S, R (on the application of) v The Secretary of State for the Home Department [2007] EWHC 426 (Admin)

Case No CO/2391/2006[2007] EWHC 426 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20 February 2007
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF S(CLAIMANT)THE SECRETARY OF STATE FOR THE HOME DEPARTMENT(DEFENDANT)THE QUEEN ON THE APPLICATION OF S(CLAIMANT)THE ASYLUM AND IMMIGRATION TRIBUNAL(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR C JACOBS & MR A TEAR (instructed by White Ryland, London W12 8HA) appeared for CLAIMANTMS C PATRY HOSKINS (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: In this application for judicial review the claimant challenges the decision of Senior Immigration Judge McKee, dated 21 April 2006, ordering reconsideration of a decision by Immigration Judge Ms Pitt, promulgated on 14 September 2005, allowing the claimant's appeals on asylum and human rights grounds. It is common ground that this is one of those very exceptional cases where judicial review of such a decision is an appropriate remedy.[2]The factual background can be briefly stated. About one thing there would appear to be no dispute, the claimant is a psychiatrist. According to his account he worked in a Municipal Psychiatric Hospital and his claim was that he was persecuted because he refused requests from the authorities to "section" their political opponents as mental patients. He gave a very detailed account of his experiences in a lengthy witness statement and in a detailed interview.[3]The Immigration

Judge said in paragraph 17:

"The appellant also provided a very large amount of original documentation in support of his claim. Almost every part of his account is documented."
She then listed the various documents and said in paragraph 22:
"I was shown original copies of all of the above documents. They are all entirely consistent with the evidence of the appellant and his wife. All the dates are exactly those set out by the appellant in his accounts. The medical reports support his evidence in particular detail, for example corroborating how the appellant was taken to hospital on specific occasions. The appellant provided evidence that after he had arrived in the UK his son had sent all of the documents to him. The appellant had already collected them in his home as the events occurred and his son had not had to do anything except get a letter from the local human rights group. The appellant provided the original evidence in which the documents had been sent. I observe nothing about any of the documents which suggested that they were not reliable. Following the case of Tanveer Ahmed [2002] UKIAT D439 I place weight on these documents having considered them against the evidence as a whole. They form a very significant body of evidence supporting the credibility of the appellants's account."
Her overall conclusions included the following:
"Given the degree of detail and consistency in the appellant's account and the documentary evidence he has provided I find it credible that the authorities pursued him in the manner he describes."
In paragraph 28 the Immigration Judge found both the claimant and his wife to be credible witnesses and accepted their accounts in their entirety.[4]The defendant has filed a witness statement of Ms Lindsay who, at the relevant time, was on secondment to the Onward Rights of Appeal Team. She said that the decision was promulgated on 5 September 2005 and the deemed receipt of the decision was 8 September 2005. As I have mentioned, on the face of it the determination appears to have been promulgated on 14 September 2005, but nothing of any consequence turns on that discrepancy as to the dates.[5]Her witness statement continues:
"On reviewing the decision I became aware that the materials submitted on behalf of the Appellant were similar to those that had been presented as evidence in other Russian appeals. As such, I contacted my colleagues in Glasgow Presenting Officers Union where I was aware that there had been other such cases. I then requested the file from the Presenting Officer at Angel Square who had represented the Secretary of State in Mr S's case. I reviewed the file against the other materials and read all the determinations again. I then sought advice from various sources as to ways to proceed with an appeal against the latest decision. At that time the decision of EB Ghana UKIAT OO131 had not been promulgated. This decision was available however, on the 20th September 2005 and as such it was felt that this strengthened our case for further consideration. At this point the Secretary of State in applying for reconsideration was out of time by only a matter of days... The full bundle, which contained several different documents and amounted to over 100 pages, was subsequently faxed to the AIT or rather I instructed a colleague to do so. This took place on 23rd September 2005. I believed that this had been carried out and awaited a response from the AIT with regard to the grounds submitted."
[6]She then returned to a different unit in the Home Office and heard nothing further about the matter until she was informed by a colleague, as a consequence of the claimant's judicial review proceedings, that the grounds of appeal had not been received by the AIT.[7]Nothing happened following 23 September 2005 and because they had heard nothing the claimant's solicitors wrote to the Home Office asking the defendant to regularise the claimant's refugee status in compliance with the immigration judge's determination. They received no reply and so judicial review proceedings were lodged on 16 March 2006. It seems that it was after that date that the defendant discovered that, for whatever reason, the Asylum and Immigration Tribunal had not received the grounds of appeal.[8]It has not been possible to ascertain whether the Tribunal did not receive the documents from the defendant because they were not transmitted, as Ms Lindsay had intended they should have been, or because they were transmitted and somehow got lost in transmission. Ascertaining precisely what happened is not made any easier by the fact that the Home Office's file has been lost. In any event, grounds were resubmitted by the defendant on 5 April 2006. That, in due course, led to a refusal of the claimant's application for permission to apply for judicial review upon the basis that an application for reconsideration had been made to the Asylum and Immigration Tribunal.[9]The defendant's letter of 5 April was followed by a letter of 6 April, which enclosed a number of determinations of immigration judges and a refusal to order reconsideration by the Tribunal. Part B of the application for reconsideration, submitted by the defendant, explained that the grounds of appeal could not have been submitted earlier:
"This is due to the promulgation of EB (fresh evidence - fraud - directions) GHANA [2005] UKAIT 00131 on the 20th September 2005. In this case which, instigates the grounds and allows a persuasive argument. You will also see the amount of research and compilation that was required to be completed before grounds could be submitted. This is a serious issue of suspected fraud and we respectfully ask the Tribunal to consider all the evidence being submitted with these grounds and grant a reconsideration hearing despite being 'out of time'. It is submitted in this instance there was no possible way in which lodging grounds out with the specified time scale could be prevented."
The grounds of the application in Part C were as follows:
"It is submitted that on the basis of EB Ghana ... that this case should be reconsidered. At Paragraph 17 of that case the Tribunal refer to the Adjudicator being deceived and it is our position that has happened in this case. We ask the Tribunal to consider the wealth of evidence that has been compiled to accompany this application for reconsideration and ask them to find that this serious issue merits further examination. It is also said in Paragraph 17 of EB that parties who conceal the truth and puts forward a false case cannot be heard to complain if the falsity is discovered after the hearing. It is submitted that these comments are highly persuasive and we respectfully ask the Tribunal to consider the application of those remarks to this case. It is submitted that the enclosures in this case show that the same account and documentation has been used in many appeals and that the obvious conclusion is that this represents a package case. There are common links between all which, naturally raises suspicion as outlined in AS/15887/2004 by the then Adjudicator Mr H Macleman (now Designated Immigration Judge) at Paragraph 20. Copies of the documents used in this case are also enclosed and the AIT are asked to consider the previous determinations which clearly show that the same documents have been used in all cases albeit with names changed. In this regard the Tribunal referred to Paragraph 15 of AS/50795/2003 where the Adjudicator actually notes the documents used as being common features with other cases he had heard. It is submitted that due to the volume of evidence lodged with this application and in view of all that is said above, this case should be reconsidered."
[10]It would seem likely that Ms Lindsay intended that a very substantial amount of documentation should accompany the grounds of application. Unfortunately, for whatever reason, the documents accompanying the resubmitted application in April 2006 are limited to three determinations by immigration judges and one refusal of permission to appeal by the Tribunal, in addition to the EB case and documents relating to the claimant's own case. There is a contents list of documents, but it is plain that a number of those documents were not submitted in April and again, because of the loss of the Home Office file, it is not now possible to ascertain what other documents Ms Lindsay might have been intending to submit. In the event, as matters stood before the senior Immigration Judge in April 2006, he was provided with the three determinations and the one refusal of permission to appeal.[11]In response to the defendant's grounds the senior Immigration

Judge said this, when ordering reconsideration:

"The grounds for seeking an extension of time and for a review of the immigration judge's determination are cogent. Evidence that the appellant's case may have been tainted by fraud had to be compiled and assessed, and that is now annexed to the application. It is clearly in the public interest that the allegation be fully considered by the Tribunal at a substantive hearing. Representations in very strong terms, dated 10th April 2006, have been received from White Ryland, the appellant's solicitors, contending that the respondent's application is so late to be an abuse of process. But in a matter where fraud has been alleged, the public interest in having the allegation properly tested must outweigh the presumption that delay of this length will be fatal to an application."
Although Mr Jacobs raised a number of grounds in his skeleton argument, by the conclusion of his submissions and those of Miss Patry Hoskins, on behalf of the defendant, there was a substantial amount of common ground to the following effect. (1) a senior Immigration Judge could order reconsideration only if he thought that the Immigration Judge "may have made an error of law" (see section 103A of the Nationality and Immigration Act 2002 (as amended). (2) an "innocent" mistake of fact by an Immigration Judge giving rise to unfairness is, in principle, capable of amounting to a material error of law: see paragraph 66 of E and R v the Secretary of State for the Home Department [2004] EWCA (Civil Division) 49: see also the discussion under the heading "Judicial review for fundamental error of fact" in paragraph 49.2 of Fordhams Judicial Review Handbook. (3) Since an "innocent" fundamental mistake of fact may amount to an error of law, a fortiori, a fundamental mistake of fact induced by a fraud or forgery must also be capable of amounting to a material error of law. (4) In order to establish fraud or forgery a high standard of proof is required even in civil cases. In practice the higher civil standard of proof will differ very little from the criminal standard of proof. (5) While the test for the Senior Immigration Judge at the application for reconsideration stage is whether there may have been an error of law, given the high standard of proof necessary to establish an error of law based on an allegation of a material error of fact due to fraud or forgery, it would not be sufficient for an applicant for reconsideration simply to assert that in his view there had been fraud.[12]There is a dispute as to the extent of the supporting information that would be required in an application for reconsideration, as opposed to a substantive hearing in which fraud was being alleged. But to put the matter at its lowest: even at the application for reconsideration stage some material, which logically suggests that the assertion of fraud may be true, is required. Mr Jacobs submitted that the defendant's application contained no such material and the senior immigration judge's conclusion that the grounds for review were "cogent" was perverse, as was his conclusion that the material which the defendant had compiled and which was annexed to the application was "Evidence that the appellant's case may have been tainted by fraud."[13]It is therefore necessary to examine the material that was placed before the Senior Immigration Judge with some care. Apart from the case of EB, which was said to affirm the principle that reconsideration might be sought on the ground of fraud (a proposition which was, in any event, inherent in the case of E - see above) there were, as I have said, the three determinations by immigration judges and a refusal of permission to appeal.[14]We do not know what other documents Ms Lindsay wished to supply to the Tribunal. However, it could not reasonably be concluded that the four decisions supplied even arguably supported the proposition in the grounds "that the same account and documentation has been used in many appeals, and that the obvious conclusion is that this represents a package case." Nor could it reasonably be concluded that, "the previous determinations clearly show that the same documents have been used in all cases, albeit with names changed." If the Senior Immigration Judge proceeded upon that basis, then he was clearly in error.[15]The determinations all contain different accounts of persecution and although in each case there seems to have been a considerable number of documents, there is certainly nothing whatsoever to suggest that the documents were the same, albeit with names changed. Looking at the four decisions in reverse order, the refusal of permission to appeal related to a Mrs Julia Tatarenko. She was not related to the claimant and there is no suggestion that there was any connection whatsoever between her and the claimant and his wife. That is also the case in respect of the three determinations. None of the appellants in the other determinations, on the face of it, had anything to do with the claimant and his wife.[16]The reasons given for refusing Ms Tatarenko permission to appeal include the observation that:
"It does not follow that because the voluminous supporting documents have been put forward upon examination they necessarily support the claims made by the Claimant."
The reasons then go on to consider various reasons why that claimant's credibility was rejected, for example, despite the fact she was a lawyer, she was incapable of answering very simple questions directly and straightforwardly. She did not engage a lawyer until a very late stage, and it is surprising as a lawyer she was not aware about procedures for the protection of human rights, etc. On the face of it, this decision has absolutely no relevance whatsoever to the claimant's case and Miss Patry Hoskins conceded as much.[17]On 11 May 2004 an adjudicator promulgated a decision in respect of a Mr Marusenko. Again in that case it was said that there was a number of documents. However, the adjudicator's view was (see paragraph 15 of the determination) that:
"... the accumulation of evidence from various sources is too detailed and cohesive to be a total fabrication."
The appellant in that case was believed to the lower standard of proof and his appeal succeeded. Again, on the face of it, it is impossible to see what relevance this case might have to the claimant's case, save for the fact that the claimant was a Russian and produced documents in support of his case.[18]Miss Patry Hoskins drew attention to the fact that a feature of the claimant's account in that case was that he had been involved in a traffic accident with an unmarked police car. He thought it was not an accident and when he was discharged from hospital the local police station telephoned him to say that they were surprised that he was alive, but assured him that he was not going to live any longer.[19]In December 2004 another adjudicator had determined an appeal by Mr Lupinos. Mr Lupinos was Jewish and he claimed that he was being persecuted because he had been supporting the Committee of Mothers of Chechen Soldiers. In his case there was a large number of documents, but the adjudicator considered that there were numerous inconsistencies in the claimant's account. Those inconsistencies are set out in detail in paragraph 49 onwards of the determination. Having identified numerous inconsistencies and "difficulties", the Immigration Judge concluded, looking at all the evidence in the round, that there was no real risk that that claimant had been charged with treason and no real risk that his aunt had been killed in mistake for his mother. He concluded that that appellant had been clearly untruthful in relation to those two matters which formed very important parts of his account. Having concluded that the appellant was untruthful the adjudicator also came to the conclusion that no reliance could be placed on the documents that had been produced by that appellant.[20]Again, apart from the fact that that appellant was Russian and produced a large number of documents in support of his case, there is nothing whatsoever of any relevance to the claimant's case. It is perfectly true that in that case it was part of the appellant's account that his aunt was killed by being thrown off a bridge. One of those who was alleged to be responsible for persecuting the claimant phoned up his mother and said that the aunt's death was a mistake and it should have been the appellant's mother instead.[21]The high watermark of the defendant's case is an adjudicator's determination in the case of a Miss Valter promulgated on 9 December 2004. This was another claim by a Russian citizen who produced a number of documents in support of her claim. There, it has to be said, the similarities, on the face of it, between her case and that of the claimant's case end, because it was a feature of Miss Nathalia Valter's appeal that her sister, Irina, had also made a claim and supplied a supporting witness statement. The adjudicator considering Irina's case had concluded that she had produced a set of forged documents and the point was made that the two sisters had effectively produced the same set of forged documents, ie it was the similarity between their own cases that was of particular importance in the mind of the Immigration Judge.[22]In paragraph 20 the adjudicator in Nathalia Valter's case said this:
"Mr McGrade [the adjudicator in Irina Valter's case] in his determination details some astounding similarities among the claims made by the Appellant and her siblings. He considers the possibility that one of the accounts may have been true and the others attempted to rely on it, but finds the account put before him wholly incredible. While I bear in mind the need to consider this case on its own merits I am entitled to reach my conclusions in the light of the co-existing claims. I take into account the similarity of asylum histories and packages of documents put forward almost simultaneously not only by close family members but in other Russian claims referred to in my determination AS/50759/2003. The careful chronology of three claims prepared by the Respondent (and acknowledged by the Appellant's representative to be accurate) discloses histories much too close for coincidence. I find it inconceivable that these could arise independently. This case discloses a pattern going far beyond what might arise from typical instances of persecution in a country. 'Rather, it discloses another purchase of a high quality fraudulent asylum package. (My eventual findings reinforce my view that information about other cases should not be excluded. Appellants are not entitled to conceal evidence of their own fraud.)"
Therefore Ms Nathalia Valter's appeal was dismissed.[23]It is right to mention that it was a feature of her account that a friend was stabbed to death when leaving her flat by someone in uniform. The following day the police called saying they made a mistake in killing her friend, but would correct that mistake very soon. Apart from similarities relating to the alleged telephone calls either from the police or those responsible for persecution, effectively saying that they had made a mistake and would come back and correct it by killing the claimant, or making a threat of that kind, there is absolutely nothing whatsoever to link, on the face of it, these cases with the claimant's case, save for the fact that the appellants in the other cases were Russians and that they produced a lot of documents. In some cases they were believed, in some cases they were not.[24]It is possible that in the other documentation, which has now been lost, Ms Lindsay did indeed perceive that there was evidence of the same account and same documentation being used, and/or that there was evidence of the same documents having been used with names changed. All one can say is that on the material presented to the Tribunal there was absolutely no support for those propositions whatsoever. The accounts of persecution were very different indeed. Of course, there may well have been certain similarities between certain incidents, but that is hardly surprising. The fact remains that the accounts of persecution were different, and on the face of it the documents appear to have been different.[25]Standing back, whilst it is conceivable that the lost documents might have established a sufficient basis for a conclusion that there may have been fraud, the four decisions, to which I have referred, provided no rational basis for reaching such a conclusion. The only inference that might be drawn was that the claimant was a Russian and that other Russian appellants had presented false packages of information. Anything more would be pure speculation. To say that there "may" have been fraud in this case would be as absurd as saying that an account of rape "may" have been untrue because other asylum seekers from the same country had made false allegations of rape. That kind of speculation is plainly inadequate to found a very serious allegation of fraud and/or forgery, even at the stage of seeking a reconsideration. As I say, there has to be some material which could rationally lead to the conclusion that a fundamental mistake of fact may have been induced by a fraud or forgery, and mere speculation to that effect, or mere assertion, will not suffice.[26]For these reasons, most unusually, I conclude that the senior immigration judge's conclusion that the grounds for review of the immigration judge's determination were cogent and that "evidence that the appellant's case may have been tainted by fraud [had] been compiled ... and [was] annexed to the application for reconsideration" were not rationally open to him. It follows that his order for reconsideration must be quashed.[27]What should then be done about the renewed application for permission to apply for judicial review of the continued failure to resolve the claimant's immigration status? It is clear from the background facts that I have summarised that this is not one of those cases where the delay was deliberate. It is plain that it was due to an oversight. The defendant thought mistakenly that grounds seeking a reconsideration had been received by the Tribunal and were under consideration by the Tribunal. As soon as the error was pointed out the defendant took steps to make a late application for reconsideration. With the order for reconsideration having been quashed by the court, there is no reason to believe that the defendant will not expeditiously consider what steps to take.[28]While Mr Jacobs invited me to conclude that the only proper course was to, in effect, order the defendant to grant the claimant refugee status, I am not persuaded that that would be appropriate in the particular circumstances of this case. As the Court of Appeal recognised in R v Secretary of State for the Home Department, ex parte Boafo [2002] 3 EWCA (Civil Division) 44, there may be circumstances where despite the general obligation to comply with the findings of an Immigration Judge the defendant may reopen a decision. One of the examples given is because there is fresh evidence of deception of the adjudicator about the facts on which the challenged decision was based.[29]It is clear that the material placed before the senior Immigration Judge was incomplete. We do not know what the complete picture is because of the loss of the file, but, in my judgment, the defendant should be given a reasonable opportunity to consider how to respond to the fact that the immigration judge's determination will not now be reconsidered by the Asylum and Immigration Tribunal, unless, of course, a further application for reconsideration is made. Such an application would be very much out of time.[30]Those are all matters for the defendant to consider and Miss Patry Hoskins accepted that it would be right to impose a time limit on the decision-making process, given that this case has now dragged on for some considerable time and the claimant and his wife should not be left in a state of uncertainty any longer than is absolutely necessary. She suggested a time limit of four weeks for the defendant to make a decision as to whether or not the claimant and his wife will be granted refugee status.[31]In the circumstances, therefore, the sensible thing to do is to grant the renewed application for permission to apply for judicial review and to allow the substantive application, but to grant a mandatory order that the defendant make a decision in respect of the claimant's application for refugee status within four weeks of today.

MR JUSTICE SULLIVAN: What about costs?

[33]MR JACOBS: With regard to costs, might I ask for an order that the respond pay the claimant's costs and an order for detailed assessment by public funding?[34]MISS PATRY HOSKINS: I do not think I can resist any of that.[35]MR JUSTICE SULLIVAN: The defendants pay the claimant's costs, that is both of the renewed application for permission to apply for judicial review and the other judicial review, and you have detailed assessment for community legal services purposes.[36]MR JACOBS: I am obliged, my Lord.

MR JUSTICE SULLIVAN: Thank you both.