Erdem, Re Application for Judicial Review [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 29

P92/04

OPINION OF LADY PATON

in the petition of

OLCAY ERDEM (AP)

Petitioner:

for

Judicial Review of a decision to refuse representations

________________

Petitioner: Sutherland, Advocate; Wilson Terris S.S.C.

Respondent: Drummond, Advocate; Advocate General's Office

21 February 2006

Whether fresh application for asylum

[1] The petitioner was born on 25 June 1977. She is a national of Turkey. She lives in Scotland with her son Mustafa. She is separated from her husband, a Turkish national also living in Scotland. They are currently being divorced. The respondent is the Secretary of State for the Home Department, having responsibility for immigration and asylum matters.

[2 ] The petitioner applied for asylum, founding upon both the 1951 Geneva Convention relating to the Status of Refugees ("the 1951 Convention") and the European Convention on Human Rights ("the ECHR"), Articles 3 and 8. Her application was unsuccessful. She then made further representations which were rejected by the respondent's letter dated 11 August 2003 as not constituting a fresh claim. In this judicial review, the petitioner seeks reduction of the decision of 11 August 2003. She contends that the respondent erred in law in refusing to treat the further representations as a fresh application in relation to Article 8 (only) of the ECHR.

Article 8 of the ECHR

[3 ] Article 8 provides:

"Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his
home and his correspondence.

2. There shall be no interference by a public authority with the exercise of
this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Test applicable when assessing whether fresh application

[4 ] Counsel were agreed that the definition of a "fresh application" as set out in paragraph 346 of the Immigration Rules provided appropriate guidance not only for applications founded upon the 1951 Convention but also for applications founded upon the ECHR. Reference was made to R (Sivasoruba Ratnam) v. Secretary of State for the Home Department [2003] EWHC 398 (Admin) paragraph [12], and R (Rrustem Maci) v. Secretary of State for the Home Department [2003] EWHC 1123 (Admin).

[5] Paragraph 346 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:

(i) is not significant; or

(ii) is not credible; or

(iii) was available to the applicant at the time when the previous
application was refused or when any appeal was determined."

[6 ] Paragraph 334 sets out the conditions for the granting of asylum in terms of the 1951 Convention.

[7 ] Thus counsel were agreed that, applying the terms of paragraph 346 mutatis mutandis to a claim for asylum founded upon the ECHR, further representations would be treated as a fresh application if the claim advanced in the representations was sufficiently different from the earlier claim that there was a realistic prospect of a successful outcome for the applicant.

History of events

[8 ] On 31 December 2000, the petitioner entered the United Kingdom with her husband and their son. Her husband applied for asylum for himself, the petitioner and their son. That application was refused.

[9 ] On 9 October 2001, the petitioner and her husband separated. Their son continued to live with the petitioner, but maintained regular contact with his father. On 12 October 2001, the petitioner made an application for asylum based upon the 1951 Convention, and upon Articles 3 and 8 of the ECHR. She included her son as her dependant. The petitioner's application was refused for the reasons set out in the respondent's letter dated 8 March 2002.

[10 ] The petitioner appealed to an adjudicator. Her appeal was heard on 10 July 2002. The petitioner submitted a statement, but did not attend the appeal, nor was she represented at the hearing. By a determination promulgated on 19 July 2002, the adjudicator refused the appeal. In particular, the adjudicator stated:

" SUMMARY OF THE APPELLANT'S ACCOUNT

6. I shall set out a summary of the Appellant's account in paragraphs 7 to
10 below.

7. The Appellant was born in Kayseri and is an Alevi Kurd. She married her husband when she was 19 years old. He was a Sunni Muslim. The problems they had began when they got married because both families were of different religions. A week after their marriage her brother-in-law came to stay with them at their home in Kayseri as he was sitting exams at the University there and required to study. The Appellant did not want him living [with] them as they had just got married. On expressing her views to her husband he beat her for the first time. The Appellant's husband's family arrived to find out what was going on with the brother-in-law. While they were staying at the house they criticised her religion, how she kept house as it should be done in the Muslim way. She was so angry with them she told them to leave. Two weeks later the family set up home in Kayseri and this was when the pressure and problems became worse for the Appellant.

8. When the family moved nearer, arguments became worse between the family, the Appellant's husband and herself. When she became pregnant they would continually ask how the baby was to be brought up. The family were mean to her. They would not allow her to talk. They would make derogatory remarks about her religion. The Appellant had problems with her husband which she believed he was being influenced by his parents [sic]. When her son was born she was frightened that the family would try and split up her husband and herself and take her son and bring him up in the Muslim way.

9. The Appellant stated she left Turkey because of her husband's political involvement although she stated that she herself was never involved in any political matters in Turkey. When they left Turkey she did not say goodbye to her own family or her husband's family. The Appellant stated that she has suffered problems with regard to her religion and she fears to return to Turkey because of what will happen to her and her son. Although the Authorities state she will have rights and receive welfare help, she believes this is not true. She has no family there as they have disowned her. Her husband wants her to go back to Turkey and give their son to his parents so they can bring him up in the proper way. The Appellant believes that her husband's family would try to take her son away and bring him up. They would use bribes to get their way. She has no support in Turkey. If she cannot look after her son the Authorities would take him away and put him in a hostel for children whose parents cannot look after them.

10. The Appellant and her husband are separated and [she] understands that he has another woman. The Appellant states that her husband has been violent towards her and she is wanting a divorce. He has been violent towards her and she has reported one incident to the police while in the United Kingdom. The Appellant stayed with her sister for a short time, but her sister could not look after her and she had to move out. The only contact she has with her husband is by telephone to take out their son. He has access for approximately 2 hours a week...

THE DECISION

......

19. I am referred to Articles 3 and 8 of the Human Rights Act. The Appellant stated that if she is returned to Turkey at paragraph 13 of her statement that her family has basically disowned her, she would have no money to keep her son and bring him up. Her ex-husband would wish his parents to bring their son up and that they would be able to do so due to being able to bribe officials or alternatively, her child could be put in a hostel for parents who could not look after them. Her evidence is conflicting. On the one hand she states that her in-laws would bribe an official and alternatively, her son would be brought up in a hostel. Economic reasons are not human rights reasons. I accept the Presenting Officer's submission at 11(i) [namely that those facts, relied upon by the Appellant, did not amount to a human rights reason]. I also note that the Appellant has worked. I refer to paragraph 2 of the Appellant's Statement [where she expressed fears that her in-laws might obtain custody of her son by bribing officials, or that the authorities might take her son from her and place him in a hostel]. There is no evidence that either event would occur. The Appellant would appear to have custody of her child. She refers to Answer 4 A3 to being divorced and at paragraph 15 of her statement her ex-husband only having 2 hours a week access. I accept the Presenting Officer's submission at 11(h) [namely that 'there is no evidence that the grandparents have any influence with the Turkish authorities'].

20. Turning to Article 3 of the Human Rights Act to which I am referred. I do not think that if the Appellant were returned to Turkey that there would be any breach of said Article. I have referred to the beatings the Appellant stated she sustained from her husband and to which I referred in paragraph 17 above. The Appellant did not report these incidents to the Police. She referred to these incidents as private. She is now divorced. I refer to the second last paragraph of the Appellant's agents' letter dated 29 October, 2001 and accept the Presenting Officer's submission at 11(l) [namely that 'the husband has access. He could take her son at any time'].

21. Turning to Article 8 of the Human Rights Act to which I am referred I do not think that if the Appellant were returned to Turkey that there would be any breach of said Article. I accept the first two sentences of the Presenting Officer's submission at 11(j) [namely 'With regard to Article 8, if the Appellant were returned to Turkey she would be returned with her child. There is no question of separation']. I have not been given any evidence to support the supposition that the Appellant cannot go and live in another part of Turkey.

22. The Appellant has failed to satisfy me (a) that she has a well-founded fear of being persecuted if she were returned to Turkey for a reason based on the breach of the United Kingdom's obligations under the 1951 Geneva Convention and (b) that there has been a breach of the European Convention on Human Rights under Articles 3 and 8.

23. Both appeals are dismissed."

Further representations

[11 ] The petitioner did not appeal the determination. However by letter dated 29 July 2003 solicitors acting on her behalf made further representations. The letter enclosed an opinion from a qualified Turkish lawyer, Idris Bozyil, dated 28 July 2003. The opinion was as follows (quoted verbatim):

"I am asked to provide an opinion as to prospects for (i) guardianship of [the petitioner's] child if she [is] deported back to Turkey, (ii) the current Turkish civil code that deals with guardianship of child and it's applications...

... I am going to examine the applications of the articles of Turkish Civil Code in respect to guardianship of child.

The articles 335 to 351 of the sixth section of the Turkish Civil Code is relates the guardianship of child.

Article (335) - Sets a general rule that a custody of an under-age child must be kept with his/her parents, unless there is a legal reason not to be so.

This is considered to be a general rule in Turkish Civil Code where the parties is married and socially, mentally in good condition to brought up a child.

At paragraph 15 of client statement, client stated that she has now been separated. With respect to this situation,

Article (336) - States that in the case of parent are separated, judge should give custody of child to either party.

However, an application must be lodged by client with the court in order to be sole guardian of the child. At this stage a third interested party could become involved by lodging an application to the court indicating and underlying legal grounds of their intervention.

At paragraph 14 of her statement she indicates her anxiety that her husband's parents could become to involved as a third party with the case to take custody of her child away from her. If client's husband parents are to lodge such an application with the court, the situation for client could become more difficult and stressful, could be resulted by taken custody of the child away from her. However, this will not be straight forward case, and it would depends entirely upon the client personal, social, financial and mental situation at time of the case.

Further, in article (346) - exactly states that, if the child's interest and development fell in danger and parents are not in a position to find a solution nor financially sounds, the Judge should take necessary and appropriate measure to protect child interest. This article was amended and added to Turkish Civil Code in 1984. Clearly, this article creates huge discretion for judges. There has been argument that the duty of parents for child was narrowed and kept vague in this article.

In my opinion this could create more intervention in child custody cases even that there might not be an objective evidence that parents are neglected their duty or responsibility as in fact there is no clear definition or list of parental duties. Especially, if the client has been disowned by her family, without any financial security and has been deported from a country as a failed asylum seeker, even if there is know any third party involved with the case, the judgment likely to the end of guardianship from the mother.

Undoubtedly, the client will not receive any sympathy from judge and possibly not even a fair [trial]. Because she sought political refugee status against her own country in a foreign land which is considered to be very bad and dangerous in Turkey now. The judge could also order, a child should not be kept with such a mother who against her country's tradition and law.

In paragraph 13 of client statement, Client states that she does not want her child to be put in a hostel for children whose parents can not look after them.

The article (347) - of the Turkish Civil Code states the situation how a child should be raised and in the case where the child is under-developed morally, physically and mentally then judge should make an order to put the child in a social care institution.

Again here, if a third party involve with case or without any third party involvement the judge himself directly could make an order for custody of the child to be taken away from her mother. In here, the moral education of the child particularly has been emphasised in order to make sure every Turkish child is raised with some basic Turkish tradition or Islamic manner. The judge or third party could raise the issue of the child would [lose] his national identity or tradition if the child kept under custody her mother even that this is against the mother wishes.

Article (348) - of Turkish Civil Code is most important one which clearly indicates the situations where custody of child should be taken away. If the previous protection aimed does not give any result, or such protection is felt to be ineffective and if the following situations is occurs judge should take custody of the child away from the parents.

a- if parents are not capable, ill, disabled, or living somewhere
away, and not in position to perform their duty.

b- If the parents does not show enough care and in negligence of their duty and responsibilities,

A guardian should be appointed for the child if the custody of child is taken from parent both in same time.

As we can see from the above at no point the civil code is mentions the opinion of a social worker would be necessary or and a report from an independent expert on children development would be consulted for making such judgements.

In my opinion, by not taking all relative objective evidence into account and the current prejudice against deportees in Turkey, clearly the credibility of any such judgment would [be] doubtful. That judgement would [be] arguable not only on point of law also on the procedural grounds.

Bearing all those factors in mind, I am not persuaded that best interest of the child would be protected in the Turkish courts I am also not satisfied that Turkish civil code would be more efficient than Scottish Civil Code in relation of the guardianship of child. There could be serious implications on the client if she deported back to Turkey in resulted the end of custody of her child.

For all of these reasons, I am not satisfied that the best interest of the child would be in the hand of Turkish law. Furthermore, without any involvements of social workers or relevant authorities on the child issues, any judgement from Turkish court would be arguable. I am in the opinion of that, the client child could be taken away from her by her husband's parents without even involving a legal case, this is very common in Turkey...

AVUKAT

IDRIS BOZYIL, a member of Turkish Law Society and Scottish Human Rights Centre registered with Istanbul Bar.

35/6 Parkside Terrace

Edinburgh EH16 5XP ...

28 July 2003."

[12 ] The respondent replied by the letter dated 11 August 2003 referred to in paragraph [2] above, refusing to treat the further representations as a fresh application. In particular, the letter stated:

"As you know, [your] client arrived in the United Kingdom on 31 December 2000. She claimed asylum on 12 October 2001. This application was refused in a letter dated 13 March 2002. Your client was given a One Stop right of appeal against this decision which she exercised on 21 March 2002. This appeal was dismissed by an Adjudicator on 19 July 2002. Your client subsequently submitted an exceptional application to remain in the United Kingdom on the basis that removing her to Turkey would breach her human rights under Article 3 and Article 8 of the European Convention [on] Human Rights (ECHR).

In considering these representations it is noted that your client has previously been through the one-stop appeals system, as stated above. This means that your client was obliged under the Immigration and Asylum Act 1999 to mention any and all of the grounds that she wished to rely on at appeal or afterwards at the earliest opportunity.

Consequently, a new decision will not be taken if your client's human rights arguments are founded on circumstances which have already been rejected and/or the adjudicator at your client's appeal did not accept. Nor will a new decision be taken if your client's human rights arguments are based on new issues which could have been raised earlier. If a new decision is taken and the representations are rejected, your client will have the opportunity to appeal on human rights grounds.

When considering representations received after a one-stop appeal, 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 is disregarded. The 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.

You have stated that your client's removal would be a breach of her human rights because she has separated from her husband and fears that her son Mustafa would be taken away from her full care and guardianship under Turkish law. You have submitted a Turkish lawyer's letter dated 28 July 2003 in support of this stance.

Careful consideration has been given to the contents of these representations but for the reasons given below has concluded that they do not constitute a fresh human rights claim.

The letter of 13 March 2002 advised that your client was not allowed leave to remain in the United Kingdom on the basis that she does not have a well founded fear of persecution in Turkey from her estranged husband's family. In reaching this decision it was explained in full why it was satisfied that this decision was not in breach of your client's human rights. Furthermore, the adjudicator in [her] determination of 19 July 2002 stated that 'economic reasons are not human rights reasons'. The Adjudicator also noted that your client has custody of her son and that her ex-husband has access to the child for 2 hours per week. The Adjudicator found that your client had failed to satisfy that there would be any breach of the European Convention on Human Rights under Articles 3 and 8. In particular at paragraph 19 of her determination the Adjudicator found that there was no evidence that your client's ex-husband's family would be able to obtain custody of ... your client's son by bribing officials or that the son would be placed in a hostel.

Mr Bozyil's letter of 28 July 2003 makes it clear that he is [a] solicitor in Istanbul however he does not specify his length of practice and his speciality, in other words why he should be considered an expert in matrimonial law in Turkey.

Regardless of the question of Mr Bozyil's expertise, he refers to Article 336 of Turkish law which states that in the case of separated parents, the judge should give custody of child to either party. This would be the most relevant article to your client's situation yet this article does not state that custody should be given to the father or the father's family. Mr Bozyil goes on to state that your client would have to apply for sole guardianship and that third parties would be entitled to lodge an application indicating their grounds for intervention. This is similar to practices in this country, in that it enables all parties to have their representations heard in custody hearings for fairness, but does not specify a definitive outcome as to who should have an automatic right to the care of the child. Mr Bozyil identifies that many factors are considered when reviewing the custody of a child, as is right. However, this letter is speculative and does not refer to any objective reported evidence of custody decisions in favour of fathers or specific religions.

Mr Bozyil makes reference to the moral welfare of the child as 'every Turkish child is raised with some basic Turkish tradition or Islamic manner'. The key words used by your expert are 'some basic' which implies a minimal level of Turkish tradition or Islamic knowledge, without reported objective evidence to the contrary, there is nothing to support that this reference to moral welfare will have a sufficient impact on the custody proceedings. The Adjudicator previously found that your client did not suffer persecution or breaches of her human rights on the basis of her religion or ethnicity.

Regarding Mr Bozyil's opinion that your client will not receive a fair custody trial because she is a failed asylum seeker. If that were the case, then this would equally apply to her ex-husband's family, as her ex-husband is a failed asylum seeker. However, this point is not accepted it is the personal opinion of Mr Bozyil. In fact the objective evidence of the Home Office Country Information and Policy Unit's Report dated April 2003 at paragraph 6.90 states that there is no evidence that Turkish nationals are persecuted in Turkey purely because they applied for asylum abroad. The Turkish authorities are aware that many citizens leave the country for economic reasons and apply for asylum elsewhere.

The factors raised in your client's letter have been considered and it has been concluded that your client has only re-iterated human rights issues already fully and specifically addressed by the independent adjudicator in [her] determination of 19 July 2002. In addition the Home Office Country Information and Policy Unit's Report dated April 2003 at paragraph 5.22 states that the Turkish Constitution provides for an independent judiciary and in practice the general law courts act independently of executive and legislative branches.

I must remind you that your client has no basis of stay in this country and steps will now be taken to remove her from the United Kingdom."

Submissions for the petitioner

[13 ] Counsel for the petitioner submitted that the letter dated 11 August 2003 should be reduced. The question whether or not something constituted a fresh application should be dealt with in two stages: R v. Secretary of State for the Home Department, ex parte Boybeyi [1997] INLR 130, at pages 132E to 133F. Those stages were (i) addressing the question whether the application should be treated as a fresh application; and if so, (ii) deciding the application on its merits. The two stages should not be conflated: but the respondent in the present case had done so.

[14 ] A new issue had been raised in relation to Article 8 of the ECHR. The new issue had not been considered by the adjudicator, contrary to the assertion in the respondent's letter dated 11 August 2003. The appropriate approach was as set out in Hassan v. Secretary of State for the Home Department, 2004 S.L.T. 34. The respondent had not said that the further material was incredible, or that it was incapable of producing a different outcome, or that it could and should have been advanced earlier. But instead of considering whether the application was a fresh one which might have important implications for the outcome of the case, the respondent had come to a view on the merits. In so doing, the respondent had erred in law. He had failed to apply the proper test, and had misdirected himself.

[15 ] The matters discussed before the adjudicator comprised a fear of illegal actions on the part of the petitioner's in-laws in the form of kidnapping the child Mustafa, and bribing officials. But new matter supported by the Turkish lawyer's opinion was raised in the agents' letter dated 29 July 2003. The whole tenor of the opinion was that the Turkish Civil Code placed a discretion in the hands of the judge. There was an expectation within the system that the child should be brought up in a particular way. There was good reason for the petitioner to believe that she could lose custody of her son in legal procedure in Turkey, either because her husband (qua parent) contested any application which she made, or because the court or her husband's parents took steps leading to her losing custody. Her background and history as a failed asylum-seeker would tell against her. The Turkish system would not necessarily take into account what would be in the best interests of the child. Decisions could be taken without the involvement of professionals who were expert in child care. One possible outcome was the removal of the child from the petitioner and his placement in a hostel. Women had a weaker position in Turkish society than men. None of those matters had been addressed by the adjudicator.

[16 ] The respondent had erred in law in considering the merits of the further representations, rather than assessing whether or not they amounted to a fresh application. In so doing the respondent had further erred, for there was no evidence to suggest that the petitioner's in-laws bore the stigma of failed asylum-seekers. The decision-maker had failed properly to apply the test to ascertain whether the further representations amounted to a fresh application. The respondent should have asked the questions: (i) do the further representations raise fresh issues, and if so, (ii) is it possible that an adjudicator, looking at those fresh issues, might take a view favourable to the petitioner. Instead of applying the proper two-stage test, the respondent had conflated the issues, and made a decision on the merits accompanied by unfounded assertions that all the issues had been considered previously by the adjudicator. The respondent had also referred to the CIPU report, and emphasised that there was an independent judiciary in Turkey: but that was not the point in the Bozyil opinion.

Submissions for the respondent

[17 ] Counsel for the respondent invited the court to dismiss the petition. Submissions were presented in two chapters: first, the relevant law; and secondly, the application of the law to the facts of the present case.

[18 ] The relevant law: Counsel accepted the two-stage procedure outlined on behalf of the petitioner. However she submitted that the respondent, when determining whether the application was "sufficiently different", had to ask if there was a realistic prospect that a favourable view could be taken of the applicant's new claim. Reference was made to Sir Thomas Bingham M.R. in R. v. Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768, at pages 783B-784A; and Lord Woolf M.R. in Nassir v. Secretary of State for the Home Department [1999] Imm.A.R. 250, at pages 251-2 and 253-4.

[19] Counsel submitted that the court could intervene in the present case only if the respondent's decision was one which no reasonable decision-maker could have made on the basis of the material available. Ultimately, the question was whether the respondent had reached a decision which was in substance "reasonable" in the Wednesbury sense. Even if the decision letter contained an error of approach, the court could intervene only if the error was material. Even if there were thought to have been a blurring of the two-stage procedure, the court might nevertheless conclude that the respondent was entitled to take the view he did: cf. Akhtar v. Secretary of State for the Home Department, 2001 S.L.T. 1239, at page 1245D-F; R (Gungor) v. Secretary of State for the Home Department [2004] EWHC 2117 (Admin), paragraphs 16 to 17.

[20] Referring to Hassan v. Secretary of State for the Home Department, 2004 S.L.T. 34, paragraphs [7] to [15], and [39] to [42], counsel contended that the new evidence was "not capable, even if accepted, of producing a different outcome". The petitioner had acknowledged that there was no fresh claim in terms of Article 3 of the ECHR. The respondent for his part accepted that Article 8 could be engaged even if Article 3 was not engaged: R (Ullah) v. Special Adjudicator [2004] 2 AC 323; R (Razgar) v. Secretary of State for the Home Department [2004] 2 AC 368. The issue was therefore whether there could be said to be a fresh claim in terms of Article 8. When establishing a claim under Article 8, the onus lay on the petitioner. The test was whether, upon removal to Turkey, there was a "real risk" that the claimant's right in respect of his private or family life would be interfered with: cf. Secretary of State for the Home Department v. Kacaj [2004] INLR 354. The present case was a "foreign" case, as defined by Lord Bingham in paragraph 9 of Ullah cit. sup. in that there was no interference with the petitioner's right to family life while she remained in the United Kingdom, but only on her removal to Turkey. In a foreign case, the claimant had to demonstrate grave interference such as to amount to a flagrant denial of the human right. That was a high test, demanding quite exceptional circumstances: cf. Razgar, cit. sup.

[21] The application of the law to the facts of the present case: Counsel referred to the adjudicator's determination promulgated on 19 July 2002. Article 8 of the ECHR had been put before the adjudicator. With Article 8 in mind, the adjudicator had noted that removal of the petitioner to Turkey would not result in her being separated from her son. The adjudicator had further noted in paragraph 21 that there was no evidence that the petitioner could not live in another part of Turkey, which would reduce any risk that her in-laws might try to take her child from her. The adjudicator also noted in paragraphs 19 and 20 that there was no evidence that the petitioner's in-laws had any particular power over the authorities.

[22 ] Counsel then turned to the opinion of the Turkish lawyer. Various articles of the Turkish Civil Code were cited. Article 335 was unexceptionable. Article 336 provided that either party could be granted custody of the child. Article 346 concerned child protection measures. Articles 347 and 348 provided for a child being taken into care in certain circumstances. Scots law had similar provisions.

[23 ] Counsel submitted that the new evidence comprising the opinion of the Turkish lawyer neither (i) established a claim in terms of Article 8; nor (ii) gave any realistic prospect of success for the petitioner, for several reasons:

(a) There was no evidence that proceedings were likely to be brought in
Turkey. To bring proceedings into existence, the petitioner herself would have to lodge an application in court.

(b) Any court in Turkey would have to weigh up and balance a number of
factors in order to decide the outcome of any custody application. The position was the same in Scotland.

(c) At the root of the petitioner's claim was criticism of the procedure or
approach which a Turkish court might take. But there was no evidence to suggest what decision a Turkish court might take on the facts of the case.

(d) The opinion stated that the fact that the petitioner was a failed
asylum-seeker would weigh with the court. However the petitioner's husband was also a failed asylum-seeker.

[24 ] Counsel contended that the petitioner's claim dated 29 July 2003 was more an Article 6 claim, questioning the procedure of a foreign court. But her original claim had not been presented under Article 6. In any event, it could not be said that there would be a flagrant denial of the human right to have fair court proceedings because a Turkish court might take into account the fact that the petitioner was a failed asylum-seeker. The court would take many factors into account, including financial circumstances, education, and the fulfilment of parental duties - just as would a court in the United Kingdom. It was not enough for the petitioner to engage in an exercise of identifying a comparative disadvantage of being subject to the Turkish legal system rather than the Scottish legal system.

[25 ] In summary, the petitioner would be returned to Turkey with her child. There was no suggestion that she would be unable to live somewhere in Turkey which was distant from her in-laws. The further representations did not disclose substantial grounds for believing that there was a real risk that the petitioner's removal to Turkey would breach her rights under Article 8. The mere possibility that a right might be infringed was not enough, applying the standard of proof set out in Kacaj, cit. sup. It was impossible to say what the outcome of any court proceedings in Turkey might be. Accordingly the circumstances did not amount to the exceptional or strong case which would engage Article 8. It was not enough for the petitioner to be able to identify a comparative disadvantage when comparing two legal systems. There had to be a flagrant denial of a human right.

[26 ] The respondent's letter dated 11 August 2003 ruled that the further representations did not constitute a fresh claim. The respondent had applied paragraph 346 of the Immigration Rules mutatis mutandis, and had checked whether the further representations were "sufficiently different" in that there was a realistic prospect of a different outcome. The letter did not state in terms that the new material did not demonstrate a realistic prospect that the human rights claim under Article 8 would be successful, but that inference could be drawn from the letter. In any event, it was not necessary to analyse the letter line by line. The respondent was entitled to decide that the further representations did not constitute a fresh application. The decision was reasonable and legal. The court could intervene only if the respondent's decision was one which no reasonable decision-maker could have made on the material before him, in other words, if the decision was Wednesbury unreasonable. That had not been demonstrated.

Final reply for the petitioner

[27 ] Counsel for the petitioner replied by submitting that the respondent was obliged to apply the law correctly. The question whether the further representations constituted a fresh claim was a matter of law, rather than of Wednesbury discretion. Thus, contrary to the respondent's argument, it mattered that the respondent had adopted the wrong approach, even if he reached the same result as he would have reached by adopting the right approach.

[28 ] A level of protection was given by Article 8 even without the severance of family ties. The observations referred to in Ullah and Razgar were obiter, and were inconsistent with the submissions made on behalf of the Secretary of State in those cases. (For example, the context of Lord Bingham's dicta in Razgar became apparent in Lord Goldsmith's analysis at page 372E to 373E.) Nor were the observations entirely consistent with Ciliz v The Netherlands [2000] 2 FLR 469, a decision of the European Court of Human Rights (pages 480 to 482 in particular). There was no requirement that a case had to be "exceptional". Paragraph 24 of Razgar was particularly important. It was difficult to accept the distinction between "foreign" and "domestic" cases if the outcome was inevitably the same. The decision in GS [2005] UKAIT 00121 relating to Article 8 was also useful.

[29] In the present case, the decision-maker should have focused on whether the material gave rise to a fresh claim; whether the material was different; and whether the material prima facie showed that there would be a breach of Article 8. If those hurdles were overcome, then there should be a consideration of the merits. There was sufficient material to show a potential breach of Article 8.

Discussion

[30 ] New material was provided by the petitioner's agents' letter dated 29 July 2003, enclosing the opinion of Mr. Bozyil, a qualified Turkish lawyer. In particular Mr. Bozyil drew attention to certain articles in the Turkish Civil Code, all as set out in paragraph [11] above. He emphasised factors in the petitioner's particular circumstances which might militate against the petitioner's retaining custody of her son if the matter came before the Turkish courts - for example, the fact that the petitioner had been disowned by her family; her lack of financial security; her status as a failed asylum-seeker; and the fact that the Turkish court was not obliged to obtain opinions from social workers or independent experts in child care. Mr. Bozyil gave his opinion that the petitioner might not receive a fair hearing in Turkey, and that he was not satisfied that the Turkish Civil Code would protect her child's best interests.

[31 ] It should be noted that such material was presumably available to the petitioner at the time of her initial application for asylum. Paragraph 346 of the Immigration Rules specifically provides that the respondent will "disregard any material which ... (iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined." However no point about the previous availability of the material was taken in the respondent's letter dated 11 August 2003, and no doubt for that reason counsel for the respondent did not present such an argument during the judicial review hearing. Accordingly I turn to deal with the respondent's treatment of the petitioner's agents' letter dated 29 July 2003 enclosing the opinion of the Turkish lawyer.

[32 ] Counsel agreed that purportedly new material should be subjected to a two-stage test, the questions being:

(i) First, whether the new application should be treated as a fresh claim,

using paragraph 346 of the Immigration Rules as a guide mutatis mutandis;

(ii) Secondly, if the claim were held to constitute a fresh claim, to decide

whether or not to uphold the claim.

Reference was made to R. v. Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768, and R. v. Secretary of State for the Home Department, ex parte Boybeyi [1997] INLR 130.

[33] Counsel for the respondent emphasised that when resolving the first question, paragraph 346 required any inquiry to extend to the question whether the new material was sufficiently different from the earlier claim that there was a realistic prospect of a successful outcome. However counsel for the petitioner argued that there was a risk of conflating the two stages, and that the respondent had done so in the present case.

[34 ] In my view, it is easy to envisage new information which is "different" from previous information, but which would nevertheless be incapable of affecting the outcome. The terms of paragraph 346 make the element of a realistic prospect of a successful outcome an important attribute of the new information. I therefore agree with counsel for the respondent in her contention that the test to be applied at the first stage must include a preliminary assessment (although not a final determination) of whether the new material could realistically result in a successful outcome for the petitioner.

[35 ] In the present case, the respondent's treatment of the new material is contained in the letter dated 11 August 2003. The questions for this court are, in my opinion, whether that letter discloses a proper application of the first stage of the two-stage procedure referred to above; and if so, whether the decision reached by the respondent fell within the range of reasonable decisions open to him - in other words, whether the decision was reasonable in the sense outlined in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.

[36] I am unable to accept that the letter of 11 August 2003 discloses a proper application of the first stage of the two-stage procedure, either expressly or by implication. The letter states:

"Careful consideration has been given to the contents of these representations [contained in the petitioner's agents' letter dated 29 July 2003 and the Turkish lawyer's opinion] but for the reasons given below has concluded that they do not constitute a fresh human rights claim."

However the reasons given in the ensuing paragraphs do not in my view focus, either expressly or impliedly, on the question whether any new material was sufficiently different from the earlier claim that there was a realistic prospect of a successful outcome. There is an apparent indication that the material submitted was not different from material submitted previously. Yet it would in my view be impossible to deny that the letter dated 29 July 2003 and the Turkish lawyer's opinion contain "different" material. In that letter and opinion, a fear is expressed, for the first time, that in the petitioner's particular circumstances (namely disowned by her family, divorced from her Turkish husband, lacking sufficient socio-economic status in Turkey, all compounded by being a failed asylum-seeker) the Turkish legal system might not give either her or her son a fair hearing concerning the question of his custody or residence. The fear is expressed that the petitioner's son might be removed from her care as a result of court proceedings, whether or not that would be in his best interests. Such circumstances and fears are "different" from the previously expressed concerns that the petitioner's son might be taken from her by her in-laws (who might resort to bribing officials) or that her son might be taken from her by the Turkish authorities and placed in a hostel if they considered that she was not able to look after him. The question then arises whether the material is sufficiently different from the earlier claim that there is a realistic prospect that a favourable view could be taken of the petitioner's new claim. In my opinion, the respondent's letter of 11 August 2003 fails properly to address that question. Not only is there an apparent refusal to acknowledge that the new material is "different", but also (despite the guidance given in authorities such as Wordie Property Co. Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345 and Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219) there is no clear reasoning explaining why the new material was not regarded as sufficiently different from the earlier claim that there was a realistic prospect of a successful outcome.

[37 ] Standing the difficulty in discerning from the terms of the letter dated 11 August 2003 a proper application of the first stage of the two-stage procedure, the question of Wednesbury reasonableness (i.e. whether, against a background of authorities such as Kacaj, Ullah, and Razgar, cit. sup. the respondent's decision fell within the range of reasonable decisions open to him) is not in my view reached.

[38 ] The respondent's letter of 11 August 2003 does not demonstrate a proper application of the correct test. There has therefore been a failure to apply the correct test, or, at the very least, a failure to give clear reasons. In either case there has been an error in law. In my view, that error is material, as the failure to adopt the correct approach and to give clear reasons makes it impossible to ascertain how or why the respondent reached the decision that the letter and opinion did not constitute a fresh claim. In the circumstances, I have concluded that the letter dated 11 August 2003 must be reduced.

Decision

[39 ] For the reasons given above, I shall repel the respondent's plea-in-law, sustain the petitioner's plea-in-law, and reduce the decision of 11 August 2003. I reserve any question of expenses to enable parties to address me on that matter.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Erdem, Re Application for Judicial Review [2006] ScotCS CSOH_29 (21 February 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_29.html Cite as: [2006] CSOH 29, [2006] ScotCS CSOH_29

Scottish Court of Session Decisions