Aksoy, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1487 (Admin)

Case No CO/325/2006[2006] EWHC 1487 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 26th May 2006
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF IBRAHIM AKSOYClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
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 A SLATTER (instructed by Messrs Arman Solicitor Advocates) appeared for CLAIMANTMR ROBERT PALMER (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is a renewed application for permission to apply for judicial review of a decision by the defendant, in a decision letter dated 11th January 2006, to refuse the claimant's application for leave to remain in this country under the Turkish EC Association Agreement (the ECAA).[2]The background to the matter is that the claimant is a Turkish national who arrived in this country clandestinely in the back of a lorry in June 2001 and claimed asylum. His claim was rejected by the defendant and he appealed against that decision. His appeal was dismissed by an Adjudicator in May 2003, who found that the account given by the claimant of multiple detentions by the Turkish authorities had been invented and that he was not a genuine asylum seeker. For present purposes, paragraphs 25, 28, and 29 of the Adjudicator's determination are of particular relevance. In those paragraphs, the Adjudicator concluded:
"I do not find the appellant to be credible. I find that he has invented the incidents and detention in order to bolster his claim for asylum ... I find the appellant has invented these detentions ... I find that the appellant has invented this detention as well in order to lend credence to the fact that he is trying to leave his village and live in Istanbul..." "
I find the appellant has invented all his detentions and find he was not targeted in the way he mentions he was and has simply invented this ... I do not find the appellant to be a genuine asylum seeker..."[3]An appeal to the AIT was rejected and the appeal process was effectively exhausted by the beginning of February 2004. The ECAA application was made on 24th November 2005 and, as I have said, refused by letter dated 11th January 2006. That letter contended that the claimant was not entitled to the benefit of the standstill agreement because he had used fraudulent means to enter the United Kingdom and thus fell within the fraud exception in Dari and Tum. It also, however, considered the merits of the application under the earlier rules in HC510. The application was refused on the merits, applying the old rules, on various grounds. It is noteworthy that there is no substantive challenge to those grounds. Indeed, the only point taken in that respect appears to be that the application should have been considered under HC509 rather than 510 but, since the substance of the requirements is the same in either event, it is difficult to see how that could have any significant bearing on the outcome of the case.[4]To revert to the fraud exception, the Secretary of State made it plain in the summary grounds that he was not simply relying on the mode of entry of the claimant, which might well not distinguish him from the circumstances in Dari and Tum, but was further relying on the Adjudicator's conclusions which I have summarised above. It seems to me that, unless Mr Slatter can persuade me that the decision of Beatson J in Yilmaz and Wilkie J in Taskale were wrong, this is one of those claims that falls within the fraud exception. Of course, much will turn on the particular facts of each case and the particular conclusions reached by the immigration judge. It does not follow that simply because a claim for asylum is rejected entry was sought to be obtained by means of a fraudulent story. But there is no doubt on the facts of this case that that is precisely what was attempted and the short point that is made in Yilmaz and Taskale is that it cannot make any difference whether the applicant is someone whose false representations enabled him to gain leave of entry, or someone whose false representations were not believed, who was placed on temporary admission, and who then sought to gain entry by repeating those false assertions in front of an Immigration Judge who rejected them. Although those two authorities are merely persuasive and not binding upon me, I am not satisfied that they are wrong and therefore this case falls at that hurdle.[5]There is, however, a further problem for the claimant in this case. Although the letter of 11th January 2006 states that the claimant has no right of appeal, if he was not excepted from the standstill provisions by reason of the fraud exception, then at best he would have been entitled to an out-of-country right of appeal against the refusal of his application. That being so, there would be no reason for the defendant not to remove the claimant to Turkey from where he could pursue the out-of-country right of appeal conferred under the earlier rules.[6]This is not one of those cases where there appears to be any genuine desire to pursue an appeal out-of-country. The desire is to remain in this country and the challenge to the decision is, in truth, a challenge to the defendant's wish to remove the claimant. In these circumstances, it seems to me that the distinction between no right of appeal and an out-of-country right of appeal is simply academic and, for this reason also, the application must fail.[7]As I have mentioned, apart from the alleged distinction between HC509 and HC510, there is no substantive challenge to the decision on the merits in any event. So even if the fraud exception had not applied, and even if there had been a more extensive right of appeal, the claim would have had to be dismissed.[8]For these reasons, the renewed application must be refused.

Cited in 3 later judgments