England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th October 2002

Mrs Justice Rafferty:

1. Consequent upon permission granted in an oral renewal hearing the Claimant challenges the refusal of the Immigration Appeal Tribunal (IAT) to consider his application for leave to appeal against the decision of a Special Adjudicator (the SA). He is a Turkish National of Alevi Kurdish background who arrived in the United Kingdom on the 6^th February 2000 and claimed asylum under the 1951 Convention and the 1967 Protocol. The basis of his claim was that he was from Eastern Turkey where his family had been a known or suspected local support for PKK, the Kurdish guerrilla group. Thus he had suffered discrimination detention and torture in 1980 before military service, during which he suffered intense discrimination and harassment. His subsequent covert support for local guerrillas led in 1989 to his detention and torture so as to make him disclose the whereabouts of his uncle, who was himself tortured, and who had fled to the UK. In 1990 his father was arrested and removed before being tortured and killed. In 1991 in a village raid he was himself again tortured, and thereafter detention and torture was regular. His family was mistreated. A cousin was killed. In 1999 he was detained and tortured before, it is said, release on condition he become an informer. He fled.
2. By letter of 25^th April 2001 the Secretary of State for the Home Department (SSHD) gave a reasoned decision for refusing asylum. The Claimant’s appeal to the SA was heard on the 3^rd August 2001 and in a decision promulgated on the 11^th September dismissed. That was deemed to have been received by the claimant on the 13^th September, and the time limit for submission of any application for leave to appeal expired on the 27^th September 2001.
3. Before promulgation the Claimant had been dissatisfied with the services of his lawyers. He had contacted the firm he currently instructs, Irving & Co, on the 19^th July, and was advised that they would be unable to represent him at his appeal hearing on the 1^st August there being insufficient time properly to take his instructions and to serve documents. On the 17^th August he contacted them again repeating his request that they take over the care and conduct of his case and on the same day their Ms Meates contacted his former solicitors. She discovered that the SA had reserved his Determination, wrote to the solicitors on the 20^th August asking for immediate despatch of the Claimant’s file, and on the 20^th September saw at her own offices the Claimant in person. He handed her the SA’s decision. That same day she contacted his former solicitors to see whether they had lodged an application to the IAT and was told that they had not.
4. On the 21^st September she faxed to them confirmation of the contents of that 20^th September telephone conversation and asked for immediate despatch of the file. She received it on the 25^th September but it was incomplete. The same day she contacted them setting out what else she needed. She was told that the balance would arrive by Document Exchange the next morning. On the 26^th September she went on leave, assigning care and conduct of the claimant’s case to an assistant solicitor.
5. Only upon receipt of a letter from the IAT dated the 16^th October 2001 did she realise that the application for leave had been lodged out of time. She now sees that that was an error by omission on the part of the assistant solicitor.
6. On the 22^nd October Irving & Co conceded the appeal was not lodged within the time limits and sought an extension. On the 20^th November the IAT wrote “the IAT Vice President has decided that the appeal will not be accepted as it was received outside time limits and the reasons provided by you are not considered special circumstances”. The reasons given by Ms Meates were essentially the brief time-span between receiving instructions and gathering a full file on the claimant, any fault being attributed to his former solicitors. By contrast, in a statement in these proceedings, she concedes that the assistant solicitor had failed to make a diarised note of the date upon which the limit would expire. There is nothing to be made of the distinction. It is plain from Ms Meates wording that she has subsequently discovered the truth of the matter from the assistant solicitor. In any event, the claimant’s point remains the same, viz, that the fault was not his but that of his legal advisors, and he should not be penalised therefor.
7. Refusing permission on the papers, Moses J said “it is arguable that the IAT should have made some reference to the merits, even if only briefly. But the difficulty for the claimant is that, even if they had, there is nothing to suggest the appeal had any prospect of success in light of the unimpeachable findings at paragraphs 20 and 21 of the determination”.
8. Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (The 2000 Rules) reads where relevant as follows:

“18.(2) An application for leave to appeal shall be made not later than 10 days…. after the appellant has received written notice of the determination against which he wishes to appeal.

18.(3) A time limit set out in paragraph 2 maybe extended by a Tribunal where it is satisfied that because of special circumstances it is just for the time limit to be extended. Rule 30(2) of the 2000 Rules sets out the overriding purpose of the system as “the just, timely, and effective” disposal of appeals.”

9. Whether special circumstances exist and whether it be just to extend the time limit is a decision for the IAT and its discretion can be challenged only if irrational, that is, on public law grounds. The Claimant contends that the reasons given for late submission, (unintentional omission) should have been seen by the IAT as “special circumstances”. Additionally, the IAT when deciding whether it were “just” to extend time, should have considered the merits of the application in the absence of fault on the part of the Claimant.
10. The leading authority is R v Immigration Appeal Tribunal ex parte Mehta [1975] 1WLR 1087. The familiar words of Lord Denning are reheased in MacDonald and Webber, 5^th edition, at paragraph 18.104

“The leading Court of Appeal decision on the question held that the rule should be liberally interpreted so as not to let an appellant suffer unfairly. There was no reason in law why the appellate authority should not take into account the substantive merits of the case, or the fact that the failure was due to a mistake by the applicant’s legal advisers, or that the applicant had been lulled into a false sense of security. However in a later case the court emphasised that, although all these matters might be taken into account, it was still a matter of discretion whether to allow a late appeal to proceed and, therefore, the appellate authority should decide in each case what weight (if any) should be given to such factors. The Tribunal has followed the liberal line of authority, particularly in asylum appeals. Lord Denning’s principle in ex parte Mehta that the court “would never let a party suffer because his solicitors had made a mistake and are a day or two late” has been held to extend to cases where the delay was longer. The danger of pre-judging the merits in refusing an extension has been emphasised, as has the fact that there is no requirement to show “exceptional” circumstances….”

11. This is put by the claimant as the “construction point”. Mr Fripp submits that even if the IAT could be said to have considered the merits and the reasons for late service, nevertheless the only documents addressing its reasons are entirely deficient. Additionally, against the backdrop of jurisprudence, particularly European, this court will look in vain for an explanation of why the IAT made a decision against the force of the authorities.
12. Mr Patel for the SSHD submits that the effect of the claimant’s submission is to turn the IAT’s consideration of “special circumstances” into a precedent fact, which it cannot answer incorrectly. From the wording of Rule 18.(3) that construction he contends is wrong. The IAT’s discretion to consider “special circumstances” is broad. Authority makes plain that it can consider, in its discretion, any matter, not simply that which is unusual. Further, “special circumstances” cannot be considered in isolation. Whether it would be “just” to extend time must also weigh with the decision-maker.
13. Mr Fripp’s second argument he describes as “the merit point”. Although he presents it as discrete it bears examination before we leave the topic of “special circumstances”.
14. As to the merits the SA found as follows:

“I have given careful consideration to the evidence given by the appellant and the submissions made by the representatives. I have also carefully considered all the documents on the file including the statements of the appellant, the notes of the asylum interview, the contents of the refusal letter, the Grounds of Appeal, and all the reports lodged by the representatives.

There have been some glaring inconsistencies in the various accounts given by the appellant and I do not accept him as a credible witness. Even after giving some allowance for being bewildered and possibly not in the best mental state, nevertheless I do believe that the appellant has not been entirely honest and given a true account of his experiences. It is highly unlikely that he would have been released from detention for a week in order to consider whether or not to become an informer and if he was giving a true account I would not have expected him to have muddled the dates of when he was detained for four days so significantly.

However, even if I do accept that he is indeed an Alevi Kurd who was a PKK sympathiser and suffered detentions and torture as a result thereof, the question to be resolved is whether his fear of returning to Turkey at this point of time is well-founded or not.”

15. Mr Fripp submits that the SA’s conclusion that the Claimant had not been entirely honest is important in that it must mean that the SA had found him to have some credibility. He argues that the SA fails to find a systematic loss of credibility, a necessary ingredient.
16. I have been referred to three authorities; OKUR v Secretary of State for the Home Department, Immigration Appeal Tribunal Appeal No HX7675496(00TH00436) notified on the 28^th April 2000; ARAM v Secretary of State for the Home Department, Immigration Appeal Tribunal, Appeal No HX/01356/01(01/TH/1515); and to AKKUS v Secretary of State for the Home Department, Immigration Appeal Tribunal, Appeal No [2002] UK1AT02101 HX-18538-01 notified on the 21^st June 2002. In Okur the President of the IAT, Collins J, referred to the Court of Appeal decision in R v SSHD ex parte Turgut (unreported, 28^th January 2000) saying that the court in Turgut considered a massive amount of material before deciding it was not irrational for the SSHD to decide to return Turgut to Turkey, although recognising that there were grave human rights abuses which led to a lingering sense of unease at returning any Kurd to Turkey. However, continued Collins J, everything depends upon the individual and his activities in Turkey and abroad. Turgut had been disbelieved and his credibility was in tatters. The position of the appellant OKUR was somewhat different. The adjudicator had been wrong to state that there was no evidence suggesting the authorities perceived him as a PKK activist, and it was clear from the country material that interrogation upon his return was likely. Internal flight was not an option. Interrogation, as is the way in Turkey, might well be accompanied by torture.
17. In Aram a strong IAT panel of three legally qualified chairmen found that Aram’s immediate problem on return would be at the airport where, returning undocumented, he would be questioned. There would be further in depth interrogation by border police, and perhaps further enquiries by way of other agencies. Those might take from several hours to several days, during which the returnee would be kept in custody. The IAT reminded itself that as Simon Brown LJ in Turgut said “there is on the other hand, I have no doubt, massive underreporting of individual cases of ill-treatment.” Aram had been picked up on a number of occasions in Turkey, mistreated as a consequence of his contact with authorities, and the IAT found as a fact that on return inevitably he would come into the hands of the authorities with consequent significant risk. His appeal was allowed. In Akkus, once again before a strong Tribunal this time chaired by His Honour Judge Foley, the Tribunal found that the SA had failed to deal adequately or at all with the consideration of risk on return raised by Kurdish cases. It accepted that his seizure in a police raid on a newspaper office and his detention after the police had found Kurdish books and satellite system tuned to Kurdish television emanated from political reasons. It rejected the finding of the SA that if the appellant had feared ill-treatment, beating, and torture by the police as he alleged in his evidence, he would not have risked taking part in political activities. The appeal was allowed.
18. Mr Fripp suggests that there is nothing to differentiate the case of this claimant from that of Akkus, indeed this case may be stronger. If even half of his statement were accepted, his argument continues, the claimant is in a better position than are many whose appeal has succeeded before the IAT.
19. Mr Patel submits that the SA is obliged to ask himself about this particular applicant. It is agreed that he posed to himself the correct question, viz whether the appellant would be detained at the airport on his return, be questioned as to his past so that his past activities would then come to light which would in turn lead to detention, prison and or torture. This suggests Mr Patel is a case in between that of Turgut, whose credibility was in tatters, and Okur who had clear PKK links and a political record. The SA thus had to form a judgment as to whether this man would be at risk upon a return to Turkey. He relies upon paragraph 20 and 21 of the SA’s determination as showing the care taken by the SA to find some matters in favour of the claimant. None of those findings has been challenged in front of me. But the SA went on to say “there is nothing to suggest that he is on a wanted list for having either escaped from detention or having failed to report back after one week and I do not think that his support for the PKK was at such a high level that he would be classified as a wanted person. I believe from having read the various reports that he would be questioned on his return but I think it highly unlikely that he would be of interest to the authorities just because he is an Alevi Kurd who has assisted the PKK in the past.”
20. Having reviewed Okur, Aram, and Akkus, each is in my judgment on its particular facts sufficiently different from the case of this claimant for me to be unable say on any comparative basis that the decision of the SA was perverse. His reasoning is clear, based upon a correct interpretation of legal principle, and he was entitled upon all the material before him to reach the conclusions he did. His determination in my judgment cannot be impugned. It has been argued by the SSHD that one can extrapolate from the papers the IAT’s inevitable consideration of the merits. Before it there was the letter to which I have made reference from Ms Meates, and the Grounds of Appeal. I accept that the IAT had before it sufficient material, taken in conjunction with the decision of the SA, upon which to form its conclusion, albeit a conclusion tersely expressed. That the IAT found the merits point insufficiently compelling to prompt it to allow the appeal to begin is in my judgment a decision both rational and lawful.
21. It is plain from Ms Meates’ letter of 22^nd October to the IAT that the tribunal had before it (1) a full explanation as she then believed it to be of the reasons for the delay, (2) the fact that no fault could be attributed to the claimant, (3) that the delay itself was arguably not great. Whether this court would have come to same conclusion as did the IAT is nothing to the point. There is no evidence before me that the IAT reached a conclusion which can properly be described as irrational. In my judgment the claimant cannot succeed on this ground.
22. For the reasons given this application fails.