Scottish High Court of Justiciary Decisons

PETITION OF RUSLANAS IRZIKEVIKIUS v. SECRETARY OF STATE FOR HOME DEPARTMENT FOR JUDICIAL REVIEW AND ANSWERS FOR RESPONDENT [2001] ScotHC 56 (18th July, 2001)

[1] This is an appeal against a decision of the Lord Ordinary dated 14 July 1999, dismissing the appellant's petition for judicial review of a decision of the Immigration Appeal Tribunal. By that decision, the Tribunal refused to grant the petitioner leave to appeal against a determination of a special adjudicator refusing his appeal against a refusal of political asylum. The facts relating to the petition are very fully stated by the Lord Ordinary, who required to decide a number of questions argued before him. This appeal, however, turns on one relatively short point and we think that it is sufficient to refer to the Lord Ordinary's opinion for much of the background to the case.

[2] The petitioner, as the Lord Ordinary narrates, is Lithuanian and was born on 11 November 1973. He entered the United Kingdom, with limited leave to enter, in July 1994 and applied for political asylum in October 1994. His application was refused, by a decision letter dated May 1997 and served on him on 9 August 1997. He appealed and the appeal was heard by a special adjudicator who dismissed it on 5 January 1998. He then applied to the Immigration Appeal Tribunal for leave to appeal and his application was refused on 13 January 1998. In the proceedings before the Lord Ordinary, the petitioner originally sought to challenge each of the decisions adverse to him but the Lord Ordinary held that the only remedy to which the petitioner might be entitled in this process was a declarator of invalidity of the Tribunal's determination refusing leave to appeal and reduction of that determination. That conclusion was accepted in the argument before us.

[3] Put shortly, an applicant for political asylum requires, in terms of Rule 180B of the Immigration Rules, made under section 3(2) of the Immigration Act 1971, and Article 1A(2) of the United Nations Convention and Protocol Relating to the Status of Refugees, to establish, on a balance of probabilities, that, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he being outside the country of his nationality, is unable or unwilling to avail himself of the protection of that country. The case which the appellant made in his application and before the adjudicator was that in the late 1980s he had been opposed to the then communist system in Lithuania and had suffered certain problems in his schooling and other activities as a result. He also maintained that he had joined a democratic movement, known as the Sajudis movement, and that in the spring of 1994 he had suffered various attacks as a result. The essence of the case for the respondent before the adjudicator was that, as a result of political changes in Lithuania, the appellant would now be at no risk there, because of his former low level political activities.

[4] In his determination, the special adjudicator narrates the appellant's evidence about the incidents on which he relied. The adjudicator says:

[5] The special adjudicator then refers to difficulties experienced by the appellant in obtaining work, which he relates to economic difficulties in eastern Europe at the time, and continues:

[6] The adjudicator then refers to a United States State Department report which describes the situation in Lithuania in 1996 in generally favourable terms, negativing reports of political or extra-judicial killings or disappearances and noting general respect for freedom of speech and of the press, and for the right of citizens to associate. The report also states that the judiciary is independent and negatives widespread monitoring of correspondence or communications of citizens. The adjudicator's finding concludes:

[7] The Lord Ordinary considered and rejected a number of criticisms of the adequacy of the reasons. He accepted, however, that in so far as the special adjudicator had founded on the delay in application for asylum, his decision was flawed. He described the adjudicator's reference to the delay as an unjustified generalisation and found that the adjudicator had failed to give adequate reasons for treating the delay as damaging to the credibility of the petitioner's evidence that he was in fear of persecution. In the appeal, the respondent conceded that the Lord Ordinary was correct in so deciding. The Lord Ordinary went on to consider whether the special adjudicator would have reached the same result if he had not made that mistake. The Lord Ordinary concluded that it was impossible to know what part was played in the special adjudicator's conclusions as to the petitioner's credibility by, on the one hand, his view of the improbability that one whose activities had been at a low level would be persecution under the current regime in Lithuania and, on the other hand, the view which he took of the delay in applying for asylum. The Lord Ordinary concluded that it could not 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.

[8] The Lord Ordinary then went on to consider whether that part of the special adjudicator's decision in which he held that the claim would have failed because of the changed circumstances in Lithuania was truly an independent and separate part of the adjudication. The Lord Ordinary concluded:

[9] The submissions in the appeal concentrated on the question whether the Lord Ordinary was correct in regarding the part of the decision referred to in that paragraph as separate and independent and accordingly well-founded. The point is a short one and is very largely one of impression of the whole reasoning of the special adjudicator. On that point, we have come to a different conclusion from that of the Lord Ordinary. It is, in our view, notable that, while considering the question of the effect of the changed circumstances in Lithuania, the special adjudicator refers back to his conclusion that he disbelieved the petitioner on the material issues. If he had been setting out to consider the question of the effect of changed conditions as a separate and independent ground for refusal, he would have required, in our view, to assume that the petitioner was credible and to balance, on the one hand, credible reports of instances of attacks and other events which might point to persecution against the information available as to the operation of the democratic and judicial systems in Lithuania. In our view, the special adjudicator's reference back to his disbelief of the appellant indicates that it would not be safe to treat his decision on this point as separate and independent. Accordingly, while the special adjudicator had many reasons for doubting the credibility of the applicant, one of those reasons was, by concession, flawed and we do not think that it can safely be said that that flawed reason, and the conclusion as to credibility which flowed, in part, from it, did not affect the special adjudicator's overall conclusion.

[10] In these circumstances, we shall recall the interlocutor of the Lord Ordinary refusing the prayer of the petition and we shall reduce the decision of the Immigration Appeal Tribunal dated 13 January 1998 refusing leave to appeal to that Tribunal. The result is that the Tribunal will require to consider for itself whether leave to appeal should be granted.