A v Secretary of State for the Home Department [2006] EWCA Civ 149

Case No C5/2005/1847/A[2006] EWCA Civ 149
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 8 February 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAY
LORD JUSTICE LATHAM
LORD JUSTICE LONGMORE
Between
AAppellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M S GILL QC & MR D BAZINI (instructed by Trott & Gentry Solicitors, LONDON N1 8EG) appeared for Appellant.MS E LAING (instructed by Treasury Solicitor) appeared for Respondent.
J U D G M E N T

LORD JUSTICE LONGMORE:

[1]The appellant in this case was born on 10 March 1977 and is a Turkish Kurd of the Alevi religion. He obtained a passport in August 2003 in his home area of Malacha. On 24 March 2004 he came to the United Kingdom using his passport and claimed asylum on arrival. He asserted that he and his family had given shelter to a female second cousin, Miss Ozlem Taz, who had been an active and militant member of the military wing of DHKP-C, an illegal Kurdish separatist movement. She had carried out her activities in the area of Denizli. It was said that in 1999 she had been sentenced to a 36-year term of imprisonment for being a member of the relevant organisation, but had gone on hunger strike and in 2003 was temporarily released for six months, to obtain medical assistance. She applied for an extension to her temporary release, which was refused. Two weeks before the end of her six month release period, she arrived and was sheltered for a short time by the appellant’s family. Thereafter she melted away, but Turkish soldiers came looking for her. The appellant, who was questioned and then beaten up, escaped to Istanbul, thence by air to Germany and three months later by lorry to the United Kingdom.[2]In a very full letter of 25 March 2004, the Home Office rejected the appellant’s claim for asylum, on the basis that there was no well-founded fear of persecution and that there would be no contravention of his human rights for him to be returned to Turkey. The appellant appealed to an adjudicator, Miss A D Baker, who on 9 June 2004 disbelieved his account in relation to Miss Taz; that she had been released temporarily in 2003 for medical reasons, and sheltered by his family, giving rise to a need for the appellant to flee from his home. The adjudicator considered that the appellant’s account of Miss Taz being released in February 2003 was “wholly not credible”, since the evidence was that release of hunger strikers had only occurred in 2001. There was no evidence that such releases occurred in 2003. She also concluded that it was not likely that Miss Taz was a relation of the appellant at all. She added that the appellant would not have been allowed to leave Turkey on his own passport, or even to obtain a visa to leave for Germany, if he was genuinely of interest to the authorities. Moreover, there was no adverse interest in the appellant when he was in Turkey, and no adverse interest was likely on his return. He appealed to the Immigration Appeal Tribunal, but before the appeal was heard, that tribunal ceased to exist. On 4 April 2005 the Asylum and Immigration Tribunal came into existence, and took over appeals originally made to the IAT. The hearing of the appellant’s appeal, if in the light of the transitional arrangements that is the right word for it, actually took place on 4 April 2005, the first day of the AIT’s existence.[3]The grounds of appeal to the IAT dated 25 June 2004 were that the appellant had “fresh evidence” from Germany, to the effect that Miss Taz:
“… was arrested and imprisoned by the Turkish authorities, because of her active political involvement, and was subsequently released for an interim period by the Turkish authorities, due to her medical condition.”
[4]On 2 September 2004, Mr Batiste on behalf of the IAT, granted permission to appeal, since in his view the new evidence relating to the treatment of Miss Taz appeared to be relevant to the adjudicator’s reasoning for her adverse findings on credibility. The new evidence needed to be assessed, to ascertain whether it had any impact on the sustainability of her conclusions. It will be apparent that this decision to grant permission to appeal was made before the IAT became fully aware that their power to hear appeals on fact in relation to any decision by the adjudicator made after the first week of June 2003 had been revoked by Parliament and that they only had jurisdiction to hear appeals on questions of law. Neither the appellant’s grounds of appeal, nor the grant of permission, identified any question of law to which the fresh evidence would be relevant. It was only after the decision of this court in Mlauzi v SSHD [2005] EWCA Civ 128 rendered on 7 February 2005, that this restriction on the jurisdiction of the IAT may have become fully apparent.[5]By the time the appeal came before the AIT, by virtue of the transitional provisions contained in the Asylum and Immigration Act 2004 substituting the AIT for the IAT, it had become apparent to members of both the IAT and the AIT that a point of law had to be found before they could exercise their jurisdiction. The AIT observed that the appeal was to be treated as a reconsideration, pursuant to Article 5(2) of the Asylum and Immigration Treatment of Claimants Act 2004, (Commencement No. 5 and Transitional Provisions) Order 2005, and proceeded first to consider whether the adjudicator had made a material error of law. Since no such error had so far been alleged, Mr Bazini, then appearing on his own for the appellant, applied to amend his grounds of appeal to attack the adjudicator’s findings of credibility, and in particular to say, to put the matter broadly at this stage, that the material considered as a whole supported the assertion that Miss Taz would indeed have been released for medical reasons in 2003, and was thus likely to have been sheltered by the appellant’s family.[6]The AIT held however 1) that they had no jurisdiction to allow an amendment to the grounds of appeal because paragraph 62 (vii) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 limited their reconsideration of the adjudicator’s decision to the grounds on which the IAT had granted permission to appeal; 2) that even if they had jurisdiction to allow an amendment to the grounds of appeal, they would not exercise it at such a late stage of the proceedings; 3) that by concession, in the absence of any amendment, no error of law by the adjudicator could be shown.[7]Before the AIT, Mr Bazini had sought to invoke the principle set out in the SSHD ex parte Robinson [1998] QB 929, in which it was held that if there was a “readily discernible and obvious” point, of what Maurice Kay LJ, in Miftari v SSHD [2005] EWCA Civ 481 Paragraph 39, has referred to as refugee convention law, which the appellant had not taken, the Immigration Appeal Tribunal and the court on any appeal should permit such point to be taken, or take it of their own motion and if appropriate, allow an appeal. The IAT made no reference to Robinson, either in their decision or in their refusal of permission to appeal to this court. The appellant has, however, been given permission to appeal to this court, on the basis that it is arguable that the Robinson principle applies, despite the provision of Rule 62 (vii) of the 2005 rules and that even if the Robinson principle does not apply, the rule itself is ultra vires or unreasonable.[8]In granting that permission, Neuberger LJ sagely observed that the Robinson type errors identified in the appellant’s skeleton argument might well be insufficient to allow the appeal to succeed. Since counsel for the Secretary of State accepts that it is open to the IAT in law to invoke the Robinson principle, the first point in the appeal is whether the points sought to be made in the Amended Grounds of Appeal to the AIT are indeed Robinson points. It is important to note that Lord Woolf MR said in Robinson that the relevant point had to be strongly arguable.

The Amended Grounds of Appeal

[9]The first amended ground is that the adjudicator’s reasoning in paragraphs 6(g) and (h) is unreasonable. In these paragraphs the adjudicator says that the claim that Miss Taz was released in 2003 was not credible because the conditions of detention had by then been eased. Relying on a Committee for the Prevention of Torture report after a 2002 visit to Turkey, she concluded that in 2002 and 2003 the authorities were not releasing individuals for the purpose of medical treatment. It is now said to be “discernible and obvious” from paragraph 6(e) of her decision that her conclusion is wrong, because she there said that hunger strikes continued to occur in 2003. That is, however, no more than a criticism of the adjudicator’s factual conclusion on the material available to her. The fact that hunger strikes occurred in 2003 does not necessarily mean, that prisoners were released in 2003, as they were in 2001, for medical reasons, particularly if conditions had eased. There is in my judgment no discernible and obvious point under the Refugee Convention which has been raised.[10]Secondly, reliance was sought to be placed on an Amnesty International report of 26 May 2004, indicating that some prisoners were, or may have been, released for medical treatment in 2003. That document, however, has not been produced to us, and has not been before us, and in the circumstances that point is not pursued. It is next said that the adjudicator made a factual error about the length of time for which Miss Taz was allegedly staying with the appellant’s family; in two other places however, she gave the correct time, and that small mistake was irrelevant to any finding of credibility.[11]It is important to note that the adjudicator’s decision was governed by her findings of credibility in relation to the underlying facts relating to Miss Taz. The fourth and fifth supposed Robinson points are that the adjudicator was plainly wrong to rely on the fact that the appellant had used his passport to leave Turkey in assessing the credibility of his account of having to hide at his parental uncle’s home after Miss Taz had melted away. The reason for this is that it is said that he had been detained by the authorities, but not convicted of any criminal activity, and would not therefore have appeared on the GBTS computer records, to which airport staff had access. There is no sign that this point was ever made to the adjudicator, and it is suggested that the adjudicator may have taken this point of her own motion. It is not a point which is discernible on the face of the adjudicator’s decision, and would only be obvious to those who had at their fingertips the reports and decisions relating to GBTS records in Turkey. More importantly, it is not a point which goes to the credibility of the underlying history; it only goes to the credibility of the appellant’s account, after he had left his family home.[12]The same considerations apply to the last supposed Robinson point that the adjudicator was plainly wrong to rely on the ease with which he obtained a visa, if the authorities thought he knew where Miss Taz was. That goes to the question of whether the appellant was wanted for questioning, and was to that extent of interest to the authorities before he left Turkey. It may be right to say that a foreign embassy would have no reason to refuse a visa, but that is in no way central to the question of whether the overall history of the appellant’s association with Miss Taz was to be believed, nor is it a discernible and obvious point in the Robinson sense.[13]In these circumstances, despite Mr Manjit Gill QC’s gallant arguments for the appellant, no further point can arise on this aspect of the appeal. If the amended grounds did not raise Robinson points, it is unnecessary to decide whether on its true construction Rule 62(vii) prevents the AIT, on reconsideration of the adjudicator’s decision pursuant to the transitional provisions, from taking Robinson points into account. In any event, Miss Laing, for the Secretary of State in her skeleton argument produced to this court, does not contend that the AIT cannot do so. That concession will be a matter of record, and is an answer to the first point on which a permission to appeal to this court was given. To the extent that the AIT considered that Rule 62(vii) prevented them from considering Robinson points, they were therefore themselves guilty of an error of law but, for the reasons I have given, it is an immaterial one.[14]The amended grounds of appeal thus sought to raise points which are not Robinson points. They were all points of possible weight, which the appellant might have been allowed to take if there was jurisdiction to give him leave to amend his grounds, but the AIT said that even if there were jurisdiction to give the appellants leave to amend, it was far too late for them to be put forward on the morning of the hearing, when neither the Secretary of State nor the AIT had any notice of them, and had any opportunity to deal with them.[15]It was on this aspect of the case that Mr Gill concentrated the first part of his submissions to us today. He refers to the overriding objective, set out in Rule 4 of the Rules of Procedure 2005, that proceedings should be handled as fairly, quickly and efficiently as possible. He said, secondly, that no objection had been taken on behalf of the Secretary of State to the amendments, since the AIT had of their own motion decided not to allow the amendments. Any delay for the Secretary of State to have considered the points, and considered his position, would only have been minimal Thirdly, he submitted that the points were arguable ones, even if not strongly arguable ones, as required for the Robinson principle to apply.[16]As to this latter submission, I have already given reasons for saying, that the points were not “strongly arguable” in the Robinson sense, whatever that phrase may precisely mean. It does not seem to me, that they are “arguable” either. The first amended ground sought to say that the adjudicator’s reasons for the finding on credibility were not reasonable, but the grounds do not come anywhere near alleging or proving perversity, which is what is needed to get an appeal on a question of law off the ground in relation to reasonableness. Nothing now turns on the second and third amended grounds of appeal, and I have already said, that whatever strength the fourth and fifth grounds of appeal might have as independent points, they do not go to the central grounds, in reliance on which the adjudicator based her findings of credibility. There was therefore never any justification for allowing the grounds of appeal to be amended, even if there was jurisdiction to do so; there is just nothing unfair in disallowing it.[17]As to Mr Gill’s first submission, once one has concluded that it would not have been unfair to the appellant for proposed amendments to be disallowed, one is left with that part of the overriding objective, which requires that proceedings should be handled “quickly and efficiently”. These are not meaningless words; quite apart from the discourtesy to a tribunal in arriving with amendments in one’s briefcase of which one has given no notice to the tribunal or the other side, it is not an efficient way of proceeding. Almost certainly a further adjournment would have had to take place if the amendments were to be allowed, in a case in which asylum had been claimed as long ago as March 2004 and almost ten months had elapsed between the formulation of grounds for appeal on 25 June 2004, and the proposed reformulation of 4 April 2005. These appeals are supposed to be dealt with quickly and efficiently, as well as fairly.[18]That only leaves the question whether Rule 62(vii) is in any event ultra vires to the Lord Chancellor or other rule-making authority. For my part, I would be reluctant to decide that question in a case where it does not matter to the outcome; any decision would be obiter only, and it would be better if the question were determined in a case where the decision was part of the ratio of the judgment. It would also be difficult to determine it, without also determining whether the 2005 Rules had a similar provision in relation to reconsiderations by the AIT of their decisions made in the ordinary course, rather than merely in accordance with the transitional provisions. This is itself apparently controversial. We have been referred to a decision promulgated yesterday, in which the AIT has given a full, careful and starred decision on the question whether amendments are excluded by Rule 62(vii); the reference for that decision is JM (Liberia) [2006] UKAIT 00009. It would be much better if any appeal from that decision could be expedited. I would dismiss this appeal.

LORD JUSTICE LATHAM: I agree.

LORD JUSTICE MAY: I also agree that this appeal should be dismissed for the reasons which Longmore LJ has given.

[21]The Asylum and Immigration Tribunal came into operational existence on 4 April 2005. The matter now before this court was heard by the AIT on 4 April 2005. It came on appeal from an adjudicator operating under the former legislation and was, until the final hearing, an appeal to the Immigration Appeal Tribunal. It was the Immigration Appeal Tribunal which, on 2 September 2004, had given the appellant permission to appeal. Transitional provisions say that such appeals, undetermined when the Immigration Appeal Tribunal ceased to exist, are to be treated in the AIT as reconsiderations. The Asylum and Immigration Tribunal (Procedure) Rules 2005 have rules applicable to transitional cases. One of those is Rule 62(vii), which provides:
“Where a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator’s determination before 4 April 2005, but the appeal has not been determined by that date, and b) by virtue of transitional provisions order the grant of permission to appeal is treated as an order for the tribunal to reconsider the adjudicator’s determination, the reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal.”
[22]In the present case, the AIT held that this meant that they had no jurisdiction to consider amended grounds of appeal. Mr Gill QC wished to challenge that in this appeal. In short, it is contended that the rule is ultra vires, being irrational or otherwise unlawful, or alternatively it has to be read down to make meaningful and fully effective the right to seek by amendment reconsideration on a point of law. The Secretary of State, through Ms Laing, would challenge this, but she has accepted that proper Robinson points of the nature outlined by Longmore LJ are properly available upon a reconsideration in the AIT in transitional cases, notwithstanding Rule 62(vii). Neuberger LJ, in giving permission to appeal to this court, wrote that Robinson points which Longmore LJ has dealt with, and the question whether Rule 62(vii) is ultra vires or otherwise unlawful, were arguable and fit for decision by this court. He nevertheless anticipated the possibility that Robinson points might well be insufficient for the appeal to succeed. Such is now the unanimous decision of this court, and we have reached the same conclusion on the question whether, assuming Rule 62(vii) can be circumvented, the discretion to refuse to permit amendments which fell short of Robinson points, which the AIT did contingently exercise, constituted in this case an error of law. I agree that it did not.[23]We decided to take these points first because if, as has happened, the appellant fails on them, the Rule 62(vii) point is redundant. We were disinclined from addressing the Rule 62(vii) arguments in an appeal in which a decision on them would be unnecessary. We were also disinclined from addressing that part of Mr Gill’s submission as to the position with amendments in a reconsideration before the AIT which is not transitional, which may be a necessary ingredient for consideration of Rule 62(vii); when this is simply not such a case. In the event, the Rule 62(vii) point does not arise for decision and we have declined Mr Gill’s invitation to embark on its academic consideration. We nevertheless recognise that it is an important point which should be soon considered and determined by this court in an appropriate appeal. We have been shown the Asylum and Immigration Tribunal’s star decision promulgated two days ago in JM (Liberia) [2006] UKAIT 00009. We have not looked at this in detail, but the decision is that with three reservations expressed in paragraph 27, Rule 62(vii) means what it says. In order to help the appropriate expedition of this or another suitable case to this court for a decision, we express the view that it seems to us desirable that those involved, including but not limited to the AIT, this court, and those responsible for funding such matters, should take all reasonable steps to enable this court to decide the issue as soon as is reasonably possible.

Order

Appeal dismissed.