England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22 March 2007

1. MR JUSTICE COLLINS: This has come before me as an application to order that the claimant is not removed on a plane which is due to leave today at 1.30pm, the time now being just before 12.45pm.
2. The background is that the claimant arrived in this country from Turkey in April 2000. He is an Alevi Kurd. About a month later he claimed asylum. His claim was rejected by the Secretary of State on 15 February 2002, whereupon he lodged an appeal to the appellate authority. That appeal was not fully heard, if I may put it that way, until 19 October 2004. What had happened was that his initial appeal had been rejected, but he had appealed to the Tribunal and the Tribunal had remitted the matter for a fresh hearing.
3. The adjudicator, Mr Suchak, dismissed the appeal. Broadly speaking, he accepted that the claimant was a supporter, but not a member, of HADEP and he had been detained by the police on three occasions: in 1998, 1999 and 2000. The claimant alleged that on each of those occasions he had been tortured. The adjudicator did not specifically indicate whether he accepted, or not, that he had been tortured, or ill-treated to any extent. Suffice it to say his conclusion was that he was of no interest to the authorities, that his detention had always been not because he was targeted, but because he happened to be, as it were, in the wrong place at the wrong time. He rejected the claimant's assertion that before he was released on the third occasion in 2000, he had been told that the basis of his release was that he should be an informant to assist the authorities.
4. The claimant had produced, in addition, what he said was an arrest warrant, which had been issued on 12 May 2000. However, the adjudicator (as it seems to me, for good reason) rejected the genuineness of that warrant and indicated that it damaged the claimant's credibility because it was clearly intended to embellish his evidence.
5. He sought, and was granted, leave to appeal against the adjudicator's determination. The basis of the grant was that the vice-president, as he then was, of the Tribunal believed that it was arguable that the adjudicator had erred in law. Having stated that he could see no reason to doubt that the appellant had been arrested and detained as claimed, his further conclusions that he had not been recorded as a PKK supporter, had not been specifically targeted and had not been asked to become an informant and was therefore of no particular interest to the authorities, were irrational. He had not given appropriate weight to the fact that on the last occasion the claimant had been arrested during a raid on a HADEP building. He also referred specifically to a Tribunal determination in IK (TURKEY CG) [2004] UKIAT 00312
6. I am bound to say, with the greatest respect to that very experienced vice-president, it is not easy to identify errors of law, as opposed to attempts to reargue the matter. Indeed, that was the approach eventually taken by the Tribunal when it heard the appeal, unfortunately not until January 2006. It then took the view that it could not identify any error of law, that the conclusions reached by the adjudicator were conclusions that he was entitled to reach, and accordingly the appeal failed.
7. Following that there was an application to the Home Office once removal directions had been set in May that allegedly amounted to a fresh claim. That was put on the basis of further evidence from Turkey confirming that the claimant had been detained and tortured, and a further psychiatric report, one having been before the adjudicator but not having assisted the adjudicator, which confirmed that the claimant was suffering from Post Traumatic Stress Disorder and indeed there was a risk of suicide.
8. Those fresh submissions, as I say, were made, but the Secretary of State refused the fresh claim by a decision of 1 November 2006. Essentially he did not accept that there was anything fresh, and he stated that the matters had been considered by the adjudicator in general terms, and that, so far as the medical aspect was concerned, his condition was not serious enough to warrant the view that it was even arguable that it would be contrary to Article 3 to remove him, or indeed Article 8, and that was based upon the decision in N.
9. Following that this application for judicial review was made. That was lodged on 6 December 2006. Obviously it was not placed before a judge for consideration on the papers until after the acknowledgment of service was served. On 19 February Burton J, largely for the reasons given in the acknowledgment of service, decided that the claim was not arguable, but he continued:

"In the light of the history, no further renewal or application shall be a bar to removal, without further order of the Court, to which this Order and the Acknowledgment of Service must be referred."

It is as a result of that that the decision was made to remove, notwithstanding that an application was made for an oral renewal. That is what has led to this application. Unfortunately the court was unable to give a date for the hearing of the oral renewal until 22 June of this year. Although the claimant was informed at the end of February that removal would take place at any time, he appears to have believed that the service of the notice of renewal was sufficient to prevent his removal. However, the Home Office took a different view having regard to the order of Burton J.

10. There are a number of cases in which claims are made following a history of attempts to frustrate removal, and frequently by those whose claims for asylum have been decided to lack credibility. In those cases it is commonplace for the acknowledgment of service to suggest that the judge indicates that removal can take place, notwithstanding that there is the opportunity for renewal because the claim is manifestly hopeless. That follows the guidance given by the Court of Appeal in a case (whose name I confess I cannot now remember) which was applied by me some time ago as a possibility for this jurisdiction as well.
11. I must emphasise that it would not be right for a judge to make such an order unless he was persuaded that the claim was entirely without merit. However, it is a valuable tool if that is the judge's view. That was Burton J's view on the history of this case.
12. Mr Jones submits that that was over harsh because there is no real evidence that this claimant, particularly having regard to his mental state, was one who was deliberately trying to avoid removal by making claims which were bound, in the end, to fail. He had not conducted himself in a way which justified the direction given by Burton J. In my view the claim is one which is not arguable. However, I do see the force in the suggestion that it perhaps does not quite come into the category of a case which justifies the draconian order that was made by Burton J. However, I do not need to make a final decision on that point in the circumstances, because, as I say, I am satisfied that the adjudicator's conclusions were conclusions which the Secretary of State was entitled to rely on and to apply. There was nothing in the fresh material that was sufficient to show that the Secretary of State's view that there was no fresh claim was one which was wrong in law.
13. I bear in mind, in that context, the recent decision of the Court of Appeal on appeal from me the case of
14. Rahimi or AR Afghanistan, that the general approach should be to consider whether the Secretary of State's decision was an irrational one in determining whether there was a fresh claim.
15. On the other hand, it is to be noted that the appeal by the Secretary of State against my decision was dismissed on the facts, because there was material which would, if accepted, (and there was equally evidence that it could be regarded as genuine) have made a real difference to that claim. That is not, in my judgment, the situation here.
16. However, there is an added factor in this case and that is the mental state of the claimant. The psychiatric evidence is that he is a suicide risk. The Secretary of State has recognised that he is vulnerable and has indicated in a letter of today's date that he is going to provide a medical escort to accompany the claimant during his flight until he arrives in Turkey. The only reason why that could be considered appropriate is that the Secretary of State recognises that there is material that suggests that he is vulnerable. As Mr Jones points out, the real vulnerability is a risk of suicide.
17. He can be protected from that by the medical escort until his arrival in Turkey, but when he arrives in Turkey he will be handed over to the very people whom he fears. There is no reason to doubt that he has a subjective fear, although the conclusion is that that subjective fear is not objectively justified. In those circumstances, it seems to me that it is essential that consideration is given to what information should be provided to the Turkish authorities, so that they are put on notice that they have someone whose mental state is such that he might well be regarded as a suicide risk. The practice is not to give any such information.
18. The letter from the Home Office states:
19. "It is not standard procedure to inform the Turkish authorities of a subjects' medical history upon their removal. Furthermore, we have established that it is the policy of the escorting agency never to disclose the nature of any medical issue to the receiving authorities."
20. I do not doubt that that might be a justifiable policy as a general consideration, but in the circumstances of this case, particularly if the claimant, or those advising him, wish any information to be given, it seems to me that there should be a proper consideration of what is needed to avoid any such risk.
21. So far as the procedure where a judge makes the sort of order that Burton J made, it seems to me that the new arrangement that the Home Office has agreed to, which came into operation on 12 March, namely that there should be 72 hours notice at least before removal, does not apply. If a judge makes that order then it means what it says, namely that there can be removal, and any removal can only be prevented if an application is made to the court. It follows that where a judge makes that sort of order it is insufficient simply to make an application for an oral renewal. It must be accompanied by notification to the Secretary of State that that is being done and that an order is being sought from the court to stay any removal.
22. In this case ample time was given for that to be done. It should have been done when the notification was given by the Treasury Solicitors on 28 February. It should never be left to the last minute. I am not specifically blaming the solicitors because this was a new situation and one that they may well have believed would be covered by the new arrangement. As I have said, it is, in my view, not. If there is a refusal of permission solicitors, and indeed claimants, must realise that if that sort of an order is made by the judge they are liable to be removed at any moment. Therefore, if they wish to stop it they must make an immediate application to the court.
23. I do not encourage such applications because the court will only make such an order if satisfied that the claim is truly hopeless. If it is truly hopeless then any such application is likely, or bound, to fail. I put on notice to solicitors, who consider the situation, that they are at risk of paying the costs personally by way of a wasted costs order if they pursue such an application in circumstances where it is truly hopeless. One appreciates the difficulties, but nonetheless it seems to me that it must be brought home, and properly be brought home, in appropriate cases that if claimants' claims are truly hopeless there can be an immediate removal.
24. As it is, what I propose to do in this case is, having indicated that it is, in my view, not a case where in due course permission will be granted, to adjourn final determination of the issue to enable further enquiries to be made of the claimant and for consideration to be given as to what information should be provided to the Turkish authorities to safeguard him when he returns to Turkey. That should be able to be dealt with quickly and the matter can, if necessary, be reconsidered next week. If satisfactory arrangements are made, then the case, of course, need not come back and simply will be recorded as permission refused.
25. What effectively I am doing is putting a stay on the refusal of permission to enable the further enquiries to be made, the arrangements to be sorted out, and it follows that there will be a stay on the removal this afternoon.
26. Mr Williams, if you want that judgment to be available for spreading around, then by all means you can have it if you think it would be helpful.
27. MR WILLIAMS: Thank you. That would be appreciated.
28. MR JONES: I am not sure what the position is of my client in terms of funding. In case there is a certificate I will ask for detailed assessment.
29. MR JUSTICE COLLINS: Yes, of course you can have the necessary order. May I say, if it helps you, because of the urgency and difficulty, that I would ask that the available authorities look kindly upon funding you for the purposes of this morning.
30. MR JONES: I am very grateful.
31. MR JUSTICE COLLINS: You can pass on that message. I do not know what good it will do.
32. There is the question of how we phrase the order. What we need say is that there should be no removal this afternoon. Any further removal is to wait either satisfactory agreement, or agreement between the parties, as to arrangements or further order of the court. The matter will be reconsidered by the court if there has not been agreement before the end of next week. Shall we say something along those lines? Is that satisfactory?
33. MR JONES: As I say, I will pass on what you have said about the arguability of this claim. I have taken note of it. I would note that I have not fully argued the matter before you.
34. MR JUSTICE COLLINS: You will get the judgment and you can say that the court has indicated that it is likely to refuse permission. Unless there is any fresh matter to be argued, it will be refused. If you want to argue that further you must do so at the stage that it comes back for any further consideration. That equally will be before the end of next week.
35. Would you like to pay for the transcript, Mr Williams? I think it is of use for the Treasury Solicitor. I think you had better make the usual agreement to pay for it, rather than the court. The Home Office can pay for it.
36. MR WILLIAMS: In which case I ask that it be expedited.
37. MR JUSTICE COLLINS: Yes.