England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 February 2008

1. MR JUSTICE HOLMAN: I propose to allow this claim for judicial review for reasons which I will shortly explain. I wish, however, to stress that I do regard this as a very fact-specific decision. I do not intend, by the judgment which follows, in any way to give encouragement to attempts to mount fresh claims, in relation to failed asylum seekers from Turkey, in reliance upon the decision of an Immigration Tribunal in the case of Secretary of State for the Home Department re IK (Turkey CG) [2004] UKIAT 00312, which was notified on 2 December 2004.
2. The essential background history of this case is as follows. The claimant, who is Turkish, arrived in the UK in February 2003 and claimed asylum. This was refused by the Secretary of State in March 2003. The claimant appealed and his appeal was dismissed by an adjudicator in September 2003. He appealed from that decision of the adjudicator to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal dismissed his appeal in September 2004.
3. In October 2004 the claimant applied to that tribunal for leave to appeal to the Court of Appeal. Whilst that application for leave to appeal was outstanding before the IAT, the decision in IK was given and made public. On 15 December 2004, the Vice President of the IAT, Mr PR Moulden, refused leave to appeal to the Court of Appeal, in terms that I will later quote.
4. In February 2005 the claimant, through his most thorough and energetic solicitors, made a fresh application for asylum in a detailed document running to some nine pages, which put at its forefront the recent decision of the Immigration Appeal Tribunal in the case of IK. The essential thrust of the argument in that fresh application for asylum was, and the argument today of Mr Richmond on behalf of the claimant remains, that the decision of IK so alters the understanding and approach, since the decision of the Immigration Appeal Tribunal in this case in September 2004, that it gives rise to a "fresh claim". That fresh application for asylum was considered by the Secretary of State who rejected it in a letter dated 18 October 2005 in which he, the Secretary of State, concluded that there was no fresh claim in this case. It is of that decision that the claimant now applies for judicial review, with permission granted by Sullivan J in March 2006.
5. The essential case of the claimant is that he is a Kurd and an Alevi Muslim. He says that when he was young he became aware of the oppression of Kurds, but he, himself, did not participate in any political activity until he was at university. Then he sought to encourage local Kurds at that university, where apparently they were very much a minority, to vote for HADEP. He says that on three occasions, in April 1999, September 2001 and January 2003, he was arrested and detained by the Turkish authorities and subjected to forms of torture of great brutality which he describes, but which it is not, I think, necessary to describe at length in this judgment.
6. Following the last occasion of alleged severe torture in January 2003, he left Turkey and he arrived some days later in the United Kingdom and claimed asylum here. That is his claim and story. Before the adjudicator, whose decision was promulgated in September 2003, he did not greatly convince. At paragraph 21 of his adjudication the adjudicator said:

"I am of the considered opinion that the appellant has wildly over embellished his accounts of what may have been actual detentions. On the basis that he is a self-important, self-promoting and self-regarding Kurdish patriot, I believe it is reasonably likely he would have provoked the sort of response which is well documented by the Turkish authorities to detain him, threaten him, perhaps beat him and release him."

The adjudicator continued:

"The appellant has been unwilling, however, to leave it there. Instead, with each retelling of the events his accounts have grown wilder and wilder and his sufferings more lurid and extreme."

Later the adjudicator used the expression "fundamentally implausible", and at paragraph 24 of his adjudication he said:

"I simply do not find the appellant's account of these events in the least credible, particularly viewed with the other problems in his evidence, and I reject them accordingly."

At paragraph 25 he said:

"I do not accept as credible the appellant's accounts of the abuse he received in these detentions, nor do I accept as credible his entire account of the January 2003 detention. Rather, I believe that this has been created to provide a single 'springboard' for his trip to the United Kingdom, a journey which was in fact a matter of voluntary emigration rather than flight to asylum."

At paragraph 27, the final paragraph of his decision, the adjudicator said:

"I freely accept that the record of the Turkish government with regard to human rights is appalling and that the sort of tortures and abuses the appellant has so variously described are documented. I do not blind myself to these matters. That does not mean, however, that though they have been used in the past that every person leaving Turkey by merely reciting these excesses is thereby a refugee. For the reasons stated above I have been unable to accept the appellant's account of being subjected to such treatment, which had I accepted it at its highest, I would have no difficulty in concluding would have engaged Article 3."

7. As I have said, the claimant appealed from that decision to the Immigration Appeal Tribunal. In their determination and reasons, notified on 16 September 2004, they subjected the reasoning of the adjudicator to some analysis. They said at paragraph 6:

"We find that there are errors of law in that some of the adjudicator's findings of fact were not open to him on the evidence and other conclusions are insufficiently reasoned."

As a result, they, in effect, reversed a number of the adjudicator's adverse findings of fact and conclusions against the claimant. They said, amongst other things, that the adjudicator had made "inconsistent findings". It is not easy to discern the overall state of the credibility or non-credibility of the claimant's case at the end of the conclusions of the Immigration Appeal Tribunal. Mr Greatorex has submitted today that it is possible to place the decisions of the adjudicator and the Immigration Appeal Tribunal side by side; to strip out from the decision of the adjudicator all those findings which were not accepted by the Immigration Appeal Tribunal; but nevertheless to identify that there is a hard core of findings by the adjudicator which have not been upset on appeal, and which are adverse to the claimant. Although it is not necessary to perform that exercise in any detail for the purposes of this judicial review, it does seem to me that there are considerable difficulties in this case in, on the one hand, stripping out a number of findings which were apparently wrongly made, and yet leaving in place other findings. Realistically, one cannot have the plums without the duff.

8. The Immigration Appeal Tribunal effectively adopted the approach of accepting for the purposes of their decision, without positively finding, the essential truth of the claims made by the claimant. They then had to consider the question whether that meant that he was at risk if he were now to be returned to Turkey. They dealt with this in a passage between paragraphs 15 to 19 of their decision. They said as follows:

"At the beginning of the hearing we asked the representatives to consider and address us on the question of whether, if the appellant's account of events was accepted at best, he would be at risk on return. Both representatives addressed us about this and provided us with the Tribunal determinations in [2004] UKIAT 0038 O (Turkey), AG (GBTS 'Tab' and other records), Turkey CG [2004] UKIAT 00168,and KK (GBTS - other informations systems - McDowell) CG [2004] UKIAT 00177. We also have the appellant's bundle of objective evidence and the Turkey Country Report of April 2004.

16. In the light of this information and particularly the three determinations relating to the information available to the Turkish authorities, we find that even taking the appellant's account at best, and we are conscious that in order to do so we must accept his evidence in its entirety, he is not likely to be at risk on return.

17. We follow the Tribunal reasoning in O which has been confirmed but not to our knowledge undermined in any subsequent Tribunal determination. Accepting that the appellant does not have a current Turkish passport and assuming that he has not been able to obtain one, he will be returned with temporary travel documents from which the Turkish authorities are reasonably likely to infer that he is a returning failed asylum seeker. If they check on their GBTS records they will find nothing adverse to the appellant. If all that he claimed did happen including three periods of detention after which he was released without charge, this would not be recorded on the system. There is no suggestion that the authorities have instituted any formal and thus recorded procedure for his apprehension.

18. Like the claimant in O, it is no part of the appellant's case that he has, since being in the United Kingdom, involved himself in politically related activities which would be perceived as hostile by the Turkish authorities.

19. We can see nothing in the evidence and Miss Allen has not referred us to anything to indicate that since he left Turkey, the authorities have been or are still seeking the appellant. There is nothing to support Miss Allen's submission that were he to return to the areas of either of the family homes, or indeed any area in which he has lived in the past, the authorities would have any continuing adverse interest in him which might lead to persecution or infringement of his human rights. He has not suggested that were he to return he would resume his politically related activities."

In the light of those conclusions the Immigration Appeal Tribunal further concluded at paragraph 22 that:

"For this appellant the need for internal relocation does not arise."

They accordingly dismissed the appeal.

9. As I have said, the next event chronologically was the application by the claimant to the Immigration Appeal Tribunal for leave to appeal to the Court of Appeal. That application was refused in a written document in which the Vice President, Mr Moulden, recorded the reasons for the decision as follows:

"1. The Tribunal reached conclusions open to it on the evidence in the light of the Tribunal Country Guidance cases set out in paragraph 15 of the determination. These were the appropriate Country Guidance cases, properly to be followed by the Tribunal at the date of the hearing on 11 August 2004. In the light of these there is no error of law.

2. However, since the hearing of this appeal, the Tribunal has, on 2 December 2004, promulgated an updated Country Guidance case, IK (Returnees - records - ISA) Turkey CG ... which addresses, inter alia, the matters raised in the grounds of appeal. This states, in paragraph 14 of the summary of generic conclusions that the former country guidance cases set out in paragraph 15 of the determination in this appeal (and others) have been updated and replaced."

That was indeed the case. Paragraph 14 of the "Summary of Generic Conclusions", in paragraph 133 at the very end of the decision in IK, states as follows:

"This determination updates and replaces the 7 decisions listed below, in the light of further evidence and argument, and now comprises the Tribunal's current country guidance on the issues described."

The seven cases are then listed. Three of those seven cases are amongst the five cases to which the Immigration Appeal Tribunal itself referred in paragraph 15 of their decision in the present case, namely, the cases of O, AG and KK. It was thus not particularly surprising that the solicitors on behalf of the claimant made their fresh application, as I have described, to the Secretary of State in February 2005 and placed heavy reliance on IK.

10. In his decision letter of 18 October 2005 the Secretary of State first correctly cited paragraph 353 of the Immigration Rules (HC 395 as amended by HC 1112). I need not reproduce that here. At paragraph 5 of his letter he continued:

"Some points raised in your client's submissions were considered when the earlier claim was determined. They were dealt with in the appeal determination of 16 September 2004. The remaining points raised in your submissions, taken together with the material previously considered in the determination, would not have created a realistic prospect of success."

At paragraph 9 of his letter he said:

"It is considered that the IK determination findings you have cited have no specific relation to your client's individual case. This is because the risk on return was considered in relation to those being returned being suspected separatists. Your client is not considered as a separatist and it is noted that your client has no outstanding warrants and he has not been officially charged with any offence in Turkey. It is not considered that your client would be suspected as a separatist and as such will not be at risk on return to Turkey."

At paragraphs 11 and 12 of his letter the Secretary of State said:

"Your client's asylum claim has been reconsidered on all the evidence available, including the further submissions, but it has been decided that the decision of 07 March 2003 upheld by the Independent Adjudicator on 16 September 2004 should not be reversed.

12. Because it has been decided not to reverse the decision on the earlier claim and it has been determined that your submissions do not amount to a fresh claim, you have no further right of appeal."

11. The first plank of the argument of Mr Richmond, on behalf of the claimant, is that in that letter the Secretary of State did not approach the issue of a fresh claim in the correct way and did not ask himself the correct question, at any rate in light of the later decision of the Court of Appeal in WM (DRC) [2006] EWCA Civ 1495. At paragraph 10 of his judgment in that case, with which the other members of the court agreed, Buxton LJ said:

"Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry, but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind."

12. Mr Richmond submits, in reliance in particular on the passages at paragraphs 11 and 12 at the end of the letter of 18 October 2005, that in this case the Secretary of State really did no more than make up his own mind. He did not correctly and discretely ask himself the question whether or not there is a realistic prospect of an adjudicator thinking that the applicant will be exposed to a real risk of persecution on return.
13. There is undoubtedly force in that submission, but it does seem to me, on balance, that in paragraphs 4 and 5 of his letter the Secretary of State was correctly approaching and addressing the correct question in this case. He had first set out paragraph 353 in entirety. Then at paragraph 5 of his letter he said in terms:

"The remaining points raised in your submission, taken together with the material previously considered in the determination, would not have created a realistic prospect of success."

It seems to me that implicit in that sentence is, first, the question, which is the correct question, namely, whether the new material would have created a realistic prospect of success; and secondly, the Secretary of State's answer. So I am not, myself, persuaded that in the present case the Secretary of State did not ask himself the correct question.

14. That, however, is not the end of the matter. For ultimately, as paragraph 10 of the judgment of Buxton LJ makes plain, the test is one of irrationality. Accordingly, the question that I have to consider is whether the Secretary of State could reasonably conclude in this case that there is no realistic prospect of success. If he could reasonably have concluded that there is no realistic prospect of success, then that decision was entirely within the ambit of his own discretion. He asked, in my view, the correct question, and if he reached a reasonable answer to it, that is an end to the matter. It is only if I consider that the Secretary of State could not reasonably have concluded that the fresh material, namely the decision in IK, does not raise a realistic prospect of success that this application for judicial review succeeds.
15. On behalf of the Secretary of State, Mr Greatorex submits that really IK makes no difference. He focuses on paragraphs 17 to 19 of the decision of the Immigration Appeal Tribunal. He says that when they say there:

"There is no suggestion that the authorities have instituted any formal and thus recorded procedure for his apprehension"

that remains true. He says that when they say:

"... it is no part of the appellant's case that he has, since being in the United Kingdom, involved himself in politically related activities which would be perceived as hostile by the Turkish authorities"

that remains true. He says that when they say at paragraph 19:

"We can see nothing in the evidence ... to indicate that since he left Turkey, the authorities have been or are still seeking the appellant"

that remains true. Further, he submits that in its application, at any rate, to the present case, the nub of the decision in IK is to be found at paragraph 82. In that paragraph the Tribunal in IK are doing no more than repeating "the general thrust" of the conclusions of the Tribunal in paragraph 42 of an earlier decision of A (Turkey), which was already extant and available at the time of the decision of the Immigration Appeal Tribunal in the present case.

16. In his argument, Mr Richmond places much reliance on paragraph 82 of the decision in IK, which reads as follows:

"As to other returnees, we conclude there is no good reason on the evidence before us, in answering this general question to depart from the general thrust of the conclusions of the Tribunal in paragraph 42 of A (Turkey), which we have already quoted. Thus if a returnee is travelling on a one-way emergency travel document (and no failed asylum seeker will be returned to Turkey by the British government without appropriate travel documentation), or if there is no border control record of a legal departure from Turkey, then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation. This is so stated in the CIPU report in 6.242. It does not automatically follow that this would happen ..."

Mr Richmond strongly submits that paragraph 82 supports that if this claimant is returned to Turkey he would be travelling on a one-way emergency travel document. He would be likely to be identified as a failed asylum seeker and could be sent to the airport police station for further investigation, thereby triggering further investigations in the area from which he comes. Mr Greatorex says there is nothing new in that since that is founded on A (Turkey), which was already current at the time of the decision of the IAT in the present case. I observe, however, that in their central reasoning at paragraphs 15 to 19 the IAT made no reference to A (Turkey).

17. More generally, Mr Richmond places reliance on a number of passages in IK, which, however, are essentially summarised in the "Summary of Generic Conclusions" at paragraphs 5, 6, 7, 12 and 13. They said there:

"5. If a person is held for questioning either in the airport police station after arrival or subsequently elsewhere in Turkey and the situation justifies it, then some additional inquiry could be made of the authorities in his local area about him, where more extensive records may be kept either manually or on computer ...

6. If there is a material entry in the GBTS or in the border control information [which there would not be in this case], or if a returnee is travelling on a one-way emergency travel document [which this claimant would be], then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation.

7. It will be for an Adjudicator in each case to assess what questions are likely to be asked during such investigation and how a returnee would respond without being required to lie. The ambit of the likely questioning depends upon the circumstances of each case.

...

12. The proper course in assessing the risk for a returnee is normally to decide first whether he has a well-founded fear of persecution in his home area based upon a case sensitive assessment of the facts in the context of an analysis of the risks factors described in A (Turkey). If he does not then he is unlikely to be at any real risk anywhere in Turkey.

13. The risk to a specific individual in most circumstances will be at its highest in his home area for a variety of reasons, and particularly if it is located in the areas of conflict in the south and east of Turkey. Conversely the differential nature of the risk outside that area may be sufficient to mean that the individual would not be at real risk of persecution by the state or its agencies elsewhere in Turkey, even if they were made aware of the thrust of the information maintained in his home area by telephone or fax enquiry from the airport police station or elsewhere, or by a transfer of at least some of the information to a new home area on registration with the local Mukhtar here. Internal relocation may well therefore be viable, notwithstanding the need for registration in the new area. The issue is whether any individual's material history would be reasonably likely to lead to persecution outside his home area."

18. The view of the Secretary of State in his decision letter, and the thrust of the submissions of Mr Greatorex, is that really IK makes no difference in this case. I have come to the conclusion that I simply cannot accept that. The central passage in the reasoning of the Immigration Appeal Tribunal is paragraphs 15 to 19. That passage is clearly firmly founded upon a number of authorities, which, as I have indicated, have been expressly replaced by the decision in IK. Most particularly, at paragraph 17 of their reasoning, the IAT said:

"We follow the Tribunal reasoning in O which has been confirmed but not to our knowledge undermined in any subsequent Tribunal determination."

Not long after that decision, the reasoning in O was specifically completely "replaced".

19. Some consideration has been given today to the written reasons of the Vice President when refusing leave to appeal to the Court of Appeal, which I have already quoted. Mr Greatorex submitted that paragraph 2 of those reasons indicates a view by the Immigration Appeal Tribunal that IK in some way supported, or reinforced, the decision that they had reached in this case.
20. I, for my part, do not read those reasons in this way. It seems to me that by paragraph 1 the Vice President was clearly saying that as they had correctly followed the current country guidance cases extant in August 2004 there was no error of law in their reasoning so as to make it susceptible of appeal to the Court of Appeal, which can only interfere if there is an error of law. It seems to me that by his paragraph 2, beginning with the word "However", and stating that IK "addresses inter alia the matters raised in the grounds of appeal", and then recording that the "former country guidance cases" upon which the immigration appeal had relied in this case had been expressly updated and replaced, Mr Moulden was flagging up the possibility in this case that there could be a fresh claim based upon IK.
21. In my view, the decision in IK inevitably meant and means, on the particular facts, in the present case, that a fresh claim to an adjudicator does have a reasonable prospect of success, bearing in mind what is stressed by Buxton LJ in WM(DRC) in paragraph 7 that:

"The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, ... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue, the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution."

22. If the applicant only has to satisfy "a somewhat modest test" before it becomes a fresh claim, it seems to me that in light of IK, and the manner in which the Immigration Appeal Tribunal had approached this case in paragraphs 15 to 19, the Secretary of State could only have concluded that there was, and is, a realistic prospect of success. For those reasons, this claim for judicial review succeeds.
23. Do I have to say or do anything more, or can you work out the consequences that follow? You seemed to encourage me earlier today to think that you could work it out.
24. MR GREATOREX: My Lord.
25. MR JUSTICE HOLMAN: What should I do? I quash the decision.
26. MR GREATOREX: Quash the decision and then I think probably a declaration would suffice, given who the defendant is.
27. MR JUSTICE HOLMAN: Can you and Mr Richmond work out a form of words, and a form of order, that is the appropriate and fair conclusion from what I have determined?
28. MR GREATOREX: Yes, my Lord.
29. MR JUSTICE HOLMAN: Lodge it with the associate, so I do not need worry about that anymore. What else follows, if anything?
30. MR RICHMOND: The claimant is publicly funded.
31. MR JUSTICE HOLMAN: No order for costs. You can put that in the order as well. Is there anything else I need to consider or do in this case?
32. MR GREATOREX: I would ask for permission to appeal.
33. MR JUSTICE HOLMAN: What is the error of law?
34. MR GREATOREX: What I would say, and I have only had a few seconds to digest the judgment, is that really looking at the final part of your Lordship's judgment and going through it there was no engagement, in my submission, apart from on the surface the fact that there was a reference to O which has been replaced with what there is in IK, apart from its actual existence and replacement of O that does actually make such a difference. The decision was for the defendant. I appreciate your Lordship certainly has a different view. In my submission, there is a realistic prospect that the Court of Appeal will take a different view.
35. MR JUSTICE HOLMAN: You can go and ask them, if you wish. I am saying that this is a fact-specific case. I have held that the Secretary of State must have concluded (must in the sense that he could only have concluded) that IK gives rise to a realistic prospect of success. I do not believe that I have made any error of law, or that a question of law arises. I think you have the right to renew this to the court, if you wish. Go and try it out on them.
36. Is there anything else in this case? Thank you very much, Mr Richmond.