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

1. MR JUSTICE ELIAS: This is an application for judicial review following permission granted by McKay J. Originally the application was framed on a number of grounds but permission was limited to one ground only. The case raises a short point concerning the effect of an alleged concession by a Home Office presenting officer before an Adjudicator.

2. I will briefly set out the background to the case so as to understand the way in which the alleged concession arose. The applicant in this case is a citizen of Sri Lanka. She came to the United Kingdom and sought asylum. The basis of her application was that for a period, from 1991 until about 1995, she had been living in an area in Sri Lanka which was under the control of the LTTE. She was forced to give them certain assistance, such as teaching their orphan children and caring for the wounded. She said her younger sister had been forced to join the LTTE and that her brother had been arrested by the Sri Lankan army in 1997, having been suspected of being an LTTE supporter. She said that he had not been seen since.

3. From October 1995 the Sri Lankan army took control of the region. She returned to work, she said, at the family farm. On 20th December 2001 she alleges that she was detained in an army house for about two weeks on suspicion of being an LTTE member and that she was tortured. She said she was kicked and beaten; her hands were tied; she was deprived of food for three days and she was kept in a dark room. She was then transferred to an army camp. She, and ten other detainees, managed to escape when the house was attacked. After escaping, she said she walked through a forest to an unknown house and was given shelter. The owner then contacted her uncle, who came to collect her. They cycled to Java General Hospital. She said that her uncle had arranged for a doctor to secure an ambulance for her to go to the airport. She left Sri Lanka within a day of her escape on 3rd January 2002. There had been no checks or problems at the airport because she had come by ambulance with a medical pass containing her photo. The photograph had been taken on the same day in a studio. She claimed that she had managed to pass through Colombo airport twice without speaking to any officials. She has had no contact with any of her family since 3rd January 2002.

4. The Secretary of State rejected her application. There is a detailed letter setting out the reasons for refusal. It is plain from those reasons that the Secretary of State did not find her story credible. He says at various paragraphs of the decision letter that that is so. For example, paragraphs 15 to 20 each contain observations by the Secretary of State to the effect that he did not believe the story being advanced by the claimant.

5. She then appealed to the Adjudicator. The Adjudicator accepted certain elements of the story. She thought that there may have been some harassment and questioning about other members of the family and possibly suspicions about LTTE involvement. But she considered that the account given by the claimant as to how she had escaped from the authorities and managed ultimately to get to England was simply not credible. She concluded:

"I do not believe the story of the arrest and escape."

She recognised that in the light of cases (such as, in particular, Jeyachandran ) the question was whether the claimant was an exceptional case. In general, following the cease-fire in Sri Lanka, applicants for asylum will be sent back unless they can bring themselves into certain exceptional categories. The Adjudicator concluded that she did not fall into an exceptional category.

6. The basis of the appeal before me is that it was not open to the Adjudicator to make a finding of credibility against the claimant. The basis of that ground is that, it is said, a concession was made by the Home Office presenting officer, who had accepted that the claimant's story was credible. Thereafter, says Mr McGivern for the claimant, the Adjudicator was obliged to accept credibility. Miss Gallafent, for the Secretary of State, accepts that if a concession on credibility had indeed been made by the Home Office presenting officer then it would have been binding on the Adjudicator. That is established in the decision of Immigration Appeal Tribunal v Carcabuk and Bla and The Secretary of State for the Home Department (appeal number 00TH01426). Miss Gallafent does not seek to question the principle established in that case. So the issue at the end of the day falls within a small compass. It is whether, in the particular circumstances of this case, a concession had been made by the Home Office presenting officer as to the claimant's credibility.

7. It is accepted that there was a concession of sorts by the Home Office presenting officer. I have been taken to evidence of this both in the decision of the Adjudicator itself and in the notes of the Adjudicator which have been made available. In the decision, at paragraph 6, the Adjudicator says:

"Miss Chapman relied on the Refusal letter and referred me to the case of Jeyachandran [2002] UKIATO1869 which deals with the current situation in Sri Lanka. She said that there were major inconsistencies/discrepancies in the appellant's story but was willing to accept that they may have arisen from misunderstandings rather than an attempt to deceive."

In the notes that paragraph is essentially reflected. The relevant part is as follows:

"Major inconsistencies in appellant's story. Mostly because she did not understand - not set out to deceive."

The reference I have just made to the Adjudicator's notes are in respect of the submissions of the Home Office presenting officer. There is also a note of the submissions of Mr Hussain for the claimant, and it is as follows:

"Cred witness - accepted by HOPO. No intent to mislead."

Mr McGivern submits that in the circumstances the Home Office presenting officer must be taken to have made a clear and unambiguous concession on credibility. He puts considerable weight understandably on the phrase "not set out to deceive". He submits that that demonstrates that what the Home Office presenting officer was saying was that this claimant should be accepted as a witness of truth.

8. There is a witness statement from the Home Office presenting officer before me in which she says that she did not make a concession as to credibility at the hearing. Mr McGivern submits that that is of no consequence and that if her words, taken in context, could reasonably be construed as a concession, then, whatever her intention may have been, is not to the point. I would accept that. The question still, however, is whether there was in fact a concession made in the circumstances here.

9. Miss Gallafent submits that the concession was a very limited kind. It was accepted by the Home Office presenting officer that although there were inconsistencies and discrepancies in the appellant's story, they should not be held against her; in other words, the claimant should be treated as if her story had at all times been consistent. But she submitted that the presenting officer was plainly not intending to say, and could not be taken in the context to have said, that the story was plausible. She relies on a number of factors to support this construction. First, she points out that the Home Office presenting officer said in terms in the start of her submissions that she was relying on the refusal letter. It would be wholly inconsistent with such reliance for her to have changed the very basis on which the Secretary of State had rejected the application for asylum and to have found the story credible. Second, she submits that if one looks at the notes of her submissions, it is plain that the Home Office presenting officer had made that point at the very beginning of her submissions, and the observation about the inconsistencies was made at a later stage. She said it would be very curious indeed if, in the middle of her submissions, she was intending suddenly to change the basis on which the application for asylum was being refused. Thirdly, she points to the fact that counsel for the claimant did make a number of observations about the refusal letter and, in particular, some of the paragraphs that I have referred to where the issue of credibility had been raised by the Secretary of State. It is clear from the notes that counsel did address the Adjudicator on this matter. Miss Gallafent says that it would be extraordinary for him to have done that if he had understood, in the context that there had been a full concession, that the claimant's story was credible. She says that counsel in such circumstances would have jumped for joy once that concession was made and would simply have focused on the question as to whether, in the light of that concession, and in the light of the experience of this claimant, she should be treated as an exceptional case.

10. In effect, this is linked to the point that if a concession of this kind had been made then it would have changed the whole focus of the argument before the Adjudicator; instead of being one based on the credibility of her account of what had happened to her, it would simply have been a debate as to whether or not that resulted in her falling into the exceptional category so as to be granted asylum.

11. Mr McGivern, as I have said, places great emphasis on the phrase "no intent to deceive". He submits that has a wider connotation than simply constituting a concession that the claimant should not be prejudiced because of inconsistencies in her story. He says that counsel for the claimant would be making submissions on credibility merely as a belt and braces exercise. He also submits that there may have been to some extent a shift in the way that the case was argued before the Adjudicator.

12. In my judgment, the submissions of Miss Gallafent are correct. I cannot see, in the context of factors to which I have just referred, that the language used by the Home Office presenting officer, in the context in which they were made, gave rise to any concession as to credibility. They were, in my view, only limited to conceding that no prejudice should result from inconsistencies in the applicant's story. It would have been astonishing for her to have been conceding that the very substance of the account given by the claimant, in circumstances where that had been the fundamental ground on which she had been refused asylum, particularly having said in terms that she was relying upon the refusal letter. The fact that Mr Hussain, counsel for the applicant, made submissions on credibility, in my view, is wholly consistent with that.

13. I should add this, the claim strictly is against the determination of the Immigration Appeal Tribunal. In its conclusions, in refusing permission to appeal, the Chairman said:

"The fact that the Home Office presenting officer appears to have accepted the applicant's credibility in no sense bound the Adjudicator who has to make her own assessment of credibility."

14. Miss Gallafent accepts that if the reference to credibility in that sentence is indeed to the whole of the applicant's credibility, then that statement discloses an error of law. The Adjudicator would be bound by a concession of that nature. But Miss Gallafent submits that that is not what the IAT intended by the word "credibility" in that sentence, it was intended to have only the more limited meaning of, in effect, a concession as to the consistency of the story being presented by the claimant.

15. I do not accept that. It seems to me that the IAT has acted under the impression that there had been a concession by the Home Office presenting officer as to credibility. If the concept was being used in a more limited sense, then I think the IAT would have said so. This does not assist the claimant at the end of the day. I have to be satisfied that, if I were to send this matter back for consideration, there would be a real prospect of success. I do not think there is such a prospect for the reasons I have set out. I do not think that the alleged concession which is relied upon was indeed made by the presenting officer.

16. I should add that it has not been suggested in this case that there has been any direct prejudice to the claimant as a result of a misunderstanding as to precisely what concession was being made. Plainly, there may be circumstances where a concession is intended in one way and may be construed in another such as to give rise to an unfairness, albeit unwittingly; perhaps for example a claimant's representative does not conduct the case in the way he or she would have done had he not acted under a misapprehension as to the concession being made. I simply point out that is not this case. That is not the way in which the case was put and, in fairness, there appears to be no basis in which it could properly have been put on that ground. It seems plain that the case was argued fully and precisely in the same way it would have been whatever understanding of the concession there was by the claimant's representative.

17. Accordingly, in these circumstances, I reject this application.

18. MR MCGIVERN: My Lord, I would ask for a detailed assessment in this particular case?

19. MR JUSTICE ELIAS: Yes.

20. MR MCGIVERN: There is a public funding certificate.

21. MR JUSTICE ELIAS: Yes. Thank you both very much.