England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE SCOTT BAKER)

		Royal Courts of Justice Strand London WC2 Thursday, 26th July 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of Scott Baker J given on 19th January 2001, whereby he refused permission to Mr Janusz Kozlowski to apply for judicial review. The application was first made on paper to Schiemann LJ to whose statement I will refer.
2. On 26th July 1995, having been granted leave to enter as a visitor for six months, the appellant claimed asylum. Following interviews, the Secretary of State refused asylum and certified the claim on 21st January 1998. On 30th November 1998 the Special Adjudicator dismissed an appeal against that finding. A procedural question has arisen in that the certificate had been "withdrawn" by the Home Office on 26th October, but the Special Adjudicator erroneously, it is submitted on behalf of the appellant, included the certificate within the order he made. I do not propose to refer to the subsequent proceedings in great detail. On 25th March 1999 the Immigration Appeal Tribunal stated that there was no record of the certificate having been withdrawn. There was at that time a deemed right of appeal under the rules if a decision upon leave was not taken by the IAT within a prescribed time.
3. The first application for judicial review came before Turner J. The application was dated 24th June 1999 and Turner J made an order upon it on 3rd May 2000. He permitted an order deleting the decision on the certificate by the Special Adjudicator whereupon the Special Adjudicator's decision was re-promulgated without the certificate. On 30th May 2001 the appellant applied for leave to appeal to the Immigration Appeal Tribunal without prejudice to his contention that leave had been deemed to have been granted by virtue of the provence of the earlier certificate upon determination of the application. On 12th June 2000 the Immigration Appeal Tribunal refused leave to appeal. That refusal was promulgated on 22nd June, and on 21st September 2000 the present application for permission to apply for judicial review was made.
4. Two points essentially are made, although one of them is an omnibus point as to procedure which includes several points within it upon which Mr Hussain, for the appellant, has addressed the Court. The submission is that permission to appeal to the IAT was not required by reason of the existence of the certificate when the decision of the Special Adjudicator was made around the lapse of time. It is submitted that the refusal of the IAT to grant permission is wrong in law, there being a right.
5. The second ground is that on the merits of the application, the adjudicator's finding upon credibility, which was determinative of the appeal to him, was one which in the circumstances he was not entitled to make. Before referring in a little more detail to the first and procedural point, I read the note of Schiemann LJ dated 25th May, which was but in these terms:

"I see no prospect of success in appealing the refusal of Turner J to give wider relief than he did give and in any event would refuse to extend time to appeal that decision. If the case had any underlying real merits those can be considered when the adjourned hearing takes place into Scott Baker J's decision.

I have adjourned that application so the court may consider the points made in paragraphs 52-57 of the relevant form 86A. Both Mr Ockelton and Scott Baker J seem to have treated this part of the submission rather shortly."

6. Mr Ockelton is of course the Deputy President of the Immigration Appeal Tribunal.
7. Submissions were made to Scott Baker J, and these have been repeated at length and certain additions by Mr Hussain to this Court. I find the conclusion of Scott Baker J entirely convincing. I do not consider that it would be helpful to attempt to restate the reasoning, which I could not do in better terms, but I do read two paragraphs of the determination, paragraphs 21 and 22.

"21. In my judgment, the technical point with regard to the consequences of the certificate that should not have been given are of no benefit to the claimant at this juncture and afford him no basis for relief. It would indeed be surprising were the court to be driven to the other conclusion, the consequence of which would be the circumstances of this case that the Tribunal would have to consider a case which did not merit leave to appeal. Whereas having gone by the route ordered by Turner J the consequence is that if there are grounds for appeal then the matter can be heard by the Tribunal, but if there are not then the Tribunal is not further troubled by the case.

22. Finally, I turn to the merit point. I have already read out the material passage of Mr Ockelton's decision, and it seems to me that that was an entirely correct analysis of the situation. This is yet another case where the claimant was faced with a credibility problem and I can see absolutely no grounds for saying that it is even arguable that the Immigration Appeal Tribunal was in some way in error in refusing permission to appeal."

8. I put the second of those paragraphs aside; it deals with the merits point to which I will return in a moment.
9. Having accepted the reasoning of Scott Baker J in coming to the conclusion expressed in the first of those paragraphs, I refer to the background submissions made by Mr Hussain. He refers to the fact that on the nullity question there have been inconsistent decisions of the Immigration Appeal Tribunal. Lord Woolf MR has expressed himself strongly upon the undesirability of such inconsistencies, and Mr Hussain submits that the Court of Appeal should have the opportunity to resolve this question definitively and authoritatively. There is a public importance in the point being resolved.
10. The nullity point, in any event, he submits is a difficult point. Again, in the public interest the point deserves the consideration of the full court. It is arguable that a certificate, having been affirmed by the Special Adjudicator albeit erroneously, in that the Secretary of State did not intend it to remain in existence, should have the effect that subsequent rights which accrue from it, which in this case included the right of appeal to the Immigration Appeal Tribunal, should subsist.
11. Mr Hussain refers to the recent decision of this Court in R v Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 where Roch LJ at page 449 expressed in strong terms that:

" ... the right to have access to the tribunal is a very important right."

12. He added:

"In my judgment, the right created by section 20 of the Act is a basic or fundamental right, akin to the right of access to courts of law."

13. Mr Underwood QC for the proposed respondent has adopted the reasoning of Scott Baker J as to the further points made. He submits that an applicant has not been deprived of access to the Immigration Appeal Tribunal in the sense contemplated in Saleem. He had the right to apply to that Tribunal for permission to appeal from the findings of the Special Adjudicator. It was on the merits of that application that permission to appeal was refused. It is quite correct that Mr Ockelton did purport also to express views on the nullity question, but those were obiter. There was a decision by the Tribunal on the merits of the application. They found that there was there was no merit to permit them to grant permission to appeal.
14. I agree with the approach of Scott Baker J because in judicial review, as in other forms of litigation, the Court should consider the particular case before it. That is the use to which the time of busy courts should be put in the interests of litigants as a whole. The fact that interesting or difficult legal points arise which may be relevant in other cases should not, in my view, in the present circumstances lead to the grant of permission when, on the particular facts, the points need not be determined. They need not be determined because the applicant has had his opportunity to make an application to the Immigration Appeal Tribunal. Moreover, action could have been taken. I do not necessarily criticise those who did not take it, but if the present course is to be pursued then action could have been taken with respect to the judgment of Turner J. There could have been an application for permission to appeal against that judgment and an application to provide the alternative relief, which was possible to be granted at that stage, could have been made. It was open to the applicant to take the relevant point before Turner J. Whether he did so or not is the subject of some doubt, but further steps could have been taken in that quite separate application for permission to apply for judicial review.
15. For the reasons given by Scott Baker J, I would refuse this application on the procedural point.
16. There remains the point which Schiemann LJ expressly referred to. That is by reference to page 128 of the bundle, the paragraph of the adjudicator's decision in which his crucial determination was made "I do not believe that the appellant has given truthful evidence." It is right to say that Scott Baker J dealt with that very briefly. Mr Ockelton has dealt it with in a little more detail. Before referring to what the Deputy President said, I refer to page 105, which forms the basis for the challenge to the determination based as it was at any rate in part on inconsistencies in the evidence of the applicant as to how frequently he had been under arrest.
17. An expert on the Polish language has provided a report dated 18th October 1999 in which he distinguishes between the words "arrest" and "detained" as used in the Polish language. "Detained", he says, giving the Polish equivalent, means that someone is taken by the police for example, for questioning, and then is released unconditionally, released on police bail or further detained in custody. The police in Poland can lawfully keep one in detention without charge for up to 48 hours. The police might, for example, detain people at the scene of a crime for further inquiries, but this does not mean that they are "arrested".
18. He says the word "arrested" is a much stronger word, normally associated with being charged with a criminal offence as opposed to merely being "detained" for questioning.
19. Dealing with the matter, Mr Ockelton stated at page 86 of the bundle:

" ... the Adjudicator's adverse finding on the Applicant's credibility as to past events was essentially determinative of the appeal. The Adjudicator considered that the Applicant had not given a coherent and consistent account of his encounters with the police. Despite the extensive explanations (including expert evidence) now provided on the Applicant's behalf, it appears to me that the Adjudicator's view was clearly open to him on the evidence. I see no reason to impugn his judgment that the witness before him was not telling the truth. "

20. Mr Hussain refers to the inconsistencies as between interviews and evidence. The applicant said that he had been arrested 15 times. He said at other times that he was, to put it neutrally, in custody on very many more occasions, at one time putting it as much as two or three times a week for a period of four years; another somewhat lower figure was given. That involves being in custody on hundreds of occasions and the difference between that and the 15 is startling. He sought to explain it on the ground that if there were 15 arrests in the Polish sense, there were hundreds of detentions, so that the appellant was not giving inconsistent accounts.
21. I have considered the relevant paragraph in the adjudication at page 128. The Adjudicator said:

"I do not believe that he was arrested with the frequency he has stated in his oral evidence. The fact that there was a considerable discrepancy between the number of arrests stated at interview and at the hearing indicates to me that with regard to those arrests the appellant had exaggerated the situation."

22. The reasoning continues with a reference to credibility. The Adjudicator stated:

"The evidence he gives concerning difficulties arising from his marriage to a non-Romany was not credible. I do not believe that his wife's brothers would not know that he was living with their sister and, in any event, I do not believe that their actions could be regarded as those of agents of persecution."

23. The Adjudicator was in a good position to assess the credibility of the appellant. It is right to say one factor he relied on was the discrepancies which he perceived to exist. I am far from persuaded that the point now made, based on the linguistic difference, is an important one. The appellant when giving his accounts must have been aware of the importance of the question of the number of times he was in custody. I find it extremely surprising that if there is a difference between wording, which for present purposes I accept, in the Polish language, that no explanation was given by him for that. It could be expected of him to attempt to explain the very dramatic difference between the number of times which he says he was "arrested" and the number of times he said he was "detained". That is particularly so when when there is evidence from him of being detained hundreds of times. That, in my judgment, inevitably puts an adjudicator on his guard and in a position where he must consider carefully the credibility of the person making the comment.
24. The evidence was considered in a general context. The evidence revolved not just around the question of custody but upon general issues as one would expect in circumstances of this kind. I am not satisfied that it is arguable that it has only the discrepancy that the Special Adjudicator had in mind when saying that he did not believe that the appellant had given truthful evidence. I consider it likely that he had in mind the evidence as a whole, including the alleged number of times when there had been, for present purposes I accept, a lesser detention (up to 48 hours and not the subject of a charge). He also had in mind the evidence which was given about difficulties arising from marriage to a non-Romany.
25. The Special Adjudicator had every opportunity to assess the credibility of the appellant. A criticism can be made, and Mr Hussain has fairly made it, of the manner in which the paragraph is worded, but I do not consider it arguable in the context of the case as a whole that this Court would allow an appeal on the basis that the Special Adjudicator had not made a proper finding on credibility or had not reasoned that finding sufficiently or correctly.
26. The comments of Mr Ockelton, Deputy President, which I have read, are in my judgment persuasive. He concluded by stating:

"Of course he was not aware of the expert evidence, but I see no reason to impugn his [the Adjudicator's] judgment that the witness before him was not telling the truth."

27. Cases such as this require the most careful scrutiny. However for the reasons I have given, the conclusion reached by Scott Baker J was, in my judgment, the proper one and I would refuse permission to appeal.
28. LORD JUSTICE RIMER: I agree with the judgment which my Lord has delivered on both aspects of this application and there is nothing which I could usefully add to it. I too refuse the application.
(Application for permission refused)