Broni-Appiah v Secretary of State for the Home Department

Where a person relies on a British passport to resist deportation, the Secretary of State bears the burden under section 39 of the Immigration Act 1971 of proving that the person is not the British citizen named in it. The issue is one of precedent fact for the court. The civil standard applies, but the degree of probability required must reflect the nature and gravity of the issue. An allegation of identity fraud may therefore require a high degree of probability. The court may assess credibility in the light of a claimant’s established dishonesty, although that history does not by itself prove the case. The Secretary of State need not establish every detail of how a false identity or passport was obtained if the central identity case is proved to the requisite standard.

The claimant, who was detained at Dover Immigration Removal Centre, applied for judicial review and habeas corpus to resist deportation to Ghana. He asserted that he was Maxwell Malcolm Broni-Appiah, a British citizen. The Secretary of State maintained that he was Joseph Amson, a Ghanaian national, and relied particularly on his conviction and deportation in that identity in 2002 and 2003, together with evidence of repeated dishonesty and false documentation.

The parties agreed that identity and nationality were questions of precedent fact for the court, and that the burden and standard of proof were governed by Khawaja v Secretary of State for the Home Department [1984] AC 74. The central issue was whether the Secretary of State had proved that the claimant was Joseph Amson rather than the British citizen named in the passport.

1. Applicable approach. The court accepted the agreed approach under section 39 of the Immigration Act 1971. Because the claimant produced a British passport, the Secretary of State had to prove that he was not the person described in it as a British citizen. The issue was one of precedent fact for the court. The civil standard applied, but proportionate to the nature and gravity of the issue. In this case, the allegation of fraud required a high degree of probability.
2. Assessment of the evidence. The claimant’s account of adopting the Joseph Amson identity merely to avoid the consequences of a community rehabilitation order was inherently incredible. It was inconsistent with the contemporaneous police evidence and with the practical consequences of identifying himself as an illegal immigrant. The Ghanaian authorities had accepted that Joseph Amson was a real person and had accepted the claimant as Ghanaian. The court regarded coincidence on that scale as beyond belief.
3. The claimant’s extensive convictions for dishonesty, use of false identities and documents, and sophisticated fraud materially undermined his credibility. His evidence about his family, employment and passport history was also materially inconsistent. The court accepted that a real British citizen with the Broni-Appiah identity existed, and that the precise circumstances of the 1998 passport application could not be established. Those matters did not prevent the Secretary of State from proving the central case.
4. The court was satisfied to a high degree of probability that the claimant was, and always had been, Joseph Amson. Both the judicial review application and the habeas corpus application were dismissed. Permission to appeal was refused, and the claimant was ordered to pay the defendant’s costs, to be assessed if not agreed.

Not stated in the judgment.