Broni-Appiah v Secretary of State for the Home Department [2009] EWHC 2596 (Admin)

[2009] EWHC 2596 (Admin)

Case No CO/4076/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 31st July 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

Between

MAXWELL MALCOLM BRONI-APPIAHClaimant

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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Mr P Turner (instructed by Nag & Co) appeared for Claimant

Ms S Hannett (with Ms G Jackson attending for judgment)(instructed by the Treasury Solicitor) appeared on behalf of the Defendant

J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]Who is the claimant? Is he, as he maintains, Maxwell Malcolm Broni-Appiah, a British citizen born in Croydon on 12th November 1978, or is he Joseph Amson, a Ghanaian citizen. He is presently detained in Dover Immigration Removal Centre. The Secretary of State is seeking to deport him to Ghana. The claimant is seeking to resist deportation on the ground that as a British citizen he is not susceptible to deportation. He has made two applications to this court: an application for judicial review and an application for habeas corpus. Both applications are resisted. It is common ground that either both succeed or both fail.

[2]The parties agree that the question whether the claimant is a British citizen is a question of precedent fact for the court, as was decided in Khawaja v Secretary of State for the Home Department

[1984] AC 74

. They further agree that as the claimant has produced a British passport, pursuant to section 39 of the Immigration Act 1971 the defendant has a burden of demonstrating that the claimant is not the person described in the passport as a British citizen. It is further agreed that the requisite standard of proof is the civil standard as was decided in Khawaja; that is to say the balance of probabilities, but proportionate to the nature and gravity of the issue. In the present case, there is essentially an allegation of fraud and a higher degree of probability applies.

[3]Whether the case for the claimant be right or wrong, there is no doubt that the dispute about his identity and nationality is the product of his own serial dishonesty. It is well documented. Quite simply, the Secretary of State barely believes a word he says. I begin with the claimant's account of his life and times, as described in his witness statement. It states that he was born on 1st November 1978 in St Mary's Maternity Hospital in Croydon. His parents were Ghanaian but are now deceased. He has been ordinarily resident in the United Kingdom since 1998. He describes how before that he had lived at an address in Accra New Town and had attended the Roman Catholic Boys School in Accra between 1984 and 1989 and a secondary school called the Royal Academy of Accountancy between 1989 and 1995. He had then studied at the Jacobs Marketing Institute, finishing his schooling in 1997.

[4]He states that his mother was a trader, who traded in clothes and she used to take him along when she travelled from this country to Ghana. The last time that he had been taken there was in 1985. He had been left with Mercy Amoah, who is his mother's sister, because his parents had wanted him to be educated in Ghana. He had lived with Mercy and her children. Mercy is the ex-wife of a man called Albert Botchway. The claimant had gone to school with Mercy's children and "they treated me as a brother". His statement then says:

"My parents died in 1986 when I was 7 years old . . . They were living in the United Kingdom and had travelled to Ghana for five weeks when they had an accident and died . . . After my parents died [Mercy] took me in as one of her own children. Mr Albert Botchway was her ex-husband and while he did not live with her I treated him as a father figure and I used to call him dad."

He then recounts how he returned to the United Kingdom in 1998. All his friends had gone to live in the United Kingdom and he wished to join them. He states:

"I spoke to Mercy about this and she gave me my old blue/black UK passport and my birth certificate. I bought a ticket to come to the United Kingdom but was told that I could not use this passport and would have to apply for a new passport. I approached the British High Commission and was given an application form, I was also told that I would have to come back for an interview and to produce evidence of my schooling, photographs of me growing up in order to satisfy them that I was indeed the same person who had been issued the old style passport. I duly submitted evidence. I was then notified that my passport was ready to be collected. I collected my passport and travelled to the United Kingdom on this passport."

Once in this country, he describes using the passport to obtain a National Insurance number and a bank account, and also in connection with an application for a provisional driving licence in 1999. Thereafter, he describes losing that and other passports and later receiving a series of replacement passports of short validity as a result.

[5]I now turn to the facts and matters that have led the Secretary of State to disbelieve that account. Between 2000 and 2007 the claimant was convicted of a number of offences of dishonesty. In brief, on 11th April 2000 he was cautioned for an offence of theft by an employee. On 16th April 2002, in the name of Maxwell Broni-Appiah, he was convicted of attempting to obtain property by deception and given a conditional discharge for 12 months. On 19th September 2002, still in the name of Broni-Appiah, he was convicted of seven charges of obtaining property by deception, one offence of going equipped for theft, and one of handling stolen goods. He received a sentence structured around a three year community rehabilitation order and was ordered to pay compensation.

[6]The next conviction is one that looms large in this case. On 31st October 2002, in the name of Joseph Amson, he was convicted of attempting to obtain property by deception and was sentenced to six months' imprisonment. He appealed against that sentence to the Crown Court. The only alteration to the sentence was that the Crown Court added a recommendation for deportation. Indeed, he was deported, in circumstances to which I shall return, to Ghana on 5th February 2003 in the name of Joseph Amson. His case is that he returned to this country as Maxwell Broni-Appiah two days later. However, there is no independent corroboration of that.

[7]The next recorded date is 10th September 2004 when, in the name of Broni-Appiah, he was convicted of attempting to obtain property by deception and was sentenced to a community punishment order. On 9th October 2006, still in the name of Broni-Appiah, he was convicted of a charge of conspiracy to defraud and three charges of possessing listed false instruments. He was sentenced to imprisonment for 30 months and a compensation order. In sentencing him, the judge referred to him having "supported [his] false identity by the use of false passports". The judge also described him as committing "a sophisticated and persistent conspiracy that netted close on £300,000". The judge described the claimant as having been at large as a result of a failure to surrender "when [he] came back from Ghana, having gone there to deal with [his] deceased father's estate". The offences were committed in November and December 2004 and February 2005. In other words, at a time when, by inference, the community rehabilitation order of September 2002 was still extant.

[8]On 7th June 2007 the claimant, as Broni-Appiah, was convicted of the charge of handling stolen goods and was sentenced to 15 months' imprisonment, to run consecutively to the existing sentence. On 11th July 2007 he was convicted of possessing criminal property. He was again sentenced to 15 months' imprisonment, again to run consecutively to the existing period. The judge described the offence as one that had "all the hallmarks, frankly, of a professional fraudster".

[9]I return to the conviction in the name of Amson and the subsequent deportation to Ghana. The conviction followed arrest at a store in Oxford Street on 29th October 2002. Upon arrest, the claimant gave the name Ivan Vesely. However, having given that name, when he was confronted with the fact that Ivan Vesely was a Czech citizen who had no authority to be in the United Kingdom, the claimant said he was Joseph Amson, an illegal immigrant from Ghana, and gave particulars of that identity. He admitted being an illegal immigrant, handling stolen goods, attempted deception and false accounting. I have referred to the conviction and sentence that ensued.

[10]After the Crown Court had added the recommendation of deportation, the claimant, through his solicitor, in a letter dated 28th November 2002, indicated that he was anxious to return to Ghana at the end of his term of imprisonment to deal with his late mother's estate. The letter stated that his family were willing to pay the airfare. A further letter written on his behalf on 11th December 2002 reiterated that he wanted his deportation to take place immediately. On 7th January 2003, he was served with a deportation order and he immediately wrote to confirm that he did not intend to appeal it.

[11]On 27th January 2003 he completed a biodata information form, to be submitted to the Ghanaian authorities. He gave full details of himself as Joseph Amson, a Ghanaian national, born on 21st September 1975 in Bogu, Ghana. He provided the names of his Amson parents, stating that his mother had died in 2002 and his father in 1993. He referred to a sister, Ama Amson, who was born on 16th July 1977 in Bogu. He provided other information, including schools he had attended, the name and address of his place of worship, and the name and address of local hospitals. The form was signed with a statement of truth in the presence of an immigration officer. On the basis of that form, the Ghanaian authorities issued an emergency travel document which resulted in the claimant being deported to Ghana on 5th February 2003 as Joseph Amson.

[12]The Secretary of State's assertion that the claimant is the Ghanaian Joseph Amson is based substantially on the events of 2002 and early 2003 and the fact that the Ghanaian authorities at that time, and more recently, have accepted that identity and nationality for the claimant. How does the claimant explain the events of 2002 to early 2003? I return to his witness statement:

"The reason I used the name Joseph Amson was that I had received a 3 year community rehabilitation order on 19th September 2002 at Kingston Crown Court and I feared that had I used my real name I would have been re-sentenced for this offence. I was hoping to use the name Joseph Amson and merely to be removed to Ghana. It is right that I completed a bio-data form in the name Joseph Amson, I did so in order that I could be removed to Ghana and then return with my British passport. I put down my own address where I used to live in Ghana. I did not seek to appeal or dispute the decision to remove me in the Joseph Amson identity as I was frightened that they would discover my true identity. I accept that this was wrong but I was scared."

The Secretary of State rejects that as wholly incredible.

[13]The Secretary of State also says that other features and aspects of the case should lead me to reject the claimant's asserted identity and British nationality. First, it is said that such is his proven dishonesty, based on his convictions, no self-serving statement of his should be taken as truthful without more.

[14]Secondly, Ms Hannett on behalf of the Secretary of State refers to certain applications for driving licences and passports. There were two applications for driving licences in 2001 in the name of Maxwell Broni-Appiah, one application dated 16th April 2001 and one dated 27th March 2001, with a different address. Each application, submits Ms Hannett, contains a different signature. She then invites me to compare the signature on the passport application of August 1998 with the driving licence application of 27th March 2001, suggesting that the two signatures are strikingly similar. In contrast, she submits, the signature on the 1998 passport application differs from that on the subsequent passport applications in 2001, 2002 and 2003, and to the driving licence application of 16th April 2001.

[15]Thirdly, Ms Hannett suggests that the claimant's account of himself as Mr Broni-Appiah is riddled with inconsistency. In support of that submission she begins with the 1998 passport application, as to which she observes that the name of the applicant's guardian is given as Adolphus Tagoe, described as the applicant's uncle. This is not consistent with the claimant's account that when his parents died he was taken in by Mercy Amoah. The passport application also states that he was applying for a passport because of a proposed visit to Canada. This, says Ms Hannett, can be contrasted with the claimant's evidence that he obtained the passport in 1998 in order to return to the United Kingdom. She also points to other alleged anomalies, including the fact that neither of the persons named as persons with whom contact should be made in the event of emergency was Mercy Amoah or Albert Botchway. One was Mr Tagoe, the other was a Mr Burke. Moreover, when cross-examined the claimant gave an account of his connection with Mr Tagoe which, in terms of its duration, was significantly different from what had been said in the application form.

[16]Ms Hannett then points to inconsistencies in the claimant's account of the deaths of his parents. As I have noted, in his witness statement he said that they had died contemporaneously in an accident in 1986. However, in a letter written in October 2007, the claimant stated that his father died in 1982 or 1983, saying that he had not seen his father since he was four years of age. He would have been seven in 1986. In a later witness statement, the claimant said that he had never driven a bus, but I have been shown a letter written by him in October 2007 in which he stated that he had worked for London General as a bus driver. The evidence submitted on his behalf in this case includes a statement from one Michael Younge. It happens that on close scrutiny that is a name which the claimant himself has used in the past.

[17]On any view, the claimant's personal history, particularly the last 10 to 12 years, is mired in deception. Mr Turner stoically accepts that. Nevertheless, he submits that there are credible and objective pointers to support his assertion that the claimant is indeed Mr Broni-Appiah, a British citizen. He refers in particular to the material that caused this hearing to be adjourned part-heard when it first came before me. It arose in this way. The claimant has asserted throughout these proceedings that he applied in person and obtained a new British passport in the name of Broni-Appiah from the High Commission in Accra in 1998. Long after he so asserted and described the circumstances, the Secretary of State, when the case was already part-heard, obtained some copy documents from Accra relating to the application in 1998. They include photographs of the applicant for the passport. Mr Turner submits, and is now assisted by expert evidence obtained during the adjournment, that it is the claimant who is depicted on the photographs. I accept that it probably is. Mr Turner says that the fact that the claimant gave his account of submitting photographs to the High Commission when he could not have known that the Secretary of State would produce the very photographs that were submitted, and which are photographs of the claimant, strongly supports his case.

[18]But does it? It is certainly consistent with the fact that the claimant was presenting, or being presented, as Mr Broni-Appiah in 1998, but that comes as no surprise. After all, he had embarked on his criminal career in London in that name by early 2000. It may corroborate his account that he was in Ghana in 1998, but that is not now disputed. On the other hand, the 1998 application was put forward on a factual basis significantly at variance with the claimant's case. I have referred to Ms Hannett's submissions about that. In oral evidence the claimant has proffered explanations, but I did not feel able to accept them all at face value.

[19]Then there is the question of the signature. Whilst I do not feel able to reach a conclusion about some of the signatures, I am satisfied that the Broni-Appiah signature on the 1998 passport application is strikingly similar to the one on the driving licence application dated 23rd March 2001, which he seeks to disown. He says that that application was made by a dishonest acquaintance who stole his Broni-Appiah identity. It is true that the photograph accompanying that application is not of the claimant. He says it is of a man called Mohammed, who used the claimant's identity without his consent and, by implication, forged his signature. Indeed, he claims that another man, coincidentally called Appiah but no relation, also made an application for a driving licence using the claimant's Broni-Appiah identity.

[20]On the other hand, the signature on the 1998 passport application is apparently different from that on passports issued in 2001, 2002, 2003, and also to that on a driving licence application dated 16th April 2001, all of which the claimant says are his. His explanation is that his signature has "matured" since 1998, but that does not explain the difference between the signatures on the driving licence applications of March and April 2001, a mere three weeks apart. I was unimpressed by the claimant's oral evidence on this issue.

[21]Ms Hannett rightly accepts that the evidence about the signatures does not, by itself, enable her to discharge the burden of proof to the required standard. However, it is powerful supportive evidence so far as the centre piece of her case is concerned. That is, and always has been, the Joseph Amson identity which, she submits, is the true identity of the claimant.

[22]I approach this case on the basis that if the Secretary of State is to succeed I must be satisfied to a high degree of probability that the claimant is, and always has been, Joseph Amson. After careful consideration I am so satisfied for the following reasons. First, I find the claimant's account of how he came to use the name Joseph Amson in 2002 utterly incredible. According to contemporaneous police documents, he admitted that he was an illegal immigrant of that name. Far from saving him from a custodial sentence when he was in breach of a community rehabilitation order, that would have been likely to compound his problems. Secondly, in evidence the claimant said that he did not know of a person called Joseph Amson and from first giving that name until deportation he simply invented everything. Yet according to the Ghanaian authorities, Joseph Amson truly exists. This is established most recently by the certificate of identity, pursuant to which the Ghanaian authorities accept the claimant's Ghanaian nationality and indicated willingness to cooperate in his deportation. I do not believe that they would have moved from disputing that identity to accepting it unless they were properly satisfied that it was correct, and that such a person existed. Moreover, it is beyond belief that by coincidence he invented an identity which coincided with a real one. Thirdly, whilst most people would find it difficult to use a false identity for over 10 years, I have no doubt of the ability of the claimant to acquire and use identities at will. His criminal history, his use of false identities and documents, including passports, his abilities as a sophisticated fraudster all confirm this. Fourthly, his inherently incredible account of his temporary use of the Amson identity is the account of a man who, from 1998 until today, has given an inconsistent and dishonest account of his life and times, his family, his employment, his intentions and so on. Whilst this, in itself, does not prove the case against him, it is relevant to the assessment of his credibility. In other words, an inherently incredible account is being advanced by a man with severe credibility problems.

[23]In reaching my conclusion I have given full consideration to the points made by Mr Turner in his tenacious representation of the claimant. I accept that the Secretary of State, whilst accepting that there is a real British citizen with the Broni-Appiah identity, has not been able to say who or where he is or what has become of him. I also accept that the Secretary of State is unable to establish the precise circumstances of the 1998 passport application, particularly whether or not the claimant acted alone or in collusion with an accomplice. However, it is not incumbent on the Secretary of State to prove all these things, provided he can satisfy me that the claimant is in truth the Ghanaian Joseph Amson. For the reasons I have given, he has succeeded in doing so. Accordingly I dismiss both appeals.

[24]MR TURNER: May I seek leave to appeal?

LORD JUSTICE MAURICE KAY: On what grounds?

[26]MR TURNER: On the grounds that the relevant burden of proof has not been discharged and other factors that relate to this case have not had significant weight attached to them.

LORD JUSTICE MAURICE KAY: That is not a promising ground, is it?

[28]MR TURNER: The decision only indicated that there was authority. I am not going to rehearse my arguments with regards to the passport, but if you have a passport other procedures should have taken place.

LORD JUSTICE MAURICE KAY: No. I refuse permission on the grounds that there is no real prospect of success, this being ultimately a question of evaluation of evidence, and I do not think there is any other compelling reason to grant permission so I refuse. You will have to ask the Court of Appeal.

[30]MS JACKSON: My Lord, I have an application for the Secretary of State's costs in this case, to be assessed if not agreed.

LORD JUSTICE MAURICE KAY: What is the position? Is he publicly funded?

[32]MR TURNER: No, he is privately funded.

LORD JUSTICE MAURICE KAY: I do not suppose you can resist that application can you?

[34]MR TURNER: No, my Lord.