Aksu, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1382 (Admin)

Case No CO/85555/2005[2006] EWHC 1382 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 22nd May 2006
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF AKSU
(CLAIMANT)
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR E WAHEED (instructed by DOTCOM SOLICITORS) appeared on behalf of the CLAIMANT
MR A PAYNE (instructed by TREASURY SOLICITORS) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
Aksu, R (on the application of)ClaimantSecretary of State for the Home DepartmentDefendant
[1]MR JUSTICE SULLIVAN: In this application for judicial review the claimant challenges the defendant's decision contained in a letter dated 20th October 2005 (the original decision letter) to refuse the claimant's application for leave to enter the United Kingdom under the European Community Association Agreement with Turkey ("the agreement").[2]Following the grant of permission to apply for judicial review the defendant served two further decision letters. The first, dated 25th February 2006 clarified the reasons for refusing the application under HC 509 and confirmed that the claimant had an out-of-country right of appeal against that decision. The second was dated 23rd March 2006 and said this:
"1. Further to your client's judicial review application this is a supplementary letter to clarify issues regarding the refusal of your client's business application under the ECAA 2. Your client practised fraud in entering the United Kingdom by virtue of the fact that, when he arrived in the United Kingdom on 6 August 1999, without documentation he sought entry on the grounds of asylum and at interview denied that having made any other asylum applications. It subsequently transpired, however, that not only had your client made a previous application in Germany on 13 January 1997, but that this application had been considered and refused by the German authorities and on 22 July 1999 your client had exhausted his appeal rights in Germany. It is clear therefore that the representations your client made to secure entry to the UK were false. 3. The Secretary of the State is of the view that your client's fraudulent representations used in attempting to secure entry to UK prohibits him from obtaining benefits under the ECAA. 4. Despite the Secretary of State's primary position your client's business applications has also been considered under the 1973 rules. You are referred to [the] letter of 25th February 2006 in this regard."
[3]The detailed statement of grounds of the same date made it clear that the defendant would be relying on the "fraud exception" in the R (Veli Tum) v The Secretary of State for the Home Department [2004] EWCA Civil 788. Paragraphs 20 to 23 of the detailed grounds of defence said this:
"20. The Claimant plainly falls within the definition of a person who has sought to procure entry into the UK and/or thereafter resided in the UK illegally due to false representations. It is clear that these representations that he made to secure entry in the UK were wholly false. Contrary to the account he provided in his screening interview he had been residing in Germany since 1997 and had previously claimed asylum in Germany. 21. Consequently, the Claimant's claim for asylum, which was the basis upon which he secured temporary admission to the UK, had already been considered and rejected by the German authorities. Indeed, the Claimant and his family appear to have been given the opportunity of making two separate claims for asylum, both of which attracted rights of appeal and both of which were rejected by the German authorities 22. The Claimant's position is therefore to be contrasted with asylum seekers who, whilst having a genuine subjective fear of persecution, have their claims dismissed on the grounds that their fear is not/no longer objectively well-founded. 23. In these circumstances where, by virtue of manifestly false representations, the Claimant has resided in the UK unlawfully for many years, there is no good reason why he should derive any additional benefit from his fraudulent behaviour. The Defendant was therefore perfectly entitled to rely on the exception identified in the R (Veli Tum) and refuse his application under the current HC 395 Rules on the grounds that he lacked the requisite entry clearance."
There is no dispute that the claimant is not entitled to succeed under the current HC 395 rules.[4]The detailed grounds also contended that if the fraud exception did not apply, so that the claimant was entitled to benefit from the standstill agreement then(a) the defendant's refusal of the application under HC 509 was reasonable; and(b) since the claimant was not entitled to an in-country right of appeal against that decision, he had no entitlement to remain in the United Kingdom in any event.[5]The claimant's solicitors responded to the fraud allegation in a letter dated 11th April 2006, addressed to the Immigration and Nationality Directorate rather than the Treasury Solicitor. That letter referred specifically to the letter of 23rd March 2006 and said that its contents had been noted. The letter continued:
"Our client, according to you, is supposed to have entered the UK via fraud being that he arrived in the UK on 6 August 1999 without documentation and sought entry on the grounds of asylum and the subsequent discovery that he had made another application in Germany on 13 January 1997 despite denying same in the asylum interview. We state categorically that our client's entry to the UK was not fraudulent because he notified immigration authorities on entry that he had claimed asylum in Germany. We, therefore, request the Secretary of State to rescind his view that our client entered the UK fraudulently thereby allowing him to obtain all the benefits he is entitled to under the ECAA."
It was clearly intended that this letter would be referred to in the judicial review proceedings. Hence it was that the claim was repeated in the claimant's skeleton argument, dated 19th May. Paragraphs 18 to 20 of that skeleton argument said this:
"18. There is no evidence to substantiate the Defendant's allegation of a prior denial of a claim of asylum in Germany. The detail grounds simply repeat the allegation originally made in the acknowledgment of service chronology with no evidence to found this, cogent or otherwise. 19. The Claimant has denied the Defendant's allegation by way of a letter to the Defendant dated 11th April 2006, stating instead of his informing of a prior claim in Germany upon entry. 20. No copy of the interview has ever been served by the Defendant upon the Claimant or his representatives."
[6]The Treasury Solicitor did not become aware of the letter to the IND dated 11th April 2006 until 19th May. On that day, Miss Thompstone, the Treasury Solicitor case lawyer, exhibited the following documents to a witness statement: 1. A copy of the Dublin Screening Interview with the claimant; 2. A letter dated 9th February 2000 from the German authorities, accepting responsibility for the claimant's asylum claim; and 3. A standard form for determining the State responsible for examining an application for asylum in respect of both the claimant and his wife.[7]The Dublin Screening Interview lists a number of questions with "yes"/"no" answers. The claimants's screening interview has these responses to these questions:
"PREVIOUS ASYLUM IN EU STATE? NO" "
OBTAINED EU VISA IN PAST YEAR? NO", "RESIDENCY IN EU STATE IN PAST 2 YEARS? NO". If the answer to any of those had been yes then details of EU country, with dates validity, Visa and permits and so forth would have to be completed. Under the "TRAVEL ROUTE Date of departure from country of origin? 30.7.99 In a lorry for 6 days. Arrived UK 6.8.99. Got out lorry on ship". In answer to the question, "RELATIVES IN UK/OTHER EU STATES?" One finds the answer "YES 1 cousin in UK" and details are given of a cousin in the United Kingdom whose address was said to be unknown but for whom a telephone number was given. There is a box which enables other information to be given. That box is left blank. In answer to the question:
"HAVE FINGERPRINTS PREVIOUSLY BEEN TAKEN WITHIN EU?"
The answer is "NO". The language of the interview is given as Turkish.[8]The standard form for determining the State responsible for examining an application for asylum sets out the personal particulars of the applicant and under heading "Previous asylum procedures", there is a question:
"Has the asylum applicant ever previously applied for asylum or recognition of refugee status in another country?"
The answer to that question is "Yes. The applicant denied having made a previously application for asylum, however, your response to our enquiries under Article 15 of the Dublin Convention confirmed that he had previously applied for asylum in Germany." Particulars are then given. Under the heading "Travel Route", there is the question:
"Country in which the journey was begun (country of origin or provenance)" and questions are asked about the route followed, the date and times of travel and so forth. The answers are: "
The applicant stated that his journey to the United Kingdom began in Turkey. However, owing to his failure to disclose his previous asylum application in Germany we do not consider that his account can be relied upon as credible. It is thought his journey to the United Kingdom actually began in Germany following the refusal of as asylum application. The details below are the applicant's claimed route - there is no evidence to support his claims". The route followed is then given "Turkey - unknown countries - United Kingdom. The applicant stated that he left Turkey on 30 July 1999. He states that he and his wife and child travelled through unknown countries for 6 days in the back of a lorry before arriving in the United Kingdom [and crossed the border on] 6 August 1999". In answer to the question:
"Did the asylum applicant enter via European Union Member State?"
The answer is given:
"Yes. The applicant claims that he travelled from Turkey via unknown countries, however, we consider that he travelled to the United Kingdom from Germany following his unsuccessful asylum application."
In answer to the question:
"Which was the first EU Member State entered?"
The form states "Germany".[9]Following his claim for asylum on 6th August 1999 the claimant was granted temporary admission. Enquiries were made of Germany as to whether the claimant was known to authorities there. The German authorities were formally asked to accept responsibility for the claimant and his wife and daughter on 1st February 2000 and accepted responsibility for the claimant and his wife and daughter on 9th February 2000. On 15th February 2000 the claimant's asylum claim was refused and certified on third country grounds.[10]In a witness statement dated 21st May 2005 the claimant sought to explain the interview record:
"2. I came to the UK on 6th August 1999 from Turkey with my wife and my newly born daughter. My daughter was born on 13th July 1999 in Germany. 3. I left Germany on or about 22nd July 1999 to Turkey. I also have two other sons who are living in Turkey, then. On arrival we noted that the political situation in Turkey is still the same hence we decided to come to UK and claimed asylum on arrival. 4. We came to the UK by lorry. There were approximately 20 of us in the said lorry. On arrival at Dover, all of us were asked to line up and asked to sign a form. I now learned this form is [the Dublin Screening Interview]. 5. I remember that there was few questions were put to me while the Officer was completing the form. I was very tired and ill of travelling of such a journey with our newborn baby. My daughter was very ill as well. The Officer was very sympathetic of our situation and conducted the interview very quickly. Thereafter our picture was taken and my family and we were asked to go. 6. I did not understand the meaning of 'Residency' until it was explained to me by my solicitors. I was [under] the impression that residency means one has a permanent residency in a country. This is the reason my answer was no. I also did not understand the meaning of EU as well, then. However, the questions asked were very short and it was not explained to me in detail or read back to me before I signed them. I now learned that these questions are very important, hence they should have been explained to me in detail to avoid confusion and misunderstanding. 7. I now learned from the Defendant's case that I attempted to conceal the information that I claimed asylum in Germany and entered the UK fraudulently. I confirm that I did claim asylum in Germany. However, I did not claim asylum on my route to the UK. This was my understanding the first question the Officer asked then ie whether I have claimed asylum on my way to the UK. 8. In the circumstances, I disagree that I entered the UK fraudulently by concealing the information that I claimed asylum in Germany."
[11]Even in the absence of the letter dated 11th April 2006, I would not have accepted that as a truthful explanation of the answers given in the Dublin Screening Interview. It will be recalled that the interview was conducted in Turkish. Whatever uncertainty there might have been as to the precise meaning of the word "residency", I do not accept that the claimant would not, at that stage, have realised that Germany was a State within the European Union. It will be recalled that he had claimed asylum in Germany in January 1997. On his own case, he had stayed there for some two-and-a-half years until July 1999. It is simply not credible that he did not understand what was being asked of him when he was being asked previous asylum in EU State? It will be noted that when asked whether he had relatives in the United Kingdom or other EU States, he was perfectly well able to identify the fact that there was a cousin in the United Kingdom. Moreover, fingerprints would have been taken by the German authorities as part of their investigation of his asylum claim, which had been ultimately rejected in that country. Thus, his answer to the question: "Have fingerprints previously been taken within the EU?" was plainly false, unless it is accepted that he simply did not know what was meant by the letters EU. As I have indicated, I do not accept that someone who had lived for two-and-a-half years in Germany would not have understood what was being asked of him.[12]Even if his explanation of that interview is accepted at face value it fails to explain the letter of 11th April 2006. Plainly that letter was written by the claimant's solicitors upon his instructions. It was intended to be used in these proceedings and indeed was incorporated into counsel's skeleton argument which must have been drafted upon the basis of the instructions that had been provided to him. In summary, it is plain that it was simply untrue to say that the claimant had "notified immigration authorities on entry that he had claimed asylum in Germany." There is no suggestion in the claimant's witness statement that he did make such a claim. Indeed the whole thrust of the witness statement is not that he made such a claim, but he did not understand the questions that were being asked of him and hence there must have been some misunderstanding when he denied that he had made a previous claim for asylum in an EU state.[13]Standing back from the precise terms of the letter, it is clear that the claimant could not have notified the immigration authorities on entry that he had claimed asylum in Germany. Had he made such an assertion or admission, then that would have been recorded by the United Kingdom authorities in making their request to the German authorities that the latter accepted responsibility for dealing with the claimant's asylum claim.[14]If one looks at the standard form for determining the State responsible for examining an application for asylum, there would have been no conceivable reason for the United Kingdom authorities to say that there had been a failure to disclose a previous asylum application in Germany and to assert their belief that contrary to the claimant's denials he had in truth began his journey in Germany rather than in Turkey, if the claimant had been asserting all along that he had made a previous asylum claim in Germany.[15]In the light of these discrepancies, I gave Mr Waheed, who appeared on behalf of the claimant, an opportunity to take instructions from his lay client. Having obtained those instructions, Mr Waheed told me that the claimant claimed to have given his daughter's birth certificate which would have shown she was born in Germany just a little while before, to those who were interviewing him. I am not able to accept that belated explanation. The birth certificate has never previously been referred to and no copy has been produced. This is despite the fact that the claimant has had ample opportunity to mention the latter since the defendant set out in some detail in the detailed grounds and the letter dated 23rd March 2006 how the fraud allegation was being put. I have set out the relevant passages above, but the defendant was making it plain that the defendant had sought to conceal the fact that he had previously claimed asylum in Germany. If the defendant disputed that upon the basis that by giving his daughters birth certificate he was intending to assert that he had indeed previously been in Germany, then he had ample opportunity to do so before the commencement of the case before me today. Moreover, if such a document had been produced or disclosed, then one would have expected it to be recorded, perhaps under the other information, upon the Dublin Screening Interview and/or as part of the observations on the standard form for determining the State responsible for examining an application for asylum. After all, it would have been in the interests of the United Kingdom authorities to put forward as much information as they possibly could to demonstrate to the German authorities that it was the latter who were responsible for determining the claimant's claim under the Dublin Convention.[16]In my judgment, there was no misunderstanding here. The position is quite simple. The claimant, believing that the defendant did not have supporting information, deliberately lied when he told his solicitors that he had "notified immigration authorities on entry that he had claimed asylum in Germany."[17]Judicial review is a discretionary remedy. The notes in paragraph 54.6.2 of the White Book make it clear that a claimant is under a duty of full and frank disclosure:
"The claimant is under a duty to disclose all material facts. These include all material facts known to the claimant and those he would have known had he made the appropriate enquiries prior to applying for permission... Nondisclosure is a sufficient for refusing the remedies sought or refusing permission."
[18]Most of the authorities cited predate the CPR and are concerned with the duty of disclosure at a time when an applicant could apply for permission to apply for judicial review without giving prior notice to the intended defendant. Nevertheless, the underlying principle is still applicable to proceedings under Part 54 of the CPR. A claimant is under an obligation to be truthful in making his application to the court. As I have said, judicial review is a discretionary remedy and lack of candour may of itself be a sufficient reason either to refuse permission or, if the lack of candour emerges after permission has been granted, to refuse relief upon the substantive application. I am left in no doubt whatsoever that the claimant has sought to obtain the court's assistance by making a false statement in the letter of 11th April 2006 and alone this is a sufficient this reason for refusing relief.[19]For the sake of completeness, however, I will go on to deal, briefly, with the other grounds on which the defendant resists this application. I have no doubt that on the facts of this case the defendant was entitled to rely on the "fraud exception" in Dari and Tum. Mr Waheed submitted that this case could not be distinguished from the facts relating to Messrs Dari and Tum. It is difficult to be certain as to the precise circumstances in which the appellants in that case entered the United Kingdom illegally, because the appeal appears to have proceeded on the basis that the fraud exception did not apply. Lord Woolf, who gave the lead judgment said that the two appellants were in "exactly the same position" as the applicant in Savas (see - 37/988 2000 ECR 1 - 2927 before the European Court of Justice). Mr Savas was an overstayer and as Lord Woolf put it in paragraph 16 of his judgment, "his position was therefore irregular in the sense that he had no permission to stay for the time that he did so. However there was no suggestion that he had acted fraudulently in the sense of obtaining access to this country by fraud." Lord Woolf went on to say of the claimants Dari and Tum that "although their claims for asylum have not been successful so far as I understand the facts there is no suggestion they had acted in any way fraudulently. Claims for asylum may be bona fide claims albeit they are unsuccessful."[20]The short answer to this application is that this claim was not bona fide. The claimant did not disclose the fact that he had claimed asylum in another EU country, Germany, and that his claim had been refused. Thus there is a materiality false story from the outset. In my judgment, this case falls squarely within the dicta of Beatson J in Yilmaz [2005] EWCA High Court 1068 Admin, in paragraph 27 ... "The judgment of the ECJ in Kondova's case does refer to a person 'who gets round the relevant national controls by a false representation... and to a person who 'was residing illegally' within the territory of the host Member State 'by reason of false representations'. That, however, simply reflects the factual scenario before the ECJ. To restrict the principle in the way [counsel for the applicant] suggests is not in our judgment consistent with the policy behind a bar based on fraud. The passage from paragraph 76 of the judgment in Kondova's case quoted in paragraph 15 above gives an indication of what the ECJ had in mind. The passage suggests the rationale of the fraud bar is that the system of prior national controls largely rests on the correctness of the representations made to immigration by those applying for visas and for entry. If this is so, it is argued [counsel for the Secretary of State], the deceptive intention of the person seeking entry that is important, not whether that person is successful in the deception."[21]In paragraph 28 Beatson J considered Lord Woolf's judgment in the Dari and Tum's case and having cited Lord Woolf's proposition in paragraph 24 of his judgment:
"...that there is a 'clear principle that a would-be immigrant cannot improve his position by resorting to fraud'"
Beatson J continued:
"This statement was made when dealing with dicta of Davies J, at first instance, that the submissions made on behalf of the Secretary of State in that case meant that person granted temporary entry, perhaps by being economical as to the truth with the immigration authorities, but who unlawfully overstayed was potentially able to take advantage of the standstill clause. Lord Woolf stated that the dicta of Davies J should not be understood as in any way conflicting with the clear principle he set out about the effect of fraud. Brooke LJ agreed with Lord Woolf's judgment. Sedley LJ also agreed and stated that the court was not dealing with a fraud case and that Davies J's dicta was not necessary for the decision. Since the Court was not dealing with a fraud case, it did not have to consider and determine the precise scope of the fraud exception. Nevertheless, Lord Woolf's formulation does not suggest a narrow approach to it."
[22]These dicta were considered and approved by Wilkie J in the case of Taskale v the Secretary of State for the Home Department [2006] EWHC 712 Admin. In that case Wilkie J considered the circumstances of an applicant who had not only sought entry clandestinely in the back of a lorry:
"...but when he made an application for asylum he did so by giving an account of how and in what circumstances he had left Turkey. That account was the subject of examination by the adjudicator when hearing the appeal against a refusal of asylum. It is perfectly plain from the terms of the adjudicator's decision, in particular paragraphs 20 to 22 and 25 and 26 of his reasons, that the adjudicator concluded that the claimant had put forward a fraudulent and false account in order to support his claim for asylum. It describes the claim as obviously false. It describes the only inference that he could draw from various matters was that the appellant put forward a false story from the moment he arrived in the United Kingdom."
Wilkie J concluded that that case fell within the dicta of Beatson J in Yilmaz. Although Mr Waheed emphasised that in the present case there had been no appeal to an adjudicator and thus no opportunity for an independent consideration as to whether or not the claimant's claim was true or false, that is simply because the claimant's false account was discovered at an earlier stage. It is plain that his account of not having sought asylum elsewhere in the United Kingdom was simply untrue and was a device to obtain entry to this country. As such he falls within Yilmaz and Taskale.[23]Even if that conclusion was wrong, so that the fraud exception does not apply and the claimant was entitled to take advantage of the earlier policy guidance, that policy guidance merely entitles him to an out-of-country rather than an in-country right of appeal (see Parmak [2006] EWCA High Court 244 Admin EWHC). If there is an out-of-country right of appeal, then judicial review should be permitted to bypass that statutory scheme only in exceptional circumstances (see R v The Secretary of State for the Home Department ex parte Swati [1986] 1 All ER page 717).[24]Mr Payne submits that there are no exceptional circumstances here. I agree. Mr Waheed sought to distinguish the Parmak case on two bases. First of all, he pointed out that in Parmak there was no challenge to the substance of the decision, the argument was confined to whether or not there was a right of appeal and, if there was a right of appeal, whether that right of appeal was in-country or out-of-country. In my judgment, that is no basis for distinguishing the conclusion in Parmak, that anyone entitled to rely upon the standstill provisions is not entitled to an in-country as opposed to an out-of-country right of appeal. The fact that there is a challenge to the substance of the decision merely means that that challenge should be pursued by way of an out-of-country appeal.[25]The further point raised by Mr Waheed was that the business in the present case was an ongoing business. It was not a prospective business and since the business is an ongoing business then, clearly, if the person engaged in the business had to leave the country in order to pursue an appeal, that would cause disruption to the business. It seems to me that this cannot be described as an "exceptional circumstance". Some disruption would necessarily occur in any case where there was an existing business. In truth there is nothing exceptional about either this business or the refusal letter in the present case which would justify this applicant in side-stepping the statutory scheme (assuming that he was entitled to take the benefit of that scheme) and pursuing an in-country rather than out-of-country right of appeal.[26]Lastly, the reasonableness of the decision letter itself. It is not necessary to deal with this in any great detail given the conclusions set out above. In granting permission to apply for judicial review I described the original decision as a "curate's egg", good in parts and, for the reasons set out in the detailed statement of grounds in support of the claim, bad in parts. I posed the question whether the bad parts so tainted the good that the decision was unlawful because it was based in part on irrelevant considerations. As I have mentioned, the reasons for refusing the application under HC 509 were clarified in a further decision letter dated 25th February 2006 and the principal points were set out in Mr Payne's skeleton argument. It is unnecessary to rehearse the detail, suffice it to say that I gave Mr Waheed an opportunity to respond to the points made in paragraphs 22 and 23 of Mr Payne's skeleton argument. But, in reality, it is plain that the claimant simply has no or no substantial answer to the points that are there set out on behalf of the defendant.[27]It follows that this was a decision to which the defendant was reasonably entitled to come. That is the appropriate test. This is not an appeal against the decision. The question is simply whether on normal Wednesbury grounds the defendant was entitled to come to the decision that it was appropriate to refuse the claimant's application, and whether in reaching that decision he did not have regard to irrelevant material and had regard to relevant material. I am satisfied that the subsequent refinement of the decision-making process satisfies that test, whatever may or may not be said about the original decision.[28]So for those reasons, this application for permission to apply for judicial review must be refused. (Submissions re: costs)[29]MR JUSTICE SULLIVAN: Thank you very much. I am satisfied that the defendant ought to pay the claimant's costs and those costs should be summarily assessed and that the sum claimed which is £3,196 is reasonable and proportionate bearing in mind the amount of homework that had to be done in order to get to the bottom of this claim. Thank you.[30]MR PAYNE: Could the costs be paid within 21 days?[31]MR JUSTICE SULLIVAN: Do I have to order that. I thought unless I ordered something different they have to be.[32]MR PAYNE: So it is clear.

MR JUSTICE SULLIVAN: I am not going to make any special order, so the normal order will apply.

Cited in 3 later judgments