Gungor, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 2117 (Admin)

Case No CO/6480/2003[2004] EWHC 2117 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 7 September 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF GUNGORClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Reporting Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR E MUNIR (instructed by DUNCAN LEWIS & CO) appeared for CLAIMANTMR J WAITE (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This claim has a somewhat lengthy history. It concerns a claim for asylum which the claimant made following refusal of his original claim and the dismissal of his appeal against that refusal. The Secretary of State refused to regard the claim that was put forward on his behalf as a fresh claim and that led to the institution of these proceedings.[2]The original refusal was dated 5th September 2003. There was an attempt to persuade the Secretary of State to change his mind in late November, but that failed and permission was originally granted on 18th December 2003 by Sir Richard Tucker. The matter was listed for hearing on 5th May 2004 but was then adjourned by consent and there was a further adjournment on 14th July, although that too was without the need for any hearing.[3]The reason for the first adjournment on 5th May was that on 21st April the Secretary of State had made a fresh decision, but he failed to notify the claimant and his advisers of that until three working days before the date of the hearing. In the result, understandably, there was a concern that the claim should be reconsidered. It was reconsidered and certain fresh material was produced and it now comes before me.[4]As I have said, the claim was originally against the decision made now nearly a year ago, but it is obviously sensible and both sides recognise that it is necessary to consider the matter in the light of the decision of 21st April.[5]Let me therefore go to the facts in so far as they are material. The claimant is a Turkish Kurd. He arrived in this country in August 2003 and sought entry for a short period as a visitor. The immigration officials noticed that the visa in his passport had clearly been altered and did not apparently belong to him. Further examination of the passport established that the passport itself was a genuine passport but the visa was not one which properly belonged to that passport.[6]The claimant was therefore refused leave to enter. Removal directions were set and he then claimed asylum. He was placed in detention at Harmondsworth and dealt with under the "fast track system" applicable to those who were held at that centre.[7]The Secretary of State refused his application for asylum and he then appealed to an adjudicator who heard the appeal on 22nd September 2003. She rejected his appeal by a decision dated 23rd September.[8]He was then represented by a firm of solicitors and at his appeal was represented by counsel instructed by those solicitors. Counsel complained that she had not had sufficient time or opportunity to take full instructions from the claimant and furthermore the claimant had produced what was said to be an arrest warrant, but it was not translated and was therefore not capable of being understood by the adjudicator. An application was made for an adjournment to enable the document to be translated and to enable counsel to take further and fuller instructions. That application was refused by the adjudicator, she taking the view that there had been ample time to produce all necessary material.[9]The claimant's case in brief was that he feared return to Turkey due to his experiences at the hands of the authorities there. He had been discriminated against as a Kurd, at school and more significantly as a result of his political involvement with HADEP. He had been arrested, he said, and physically ill-treated by the authorities on a number of occasions, most recently in May 2003. He had also come to the adverse attention of the authorities because he had stepped on a Turkish flag and that meant that he was wanted in Turkey. Furthermore, he was, he said, a draft evader and was unwilling to undertake military service.[10]The Secretary of State questioned the credibility of the account that he had given in his refusal letter. He felt that the excuse given for not coming clean on entry in respect of his false visa was, as he put it, a weak explanation and took the view that the claimant had indeed intended to mislead. He also made the point that as the date of birth was given in the passport as 1st June 1980, he would have completed military service by then and there was no evidence that he had deferred his military service. He made the point too that in June 2003 he had gone to Cyprus but had returned to Turkey of his own free will and had had no problems in Cyprus or passing back to Turkey, nor had he had any problems passing through controls in Istanbul when leaving Turkey. He was vague and showed lack of knowledge about the leadership of HADEP, now renamed as DEHAP, and the point was made that he had only, if he had been arrested, been held for short periods and that therefore the Secretary of State did not accept that he was of interest to the authorities in Turkey. So it was a combination of lack of belief in the account that he had given, coupled with a reckoning that even if he had been detained and had been the target of the authorities in the past, he was really of no interest to them because he had had no problems at all in leaving and had chosen to travel backwards and forwards to Cyprus before leaving the country in August 2003.[11]The adjudicator gives full reasons for rejecting the claimant's account and it is important, in the light of the way this case is put, to see what the adjudicator did decide. She sets out her conclusions in paragraph 9 under the heading "findings" which contains fourteen sub-paragraphs. She relies on the vagueness of the accounts given by the claimant and discrepancies in dates when he had been arrested. When dealing with the flag point, which he said had led to his arrest in May 2002, he said that he had run away but that he had been arrested. However, in interview he had said that that incident was in May 2003. It was his case at the hearing that it was not, it was in 2002. That is important because of the terms of the alleged arrest warrant to which I will come in due course.[12]So far as joining HADEP was concerned, he had given three different dates about that which varied between the summer and the autumn of 2001. He was unable to identify the leadership of DEHAP and the explanation in his witness statement of his inability to name was that he had made a mistake. The adjudicator took the view that he had changed his account as to why he did not wish to undertake military service, saying in interview that he feared an individual but at the hearing that he did not want to fight for Turkey as a Kurd. There was then the question of his date of birth. As I have said, the passport, which was a genuine passport and which had his name and photograph in it, gave a date of birth of 1st June 1980. Since then the claimant had asserted that his actual date of birth was 2nd October 1983 and he has since produced an identity card which appears to give that date of birth. The passport, he now says, was actually his cousin's passport, his cousin having been born on 1st June 1980 and having the same name as him. His photograph had been substituted for the cousin's photograph. He seeks to substantiate that by producing the cousin's identity card, which does indeed confirm that that was his (the cousin's) date of birth. The significance of that, of course, relates to the further credibility finding in relation to military service because the Secretary of State had, and it is a point taken up by the adjudicator, indicated that had he had a date of birth of 1980 he would have been called up for military service a considerable time before he left Turkey. And so the question of the date of birth was of some significance. The adjudicator deals with it in paragraph 9.8 and I think it is desirable that I should set out her reasoning:
"A further credibility issue is that concerning the appellant's date of birth. He came to the UK on a passport which bore his own photograph and name and a date of birth as 1980. The documentation in the appeal bundle confirms that the passport was valid and it was simply the visa details which were forged. Since that point in time the appellant states that his date of birth is 1983. I myself asked him about this as it appeared to me that the appeal form which he confirmed to me had been prepared on his instructions nonetheless bore a date of 1980. Arguably, his solicitors simply did not take on board his instructions although it seems to me somewhat curious that they gave a date of 1980 and this date was also specified in the letter that accompanied the appeal form. Given his lack of credibility for the other reasons I have referred to, my conclusion is that he has attempted to lie also about his date of birth as he could not give any explanation of how he could have avoided military service given that he would have been eligible at an earlier date than he has claimed."
In 9.9 she continues:
"That brings me to the question of his passport. He has acknowledged that while he did have a passport of his own, nonetheless in order to travel to the UK he used his cousin's passport. Whilst it bore his own name and photograph he submitted that the date was the date of his cousin's birth and further that the details of parents given on that document relate to his cousin. The latter could not be verified by examining the passport given the lack of the original document. Nonetheless I do not accept the appellant's explanation concerning his passport. It seems to me that this is indeed his own passport, which he has been trying to distance himself from. Quite apart from anything else, one questions whether his intelligence or indeed the intelligence of an agent, travelling on a document which bears his own name and photograph if he is of interest to the authorities. One might have assumed that he would have taken on an entirely different identity rather than the identity of a cousin whose details are the same."
Those last two sentences are points which are valid quite independently of any question about the validity of the passport or the claimant's age. It is not in the least surprising that the adjudicator was to a high degree sceptical about the account that the appellant had given in relation to the passport and his age, but it is important to note that she puts it on the basis that this was an extra reason for her to believe that he was not a credible witness. But she does it on a basis that there had been lack of credibility for the other reasons, which I have already identified, and which do not depend upon the question of his age.[13]She also goes on to deal with the travel to Cyprus and says that she does not accept that if he had been detained as often as he had claimed and seriously ill-treated he would not have made some sort of attempt to have left the country on an earlier occasion, particularly as he comes from a relatively wealthy family. She makes the point, which is the same point made by the Secretary of State, that he would not have returned to Turkey from Cyprus on at least two occasions in the way that he did, nor that he would have failed to come to the adverse attention of the authorities. She recalled submissions made on behalf of the claimant by his counsel that he was in the hands of an agent who was awaiting a departure date for a country where he could claim asylum. The adjudicator, in my view for very good reason, said that she did not accept that explanation because an agent would not have wasted time and money in such activities when he could simply have organised a journey from Turkey direct to a country where the claimant could indeed make an asylum claim. The adjudicator then went on to make the point that it would have been perfectly simple for the claimant to have produced all the relevant material that was necessary.[14]This of course was in the context of the fast track procedure provisions which require that an appeal is dealt with speedily and that there are no adjournments, unless an adjournment is essential in the interests of justice. I paraphrase but that is the overall effect of the relevant provisions. The adjudicator went on to find that the account given was a fabrication.[15]The claimant did not appeal that decision. I am told by Mr Munir that there was an advice from counsel which indicated that there was no legal basis for an appeal, not even on the ground that the adjudicator was wrong not to have granted the adjournment to have enabled the relevant material to be put before her. Following that, the Secretary of State decided to remove and that led to the alleged fresh claim.[16]It is, I think, unnecessary for me to go through the original refusal letter because it has been overtaken by the relevant one of 21st April 2004. Before going to that I should say a word about the approach to these fresh or alleged fresh claims for asylum.[17]The starting point so far as the Secretary of State is concerned is Rule 346 of the Immigration Rules. That provides as follows:
"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 representation 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 [that is to say the criteria for grant of asylum] will be satisfied. In considering whether to treat 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."
There can be no problem with (i) or (ii) because clearly if material is not significant or is not credible it will not weigh with the Secretary of State. There does though arise a problem in relation to (iii). Undoubtedly since Rule 346 follows essentially what the Court of Appeal had laid down in the leading case of R v Secretary of State for the Home Department ex parte Onibiyo [1996] 2 All ER 901, availability is a relevant consideration. The test set out by Sir Thomas Bingham, MR, is at page 910 between G and H of the report. What he said was this:
"It was accepted for the applicant that a fresh 'claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it had to satisfy tests, analogous to Ladd v Marshall 1954 1 WLR 1489 of previous unavailability, significance and credibility."
The Ladd v Marshall test was to an extent shaded, if I may put it that way, by the Court of Appeal in the later case of The Queen on the application of Tewedros Tadesse Haile v Immigration Appeal Tribunal [2002] INLR 283. It is perhaps unnecessary to do more than refer to the headnote which reads as follows, so far as material:
"The Ladd v Marshall principles regarding the admissibility of fresh evidence required that before the evidence could be admitted, it had to be shown that it could not have been obtained with reasonable diligence for use at the time of the challenged proceedings, that it probably would have had an important influence on the result and that it was apparently credible although not necessarily incontrovertible. Upon a strict application of these principles, the evidence should be excluded at the first hurdle. However, these principles had never strictly applied in public law and judicial review. Although the appellant had spotted the factual error made by the adjudicator he had not understood its significance and did not, therefore, mention it to his lawyers; and it was not until after the judgment below that the appellant was asked by his solicitor about the point. It could not confidently be said that the fresh evidence would have made no difference to the outcome and the adjudicator's error must, inevitably, leave a sense of deep injustice in the appellant. Although the error could, and should, have been spotted by the appellant's representatives earlier, the wider interests of justice made it inappropriate in this case, not least because it was an asylum case, to hold that, as the error was that of his own advisers, the appellant had no ground of complaint."
That approach to Ladd v Marshall in the context of asylum cases recognises that there is a conflict between the need for finality and the need to ensure that there is the sufficient anxious scrutiny to ensure that no one is returned to persecution. In the Human Rights context it has added importance because both the court and the Secretary of State as public bodies have an obligation to ensure that they do not breach any Human Rights in a decision that they make and accordingly there is a need to be satisfied that the decision that is in fact made is not one which can be said to fall into that category. To take perhaps an extreme example, if fresh evidence which was clearly available at the time of an appeal is put before the Secretary of State and he accepts that it is both credible and does show that there is a real risk that if returned the individual will suffer a breach of Article 3 of his Human Rights, it would then be wrong for the Secretary of State to disregard it purely because it was available at the relevant time. That is, as I say, an extreme example and that is why I take the view that it would be dangerous for the Secretary of State to rely on the third matter referred to in Rule 346, that is to say availability, as necessarily entitling him to disregard. He should, and indeed he has in this case, have at least considered whether it was evidence which could fall into the category of being such as to be likely to have affected the result and to show that there was indeed a real risk of a breach of one or more of the relevant Human Rights Articles.[18]The approach in the Haile case may well go a little too far in favour of claimants. The matter has been reconsidered recently by the Court of Appeal in E v Secretary of State [2004] EWCA Civ. 49. Indeed it was pointed out in that case that there were a number of cases which appear to point in different directions in relation to this aspect. The court discusses generally the application of the Ladd v Marshall principles and refers to the decision of the House of Lords in Al-Mehdawi v Secretary of State [1999] 1 AC 876. That was a case in which the House of Lords decided that incompetence or errors made by those representing a claimant could not be regarded as errors of law and should not lead to judicial review. But Al-Mehdawi was a case which did not involve asylum; it was a straightforward immigration case and in Haile the court took the view that the Al-Mehdawi principle was not to be applied so strictly in relation to asylum cases. There is no doubt that the court does have the power to, and indeed should depart from the strict principles in Ladd v Marshall, indeed any strict principles, if the interests of justice so require. What the Court of Appeal in E said was this, at paragraph 82:
"We would respectfully accept the statement of the Master of the Rolls quoted in the previous paragraph as accurately reflecting the law applicable in a case of this kind (whether it takes the form of a direct appeal from the IAT to the Court of Appeal, or comes by way of judicial review of the IAT's refusal of leave to appeal). However, we would not regard it as showing that Ladd v Marshall principles have 'no place' in public law. Rather it shows that they remain the starting point, but there is a discretion to depart from them in exceptional circumstances. 83. Haile was held to be such a case, on its particular and unusual facts. We would not treat it as establishing any general proposition as to how the discretion should be exercised. Nor, with respect, do we see it as supporting any general departure, even in asylum cases, from the effect of a decision in Al-Mehdawi, as regards failures of the parties' advisers (although we have not heard detailed argument on this aspect). Once the evidence was admitted, then (assuming the correctness of the principles explained above) there was no difficulty in the result. It was a straightforward case of unfairness caused by a mistake of fact, on a point which was uncontroversial and material to the decision."
[19]The effect of all that, as I see it, is that, as the court said in E, Ladd v Marshall is the starting point and availability is a factor to be taken into account and certainly will be given considerable weight because it is important that there should be finality. It seems to me that in cases of availability the court should look with care to see whether in reality the evidence could have affected the result and if ignored would mean that there was a risk that human rights would be breached. I also bear in mind that it is said forcibly in this case, and I have no reason to doubt it since complaints have been made to the OSS about the conduct of the previous solicitors, that they did not prepare and so present the claimant's case as competently as they ought to have done and in particular they did not obtain, as they should, some material which would have assisted his claim.[20]Having said that, it is not possible to determine, because I do not have the information nor would I expect to have the information since it would apart from anything else be covered by legal professional privilege, as to precisely what information was given and what information the then solicitors had to enable them to obtain material which was said to be relevant. One notes for example, as the adjudicator states, that the claimant had said that there were documents which were at home which would assist -- that is to say a membership card of HADEP/DEHAP and an ID card. But again the adjudicator made the point that these were documents that he could so easily have had sent from home because he had been in touch and remained in touch with his family in Turkey.[21]I come now, rather belatedly I fear, to the letter of 21st April. The Secretary of State first of all deals with availability and makes the point that no proper explanation had been given for failing to adduce the evidence at the time and that if there was concern that he had not been able to present his case properly as a result of the failure to grant an adjournment that is a matter that should have been pursued before the Immigration Appeal Tribunal by means of an application for permission to appeal.[22]Mr Munir understandably does not seek to argue that the documents in question were not available in the sense that they could with reasonable diligence have been obtained at the time of the appeal. What he does submit is that availability is only one matter and it is essential to look at the reality of the documents and to see whether they are documents which ought to have been regarded by the Secretary of State as casting doubt upon the correctness of the adjudicator's determination and further lending support to the claim that was being put forward by the claimant. The Secretary of State deals with the three documents which were put before him at the time. First, there was a membership card for HADEP. But what in fact was produced to the Secretary of State was an application for membership which appeared to bear the date 9th January 2003 and as the Secretary of State pointed out that was wholly inconsistent with the evidence given by the claimant that he had joined HADEP in 2001, and so the Secretary of State did not regard that document as a credible document -- he does not say that in terms but that is clearly the inference from what he says. He then went on to consider the arrest warrant. That is dated 2nd July 2003 and as the Secretary of State notes the "3" is written in ink on a stamp which is otherwise a formal stamp. That is of some concern because the incident which is referred to in the warrant took place in May 2002. This is the incident which the claimant stated in interview had taken place in May 2003. When it came to the hearing he had produced this so-called arrest warrant which was at that stage untranslated. But he no doubt would have appreciated that it appeared to bear the date 2003, but that the incident it referred to had taken place in May 2002. Hence his account that it was not May 2003 as he said in interview but May 2002 that the incident happened. Furthermore, it is to say the least surprising that a warrant of this nature was produced over a year after the incident in question. The Secretary of State missed that point because in his letter he says that it is some six weeks after the date of the alleged incident -- in fact, as I say, it was a year and six weeks which, in my view, would strengthen the scepticism of the Secretary of State about the genuineness of this warrant. I am bound to say, and I draw to some extent from my experience as President of the Immigration Appeal Tribunal, that production of documents which appear to be genuine documents from various countries are not necessarily reliable even though they are apparently genuine, in the sense that they come from sources which are genuine such as a court or a police station. That does not mean that they can be relied on because apart from anything else it is a regrettable fact that corruption is in some places rife and documents can be obtained with some ease and it is not insignificant in this case that the claimant comes from a wealthy family.[23]Finally, the identity card. The Secretary of State rejects the significance of that on the basis that age was only directly relevant to the military service point, that is to say whether he would have completed military service. That perhaps is putting it a bit high against the claimant, and Mr Waite accepts that the material now produced, which includes the cousin's identity card, does suggest that the claimant's account of the passport being his cousin's and that his age was actually three years younger than the passport indicated may be true. There is no question but that he has brought upon himself the distrust which his dealings with the passport have produced and it is not in the least surprising that his evidence about his age was not at the time believed. But, as I have already indicated when going through the adjudicator's findings, age was by no means determinative. The key issue here was whether he was likely to face persecution or ill-treatment which contravened his human rights were he to be returned to Turkey and that largely depended upon whether the account that he had given about his membership of HADEP and the arrests and detentions were true. The reasons given by the adjudicator for rejecting those before she even reaches the question of age are in themselves compelling and in my judgment the Secretary of State was perfectly entitled to conclude as he did, namely that the documents and the further material produced was not such as would constitute a fresh claim in the sense that it was not sufficiently different nor was there a realistic prospect that the conditions in paragraph 334 would be satisfied were that fresh material to be taken into account. Furthermore, the application for membership and the arrest warrant bore all the signs of being fabricated documents themselves and produced for the purpose of supporting a claim which was not credible.[24]In those circumstances, I am entirely satisfied that the Secretary of State was entitled as a matter of law to conclude as he did and to reject the claim in the manner that he did, at least once he had made the determination of 21st April 2004. In those circumstances, this claim is dismissed.[25]MR MUNIR: My Lord, I am instructed to ask for the costs of the delay occasioned by the Secretary of State's letter of 21st April not being served in due time.

MR JUSTICE COLLINS: You mean the need to vacate that hearing?

[27]MR MUNIR: Yes, my Lord.

MR JUSTICE COLLINS: Was any order in relation to costs made at that hearing?

[29]MR MUNIR: No, my Lord, I do not believe so.[30]MR JUSTICE COLLINS: No. It was adjourned without hearing by consent.[31]MR MUNIR: Yes, my Lord.[32]MR JUSTICE COLLINS: Yes. Are you legally aided?[33]MR MUNIR: Yes, my Lord, we are.

MR JUSTICE COLLINS: Despite having a wealthy family in Turkey.

[35]MR MUNIR: Yes, my Lord.

MR JUSTICE COLLINS: Mr Waite, what do you have to say about costs?

[37]MR WAITE: My Lord, there was some delay in reconsidering the case, there is no doubt about that. However, ultimately the Secretary of State has been successful.[38]MR JUSTICE COLLINS: I know, but I think what is being said is that I cannot remember the date, how long before 5th May hearing were you notified of the fresh decision?[39]MR MUNIR: Three working days.

MR JUSTICE COLLINS: By which time counsel had been instructed.

[41]MR MUNIR: Yes, my Lord.[42]MR JUSTICE COLLINS: Well, 21st April was the date. On the face of it there is no reason why you should not have served that, well first of all you should have told them look we are about to make a fresh decision, so please do not prepare for the hearing, and then, if you did not do that at least serve the decision on a day that is, or send it out on the day that it is made rather than wait until 2nd May.[43]MR WAITE: My Lord, there was delay, there is no doubt about that. I would in my submission simply rely upon the fact that ultimately the Secretary of State was successful, but given that permission was granted on the --[44]MR JUSTICE COLLINS: It is all a bit artificial because you are entitled to an order for costs in respect of your success, but as he is legally aided for some reason the best you could get would be the usual football pools or lottery order, whatever we now call it, and I suppose you get your own costs that you have to pay back in that way.[45]MR WAITE: Yes. Could the order be for the Secretary of State to be awarded his costs on the usual basis, but minus --[46]MR JUSTICE COLLINS: Well, you will not have your costs of that hearing in any event. What I shall do is to say that I will make the usual order for costs, that is to say not to be enforced etcetera, but if it ever comes to enforcement then set off against any costs that you can recover will be the costs thrown away by your failure to act expeditiously in relation to 5th May -- that is to say if it ever comes to enforcement of costs because, for example, your client or suddenly there is money available in that unlikely event, then and then only will you be able to set off against any costs incurred the costs that you have incurred that have been thrown away in relation to the hearing. I think that is the fairest way of dealing with it, Mr Waite.[47]MR WAITE: My Lord, yes.[48]MR JUSTICE COLLINS: I suspect it is totally academic because I presume that he will be removed now. No, I shall not presume because I know perfectly well that the Home Office cannot be relied on to remove anyone, but I should hope that he will be removed.[49]MR WAITE: Given that it is a fast track case from November 2003, one hopes so.[50]MR JUSTICE COLLINS: Yes, one hopes so. Thank you both.