England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th July 2002

Mr Justice Moses:

INTRODUCTION

1. On 12th October 2000 the Immigration Appeal Tribunal allowed the claimant’s appeal from a decision of the Special Adjudicator, given on 28th April 1999, dismissing the claimant's appeal against the Secretary of State’s refusal to grant him asylum. Notwithstanding the successful outcome of his appeal, the Secretary of State refused to grant the claimant refugee status or leave to remain. On the contrary, on the 14th September 2001 the Secretary of State served him with notice of his decision to deport on the basis that his presence in the United Kingdom is not conducive to the public good.
2. The Secretary of State’s decision was based on the ground that the favourable IAT decision was obtained by fraud, the evidence of which had not come to the Secretary of State's attention until after the IAT hearing. The claimant has appealed that decision but contends that the Secretary of State’s decision to issue the Notice of Intention to Deport was illegal and irrational. In essence, he asserts the Secretary of State failed to ask himself the correct questions in relation to the evidential basis for setting aside the decision of the IAT.

FACTS

3. The claimant was born on 1st January 1970 in Erzincan province in eastern Turkey. In July 1995 he met a visitor from the United Kingdom, Anna Galliano and formed a relationship with her. Following the loss of a baby in October 1995 in the United Kingdom, Miss Galliano flew to Istanbul on 16th December 1995 and stayed with the claimant. On 18th December 1995 she collapsed and died. On 22nd December 1995 the claimant was issued with a six month visitor visa to visit the United Kingdom due to compassionate circumstances. He arrived in the United Kingdom on 27th December 1995. On 21st March 1996 the claimant claimed asylum under the name of Asur Kerim. On a date described as "post 6/96", Dr. Rutherford who had conducted the post-mortem examination on Miss Galliano concluded that there was no reason to dispute a Turkish autopsy finding that death was due to abdominal trauma resulting in rupture of the liver.
4. On 13th August 1996, the Turkish Ministry of Defence identified the claimant as a draft evader and requested that he be apprehended. On 1st May 1997 the claimant was approached by Greater Manchester police and gave his name as Asur Kerim. On 2nd May 1997 his real identity was disclosed to the police and he was interviewed in connection with Miss Galliano's death. On 29th July 1997 he was refused asylum. On 9th November 1998 proceedings were started in Turkey in which he was accused of the murder of Anna Galliano. On 15th February 1999 his appeal to the adjudicator was adjourned part heard. His case was featured on the front page of a Turkish newspaper in March 1999 and in The Daily Mail.
5. On 28th April 1999 the adjudicator dismissed his appeal and the claimant submitted grounds of appeal to the IAT. On 18th August 1999 at a pre-hearing review the IAT indicated that it might raise the exclusion clause contained in Article 1F(b) of the Geneva Convention on Refugees. This provides:-

"The provisions of this Convention shall not apply to any person in respect of whom there are serious reasons for considering that;

(c) He has committed a serious non political crime outside the country of refuge prior to his admission to that country as a refugee."

6. On 30th September 1999 the Chairman of the IAT decided that that exclusion clause was not in issue. On 25th May 2000, the IAT started to hear the claimant's appeal. It was adjourned part heard on that date and again on 21st June 2000. On 12th October 2000 the claimant's appeal was allowed.
7. Between February and April 2001 the claimant was invited to take part in a programme to be broadcast by the BBC called "Correspondent”. He declined and objections were made, on his behalf, to transmission of the programme. On 28th March 2001 and 3rd April 2001 the claimant's solicitors requested that he be granted indefinite leave to remain. On 22nd April 2001 the BBC broadcast of the "Correspondent" programme. On 26th April 2001 the claimant's solicitor's asked for an explanation for the reporting condition imposed on the claimant. The Secretary of State responded on 6th June 2001 asking for the claimant's comments on eight matters raised by the “Correspondent” programme. On 27th June 2001 the claimant's solicitors responded. On 30th July 2001 the Secretary of State declined to grant the claimant refugee status and indicated that he was considering deportation on the grounds that the claimant's continued presence was not conducive to the public good. He issued a "One Stop Notice". On 7th August 2001 the claimant asserted that the Secretary of State's approach was unlawful and on 8th August 2001 completed the "One Stop Notice". On 14th September 2001 the Secretary of State issued his decision to deport the claimant and served a Notice of Intention to Deport. On 24th September 2001 the claimant appealed against that decision. On 3rd December 2001 the claimant issued his claim for Judicial Review.

THE IAT DECISION

8. On 12th October 2000 the IAT gave notification of its determination. Between paragraphs 5 and 21 it set out its findings as to major events. It recorded that his father had died under torture in a military prison, although it now appears to be agreed that it was his cousin who died in prison. The IAT recorded the fact that he had participated in writing political graffiti on walls and had come to the attention of the police during his schooldays. At university he was arrested and detained with other members of his family. The IAT records the claimant’s assertion that it was his cousin who was tortured to death in Istanbul in October 1998. The claimant was questioned but released. (See paragraph 6). He claimed that between 1988 and 1992 he was involved in minor political acts, arrested, put under surveillance but released (paragraph 7).
9. The appellant said that his shop that was burnt down and that he then relocated and adopted a false name. The IAT record the claimant’s meeting with Anna Galliano and her tragic death. It refers to medical evidence leading to some uncertainty as to the cause of death (see paragraph 11). The IAT further records newspaper publicity in Turkey in which the claimant was accused of the murder but asserted that he had been oppressed for being a Kurd. At paragraph 17 the tribunal referred to a document purporting to come from the office of a District Governor connecting the claimant’s family with the DHKP/C and various political activities. The IAT noted that there had been no forensic examination of this document or any other external challenge to its veracity. (See paragraph 17). The IAT further recorded the ongoing murder trial in Turkey. It concluded that it was necessary for the appellant to give evidence. (See paragraph 20).
10. After recording the submissions the IAT came to its conclusions:-

"39. Mr Smith says the appellant was quite prepared to persist in deception even to the point in time when he was claiming asylum. His story concerning his false identity in Turkey, notwithstanding his and his counsel's thorough attempts to explain it leaves us unconvinced that it is likely to be true. Obviously this must reflect upon his overall believability. However, there are a number of uncontroverted facts which we accept. The first one is, his family was politically oriented to such an extent that his father was a political prisoner and died in jail. [I repeat that it now appears that it was his cousin]. This was a long time ago but it is also a fact accepted by us that the state has a very long memory. We see no particular reason for disbelieving the appellant’s claim to have been involved in attending demonstrations, writing graffiti, attending meetings generally and so on. Whether all this could be of such a nature that the party DEV SOL would think it necessary to provide the appellant with an alias and for him to live within Turkey under that alias, is highly unlikely. What seems far more likely is that he used that story as an explanation for staying in Turkey as long as he did after his last arrest. We do however accept the general thrust of the parts of the story that he had been involved from time to time with DEV SOL in no important matters but was arrested and released.

40. It is clear, and we do of course accept that he has been charged with the murder of Anna Galliano. We accept also that the newspapers in Turkey as well as for that matter in this country have presented him in a wholly prejudicial light. In Turkey particularly their lurid portrayal of Ocalan as we have described juxtaposed on the front page of the newspaper to the appellant can have left no doubt in any one’s mind of the implications. Given the background in Turkey of the acknowledged treatment of Kurdish people by the Turkish authorities and given that we accept, and it is not disputed, that he will be arrested on his return that regime in our view will thoroughly interrogate him. Whether after that they simply send him off to the normal criminal courts forthwith or later, we cannot assess. What we can assess, is given the unremitting climate of violence in Turkish society and the current background material not only from the appellant's side but from the respondent itself in its CIPU he faces interrogation and we think it is reasonably likely that his family associations with DEV SOL and maybe any of his own will come out. This will in all probability involve serious maltreatment. The question is, will it amount to persecution."

11. The IAT then considered whether the persecution would be isolated or systematic and continued at paragraph 42:-

"What is our assessment therefore of what may happen to the appellant on his return? The respondent concedes that he will be arrested. The rest of the evidence, which we have accepted must lead to the inevitable conclusion that he will at the very least, be maltreated when he returns. The evidence seems to go further because there is a suspicion of a PKK involvement and he is clearly a failed asylum seeker. He will be interrogated and there is a serious likelihood that it be severe and could amount to torture. (sic). Even if it is thought that he will almost immediately be handed over to the criminal courts the whole climate of violence in Turkey is such that it seems likely there is enough time for mistreatment to occur. He may be detained for a very long time for one reason or another.

43. We confess as we said earlier to being mystified why the State did not at least at the very beginning take the point that he should be excluded. At least then that issue could have been aired. We do not consider that given the attitude by both parties that it is possible for us to air it now. Even if we had felt that we should do so, we cannot see, given the medical evidence before us, that we could conclude that there were indeed serious reasons for considering that the appellant murdered Anna.

44. We would not wish to leave this case without remarking that we can well understand how Anna's parents must feel and should they come to hear of this determination their distress will be more than understandable. We can only explain that we are not here to deal with that issue, especially given the way in which it has been presented to us. Once again straight forward issues of asylum are inextricably bound up and extensively complicated by a persistent unwillingness on the part of States to ensure that the overall level of protection is so lacking that the mere return to the country alone can raise issues under the convention.

45. Finally we have not dealt with the question arising under Article 3 of the European Convention on Human Rights. Miss Henderson has argued the matter and the furthest we felt it was necessary to go, is to make what we hope to be have been clear enough findings of fact that should the matter become relevant, it will not be necessary to examine the facts again."

12. It is important to appreciate that the question of the claimant’s history in Turkey in the past is distinct from the question as to the risk of persecution or violation of his rights under Article 3 of the European Convention in the future. Despite its doubts as to the claimant’s credibility, in the light of the publicity in Turkish newspapers, the IAT was satisfied there was a risk of persecution in the future. It is also important to emphasise that the IAT never received any explanation as to why the exclusion clause under Article 1F(b) of the Geneva Convention was never relied upon by the Secretary of State.

STATUTORY FRAMEWORK

13. By Section 3 (5)(a) the Immigration Act 1971,

"a person who is not a British citizen is liable to deportation from the United Kingdom if -

(a) the Secretary of State deems his deportation to be conducive to the public good...."

A person may appeal to an adjudicator against the decision the Secretary of State to make a deportation order against him under section 5(1) of the 1971 Act as a result of his liability to deportation under Section 3(5) (see Section 63(1)(a) of the Immigration Asylum and Act 1999). A deportation order is not to be made under Section 5(1) of the 1971 Act while an appeal may be brought against a decision to make it (see Section 63(2) of the 1999 Act). Where the Secretary of State has decided to make a deportation order under Sections 3(5) and 5 of the 1971 Act he must serve on the applicant a notice requiring him to state any additional grounds which he has or may have for wishing to remain in the United Kingdom (see Sections 74(3) - (5) of the 1999 Act) and the appellate authorities will consider those additional grounds as well as the grounds for appealing against the notice of intention to deport (see Section 77 of the 1999 Act).

LEGAL EFFECT OF THE DETERMINATION OF THE IAT.

14. The legal consequences of the determination of the IAT were explained by Elias J. in R v SSHD ex parte Mersin [2000] INLR 511. This concerned delay in granting a successful asylum seeker leave to enter. Elias J's decision as to the delay was based upon his conclusion that there was a legal obligation to grant leave.
15. That there is a right to leave has been confirmed by the Court of Appeal in R v SSHD ex parte Boafo [2002] EWCA Civ 44 paragraph 25. Auld LJ, referring to the Secretary of State's mistaken reliance on a factual assertion that the claimant was not living at the material time with her husband, said:-

"Nevertheless, it is a salutary example of the importance, as Mr Justice Rose emphasised in ex parte Yousuf at 558 of the executive making use of available machinery of appeal when seeking to challenge the decision of an adjudicator, rather than attempting to circumvent it by reconsidering the matter, whether on evidence going to original or new facts. That is especially so where , as in a case like this, any fresh executive decision is unappealable save by way of Judicial Review.

26. On the question whether, as a matter of law the Secretary of State was entitled to disregard the adjudicator’s determination and consider the matter afresh because it was not accompanied by directions, I take the first two propositions of the judge as starting points. First, this appellate machinery is one of review, not rehearing and both an adjudicator and the tribunal are normally bound to determine appeals on the facts on the date of the decision under challenge. And second, an unappealled decision of an adjudicator is binding on the parties. However, I disagree with the judge and his decision that an adjudicator’s decision without directions, is by reason of their absence, not binding on the Secretary of State and that he may, in consequence, consider the matter afresh in the light of new information".

16. At paragraph 28 Auld LJ continued:-

"There may be circumstances in which the executive may reopen the decision without appealing the determination of an adjudicator, for example, because there is fresh evidence, say of deception of the adjudicator about the facts on which the challenged decision was based, or where as in the Entry Clearance case of ex parte Yousuf, the very nature of the second decision calls for decision on contemporaneous facts".

17. The decision in ex parte Boafo demonstrates an important principle at the heart of these proceedings. The Secretary of State is not entitled to disregard the determination of the IAT and refuse a claimant’s right to indefinite leave to remain as a refugee unless he can set aside that determination by appropriate procedure founded on appropriate evidence.
18. The principles by which a Secretary of State may do so were not in dispute. It was his approach to those principles in the instant case which gave rise to controversy.

IMPUGNING THE DECISION OF THE IAT ON GROUNDS OF FRAUD

19. The Secretary of State has not sought to appeal the IAT decision in the Court of Appeal on the basis of the evidence before the IAT at the time of its determination. Thus he can only impugn the IAT decision on the basis of fresh evidence of fraud which is relevant, credible and not previously available without due diligence in accordance with the well known principles enunciated in Ladd v Marshall [1954] 1 WLR 1489.
20. The quality of that fresh evidence is emphasised in an affiliation case, R v Ashford Kent Justices, ex parte Richley (No. 2) [1956] 1QB 167. Jenkins LJ said:-

"I would not attempt to state exhaustively the requirements that should be insisted on as regards the state of the facts underlying an application of this sort, but, without attempting to lay down any general rule, I venture to say that I think an order of certiorari to quash proceedings on the ground that they were procured by fraud or perjury should seldom if ever be made unless the facts regarding the alleged fraud or perjury have either been the subject of a conviction in regular criminal proceedings against the person to whom the fraud or perjury is imputed, or else have been admitted by something amounting to a confession”. (177)

Parker LJ said:-

“The question, as it seems to me, is:- is that sufficient proof of fraud to enable this court to quash the decision? The fraud must be clear and manifest…….”

21. In Jonesco v Beard [1930] AC 298 Lord Buckmaster said:-

“It has long been the settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires…..If however for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit, on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.” (300-301).

22. In Taylor v Lawrence [2002] 2 AER 353 at 358 Lord Woolf CJ cited Lord Wilberforce in the Ampthill Peerage Case [1977] AC 547 in emphasising the importance of the fundamental principle of finality exemplified in Ladd v Marshall. Lord Wilberforce said at 569:-

“Any determination of disputable fact may, the law recognises, be imperfect; the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further enquiry.

It is said in doing this, the law is preferring justice to truth. That may be so; these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth….. and these are cases were the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards; so the law allows appeals; so the law, exceptionally, allows appeals out of time; so the law still more exceptionally allows judgment to be attacked on the ground of fraud; so limitation periods may, exceptionally be extended. But these are exceptions to the general rule of high public importance, and, as all the cases show, they are reserved for rare and limited cases where the facts justifying them can be strictly proved.”

23. These principles are no different in immigration cases. In R v Secretary of State for the Home Department ex parte Momin Ali [1984] 1 WLR 663 Sir John Donaldson MR considered an application to adduce further evidence before the Court of Appeal. It refused to allow the fresh evidence on the grounds that it was not shown that it could not have been obtained with reasonable diligence for use at the trial. Sir John Donaldson MR said:-

“Just as I think the doctrine of issue estoppel has, as such, no place in public law or Judicial Review…. so I think that the decision in Ladd v Marshall has, as such, no place in that context. However I think that the principles which underlay issue estoppel and the decision in Ladd v Marshall, namely there must be finality in litigation, are applicable, subject always to the discretion of the Court to depart from them if the wider interests of justice so require.”

24. Sir John Donaldson MR then considered the correct approach of a judge to material which he was bound to consider as a matter of primary judgment in accordance with the principles of R. v the Secretary of State to the Home Department ex parte Khawaja [1984] 1 AC 74. He said:-

“The standard of proof required by the House of Lords where there has been no previous adjudication is that appropriate to allegation of a serious character and one involving the liberty of the subject. Here an even higher standard is required, because the starting point is a binding decision of an appropriate tribunal in favour of the applicant. The decision may not render the issue of his status res judicata, but it comes very close to it. If it is to be reversed, the Home Office must prove fraud to a standard appropriate to such an allegation.”

25. As I have said, neither party was disposed to dispute these principles. There was, however a dispute as to the appropriate procedure. There is no restriction within the statute on the issue of a notice of intention to deport. Once it has been issued, it is open to the claimant to appeal in accordance with those provisions to which I have already referred. The Secretary of State submits that an appeal to an adjudicator is a more convenient process. It avoids duplication and a hearing before the adjudicator is a more suitable forum for hearing contested evidence. There is, indeed, judicial support for that approach in ex parte Momin Ali where Sir John Donaldson MR said:-

“It is unfortunate that the instant application has arisen in circumstances in which the applicant has no right of appeal to an adjudicator, who would be better equipped to resolve the issues than is a court.” (See page 666).

26. Mr Blake QC, on behalf of the claimant, accepted that there would be cases where it is appropriate to issue a Notice of Intention to Deport without first seeking to set aside a determination either by an out of time appeal or by Judicial Review. Such a course would be appropriate, he concedes, where fraud is admitted after an IAT determination. But in the instant case he contends that it is incumbent upon the Secretary of State to ask himself the correct questions in relation to the nature of the evidence on which he relies for the purpose of setting aside the determination. The decision to issue a notice of intention to deport cannot be considered other than in the context of the existing determination of the IAT. Accordingly consideration of the evidence which might lead the determination to be set aside is inextricably linked with a decision as to the notice of intention to deport. Absent any prospect of setting aside the determination the issue of the notice of intention to deport is merely to beat the wind. In essence Mr Blake QC contends that there has been a complete failure on behalf of the Secretary of State to question, let alone satisfy himself, as to the cogency of the fresh evidence before issuing the notice of intention to deport. I turn accordingly to the approach which was adopted by the Secretary of State.

EVENTS POST DETERMINATION

27. On 3^rd April 2001 solicitors for the claimant wrote to the Home Office referring to the BBC’s preparation of a programme about the claimant and said:-

“I understand that the BBC are making a programme about Mr Saribal and may have sent you evidence which they claim shows that he is not entitled to refugee status. If this is the case I ask that this evidence is immediately sent to our office so that we may take instructions from our client.”

28. No such evidence was forthcoming and the solicitors obtained their own transcript. The transcript referred to the area where the Saribal family had owned the shop which the claimant had contended had been destroyed (see 400 to 401). An interviewee stated that the Saribal family were not Kurdish but Alawites; a different interviewee denied that the claimant had ever had an electrical shop (see page 402). In a report, dated 22^nd November 2001, obtained on the claimant’s behalf, which was before the Secretary of State, an expert disputed the English translation and disputed the contention that the family was not Kurdish (see paragraph 4 paragraph 5 of that report). The BBC transcript referred to a dispute about the date of arrest which the claimant said occurred during a concert. An interviewee said that the concert took place in April in 1990 but no members of the audience were arrested (see page 403). A further interviewee denied that the claimant had used a false name (see page 405). It was suggested that he was not being sought for terrorist links but rather for not serving in the army (see page 406). Later in the interview it was reported that his father was still alive and had not died in prison. The interviewee referred to a cousin dying in 1981 whilst being held in prison as a political prisoner (see page 407). As I have said, the allegation that the claimant had falsely claimed his father had died arose from confusion between the father and cousin. On 15^th May 2001 a Mr McDowall wrote to the author of the BBC’s film, unsolicited by anyone on behalf of the claimant, explaining that no Turkish citizen would voluntarily describe himself as a Kurd since to do so would be an act of separatism and a crime.
29. On 6^th June 2001 the Home Office wrote to the claimant’s solicitors notifying them that the Minister would make a final decision about the claimant’s immigration soon. It sought comments on eight matters namely the assertions in the programme that he was not Kurdish, that he did not own a shop, that the family never volunteered they were politically active, that there were no arrests during the concert in April 1990, that he had not used an alias while working in a hotel in Bodrum, that there was no record of the claimant having come to the attention of the police because of illegal political activities, that he was merely listed as a person who had evaded military service, that his father was not dead and did not believe his son had ever been involved in political activity and that, contrary to the claimant’s contention that he had never left the UK since December 1995, there were immigration records to show that he had departed Turkey on 20^th October 1996.
30. His solicitors responded to these allegations in a letter dated 27^th June of 2001. The Home Office replied to those responses on 30^th July 2001. It said that the evidence before the IAT had been “seriously undermined” (see page 4). The letter continued:-

“In conclusion, on the totality of the evidence, we are not currently satisfied that Mr Saribal is a refugee in need of international protection.”

31. On 7^th August 2001 solicitors for the claimant asserted that the Home Office was ignoring the determination of the IAT and a day later enclosed One Stop Notice of additional grounds. On 14^th September 2001 the Home Office wrote:-

“For the reasons stated in previous letters we are quite satisfied that Mr Saribal’s asylum appeal was successful only because the core basis of his claim is fabricated. The evidence that shows this to be the case, which in our view is overwhelming, did not come to our attention until after the IAT hearing. In such circumstances, it would clearly be wholly wrong to recognise him as a refugee. We have now made a decision to deport Mr Saribal on the basis that his presence in the United Kingdom is not conducive to the public good. This is on the grounds that; 1. He has clearly attempted to gain leave to remain in the United Kingdom by using deception. It would be entirely contrary to the public interest of maintaining fair but firm immigration procedures to allow him to remain in the United Kingdom. 2. He is a subject of criminal proceedings in the Turkish courts on charges of murder. It would be wrong to form any opinion on whether or not he be guilty of this crime. However, it is contrary to the public interest that he should be allowed to avoid the consequences of this prosecution by remaining in the United Kingdom through abuse of the asylum system.”

32. That letter enclosed the relevant notices and appeal papers. A letter referring to earlier correspondence was written to the claimant. It reiterated the eight points to which I have already referred. On 24^th September 2001 solicitors enclosed a letter from an interpreter recording that he had spoken in Kurdish to the claimant and that Kurdish was a forbidden language which could not be practised in public. On 19^th November 2001 the Home Office reiterated its belief that Mr Saribal was not Kurdish and its dispute that he comes from a politically active Kurdish family and is himself politically active. It described a document dated 1^st June 1997, which purported to show that he was wanted by the Turkish authorities, as a forgery.
33. In a witness statement dated 16^th March 2002 the senior caseworker in Immigration and Nationality Directorate, Simon Bentley, explains why there is significant new evidence to show that the IAT decisions is vitiated by the fraud of the claimant (see paragraph 3). At paragraph 19 he refers to Turkish immigration records. He asserts that the claimant did go to Turkey in the summer of 1996 and that that is inconsistent with his claim to fear persecution. He continues:-

“The claimant denies going to Turkey in 1996. He claims to have lost his passport; paragraph 8 of the letter of 27^th June 2001. That paragraph of the letter refers to “ ample evidence” that the claimant was in the UK during this period. But the claimant has produced no such evidence, despite the defendant drawing attention to this omission……”

34. Paragraph 20 of the statement refers to the alleged forged warrant for arrest although this was only discovered after the decision to issue the letters of intention to deport and is thus irrelevant, as Mr Kovats on behalf of the Secretary of State accepted. Thirdly it refers to the claimant’s assertion that he had been arrested on 30^th April 1990 at a concert. The statement then continues, at paragraph 22, by asserting it is not credible that the claimant was merely mistaken as to the date because he would not forget the occasion of his first detention at university. Fourthly, it refers to the claimant’s father’s denial that the claimant was involved in politics; Turkish police records do not show that he was wanted in connection with any political or terrorist activity. The statement then refers to the claimant’s claim to be Kurdish and that his electrical shop was burnt down. Finally it refers to the IAT’s opinion as to the claimant’s lack of credibility. The statement continues:-

“In the circumstances, the new evidence establishes to the requisite high standard that the claimant defrauded the IAT.” (See paragraph 30)

WAS THE SECRETARY OF STATE’S APPROACH TO THE FRESH EVIDENCE UNLAWFUL?

35. Mr Kovats starts from the proposition that since there is nothing in the statute which prohibits the issue of a notice an intention to deport, there is no inhibition on the Secretary of State doing so providing only that he asks himself the correct questions. That he did so is demonstrated by paragraph 30 of Mr Bentley’s witness statement. There is, he submits, no disadvantage to the claimant in issuing such a notice. Should the Secretary of State be unable to adduce the necessary evidence at the hearing, an adjudicator on appeal can so rule when he considers the Ladd v Marshall tests as a preliminary issue (see Immigration and Asylum Procedure Rules 2000, rule 30(4)(c)(i)). There is, moreover, every advantage in a hearing before the adjudicator which is appropriate for hearing contested evidence and avoids duplication.
36. I do not think that this case turns on the appropriate forum for setting aside the determination of the IAT. But, to my mind it does turn on whether the Secretary of State asked himself those questions which are appropriate to the issue as to whether the determination can successfully be set aside. The acceptance, on behalf of the Secretary of State, that some questions as to that issue must be asked, carries with it the acceptance that it is not sufficient merely to form a view that there are grounds for issuing a Notice of Intention to Deport; he must also consider whether the evidence for supporting those grounds satisfies the principles underlying Ladd v Marshall. If it were merely sufficient to issue the Notice and then hope that the evidence will emerge by the time of the hearing of the appeal, then there would be no need for the Secretary of State to consider any question as to setting aside the existing determination. But, rightly, the Secretary of State has not adopted so insouciant a stance. To do so would be to ignore the determination.
37. I start, accordingly from the position that, in the light of the existence of the IAT’s determination, the Secretary of State must consider the question as to whether the Ladd v Marshall tests are satisfied.
38. I am prepared to accept that the Secretary of State asked himself whether the evidence had been available with due diligence previously and whether, if proved, the evidence would establish to the high standard necessary that the determination was obtained by fraud. This conclusion appears only to have been reached by 14 September 2001. The earlier letters from the Home Department do not disclose any appreciation of the need to set aside the IAT determination (the letter dated 30 July 2001 referred to not being currently satisfied that Mr Saribal is a refugee). Even the letter dated 14 September refers to a mixture of old and new issues.
39. I do accept that the material, which has now come to light, in particular in relation to the alleged return to Turkey in 1996 relates to an allegation which, if proved, is capable of establishing that the original determination was obtained by fraud. There are statements on behalf of the claimant asserting that he did not leave the United Kingdom, although they are challenged by the Secretary of State since even the statement by a former employer makes no reference to examination by him of any records. But I do not have to resolve such disputes.
40. However, acknowledgement of the existance of the determination of the IAT requires the Secretary of State to consider not only the impact on the determination of the fresh evidence, if proved, but also the likelihood of the evidence achieving that effect. It cannot be enough merely, to consider material without consideration of its source and evidential value. The third condition which must be fulfilled to justify the reception of fresh evidence was described by Denning LJ in Ladd v Marshall at 1451:-

“The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

This is particularly important where, as Lord Wilberforce pointed out in Ampthill, strict proof is required.

41. It is striking that in this case the Secretary of State has relied solely on material in the BBC broadcast. There is no evidence, even after these proceedings were launched, that he conducted any investigation as to the cogency of the evidence whatsoever. He was challenged both during the course of the correspondence and at this hearing to produce some evidence but he has remained silent.
42. It is true that an important part, but by no means all, of the evidence on which the Secretary of State now relies, is documentary. But he has not asked the Turkish authorities to see the records. Nor as he made any enquiry about any witness. It seems to me that the Secretary of State cannot have asked himself any questions about the cogency of the evidence without at least some enquiry as to its source, availability, and the likelihood of it standing up in court. The sole source of the Secretary of State’s conclusions is the BBC programme. He has not even made any enquiries of its authors.
43. Such failures, to my mind, show the Secretary of State did not ask himself whether the evidence was of sufficient cogency to set aside the determination of the IAT. Mr Kovats contended that unless the claimant could show that it was an abuse of process to issue the Notice, there was no basis for quashing the decision to do so. I do not agree. The Secretary of State either failed to ask himself the very questions he now accepts must be asked or if he did ask himself whether the evidence was cogent, his response was outwith the range of reasonable responses.
44. I am far from saying that no evidence exists, on the basis of which the Secretary of State could set aside the determination of the IAT. But the existence of that determination gives rise to a right to refugee status which can only be set aside by clear evidence of a strength to demonstrate that the right was obtained by fraud. Such was not the concern of the BBC, but it was for the Secretary of State. Absent any investigation whatsoever, he cannot rebut the contention that he failed properly to acknowledge that right. I shall accordingly quash his decision to issue the Notice of Intention to Deport and hear any further argument as to the appropriate form of relief.