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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ruslanus Irzekevikius, Re Application For Judicial Review [1999] ScotCS 172 (14 July 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/172.html
Cite as: [1999] ScotCS 172
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OUTER HOUSE, COURT OF SESSION

 

P12/14A/98

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACFADYEN

 

in Petition

 

of

 

RUSLANUS IRZEKEVIKIUS

 

Petitioner;

 

For

 

Judicial Review of decisions of the Secretary of State for the Home Department, a Special Adjudicator and the Immigration Appeal Tribunal.

 

 

________________

 

 

Petitioner: Sutherland; Lindsays, W.S. (for Gray & Co, Glasgow)

Respondent: Lindsay; Scottish Office

 

14 July 1999

Introduction

The petitioner is Lithuanian. He was born on 11 November 1973. He came to the United Kingdom in July 1994, and was granted leave to enter for six months. In October 1994 he applied for political asylum. By decision letter dated May 1997 and served on the petitioner on 9 August 1997 his application for political asylum was refused. The petitioner appealed against that decision, and a hearing took place before a Special Adjudicator on 14 October 1997. The Special Adjudicator's determination dismissing the appeal was issued on 5 January 1998. The petitioner then applied to the Immigration Appeal Tribunal ("the Tribunal") for leave to appeal against the Special Adjudicator's determination. That application was refused by the Chairman of the Tribunal on 13 January 1998. In this petition, which was presented on 19 February 1998, the petitioner seeks to bring under judicial review the decision of the respondent, the determination of the Special Adjudicator and the refusal of leave to appeal to the Tribunal. He seeks declarator that each of the decisions was unreasonable and wrong in law, and reduction of each of the decisions. He was granted interim liberation on 19 February 1998. His crave for suspension of a removal direction does not now arise because the removal direction was cancelled administratively on presentation of the petition.

 

Scope of the Petition

It is convenient, before turning to the substance of the submissions which Mr Sutherland made on behalf of the petitioner, to consider the scope of the petition. As I have already indicated, the remedies which the petitioner seeks are set out in statement 3 of the petition as (1) declarator that (a) the decision of the respondent, the Secretary of State for the Home Department, dated May 1997, (b) the determination of the Special Adjudicator promulgated on 5 January 1998 and (c) the determination of the Tribunal dated 13 January 1998 refusing leave to appeal were all unreasonable and wrong in law, and (2) reduction of each of those three decisions. Mr Sutherland's submission was that I should grant the petitioner all of those remedies, to the effect of leaving the petitioner's application for political asylum once more before the respondent for determination. Mr Lindsay for the respondent, however, submitted that I should go no further back through the decision-making process than was necessary to afford the petitioner a remedy, and that accordingly I should, if persuaded that the petitioner's attack on the validity of the Tribunal's refusal of leave to appeal was well-founded, grant declarator in relation to, and reduction of, that decision only, to the effect of leaving the application for leave to appeal before the Tribunal for determination anew in light of my decision.

The decision-making scheme which applies in relation to applications for political asylum is that the application is first considered by the respondent; from an adverse decision at that stage an applicant has a statutory right of appeal to a Special Adjudicator; that appeal is not restricted to a review of the respondent's decision, but takes the form of a complete re-hearing of the application, at which the applicant is entitled to lead such evidence and make such submissions as he chooses; there is a further right of appeal to the Tribunal, for which leave is required, and at any such appeal the introduction of further evidence and the possibility of remit to the Special Adjudicator are matters within the Tribunal's discretion. There is no statutory right of appeal from a decision of the Tribunal refusing leave to appeal to it, and consequently (as is not a matter of dispute in this case) such a decision is susceptible to judicial review. In an application to this court for judicial review of a refusal by the Tribunal of leave to appeal to it, the question for determination is whether the Tribunal's refusal of leave was invalid. It was not disputed in the present case that if it were shown that the Tribunal had refused leave to appeal in circumstances in which there was an arguable case that the Special Adjudicator's decision was erroneous in point of law or invalid, the Tribunal's decision would fall to be set aside. What was, however, disputed was whether this court should, in these proceedings, go further back into the decision-making process and set aside the Special Adjudicator's determination, or entertain an attack on the validity of the original decision by the respondent.

In the course of the first hearing before me that issue was discussed, but was not made the subject of full citation of authority. I therefore propose to confine my decision to the circumstances of this case. I am not persuaded that it would be appropriate in this process to review the respondent's original decision of May 1997. That was a decision from which the petitioner had a statutory right of appeal (Asylum and Immigration Appeals Act 1993, section 8). He exercised that right. Although he did not in the event submit to the Special Adjudicator any oral evidence, it was open to him to submit such evidence and to make such submissions as he and his advisers chose, untrammelled by the scope of the material considered in the respondent's decision. The question for the Special Adjudicator was whether the petitioner's removal from the United Kingdom would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees (1993 Act, section 8), i.e. whether a case for asylum had been made out before him. The Special Adjudicator's duty was to allow the appeal if he considered that the respondent's decision was not in accordance with the law or any applicable immigration rules, or that the respondent's discretion should have been exercised differently (Immigration Act 1971, section 19(1), as applied to asylum cases by paragraph 4 of Schedule 2 to the 1993 Act). The respondent's decision, and all the material contained in it, formed part of the material before the Special Adjudicator, but was not definitive of the matters which he was entitled to consider. In these circumstances it seems to me that the appeal to the Special Adjudicator afforded the petitioner a full remedy against any error or inadequacy in the respondent's decision, and there is no proper basis on which it could be held to be appropriate for this court in these proceedings to undertake judicial review of that decision. Mr Sutherland submitted that the flaws which he said were present in the respondent's decision "poisoned" the whole proceedings, so that the matter could not be put right by way of the statutory appeal process, and could not be remedied otherwise that by judicial review. I am not persuaded that there is any merit in that submission. Having regard to the fact that before the Special Adjudicator the petitioner could have adduced whatever evidence he considered was necessary to correct any errors of fact disclosed in the respondent's decision, and could have made any submissions that he chose about errors in law or defects in reasoning disclosed in that decision, and was entitled to have the issue of whether he had made out a case for political asylum determined de novo by the Special Adjudicator, I am unable to understand how the respondent's decision can be said to have "poisoned" the whole proceedings in such a way as to have rendered the statutory appeal process ineffective. I am of opinion that in the circumstances of this case, the petitioner having exercised his statutory right of appeal to the Special Adjudicator, nothing has been said in argument before me which justifies judicial review of the respondent's decision of May 1997.

I am also of opinion that it would be inappropriate for me to entertain a direct attack on the validity of the Special Adjudicator's decision. It was not suggested that there were any circumstances in which ground for review of that decision could be made out while ground for review of the Tribunal's refusal of leave to appeal was not made out. The attack on the validity of the Tribunal's decision depended on the proposition that there were flaws in the Special Adjudicator's determination which the Tribunal should have recognised as justifying the grant of leave to appeal. It is therefore necessary for me to consider the criticisms which were made of the Special Adjudicator's determination. But it does not follow, in my opinion, that it would be appropriate for me, if satisfied that there were defects in the Special Adjudicator's decision, to deal with them myself by declarator and reduction, and cut out the statutory role of the Tribunal as the forum for appeals against erroneous or invalid decisions by the Special Adjudicator. Mr Sutherland pointed to the fact that on appeal before the Tribunal, further evidence could only be introduced if the Tribunal in its discretion permitted it (Immigration Appeals (Procedure) Rules 1984, rule 18, as applied by the Asylum Appeals (Procedure) Rules 1993, rule 22(2)), whereas if I reduced the Special Adjudicator's decision, the appellant would, in the further hearing before a Special Adjudicator which would then require to take place, be entitled to lead such evidence as he chose. That is no doubt so, but the statutory scheme defines the scope for further evidence in an appeal from the Special Adjudicator to the Tribunal, and Mr Sutherland's submission is simply a plea to be released from such restrictions as that scheme imposes. If before the Tribunal on appeal a good case can be made out for the introduction of further evidence, the Tribunal has power to allow it. If, before the Tribunal on appeal, good reason for a remit to the Special Adjudicator can be made out, the Tribunal has power to make such a remit. It therefore seems to me that the statutory scheme makes proper provision regulating the scope for further investigation of matters of fact at the appellate stage, and that there is no basis for this court interfering in that scheme by cutting out the proper role of the Tribunal, and in effect sending the case back for rehearing before a Special Adjudicator. Mr Sutherland referred to Mecheti v Secretary of State for the Home Department 1996 SCLR 998 as an example of a case in which, having held that the Tribunal should have granted leave to appeal, the Lord Ordinary granted reduction both of the refusal of leave and also of the determination of the Special Adjudicator. It does not appear, however, from the report of that case that the respondent objected to that course being followed, or that the point which I have been considering was discussed. Mr Sutherland also founded on what he described as a practical consideration, namely that if the case returned to a new hearing before a Special Adjudicator, that could take place within a month, whereas if it returned to the Tribunal, three months were likely to expire before a hearing. That does not seem to me to be an adequate basis for departing from what I regard as the proper approach to the matter.

In my opinion this court, when called upon to exercise its supervisory jurisdiction, should interfere in the proceedings of subordinate tribunals only to such extent as is necessary to afford a proper remedy against excess or abuse of jurisdiction where none is otherwise available. In the present case, if it were shown that the Tribunal refused leave to appeal where such leave ought to have been granted, that would be ground for setting aside the refusal of leave. But once reduction of the determination refusing leave was granted, the application for leave would come before the Tribunal for determination de novo in light of the decision of this court. It is to be expected that that would ordinarily result in leave being granted. The procedure would then be restored to the position in which it would have been if the error which justified this court's intervention had not occurred. I am therefore of opinion that the proper and only remedies to which the petitioner may be entitled in this process are declarator of the invalidity of the Tribunal's determination refusing leave to appeal, and reduction of that determination.

 

The Grounds of the Petition

The grounds on which the petitioner claims he ought to have been given leave to appeal to the Tribunal against the Special Adjudicator's determination are set out in statement 8 of the petition. They may conveniently be regarded as falling into three parts. The first part concerns the Special Adjudicator's purported application of the test for determining whether the petitioner has made out his case for asylum. The second concerns the adequacy of the reasons given by the Special Adjudicator for not accepting those parts of the petitioner's evidence that he did not accept. Under that broad heading a number of separate points were put forward. The third part of the petitioner's case concerns the Special Adjudicator's treatment of the fact that the petitioner did not make his application for asylum immediately on his arrival in the United Kingdom. It is convenient to consider each of these aspects of the petitioner's case in turn.

 

The Test for Asylum

Mr Sutherland drew my attention to the authorities which he submitted set out the test to be applied in determining an asylum application. The starting point is to be found in Rule 180B of the Immigration Rules made by the respondent under section 3(2) of the Immigration Act 1971, which provides that:

"A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (a) he is in the United Kingdom ... and (b) he is a refugee ... and (c) refusing his application would result in his being required to go ... in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion ...".

Article 1A(2) of the United Nations Convention and Protocol relating to the Status of Refugees defines a refugee as a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

The applicant for asylum must therefore show that he fears that, if he returns to his own country, he will suffer persecution for a Convention reason. In addition, his claim for asylum will be liable to be refused if his fear is not "well-founded". The meaning of "well-founded" was explained in R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, per Lord Keith of Kinkel at 994F:

"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country."

(See also per Lord Goff of Chieveley at 1000F.) Mr Sutherland also relied upon Kaja v Secretary of State for the Home Department [1995] Imm AR 1, in which an Immigration Appeal Tribunal held that the lower standard of proof - a reasonable degree of likelihood - applied to the assessment of accounts of past events as well as to the likelihood of persecution in the future. He referred also to a passage in the majority determination (at page 9), where the view is expressed that:

"... it is not enough for an adjudicator to know in his own mind that he is applying the principles set out in Sivakumaran and it is not enough for some general reference to be made to that case. It must be made plain that the criteria of that case have been applied - the most direct and effective way of accomplishing this is to set out in full the passage from Lord Keith which we have cited. [The] adjudicator should make clear the view taken of the credibility of aspects of the evidence including any evidence about which the adjudicator remains uncertain and ... it must be demonstrated how by a reasoning process the adjudicator translates his findings on the credibility of the evidence to his evaluation of the case as a whole, according to the criterion of 'a reasonable degree of likelihood'".

In the present case the Special Adjudicator made reference to Sivakumaran and Kaja. What he said was:

"It is for the appellant to establish his claim to asylum. For the purposes of this appeal, I follow Kaja ... which extended the ambit of the reasonable likelihood test from the general criterion of a well-founded fear of persecution (Sivakumaran ...) to the standard of proof for proving the facts relied on to establish that fear. The relevant evidence is whatever in the past, present or future has any real bearing on the existence of such fear as at the date of hearing."

Later, having considered the petitioner's account of what had happened to him, and having concluded that he did not believe that the petitioner left his country because he was in fear or that he was in fear at the time of the hearing, the Special Adjudicator went on to say:

"Even if his account was true and he was in fear, I would have to be satisfied that such fear was reasonable."

He then considered material drawn from certain reports and concluded that the petitioner would now be at no risk of persecution.

Mr Sutherland's submission was that the Special Adjudicator had failed to make it clear (i) that he had properly understood the test to be applied and (ii) that he had in fact applied it. Although he made reference to the cases and to the reasonable likelihood test, he then mis-stated the test when he said that he would have to be satisfied that the petitioner's fear was "reasonable". That might, Mr Sutherland submitted, be regarded as setting too high a standard.

Mr Lindsay for the respondent submitted that on a fair reading of the Special Adjudicator's determination it was clear that he had had the proper test in mind, and that the test had been properly applied. The reference to consideration of whether the petitioner's fear was "reasonable" should not be taken out of context. In any event, if the use of that language did disclose a misdirection, it was a misdirection in the petitioner's favour, since it was possible to figure circumstances in which a fear could be reasonable yet not well-founded, whereas any well-founded fear would necessarily be reasonable.

I have no difficulty in accepting, as I am bound by the decision in Sivakumaran to do, that for a fear of persecution to be held to be well-founded it must be demonstrated that there is "a reasonable degree of likelihood" that such persecution will take place if the applicant returns to his own country. A "well-founded fear" therefore contains a subjective element and an objective element. Whether the applicant in fact entertains a fear of persecution is a subjective matter. Whether that fear is well-founded in the sense that persecution is reasonably likely to occur is to be assessed objectively. That objective assessment may include consideration of the past events which have provoked the fear, but it may also involve examination of current circumstances in the applicant's country to see whether objective ground for fear still remains. The criticism which Mr Sutherland advanced against the Special Adjudicator's treatment of the test was, as I understood it, concerned in part with whether he had made it adequately clear that he understood and was seeking to apply the correct test, and partly with whether it could be seen that he had in fact applied the wrong test.

I am not persuaded that there is merit in the contention that the Special Adjudicator failed to make clear that he had the correct test in mind at the outset of his consideration of the petitioner's case. He correctly identified that the onus of establishing his asylum claim rested on the petitioner. He made reference to Sivakumaran as the source of the "reasonable likelihood test" as the general criterion of a well-founded fear of persecution. He did not, of course, do what the Immigration Appeal Tribunal suggested in Kaja should always be done, namely quote ad longum from Lord Keith's speech. I do not, however, regard that as fatal. There are ways of making it clear that the test has been understood and applied without such quotation. It seems to me to be doubtful whether requiring such quotation as a matter of form and routine would necessarily improve the prospect of Special Adjudicators properly applying their mind to the appropriate test. In the present case it is in my view sufficiently clear from a fair reading of the determination as a whole that the Special Adjudicator properly identified that he had to consider whether there was a fear of persecution which was well-founded, and that he had to reach his conclusion on that matter by considering whether there was a reasonable degree of likelihood that the petitioner would be persecuted if he returned to Lithuania.

The fact remains, of course, that at a later stage of his determination the Special Adjudicator asked himself (hypothetically, because by that stage of his decision he had held that the applicant was not in fact in fear of persecution) whether, if the petitioner was in fear, that fear was reasonable. That was, at best, an elliptical way of putting the point. The correct question was whether any such fear would be well founded, and that would have led on to the question whether persecution was reasonably likely to occur. I am not, however, persuaded that I should hold that the fact that the Special Adjudicator expressed himself in that way invalidates his decision. It is worth noting the stage that he had reached in the decision-making process when he posed for himself the question so expressed. He had by then considered the petitioner's evidence that he was in fear of persecution, and the basis in historical events on which he claimed to be in such fear. Leaving aside for the present the question whether the Special Adjudicator's reasoning on that aspect of his decision stands up to critical examination, it is clear that the conclusion which he reached was that he did not believe either that the petitioner left Lithuania because he was in fear of persecution or that at the time of the hearing he was in fear that if he returned he would be persecuted. He thus went further than merely holding that the historical events did not support the objective inference that persecution was reasonably likely to occur if the petitioner returned to Lithuania. He regarded his examination of the historical events as sufficient (taken with the point about delay in making the asylum application) to justify rejection of the petitioner's evidence of subjective fear. It was in those circumstances that the Special Adjudicator went on to consider the material which had been placed before him relating to the more recent state of affairs in Lithuania. The relevancy of that material was that a genuine fear of persecution, well-founded in origin in historical events, might cease to be well-founded if circumstances in the country had changed materially from the date when the fear first arose. It was in introducing his consideration of that aspect of the matter that the Special Adjudicator said that he had to be satisfied that fear of persecution was "reasonable". His conclusion was that in light of current circumstances in Lithuania the petitioner would not now be at risk of persecution. In my view on a fair reading of all that the Special Adjudicator said it is reasonably clear that in substance he applied the proper test in determining whether any fear of persecution entertained by the petitioner was well-founded. His use of the word "reasonable" shows that he was considering whether the fear asserted by the petitioner had a continuing objective basis. Although to ask whether fear of persecution is reasonable is not precisely the same as to ask whether there is a reasonable degree of likelihood that persecution will occur, it does not seem to me that to put the matter in the former way sets a stiffer test for the petitioner to pass. If anything it seems to me that it sets a lower test. Any error of approach which might be inferred from a consideration, in isolation, of the Special Adjudicator's use of the word "reasonable" therefore does not seem to me to be an error which could prejudice the petitioner. That apart, however, it seems to me that the conclusion which the Special Adjudicator reached was that the material which he considered demonstrated that persecution was unlikely. If that was what the evidence showed, the petitioner had failed to demonstrate that there was a reasonable degree of likelihood of persecution.

For these reasons I am of opinion that the first basis on which the petitioner argued that the Tribunal erred in refusing leave to appeal is not sound.

 

The Adequacy of the Special Adjudicator's Reasons

There was no dispute between the parties that the Special Adjudicator was under a duty to set out the reasons for his decision. There was, however, a difference at least of emphasis as to the proper approach by this court to the question whether the Special Adjudicator had given adequate reasons. Mr Sutherland referred to my own decision in Singh v Secretary of State for the Home Department 1998 SLT 1370 in which I said (at 1374J):

"From cases such as Mecheti v Home Secretary 1996 SCLR 998 and Chinder Singh 1997 GWD 43-1738, I adopt the collation of three dicta which cast light on the duty to give reasons, namely:
  1. "The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at 348);
  2. "Adjudicators should indicate with some clarity in their decisions (1) which evidence they accept, (2) what evidence they reject, (3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it, and (4) what, if any, evidence they regard as irrelevant" (R v Immigration Appeal Tribunal, ex parte Amin, [1993] Imm AR 367 per Schiemann J at 374); and
  3. "If there is a question of disbelieving anything an applicant has said that ought to be spelt out. It is obviously desirable to indicate specifically why any witness is being disbelieved" (R v Home Secretary, ex parte Chugtai, [1995] Imm AR 559, per Collins J at 565)."

Mr Lindsay submitted that it was important that, in scrutinising the reasons expressed by the Special Adjudicator, the court should read the reasons as a whole, should not take passages out of context and should not treat the decision as if it were a statute (R v Secretary of State for the Home Department, ex parte Guhad [1997] Imm AR 1, per Jowitt J at 3 and 4). The proper approach was that set out by Lord Emslie in Wordie Property. There was a danger of going too far in following what was said by Schiemann J in Amin and Collins J in Chugtai. As Lord Penrose pointed out in Mohammed Asif, Petitioner (12 January 1999, unreported, at page 10):

"... nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevancy, or irrelevancy, credibility and reliability or otherwise of it".

Reference was also made to Sohil Kashmire v Secretary of State for the Home Department (Lord Kingarth, 26 January 1999, unreported), and to Daljit Singh (Lady Cosgrove, 20 November 1998, unreported) in which the matter was formulated in this way:

"... a special adjudicator, like any decision maker in a comparable role, must give clear and adequate reasons which deal with the substantial questions at issue in an intelligible way".

The passage in the Special Adjudicator's determination in which he dealt with the petitioner's evidence was in the following terms:

"The appellant's claim is that while at school in the late 1980's he was opposed to the then Communist system. As a result he suffered problems from the school authorities and in an incident in February 1988 at a war memorial was attacked. I am prepared to accept that such incidents did happen and that they may well have happened because people were opposed to his anti-Communist political views.

I accept also that in 1989 he joined the Sajudis movement. It seems that his activities for the movement were low-level, for example, organising pupils at his school and distributing leaflets and newspapers.

He claims to have, in Spring 1994, again been attacked and beaten. His flat was also broken into. He presumed these incidents happened because of his politics. He further claims that later in 1994 his phone was tapped and mail opened. Also a cow which he owned was killed. He took this as a threat. He also had difficulty getting work which he attributed to his affiliation to the Sajudis.

It may well be that he was attacked and his flat broken into. If these incidents did happen, I do not believe they had anything to do with his politics, but rather were simply criminal acts. I do not believe that his phone was tapped or his mail interfered with. Quite why such hostile and detailed interest should have been taken in the appellant for his extremely low-level activities for a legal movement is unclear, particularly as he seems to have suffered no significant problems between 1989 and 1994. It may well be that his cow was killed. I do not believe his claim that such was a warning that 'we now have found you' (A10). Nor do I believe that uniformed men came looking for him and the reason was that former Communists now in government wanted to settle old scores (A10). Again such extreme interest in the appellant for his past very minor activities makes no sense.

As for the appellant's difficulties in getting work, such may well be so. I do not believe, however, that such was because of his political views. I note from the Europa Yearbook (on file) that during the early 1990's the government embarked on a comprehensive programme of market-orientated reforms. However, the increase in fuel prices and the disruption of trading relations with countries of the former USSR led to a severe decline in industrial productivity and a consequent decrease in living standards. In such a climate, it is not surprising that the appellant might have had difficulty in getting work."

Later he added:

"It seems that he does not claim to now be of interest to the authorities but to ex-Communists who are part of the government. I do not believe he is of interest to anybody.

Even if his account was true and he was in fear, I would have to be satisfied that such fear was reasonable. The US State Department report for 1996 states that Lithuania is a parliamentary democracy. The government 'generally respects the human rights of its citizens'. There were no reports of political or other extrajudicial killings or politically motivated disappearances. There were no reports of torture. The government generally respected freedom of speech and of the press. It respected the right of citizens to associate freely.

The report also states that the judiciary are independent. Also the authorities do not engage in discrimination or widespread monitoring of the correspondence or communications of citizens. I conclude that the appellant would now be at no risk for his long past, low-level activities for a legal political organisation. As [the Home Office presenting officer] indicated, the Europa report states that at elections in 1996 the Conservative Party took the majority of seats in parliament. The report states that the CP comprised mainly former members of Sajudis.

Even if for some reason individual communists had a hostile interest in him, which I do not believe, I see no reason to doubt that the authorities would be willing and able to protect him. I note from the US State Department report that the Communist Party and other organisations associated with the Soviet regime continue to be banned."

In the petition a number of points are made which are critical of the way in which the Special Adjudicator explained his reasons for his decision, and the majority of these were elaborated upon by Mr Sutherland in his submissions.

  • The basic point which Mr Sutherland developed was that the Special Adjudicator had failed to give any adequate explanation for disbelieving those aspects of the petitioner's evidence which he disbelieved, when he had in other respects accepted that the incidents of which the petitioner complained had occurred.
  • So far as the incidents in the spring of 1994 were concerned, the Special Adjudicator gave no reason for finding that these were simply criminal acts, and disbelieving the petitioner's evidence that they related to his politics. Mr Sutherland pointed to the evidence given by the petitioner at page A10 of the file before the Special Adjudicator (No. 7/6 of process), where he said:

"Once again I was beaten up a few times. These were not ordinary beatings because nothing was taken from me. They would just beat me up and then run away. We had two break-ins in our flat, everything was thrown upside down but once again nothing was taken."

The absence of any element of taking of property supported the petitioner's claim that the incidents were not merely criminal, but were politically motivated. It was incumbent on the Special Adjudicator to explain his reason for rejecting the petitioner's evidence that there was a political motive.

  • If the Special Adjudicator's explanation for his rejection of that aspect of the petitioner's evidence, and of his evidence that his telephone was tapped and his mail interfered with, was to be found in his view that the petitioner's political activity was low-level, that disclosed an error on his part. Mr Sutherland referred to Debrah v Secretary of State for the Home Department [1998] Imm AR 511, where the point was made that:

"Abuses do occur, and to that extent no guarantee can ever be given to anybody, whether a low profile former political 'bag-carrier', or a high profile activist."

The Special Adjudicator had erred, he submitted, in thinking that the fact that the petitioner's political activity had been at a low level meant that there was no likelihood that he would be persecuted.

  • The Special Adjudicator had, in any event, misunderstood the nature of the petitioner's fear. He was not claiming to be in fear of persecution by the current government of Lithuania. What he feared was persecution by former political opponents, former Communists, who had obtained positions under the present government and could use their positions of authority to undertake persecution against which the state would not adequately protect him. It appeared that the Special Adjudicator, in referring to "former Communists now in government" and to "ex-Communists who are part of the government", thought that the petitioner feared persecution by the present government.
  • Mr Sutherland further criticised the Special Adjudicator's reasoning as set out in the fifth and seventh paragraphs on page 4 of his determination, which each begin with the words "Even if". Mr Sutherland cited an unreported decision of the Immigration Appeal Tribunal (Nazim Ozer v Secretary of State for the Home Department, 13 January 1997, Appeal No. HX/62317/96) in which it was said:

"It is true that [the Special Adjudicator] made "even if" provisions. However, making decisions in the alternative is not an unacceptable practice but there must be very clear statements of the primary findings, a clear enunciation of what the alternative is and then of the alternative finding".

The reasoning of the Special Adjudicator in the present case, it was submitted, did not attain that standard.

  • Next, Mr Sutherland submitted that the treatment of the US State Department report in the fifth paragraph on page 4 of the determination was unsatisfactory. The point that there were no reports of torture was taken from a passage (No. 7/1 of process, page 2, paragraph c) which went on to discuss the incidence of police brutality, and the reluctance of victims to bring charges. That point was made on the petitioner's behalf before the Special Adjudicator, and recorded as such in the second paragraph of page 3 of the determination, but went un-mentioned in the reasons.
  • The Special Adjudicator's treatment of the employment point in the first paragraph on page 4 of the determination was criticised on the basis that the unemployment rate of 6.3% mentioned in the source relied upon (No. 7/2 of process, page 2068, col. 1, fourth paragraph) was not so obviously high as to preclude the petitioner from working. It was not a sufficiently obvious explanation for the petitioner's difficulty in obtaining employment to constitute good reason for disbelieving the petitioner's claim that his difficulty stemmed from his political views.

Mr Lindsay submitted that the Special Adjudicator's reasons were sufficient when judged by the Wordie Property test. Infelicities in expression were not enough to invalidate the decision. There was no real and substantial doubt as to the Special Adjudicator's reasons for his decision. It was clear that he had held that the evidence did not establish a well-founded fear of persecution. It was clear what evidence had been taken into account in reaching that conclusion. Where evidence was not believed, the reasons for rejecting it were adequately expressed. There was no error disclosed in the weight which the Special Adjudicator had attached to his finding that the petitioner's political activities had been at a low level.

I adhere to the view which I expressed in Singh as to the dicta from which guidance on the adequacy of the reasons expressed by a decision-maker may be derived. But I also think it right to have regard to Lord Penrose's timely warning in Mohammed Asif against carrying that guidance to the inappropriate length of expecting from a Special Adjudicator a point-by-point treatment of every detail of the evidence which he heard, and a detailed and individual explanation of his reason for rejecting those pieces of evidence which he disbelieved. The extent of the detailed reasoning required will depend on the circumstances of the case. Moreover, as was pointed out in Guhad it is necessary to read the determination as a whole and avoid the error of examining the adequacy of individual sentences, detached from the over-all context. What the Special Adjudicator had to do in the present case was decide whether the petitioner had established that he was in well-founded fear that if he returned to Lithuania he would be persecuted for Convention reasons. He held that he had not. The Special Adjudicator was obliged to explain his reasons for that decision. It is a matter of circumstance how far that required him to go in relation to individual adminicles of evidence.

To a material extent, the Special Adjudicator accepted the petitioner's evidence. He accepted (1) that the events in the late 1980s which the petitioner described did happen, (2) that those incidents "may well" have happened because of the petitioner's political views, (3) that the petitioner joined the Sajudis movement in 1989, (4) that the further attacks and break-ins in 1994 may well have happened, (5) that his cow may well have been killed, and (6) that the petitioner had difficulty in getting work. He did not accept (and expressed it in the words "do not believe") (a) that the 1994 incidents had anything to do with the petitioner's politics, (b) that his telephone was tapped or his mail interfered with, (c) that the killing of the cow was a warning that the petitioner had been found by persons minded to persecute him, (d) that uniformed men came looking for him, or that the reason was that former communists now in government wanted to settle old scores, (e) that the petitioner's difficulty in getting work were attributable to his political views, (f) that the petitioner is "of interest to" former Communists who are part of the present government, or to anyone else. An examination of these points reveals that the points on which the petitioner's evidence was accepted are mostly (with the exception of point (2)) matters of primary fact spoken to by the petitioner in his (written) evidence. The points on which the Special Adjudicator expresses disbelief are all points of inference or interpretation, on which what the Special Adjudicator is really doing is declining to draw the inference which the petitioner claimed to draw from, or accept the interpretation which the petitioner sought to place on, the primary events. That seems to me to be a different sort of disbelieving from the kind which Collins J had in mind in Chugtai. Nevertheless, I accept that it is for the Special Adjudicator to explain why he has declined to draw the inferences or adopt the interpretation of events put forward by the petitioner.

I do not consider that the suggestion that the Special Adjudicator failed to understand the nature of the persecution which the petitioner claims to fear is sound. It is perhaps mis-stating the point to refer to "former Communists now in government", if "in government" is to be understood as meaning actual members of the government. The phrase does, however, come from the petitioner's own evidence (at A10). The phrase used by the Special Adjudicator later in his determination - "ex-Communists who are part of the government" - perhaps comes closer to what the petitioner means. Reading the determination as a whole, however, it seems to me to be reasonably clear that the Special Adjudicator was aware that the petitioner's claim was that former Communists had found positions under the present government, and would use those positions to enable them to persecute the petitioner with impunity. In that context, it seems clear, since the point is repeated several times, that the Special Adjudicator's principal reason for declining to draw the inferences and place the interpretations on events which the petitioner suggests is that he formed the view that the petitioner's activity was "low-level" - organising pupils at his school and distributing leaflets and newspapers. I did not understand it to be suggested that the Special Adjudicator was wrong in his understanding of the petitioner's involvement or in his application to it of the label "low-level". What was submitted was that he was in error in regarding that as a sufficient reason for rejecting the inferences on which the petitioner based his contention that his fear was well-founded. It is no doubt correct that instances can and do arise of persons being persecuted for low-level political activity. The application of the label "low-level" does not therefore per se justify the conclusion that there cannot be a well-founded fear of persecution. But in my view the nature and level of importance of the activity on the part of an applicant for asylum will frequently, if not always, be relevant to the assessment of the likelihood of future persecution. In the present case it cannot in my view be said that the Special Adjudicator erred in taking into account the fact that the petitioner's activity had been low level. He did not reject the inferences which the petitioner sought simply on the basis of the low level of his activity. He viewed that consideration in light of other circumstances, in particular the long gap of five years between the original persecution and the claims of later persecution, the fact that the organisation to which the petitioner was affiliated was a legal movement, and the general trend of political events in Lithuania. In my view the Special Adjudicator has set out with adequate clarity his reasons for rejecting those parts of the petitioner's evidence that he did reject.

So far as the criticism of the Special Adjudicator's acceptance that the 1994 incidents were simply criminal is concerned, I am of opinion that that was a matter for the Special Adjudicator to assess. Certainly the petitioner put forward his own reasons for concluding that the incidents were politically motivated - the absence of theft. While that point may have some force, it seems to me to fall far short of leading inevitably to the conclusion that the incidents were politically motivated. The matter is not, however, one for me to decide. I do not consider that the Special Adjudicator was obliged to state a specific reason for not accepting the petitioner's interpretation of those events. Viewing the determination as a whole it is in my view clear why the Special Adjudicator declined to accept that the inference should be drawn that the petitioner's misfortunes were due to political persecution. It would, in my view, distort the decision-making process to demand an individual reason for the interpretation of each and every individual adminicle of evidence.

There is, in my opinion, no force in Mr Sutherland's submissions about the Special Adjudicator's use of the phrase "Even if" in the fifth and seventh paragraphs on page 4 of the determination. As the Immigration Appeal Tribunal acknowledged in Nazim Ozer, there is nothing inherently inappropriate about expressing a decision in that way. Indeed it seems to me that the Special Adjudicator might have been subjected to criticism if, having decided that he did not believe that the petitioner was in fear, he had refrained from addressing the questions whether, in light of current circumstances in Lithuania, the petitioner's fear, if it had been proved, should have been regarded as well-founded, and whether, if it had been accepted that there were those who were minded to persecute the petitioner, the authorities would have been willing and able to protect him. There is, in my view, no lack of clarity in the statement by the Special Adjudicator of the hypotheses on which he addressed those issues.

The last two points made by Mr Sutherland under this heading - the one concerning the use made of the State Department report and the one concerning the reason for the petitioner's inability to obtain employment - seem to me to be attempts to open up in the guise of an attack on the Special Adjudicator's statement of his reasons points which are really matters of assessment of the evidence. I do not consider that there is any merit in them as attacks on the adequacy of the Special Adjudicator's reasons for his decision.

In the result, therefore, I am of opinion that (leaving aside the question of the significance of the petitioner's delay in applying for asylum) the attack on the sufficiency of the Special Adjudicator's reasons fails, and there is no basis for holding that in that respect the Tribunal erred in refusing leave to appeal.

 

Delay in Applying for Asylum

In his determination the Special Adjudicator, having set out in the first of the two passages quoted above his view of the petitioner's evidence of past events, made the following additional point:

"I note the appellant's immigration history. Having arrived in the United Kingdom in July 1994, he only applied for asylum in October 1994. I do not find such delay to be the actions of a man who has fled his country in fear."

He then continued:

"For the reasons stated, I do not believe that the appellant left his country because he was in fear or that he is in fear now".

Mr Sutherland submitted that the first of these passages disclosed an error of approach on the part of the Special Adjudicator. He referred to R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, although more as a source of information than as an authority. That case was concerned with the validity of certain regulations concerning the rights of asylum seekers to social security benefits. At page 280G there appears the following passage taken from a statement made by the Secretary of State for Social Security to the Social Security Advisory Committee in accordance with section 174(2) of the Social Security Administration Act 1992:

"7. However, 70 per cent of all asylum claims are made by people who entered this country as tourists, students, business people or illegally and subsequently make a claim."

At page 287H Simon Brown LJ added the following observation:

"As for the statistics, these appear to show no significant difference in the rate of recognition as refugees between those applying on arrival (about one third) and those who apply after entry. ... In general terms, perhaps, the later an asylum claim is made the more likely it is to be bogus. But as the Social Security Advisory Committee ("SSAC") stated in paragraph 38 of their report:

'There are many valid reasons why people do not make their asylum claim immediately on arrival. Lack of knowledge of procedures, arriving in a confused and frightened state, language difficulties or fear of officialdom may all be insuperable barriers to making any kind of approach to the authorities at the port of entry. Many intending applicants will quite reasonably want to get help and advice before making their claim. We are told by refugee organisations that there is a common fear that making an asylum application while still in port is more likely to result in immediate deportation, or being held in detention. For these and other reasons, it is easy to see why for the majority of asylum seekers it appears safer to make their claim from inside the UK.'"

The statistics referred to in that case and the recognition that there were many good reasons for delaying the application for asylum until after entry ought, Mr Sutherland submitted, to have been known to the Special Adjudicator, and it was therefore an error on his part to treat the petitioner's delay as an indicator that he was not in well-founded fear of persecution, at least without consideration of the merits of the explanation for the delay offered by the petitioner, or without giving reasons for rejection of the explanation.

When interviewed by an immigration official in connection with his application for asylum in June 1995 the petitioner is recorded as having answered questions as follows (page B3 of the file No. 7/7 of process):

 

"Q.

Why didn't you claim asylum on arrival in the UK?
 

A.

I was afraid that if I asked at the airport I might be sent back straight away.
 

Q.

If you were that worried, why did you claim at all?
 

A.

I was here on a tourist visa for 3 months, I learnt about it later, & after 3 months I learnt that there was such a place in Croydon & that it was possible to claim.
 

Q.

Why did you come all the way to the UK & not go to a closer European country such as Germany?
 

A.

It just came about that I got a ticket & it is easier to enter the UK. I just wasn't aware that one can request asylum at an airport.
 

Q.

Were you aware that you could claim asylum in a foreign country, or aware of what asylum meant?
 

A.

I knew one could do it in Western Europe, but I had no idea how to go about it.
 

Q.

So if you didn't know how to do it, why didn't you ask the immigration officer upon arrival?
 

A.

I was simply afraid that I would be sent straight back."

Those answers, Mr Sutherland submitted, set out reasons for the petitioner's failure to apply for asylum immediately on arrival, which required to be evaluated before it could be concluded that the delay reflected adversely on the credibility of his claim to be in fear of persecution.

Mr Lindsay indicated that the respondent's position on this point was that delay was a relevant consideration in assessing the credibility of an applicant for asylum, but accepted that it was necessary to consider the individual circumstances of the case. The relevance of delay is supported by Rule 341 of the Immigration Rules. In Amargit Singh Bila v Secretary of State for the Home Department [1994] Imm AR 130 that approach was upheld and Lord Morison said (at 135):

"... the reclaimer did not seek asylum until after his apprehension which occurred 10 years after the date of his entry into the United Kingdom and 5 years after the date of the incidents claimed to have given rise to his fear of returning to India. Contrary to the view apparently taken by the Lord Ordinary, we consider that this delay was a matter which the Secretary of State was entitled to take into account in considering the bona fides of the claim. An immediate claim to the status of refugee on entry to a country in which asylum is sought appears to us to be more likely to carry conviction than one made years later."

Mr Lindsay submitted, if I understood him correctly, that it was apparent from the Special Adjudicator's determination that he had considered the effect of the petitioner's delay in light of the circumstances of the case. It could not be said that the view which he took was unreasonable in the Wednesbury sense.

In my opinion it is clear from Rule 341 of the Immigration Rules and the passage which I have quoted from Bila that delay on the part of an applicant for asylum may be a relevant consideration in assessing the credibility of the applicant's evidence. It is, however, a matter of circumstance and degree, and delay is not automatically destructive of the applicant's credibility; a reasonable explanation can elide the adverse effect which delay would otherwise have (cf. the submissions made on behalf of the present respondent in Hanif v Secretary of State for the Home Department, 1999 SLT 858 at 861 K-L). This is not a case like Bila in which the applicant had entered the United Kingdom illegally, and had applied for asylum only many years later upon his presence being detected. On the contrary, the petitioner entered the United Kingdom legally, and made his application for asylum some three months later, before his visa expired. Moreover, he gave an explanation for his failure to apply for asylum on entry. It contained elements of the sort identified in the SSAC report quoted in R v Secretary of State for Social Security as potentially valid reasons. The Special Adjudicator might, of course, have rejected the petitioner's explanation for his delay, and might have come to the conclusion that, in the circumstances of the present case, even such delay as there was suggested that the application was not genuine. But there seems to me to be no indication in the determination that the Special Adjudicator applied his mind, in deciding what significance to attach to the delay, to the individual circumstances of this case and in particular the explanation offered by the petitioner. On the contrary, he characterises the delay from July to October 1994 as "not ... the actions of a man who has fled his country in fear". That seems to me to be an unjustified generalisation, particularly when the statistics referred to in R v Secretary of State for Social Security show that, since 70 per cent of asylum claims are made after entry and there is no significant difference between the success rate of applications made on arrival and that of those made after entry, delayed application is the course followed by a majority of those whose claims are ultimately successful. In the circumstances, I am of opinion that the Special Adjudicator failed to give adequate reasons for treating the fact that the petitioner did not apply for asylum immediately on arrival in the United Kingdom as damaging to the credibility of his evidence that he was in fear of persecution.

It remains for consideration, however, whether the Tribunal's failure to recognise that flaw in the Special Adjudicator's reasoning affords ground on which I ought to set aside the refusal of leave to appeal. It might be thought that, even if he had not made that mistake, the Special Adjudicator would have arrived at the same result. It seems to me that, so far as the Special Adjudicator's conclusion that the petitioner was not in fear of persecution was concerned, it is impossible to know what part was played in that conclusion by (i) the view he took of the improbability of persecution under the current regime in Lithuania of one whose activities had been as low-level as the petitioner's, and (ii) the view which the delay in applying for asylum led him to take of the petitioner's credibility. The two considerations clearly both played a part in his conclusion. It cannot therefore be said that the Special Adjudicator would still have held that the petitioner was not in fear of persecution if he had dealt properly with the matter of delay. A more difficult point arises from the fact that, having rejected the petitioner's contention that he was in fear of persecution (partly on a flawed basis), the Special Adjudicator went on to decide that, if the petitioner had been in such fear, his claim would still have failed because the changed circumstances in Lithuania showed that any such fear was not well-founded. The Special Adjudicator's reasoning on that matter is elaborated in the fifth, sixth and seventh paragraphs on page 4 of his determination. If that part of the determination truly stands alone, independent of any view of the petitioner's credibility on the question of fear of persecution, then it might be argued that the Special Adjudicator's determination should stand, despite the flaw in the reasoning on the earlier point. Mr Lindsay submitted that I should take that view, and drew an analogy from Bila, where the Second Division dealt with the delay point only obiter, because they were satisfied that the decision that the reclaimer's fear was not well founded proceeded primarily on an objective basis.

In my view it is clear that the Special Adjudicator considered first whether the petitioner was in fear of persecution. He held that he was not. An integral part of his decision on that point was his flawed approach to the effect of the petitioner's delay in applying for asylum. If that had been the whole decision, leave to appeal against it ought to have been granted. But that was not the whole decision. The Special Adjudicator went on to consider whether, if he had held that the petitioner was in fear of persecution, such fear was well-founded. He considered, in particular, whether in the changed circumstances in Lithuania there was a reasonable degree of likelihood that the petitioner would suffer persecution for a Convention reason if he returned. He concluded that he would not. In these circumstances, I am of opinion that the flaw which I have held to be present in the Special Adjudicator's reasoning did not affect the result of his decision. I am therefore of opinion that, despite that flaw in the Special Adjudicator's decision, there is no ground for setting aside the Tribunal's determination refusing leave to appeal.

 

Result

I shall accordingly refuse the petition.

 

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