Ucar, R (on the application of) v Immigration Appeal Tribunal & Anor [2003] EWHC 1330 (Admin)

Case No CO/2649/2002[2003] EWHC 1330 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20 May 2003
Strand
London WC2
B E F O R E:
MR JUSTICE KEITH
Between
THE QUEEN ON THE APPLICATION OF UCARClaimant-v-
Between
THE IMMIGRATION APPEAL TRIBUNALDefendantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR COLLINS (instructed by SHEIKH & CO) appeared for CLAIMANTMISS RICHARDS (instructed by TREASURY SOLICITOR) appeared for DEFENDANT for The INTERESTED PARTY was not represented and did not attend
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE KEITH: The claimant comes from Turkey. He arrived in the United Kingdom on 14th April 2001, when he was only 18, and claimed asylum here. The Secretary of State refused his claim for asylum, and also concluded that the claimant's return to Turkey would not amount to an infringement of his human rights. The claimant appealed against the decision of the Secretary of State to an adjudicator. The adjudicator dismissed the appeal, and the claimant then applied to the Immigration Appeal Tribunal ("the Tribunal") for leave to appeal to the Tribunal. The Tribunal refused his application for leave to appeal, and the claimant then filed a claim for judicial review of the Tribunal's refusal of his application for leave to appeal.[2]Silber J refused permission for the claim to proceed, and the claimant gave notice of the renewal of his application for permission to proceed with his claim. Only one of the many grounds set out in his statement of grounds was relied upon. Mr Roger Henderson QC gave the claimant permission to proceed with his claim, presumably on that one ground alone.[3]That ground relates to a report prepared by Mr David McDowall, a specialist in Middle East affairs with a particular interest in the Kurds. He is an expert in the field, having contributed to the very document which the adjudicator relied upon for his knowledge about the current political climate in Turkey. That report was commissioned by the claimant's solicitors very shortly after the dismissal of the claimant's appeal by the adjudicator. It was referred to in the grounds of appeal submitted to the Tribunal, and it is not suggested that a copy of it was not sent to the Tribunal. However, the report was not referred to in the Tribunal's reasons for refusing leave to appeal, presumably because the Tribunal did not take it into account. The criticism of the Tribunal is that it should have taken Mr McDowall's report into account in deciding whether or not to grant the claimant leave to appeal.[4]The extent to which the Tribunal may have regard to materials which were not before an adjudicator is dealt with in rule 18(11) of the Immigration and Asylum Appeals (Procedure) Rules 2000 ("the 2000 Rules"). It provides:
"Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator."
The obvious reason why Mr McDowall's report had not been placed before the adjudicator was that it had only been commissioned after the adjudicator's determination. The real question, therefore, is whether there was a good reason for the report not to have been commissioned prior to the hearing before the adjudicator, so that it could have been used on the appeal to the adjudicator.[5]It is here necessary to say something about the nature of the claimant's claim and the reasoning of the adjudicator. The basis of the claimant's claim was that he is an ethnic Kurd, who had been a member and supporter of HADEP, which is regarded as the political wing of the PKK. He had joined HADEP in September 2000. He had been arrested twice by the Turkish authorities -- on 15th December 2000 and again on 10th February 2001 -- because of his involvement with HADEP and his presumed support for the PKK. He had been tortured and eventually released. He had decided to leave Turkey because he feared that if he remained, the persecution of him would continue. He claimed asylum not merely because he feared persecution on account of his presumed support for the PKK, but also because he was an ethnic Kurd and an Alevi Muslim.[6]The adjudicator was provided, by both the claimant and the Secretary of State, with materials on the current political climate in Turkey. Of all the materials with which he was provided, he regarded the Turkey Country Assessment ("the TCA") produced in October 2001 by the Country Information and Policy Unit of the Immigration and Nationality Directorate of the Home Office as the most up to date, the most objective, and the best sourced. He summarised, in paragraphs 8.4 to 8.19 of his reasons, what he regarded as the key findings of the TCA as it affected the claimant. At the end of the day, however, the adjudicator dismissed the claimant's appeal because he did not believe the claimant. He did not believe that the claimant had been an active member of HADEP, or that he had been arrested or tortured, or that he was even known to the Turkish authorities.[7]Against that background, I return to whether, in the light of rule 18(11), there was a good reason for Mr McDowall's report not having been commissioned prior to the hearing before the adjudicator. No explanation has been advanced for not doing so, despite the claimant's advisers taking the view that the adjudicator should be provided with some materials on the current political climate in Turkey. It could be said, I suppose, that there was not much point in commissioning a report from Mr McDowall until it was known what parts of the TCA the adjudicator was going to regard as important. Only then would Mr McDowall know what particular aspects of Turkish political life his report should address. But since the claimant's advisers knew what the claimant's case was, it would, I think, have been quite possible for a report to have been commissioned from Mr McDowall, addressing the aspects of Turkish political life which were relevant to the claimant's case, and contradicting the assessment in the TCA of those topics.[8]The real point of Mr McDowall's report was to deal with the particular reasons why the adjudicator rejected the claimant as a credible witness. By definition, those parts of his report could not have been written until the adjudicator had decided whether the claimant was to be believed, and if not, on what grounds. Having said that, the Secretary of State had himself doubted the claimant's credibility, broadly speaking, for the same reasons that the adjudicator was eventually to do so. It could, therefore, properly be said that a report could and should have been commissioned from Mr McDowall addressing the points on which the Secretary of State had rejected the claimant's credibility.[9]However, rule 18(11) does not in terms prevent the Tribunal from considering fresh evidence when no good reason for not submitting that evidence to the adjudicator has been given. That follows from the language of rule 18(11) itself, which simply provides that the Tribunal is required to consider fresh evidence if good reasons exist for it not having been submitted to the adjudicator. Moreover, rule 18(11) is expressly made subject to section 77 of the Immigration and Asylum Act 1999. Section 77(3) provides that in any asylum appeal, the Tribunal "may take into account any evidence which it considers to be relevant to the appeal". Thus, it has been held that where evidence is credible and sufficiently cogent to be capable of affecting the decision, the Tribunal should be slow to refuse to allow it to support an application for leave to appeal: see, for example, R v The Immigration Appeal Tribunal ex parte Aziz [1999] INLR 355. But the cases also show that: "...the process of appeal to the Tribunal is not intended to provide applicants with a chance to present evidence which they could reasonably have produced to the adjudicator at the appropriate time and had failed to produce despite directions, so appellants' representatives will not have carte blanche to avoid the consequences of their own neglect by an appeal" (see McDonald's Immigration Law and Practice, 5th ed, para.18.173).[10]Mr McDowall's report was, as I have said, referred to in the grounds of appeal submitted to the Tribunal. The point was made in those grounds that Mr McDowall's report undermined the conclusions which the adjudicator had reached. It follows that if the Tribunal did not look at Mr McDowall's report, it fell into error because it should at least have looked at the report in order to decide whether the report was capable of undermining any of the reasons which caused the adjudicator to doubt the claimant's credibility. In coming to this conclusion, I have not overlooked Practice Direction No 4, issued by the President of the Tribunal, reported in [2001] Imm AR 172. Para.2(ii) provides:
"If an applicant seeks to rely on any evidence which was not submitted to the adjudicator, he must include in his application a full explanation of why that evidence was not so submitted. The Tribunal will not in deciding whether to grant leave to appeal consider any such evidence unless satisfied that there are good reasons why it was not submitted to the adjudicator (Rule 18(11)). A decision by an appellant or his representative (for whatever reason) not to submit the evidence will not normally be regarded as a good reason for not having submitted it. Similarly, if the evidence existed and could by taking reasonable steps have been submitted, the Tribunal is unlikely to decide that there was a good reason for not submitting it. If no explanation is given, the Tribunal will almost certainly not take the evidence into consideration."
That Practice Direction reflects the overriding objective of appeals to the Tribunal, which is described in rule 30(2) of the 2000 Rules as being "to secure the just, timely and effective disposal of appeals". The last two sentences of the paragraph in the Practice Direction which I have cited show that there may be cases, although very few, in which it may be appropriate to consider evidence which was not submitted to the adjudicator, even if it could have been submitted to the adjudicator, and even if no explanation for not doing so has been proffered.[11]Judicial review is a discretionary remedy, however, and the question remains whether relief should still be granted. That raises the question of whether Mr McDowall's report was indeed capable of undermining any of the reasons which caused the adjudicator to doubt the claimant's credibility. There were four reasons why the adjudicator disbelieved the claimant. First, the claimant was unable to answer a number of questions about HADEP nationally, even though he claimed to be active on HADEP's behalf locally. Secondly, if the claimant had been tortured in the way he had described, he would have been scarred, he would have been hospitalised for a long time, and he would have left Turkey as fast as he could. As it was, he had no scars from his experiences, he did not claim that he had been hospitalised, and he did not leave Turkey until almost six weeks after his release from the second period of detention. Thirdly, if he had been of real interest to the Turkish authorities, he would not have been released as peremptorily as he claims he was. Fourthly, it was inconceivable that the claimant would have been arrested because he had been distributing leaflets about Nevroz, which is a festival celebrated by Kurds, and urging people to celebrate it.[12]The third and forth of those reasons were, in my judgment, contradicted by Mr McDowall's report about the current political climate in Turkey. His scepticism about the first of those reasons was based on his knowledge about young Turkish men, who embrace extreme political parties of either the left or the right. It would not have surprised Mr McDowall if young HADEP supporters, who were active for HADEP locally, knew nothing about HADEP nationally. The second reason was the only reason which Mr McDowall felt unable to contradict, although even then he rather doubted whether the particular type of torture to which the claimant claims he was subjected would have caused scarring. Indeed, it is fair to say that the adjudicator himself did not refer to why the particular type of torture to which the claimant claims to have been subjected would have left scars or ought to have caused the claimant to have been hospitalised.[13]Not without some hesitation, I have concluded that if the Tribunal had considered Mr McDowall's report in order to decide whether it cast such a different light on the adjudicator's reasons for doubting the claimant's credibility that the claimant had a real prospect of success on his appeal, the Tribunal would have come to the conclusion that the report was at least capable of undermining the adjudicator's reasons for doubting the claimant's credibility. It may be that even if the Tribunal had considered the report, it would have ultimately concluded that leave to appeal should not be given because the claimant still did not have a real prospect of success in his appeal, but I cannot say that the Tribunal would inevitably have come to that conclusion. Since I have decided that Mr McDowall's report was capable of undermining at least some of the reasons which caused the adjudicator to doubt the claimant's credibility, it follows that there must be an order quashing the decision of the Tribunal refusing the claimant leave to appeal, and there must be an order requiring a different member of the Tribunal to reconsider whether leave to appeal should be granted, this time in the light of Mr McDowall's report.[14]Yes?[15]MISS RICHARDS: My Lord, might I ask for clarification of one matter relating to the last part of my Lord's judgment and the relief sought?

MR JUSTICE KEITH: Yes.

[17]MISS RICHARDS: As I understand the tenor of your Lordship's judgment, you are not saying that the Tribunal had to consider Mr McDowall's report, you were saying that the Tribunal had to consider whether to consider Mr McDowall's report. I just want to ensure that is right so there is no misunderstanding.[18]MR JUSTICE KEITH: No. Since I had come to the conclusion that if the Tribunal had considered that report, it could have had an impact on the question whether or not there should be leave to appeal, in this case, in the light of that finding, the Tribunal has to consider the report in order to determine the application for leave to appeal. Therefore, what I said the order should be is what I intended.[19]MISS RICHARDS: My Lord, obviously it is not open for me to reopen the argument on that, but I wanted clarification in relation to that. Might I just take instructions on the question of permission to appeal?

MR JUSTICE KEITH: Yes.

[21]MISS RICHARDS: My Lord, I am instructed to ask for permission to appeal. Can I just briefly indicate why. What my Lord has said is not simply, in my submission, that there is a power in the Tribunal to consider this material, and the Tribunal ought to have considered the exercising of that power, my Lord has effectively said that there is only one way in which the Tribunal could have exercised that power, and that is to consider the material in deciding whether to grant leave to appeal. In that respect, my Lord's judgment arguably goes too far and there is a possibility that the Court of Appeal might disagree with it. There are potentially wider ramifications to your Lordship's judgement, in any event. Effectively, the result of the case is that even in circumstances where there is no good reason for the report having not been made available to the adjudicator because it might be relevant to the exercise of grant of appeal, nonetheless it has to be considered, and that effectively is inconsistent, at least arguably, with Rule 18(11). In other words, your Lordship's judgment goes further than saying simply that the Tribunal has to consider whether to consider the report. It says that it has to consider the report simply because it might have made a difference, and that effectively goes beyond Rule 18(11). So on that basis, I would ask permission to appeal.[22]MR JUSTICE KEITH: I am not going to give you permission to appeal. I think this is one of those cases in which you ought to go to the Court of Appeal itself. I do not think I can say there is a real prospect of success.[23]MR COLLINS: My Lord, I would ask for our costs in this matter.[24]MISS RICHARDS: I do not resistant that, my Lord.

MR JUSTICE KEITH: Is your client publicly funded?

[26]MR COLLINS: Publicly funded at the moment, yes, but the position here was -- it is common knowledge, and your Lordship will be aware, once it has been refused on the papers, public funding is withdrawn. Certainly, the claimant has paid some litigation himself.[27]MR JUSTICE KEITH: Well, you will therefore require, what used to be called, legal aid taxation for the claimant. You are also asking for your costs to be paid by the Secretary of State. That is not opposed and I will grant it.[28]MR COLLINS: Thank you, my Lord.[29]MR JUSTICE KEITH: That will be subject to a detailed assessment. The certificate is not on file. Would you give an undertaking to file the certificate within seven days?[30]MR COLLINS: Yes.

MR JUSTICE KEITH: Thank you both very much.