QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SOYLEMEZ||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R TAM (instructed by Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(7) Subsection 8 applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.
(8) The immigration officer, or as the case may be, the Secretary of State may certify that in his opinion -
(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
(b) the appellant had no other legitimate purpose for making the application.
(9) No appeal may be brought under the Special Immigration Appeals Commission Act 1997 or this Act against a decision on an application in respect of which a certificate has been issued under subsection~(8)."
Broadly comparable wording, it may be noted, is used in section 73(2).
"A person who has been, or is to be, sent to a member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal-
(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights [or racially discriminated against him] is manifestly unfounded; or
(b) under section 71."
(Broadly similar wording, in particular by deployment of the phrase "manifestly unfounded", is contained in the certification provisions of paragraph 9 of schedule 4 to the 1999 Act). Thus overall the wording of section 73(8) is materially different to that contained in section 72(2). The purpose behind the differentiation in this wording is not altogether clear. Since section 73 is concerned with a situation where the appeal process has been ostensibly determined it may be that its provisions are to be construed against, as it were, a presumption of scepticism. At all events, section 73(8) presupposes the forming of an opinion on behalf of the Secretary of State that, amongst other things, an applicant has no other legitimate purpose for making the application: which is to be contrasted with a certification that an allegation is manifestly unfounded as provided, for example, in section 72(2). However, one common feature of these provisions at least is that plainly an exercise of judgment is involved.
"I am satisfied after hearing argument that what that means is that the Secretary of State must be shown reasonably to have been satisfied that in his opinion the appellant had no legitimate purpose because the case put forward was so hopeless that it was not properly arguable. That is the basis upon which I have heard [counsel] today, and he agreed that that was the basis on which his case should be put forward, and I am satisfied after hearing submissions and argument from both counsel that this was indeed correct."
Then a little later towards the end of his judgment Burton J said this (paragraph 29):
"In those circumstances, I am entirely satisfied that there is no case here to challenge the certificate of the Secretary of State under section 73(8). It seems to me that the wording of this section would be well to be reconsidered by the Secretary of State and by Parliament in due course, though that is a matter entirely for the legislature, so as to bring it in line with what, in my view, is the clear judicial purpose, namely a conclusion by the Secretary of State that in his opinion a claim or a further claim was manifestly unfounded.
30. But my judgment, on a proper construction of this statute, is that the conclusion which the Secretary of State is required to come to is not just that in his opinion the case has no reasonable prospect of success, but that it is not properly arguable and consequently is hopeless, or, put another way, manifestly unfounded. I am entirely satisfied that such was a reasonable conclusion in this case, and I therefore dismiss the application."
"13. What those passages make clear is that the Secretary of State is entitled to certify the case as manifestly unfounded if, but only if, he is satisfied on reviewing the material before him that the human rights allegation must clearly fail. Where the lawfulness of the Secretary of State's decision is challenged on judicial review, the court's role, as it seems to me, is to determine whether the decision was reasonably open to the Secretary of State applying, in effect, the Wednesbury test but exercising the anxious scrutiny called for in all cases of this kind.
In practice, however, I accept Mr Blake's submission that this comes down to much the same thing as determining whether, on the material before the Secretary of State, the claimant had an arguable case that removal would be in breach of his Convention rights. If the claimant does on proper analysis have an arguable case, then no reasonable Secretary of State could properly conclude that the case must clearly fail. For this purpose, the Secretary of State is entitled to look at all the material before him, including that produced by his own officials, as well as that submitted on behalf of the claimant, but he is not engaged in a full determination on the merits; and where, for example, there has been a material factual dispute about the claimant's circumstances, or about the nature of the regime operating in the third country, the Secretary of State cannot simply rely on his own resolution of that dispute but must consider, for the purposes of certification, whether it is possible that the claimant might prevail on the point on an appeal before an Adjudicator."
Then (passing over a few lines), he goes on:
"Of course, if there is an obvious reason why the claimant's material should be rejected, or if the evidence could not sustain the human rights claim, even if accepted, it will be open to the Secretary of State reasonably to conclude that the claim is clearly bound to fail. But if there is no obvious reason why the claimant's evidence should be rejected and, if on that evidence the claimant has an arguable case that removal would be in breach of his Convention rights, then the Secretary of State cannot reasonably certify the claim as manifestly unfounded."
"46. By definition a certificate will only be issued in cases in which the Secretary of State is, in fact, taking an adverse view of the claimant's merits. Thus, it is vitally important that the Secretary of State should for this purpose not consider merely the merits of the claimant's claim, but whether the claim is bound to fail before the Adjudicator. Or, to put it the other way round, whether his, the Secretary of State's, view is so clearly correct that that is bound to succeed before the Adjudicator. It is a situation different from a situation in which the European Court of Human Rights is deciding whether cases are admissible. It is there a decision of the court."
Then moving on to paragraph 48, he says this:
"Although clearly the court is considering whether the Secretary of State was entitled to conclude that the claim was manifestly unfounded, the need for the most anxious scrutiny means that in most cases there will be relatively little room for the court to differ from the Secretary of State's view, but nevertheless decide that the Secretary of State was entitled to reach his view." ]
With those statements and with the statements of Richards J already recited by me I respectfully agree.
"35. First and foremost I must deal with the credibility or otherwise of the Appellant. In the main I found his evidence to be lacking in credibility. I do accept however the that Appellant has to a reasonable degree of likelihood involved himself with PKK and HADEP activities at the very lowest level, for example handing out leaflets and attending rallies. I accept that on the 5 May 1995 he may well have been handing out PKK leaflets when some of his friends were arrested. In his amended statement it is not entirely clear whether he was arrested on that occasion or not. In his oral evidence it appears he was not arrested as he says he was not present when his friends were arrested and he managed to escape in the dark. Thereafter I find the evidence of the Appellant to be incredible. I cannot accept that a person who is genuinely in fear for his life should firstly return to areas where he knew he was being sought, and secondly engage in public demonstrations in support of the PKK, thus putting himself in a situation where he was likely to be arrested and at the same time claiming to be on the run from the police for a period of about five years. His explanation for this is that he had confidence in a false identity card supplied to him by PKK. I do not accept that the PKK would be interested in providing false documents to someone who was not a member of the organisation and whose activities amounted to handing out leaflets and writing slogans on walls. Furthermore, I do not understand the need for false documents as the evidence suggests that he was not arrested on the 5th May 1995. I also cannot understand why if he was in fear of his life it took five years before he left the country.
36. I do not accept that the Appellant was arrested and detained by the Police on the 1 May 1997 while he was taking part in a protest. I note that on his SEF at B7 he describes this incident thus 'on the 1 May 1997 during Labour's Day I was beaten by the police, I was hit on the forehead by the butt of a gun. I do not accept that he was arrested on the 20 February 1999 and detained for two days during which time he was tortured. I note that on his SEF at B14 no mention is made of detention or torture on this occasion. Furthermore, I do not accept he was arrested on the 21 March 1999, detained for a week and tortured.
37. The Appellant has not satisfied me even to the low standard required that the police or any other governmental authority have any adverse intelligence on him at all."
"By the time we saw our client, less than 24 hours before the proposed removal, scheduled for 6 October, the client was in a very distressed state at the prospect of what awaited him on his removal to Turkey. It seemed to us from his preliminary instructions and from the physical and psychological symptoms, obvious even to a lay observer, that it would have been advisable at an earlier stage in his case to obtain medical evidence to support his asylum claim."
The letter then goes on to summarise in some detail the medical evidence of Dr Pierzchniak, which is set out in an appendix report, and the letter having summarised Dr Pierzchniak's views, goes on to say:
"The above findings, we would submit, constitute persuasive evidence that Mr Soylemez has been tortured."
The letter then goes on to set out at great length the alleged history of his alleged persecution. It summarises the adjudicator's findings and it says this, after making representations about the consequences of forcible return to Turkey:
"To return Mr Soylemez in the light of the fresh medical evidence attached, added to the adjudicator's findings above, would be contrary to his human rights under articles 2 and 3 of the European Convention On Human Rights."
The letter also went on to ask for exceptional leave to remain.
"I am preparing this report at the request of the Hackney Community Law Centre, who represent the above-named in immigration proceedings. He comes from a politically active family amongst the Kurdish population of Turkey and was a PKK supporter. He was arrested on a number of occasions by the police in Turkey and ill treated in various ways. There had been an issue of credibility. His legal representatives are concerned because he has revealed that he experiences flashbacks and nightmares on a regular basis as a result of his ill~treatment in Turkey and he also suffers from very poor concentration and memory since his ill~treatment.
Further to my instructions, I interviewed Mr Soylemez on 31.10.01 and have had sight of immigration documents in this case."
I add that it is not stated how long the interview had lasted.
"In 1997, he then attended the May Day demonstrations. Police cordoned off the demonstrators and he was struck on the head by the butt of a rifle. He showed the scar he still bears. He said the scar is clearly visible and, when he looks at it, it affects him.
He was arrested by the police in March 1999 in the annual Nevroz demonstrations. He was taken to a building housing the anti-terrorist branch of the authorities in Bursa. He was there hanged by his shoulders from the ceiling and dislocated his right shoulder. He is left with permanent disability in his arms where he cannot lift heavy items. He was beaten with sandbags and sprayed with cold water. He was beaten severely and subjected to falaka. He said that these events meant that he could not live as a normal person because of psychological pain."
"Mr Soylemez told me more of the psychological effects his ill~treatment had caused. He gets intrusive memories of his detention and torture almost continuously. He feels as if he is back in the situation. Reminders will precipitate the memories, for example programmes on the television. When recalling this, Mr Soylemez was visibly distressed and said that it was because he was talking about his experience and at the same time reliving memories. He gets nightmares of torture and this is made worse because he is worried that his family might be subjected to the same treatment as he had. He is easily startled. Mr Soylemez has lost a lot of weight due to the anxiety of being sent back to Turkey. He says that he has become very forgetful."
The mental state examination records this view:
"Mr Soylemez reported being very low in mood and has become very withdrawn. He is preoccupied with experiences in Turkey and is very tense and anxious. He said he was fearful of the same treatment if he returned to Turkey. He sleeps poorly and gets nightmares. He has a poor appetite and this has led to weight loss. He has difficulty concentrating due to his preoccupation. This has led to poor memory. He feels hopeless and at times has felt suicidal."
Then in the concluding three paragraphs the doctor summarises his opinion. He does so in these terms:
"1. Mr Soylemez has two mental illnesses, a depressive illness and post traumatic stress disorder. The depressive illness is characterised by low mood, anxiety, poor sleep, poor appetite, poor concentration, poor memory, hopelessness and suicidal ideation. The posttraumatic stress disorder is characterised by intrusive memories of a traumatic event, feeling as though he is back in the same situation, reminders, nightmares and hypervigilance.
2. Mr Soylemez can very clearly link the symptom of posttraumatic stress disorder to his torture in Turkey. Posttraumatic stress disorder only occurs in the context of a traumatic event and the clarity with which Mr Soylemez can describe his experiences and symptoms adds credibility to his account. Posttraumatic stress disorder is recognised as a mental illness in both diagnostic classifications used in the United States and by the World Health Organisation."
Then going on a little bit:
"It has also been very ably (sic) demonstrated by Mr Soylemez in our consultation that talking about his torture precipitates the unpleasant symptoms of posttraumatic stress disorder and it is known that sufferers avoid talking about their experiences to the same extent as those people suffering from phobias would avoid the situation which provokes them."
3. Both illnesses require treatment. Mr Soylemez is in urgent need of a general practitioner who can either assess and treat his depression themselves or refer him to catchment area psychiatric services for further assessment and treatment. I would also recommend that he is referred to the Medical Foundation for the victims of torture for assessment and intervention where his posttraumatic stress disorder is concerned. In particular, uncertainty about whether or not he is going to be returned to Turkey is making Mr Soylemez' situation worse. It generates unpleasant memories of his previous ill treatment and is making his PTSD and depression worse. He requires urgent intervention and this would mean staying in the United Kingdom to receive treatment."
Then the opinion concludes with this striking sentence:
"Returning him to Turkey would precipitate a catastrophic deterioration in his mental state as he will be stimulated by the situation to the extent that his symptoms will become unbearable and, as he has already contemplated suicide, he would almost certainly attempt and complete such an act."
There then follows the signature of Dr Pierzchniak who, it may be noted, is a consultant forensic psychiatrist, an honorary senior lecturer at Guys, King's and St Thomas Medical School and approved under section 12 of the Mental Health Act 1983.
"Dear Mr Makhlouf
Re: Taylan Soylemez
Address: 54 Sherbourne Avenue, Enfield, EN3 5PW
Thank you for your letter regarding the above named dated 7.6.02. I have noted the contents and those of the Home Office letter refusing Mr~Soylemez permission to remain in the UK. I can reply to the points raised as follows:
1. Diagnosis of both post traumatic stress disorder and depression was made according to the symptoms objectively assessed by myself. They are not a self diagnosis produced by Mr Soylemez, I made the observation in the last paragraph of my Mental State Examination that Mr Soylemez realised he had mental health problems, however he does not have the working knowledge of psychiatric terminology and diagnostic classifications to make a self diagnosis. The symptoms of post traumatic stress disorder were volunteered by Mr Soylemez and I asked him about symptoms of depression which he answered, in my view, very frankly, this is supported by his distress and his additional information to answers to my questions regarding depression, which is evidence that he answered the questions to do with depression in a manner more than just answering in the affirmative or negative. This adds credibility to his answers and to the diagnosis. I would also draw attention to other, visible, signs of mental disorder. I noted on more than one occasion that Mr~Soylemez was distressed during the interview and noted that he was so agitated at times that he could not sit in his seat. These are identifiable features of mental disorder which add credibility to the diagnoses.
2. My Soylemez would have been in a far better mental state when I interviewed him had he not been faced with the removal to Turkey. The thought of the removal to Turkey clearly preoccupied Mr Soylemez and brought his memories of his mistreatment there to the fore. He was therefore very agitated. I would say that any action to remove Mr Soylemez from the UK to Turkey would in itself be a trigger for a decline in his mental state given his already abnormal mental state. If he was threatened with actual removal proceedings, this would make his mental state even worse.
3. Bearing in mine Mr Soylemez' reluctance to discuss his symptoms because of the reported precipitation of the unpleasant memories I think it is reasonable not to have expected Mr Soylemez to discuss them at an early stage. I would say again, as in paragraph two of my opinion that it is a well known phenomenon that sufferers of post traumatic stress disorder to avoid talking about the experiences in the same way as those suffering from phobias would avoid a situation which evokes feelings of stress or anxiety. In addition Mr~Soylemez volunteered that he had a poor memory and had difficulty concentrating, this would not make matters any easier.
I hope this is of help, please do not hesitate to contact me should any further clarification be required."
"In considering these representations the Secretary of State is aware that your client has previously been through the one-stop appeals system. This means that your client was obliged under the 1999 Act to mention any and all of the grounds that he wished to rely on at appeal or afterwards at the earliest opportunity.
Having carefully considered the contents of your representations dated 2 January 2002 and 13 June 2002, the Secretary of State has concluded that you have not made any new, significant or credible evidence which has not been already fully considered, both by the Secretary of State and the Special Independent Adjudicator."
The letter then goes on a little later on:
"You state that your client's removal would 'precipitate a drastic deterioration in his mental state'. In support of your claim you have submitted a medical report which states that your client is suffering from two mental illnesses: a depressive illness and posttraumatic stress disorder. According to the psychiatric assessment your client's mental problems stem from alleged arrests, detention and torture. However, the adjudicator did not accept that your client was tortured"
And then it goes on to refer to the adjudication. A little further on, on the third page of the letter, this is then said:
"The Secretary of State has reconsidered your client's case on all the evidence available to him, including the further representations, but has concluded that you are seeking to rely on the acceptance of facts which the independent adjudicator has rejected. You have submitted a medical report which states that your client is suffering from depression and posttraumatic stress disorder. Notwithstanding, the Adjudicator's findings the Secretary of State is satisfied there is treatment available for your client's conditions in Turkey. Additionally, although you have raised a new article, Article 2, you have raised no new evidence or argument explaining how this new Article is engaged.
Then a little further on:
"The Secretary of State is of the view that the representations made in your letter of 13 June 2002 do not add anything further to your client's case. Dr Pierzchniak's observations made in his letter dated 10 June 2002 operate on the basis that your client is telling the truth, which as you are aware, the Secretary of State does not accept."
The letter then goes on to point out that no evidence had been proffered to suggest that the claimant had followed Dr Pierzchniak's advice as to undergoing further assessment and treatment and then goes on to say this:
"The complaint against your client's previous solicitors is a matter for you but does not advance your client's claim any further. It is contradictory that on the one hand you are making a complaint against your client's previous solicitors for not obtaining a medical report when your client made his original claim as your client's symptoms were obvious even to a lay observer, and on the other hand (in response to the Secretary of State's observation that one wonders why your client has never raised these issues before and why none of the officials who interviewed him or the Adjudicator made no mention of these symptoms) you claim that your client 'suppressed' his psychological problems and "it is therefore understandable why the adjudicator and the interviewing officer at your client's asylum interview failed to detect the symptoms of torture and the psychological problems your client suffers."
Then the letter concludes in this way:
"This letter refuses your client's application of 2 January 2002 and further representations made on 13 June 2002. The Secretary of State certifies under section 73(8) of the Act that in his opinion one purpose of your client's application would be to delay his removal from the United Kingdom and your client had no other legitimate purpose for making it."
"Re Taylan Soylemez dob 17.08.1978
I write with regard to ongoing immigration matters and in particular the 'Detailed Grounds Of Defence' I have had sight of, in particular paragraphs 6 and 7.
I would say that I made the diagnosis of post traumatic stress disorder (PTSD) solely on the basis of symptoms elicited and not on the history of traumatic events. The events themselves serve only to provide an explanation as to why the PTSD is present. Even given that the credibility of the account of the events is being challenged the diagnosis would remain unchanged. I would again comment that because PTSD only occurs after a traumatic event, this indicates that the patient was subjected to some form of adversity. If I were to assume that the traumatic event occurred for reasons other than that claimed by Mr Soylemez, it would not change my opinion about the effect of removal on the mental state of Mr Soylemez. I would also comment that the credibility of the symptoms Mr Soylemez described is not being called into question.
Where paragraph 7 is concerned I would say that the symptoms of PTSD are very specific and do not allow for a differential diagnosis to be offered.
PTSD is a mental illness which lasts indefinitely. Psychological interventions and medication are used to alleviate the worst of the illness so that a person may function reasonably well on a day to day basis but some symptoms are persistent. Where one considers suicide risk in the context of treatment which will not entirely alleviate symptoms, other factors are important. In the case of Mr Soylemez the only way to alleviate the risk of completed suicide is to prevent him being exposed to the stimulus which would have a catastrophic effect on his PTSD, removal to Turkey."
"47. Mr Underwood submitted that the Home Secretary was entitled to maintain his conclusion that the allegation of breach of human rights was manifestly unfounded, notwithstanding his report. The principal points he made were the following:
(a) Dr Gorst-Unsworth's report and her conclusions were expressly based on the information that he had given her that he hade been deported from Germany to Sri Lanka where he had been tortured. It is common ground that he was never so deported. Furthermore, one of the reasons given by the Secretary of State for rejecting the Claimant's account of his return from Germany to Sri Lanka is that no one who had genuinely suffered the treatment in Sri Lanka which he had alleged would voluntarily have left Germany and gone to Sri Lanka. The Secretary of State had substantial grounds for rejecting the credibility of the Claimant and his assertion that he had returned to Sri Lanka from Germany. I have concluded that, the Home Secretary was entitled to come to that conclusion, and indeed, was entitled to conclude that the Claimant's account was manifestly untrue, it follows that he was entitled to concluded that there was no arguable basis for Dr Gorst-Unsworth's opinion.
(b) In any event, Dr Gorst-Unsworth had not been able to quantify, or indeed to qualify the deterioration in the Claimant's condition which she anticipated if he were returned to Germany. Similarly, the increased risk of self-harm was not quantified.
(c) Dr Gorst-Unsworth had not expressed a view as to the likely prognosis for the Claimant if he were to remain in this country.
48. These comments are well-founded. The evidence of the risk that the Claimant will suffer deterioration in his condition if he is returned to Germany seems to me to be as speculative as it was in the case of Bensaid."
"Mr Blake submits that the Secretary of State can only reach a different factual conclusion from the adjudicator if he has good reason to do so. In considering whether good reason exists, two particular matters must be borne in mind. First, that the adjudicator has what is generally regarded as the unique advantage of hearing and seeing the witnesses as they give their evidence orally in the course of an adversarial process. Secondly, that the adjudicator is an independent appellate authority, deciding issues of fact impartially as between the rival parties, here the Secretary of State and the respondent."
At page 133 Simon Brown LJ says this:
"On an issue such as this it does not seem to me reasonable for the Secretary of State to disagree with the independent adjudicator who has heard all the evidence unless only:
(1) the adjudicator's factual conclusion was itself demonstrably flawed, as irrational or for failing to have regard to material considerations or for having regard to immaterial ones -- none of which is suggested here; [that, I interpolate, is not suggested in the present case either.
(2) fresh material has since become available to the Secretary of State such as could realistically have affected the adjudicator's finding -- this too was a matter we considered in Powergen;
(3) arguably, the adjudicator has decided the appeal purely on the documents or if, despite having heard oral evidence, his findings of fact owe nothing whatever to any assessment of the witnesses."
Again head (3) is not relevant in this particular case.