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Respect for the law part two

Judgement was recently given (23 April 2010) on a series of immigration cases regarding a number of cases brought by different Somalians against the Home Office. Whilst there were a number of different appeals, as the court put it " All, however, have the same backdrop: the enforced return of individuals with no independent right to be or remain in the United Kingdom to a war-torn country, Somalia, where their safety is or may be in serious doubt.". The court also added " The other is that, difficult as it is, it is necessary to put aside the fact that none of those now claiming humanitarian and human rights protection has any independent entitlement to be in the United Kingdom, and that at least one has committed a serious crime which makes it wholly undesirable that he should remain here. The lack of any prior right to be here is the necessary predicate of all cases concerning safety on an enforced return, but that does not mean that such people are not entitled to the due process and protection of the law. ... Safety at the point of return or en route to a safe place is not a statutory factor: it arises as an adjectival human rights or humanitarian issue. ".

The relevant appellant was someone born on 8 December 1975, who arrived illegally in the United Kingdom in May 1995 and sought asylum on 24 May 1995. This was refused but he was given exceptional leave to remain. On 23 July 1998 he was convicted of rape and indecency with a child and sentenced to 8 years' imprisonment. He was then largely kept in detention pending deportation. He claimed it was unsafe to return him to Somalia. Given the situation, that would be so for a majority of people but it would depend upon personal circumstances and contacts. Attempts to deport him have been proceeded with since service of notice of intention to make such an order on 21 May 2002 . Thereafter a series of appeals and judicial reviews have been pursued culminating in the Court of Appeal hearing recently.

The Tribunal found the appellant's evidence evasive, obstructive and untruthful and they gave cogent reasons for reaching that conclusion. They took the view in the light of this that they could not say whether he had personal contacts which would make it safe for him to return and therefore he had not discharged the burden on him. The appeal court overturned this, on the basis that the situation was dangerous generally, and it was unlikely having regard to the length of time he had been in detention in the UK that he would have any special contacts. The court concluded that his appeal "establishes that even a mendacious appellant is entitled to protection from refoulement if objective evidence shows a real risk that return will place his life and limb in jeopardy."

With respect, that should not be the position. That objective evidence could be altered by specific evidence which he gave. Personal contacts and situation are always going to be relevant. If a person tells the truth, then any relevant factors will come out. If they deliberately lie, then there may be relevant factors which would help or hurt them, and consequently no court can never be sure that they were not actually concealing material which would prevent their removal. Taking that approach is a fraudster's charter. It must be borne in mind that such person has no right of entry, or to remain, as this appellant never had. Spinning out the process as not only allowed him to commit a serious crime, but claim that the situation in Somalia has deteriorated. If he actually proves he is in danger, that does not prevent him from relying upon the law, but if the true facts are relevant to the question as to whether he can be returned, and he chooses to lie about those facts, there is nothing wrong in principle with leaving him to reap the consequences of his own failure to be truthful. The alternative is to mean that on occasions those who lie will be allowed to stay when the truth would make them leave. That should not be the legal position.

Michael J. Booth QC