England and Wales High Court (Administrative Court) Decisions

Cindo, R (on the application of) v Immigration Appeal Tribunal [2002] EWHC 246 (Admin) (14th February, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 February 2002

Mr Justice Maurice Kay:

1. The Claimant is an Alevi Kurd and a citizen of Turkey. He arrived at Waterloo International Rail Terminal on 9 July 1997 and claimed asylum. This was refused by the Secretary of State on 28^th August 1998. An appeal to a Special Adjudicator was dismissed on 11 November 1999 and on 20 December 1999 the Immigration Appeal Tribunal refused leave to appeal. The Claimant now seeks to challenge that refusal by way of an application for judicial review.
2. The Special Adjudicator accepted that the Claimant was a “low level” PKK supporter and that on two occasions he has been arrested, detained and beaten by the Turkish authorities but had been released without charge on both occasions. On the first occasion his release had been procured by the payment of a bribe and he was told that he would be killed if he continued to help the PKK. A few days after the second release (in March 1997), the Claimant discovered that his paternal uncle, who was a PKK member, had been killed by the authorities. The Claimant also faced another difficulty. In February 1997 he had been called up for a medical examination prior to military service and on 21 May his draft papers arrived. By then, however, he had left his home village of Balikesir and gone to Istanbul where he stayed with a maternal uncle while an agent arranged for him to leave the country, which he eventually did in the back of a lorry, travelling via France, whence he came by rail to London. His claim for asylum was put on the basis that he has a well-founded fear of persecution if he were returned to Turkey because the authorities would resume their persecution of him for his PKK sympathies and, in addition, he is now a draft evader with a genuine unwillingness to perform military service because he refused to fight fellow Kurds.

The reasoning of the Special Adjudicator can be understood from the following passages in his determination:

“….the fact that the appellant both was prepared to and was able to remain behind in Turkey in Balikesir and then in Istanbul between March and July without difficulty and without coming to the adverse attention of the authorities, suggests very strongly that the Turkish authorities had not then nor have now any continuing interest in this appellant.

There is little difference between the position of Vedat Cindo and many other young men of his background. He is a low level PKK supporter and he has failed to show that there is a serious possibility or reasonable likelihood that if returned to Turkey he would be persecuted on account of his support of the PKK”

As regards draft evasion, the Special Adjudicator accepted what the claimant said but, after considering the objective country material, concluded:

“Although there may well be some occasions in which some Kurds are posted against their will to the south eastern area of Turkey, it is reasonably suggested that such occasions are rare. I do not consider the conflict in south eastern Turkey to be of such a nature that this appellant’s unwillingness to be involved in it can be said to amount to conscientious objection sufficient to justify the grant of asylum status. It is not unreasonable for the Turkish authorities either to make provision for national service or to impose penalties for those who default. From the evidence before me, it appears that if draft evaders…..are caught they are taken straight to their units and then into service. Turkish Courts commonly impose minimum penalties such as fines… There is no reason to suppose that this appellant would be treated any differently to any other person who evaded his military service simply by virtue of his Alevi Kurdish background. Although if returned to Turkey this appellant might well face some punishment and be required to perform military service I do not consider that his expressed unwillingness to do so is such as to amount to a well-founded fear that if returned to Turkey he would be persecuted.”

3. The Special Adjudicator then considered the implications of the Claimant being returned to Turkey as a failed asylum seeker, without a Turkish passport. He said:

“I give regard here to the recent and authoritative case of Ali Senkoy (16594)”.

In Senkoy the IAT had concluded that, on return, Senkoy would be interrogated and “badly insulted, threatened and humiliated”, but that that would fall short of persecution. In the present case the Special Adjudicator said:

“I reach the same conclusion here. Simply because this appellant might receive something of a rough welcome if returned to Turkey, I do not find that there is a serious possibility that he will be persecuted on arrival. He would, as in Ali Senkoy’s case, be released and allowed to go on his way or sent off to do his military service.”

4. In refusing leave to appeal against the decision of the Special Adjudicator, the IAT stated that his conclusions were fully supported by the evidence, that there was no misdirection in law and that, read as a whole, the determination amounted to a “full, fair and reasoned review” of the Claimant’s case.
5. On behalf of the Claimant, Mr Manjit Gill QC seeks to challenge the refusal of leave to appeal by reference to amended grounds under seven headings. One of them raises an important point of principle and I shall deal with it first.

Ground 1: The Senkoy Point

6. To understand this ground of challenge, it is necessary to have in mind the following chronology:

29 April 1998:	IAT decision in Senkoy promulgated: appeal dismissed: reliance placed on Migrant News Sheet for November 1997 in relation to failed Kurdish asylum seekers returning to Turkey.
17 August 1998:	Senkoy’s solicitors submit further documentation to the Secretary of State, requesting that it be treated as a fresh asylum claim. The documentation included a report from Mr Kieran O’Rourke, which painted a different picture from that depicted in the Migrant News Sheet.
4 September 1998:	Secretary of State refuses to treat the documentation as giving rise to a fresh asylum claim.
? October/ November 1998:	Senkoy seeks leave to apply for judicial review of the decision of 4 September 1998.
16 December 1998:	Turner J. grants leave to apply.
11 June 1999:	Home Office official files a witness statement setting out the views of the Secretary of State, opposing Senkoy’s application for judicial review
17 August 1999:	Hearing of the Cindo case before the Special Adjudicator, whose determination was promulgated on 11 November 1999, relying on the “recent and authoritative” case of Senkoy.
20 December 1999:	Cindo refused leave by the IAT, reference being made to the IAT decision in Senkoy.
18 February 2000:	I quash the refusal of the Secretary of State to treat Senkoy’s documentation of 17 August 1998 as a fresh asylum claim.
2 March 2001:	Court of Appeal dismisses the appeal of the Secretary of State in Senkoy

7. Relying on that chronology, Mr. Gill submits that the decision of the Special Adjudicator in the present case was tainted by reliance on the IAT decision in Senkoy which had been overtaken by events, namely the new documentation submitted on Senkoy’s behalf which was by then the subject of a contested application for judicial review. Of course, he does not criticise the Special Adjudicator in the present case. His aim is directed at the Secretary of State. He puts it in this way in his skeleton argument:

“….long before the hearing before the Special Adjudicator in this matter, the Secretary of State had received information from Senkoy’s advisors (i.e. the fresh evidence on the abuse of returnees) which, according to the Court of Appeal, ought to have led him to conclude that the reasoning of the IAT in Senkoy and the evidence on which it relied was suspect. He ought therefore to have drawn it to the attention of the Special Adjudicator when the hearing took place in August 1999. He owes a duty not to mislead the Special Adjudicator”.

That is the submission at its highest, put in the form of a positive duty. In oral submissions, Mr. Gill also put it on the alternative and lower bases that the fact that the Special Adjudicator and the IAT did not have the later Senkoy material before them at times when it was in the possession of the Secretary of State rendered the hearings in the present case unfair or vitiated the decisions which were reached on the basis of a mistake or misapprehension as to the current state of information.

8. It is common ground that recent authorities illustrate a principle relevant to these submissions. In Regina v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330, the Board had rejected a claim, observing that there was a lack of supporting medical evidence. In fact there had been a police surgeon’s report which would have supported the claim and was at variance with evidence given to the Board by a police officer. Lord Slynn of Hadley stated (at pp.344-345C):

“Your Lordships have been asked to say that there is jurisdiction to quash the Board’s decision because that decision was reached on material error of fact ….. For my part, I would accept that there is jurisdiction to quash on that ground in this case, but I prefer to decide the matter on the alternative basis argued, namely that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness. It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness”.

Having emphasised the special position of the police in such cases, his Lordship concluded (at p.347B) that:

“On the special facts of this case and in the light of the importance of the role of the police in co-operation with the Board in the obtaining of evidence, there was unfairness in the failure to put the doctor’s evidence before the Board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.”

In Khan v Secretary of State for the Home Department [1987] Imm AR 543 the Court of Appeal considered a case in which an appellant’s previous legal advisers were said to have prejudiced her by acting without and contrary to her instructions. The appeal failed on factual and other grounds but Bingham L.J. said (at p.555):

“I would not, for my part, wish to hold that this is a ground which, if properly made out, could not found a successful application for judicial review in appropriate circumstances. If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or even perhaps inefficiency, and the result is to deny justice to an applicant, I would be very sorry to hold that the remedy of judicial review was not available.”

9. In safe third country cases, the House of Lords has held that the Secretary of State bears no general duty of disclosure, at least partly because of the need for speed and in order not to frustrate the legislative purpose in relation to unfounded appeals, in that context: see Abdi and Gawe v SSHD [1996] 1 WLR 298. However, in R v Special Adjudicator, ex parte Kerrouche [1998] 1 NLR 88 (CA), another safe third country case, Lord Woolf MR said (at p.95):

“While [that] approach must be the starting point for the consideration of this issue, there are limits to the approach ….indicated in that case. The decision would not justify the Secretary of State knowingly misleading the Special Adjudicator. The objection of the Secretary of State cannot be put higher than that he must not knowingly mislead. Before the Secretary of State could be said to be in that position, he must either know or ought to have known that the material which it is said he should have disclosed materially detracts from that on which he has relied.”

10. The words I have emphasised point to the inclusion of constructive knowledge. This was taken up by Simon Brown L.J. in Konan v SSHD (CA, 20 March 2000), who also observed that (para 24):

“…..the Secretary of State’s obligation in a full asylum appeal like this may well be higher than in cases like Kerrouche and …. Abdi and Gawe, cases concerned with safe third country appeals”.

11. Taking a broad view of the authorities, they appear to illuminate these principles: (1) there is a duty on the part of the Secretary of State not knowingly to mislead in the material he places before the Adjudicator or the IAT; (2) “knowingly” embraces that which he ought to have known; (3) a breach of that duty may found judicial review on the basis that either (a) the decision was reached on a “wrong factual basis” (see Wade & Forsyth, Administrative Law, 8^th Ed. Pp.283-284); or (b) the proceedings were tainted with unfairness.
12. On behalf of the Secretary of State, Mr. Clarke does not take issue with any of those principles. The issue in the present case is their application.
13. In the light of the foregoing, the question becomes: are the decisions of the Special Adjudicator promulgated on 11 November 1999 and/or of the IAT dated 20 December 1999 challengeable on the basis of having been reached on a “wrong factual basis” or because the proceedings were tainted with unfairness? The present challenge is to the decision of the IAT refusing leave to appeal but that has to be seen in conjunction with the proceedings before the Special Adjudicator.
14. Mr. Clarke submits that when the present case is considered by reference to the agreed principles, the facts and their chronology fall short of what would be necessary for the Claimant’s challenge to succeed. The Secretary of State is naturally concerned to establish that just because a document comes into the hands of one of his officials on a particular day that does not mean that the failure immediately to cross-reference the document and to produce it in every other case upon which it might have a bearing will vitiate the decisions in those other cases. Put in that way, I have no difficulty in accepting the proposition. However, it is necessary to consider the specific circumstances of each case in which the issue arises. In the present case it was on 17 August 1998 that Senkoy’s solicitors submitted the new documentation, requesting that it be treated as a fresh asylum claim. I do not consider that the omission of Home Office Presenting Officers to bring the new Senkoy material to the notice of Special Adjudicators in other cases in the days and weeks immediately after 17 August could give to any legitimate complaint by other appellants. However, soon after 16 December 1998 it must have come to the notice of the Secretary of State’s officials that Senkoy’s advisors had launched an application for judicial review and that Turner J. had granted leave to apply – in other words, there was a judicial determination that Senkoy’s case was arguable. Some time not very long after that, at the very latest, by early June 1999 when the Secretary of State’s officials were actively preparing for the substantive hearing in Senkoy, it must have become well known by at least some of those officials that the documentary material which had been put before the IAT on 29 April 1998 and in particular the Migrant News Sheet had been questioned by new material which Turner J had considered at least arguably significant. In those circumstances, the fact that on 17 August 1999 the Home Office Presenting Officer in the Claimant’s case was inviting the Special Adjudicator to place reliance on the “recent and authoritative” case of Senkoy and the material upon which the IAT had decided it disposes me to the view that, whether one views the situation by reference to “wrong factual basis” or procedural unfairness, the Claimant has a legitimate ground of complaint. Of course, I accept that the Presenting Officer and others acted in good faith. However, there was potentially significant material which officials knew or ought to have known materially detracted from the material which was still being advanced as “recent and authoritative”.
15. Whilst I am anxious not to impose an unfair burden on the Secretary of State or to express myself in a way which might be thought to expose his officials to undue expectations in future cases, I am satisfied that this first ground of challenge is made out in the particular circumstances of the present case.

2. The “continuing interest” point

16. This ground of challenge concentrates on the language used by the Special Adjudicator in parts of his determination. Of the two occasions of release without charge, he said:

“This suggests strongly that he is of no continuing interest to the authorities”

And at the time between March and July 1997 when the Claimant lived in Balikesir and Istanbul “without difficulty and without coming to the adverse attention of the authorities”, the Special Adjudicator said that this suggested very strongly that

“the Turkish authorities had not then nor now any continuing interest in

[him].”

Mr. Gill submits that this is inappropriate language that diverts attention from the real issue which is not “continuing interest” but whether the Claimant, on return, would be reasonably likely to come to the attention of the authorities and, if so, whether it is reasonably likely that he would be persecuted for a Convention reason. I am bound to say that I find this ground of challenge to be no more that a semantic quibble. “Continuing interest” is a piece of shorthand which is widely used in asylum cases. It may not be the most appropriate language. However, I am utterly unconvinced that, in the present case, it caused the Special Adjudicator to apply anything other than the correct test. At the point in the determination coming immediately before the conclusions, the Special Adjudicator said:

“…to succeed he must show that he has a well-founded fear that, if returned to Turkey, he will be persecuted by virtue of a Convention reason.”

That is the correct formulation and I am sure that the Special Adjudicator applied it. It is unthinkable that he erred by, for example, misdirecting himself that a break in the continuity of interest during the Claimant’s absence from Turkey would be fatal to the claim. I find nothing in this ground of challenge.

3. The relevance of the murder of the Claimant’s uncle

17. The Special Adjudicator referred several times to the fact that the Claimant’s uncle, who had supported and provided shelter for the PKK, had been murdered by the authorities. Mr. Gill submits that the Special Adjudicator ought to have taken this into account when assessing future risk to the Claimant, who had fled from Balikesir upon hearing news of the murder. The short answer to this submission is that there is no reason to suppose that the Special Adjudicator did not take account of the murder of the uncle. Since I heard oral submissions in this case, Mr. Gill and Mr. Clarke have provided further written material on this aspect of the case, including a sample of authorities. As expected, they do not lay down any principle to be applied whenever the persecution of a family member has occurred. Mr. Clarke submits that this type of evidence is a factor which may support an asylum claim, but will not inevitably do so in every case. It is one of many factors to be weighed by the decision – maker in the circumstances of the particular case. I agree. In this case it has not been established that the Special Adjudicator failed to consider, nor can it be suggested that it was of such significance that any reasonable Special Adjudicator would have been compelled to find it to be conclusive in the Claimant’s favour. This ground of challenge to the decision of the IAT fails.

3. The releases without charge

18. The submission here is that the Special Adjudicator committed an error of law by paying special regard to the two releases without charge and using them to infer that there was no reasonable likelihood of future persecution. In my judgment, the difficulty facing this submission is that it is predicated on a caricature of the Special Adjudicator’s reasoning. Whilst he undoubtedly attached considerable significance to the fact that the Claimant had twice been released without charge, he did not infer from that alone that there is not a reasonable likelihood of future persecution. He set it in the context of other facts including the low level of the Claimant’s PKK sympathies, the absence of persecution between his learning of his uncle’s death and his departure from Turkey, the passage of time, and the lack of difference between the Claimant and many other young men of his background. I have no doubt that the approach of the Special Adjudicator to the releases without charge was a tenable one and that he was entitled to assess the expert evidence on the subject as he did. This aspect of the case yielded no arguable ground of appeal to the IAT.

5. Military service

19. I am here considering under one heading two of Mr. Gill’s enumerated grounds of appeal. They both relate to the issue of military service and/or draft evasion. I set out the central part of the Special Adjudicator’s findings in the early part of this judgment. On behalf of the Claimant, it is not suggested that he is an out-and-out pacifist. He is what has come to be known as a “partial Conscientious objector”. His objection is to being made to fight fellow Kurds. Until recently, the extent to which such a person was protected as such by the Refugee Convention was debatable. When the present application for judicial review was first launched, this aspect of it was of central importance. For some time the proceedings were stayed pending a decision of the Court of Appeal. However, when that decision came, its effect was to take the wind out of the Claimant’s sails. In Sepet and Bulbul v. SSHD [2001] Imm AR 452 the Court of Appeal held that neither absolute nor partial conscientious objectors came within the terms of the Convention. It is not necessary for me to analyse the long judgments of Laws and Jonathan Parker LJ or the qualified dissent of Waller LJ. Suffice it to say that I am bound to hold that, as to the original centrepiece of this appeal, the Claimant’s case has been fatally wounded by Sepet and Bulbul.
20. Mr. Gill recognises that reality but seeks to keep the issue alive. He seeks to do so by taking issue with the Special Adjudicator’s treatment of the background material. Notwithstanding the persuasiveness of the submissions, they are in the final analysis no more than an attempt to reargue the case. If the Special Adjudicator was entitled to come to the conclusions about the implications for this Claimant in the light of the background material – and I am satisfied that he was, subject to the Senkoy point – then there is no surviving legal argument that can now avail the Claimant on this issue

6. A holistic approach

21. The final ground of challenge is to the effect that the Special Adjudicator erred by confining his approach to a series of compartmentalised findings and failed to stand back and to form a global view of the several points which, if inconclusive when considered separately, came together to make a cumulative case of a well-founded fear of persecution for a Convention reason. Mr. Gill submits that, taken together, the detentions and beatings, the PKK support, the death threat, the murder of the PKK linked uncle, the draft evasion, the failed asylum claim and the absence of full Turkish documentation on any return would all heighten the risk. He would be arriving with a lot of “cumulative baggage”. Mr. Clarke, on the other hand, contends that, read as a whole, the determination was a tenable conclusion on the evidence. It took into account all the “baggage” points. The mere absence of an additional sentence such as “I have considered all these points separately and in aggregate” does not mean that the Special Adjudicator did not do so.
22. I readily accept that it is incumbent upon Adjudicators to stand back and consider cases “in the round”. What I do not accept is that the Special Adjudicator in this case has been shown not to have done so. I therefore find nothing in this ground of challenge.

6. Conclusion

23. It follows from what I have said that, although this application for judicial review fails in relation to grounds 2 – 6 inclusive, as I have enumerated them, it succeeds on the first ground. Accordingly, although neither the Special Adjudicator nor the IAT was culpable in relation to the Senkoy point, the appropriate course (unless counsel wish to make further submissions on the form of relief) is to quash the refusal of leave to appeal so that the appeal to the IAT can now take its course.
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MR GILL: My Lord, I am grateful for the judgment. There are a couple of matters that I can draw your Lordship's attention to immediately, although we may have to look at the judgment further to assist the court with typographical errors. In relation to paragraph 23 --

MR JUSTICE MAURICE KAY: You need not feel umder any obligation to do that because it is at the moment an unapproved judgment. I have released those copies to save you having to write anything down. But I noticed numerous typographical errors as we were going through it and they will be picked up in due course.

MR GILL: My Lord, so be it. Then I will leave that for the time being. So far as the appropriate form of relief is concerned, I would ask that the refusal of leave to appeal by the tribunal be quashed. May I also ask what is perhaps the reverse side of that coin, the order to grant permission to appeal.

MR JUSTICE MAURICE KAY: I did wonder about that.

MR CLARKE: That seems to be a conclusion that necessarily follows from the concluding words of my Lord's judgment. My learned friend raises the point because in the old days it would automatically have been granted because the time limit would have passed. But the rules have now changed. So I think my learned friend is right to raise that. Given my Lord's judgment it seems to follows that either you direct to grant leave or leave be deemed to have been granted. I should say that that is subject to one point which is that the leave should be granted only on the issue of the treatment by the authorities of returning failed asylum seekers. That is the same point to which the Senkoy material went. My Lord has found that the other points raised no arguable ground of appeal.

MR JUSTICE MAURICE KAY: That does sound right does it not?

MR GILL: On that latter point, my Lord, all I would say is that what this court should do is direct that leave to appeal be granted. As to the arguability of the other points, which could be characterised as fact based points, once leave is granted it is an open jurisdiction with the tribunal and they have the opportunity to consider matters of fact for themselves. They do not usually interfere with findings of fact. But there have been various cases in the Court of Appeal and it is not as if it is limited to arguments of law - they can deal with facts again.

MR JUSTICE MAURICE KAY: That is well established.

MR GILL: So there is no real need for the court to say anything more than --

MR JUSTICE MAURICE KAY: What Mr Clark is anxious to avoid is the grounds that I have been against you on arising before the Immigration Appeal Tribunal without more.

MR GILL: My Lord, in relation --

MR JUSTICE MAURICE KAY: His anxiety is well placed, is it not?

MR GILL: My Lord, in relation to those points the claimant would be entitled to raise those points against before the tribunal and see what they wanted to do with them, they not having been points on which this court has been minded to say that leave should be granted. In other words, it would be open to the tribunal to consider those matters.

MR JUSTICE MAURICE KAY: But there was nothing wrong in my judgment with the tribunal's determination of those matters the last time round.

MR GILL: Subject the same point, as your Lordship said. It may have a significant knock-on effect on those other points. That is what concerns me, because the Senkoy material then has a knock-on effect in relation to the assessment of the cumulative baggage points, which would require the tribunal to look at the matter as a whole again and that is how we would be pursuing it before the tribunal. It would be a little artificial to say that they can only look at the Senkoy point on its own and then not consider the consequential effects upon the factual findings.

MR JUSTICE MAURICE KAY: If I were to quash the refusal of leave, make a mandatory order that leave be granted by reference to the Senkoy point, it may be better if I say no more than that. You can each seek to approach it before the tribunal as you see fit.

MR GILL: My Lord, that I suspect is right.

MR CLARKE: My Lord, I wouold agree with that. I do not think it would be suggested in front of the tribunal that an unduly restrictive and narrow approach be adopted in the argument of the appeal. If the tribunal is persuaded that there is further relevant material about the returning asylum seekers, that will have to be weighed in the overall balance.

MR JUSTICE MAURICE KAY: The mandatory order will simply be to the effect that they are to grant leave by reference to the Senkoy point.

MR CLARKE: My Lord, I am grateful. One other matter, my Lord. The Secretary of State has not had time to consider the judgment and take advice on it. I am formally instructed to apply for permission to appeal. I will not embellish the application other than to say that my Lord did say in his judgment that a point of principle was raised.

MR JUSTICE MAURICE KAY: I also said in the judgment that the principles are agreed, it was their application in this case that was in issue. In those circumstances I would not grant permission to appeal. You would have to ask elsewhere.

MR GILL: The remaining matter is the question of costs. I would ask for the usual order.

MR CLARKE: I cannot resist that.

MR JUSTICE MAURICE KAY: You are on legal aid presumably. So you get an assessment as well. Thank you both very much indeed.