Scottish Court of Session Decisions

The factual background to this petition for judicial review was not in dispute. The petitioner is a citizen of India, born on 7 March 1945. He arrived in the United Kingdom on or about 12 September 1982 and was given limited leave to enter the United Kingdom as a visitor. This was initially for one month, but was subsequently extended until 9 February 1983. It was a condition of his entry that he did not take up employment, whether paid or unpaid. On the expiry of his limited leave to remain the petitioner did not leave the United Kingdom. Instead, he stayed on without leave as an illegal over-stayer. On 9 September 1989 he was interviewed by an immigration officer, but at that interview assumed a false identity, namely, that of his brother Bhagat Singh, who holds a British passport. The petitioner's true identity only became known to the immigration authorities on or about 29 June 1990. It was only in the course of an interview on 30 June 1990 with the immigration authorities after the petitioner had been identified as an illegal over-stayer that he indicated a wish to apply for political asylum. A formal written application for asylum was made on or about 3 February 1991. This application was refused by the Secretary of State by letter from the Immigration and Nationality Department dated 20 August 1993 on the grounds that the Secretary of State was not satisfied that the petitioner had a well-founded fear of persecution in India for reasons of race, religion, nationality, membership of a particular social group or political opinion. On 24 October 1993 the petitioner was served personally with this letter, together with a notice of refusal to grant leave to remain and of intention to deport for over-staying his leave. The petitioner was then taken to Aikenhead Road Police Station, Glasgow and thereafter detained in Gateside Prison, Greenock. On 24 November 1993 he was served with removal directions. On 1 December 1993 the petitioner, through the agency of N.J.L. Brockbank of Leamington Spa, appealed against the decision to deport him. On 4 December 1993, through the agency of Dilip Deb, Solicitor, Glasgow, the petitioner appealed to the Special Adjudicator against the refusal of asylum on the grounds that the decision was "unfair and unjust and contrary to the 1951 U.N. Convention" and that the Home Secretary had failed to take into account compassionate grounds. The Special Adjudicator turned down this mixed appeal on 31 January 1994. The petitioner applied for leave to appeal against that decision. That was turned down by a decision of the Immigration Appeal Tribunal of 7 February 1994. A deportation order under section 5(1) of the Immigration Act 1971 was pronounced against the petitioner on 31 March 1994 and directions for his removal were sent on 27 August 1994. In September 1994 a petition was presented for judicial review of these decisions. On 9 February 1995 this petition was conceded on the advice of counsel. The matter was then remitted back to the Immigration Appeal Tribunal for reconsideration. The Tribunal sent the whole matter back to be reconsidered de novo by a different Special Adjudicator. This second Special Adjudicator, Mr M.E. Deans, issued a determination on 25 August 1995 refusing both appeals. The petitioner sought leave to appeal against that decision. On 6 September 1995 the Immigration Appeal Tribunal refused leave. On 9 September 1995 the petitioner was again served with a notice of intention to deport. On 24 December 1995 the petitioner was again detained in Gateside Prison, Greenock pending his deportation, which was fixed for 5 January 1996. On 29 December 1995 the petitioner presented a second petition for judicial review. This sought interim liberation from detention together with reduction on the grounds of unreasonableness of the decision of the Immigration Appeal Tribunal to refuse him leave to appeal a

In his determination of 25 August 1995 the Special Adjudicator found that he was unable to accept the credibility of the evidence advanced on behalf of the appellant to support his asylum appeal. He gave the following reasons for this conclusion:

Mr Collins, counsel for the petitioner, submitted that these reasons were inadequate. It was the duty of the Special Adjudicator in the circumstances to give reasons why the documents produced in support of the petitioner's appeal - the letter from Mr Chavan, the two letters from the petitioner's wife and the copy warrant of arrest - were rejected as not credible. The reasons given for the rejection of these documents were neither adequate nor comprehensible and disclosed unreasonableness in the adjudicator's assessment of the evidence. The Special Adjudicator had therefore erred in law.

As I understood the submissions of Mr Collins for the petitioner and Mr O'Neill, counsel for the respondent, there was no significant difference of view as to the law governing the question at issue. I was helpfully referred to the relevant statutory framework but, as nothing turns on it, there is no need for me to rehearse it here. Both counsel also agreed that the decision of the Immigration Appeal Tribunal stood or fell together with the determination of the Special Adjudicator. So there is no need for me to rehearse the submissions which Mr Collins made specifically in relation to the former. At the end of the day, therefore, the sole question at issue was whether the reasons given by the Special Adjudicator in his determination of 25 August 1995 were adequate in the circumstances. It was accepted that decisions of this kind call for the most anxious scrutiny (R v Secretary of State for the Home Department ex parte Bugdaycay 1987 AC 514, Lord Bridge of Harwich at p.531F; see also Secretary of State for the Home Department v Thirukumar 1989 Imm. A.R. 402, Bingham L.J. at p.414; and R. v Immigration Appeal Tribunal ex parte Omar Mohammed Ali 1995 Imm. A.R. 45, Sedley J. at p.47). That, however, is not to say that there is in some way a different standard in asylum cases from other types of case to which the well-known principles set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1 KB 223, apply. On the contrary the most anxious scrutiny to be given to asylum cases was to be seen as part of the application in such cases of the Wednesbury principles (Singh v Secretary of State for the Home Department 1998 S.L.T. 1370 per Lord Macfadyen at p.1374). The Asylum Appeals (Procedure) Rules 1996, which were the rules in force at the time, provided by Rule 2(3)(b) that the determination of the Special Adjudicator shall consist, inter alia, of a concise statement of the reasons for the decision. And those reasons must leave the informed reader and the court in no real and substantial doubt as to what the reasons for the decision were and what were the material considerations which were taken into account in reaching it (Wordie Property Co. Ltd v Secretary of State of Scotland 1984 S.L.T.345, Lord President Emslie at p.348; Safeway Stores plc v National Appeal Panel 1996 S.C. 37, Lord Justice Clerk Ross at pp.40-41). Moreover, the reasons for the determination must be sought in the written determination itself and nowhere else (Zia v Secretary of State for the Home Department 1994 S.L.T. 288, Lord Prosser at pp.291-292). It was therefore not enough that an adjudicator might in theory have had comprehensible reasons. Those cases were not asylum cases but the same approach had been adopted in such cases (R v Secretary of State for the Home Department ex parte Chutgai 1995 ImmAR 559; Singh v Secretary of State for the Home Department 1998 S.L.T. 1370; Mecheti v Secretary of State for the Home Department 1996 S.C.L.R. 998; Singh v Secretary of State for the Home Department, unreported, 9 September 1997; and Francois v Secretary of State for the Home Department 1999 S.L.T. 79). It was accepted, however, that what amounted to adequate reasons in any given case was a question of degree depending upon the facts and circumstances of that case.

Against this background Mr Collins examined the Special Adjudicator's determination in detail. He drew my attention to the documentary evidence which the Special Adjudicator recorded (on pages 2-3) as having been available to him. Then, on page 5, he comes to his actual determination. So far as the credibility of the petitioner himself was concerned, the view expressed by the Special Adjudicator must be based on the asylum interview which the petitioner had on 10 October 1992, because the petitioner himself did not give oral evidence before the Special Adjudicator. Mr Collins submitted that from the way the Special Adjudicator had set it out in his determination it appeared that he had come to a view of the petitioner's credibility before taking into account the documents which had been lodged in support of his appeal. That was not the proper approach. The proper approach was to assess all the evidence, comparing and contrasting one piece of evidence with another, and then come to a decision on credibility. Mr Collins's principal criticism, however, was directed at the Special Adjudicator's treatment of the documents. He submitted that the Special Adjudicator had given no reason for concluding that the letter from Mr Chavan lacked credibility. Nor did he explain why the letter did not contribute to the petitioner's claim for asylum. Furthermore, in respect of the two letters from the petitioner's wife it was impossible to tell from what the Special Adjudicator had said in relation to them what the reasons were for his rejecting their credibility. All he had said was that he had reached a similar conclusion in respect of their credibility "for similar reasons" but it was not possible to tell from the determination what those reasons were. The Special Adjudicator then went on to deal with the arrest warrant. He distanced himself from the criticisms made of it by the Immigration and Nationality Department in the letter of 20 August 1993. He went on, however, to state that even so the warrant added little, if anything, to the petitioner's case and that the petitioner had provided no explanation as to the reason for issuing the warrant. Mr Collins submitted that that was an unreasonable statement. The warrant was enclosed with the letter from Mr Chavan and should have been read along with it. The inference was that the warrant was in respect of a murder of which the petitioner knew nothing until after he had left India and was issued by the police who had in the past persecuted him for his political beliefs. The Special Adjudicator then went on to speculate that the warrant might have been issued for some reason totally unrelated to persecution under the 1951 Convention but it was not for him to speculate in that way. Assuming it was genuine (and it was on this premise that he was proceeding at this point) the question was whether there was a reasonable likelihood that it was related to the persecution which the petitioner claimed. The Special Adjudicator then concluded that "accordingly" he was not satisfied that the warrant was credible evidence in support of the petitioner's claim for asylum, given his reservations about the petitioner's credibility generally. If, however, the warrant was ex facie valid but might have been unrelated to persecution that was not a matter of credibility but at most one of relevancy. Moreover, in dealing with it in this way it lent support to the earlier submission that the Special Adjudicator had already come to a view of the petitioner's credibility before taking into account the documents which had been lodged in support of his appeal. Thereafter the Special Adjudicator referred to a further submission in relation to an alleged discrepancy between the appellant's asylum application dated 3 February 1991 and his asylum interview record of 10 October 1992. He concluded his remarks in relation to that by saying that "in my

In summary Mr Collins submitted that the adjudicator's reasons, when looked at in their entirety, did not survive the high standard of examination which it was appropriate to give them. The documents which were relied on by the petitioner had been rejected as incredible, either for no reason at all or for a reason which was not reasonable. That, said Mr Collins, was an error in law which went to the heart of the matter and disclosed a fundamental error in the approach of the adjudicator to the petitioner's credibility, which was the basis of his refusal of the asylum appeal. For that reason the Special Adjudicator's determination should be reduced.

In reply Mr O'Neill said that the issue between the parties was a narrow one, namely, whether the reasons given by the Special Adjudicator in his determination for rejecting the documentary evidence relied on by the petitioner were adequate in the circumstances. Mr O'Neill submitted that in order to assess the circumstances one had to look at the factual background and he reminded me of it. Against that background the Immigration and Nationality Department had written their letter of 20 August 1993 to the petitioner refusing his application of asylum. Thereafter the petitioner chose not to give oral evidence to the Special Adjudicator. Accordingly, since it was for him to satisfy the Special Adjudicator that he was entitled to asylum, he had not taken advantage of the opportunity to counter inferences which might otherwise be drawn. I was taken through the letter of 20 August and Mr O'Neill submitted that in that letter the petitioner was put on clear notice that both he and the documents that he had produced in support of his claim were not accepted as credible and why. This document was the basis for the submissions made by Mr Deb, the petitioner's solicitor before the Special Adjudicator. So it was against that background and in that context that the Special Adjudicator said what he did on pages 5 and 6 of his determination. It was too technical to say that in these circumstances the Special Adjudicator had not given sufficient reasons for his decision when the situation was that the petitioner had the letter of 20 August 1993, he knew what it said and he could understand what the Special Adjudicator was actually saying in his determination. In context the determination made perfect sense. It was quite clear and comprehensible to the person to whom it was addressed. That was the approach adopted by Lord Penrose in Mohammed Asif, unreported, 12 January 1999. In these circumstances the determination of the Special Adjudicator passed the test with regard to the giving of reasons.

In my opinion the submissions made by Mr Collins on behalf of the petitioner are not well-founded. With regard to the point he made concerning the Special Adjudicators' approach to dealing with the credibility of the petitioner himself no doubt the credibility of a witness is to be judged by reference not only to his own evidence but to the other evidence in the case and that involves an exercise of comparing and contrasting one with the other. However, I think it is perfectly appropriate for the judge of credibility to assess the evidence of the principal witness as it stands and as a preliminary. After all, that must happen with the first witness in every case. No doubt the initial view may be affected one way or another by subsequent evidence. That is how the Special Adjudicator dealt with the matter here. He dealt with the petitioner's credibility as an initial question before going on to consider whether that initial view had been affected one way or another by the subsequent evidence produced in the form of the documents referred to. I think that was a perfectly legitimate approach. So I do not consider that the Special Adjudicator misdirected himself on this point.

With regard to whether the Special Adjudicator has adequately given reasons for his rejection of the documents lodged in support of the petitioner's appeal I accept that the reasons must be found in the determination itself (Zia v Secretary of State for the Home Department 1994 S.L.T. 288; Singh v Secretary of State for the Home Department 1998 S.L.T. 1370). I therefore do not accept the approach advanced by Mr O'Neill insofar as he submitted that in the circumstances here one could read the determination and the letter of 20 August 1993 from the Immigration and Nationality Department together and that in effect the Special Adjudicator had adopted the reasoning of the Department in that letter. Of course, in a determination a Special Adjudicator might incorporate specifically something that was said in another document, but then that should be clear from the determination itself. It might appear at first sight here that the Special Adjudicator's ultimate rejection of the credibility of the documents relied on in support of the petitioner's claim for asylum was based on what was said in the letter of 20 August 1993. But the Special Adjudicator did not say that and, indeed, at least in one respect, he rejected what was said in that letter. He said it would be wrong of him not to accept the credibility of Mr Chavan's letter on the basis of mere assertion by the Immigration and Nationality Department in that letter that the Secretary of State was aware of at least one other asylum case in which a supporting letter from Mr Chavan was submitted, together with a copy of what was alleged to be a warrant for the applicant's arrest, and on investigation this document was not found to be genuine. In this regard, therefore, the Special Adjudicator specifically rejected the reasoning of the Immigration and Nationality Department. So I do not think it is correct to say that the Special Adjudicator based his decision on what was said in the letter of 20 August 1993. It is true that he reached the same overall conclusion as the Department but, when his determination is read fairly, it appears to me that he did so for reasons which were his own. As I read his determination, he rejected Mr Chavan's letter because it was written some time after the petitioner had applied for asylum, which application was itself made only after the petitioner was detected by immigration officers having exceeded his leave to remain in the United Kingdom by several years. For these reasons he found the letter lacking in credibility. In my opinion, therefore, the Special Adjudicator did give reasons for rejecting Mr Chavan's letter. Moreover, in my view they were perfectly comprehensible reasons and, having regard to the factual circumstances, could not be said to be unreasonable ones.

Once the reasons for the rejection of Mr Chavan's letter are properly understood there is in my opinion no difficulty in understanding the "similar reasons" for rejecting the letters from the petitioner's wife. Mr Collins made the point that "similar" was not the same as "the same" and there was no explanation of what these "similar" reasons were. I do not think there is any substance in this point. Carefully as documents such as these must be considered and scrutinised, they are not in my opinion to be read as conveyancing documents. In ordinary parlance "similar" is often used as the equivalent of "the same". In my opinion, again giving the determination a fair reading, that is what the Special Adjudicator did here.

I reject also Mr Collins's criticisms of the Special Adjudicator's treatment of the arrest warrant. When read fairly I think that all the Special Adjudicator was saying that in the absence of explanation as to the reason for the issuing of the warrant he was not satisfied that it was related to persecution under the 1951 Convention, which, of course, he had to be (and the onus was on the petitioner) if he was to put any weight upon it. He was therefore rejecting it as of no value in so far as the petitioner was trying to establish his case for asylum, a conclusion which was merely underlined by his view of the petitioner's credibility. Now no doubt the Special Adjudicator might have put it differently and better - that would usually be so no matter what was said - but I do not think that the way it was put here discloses any unreasonableness or error in law on the part of the Special Adjudicator.

There remains the submission in respect of the Special Adjudicator's statement that Mr Deb, the solicitor for the petitioner, made several other points in his submission but did not specify what those were, contenting himself only with saying that given his overall findings on credibility, they did not materially affect the outcome of this appeal. Mr Collins did not submit that there were any other points made by Mr Deb which might have affected the outcome of the appeal. I think, therefore, that this becomes merely a technical point without any real substance. No doubt it might sometimes be wiser for the Special Adjudicators to detail all the submissions that were made to them, at least when the submissions fall within a narrow compass. But it was not suggested that there is any general requirement for Special Adjudicators to set out all the submissions made to them and in my opinion there is no such requirement. In such a situation as exists here, where it is not suggested that there were any submissions of a material kind which the Special Adjudicator failed to take into account, I do not think that the Special Adjudicator erred in law by treating the matter in the way that he did.

In my opinion, therefore, the reasons given by the Special Adjudicator were adequate in the circumstances and disclosed no error in law. As I noted earlier, it was accepted by both counsel that the decision of the Immigration Appeal Tribunal to refuse leave to appeal stood or fell with the determination of the Special Adjudicator. I shall accordingly sustain the first plea-in-law for the respondent and dismiss the petition.