England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
RENEWED APPLICATION FOR PERMISSION TO APPLY
FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand London WC2 Thursday, 16th May 2002

1. LORD JUSTICE WALLER: The applicant renews his application to move for judicial review of the Appeal Tribunal's refusal of permission to appeal the decision of a special adjudicator. The application to move for judicial review was originally refused on paper by Ouseley J. It was then renewed orally but refused by Keith J. It was then renewed in the Court of Appeal and refused by Sedley LJ on the papers. Today it has been renewed orally.
2. The essential point that the claimant wishes to argue appears from the claimant's original skeleton argument and relates to certain documents produced on his arrival in this country. The skeleton originally put the matter in this way:

"The claimant claims to be a Somalian national who spent most of his life in Tanzania before being forcibly deported to Somalia. He fears his removal to Tanzania will bring about his involuntary return to Somalia where he would face a real risk of persecution for a Convention reason.

On arrival to the United Kingdom the claimant produced an identification card and birth certificate, which the Secretary of State refused to accept, as evidence of his Somalian identity. Directions were initially given for the claimant's removal to Somalia. These were subsequently withdrawn and replaced by directions for the claimant's removal to Tanzania.

In dismissing the claimant's appeal against the Secretary of State's decision to refuse his application for asylum, the adjudicator's approach to the documents was as follows:

'For the reasons given below I do not accept the appellant is credible and therefore I cannot accept the identification card and birth certificate as genuine.'

The adjudicator's approach to the documents was put in issue in the grounds of appeal to the Immigration Appeal Tribunal. In refusing leave to appeal the Tribunal stated that:

'The Tribunal does not agree that the adjudicator's reasons for dismissing the appeal are flawed as claimed or at all. He came to adverse credibility findings which in the view of the tribunal he was entitled to reach on the evidence before him. ... The adjudicator's determination contains no error of law nor any failure properly to assess the evidence.'"

3. Then the skeleton refers to the ruling of Ouseley J and then refers to the refusal by Keith J. It quotes from his ruling in these terms:

"The claimant applies for permission to apply for judicial review of [the IAT's] decision. The criticism relates to the adjudicator's treatment of a contention that the claimant had produced a fake ID card and birth certificate. It is said that the adjudicator erred in assessing where the burden of proof lay.

This criticism is misplaced. The adjudicator dismissed the appeal on the basis that he did not believe the claimant's account. The documents did not play any part in assessing credibility. The adjudicator decided the issue of credibility first without reference to the question of the genuineness of the documents....'"

4. The skeleton then referred to points that were taken before Keith J. It is submitted that the judge did not take these points into account. It is submitted that:

"(i) the adjudicator erred in failing to treat the documents as relevant to the assessment of credibility;

(ii) the documents were significant and prima facie corroborative of the claimant's account, particularly his claim to be a Somalian national;

(iii) the documents should have been weighed by the adjudicator in reaching a view on the credibility of the claimant's account, not rejected because his account was not credible."

5. It was in those circumstances that the matter was renewed before this court.
6. Sedley LJ, when refusing permission to move for judicial review, said this:

"The single appeal point is well taken on the face of it: A should not have been denied the chance to rely on the genuineness of the identity card and birth certificate.

The problem is that the Home Office had offered to show the adjudicator its evidence of forgery in closed conditions, as provided by law, but (see para.3) A's counsel did not encourage him to take up the offer. So the opportunity to have the Home Office's evidence heard and possibly rejected was waived. What was left were two documents whose authenticity was uncertain in the light of what A himself had allegedly said about them.

In the circumstances the decision on credibility went off on the remainder of the evidence, and no issue of law arises."

7. What Sedley LJ is referring to when he said that authenticity is uncertain in the light of what A had said about them, is the fact that, originally, the applicant was recorded as having accepted that these documents were not genuine, but by a later interview he said that he had not made that admission. Therefore, he was asserting that there was no admission of authenticity.
8. In the light of Sedley LJ's ruling, a further skeleton has been put in which recites the terms of the relevant paragraph of the schedule, dealing with when matters may be dealt with and dealt with in private. Paragraph 6 of Schedule 4 of the Immigration Asylum Act 1999 provides by subparagraph (1):

"Subparagraph (2) applies if, on an appeal under Part 1V, it is alleged -

(a) that a passport or other travel document, certificate of entitlement, entry clearance or work permit (or any part of it or entry in it) on which a party relies is a forgery, and

(b) that the disclosure to that party of any matters relating to the method of detection would be contrary to the public interest.

(2) The adjudicator or tribunal must arrange -

(a) for the proceedings to take place in the absence of that party and his representatives while the allegation mentioned in sub-paragraph (1)(b) is inquired into by the adjudicator or tribunal; and

(b) if it appears to the adjudicator or tribunal that the allegation is made out, for such further period as appears necessary in order to ensure that those matters can be presented to the adjudicator or tribunal without any disclosure being directly or indirectly made contrary to the public interest."

9. The point which is now sought to be argued is that, having regard to the language of subparagraph (2), which I have quoted, there could have been no waiver of the procedure outlined in that Schedule. The position, however, was not quite as straightforward as Sedley LJ was assuming.
10. One sees from the determination and reasons of the adjudicator, (page 12 of bundle 2 and page 2 of those reasons) what happened in relation to these documents. First of all, the adjudicator says this:

"The Home Office also stated that the National Forgery Section had examined the Somali identity card and birth certificate that the appellant presented to the immigration officer on arrival, and they had not been able to confirm the validity of these documents for reasons which they would not disclose, other than to an adjudicator in the absence of the appellant pursuant to paragraph 6(i) of Schedule 4 to the Immigration and Asylum Act 1999 and paragraph 40 of the Appeal Rules 2000."

11. In the next paragraph, what the adjudicator there refers to is the fact that the Home Office representative had not appeared on that day before him but that a Miss Dajani was appearing for the applicant. It also demonstrates the reluctance that the adjudicator had in adjourning the matter and that he was of the view that the applicant would not be in any way prejudiced by there not being an adjournment. Then this appears:

"Miss Dajani did not press for me to hear the result of the Forensic Forgery Section in private and so I decided to hear the appeal in the absence of the HOPO. I judged there was no injustice to the appellant or the respondent to hear this appeal now."

12. What is clear from the determination and reasons of the special adjudicator is that he was taking the view that the evidence in relation to these documents was inconclusive. He was thus taking the view that, even if there was a hearing in private, the result would be at that stage a finding by him that the question whether these documents were valid or invalid could not be determined by reference to forensic evidence. As it seems to me, if that was the conclusion that was going to be reached as a result of a hearing in private, there is no reason why Miss Dajani, who was then appearing for the applicant, should not allow the procedure to be short-circuited and allow that conclusion to be the appropriate conclusion in relation to the examination of the documents alone.
13. Miss Adedeji, who has appeared here for the applicant, accepts that, when one looks at the reasons of the adjudicator, it is clear that he treated the position of the documents as neutral and then looked at the evidence. What one sees at paragraph 12, without any reference to the documents, is the adjudicator going through those aspects of the applicant's evidence relating to what the applicant was saying about the country from which he came, and concluding that he was totally lacking in credibility, save in relation to the fact that he spoke Swahili. The adjudicator found that his evidence was entirely unsatisfactory and that he could not accept that he was a Barawan from that coastal area of Somalia. It is said that somehow the evidence relating to the documents should have formed part of the reasoning of the adjudicator, that the burden of proof was on the Secretary of State to prove the lack of authenticity of the documents, and that therefore the adjudicator did not apply the appropriate burden of proof. As it seems to me, there is nothing in that criticism because the adjudicator was treating the evidence of these documents as neutral.
14. One returns to the criticisms which are sought to be made in the original skeleton argument and I take them one at a time. The first is the assertion that the adjudicator erred in failing to treat the documents as relevant to the assessment of credibility. It was entirely appropriate, if the evidence in relation to these documents was neutral, not to treat them as relevant in the assessment of credibility, but to decide credibility in the way that he did. The second, that the documents were significant and prima facie corroborative of the claimant's account, particularly his claim to be a Somalian national, again, it seems to me that the applicant was not entitled to have the documents taken into his favour as corroborative. The position was that the state of the evidence was that one could not tell whether or not these documents were valid. Thus, it was not fair to start from the assumption that they were valid. The position was that they were neutral. Thirdly, the documents should have been weighed by the adjudicator in reaching a view on the credibility of the claimant's account, not rejected because his account was not credible. This is the same point. The documents, so far as the reasoning of the adjudicator was concerned, carried no weight at all, because the state of the evidence was that one could not tell whether these documents were valid or invalid. They should not carry weight against the claimant's credibility, nor would they carry weight in his favour, and the adjudicator had to look at the other evidence in order to decide whether his account was credible. If his account was incredible, as the adjudicator found, then he was entitled, on that basis, not to accept those documents as genuine.
15. There is no error of law and this application must be refused
Order: Application refused; detailed assessment.