EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord AbernethyLord Nimmo SmithLord Clarke |
[2006] CSIH23XA79/04OPINION OF THE COURT delivered by LORD
ABERNETHY in APPEAL TO THE COURT OF SESSION under section 103(2) of
the Nationality, Immigration and Asylum Act 2002 by MS. GULNAZ ESEN Appellant; against REFUSAL OF LEAVE TO APPEAL
BY THE IMMIGRATION APPEAL TRIBUNAL and SECRETARY OF STATE FOR THE
HOME DEPARTMENT Respondent: _______ |
Alt: Drummond; Solicitor to the Advocate General for
5
May 2006
Introduction
[2] The
appellant is a national of
[3] The
appellant sought leave to appeal to the Immigration Appeal Tribunal. Seven grounds of appeal were put
forward. Leave was granted in respect of
ground 5 but refused in respect of the other grounds. Following a hearing the Tribunal, by
determination notified on
[4] The
appellant then sought leave from the Tribunal to appeal to this Court. On
[5] The
appellant's claim for asylum was, as her counsel put it, largely parasitic on
the claim of her husband, Ali Esen, whom she married on
The Ground of Appeal before the Immigration Appeal Tribunal
[6] Ground
5 of the appellant's grounds of appeal in her application for leave to appeal
to the Immigration Appeal Tribunal was in the following terms:
"Following
on from his positive credibility findings in paragraph 24 the Adjudicator at
paragraph 25 gives findings as to why he does not accept the remainder of the
Appellant's evidence. It is arguable
that he has not given adequate reasoning for making said findings."
The scope of the appeal to the Immigration Appeal Tribunal and of the
appeal to this Court
[7] The
application for leave to appeal to this Court states that it is brought under
section 103(2) of the Nationality, Immigration and Asylum Act 2002. For a considerable part of the hearing both
counsel presented their submissions on that basis. It was only on the morning of the second day
that we were informed that it was common ground between the parties that in
fact the governing statutory provision was not section 103(2) of the 2002 Act
but paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999. To say the least this confusion was
unfortunate. The relevant part of
paragraph 23 of Schedule 4 to the 1999 Act provides as follows:
"23(1) If the Immigration
Appeal Tribunal has made a final determination of an appeal brought under Part
IV, any party to the appeal may bring a further appeal to the appropriate
appeal court on a question of law material to that determination. ...
(3) 'Appropriate appeal court' means -
(a) if the appeal
is from the determination of an adjudicator made
in
[8] The
appeal from the adjudicator to the Immigration Appeal Tribunal was governed by
paragraph 22(1) of Schedule 4 to the 1999 Act.
This provides as follows:
"22(1) Subject to any
requirement of rules made under paragraph 3 as to leave to appeal, any party to
an appeal ... to an adjudicator may, if dissatisfied with his determination,
appeal to the Immigration Appeal Tribunal."
It was common ground that the Immigration
and Asylum Appeals (Procedure) Rules 2003 applied to such an appeal. Leave (or permission) to appeal is required by
Rule 15(1) thereof and Rule 18, which is headed
"Determining the permission application", provides as follows:
"18. ...
(2) The Tribunal is not required to consider
any grounds of appeal other than those included in the application ...
(4) The Tribunal may grant permission to
appeal only if it is satisfied that -
(a) the appeal
would have a real prospect of success;
or
(b) there is some
other compelling reason why the appeal should be
heard ...
(5) Where the Tribunal grants permission to
appeal it may limit the permission to one or more of the grounds of appeal
specified in the application ... "
[9] In
this case the appellant applied for permission to appeal to the Immigration
Appeal Tribunal from the adjudicator's determination on seven grounds (numbered
1, 2, 3 (twice), 4, 5 and 6). As we have
said, permission was granted on numbered ground 5 only.
[10] Counsel for the appellant submitted that the Immigration Appeal
Tribunal had a discretion to take note of and deal
with any points which arose out of the adjudicator's determination which
appeared to it to be arguable, even although they had not been raised in the
grounds of appeal to the Tribunal.
[11] Counsel for the respondent submitted that that was not correct
given the statutory framework within which this case had to be decided. Formerly there was no appeal from a refusal
of the Immigration Appeal Tribunal to grant permission to appeal to it. The only remedy was by way of judicial review
of its decision. In the context of such
a review the court was not limited by the grounds of appeal if there was a
readily discernible and obvious point in the appellant's favour: see R v
Secretary of State for the Home
Department, ex parte Robinson [1998] QB 929. The position here was different. The Immigration Appeal Tribunal had granted
permission to appeal, although on one ground only. The provisions of the 2003 Rules now
applied. In terms of Rule 18(2) the
Tribunal was not required to consider any grounds of appeal other than those
included in the application for permission.
It had granted permission on one ground only (ground 5) and refused
permission on the other grounds. It was
not possible now to consider those other grounds or, indeed, any other readily
discernible and obvious points in the appellant's favour except in so far as
they arose in the context of ground 5.
What counsel for the respondent did accept, however, was that any errors
of law in the Tribunal's determination in relation to ground 5 of the grounds
of appeal to it, even if they were not focused in the appellant's grounds of
appeal to this Court, could and should be noticed and dealt with by this
Court. If, however, there were no such
errors by the Tribunal in respect of ground 5, the appeal should be dismissed.
[13] It was common ground, however, that the wording of ground 5 was
such as in effect to allow discussion of some of the matters more specifically
referred to in the other grounds of appeal to the Tribunal. But it is important to recognise and bear in
mind how this comes to be.
The determination of the adjudicator
[14] Although this is an appeal from the Immigration Appeal
Tribunal, it is necessary in order to give content to the appeal to record the
essential findings of the adjudicator, which were as follows:
"19 Within the bundle of evidence for the
Appellant there is a copy of the
Adjudicator's
Determination of
20. In paragraphs 28
and 29 of the said determination of Mr Esen's asylum
claim the magazines in question are referred to as 'legal'. In paragraph 12 of his statement Mr Esen
states that the magazine was illegal and in his oral evidence at the hearing on
behalf of the Appellant Mr Esen stated that the magazine was not legal. There is clearly a material difference in the
evidence which was provided to the hearing in respect of Mr Esen's claim for
asylum in this regard and the evidence which is provided by Mr Esen on behalf
of the Appellant. When asked at the
hearing by Mr Winter if the distribution of magazines was a main role or a minor
role Mr Esen stated that not everyone does it because it is risky and stated
that it was an important role because you are distributing a magazine which is
not legal. I have to decide whether the
magazine was a legal magazine or an illegal magazine and having heard Mr Esen
give evidence at the hearing and taking into account the evidence in this
regard as stated within Mr Esen's determination of his asylum claim I find that
the magazine was legal. I make this finding
also taking into consideration all the evidence together with my other findings
in fact in relation to Mr Esen.
21. There is a further matter which is raised
on behalf of the Appellant but
was not
raised on behalf of Mr Esen at his asylum hearing on 24th April 2002 in Glasgow
and this relates to the document headed 'defaulting warrant of arrest' for Mr
Esen. As stated above Mr Esen's asylum
hearing took place on
22. According to Mr Esen his last period of
detention was on 21st March
2001 and lasted seven days.
Although he was released he said that the authorities told him that they
would send plain clothes police to his house to avoid suspicion and that when he
got out of detention he went straight to his maternal uncle's house in Gebze
before he went to
23. I have further taken into account the
negative findings of credibility
against Mr Esen in his asylum determination, a copy of which
determination was submitted by the Appellant as part of her evidence. In paragraph 29 of the said determination the
Adjudicator found it completely implausible that the factory in question would
be raided repeatedly in search of legal magazines distributed by someone who
was not even a member of KAWA. In
paragraph 31 of the said determination the Adjudicator refers to the statement
of Mr Esen about being held for seven days and tortured, being forced to agree
to become an informer against KAWA, immediately absconding thereafter, going
elsewhere in
24. The Appellant claims that her family had
a history of being harassed
by Turkish gendarmerie since she was a child because of their
Kurdish origins and the fact that her family supported the struggle of Kurdish
rights. She stated that whilst she was
still at school her parents were held for three days and released having been
beaten because they had been accused of supporting the PKK (a Kurdish
organisation) and that two weeks later her elder sister Derya was detained for
two days at the gendarmes station and thereafter had been sent to Istanbul for
her own safety by her father. The
Appellant also stated that around 1991/1992 her parents were taken to the
gendarmes station and held for one day again being beaten and accused of
supporting the PKK. In or around 1996
the Appellant stated that her other sister Meryem was beaten and tortured by
the gendarmes and her mother was badly beaten in front of her. The Appellant further stated that in 1997
(when she would have been around 16) she was taken to the gendarmes
station and interrogated for two days about the whereabouts of PKK guerrillas
and that she was slapped and kicked and verbally abused. They threatened to rape and kill her and a
few days after her release her father sent her to
25. Taking into account my above findings in
relation to the evidence of
the Appellant's husband I do not accept her statement that after
her husband left she was kept under surveillance by the authorities and that
her home was raided and ransacked in April 2001 when she was slapped and her
hair pulled and she suffered a miscarriage.
I do not accept the police returned a few days later and detained her
overnight at Umranye police station where she was beaten up and humiliated nor
do I accept that the police again came to her home at the end of September 2001
and beat her up as she held her son in her arms. I do not accept that these incidents took
place. Taking into account my finding
that the Appellant's husband was only a supporter of KAWA that following the
incident on 21st March 2001 when Newroz was being celebrated he was not held
for seven days and forced to become an informer I find that there would be no
plausible reason for the authorities to keep the Appellant's home under
surveillance nor to come to her home to interrogate her about the whereabouts
of her husband."
The determination of the Immigration Appeal Tribunal
[15] In its determination the Immigration Appeal Tribunal, after
summarising the basis of the appellant's claim, noted that the adjudicator had
accepted her account of events up to the time when her father sent her to
[16] The Tribunal then stated as follows:
"9. The Tribunal are satisfied that the
Adjudicator did give clear and
adequate reasons for his findings of fact. It is clear from paragraphs 24 and 25 that he
accepted the appellant's account of events until her father sent her to
10. In paragraph 22 of his determination the
Adjudicator went on to
consider the assertion that Mr Esen had been detained on
11. In summary paragraphs 24 and 25 have to
be read in the context of the
Adjudicator's
analysis of the evidence in paragraphs 19-23.
The Tribunal are satisfied that the Adjudicator has given clear reasons
why he disbelieved the appellant's account of events after she moved to
[17] The appeal was dismissed.
Counsel's submissions to this Court
[18] Before us counsel for the appellant stated that whether the
adjudicator was entitled to make the assumptions referred to by the solicitor
for the appellant before the Tribunal was pivotal to the appellant's case. Counsel pointed out that in paragraph 9 the
Tribunal had concentrated on the adjudicator's reasons. Counsel accepted that his reasons were clear
and, on the whole, adequate. But the
issue raised in ground of appeal 5 was the adequacy of the adjudicator's
reasoning for making his findings, which was a different thing. At no stage did the Tribunal address that
issue. The adjudicator's reasoning,
whereby he drew conclusions from his own apparent knowledge of how people would
behave in certain circumstances, amounted to speculation with no proper basis
in the evidence and was an error in law.
Although it was permissible for an adjudicator to speculate in favour of
an asylum seeker - which was a consequence of the nature of the issues at stake
and the low standard of proof in cases such as this - it was not permissible to
speculate against an asylum seeker. It
was not permissible for an adjudicator to make findings on the basis of what he
thought a reasonable person would have done.
It was also not permissible for an adjudicator to make findings based
solely on how he thought the organs of a State might have behaved in the
absence of objective evidence justifying that finding. It was not permissible for an adjudicator to
make findings on the basis of implausibility unless it could be shown either
that the evidence contradicted the claimed facts or that the claimed facts were
so beyond human experience as to be inherently unlikely. For that reason, while there was a role for
common sense, it was a limited one.
Reference was made to Symes and Jorro on Asylum Law and Practice, paragraphs 2.31 and 2.46; Lubana v Canada
(Minister of Citizenship and Immigration) 2003 F.C.T. 116; W321/01A
v Minister for Immigration &
Multicultural Affairs [2002] F.C.A. 210;
Wani v Secretary of State for the Home Department 2005 S.L.T. 875; and Kasolo
v Secretary of State for the Home
Department I.A.T. Appeal No. 13190, 1 April 1996. Counsel submitted that the adjudicator in
this case had erred in four respects. The
first two were to be found in paragraph 22 of his determination. There he noted Mr. Esen's evidence that,
although he had been detained and badly assaulted on two occasions, he
continued to distribute magazines for KAWA, which had eventually led to a third
period of detention. On release from
that his evidence was that he had been so badly treated that all he could think
about was fleeing
[19] The other two were to be found in paragraph 23 of his
determination. There the adjudicator,
having noted that Mr. Esen was not a member of KAWA, only a supporter of the
organisation, said that he did not believe it likely that the police would
choose someone with such a low level of relationship to the organisation as an
informer. He agreed with the view expressed
by the adjudicator in his determination of Mr. Esen's appeal that if the police
wanted someone to become an informer, then they would not leave it to chance to
use someone who just happened to be arrested because he was one of some 20
people who tried to stop the police from arresting a few of the Newroz
revellers on 21 March 2001. Also in
paragraph 23 the adjudicator had referred to, and apparently accepted, the
finding of the adjudicator in Mr. Esen's appeal that Mr. Esen was unconvincing
in saying that he did not seek the assistance of his doctor on release from
police detention because he was frightened that the doctor would let the
authorities know and they would call the police. These findings amounted to errors in law
which justified reducing the adjudicator's decision. The appeal should therefore be allowed, the
decision of the Immigration Appeal Tribunal reduced and the case remitted to
the Asylum and Immigration Tribunal for reconsideration of the appeal from the
adjudicator's determination.
[20] In reply counsel for the respondent submitted that the proper
test for determining the adequacy and sufficiency of reasons given by an
administrative Tribunal in this context was that, in the words of Lord
President Emslie in Wordie Property Co. Ltd.
v Secretary of State for Scotland
1984 S.L.T. 345 at page 348:
"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." (See also Singh v Secretary of State for the Home Department 2000 S.C. 219.)
With regard to credibility three
points could be made. An adjudicator was
entitled to judge an appellant's credibility by reference to the ordinary tests
of consistency and inconsistency. The
adjudicator was someone to whom questions of fact had been entrusted by
Parliament and had particular experience in his field. It was not for the court to decide whether an
adjudicator's judgment on an appellant's credibility was right or wrong. The question was whether the adjudicator
arrived at a decision which was within the reasonable range of findings which
he was entitled to reach on the material before him. Reference was made to Asif v Secretary of State for
the Home Department 2002 S.C. 182 and Singh
v Secretary of State for the Home
Department 2000 S.C. 288. An
adjudicator was entitled to make reasonable findings based on implausibility,
common sense and rationality and could reject evidence if it was not consistent
with the probabilities affecting the case as a whole. It was open to an adjudicator to take a view
as to the internal coherence of an account and conclude that it did not make
sense. An adjudicator could make
findings on credibility on the basis of reasonably drawn inferences which had a
basis in the evidence. Such inferences
could concern the plausibility of the evidence (Wani v Secretary of State for
the Home Department 2005 S.L.T. 875).
In the present case the adjudicator had not made any bare assertions in
either paragraph 22 or paragraph 23 of his determination. He had based his conclusions on the
evidence. Where, in paragraph 23, he had
narrated and accepted the previous adjudicator's findings he had then gone on
to make his own judgment on the matter.
All the judgments he had made were ones that were open to an adjudicator
acting reasonably. The criticisms, which
counsel for the appellant had levelled at him, had no real prospect of success
and were therefore not ones which the Immigration Appeal Tribunal ought to have
recognised. It was clear that the
Tribunal had found the adjudicator's reasoning adequate. The Tribunal had not erred in law. The appeal should be dismissed.
Discussion
[21] It seems to us that there was no material difference between
the parties as to the law to be applied.
We accept that in giving his decision the adjudicator must meet the
basic test set out by Lord President Emslie in Wordie Property Co Ltd. v
Secretary of State for Scotland, which we have quoted above (Singh v Secretary of State for the Home Department 2000 S.C. 219). Credibility is an issue to be handled with
great care and with sensitivity to cultural differences and the very difficult
position in which applicants for asylum escaping from persecution often find
themselves. But our system of
immigration control presupposes that the credibility of an applicant's account
has to be judged (Asif v Secretary of State for the Home Department
2002 S.C. 182). Credibility is a
question of fact which has been entrusted by Parliament to the
adjudicator. The adjudicator is someone
specially appointed to hear asylum appeals and has the benefit of training and
experience in dealing with asylum-seekers from different societies and
cultures. Of course an adjudicator must
give his reasons for his assessment. A
bare assertion that an applicant's account is implausible is not enough (W321/01A v Minister for Immigration & Multicultural Affairs [2002] F.C.A.
210). But an adjudicator is entitled to
draw an inference of implausibility if it is based on the evidence he has heard
and in coming to his conclusion he is entitled to draw on his common sense and
his ability, as a practical and informed person, to identify what is or is not
plausible (Wani v Secretary of State for the Home Department
2005 S.L.T. 875).
[22] Turning to the present case, we are not persuaded that there is
anything in the adjudicator's reasoning in the matters covered by ground 5 of
the grounds of appeal to the Immigration Appeal Tribunal which is open to
successful attack. In passing we should
say that in the present context we do not consider that there is a material
difference between considering the reasons that led to his conclusion and
considering his reasoning. It seems to
us that his reasoning is no more than the process by which his reasons led to
his conclusion.
[23] In relation to the two matters relied on by counsel for the
appellant in relation to paragraph 22 of the adjudicator's determination (which
we consider are truly part and parcel of one and the same matter) the
adjudicator's conclusion was in our opinion one which he was entitled to
reach. His rejection of Mr. Esen's
evidence was not a bare assertion of implausibility. On the contrary, it was a conclusion which he
arrived at after considering the relevant evidence which had been placed before
him.
[24] We are of the same view in relation to the two matters relied
on by counsel for the appellants in relation to paragraph 23 of the
adjudicator's determination. Again we
consider that the two matters are truly part and parcel of one and the same
matter. The rejection by the adjudicator
in Mr. Esen's appeal of the evidence as to why Mr. Esen did not seek the
assistance of his doctor was just a part of the material before the present
adjudicator which led to his ultimate rejection of Mr. Esen's evidence that he
was arrested, detained for seven days and ill-treated on
[25] Finally, we should say that in our view there is no other way
in which it could be said that the Tribunal erred in law in dealing with ground
of appeal 5.
Decision
[26] For these reasons we are not persuaded that the Immigration
Appeal Tribunal erred in any way in dealing with the appellant's appeal to it. The appeal to this Court must therefore be
dismissed.