Scottish Court of Session Decisions

[1] This application for judicial review came before for a first hearing. The petitioner is a citizen of India. He presently resides in Glasgow. The respondent is the Secretary of State for the Home Department ("the Secretary of State"). As such, he is responsible for the enforcement of immigration laws in the United Kingdom. Answers have been lodged on behalf of the Secretary of State and counsel appeared for him at the hearing. The petition was intimated to the Special Adjudicator and to the Immigration Appeals Tribunal ("the IAT"), but neither of them lodged answers or was represented at the hearing.

[2] The petitioner was born on 16 July 1966. He entered the United Kingdom illegally on 15 August 1995. On 13 October 1995 the Immigration Advisory Service applied for political asylum on his behalf. In connection with this application the petitioner completed a self-completion questionnaire dated 5 February 1996. On 10 February 1997 the petitioner was interviewed by an immigration officer. A record was made of the questions asked by the immigration officer and of the petitioner's answers to those questions. On 20 February 1997 the petitioner's application for asylum was refused by the Secretary of State. On 14 March 1997 he was served with a notice of removal to an illegal entrant giving directions for his removal to India. The petitioner appealed against those directions. By determination dated 22 July 1997 the Special Adjudicator dismissed the appeal. The petitioner then sought leave to appeal against this determination to the IAT. By determination dated 8 August 1997 the IAT refused leave to appeal to it. Although the petition seeks inter alia reduction of both the determination of the Special Adjudicator and the determination of the IAT, counsel for the petitioner restricted his submissions at the hearing to the latter. His motion was that I should reduce the determination of the IAT and remit to the IAT to proceed as accords. In view of this it is unnecessary for me to consider what scope there may be for judicial review of a determination of a Special Adjudicator in addition to judicial review of a determination of the IAT refusing leave to appeal against the former.

[3] The duties of the IAT in considering whether to grant leave to appeal were considered in R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, in which the Court of Appeal held inter alia that although in seeking leave to appeal the applicant was required to state the grounds of his appeal, the appellate authorities were neither limited by the arguments actually advanced nor required to engage in a search for new grounds and that, since they were obliged to ensure that the applicant's removal would not contravene the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it. This approach has been followed in Scotland: see, for example, the decision of the Extra Division in Parminder Singh v Secretary of State for the Home Department, 26 October 1999, unreported. The decision of the IAT to refuse leave to appeal may accordingly be susceptible to judicial review if inter alia it has failed to take into account a relevant consideration which was either advanced in the grounds of appeal or which was otherwise readily discernible and obvious.

[4] In order to bring himself within the provisions of the Convention an applicant for political asylum must establish that he has a well-founded fear of persecution. There are two aspects to this. Firstly, he must establish that he has a subjective fear of persecution. Secondly, he must establish that this fear is objectively well-founded. These two aspects are clearly recognised in the leading case of R v Secretary of State for the Home Department, ex parte Sivakumaram [1988] AC 958. The Special Adjudicator was not satisfied that the evidence given by the petitioner as material to his asylum claim on the first of these aspects was credible. He also went on to consider whether, if the petitioner had been able to satisfy him that he had a fear of persecution, that fear was well-founded. In the petition there are averments directed to both of these matters, but at the hearing counsel for the petitioner confined his submissions to the first of them, as set out in statement 7(A)(i) to (iii). Counsel indicated that, having considered the answers for the Secretary of State, he did not propose to advance submissions on the lines set out in statement 7(B) and (C), which were directed to the second matter, and I need say no more about the second matter.

[5] In the self-completion questionnaire the petitioner stated that because of government oppression of the people by the police he was attracted to the Khalistan movement. He never took part in any activity but he had full sympathy with this movement, which wanted a Khalistan state. Active members of the Commando Forces regularly came to his house and had meals there and discussed the political situation at the current time. He then continued:

He went on to state that thereafter he was released and had been asked never to go away from his house or area "but police regularly came to my house and took me to police station and charged me." He concluded by saying that he never felt safe, but many people in his area had been killed and that he looked for a safe haven. For the sake of clarity I have made some minor corrections to the spelling in the passages quoted, but otherwise they are as written in the questionnaire. It is not apparent from the questionnaire itself how much assistance the petitioner had in completing it, but in the subsequent interview with the immigration officer he stated that he did not complete the questionnaire himself and it was completed by a solicitor.

[6] During the course of the interview with the immigration officer, which was conducted with the assistance of an interpreter in Punjabi, the petitioner described his involvement with the Khalistan Commando Force. Thereafter the following questions and answers were recorded:

He went on to explain that he was hiding in Uttar Pradesh before approaching an agent in January 1995. The following questions and answers are then recorded:

[7] At the hearing before the Special Adjudicator no oral evidence was led, and the hearing proceeded on the basis of the information contained in the documents, including those I have referred to, and submissions by representatives of the Secretary of State and the petitioner. After referring to the test to be satisfied by the petitioner, and the standard of proof, the Special Adjudicator stated in his determination:

[8] Counsel for the petitioner advanced three submissions in relation to the passage I have quoted. Firstly, he submitted that there was no significant discrepancy between the accounts given by the petitioner in the self-completion questionnaire and during the interview. Counsel accepted, under reference to R v Secretary of State for the Home Department, ex parte Agbonmenio [1996] Imm A.R. 69, that the Special Adjudicator would have been entitled to take into account any material difference between the two accounts in determining the question of the petitioner's credibility. He submitted, however, that the Special Adjudicator had overlooked part of what was said by the petitioner in the questionnaire. Although in the questionnaire he had stated that he had been arrested by the police three times, he went on to say that thereafter the police had regularly come to his house and taken him to the police station and charged him. This was not materially different from what he said at interview about being arrested seven or eight times.

[9] Secondly, counsel submitted that it was procedurally unfair of the Special Adjudicator to rely as he did on the petitioner's delay in leaving India. This had not been raised by the Secretary of State's representative as a point affecting the petitioner's credibility, nor had the Special Adjudicator said anything about it during the course of the hearing, so the petitioner's representative did not have an opportunity of making submissions about it. Counsel referred to R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 per Lord Mustill at pp.560 and 563 as containing statements of principle which were of relevance here. Counsel also submitted that there was a special responsibility on the court to examine a decision made in a process affecting life or liberty. Reference was made to R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 per Lord Bridge at p.531 and Lord Templeman at p.537 and Secretary of State for the Home Department v Thirukumar &c [1989] Imm A.R. 402 per Bingham L.J. at p.414. The principles of fairness in administrative proceedings was established in R v Gaming Board for Great Britain, ex parte Benaim &c [1970] 2 QB 417, and an example of its application could be found in the decision of Lord Dawson in Jijar Singh, 23 June 2000, unreported. The case of R v Immigration Appeal Tribunal, ex parte Williams [1995] Imm A.R. 518 could be distinguished because the procedural unfairness arose here in a completely different manner. The point should have been raised with the petitioner's representative so that there would have been an opportunity to persuade the Special Adjudicator that it did not affect the petitioner's credibility.

[10] Thirdly, counsel submitted that there was nothing to justify the Special Adjudicator's view that the delay in making an application for asylum after the petitioner had arrived in the United Kingdom affected his credibility. Counsel referred to R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 per Simon Brown L.J. at pp.287-288 for the information contained therein about the reasons why people might delay in making applications for asylum and the number of successful applications for asylum even after an initial delay. Reference was also made to Lord Macfadyen's decision in Irzekevikius, 14 July 1999, unreported. Bila v Secretary of State for the Home Department [1994] Imm A.R. 130, a decision of the Second Division, could be distinguished on its facts. In that case the delay was for a period of ten years, rather than two months in the present case. Kingori v Secretary of State for the Home Department [1994] Imm A.R. 539 required to be applied with care. It applied where the applicant had been heard as a witness by the Special Adjudicator and all aspects of his evidence had been rejected.

[11] Counsel for the petitioner concluded by submitting that it was enough for him if the Special Adjudicator's determination could be attacked on any one of these three grounds. He invited me to repel the first plea-in-law for the petitioner and sustain the second plea-in-law for the petitioner, which is to the effect that the IAT having erred in law and been unreasonable, their determination should be reduced.

[12] Counsel for the Secretary of State submitted that there was no merit in any of the petitioner's submissions. The determinations of the Special Adjudicator and the IAT were reasonable and contained no errors in law. There had been no breach of natural justice by the Special Adjudicator. Accordingly, neither determination could be successfully challenged by judicial review. He invited me to repel the petitioner's pleas-in-law and sustain the third plea-in-law for the Secretary of State, which is to the effect that the decisions complained of being lawful et separatim reasonable, the prayer of the petition should be refused. I have already explained that counsel for the petitioner did not seek reduction of the Special Adjudicator's determination. Counsel for the Secretary of State agreed that if I was against him, the procedure should be as proposed by counsel for the petitioner. He accepted that it was sufficient for the petitioner if he could win on one point.

[13] Counsel for the Secretary of State went on to submit that the petitioner had to show that the IAT had erred in law in failing to grant leave to appeal. Reference was made to Sahota v Immigration Appeal Tribunal [1995] Imm A.R. 500 and to the opinion of Lord Penrose in Parminder Singh, 10 July 1998, which had been upheld by the Extra Division, supra. It was necessary for the petitioner to demonstrate that there was something wrong with the Special Adjudicator's approach before the refusal of leave to appeal could be attacked. The only approach available to the Special Adjudicator was to go through the documents. This was perhaps unsatisfactory where credibility was in issue, but it was the only course available. In considering the Special Adjudicator's determination, it was necessary to construe it as a whole: see R v Secretary of State for the Home Department, ex parte Guhad [1997] Imm A.R. 1. One or two sentences did not invalidate the whole, even if they were not well expressed.

[14] Counsel then replied to the three grounds of criticism directed to the Special Adjudicator's approach to the issue of the petitioner's credibility. On the first point, he submitted that the Special Adjudicator had been correct to find that there were significant discrepancies between the two accounts given by the petitioner, looking at the substance of each narrative. Although it could be said that there was no discrepancy in the number of times that there had been an interaction between the petitioner and the police, the petitioner himself distinguished between being arrested and being taken to the police station and charged. Counsel referred to the definition of "detention" in the Immigration Rules. He submitted that all that was required was a concise statement of the Special Adjudicator's reasons, and that had been given.

[15] On the second point, counsel submitted that it was not necessary to give the petitioner a further opportunity to amplify his explanation for his delay in leaving India, so there had been no breach of natural justice. The petitioner had the opportunity to explain the delay and gave an answer. This was a matter which had an obvious bearing on his credibility. He had chosen not to give oral evidence. The burden of proof was on him and it was for him, through his representative, to deal with points which might have a bearing on his credibility. Sahota, supra, had parallels with the present case. Reference was also made to Williams, supra and the decision of Lord Reed in Kulwinder Singh v Secretary of State for the Home Department, 26 January 2000, unreported.

[16] On the third point, counsel submitted that, while the present case was closer to the borderline than was Bila, supra, nevertheless the Special Adjudicator was entitled to reach a conclusion on the basis of the delay.

[17] I can express my opinion about these submissions quite briefly. It did not appear to be in dispute that if it could be argued with apparent justification that the Special Adjudicator had failed to take account of a material part of the information provided by the petitioner in the self-completion questionnaire in deciding whether there was a significant discrepancy between the accounts in the questionnaire and the record of the interview, then it could be said that the IAT had erred in law by failing to take a relevant consideration into account in deciding to refuse leave to appeal. I have reached the view that this is the correct conclusion. In the questionnaire the petitioner did not confine himself to stating that he had been arrested three times. He went on to state that thereafter police had regularly come to his house and taken him to the police station and charged him. These latter events may readily be described as arrests, and even if the petitioner did not use this word in relation to them, I would not read this passage in his statement as intending to make any material distinction between the arrests and the subsequent events. On any view of the matter he was claiming to have been taken away by the police more than three times. There thus appears to me to be no obvious discrepancy between the statement in the questionnaire and the account given by the petitioner to the immigration officer. In particular, there does not appear to me to be such a discrepancy between the earlier account and the later statement that he had been arrested seven or eight times. There are differences between the two accounts, but I am not satisfied that these are so material as to affect the petitioner's credibility, particularly when allowance is made for the fact that the questionnaire was, as he later stated, completed on his behalf by a solicitor, while the interview was conducted through the medium of an interpreter. Concepts such as arrest, detention and unlawful deprivation of liberty may suffer from lack of clarity of expression in such circumstances. What appears to me to be of greater significance is the substance of the underlying factual narrative, and in that respect I am satisfied that it can be argued with some force that the petitioner has given substantially the same account on each occasion. The Special Adjudicator has given no reason for failing to mention the passage in the questionnaire where the petitioner said that he had been taken to the police station on occasions subsequent to his being arrested three times, and it can therefore in my opinion be argued with some force that he has failed to take account of this passage in reaching a conclusion about the petitioner's credibility. In failing to recognise this the IAT, in my opinion, erred in law and accordingly the IAT's determination falls to be reduced.

[18] As I have said, it was common ground that it was enough for the petitioner to succeed on one point. I should however express my opinion on the other two points. There is, however, a difficulty in doing so because it cannot be said what weight the Special Adjudicator would have attached to the delay in the petitioner's leaving India and his delay in making an application for asylum after arriving in the United Kingdom if he had not already formed an adverse view of the petitioner's credibility on the question of the number of times on which he had been arrested. On my reading of the Special Adjudicator's determination, he regarded the second and third points as reinforcing the view he had reached about the petitioner's credibility on the first point, and it may be that he would otherwise have regarded the second and third points as being at best neutral. Be that as it may, in my opinion, in the context of the hearing, the Special Adjudicator was not bound to take up with the petitioner's representative the question of the delay before the petitioner left India. It was for the petitioner to satisfy the Special Adjudicator of his credibility. This point had already featured in the interview with the immigration officer, it had an obvious potential bearing on the petitioner's credibility, and it was therefore for the petitioner's representative to address it. I am not satisfied that there is anything in the argument that it was procedurally unfair of the Special Adjudicator to place such reliance on the point as he chose to do without taking it up with the petitioner's representative. Similar considerations apply to the third point. It is obvious that where an interval has passed between the arrival in the United Kingdom of an applicant for asylum and his actually making the application, some explanation is called for. The longer the passage of time, the fuller and more convincing the explanation would no doubt require to be. Obviously in many cases there will be some delay, but it appears to me that it is for an experienced Special Adjudicator to decide what to make of the explanation given for it. I am not satisfied that it is arguable that a Special Adjudicator in the present case was not entitled to reach the view he did on this point.

[19] On the whole matter, however, I am satisfied that, given the view I have reached about the first point, the determination of the IAT to refuse leave to appeal to it falls to be reduced. I shall accordingly sustain the second plea-in-law for the petitioner, reduce the determination of the Immigration Appeal Tribunal dated 8 August 1997, and remit back to the Immigration Appeal Tribunal to proceed as accords.