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 WC2A 2LL
		6th May 2008

1. MR JUSTICE SULLIVAN: In this application for judicial review the claimant was given permission by Gibbs J on 9th December 2005, to challenge decisions by the defendant in June 2005, to reject the claimant's application for leave to remain on the basis of his marriage and to treat certain further representations that had been made by the claimant as a fresh claim for asylum. Gibbs J gave permission to apply for judicial review on limited grounds only, following a renewed oral application.
2. He did so in the following circumstances. The claimant is a Turkish citizen, who arrived in the United Kingdom in February 2002 and claimed asylum on the same day. His asylum application was refused on 9th September 2003. Slightly later that month he met a female Turkish asylum seeker in London and at the beginning of January 2004 they were married. Shortly after the marriage, on 10th February 2004, the claimant's asylum appeal was heard before an Adjudicator. In a determination promulgated on 5th March 2004, the Adjudicator dismissed the appeal. It is to be noted that Article 8 was mentioned in the Adjudicator's determination but the Adjudicator said that, taking into account the length of time that the claimant had spent in this country and the family ties he had in this country the evidence "does not implicate Article 8 values". For reasons which are quite inexplicable, it would appear that the Adjudicator was not told by the claimant that he was married, much less that he was married to someone who was a fellow Turkish asylum seeker.
3. When this matter was considered by Gibbs J, he unsurprisingly said that, at first, he was inclined to be suspicious about that, but said that he had been persuaded by Mr Pipi, who appeared on that occasion on behalf of the claimant, that it might be that the question simply did not arise before the Adjudicator because at that time the applicant's wife was of uncertain immigration status, since at that stage her asylum claim had not been determined.
4. Before Gibbs J there was a letter dated 16th April 2005, in which the Secretary of State recognised the claimant's wife's refugee status and granted her indefinite leave to remain upon the basis of that status. Shortly following that letter, in June 2005, the claimant submitted an application for leave to remain on the basis of marriage to his wife. The two letters in June 2005 from the Secretary of State rejected that application, saying that Article 8 had been taken into account, and also declined to treat the further representations that had been made by the claimant back in September 2004 as a fresh claim for asylum.
5. Gibbs J was "narrowly persuaded" to grant permission to apply for judicially review on the basis that "the Adjudicator would not have been basing his decision about the applicant on any danger that might face him as a consequence of the reputation of his wife or members of her family in Turkey." Gibbs J suggested, at the end of his judgment, that the grounds of challenge should be refined "to make it absolutely clear the basis that is being relied upon".
6. Again, for reasons that are not explained, the amended grounds were not sent to the Secretary of State until April 2006. There is no record of the amended grounds being lodged in the Administrative Court. The amended grounds contended that the Article 8 decision in respect of the claimant did not take account of the fact that there were exceptional circumstances which would make it disproportionate to expect him to return to Turkey and apply for a Visa from there to rejoin his wife in the United Kingdom. The case of IK was relied upon and it was submitted that the claimant would face serious risk of persecution because of his connection with refugees in the United Kingdom:

"His wife and other family members have been granted asylum in the UK and elsewhere. His wife is on the run from the authorities, her father was arrested because of her after she fled Turkey, her brother-in-law was detained and questioned about her when he visited Turkey despite the fact that he has never sought asylum in the UK and her family is a known supporter HADEP, a separatist organisation in Turkey. All these factors heightened the risk of his arrest in Turkey because of his wife and in those circumstances, it is respectfully submitted that to require the claimant to return to Turkey and apply for the appropriate entry clearance is very disproportionate."

7. Prior to that the claimant himself had written to the Secretary of State, and in a letter dated 20th December 2005 asked for reconsideration of the earlier decisions, in the light of the fact that permission had been granted to apply for judicial review. All that was said about the claimant's wife in that letter, which largely reiterated the claimant's claim that had been rejected by the Adjudicator, was that she could not accompany him to Turkey if he was to be returned there: "Because my relationship to my wife who at the moment is a refugee in the United Kingdom." It will be noted that it was not suggested that he would be at risk because of her, simply that she could not return with him.
8. There was also a letter from his solicitors, dated 9th January 2006, again referring to the case of IK and, again, mentioning the claimant's wife's case, saying that it was a very strong one and saying that it was unreasonable for her to accompany her husband to Turkey and to live outside the United Kingdom or accompany her husband to Turkey since she was a recognised refugee in the United Kingdom. It was said that this was a strong factor which needed to be considered.
9. Again, it is a curiosity of this case, given the way the argument has subsequently developed, that that letter does not contend that the claimant would be at risk because of his relationship with his wife, if he returned to Turkey. Further documents were subsequently provided to the Secretary of State and that was the basis on which the Secretary of State reconsidered the matter and issued a further decision letter, dated 5th April 2007. The letter refers to the claimant's application for judicial review and to the letter dated 5th May 2006. It is not clear whether or not we have that letter in the bundle. We certainly do not have a letter of that date. The decision letter makes it plain that it is addressing the claimant's rights under Article 8. It says that they have been given further consideration.
10. The history of the matter is set out. Paragraph 19 of the letter makes the point that the separation of the parties will be temporary, and that is usually a proportionate interference because there is nothing to stop the claimant from returning to Turkey and having returned there, making an appropriate application for entry clearance to join his wife as her married partner. Paragraph 20 of the decision letter said:

"Further, we do not consider that your client would be at risk of persecution on return to Turkey on the basis of his marriage to Ms Nacakgedigi, or that it would be disproportionate for him to be expected to return to Turkey for the purposes of making an application from there. While Mr Justice Gibbs was in his words 'narrowly persuaded' that it was arguable that there was a danger your client may face ill-treatment as a consequence of the reputation of his wife and family members, and granted permission to judicial review on that basis, your client has not provided any evidence that he will be persecuted as a result of this relationship. The relationship was formed while both partners were in the United Kingdom, in addition your client and his partner also have differing surnames. There is nothing to associate your client with [his wife's name] and there is little possibility that the Turkish authorities are or will become aware of the association and or that even if they were to become aware that they are inclined to take any action. As mentioned above your client can return to Turkey on his own and apply for entry clearance as a spouse of a person settled in the United Kingdom, should he satisfy the entry clearance requirements he will only spend a short time in Turkey before returning to the United Kingdom. In the appeal determination dated 5 March 2004 the adjudicator did not accept that your client was ever detained or that he suffered persecution at the hands of the authorities and concluded at paragraph 11 that the evidence provided by your client 'does not merit belief'. Any submission in this regard and under Article 3 is therefore rejected."

11. Notwithstanding the fact that that was plainly a further decision which superseded the earlier decision letters, not least because the claimant and his solicitors had expressly asked for a reconsideration of the matter, there was no application for permission to challenge the letter of 5th April 2007 and no attempt was made to amend the grounds to challenge the lawfulness of the matters set out in that decision letter, in particular paragraph 20.
12. To compound the procedural mischief, no skeleton argument was provided prior to this hearing and it is plain from the skeleton argument, belatedly produced to me when the hearing began, that the sole point being pursued is the point that was raised by Gibbs J as a matter of concern in respect of the original decision letters. All of the other arguments have been abandoned and so the only issue is whether it would be disproportionate in terms of Article 8 to require this claimant to return to Turkey, in order to apply for entry clearance as the married partner of his wife because of her associations with organisations that support Kurdish political aspirations, in particular the fact that it emerges from her determination that she is a low-level HADEP sympathiser.
13. I have referred to her determination because it is a further peculiarity of this case that the determination was promulgated on 8th December 2003, that is to say before the claimant and his wife were married and before the claimant's appeal to an adjudicator. It is therefore quite astonishing that in an appeal in which the claimant was raising not merely his own asylum claim but also Article 8 matters, he did not think it necessary to mention to the Adjudicator that, not merely was he married, but he was married to a Turkish asylum seeker who had been successful in her own appeal.
14. In the amended grounds Mr Pipi who had sought further instructions about the matter, corrected the statement given of his understanding of the position when he appeared before Gibbs J and said that the appeal was actually allowed in December 2003, so that the claimant's wife's immigration status was not uncertain at the time of the claimant's appeal. The amended grounds said "instructions would be taken as to why the Adjudicator was not told of the marriage".
15. There has been no explanation in writing. Over the luncheon adjournment Mr Pipi has made further enquiries of his lay clients, and it appears that it is possible that, following the promulgation of the determination, there was a challenge by way of an application for permission to appeal to the IAT and possibly a further challenge by way of judicial review to the IAT's decision whether to grant or refuse permission, we know not. That might explain why it took until April 2005 for the status letter to be produced. What it does not explain is why, even if the claimant's wife's determination was under challenge in some way, the fact that the claimant was not merely married, but married to a fellow Turkish asylum seeker was not mentioned to the Adjudicator in the appellant's appeal. Be that as it may, what is now said in the skeleton argument produced this morning is that:

"Although the Turkish authorities are unlikely to know about the claimant's marriage to his wife upon arrival in Turkey, it will only be a question of time before they find out. The claimant has no passport, as he left Turkey illegally. Upon returning he is bound to apply for a passport. The application form would require information about his marital status. At that stage he is expected not only to say he is married but also state his wife's name. His wife's family is known to be well connected to the opposition and the case of Re: IK, shows the perils that he faces because of his connection with his wife."

16. The case of IK identified a number of risk factors. The tribunal made it quite clear that they comprise a broad spectrum of variable potential risk that requires careful evaluation on the specific facts of each appeal. One of the factors is whether the appellant has family connections with a separatist organisation, such as KADEK, or HADEP, or DEHAP. It would appear from the determination of the Adjudicator in the case of the claimant's wife that she was a low-level HADEP sympathiser, who had been arrested twice. At an earlier passage in the determination the Adjudicator found "she's a young woman from a family with a history of supporting in a fairly low level though real way Kurdish political aspirations."
17. The points made, both in the decision letter, dated 5th April 2007 and in the skeleton argument of Mr Auburn are two-fold. Firstly, that the claimant met his wife only after they had both left Turkey. They have both been away from Turkey now for some years, so that simply as a matter of common sense, the claimant would not have any firsthand knowledge of her activities while she was in Turkey. But the further point is made that there is nothing to associate the claimant and his wife, not least because it is noted that they have different surnames.
18. The trouble, it seems to me, is that the claimant and his solicitors asked for the decisions which were the subject of permission to apply for judiciary review to be reconsidered. That was done. It is clear, therefore, that there is a fresh decision letter, dated 5th April 2007, and so the original application for judicial review, which challenges particular decision letters, is wholly academic. Attention should now be focused on the new decision letter. There was no challenge to that letter. Although Mr Pipi says that the same point runs throughout, it is important to realise that a judicial review is a review of a particular decision. Once that decision is reconsidered and taken again, there is a further decision. Unless that further decision is challenged, whether by way of an amendment of the original grounds or a further challenge by way of judicial review, then it must stand as a lawful decision. If it supersedes the earlier decisions, then there is no point in allowing the earlier judicial review to proceed. The further point is that the arguments now advanced in the skeleton argument, that is to say the acknowledgement that on return the claimant would not be at risk, but that he would be at risk once he sought to apply for permission to leave Turkey in order to rejoin his wife, were never put to the Secretary of State and, unsurprisingly, are therefore not dealt with in the decision letter dated 5th April 2007. For that omission the claimant is entirely to blame. As I have indicated, the procedural history of this case has been thoroughly unsatisfactory: at the very last minute points have been made, without giving the defendant a proper opportunity to respond to them. For all I know, it may well be correct that the claimant will have to go through a process of obtaining a passport in which he will have to identify, not merely the fact that he is married but also state who he is married to. There is no evidence as to whether that is, or is not, correct. There is simply no evidence about that critical issue one way or the other.
19. It seems to me, therefore, that the proper course is to dismiss this application for permission to apply for judicial review, since the decisions reached upon the basis of the information supplied to, and the grounds as they were being explained to the Secretary of State at the time, are impeccable as a matter law. If and insofar as there is anything in the point now made about the need to apply for a passport, the need to identify the claimant's wife and her name, and the danger of a connection then being made, that can be put in by way of further submissions to the Secretary of State, who can then deal with the matter by way of a further decision letter. In considering the point the Secretary of State will be able to consider whether the fact that such a connection could be made, if that is established on the evidence about the procedures in Turkey, falls within the risk factors in IK, against the background that this is a family relationship that has been formed after both of the parties were in the United Kingdom and also taking into account the lapse of time since they both left Turkey and the fact that on the Adjudicator's finding in the claimant's case, there really is only one potential risk factor in this matter. I do not encourage the making of further representations, I merely say that they can be made upon the basis of what is now, and very belatedly, being argued in Mr Pipi's skeleton argument. Reference can also be made to the passages in the claimant's wife's determination which do not appear to have been drawn to the Secretary of State's attention in the earlier representations. It is all very well to say that the defendant is responsible for determining both cases, at least at first instance, but there does not appear to have been any attempt to invite the defendant to join, as it were, consideration of the two determinations together, by cross referencing to the passages in the determination in relation to the claimant's wife.
20. If so advised, that can be done in any further representations to the Secretary of State. For example, the proposition in Mr Pipi's skeleton argument that the claimant's wife's family is known to be "well connected" to the opposition would appear to me at least to be pitching it somewhat high on the basis of the Adjudicator's conclusions in the case of the claimant's wife. But that would be a matter for those making the further representations.
21. For these reasons, I refuse this application for permission to apply for judicial review. In doing so, I do emphasise just how thoroughly unsatisfactory this case has been procedurally. Inevitably these cases are something of a moving target, but it is incumbent on all those who are involved to make quite certain that the Secretary of State, as defendant, knows what target she has to meet. It is simply not acceptable to turn up on the day of the hearing with a new and different target and complain that it has not been dealt with, which is what happened today.
22. For these reasons this application for permission to apply for judicial review is refused. In so far as the challenge is a challenge, albeit without permission to the decision letter of 5th April 2007, I make it clear that the challenge to that letter is also refused on the basis of the material that had been supplied to the Secretary of State, which did not include the assertions in the most recent skeleton argument put forward on behalf of the claimant.
23. MR AUBURN: I have an application for costs. In the claim form the boxes in section 4 about CLS funding, there is nothing ticked. I do not know the position, it might be that my learned friend can assist me. There is no public funding. I do ask for costs. I ask for costs to be assessed if not agreed.
24. MR JUSTICE SULLIVAN: Can you resist that?
25. MR PIPI: My Lord, no.
26. MR JUSTICE SULLIVAN: The claimants are to pay the defendant's costs, those costs to be subject of a detailed assessment unless otherwise agreed.