an allegation is made that a document is a forgery. The purpose of the paragraph is to enable rules to make provision for any hearing effectively of expert or other similar evidence identifying that a document is a forgery to take place in private, so that the way in which the forgery had been detected does not become public knowledge.

(b) which provides as follows:

"If it appears to the adjudicator or Tribunal that the allegation is made out, for such further period as appears necessary in order to ensure that those matters can be presented to the adjudicator or Tribunal without any disclosure being directly or indirectly made contrary to the public interest."
[15]She submits that it was clearly Parliament's approach that where an allegation of forgery was made, it was for the Secretary of State to make out the allegation as the phraseology of sub-paragraph 6(2) provides. She submits that if one returns to the wording of the adjudicator's decision in relation to the identification card it is apparent, according to her, that the adjudicator reversed the burden of proof so as to impose the burden on the appellant. The words about which she complains are in paragraph 25 where the adjudicator said:
"I am satisfied that there is no reasonable likelihood that the appellant's identity card is genuine. It purports to have been issued in 1984 well before she met Mr Mukoka, let alone married him. It is all too clear that it was completed in the same hand and in the same pen."
[16]Accordingly, she submits the adjudicator must have, in effect, misdirected himself as to the appropriate burden of proof in circumstances such as this. I accept that where an apparently genuine document is said to be a forgery, there will inevitably and in practice be an evidential burden on the Secretary of State to undermine the authenticity of the document. That accords with the general approach any court or tribunal will adopt to the resolution of such a factual issue. But it seems to me that it is important to bear in mind the exercise on which the court or tribunal in question is engaged. In the case of this adjudicator, he was concerned to determine whether or not the appellant had established on the evidence an entitlement to remain in this country, either under the Geneva Convention or on the basis that her removal would amount to a breach of Article 8 of the European Convention on Human Rights.[17]In carrying out that exercise, the proper approach has been considered by this court in Zarandy v Secretary of State for the Home Department [2002] EWCA Civ 153. In that case the court considered an earlier decision of this court in R v Immigration Appeal Tribunal ex parte Davila-Puga [2001] EWCA Civ 931, and said:
"13. That case [Davila-Puga] is ample authority for the proposition that a claimant's case, which will often, as here, consist in part of oral assertions, in part of documents which are placed in front of the appellate authorities and in part of background material relating to the country in question, must be looked at in the round so that the appellate authorities may decide whether the claimant has proved his case that he was a refugee to the appropriate standard. As Sedley LJ said in Karanakeran v Secretary of State for the Home Department, [2000] 3 All ER 449: "
Everything capable of having a bearing has to be given the weight, great or little, due to it ... so far as they can be established, are signposts on the road to a conclusion." 14. [Counsel] who appeared on behalf of the appellant, made submissions which at one point seemed to suggest that it was his contention that if any piece of paper was produced by a claimant it must be taken as evidencing what was asserted in that piece of paper unless either there was evidence from elsewhere that the paper was not what it appeared to be or alternatively had been improperly procured or there was evidence appearing from the face of the document that it was unreliable. I do not accept that proposition. The adjudicator must look at all of the material in the round and see whether he is persuaded of the claim."[18]That directs the tribunal's attention to the proper issue. The question is whether the document can be relied on in support of the appellant's claim in the light of all the evidence. The Immigration Appeal Tribunal, in my judgment, correctly identified this as the issue in Tanveer Ahmed [2002] UK IAT 00439. That is a decision of the Immigration Appeal Tribunal presided over by Collins J. The tribunal said as follows: "34 It is sometimes argued before Adjudicators or the Tribunal that if the Home Office alleges that a document relied on by an individual claimant is a forgery and the Home Office fails to establish this on the balance of probabilities, or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. There is no legal justification for such an argument, which is manifestly incorrect, given that whether the document is a forgery is not the question at issue. The only question is where the document is one upon which reliance should properly be placed. 35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing)".[19]In the present case the adjudicator did just that. It is important to note that the document was not an apparently genuine document. It had patent flaws. Albeit a copy, the adjudicator has given cogent reasons why, even from that copy, he was able to conclude that the document cannot be authentic. In those circumstances, we consider that the adjudicator was entitled to approach the issues arising out of the presentation of that document in the way that he did and to come to the conclusion that he did, for in my judgment, good and proper reasons.[20]Turning to the second ground put forward by Miss Harrison, it is to be remembered that the adjudicator when he considered the evidence of Mr Mukoka was not impressed by the fact that no details were given by Mr Mukoka about the circumstances of his arrest or his release. He then said at paragraph 32:
"While Mr Mukoka has been granted exceptional leave to remain here, I was not told why it had been granted. It is, however, clear that his claim for asylum has been rejected. It therefore adds nothing to the claim."
[21]It seems to me that a fair reading of that passage indicates that the adjudicator had come to the conclusion that the fact that Mr Mukoka had exceptional leave to remain did not, in fact, assist to establish that he had any fear of returning to the Democratic Republic of the Congo. Miss Harrison points out that the reason for the grant of exceptional leave to remain was peculiarly within the knowledge of the Secretary of State. Accordingly, it was unfair for the adjudicator to come to a conclusion that the fact of the exceptional leave to remain had no effect on the claim without knowing what the basis of the grant of that exceptional leave to remain had been. She has directed our attention to the background material from which she submits that it could be inferred that Mr Mukoka had been considered by the Secretary of State to fall into the category of those who might be at risk were they to be returned to the Democratic Republic of the Congo, certainly for the time being. She has also referred us to the published policy relating to the grant of exceptional leave to remain which provides that in certain circumstances the Secretary of State would grant such leave. Those circumstances include circumstances where there are substantial grounds for believing that someone would suffer a serious and wholly disproportionate punishment for a criminal offence were he or she to be returned, and where there is credible medical evidence that a return due to the medical facilities in the country would reduce the applicant's life expectancy. Either of those grounds would appear to apply in the present case. The Secretary of State has indicated that he will also give exception leave to remain where there are compassionate or humanitarian reasons for not requiring the person to return to their country of origin or habitual residence. Miss Harrison submits that it must be inferred that the Secretary of State had come to that conclusion at the time that he made the decision that he did.[22]Miss Giovannetti, on behalf of the respondent, however points out that the question before the adjudicator was one which had to be determined on the basis on the evidence before him. The evidence before him was clearly to the effect that, as he saw it, Mr Mukoka did not fit into any category of person who had been identified in the country assessment as being a person who was at any risk were he to be returned to the Democratic Republic of the Congo. Mr Mukoka had, furthermore, failed to give to the adjudicator any material in his evidence to indicate what basis it could be said that he would himself fear any harm, were he to be returned to the Democratic Republic of the Congo, and, in particular, had failed to identify the circumstances of his arrest, the circumstances of his release, and indeed the circumstances of his leaving Zaire to come to this country.[23]Bearing in mind the burden of proof, it seems to me that the adjudicator was, in those circumstances, perfectly entitled to take the view that he was in a position to come to a conclusion about the extent to which Mr Mukoka would indeed be in any way at risk were he to be returned to the Congo, and he made a clear factual finding that he would not. It seems to me that Miss Giovannetti's submissions in this respect are correct. It was for the adjudicator to make up his mind on the evidence that he heard; and he was entitled to come to the conclusion that he did on the material before him. The circumstances in which the Secretary of State may have granted exceptional leave to remain was not a matter which he had, it seems to me, to take into account anymore than he in fact did.[24]The conclusion, therefore, is that the adjudicator was entitled to find that there was no bar to Mr Mukoka returning to the Democratic Republic of the Congo. It follows that there is no basis upon which Miss Harrison can succeed on her third ground of appeal. Article 8 does not require that the family life in question is to be enjoyed in this country. If the appellant is returned to the Democratic Republic of the Congo, Mr Mukoka can, on the findings of the adjudicator, return with her. Accordingly, the decision does not interfere with her family life.[25]In those circumstances, it seems to me that the three grounds upon which Miss Harrison, if I may say so, has so ably put forward in her submissions, fail and this appeal must be dismissed.

MR JUSTICE MORLAND: I agree.

LORD JUSTICE PILL: I also agree.

[28]No order for costs, save for a direction for detailed assessment of the appellant's costs.

Cited in 1 later judgment