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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kural, Re Judicial Review [2003] ScotCS 162 (03 June 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/162.html Cite as: [2003] ScotCS 162 |
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OUTER HOUSE, COURT OF SESSION |
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P1234/02
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OPINION OF LADY PATON in the Petition of MEVLUT KURAL Petitioner; for Judicial Review of the act of the respondent in failing to determine a new asylum application
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Petitioner: Govier, Advocate; Skene Edwards, W.S.
Respondent: A. J. Carmichael, Advocate; Advocate General's Office
3 June 2003
Fresh application for asylum
[1] The petitioner is a national of Turkey. He seeks asylum in the United Kingdom. His initial application for asylum was refused. He subsequently made a fresh application based upon new evidence. That application was also unsuccessful. In this petition for judicial review, the petitioner challenges the treatment of the fresh application. The respondent is the Secretary of State for the Home Department.
Relevant Immigration Rules
[2] Rule 346 of the Immigration Rules provides:"Previously rejected applications
Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
Rule 334 provides:
"Grant of asylum
An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
Initial application for asylum
[3] The petitioner was born on 4 May 1961. He is a national of Turkey. On 16 November 2000 he entered the United Kingdom in the back of a lorry. He immediately applied for asylum on the basis that he is a Kurdish Sunni Muslim, living in a Kurdish village, and occasionally attending demonstrations and helping the PKK (the Partiya Karkeren Kurdistan, a Kurdish independence party with a military wing); that he had on several occasions been detained by the Turkish authorities, held without charge, and physically beaten, tortured, and threatened; and that if he were to be returned to Turkey, he would be arrested and detained, and would face mistreatment and torture at the hands of the police. He was at that stage represented by Messrs. Howe & Co., solicitors, London. [4] The petitioner's application was refused. He appealed to an adjudicator. The appeal was heard on 20 February 2002. At that stage, the petitioner was represented by counsel Miss S. Crane, instructed by Messrs. Nelsons, Solicitors. [5] By a determination promulgated on 19 March 2002, the adjudicator made an adverse finding in relation to the petitioner's credibility, and refused the appeal. In particular, in paragraphs 17 to 21 of the determination, the adjudicator stated:"Determination and Reasons:
He has also been quite unable to explain why the Turkish authorities did not act on his own confession by charging him on at least one occasion. He did not satisfactorily explain why he gave two vastly different accounts of his period of residence in Istanbul, namely six months and seven years. The matter of an appellant's credibility is of fundamental importance in an asylum claim where supporting evidence is often hard to come by. I have listened carefully to the appellant giving his evidence. In my view, he has no credibility, I do not believe any part of his account.
Copy Turkish arrest warrant and fresh application for asylum
[8] In May 2002 the petitioner was detained in Dungavel Detention Centre. On 22 September 2002, removal directions (to take effect on 5 October 2002) were served upon him. Counsel for the petitioner advised that, at the very moment of service of the removal directions, the petitioner was engaged in a consultation with new agents, Messrs. Skene Edwards, W.S., about bail. During that consultation, the petitioner gave his solicitors what appeared to be a copy of a Turkish warrant for his arrest, issued on 4 April 2002. The copy warrant seemed to give an inaccurate date of birth for the petitioner, namely "06.05.1961" whereas the petitioner was born on 4 May 1961. [9] The petitioner's new solicitors were trying to obtain his file from the previous solicitors. By 4 October 2002, the file had not yet arrived. The removal directions were to take effect the following day, 5 October 2002. By fax dated 4 October 2002, sent to the respondent's Glasgow Enforcement Unit, the agents advised as follows:"We refer to [Mevlut Kural] and to our telephone conversations with our Fran Baxter with regards to removal directions of tomorrow 5 October.
As you are aware, we currently await papers from previous agents with a view to considering judicial review proceedings. However, as we are unable to confirm to you that a petition for judicial review will proceed we readily appreciate that you may not be willing to suspend removal directions.
Therefore, in the circumstances we have no alternative in order to protect our client's position meantime but to hereby intimate to you a fresh claim for asylum. This is based on new evidence which as we understand it has been obtained by the applicant since the determination of the adjudicator dismissing his appeal. We enclose for your attention a copy of an arrest warrant.
In the light of the foregoing please confirm that removal directions will be suspended and that his new claim for asylum will be considered in light of fresh evidence. When we do obtain the papers from the previous agents, we will revert to you with regards to any possible judicial review action."
"Thank you for your letter of 4 October 2002 on behalf of your above-named client which has been passed to this office for consideration. The Secretary of State has noted that you have asked him to consider accepting a fresh application for asylum.
Paragraph 346 of the Immigration Rules (HC 395, as amended by Cm 3365) states that the Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim and that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied: paragraph 334 specifies the conditions under which asylum will be granted.
In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which is not significant; or is not credible; or was available to the applicant at the time when the previous application was refused or when any appeal was determined.
When considering applications in accordance with this paragraph, the Secretary of State's approach is therefore to compare the later claim with the earlier claim and to form a view as to whether it is sufficiently different from the earlier claim that a special adjudicator might reasonably take a favourable view of the later claim, despite rejection of the earlier one.
The basis of your client's fresh application is an arrest warrant obtained from Turkey. The Secretary of State has considered the warrant but he has taken into account that your client has been in the United Kingdom since 2000 and no warrant has been produced during those 2 years until now. It is unclear why the Turkish authorities have suddenly decided that they need to arrest your client. The Secretary of State has also considered the fact that the warrant has only been produced after arrangements have been made for his removal to Turkey. In view of the timing, the Secretary of State is entitled to come to the conclusion that it may not be genuine and has been fabricated to prolong your client's stay in the United Kingdom. Having taken the view that the warrant is a forgery, the Secretary of State is further entitled to draw the conclusion that there is no genuine evidence to support the claim that your client is wanted by the Turkish authorities. The Secretary of State is reinforced in this view by the conclusions reached by the adjudicator in his determination of 19 March 2002:
"I am afraid I find myself in a position where I can hardly believe a word of the appellant's various accounts ... I do not believe any part of his account."
The Secretary of State has concluded, therefore, with regard to the points you have raised, that the claim advanced is not sufficiently different from the earlier claim to admit of a realistic prospect that the conditions set out in paragraph 334 will be satisfied. Accordingly, the Secretary of State has decided not to treat your representations as a fresh application for asylum.
As a consequence of this decision by the Secretary of State, your client has no leave to remain in the United Kingdom and the removal directions set for today remain in place. Any further representations should be directed to the Immigration Service at Scottish Enforcement Unit who will be dealing with this matter."
Petition for judicial review
[11] On 10 October 2002, the petitioner lodged the present petition for judicial review of the respondent's decision in the letter dated 4 October 2002. The petitioner sought:" ... [he had] now received a copy of a warrant issued for his arrest by the Turkish authorities. The warrant is dated April 2002, by which time the petitioner's appeals to the adjudicator and the Immigration Appeal Tribunal had been heard. The petitioner was represented previously by Messrs. Paton Farrell, solicitors. Since his hearing, the petitioner has instructed Messrs. Skene Edwards, solicitors, to represent him. On receipt of the warrant, the petitioner passed it to his representatives, and instructed them to lodge a fresh asylum application on the basis of the new evidence. Messrs. Skene Edwards duly lodged such an application. By fax dated 4 October 2002, the said David Rodgers, for whose actings in the course of his employment the respondent is responsible, issued a refusal to consider the fresh application. Removal directions having been set as above, Immigration Officers acting on the authority of the respondent have refused to suspend the removal directions."
"1. The respondent having erred in law et separatim acted unreasonably, the determination should be reduced as sought.
2. The respondent having erred in law et separatim acted unreasonably, the removal direction should be suspended and suspended ad interim as sought."
Preliminary matters at first hearing of judicial review
[15] At a first hearing, counsel for the petitioner advised that he did not intend to present any argument founded on Article 6 of the European Convention on Human Rights. Further, as the petitioner had been liberated on bail, and the removal directions had been suspended administratively, the court would not be invited to sustain the petitioner's second plea-in-law. [16] Counsel for the petitioner then moved to amend the petition by substituting for the petitioner's first plea-in-law the following:"1. The respondent having erred in law et separatim acted unreasonably in deciding to refuse to treat the representations made on the petitioner's behalf by his agents in their letter of 4 October 2002 as a fresh application for asylum, the said decision should be reduced."
The motion to amend was not opposed by counsel for the respondent. I allowed the petition to be amended accordingly. Counsel for the petitioner added that there had been insufficient time to amend the body of the petition to reflect the new first plea-in-law. The court was requested to adopt a liberal approach towards the pleadings.
Further information supplied in course of first hearing
[17] During the first hearing, certain questions arose, particularly concerning the provenance of the warrant. Counsel for the petitioner was able to consult with his client, who was present in court. Certain further information was then supplied. That further information had not been available to the respondent. [18] In particular, counsel initially did not know when the petitioner had first come into possession of the arrest warrant. Having taken instructions from the petitioner, counsel advised that the petitioner had come into possession of the warrant in April 2002, when he was at liberty. His brother in Turkey had sent it to him by post. [19] When asked why the existence of the warrant had not been raised until September 2002 (several months later), counsel indicated that the petitioner had initially shown the warrant to his then solicitors, Messrs. Burton and Burton. They had responded along the lines of: "The evidence has been heard. The adjudicator was against you. There is nothing we can do." Counsel accepted that it appeared from the averments in paragraph 6 of the petition that the petitioner had thereafter been represented by Messrs. Paton Farrell: however the petitioner had no recollection of that firm. The petitioner had then instructed Messrs. Skene Edwards W.S. He had consulted with them on 22 September 2002 about obtaining bail. In the course of that consultation, the petitioner had produced a copy of the warrant. [20] When counsel for the respondent asked in the course of argument where the principal of the warrant was (the only document lodged in court, number 7/2 of process, being a faxed copy), counsel took instructions from the petitioner and advised that the petitioner stated that the original warrant had been taken from him by immigration officers during searches of his personal belongings when he was detained in Dungavel Detention Centre in May 2002. However he had managed to retain (or had been given) another photocopy of the warrant.Submissions on behalf of petitioner
[21] Counsel for the petitioner invited the court to sustain the petitioner's new first plea-in-law, and to reduce the respondent's decision of 4 October 2002. He accepted that the petitioner's second plea-in-law should be repelled. He confirmed that he would not contend that the respondent had failed to consider the new application, but rather that the respondent's decision to refuse that application should be reduced. [22] Counsel submitted firstly, that the respondent had erred in law. He had asked himself the wrong questions. He had thereby introduced irrelevant considerations into his decision-making. Secondly, the respondent had acted unreasonably by exercising his decision-making power in an irrational manner. [23] In support of his first argument, counsel referred to the terms of rule 346 of the Immigration Rules. The Secretary of State had chosen to rely upon sub-paragraph (ii) of rule 346. A two-stage procedure was involved. Firstly, he had to disregard any material which he considered not credible. Then he had to compare the fresh application (absent the incredible material) with the original application, and assess whether the fresh application was sufficiently different from the original one. In the present case, that two-stage task had not been carried out correctly. The respondent had erred in law in reaching the decision he had. He had asked himself the wrong questions. He had introduced irrelevant considerations. [24] In particular, in the fourth paragraph of the decision letter dated 4 October 2002, the respondent stated:"When considering applications in accordance with [rule 346], the Secretary of State's approach is therefore to compare the later claim with the earlier claim and to form a view as to whether it is sufficiently different from the earlier claim that a special adjudicator might reasonably take a favourable view of the later claim, despite rejection of the earlier one."
Counsel submitted that by adopting the approach described in that paragraph, the respondent was injecting an additional factor not warranted by rule 346. It was not clear precisely what question the respondent had asked himself. But the respondent might have been contemplating an assessment of the new application against a background of the facts which were known to the adjudicator who had originally rejected the claim for asylum, and taking into account that adjudicator's assessment of the petitioner's credibility. The respondent had thereby introduced irrelevant considerations into the decision-making process. Counsel accepted that the wording in the fourth paragraph of the letter of 4 October 2002 appeared in many immigration decision letters, and that his submission could therefore have implications for other cases.
[25] The fifth paragraph of the decision letter then proceeded to deal with the arrest warrant. The credibility of the petitioner had been severely criticised by the adjudicator. The one and only further piece of evidence was the arrest warrant bearing to come from the Turkish authorities. In the fifth paragraph, the respondent appeared to be considering whether to treat the warrant as credible or not. Having reached a conclusion - based on the wrong question and irrelevant considerations - that the fresh evidence was not credible, the respondent proceeded in the sixth paragraph to reach a conclusion in terms of the second sentence in rule 346, namely that the new claim advanced was "not sufficiently different from the earlier claim to admit of a realistic prospect that the conditions set out in paragraph 334 will be satisfied." That conclusion was flawed. [26] Turning to his second argument, counsel submitted that, in any event, the respondent had acted unreasonably in refusing to treat the warrant as a ground for a fresh application. A reasonable decision-maker, properly advised, would not have reached that conclusion. It was undeniable that the petitioner had been in the United Kingdom since 2000, and that "no warrant [had] been produced during those 2 years until now". But the warrant itself was dated April 2002. The circumstances of its production were that the petitioner had received the copy arrest warrant after the promulgation of the adjudicator's determination on 19 March 2002. The copy arrest warrant had been sent to him by post from his brother in Turkey. He had tried to discuss the warrant with his then lawyers, Messrs. Burton and Burton. Their response had been along the lines of "The evidence has been heard. The adjudicator was against you. There is nothing we can do." The warrant had therefore not featured in the Grounds of Appeal lodged late on his behalf on 13 June 2002. The petitioner might thereafter have been represented by a firm of solicitors, Messrs. Paton Farrell, but he could not recall such representation. The petitioner had shown the copy warrant to his next set of agents, Messrs. Skene Edwards, W.S. [27] Counsel submitted that the copy arrest warrant was very material. It provided the petitioner with considerable comfort from the point of view of credibility. If it was a genuine arrest warrant, it was crucial to any consideration of the petitioner's case. While the respondent was entitled to take into account the fact that one aspect of the petitioner's circumstances, which had been absent in his original application for asylum, had now been found and put into place, he was not entitled to take into account the assessment of credibility made by the adjudicator. Counsel accepted that he could not produce any authority vouching the latter proposition, nor could he point to any explicit provision in the rules. His submission was that, on a proper construction of the rules, the respondent was not entitled to have regard to the adjudicator's assessment of credibility. Thus the respondent had been Wednesbury unreasonable. He had taken into account irrelevant considerations. He ought to have considered the new claim advanced, rather than someone else's assessment of credibility. [28] Counsel invited the court to sustain the petitioner's first plea-in-law and to reduce the respondent's decision set out in the letter dated 4 October 2002, namely that the new claim advanced was not sufficiently different from the earlier claim to admit of a realistic prospect that the conditions set out in paragraph 334 would be satisfied. Counsel also invited the court to repel the petitioner's second plea-in-law, and the respondents' first and second pleas-in-law.Submissions on behalf of respondent
[29] Counsel for the respondent invited the court to sustain the respondent's first and second pleas-in-law, and to dismiss the petition. [30] Counsel confirmed that the wording contained in the fourth paragraph of the decision letter appeared regularly in standard decision letters. If a special adjudicator were making a decision about asylum, he or she would be using the same material and applying the same tests as the respondent. The decision-maker, at whatever stage, was deciding whether there was a reasonable likelihood that if the applicant were to be returned to a certain country, the applicant would face persecution for a convention reason. No difficulty or prejudice arose from the use of the words "special adjudicator" in the fourth paragraph. Rule 346 had not altered general principles.In any event, the Court of Appeal had in effect approved the wording used. In Secretary of State for the Home Department v Senkoy [2001] ImmAR 399, the Court of Appeal in paragraphs 30-32 considered the wording used. There was implicit approval of the wording. The wording might incorporate a gloss on rule 346, but the gloss did not matter.
[31] So far as the fifth paragraph of the decision letter was concerned, if the copy arrest warrant was disregarded because it was not credible evidence, and if the two applications for asylum were then compared, one found two entities which were the same. They were not "sufficiently different" within rule 346. [32] Turning to the assessment of credibility, and whether the respondent had acted unreasonably in the Wednesbury sense, counsel for the respondent referred to Nkereuwen v Secretary of State for the Home Department [1999] Imm.A.R. 267. In that case, following upon refusal of an application for asylum and a subsequent appeal, letters from Nigerians in Germany were submitted. In those letters, the writers asserted that the applicant would be persecuted on his return. It was held that the Secretary of State was entitled to have regard to the circumstances in which the evidence came to be produced, and the timing. In the present case, having regard to the circumstances and the timing, the respondent was entitled, as a reasonable decision-maker, to find the material incredible. In such circumstances, the potential significance of the evidence was nothing to the point: if the material was incredible, it was put out of the picture, whatever its potential significance. The respondent in the present case was entitled to look at the timing of the production of the document, the nature of the document (including its contents, for example, the erroneous date of birth), and the adjudicator's hearing. If, as counsel for the petitioner submitted, the respondent was to be significantly restricted in what he could take into account, that should be spelt out in the immigration rules, or in case-law. [33] It was a fact that the petitioner had been in the United Kingdom since 2000, yet no warrant had been produced until September 2002 - six months after the date on the warrant (April 2002). An explanation for those six months had, after an adjournment, been provided to the court, but no such explanation had been offered to the respondent. Nor was it made clear to the respondent why the Turkish authorities might issue an arrest warrant after such a lapse of time. Nor was it explained to the respondent what the warrant meant, why it was produced, or how it came into the petitioner's possession. All that the respondent was presented with, shortly before removal directions were to take effect, was a fax of a purported arrest warrant. It was not clear even now where the principal of the arrest warrant could be found. All that the respondent had was a faxed copy. The circumstances of the present case were similar to those in Nkereuwen. The respondent could not be said to have acted unreasonably in the Wednesbury sense. Nothing irrelevant had been taken into account. The timing of the production of the warrant, in the absence of full explanations, wholly entitled the respondent to decide as he did. [34] Counsel for the respondent added that she was unaware of any authority deciding the question whether a Secretary of State was entitled to take into account an adjudicator's conclusion about an applicant's credibility. But even if the respondent were not entitled to have regard to the adjudicator's views on credibility, it was clear that the respondent in the present case had formed his own view based on the timing of the production of the warrant in the absence of the fuller explanations which had been offered in court during the judicial review. The respondent's concluded view had then been reinforced by the adjudicator's views about the petitioner's credibility.Opinion
[35] I do not accept that the respondent introduced irrelevant considerations when reaching the decision contained in the letter of 4 October 2002. [36] The fourth paragraph of that letter is in the following terms:"When considering applications in accordance with [rule 346], the Secretary of State's approach is therefore to compare the later claim with the earlier claim and to form a view as to whether it is sufficiently different from the earlier claim that a [italics added] special adjudicator might reasonably take a favourable view of the later claim, despite the rejection of the earlier one."
Conclusion
[46] I shall sustain the respondent's first and second pleas-in-law, and dismiss the petition. I reserve all questions of expenses to enable parties to address me on that matter.
