Sahin, R (on the application of) v Secretary of State for the Home Department

Friday, 17th January 2003

1. MR JUSTICE HENRIQUES: This is an~application for judicial review, permission having been granted on behalf of Halil Sahin, of a decision of the Immigration Appeal Tribunal, notified on 27th February of last year, wherein the Tribunal refused leave to appeal against a decision of a Special Adjudicator, dated 8th January 2002.

2. The issue which arises concerns an expert's report, written by Dr O'Shea. This report was not before the Adjudicator.

3. In the grounds of challenge, dated 24th January 2002, at paragraph 10, counsel, Mrs Baruah, who has appeared on behalf of the claimant, wrote:

"The Tribunal are therefore respectfully requested to await an expert report which has been requested from Marie O'Shea in respect of the appellant regarding the issues of sufficiency of protection and the ability of the appellant to avail himself of internal flight. The report is in the process of being prepared and should be ready at the end of next week".

4. The "end of next week" was in fact 1st February 2002.

5. The document, entitled Grounds of Challenge, accompanied the grounds of appeal, also dated 24th January 2002.

6. On 8th February at 11.24 am, the report was served on the Immigration Appeal Tribunal offices in Loughborough by recorded delivery and thereafter transmitted to the Immigration Appeal Tribunal premises at Field House on 14th February, apparently being received there on that date.

7. It was on 14th February that the Vice President made his decision and when he did so, the expert's report was not before him. That fact has been conclusively established by a statement from Joanna Charalambous, dated 4th November 2002.

8. Mrs Baruah submits that, from the terms of the judgment of the Vice President, it is not clear whether or not the expert's report was before the Tribunal.

9. Paragraph 3 of that report is in these terms:

"I have considered the grounds of appeal in relation to the determination of the Adjudicator and the evidence before her. The burden of proof is upon the applicant and he failed to satisfy the Adjudicator on the evidence that his accepted fear of non-state actors engaged either the Refugee Convention or the European Convention on Human Rights. In both cases it was her conclusion that there was no satisfactory evidence that the state would not provide such protection as was necessary to avoid the need for internal surrogate protection of the applicant and his family. The applicant does not appear to dispute this because he seeks to bring expert evidence on that issue but there is no claim that such evidence could not have been put before the Adjudicator. There is nothing to show that the expert evidence sought will assist the applicant. The issue is whether it can arguably be said that the decision of the Adjudicator is not sustainable on the basis of the evidence before her. I do not consider that it is realistically so arguable. There is no error of law or of approach on her part and the decision made was properly open to her on the evidence for the reasons that she gives".

10. Mrs Baruah prays in aid a document, headed Summary Grounds of Resistance, dated 11th June 2002, in which counsel -- not Mr Daniel Beard, who has appeared on behalf of the interested party, but other counsel -- drafted a document in which it was asserted that the Tribunal had in fact considered the report. The evidence of Miss Charalambous establishes as a fact that the Tribunal did not consider the report.

11. In general terms, it is submitted by Mrs Baruah that I should allow this claim for judicial review and remit the matter to the Tribunal so that the Tribunal may itself decide whether to consider the expert evidence of Dr O'Shea. It is submitted that an administrative error was responsible for the report not being before the Vice President, it having been served six days earlier, and further, the matter was compounded by the Vice President giving judgment in terms which failed to make it clear that the report was not before him when he made his decision.

12. Had he made his decision clear, an application could have been made pursuant to rule 19(1) of the Immigration and Asylum Appeals Procedure Rules 2000 (hereafter referred to as "the Rules") for a review of its decision on the grounds that it was wrongly made as a result of an administrative error by the Tribunal.

13. The combination of the failure to place the report before the Vice President and his opaque judgment has resulted, it is submitted, in unfairness which this Court can remedy by the exercise of its supervisory powers.

14. On behalf of the Secretary of State, Mr Beard contests this claim, submitting in short that the claimants are the authors of their predicament, that the Rules do not require the Tribunal to consider the fresh evidence, and that, in any event, the consideration of Dr O'Shea's report could not possibly assist the claimant, having regard to information which was already before the Adjudicator.

15. I turn to the immigration history. The claimant is a citizen of Turkey, born on 1st January 1971, who arrived in the United Kingdom on 25th May 2001 and claimed asylum. His asylum claim was refused on 10th July 2001. He appealed against this refusal and the appeal was dismissed in a determination promulgated on 8th January 2002. The claimant sought leave to appeal to the Immigration Appeal Tribunal and leave was refused in a determination promulgated on 27th February 2002.

16. The claimant's fear of persecution and/or treatment contrary to Article 3 stems from his assertion that he is a target in a blood feud, by reason of the fact that his father killed someone by the name of Arap Yusuf in approximately 1997 because of a dispute over boundaries and farm land.

17. The Adjudicator accepted, at paragraph 5.2, that in principle the family itself could constitute a social group, and concluded that the appellant could fall into a Convention reason. She stated:

"They are the target of the persecution by virtue of their membership of that particular family and for that reason alone".

18. However, the Adjudicator went on to conclude that:

"There is no evidence that because of the blood feud itself the family would not be able to seek the protection of the state".

19. The Adjudicator had already found that the claimant had the opportunity to explain to the police his predicament when the police came to the family home in Istanbul, and she did not accept the reasons given by the appellant for his failure to approach the authorities and seek protection. She concluded that there was the machinery for the protection of the claimant and his family, but the claimant had chosen not to avail himself of the protection available.

20. There was in her judgment no failure to provide protection, either on the grounds alleged by the claimant, or on any discriminatory or Convention reason basis, and accordingly, she could not find the appellant to be a refugee under the 1951 Refugee Convention.

21. It is important to note that at paragraph 5.1, the Adjudicator had said:

"His fears could be taken seriously if there were any objective evidence at all of the level of corruption or influence which he describes anywhere in Turkey. In its absence I can only find that the appellant has, in claiming to be afraid to seek protection, done no more than reduce his claim to uncorroborated allegation, allegation that cannot show any real risk of persecution as claimed".

22. The claimant then appealed to the Tribunal and, on counsel's advice, the expert's report was sought from Marie O'Shea, dealing with blood feuds and the extent of corruption in Turkey. As I have already indicated, that report arrived at the Tribunal's premises on the very day of the determination, but never found its way to Mr Barnes, the Vice President who refused leave.

23. In refusing permission to apply for judicial review on paper, Harrison J commented:

"Under rule 18(11) of the Immigration and Asylum Act Procedure Rules 2000 the Tribunal is not required to consider the fresh evidence unless it is satisfied that there were good reasons why it was not submitted to the Adjudicator. No good reason has been advanced as to why Marie O'Shea's report was not produced before the Adjudicator".

24. An oral renewed application was made to Crane J, who granted permission to apply in a three page judgment in which he found that there was a discretion in the Tribunal to consider the report, and found himself unable to say that the Tribunal would necessarily have found the comments of Dr O'Shea as either irrelevant or carrying no weight.

25. In conclusion, he invited the Secretary of State to consider whether the decision should be reviewed, rather than have the expense of proceedings for judicial review.

26. I turn to rule 18 of the Rules, which states, so far as is relevant:

"(1) An appeal from the determination of an adjudicator may be made only with leave of the Tribunal.

(2) An application for leave to appeal shall be made not later than 10 days, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.

(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended.

(6) The Tribunal shall not be required to consider any grounds other than those included in that application.

(11) Subject to section 77, where evidence which was not submitted to the Adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal unless it is satisfied that there were good reasons why it was not submitted to the Adjudicator".

27. Rule 19:

"(1) Where the Tribunal has refused an application for leave to appeal, the appellant may apply to the Tribunal to review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal.

(2) An application under paragraph (1) shall --

(a) be made not later than 10 days after written notice of the decision refusing leave to appeal was received by the appellant;

(b) be in writing;

(c) identify all matters relied on; and

(d) be accompanied by copies of all relevant documents.

(3) In addition to its power to review a decision on an application made under paragraph (1), the Tribunal may, of its own motion, if satisfied that the interests of justice so require, not later than 10 days after sending to the appellant notice of its decision, review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal".

28. I consider at this stage whether there were any good reasons why the expert's report was not submitted to the Adjudicator. I have been referred to Farhad Azkhosravi [2001] EWCA Civ 977 for the proposition that the Court should be slow to exclude material which was not previously adduced, and I bear in mind Keene LJ's citation of Latham~J in Aziz [1999] 1NLR 355:

"In my judgment, they are right insofar as Ladd v Marshall requires that the evidence could not have been obtained with due diligence. That would be an unjustifiably restrictive approach in this sensitive and difficult jurisdiction".

29. In the present case, as Mrs Baruah concedes, the only reason there was no expert's report before the Adjudicator was because nobody put their mind to it. Mrs Baruah was not instructed at that stage, and whilst there has been no change of solicitor, the personnel who represented the appellant before the Adjudicator have left the firm. It was a very obvious omission on the facts of the present case and could not in my judgment constitute a good reason within rule 18(11). It is to be noted that Azkhosravi was a decision concerning the Asylum Appeal Procedure Rules 1996, and in particular rule 27(3), which was in less demanding terms than the 2000 Rules.

30. The fact that the report was not before the Adjudicator, and there is no good reason for that omission, is a relevant fact in my judgment, albeit not the decisive factor.

31. I go on to consider the fact that, by rule 18(2) of the 2000 Rules, an appeal from the determination of an Adjudicator must be made not later than 10 days after the appellant has received written notice of the determination against which he wishes to appeal. It is manifest that any new evidence that was not before the Adjudicator, which the claimant seeks to rely on, must also be filed within that time, along with, or prior to, the making of the appeal.

32. I accept Mr Beard's submission that evidence not accompanying, or produced prior to, the appeal cannot be said to be relied upon for the purposes of the application for leave to appeal, as referred to in rule 18(11). I also accept that to read the Rules any other way would remove any time limit upon the service of evidence in applications for leave to appeal, so long as reference had been made to the prospect of such evidence being produced in the application for leave to appeal.

33. An issue has arisen between the parties as to whether or not an application was made to extend the time limit within the meaning of rule 18(3). Mrs Baruah contends that paragraph 10 of her document, entitled Grounds of Challenge, concluding with the words "the report is in the process of being prepared and should be ready at the latest by the end of next week" constituted in itself a formal application to extend the time limit.

34. I reject that submission, which appeared to be ex tempore in origin. Whilst no specific form, or court form, exists for an application to extend a time limit, such application must in my judgment necessarily be made in a document which states the nature of the application. No correspondence was produced referring to any application to extend a time limit. It seems to me that, so soon as the claimant learned that the expert's report was not available within the time limit, he should have made formal application to the Tribunal to extend the time limit for making the application for leave to appeal.

35. A condition precedent to extending a time limit under rule 18(3) is that the Tribunal must be satisfied that, because of special circumstances, it is just for the time limit to be extended. Nowhere in Mrs Baruah's grounds of challenge was reference made to any special circumstances.

36. Mrs Baruah submits that, since the Adjudicator refused the claim for lack of objective evidence, the special circumstances justifying an extension were self-evident from the document entitled Grounds of Challenge.

37. I reject that submission and indicate that I can find no special circumstance which would justify the extension of a time limit in the present circumstances, having regard to the initial failure to obtain the report, compounded by a failure to obtain an extension of time.

38. The situation which has arisen has much in common with the case of Nuredini v Secretary of State (Unreported) 9th July 2002, a decision of Ouseley J in this Court. In that case, the claimant lodged an application for leave to appeal to the Immigration Appeal Tribunal from an Adjudicator's determination, and in the application stated:

"We shall forward the grounds of appeal when available".

39. The date for the final lodgement of the grounds of appeal was 25th April. On 20th April, the Immigration Appeal Tribunal took its decision rejecting the application for leave. On 25th April, the claimant lodged grounds of appeal.

40. Even though the grounds were lodged within the time limit set out in rule 18(2), Ouseley J concluded that rule 18(6), which states the Tribunal shall not be required to consider any grounds other than those included in that application, a reference to prospective material being provided to the Immigration Appeal Tribunal was not sufficient to amount to an articulation of grounds of appeal relied upon, and therefore requiring consideration.

41. I accept Mr Beard's submission that a reference to a prospective service of evidence is not sufficient to constitute reliance upon that evidence in an application for leave to appeal. I have also had regard to the Practice Direction number 4, issued by the President of the Immigration Appeal Tribunal on 4th October 2000, in relation to those Rules. It is reported in 2001 Immigration Appeal Reports at page 172. This was not cited before me in argument. Paragraph 2.2 reads:

"If an applicant seeks to rely on any evidence which was not submitted to the Adjudicator, he must include in his application a full explanation of why that evidence was not so submitted. The Tribunal will not in deciding whether to grant leave to appeal consider any such evidence unless satisfied that there are good reasons why it was not submitted to the Adjudicator (rule 18(11)). A decision by an appellant or his representative for whatever reason not to submit the evidence will not normally be regarded as a good reason for not having submitted it. Similarly, if the evidence existed and could by reasonable steps have been submitted, the Tribunal is unlikely to decide that there was a good reason for not submitting it. If no explanation is given, the Tribunal will almost certainly not take the evidence into consideration".

42. From the preceding several paragraphs, it will be apparent that the claimant in my judgment had failed: one, to apply for an extension of time; two, to provide any good reason why the report was not submitted to the Adjudicator; and three, to provide any special circumstances justifying either an extension of time, or indeed any other explanation to the Tribunal.

43. Mrs Baruah, however, turned her attention from rule 18 to rule 19 and submitted that, had the Immigration Appeal Tribunal clearly stated that the report was not before them at the date of the decision, it would have been open for the claimant's representatives to have made an application under rule 19(1), and further, it would have been open to the Tribunal themselves, under rule 19(3), to have reviewed the decision of their own motion in the light of the material contained in the report.

44. She draws attention to the fact that rule 19 is in mandatory terms, namely that the application shall be made not later than 10 days after written notice of the decision refusing leave to appeal was received by the appellant. In short, she submits that the Tribunal's refusal is flawed for lack of clear reasons.

45. Mr Beard submits that, on a simple reading of the very short judgment, it is clear that the expert's report was not before the Vice President. The critical word is the word "seeks". I quote:

"The applicant does not appear to dispute this because he seeks to bring expert evidence on that issue".

46. For my part, a natural reading of the judgment indicates to me that the report was not before the Vice President, and Crane J appears to have drawn a similar conclusion. If, however, the claimant considered that the judgment was opaque at the time it was promulgated, an elementary step would have been to have made a written enquiry of the Tribunal.

47. Mrs Baruah also relies upon the fact that counsel instructed by the Secretary of State -- not Mr Beard -- who drafted the summary grounds of resistance on 11th June 2002, read the judgment as indicating that the report had been considered by the Tribunal.

48. I am bound to say that I consider he was in error. Not only is the word "seek" used as above, but in the following sentence, the judgment reads:

"There is nothing to show that the expert evidence sought will assist the applicant".

49. If I am wrong and the judgment was reasonably susceptible to this interpretation, the claimant should have either sought clarification or taken the appropriate steps pursuant to rule 19.

50. Having rejected the claimant's arguments on both rules 18 and 19, it must follow that this application fails. However, I should go on to make it clear that in my view there is no possibility that the evidence in question could possibly have made any difference to the Tribunal's decision, even if considered by them.

51. Mrs Baruah indicated that she did not intend to rely upon the claimant's Convention rights, but upon Article 3 of the Convention. Whilst the Adjudicator believed certain aspects of the claimant's evidence, she noted that the claimant failed in his interview to mention the link between the Arap Yusuf family and the police and other Turkish authorities, which he now claimed as the crux of his fear. The Adjudicator found that the overarching influence of the Arap Yusuf family, which the appellant claims prevents his return to Turkey, is simply a useful construction.

52. Dr O'Shea's report gives general background evidence about the situation in Turkey. That background information was before the Adjudicator in any event by reason of the fact that she had before her the Home Office Country Information and Policy Unit for 2001, which deals with a lack of independence in the judiciary and general discrimination within the system.

53. Nothing in either the report, nor the 2001 report, nor indeed the 2002 report, could possibly have affected the crucial issue in the adjudication, namely: was the influence of the Arap Yusuf family so extensive and far reaching as to prevent the claimant's return to Turkey? Whilst the expert's report does deal with the subject of blood feuds, it is entirely silent as to the influence or otherwise of the Arap Yusuf family.

54. There is no merit in this application and, accordingly, it must fail.

55. MR BEARD: My Lord, I am grateful. Might I make three very brief points?

56. MR JUSTICE HENRIQUES: Yes, of course.

57. MR BEARD: At the outset, your Lordship referred to the "end of next week", which was the point referred to in my learned friend's grounds of appeal as being 1st February 2000. I may have misheard, but it must be 2002, my Lord.

58. MR JUSTICE HENRIQUES: Did I say 2000?

59. MR BEARD: I may have misheard.

60. MR JUSTICE HENRIQUES: That will be corrected.

61. MR BEARD: In your Lordship's reference to the Adjudicator's decision, your Lordship referred to paragraph 5.1 and mentioned a "family group". I think the Adjudicator's judgment at 5.1 refers to the family constituting a "social group" for the purposes of the Convention, my Lord.

62. MR JUSTICE HENRIQUES: Yes.

(Pause).

63. I said?

64. MR BEARD: I think your Lordship said "family group", and I think the finding of the Adjudicator, certainly in 5.2, is that the family could constitute a "social group", because that would be necessary for a Convention finding. It would not be necessary for Article 3, I accept.

65. MR JUSTICE HENRIQUES: It may be that I was quoting there from Crane J's judgment.

66. MR BEARD: I apologise, my Lord.

67. MR JUSTICE HENRIQUES: No, no.

68. MR BEARD: In the last part of your Lordship's judgment, you said:

"For my part, the natural reading was that the judgment was not before the Vice President".

69. It must mean --

70. MR JUSTICE HENRIQUES: Yes, the report.

71. MR BEARD: My Lord, I am grateful.

72. MR JUSTICE HENRIQUES: Mrs Baruah, anything?

73. MRS BARUAH: My Lord, no, except for a reference, I believe, to the Adjudicator as a male, rather than a female. That is a minor point, my Lord.

74. MR JUSTICE HENRIQUES: I am sorry. You are quite right. The Vice President was male and the Adjudicator was female.

75. MRS BARUAH: My Lord, there are just two other points in respect of the judgment.

76. Your Lordship was kind enough to indicate during the judgment that Mr Beard was not responsible for the summary grounds of resistance.

77. MR JUSTICE HENRIQUES: Yes.

78. MRS BARUAH: Bearing in mind the terms of your judgment, and certainly for selfish reasons, I would be grateful for an indication in the judgment that I was not the representative before the Adjudicator. It is not clear anywhere within your Lordship's judgment, and I hope your Lordship understands why --

79. MR JUSTICE HENRIQUES: Yes, of course.

80. MRS BARUAH: -- somewhere therein that I have taken over the matter, as it were, in drafting the grounds for the Tribunal.

81. MR JUSTICE HENRIQUES: Yes. I fully appreciate, because had you been such a person, there would have been an oversight on your part.

82. MRS BARUAH: Your Lordship makes a criticism, which I accept.

83. MR JUSTICE HENRIQUES: What I am minded to do, if you are both in agreement, as it may well be that this judgment is of interest to some people, particularly having regard to the reliance that is being placed upon Ouseley J's judgment, to which I referred, that this is a judgment which may well be looked at by others in the future, for any number of reasons -- what I am minded to do is, when it is transcribed, to ask each of you if you would look at it and correct it, as you wish?

84. MRS BARUAH: I am very grateful, my Lord.

85. MR JUSTICE HENRIQUES: I should say "as appropriate", rather than "as you wish".

86. MRS BARUAH: My Lord, the only other point was, you may recall from my submissions the day before yesterday, that the solicitor and the representative in fact who represented Mr Sahin at appeal are not working at my instructing solicitors.

87. It is a minor point, but there have been some serious criticisms made of the representation and presentation of Mr Sahin's case, and that has, obviously, put us in some difficulty.

88. MR JUSTICE HENRIQUES: Yes.

89. MRS BARUAH: My solicitor is not behind me at present, but he did tell me that was the case on Wednesday, and I do know that the representative has left the firm.

90. MR JUSTICE HENRIQUES: I see. So you would like some reference to a change of personnel, would you?

91. MRS BARUAH: Yes, a change of personnel, my Lord.

92. MR JUSTICE HENRIQUES: What I will do is I will ask -- it would be wrong, I think, for me to order an expedited transcript, but I will ask if it can be transcribed sooner rather than later, whilst it is fresh in each of our minds, and if you would like, what I have in mind is something like:

"Whilst there has been no change of solicitors, there has been a change of personnel within the firm".

93. MRS BARUAH: I would be very grateful for that, my Lord.

94. MR JUSTICE HENRIQUES: If you would like to put that in, as you wish, and you will both have an opportunity of considering the draft.

95. MR BEARD: My Lord, just on logistics, if it would be possible, if my learned friend has any suggested corrections, and similarly if we do, perhaps we could exchange them, just in case there are any disagreements about it?

96. MR JUSTICE HENRIQUES: Of course. It will be as if it were a hand down judgment, in effect.

97. MRS BARUAH: My Lord, I am instructed to ask for leave to appeal in respect of this matter.

98. MR JUSTICE HENRIQUES: Yes.

99. MRS BARUAH: My Lord, I am in some difficulty because, obviously, I do not have the transcript in front of me.

100. MR JUSTICE HENRIQUES: No, of course.

101. MRS BARUAH: But, as your Lordship has acknowledged, this is a case that is likely to form a precedent in terms of the documents that are accepted by the Tribunal, and in what circumstances they are accepted. Therefore, my Lord, I am asking for leave, both in respect of the matter relating to --

102. MR JUSTICE HENRIQUES: Yes. Leave to appeal is refused on the grounds that it has no prospect of success.

103. MRS BARUAH: My Lord, yes.

104. My Lord, I believe that I am now legally aided in this matter. May I ask for detailed legal aid assessment?

105. MR JUSTICE HENRIQUES: Subject, I suspect, to lodging the certificate within seven days. It is an appropriate case.

106. MRS BARUAH: I am grateful, my Lord.

107. MR JUSTICE HENRIQUES: I am grateful to you both for the very helpful way you have both conducted the case.

108. MRS BARUAH: I am grateful, my Lord.