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

Wednesday, 18 June 2003

1. MR JUSTICE JACKSON: This is a claim for judicial review. The facts giving rise to this claim are as follows. The claimant, Veysel Dagdelen, was born on 15 September 1977, and is now aged 25. He is an Alevi Muslim. He was born in Karakocan in the east of Turkey and he is a citizen of Turkey.

2. The claimant came to this country in July 2001 and made a claim for asylum. The principal basis of his claim for asylum was that he had a fear of persecution because of his involvement with the PKK and also because he was an Alevi Muslim. The claimant maintained that he had been arrested on five occasions because of his activities as a member of the PKK militia. The claimant further maintained that there was a final incident which caused him to leave the country in circumstances which gave rise to a real fear that he might be killed or injured.

3. The statement which the claimant lodged in support of his claim for asylum included reference to the fate of other members of his family who were allied to the PKK. This aspect is dealt with in paragraph 4 of his witness statement, where he refers to a number of relatives who had disappeared or obtained indefinite leave to remain in this country, and at least in respect of some of them the claimant says he does not know the details of the persecution they experienced. Nevertheless the main thrust of the claim was a fear of persecution for a Convention reason by reason of the claimant's own involvement with the PKK. There was also a fear of persecution by reason of his religion.

4. The claimant was interviewed on 25 September 2001. This was a lengthy interview, the transcript of which spans some 40 pages. There are in the course of this interview some relatively brief references to family members who have been involved with the PKK and have suffered as a consequence. Most of the interview deals with the principal grounds for the claimant's claim to asylum.

5. The Secretary of State considered the asylum claim and refused it by a letter dated 8 October 2001. The Secretary of State gave reasons in that letter for rejecting the principal bases of the claimant's claim to asylum.

6. The claimant appealed to an adjudicator against the Secretary of State's decision. The adjudicator heard the appeal at Hatton Cross on 5 August 2002. The adjudicator promulgated his decision on 2 September 2002. The adjudicator upheld the Secretary of State's decision and dismissed the appeal in respect of asylum. The adjudicator also dismissed a parallel appeal upon human rights grounds.

7. The adjudicator made important findings of fact in relation to the principal bases of claim. These are set out in paragraphs 17 and following of the determination. The adjudicator accepted that the claimant had been arrested on five occasions and subjected to some ill-treatment, although not of the severity alleged by the claimant. The adjudicator concluded that none of the arrests were a result of the claimant participating in PKK activities. In paragraphs 18 to 21 the adjudicator went through the five arrests and analysed what was the cause of each individual arrest. Furthermore, in each case the adjudicator concluded that the circumstances of that arrest did not render the claimant of continuing interest to the Turkish authorities. The adjudicator rejected the claimant's evidence concerning his role in the PKK. In paragraph 22 the adjudicator said this:

"I do not accept his claim that he joined the PKK militia after his military service."

8. The adjudicator did not accept the account given by the claimant of the allegedly dramatic circumstances in which he came to leave Turkey. That account and the adjudicator's analysis of it appear in paragraph 23 of the determination. In paragraph 24 the adjudicator concluded that there was no evidence that the claimant had been persecuted as an Alevi Muslim or that he would be persecuted upon return to Turkey for religious reasons. The adjudicator concluded in paragraph 26 of his determination that the circumstances of the claimant's arrest and the reasons for the claimant's arrest would not give rise to any interest by the authorities in the claimant now. The claimant does not face a serious risk of persecution for a Convention reason in view of the changed circumstances in Turkey. The adjudicator then referred to the background material and the recent change of circumstances in Turkey. At the end of paragraph 27 the adjudicator said this:

"In view of the outcome of the various detentions of the Appellant and my findings in that regard, I would not place this Appellant in a risk category, despite the family history, particularly in view of my rejection of the last alleged incident."

The adjudicator then dealt more specifically with the position of the claimant as a failed asylum seeker. He did this in paragraph 28. He said this:

"I have also considered the position of failed asylum seekers on their return to Turkey. Sections 5.85 - 5.91 in the CIPU Report deals with the issues at some length. 5.87 in particular sets out categories into which the 70 cases of ill treatment on return appear to have fallen. I have assumed that he would be checked out with records and found to have been arrested on a number of occasions but released without charge. I have already decided that he would not be of interest to the authorities because of this past record and I would not consider that there is a serious risk of ill treatment on arrival because of this record. The only other category into which he might fall is that of a person with family connections with the PKK. 2 of the 70 incidents fell into this category. Set against the total number of returnees this is barely measurable and I would not find there is a serious possibility of ill treatment of the Appellant as a result."

9. The claimant, together with his legal advisors, considered the determination of the adjudicator and decided to seek to appeal to the Immigration Appeal Tribunal. The grounds of appeal to that Tribunal are specific and detailed. The document containing the grounds is undated, but it appears at pages 20 to 22 of the bundle. Paragraph 1 of the grounds summarises the findings of the adjudicator on the main issue. Paragraph 2 of the grounds quotes part of paragraph 18 of the determination and criticises that finding by reference to the answer which the claimant gave to question 63 of the interview. Paragraph 3 of the grounds criticises the adjudicator's approach in paragraph 19. It is submitted that the adjudicator erred in his conclusion that the authorities would have no continuing interest in the claimant as a result of his past arrests. In paragraph 4 of the ground there is criticism of paragraph 20 of the determination and reference is made to the claimant's past political activities. It is continued in that paragraph that there would be a record of the claimant's arrest and he would be of continuing interest to the authorities. Paragraph 5 of the grounds criticises paragraph 21 of the determination. It maintains that the adjudicator does not give any, or any sufficient, reasons why he does not accept that the claimant's arrest will lead to continuing interest in the claimant by the authorities. In paragraph 6 of the grounds it is argued that by reason of the claimant's past activities and arrests he must be of continuing interest to the authorities. On the bases of these grounds leave is sought to appeal to the Immigration Appeal Tribunal.

10. Miss K Eshun, a Vice-President of the Immigration Appeal Tribunal, considered the application for leave to appeal on 7 October and promulgated her decision on 18 October. Miss Eshun decided to refuse leave to appeal. In her reasons she states that the grounds submitted in support of the application for leave are attached. She says that she, representing the Tribunal, has considered the grounds in support of the application and the documentary evidence in the adjudicator's determination. She then continues as follows:

"The adjudicator accepted that the applicant was arrested on the various occasions claimed by him and that he was subjected to ill treatment during detention, although perhaps not with the severity he alleged. The Adjudicator found that none of the arrests resulted from his participation in PKK activities. It is this finding that has given rise to the grounds of appeal.

However the Tribunal is of the view that the Adjudicator's finding, which is well-reasoned, is based on a reflection of the evidence that was before him. The Adjudicator properly dealt with returnability and, [in] the light of the objective material, was entitled to reach the conclusions that he came to. His conclusions disclose no misdirection if law.

Accordingly, there is no likelihood of an appeal succeeding were leave to be granted."

On the basis of this analysis the Vice-President went on to set out her conclusion that leave to appeal should be refused.

11. The claimant was aggrieved by refusal of leave to appeal to the Immigration Appeal Tribunal and accordingly commenced the present proceedings. By claim form dated 16 January 2003 the claimant applied to this court for an order quashing the decision of the Immigration Appeal Tribunal promulgated on 18 October 2002 refusing leave to appeal.

12. The claim form set out two grounds upon which it was contended that the Immigration Appeal Tribunal had erred in law. The first ground was this. It was argued that the adjudicator's conclusions were fundamentally flawed in that in carrying out his assessment of the risk to the claimant he entirely failed to take into account the claimant's unchallenged evidence that his brother, Bulent, had been a member of the PKK militia and had disappeared in 1991, and that three uncles and a cousin and been forced to flee from Turkey because of their involvement with the PKK, that two of his uncles and three further close relatives had been granted indefinite leave to remain as refugees in the United Kingdom. The grounds went on to develop this aspect related to the family's involvement with the PKK, and then accepted that this point was not specifically raised in the appeal to the Tribunal but nevertheless asserted that this was an obvious point and one upon which the Tribunal should have granted leave to appeal.

13. The second ground of claim was that the Tribunal's decision to uphold the adjudicator's finding that none of the claimant's arrests resulted from his participation in PKK activities was irrational for four reasons as there set out.

14. Following the commencement of these proceedings Sullivan J considered the matter on the papers. On 25 February 2003 Sullivan J granted permission to apply for judicial review. In his observations Sullivan J said this:

"It is arguable that the adjudicator failed to take account of the political involvement of other members of the Claimant's family in deciding that he would not be at risk on return."

15. Following the grant of permission by Sullivan J the interested party, namely the Secretary of State for the Home Department, lodged detailed grounds of resistance. These grounds contained three principal arguments. The first argument was that the adjudicator did not fail to consider the effect of the claimant's family's involvement with the PKK: on the contrary he did consider it and he came to a determination. In particular, one can see this in paragraphs 17, 27 and 28 of the determination. The second argument was that the claimant's family's political involvement was a subsidiary rather than a central part of the claimant's claim for asylum. The third ground was that no point was taken by the claimant in relation to the adjudicator's failure to deal with the issue of family involvement in his grounds of appeal to the Immigration Appeal Tribunal.

16. Now, it is my recollection that in some cases the Secretary of State has argued by counsel that where a point is not raised in the grounds of appeal to the Immigration Appeal Tribunal it follows that the Tribunal has no jurisdiction to consider the specific point. I have seen in the past such an argument raised by reference to the Immigration and Asylum Appeals (Procedure) Rules 2000. However, in this case the grounds of resistance lodged by the Secretary of State do not take any point on jurisdiction. Instead the Secretary of State argues in his grounds of resistance that applying the well-known test formulated by the Court of Appeal in R v Secretary of State for the Home Department Ex Parte Robinson [1998] QB 929, the point relied upon by the claimant was not an obvious one and was not the kind of point which the Immigration Appeal Tribunal ought to have taken of its own motion. There were other matters developed in the Secretary of State's grounds for resistance but it is not necessary for me to recite those other grounds.

17. Following the lodging of the detailed grounds of resistance this matter was listed for hearing and it has now reached the stage of substantive hearing. Miss Rebecca Chapman represents the claimant and Miss Susan Chan represents the Secretary of State, the interested party. I am grateful to both counsel for their well-focussed skeleton arguments and for their assistance at this hearing.

18. Miss Chapman accepted that the formulation of Sullivan J's decision granting permission to apply for judicial review limited that permission to the first and main ground of the claim for judicial review. Although she had some concerns about the second and subsidiary grounds upon which judicial review is claimed within the claim form, she accepted that it was not open to her to pursue that ground. In this respect the position which Miss Chapman adopted coincided with the position of the interested party as set out in his grounds of resistance and in Miss Khan's skeleton argument for the interested party.

19. Since the second ground of claim does not arise for decision I will not go into it. Suffice it to say that upon reading the documents I have formed the same view of this matter as, at least by implication, was formed by Sullivan J, namely, that it is not a free-standing ground which had any prospect of success in its own right.

20. I turn, therefore, to deal with the one live issue which Sullivan J decided merited the grant of permission to proceed with the claim for judicial review. I have the advantage, which Sullivan J did not have, of having before me the detailed grounds of resistance settled by Miss Khan for the Secretary of State, and also the skeleton arguments for the parties. I have also been furnished with a bundle of authorities for which I am grateful.

21. In relation to the principal, indeed what is now the sole ground of claim, the claimant faces the hurdle that the notice of appeal to the Immigration Appeal Tribunal simply did not raise the point upon which it is now said that the Immigration Appeal Tribunal fell into error. I shall assume for present purposes that under the Immigration and Asylum Appeals (Procedure) Rules 2000 the Immigration Appeal Tribunal would have had jurisdiction if it had seen fit to consider a ground of appeal not raised in the notice of appeal. I make that assumption in the claimant's favour since this matter has not been argued. I shall assume, therefore, that, given the existence of this jurisdiction, the approach to its exercise is that set out in Robinson . Miss Khan for the Secretary of State relies upon Robinson and Miss Chapman for the claimant accepts that Robinson is the governing authority.

22. It would be helpful at this stage for me to set out the relevant passage in the judgment of the court in Robinson which deals with the proper approach of the court to points not raised in the grounds of appeal to the Immigration Appeal Tribunal, which it is said the Immigration Appeal Tribunal ought to have spotted of its own motion. I shall quote from the judgment of the court at 945H-946D:

"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."

23. In her able submissions today Miss Chapman drew attention to the decision of Stanley Burnton J in Kolcak v Immigration Appellate Authority [2001] EWHC Admin 532. In particular Miss Chapman placed reliance on paragraphs 11 and 12 of Stanley Burnton J's judgment. In that judgment Stanley Burnton J said that the same approach should be adopted to arguable errors of fact made by the adjudicator but not raised in the grounds of appeal as the Court of Appeal said should be adopted to arguable error of law made by the adjudicator but not raised in the grounds of appeal to the Immigration Appeal Tribunal. I agree with that reasoning of Burnton J and I adopt the same approach.

24. Miss Chapman submits that in this case there was both an error of fact and an error of law made by the adjudicator. So far as the error of fact is concerned Miss Chapman draws attention to paragraph 17 of the adjudicator's determination. In paragraph 17 the adjudicator referred to the claimant's family having a record of involvement with the PKK. Miss Chapman submits that the adjudicator erred in that he made no more detailed findings about that matter: he did not identify the members of the family; he did not say what happened to them.

25. I do not accept that factual criticism of the adjudicator. It must be borne in mind that the main thrust of the case as presented to the adjudicator was based upon the claimant's own allegedly political and military activities and not upon the involvement of family members. The involvement of family members get a relatively brief mention, both in the claimant's statement and in the interview. Furthermore, in the claimant's statement he says that he does not know the details of the persecution experienced by at least some of the family members to whom he refers. It seems to me that the adjudicator has faithfully taken account of the factual evidence given by the claimant and he cannot be criticised for failing to go into one aspect of the case in a degree of detail greater than that of the claimant and his advisors.

26. Secondly, Miss Chapman submits that the adjudicator made an error of law. The adjudicator's error of law was that he failed to recognise that an individual can be entitled to protection as a refugee on account of the activities of relatives. I do not accept that the adjudicator made that error of law. The adjudicator clearly recognised the existence of that legal principle in paragraph 27 and paragraph 28 of his determination. The adjudicator then proceeded to make his own assessment of the application of that principle to the facts of the present case.

27. It seems to me that the criticism which the claimant's lawyers now make of paragraphs 27 and 28 of the adjudicator's decision are by no means an obvious criticism. The position of family members form only a subsidiary part of the original asylum claim. The adjudicator did not overlook it. He considered this aspect in appropriate detail and he made findings which are set out in particular in paragraphs 27 and 28. No criticism was made of those two paragraphs in the notice of appeal to the Immigration Appeal Tribunal. On the contrary in that notice of appeal criticism was made of the adjudicator's findings on the principal issues as identified by the claimant. I have set out the essence of the grounds of appeal to the Immigration Appeal Tribunal earlier in this judgment and I need not repeat that.

28. The Immigration Appeal Tribunal duly concentrated on the issues presented to that tribunal. Miss Eshun in her decision did not duck the issues raised by the appeal; she considered them and specifically dealt with them and gave reasons for rejecting those grounds of appeal.

29. At one point in her submissions Miss Chapman referred to the Robinson case as being a technical objection to the claimant's claim. With all respect to Miss Chapman and her able submissions, I do not accept that the Robinson test is a technical matter at all. The Immigration Appeal Tribunal is an appellate tribunal which handles an immense volume of appeals and applications. The Robinson test is not a technical stumbling block to trip up meritorious asylum claimants. On the contrary, it is an essential and integral feature of the present system of processing asylum claims and asylum appeals, and the existence and efficient operation of that system is very much in the interests of asylum seekers.

30. I do not consider that the point raised by the claimant in the claim form was an obvious one of the kind which should have occurred to the Vice-President of the Immigration Appeal Tribunal. Nor do I accept that she should have delved into this and granted leave on that basis. It also seems to me, although it is not strictly relevant to this situation, that there was material before the adjudicator which enabled him to come to the conclusions which he did in paragraphs 27 and 28. Therefore even if the Immigration Appeal Tribunal had taken this point of its own motion, I think it probable that the Tribunal would have rejected it.

31. In the course of her submissions on the Robinson case Miss Chapman drew my attention to the decision of the Immigration Appeal Tribunal in the case of Elidemir [2002] UKIAT 00300. This was a case in which the position of family members was specifically raised in the grounds of appeal and it does not seem to me to be of assistance to the claimant in relation to the Robinson point.

32. Miss Chapman next relies upon the decision of the Court of Appeal in Ozcan v Immigration Appeal Tribunal [2002] EWCA Civ 1133. Miss Chapman submitted that in this case the Court of Appeal granted judicial review on similar grounds to those raised in the present case, even though those grounds had not been raised in the original notice of appeal to the Immigration appeal Tribunal.

33. In the light of that submission and in the light of the standing of the court who made the decision upon which Miss Chapman relies it is necessary to examine the Ozcan decision in a little detail. It can be seen from paragraph 1 of the judgment of Potter LJ (with whom Judge LJ and Sir Murray Stuart-Smith agreed) that this matter came before the Court of Appeal as an appeal against a refusal of permission to apply for judicial review of a decision by the Immigration Appeal Tribunal to refuse leave to appeal. However, the Court of Appeal considered that the Administrative Court judge ought to have granted permission to apply for judicial review and the Court of Appeal, instead of leaving matters there, then for very sensible reasons proceeded to deal with the judicial review claim itself. In other words the Court of Appeal was in effect reaching a decision as if it were a first instance court.

34. The grounds of appeal to the Immigration Appeal Tribunal appear in paragraph 12 of the Court of Appeal's judgment. The judgment of the Court of Appeal at paragraphs 13 and 21 makes it plain that the point which commended itself to the Court of Appeal and upon which the Court of Appeal decided to grant judicial review was a point which had been specifically canvassed in the notice of appeal from the adjudicator to the Immigration Appeal Tribunal. I therefore come to the conclusion that the Court of Appeal's decision in Ozcan does not assist the claimant in the present case in overcoming the hurdle posed by the fact that the points now pursued were not raised in the notice of appeal to the Immigration Appeal Tribunal.

35. Miss Chapman next placed reliance upon the decision of Dyson J in R v Immigration Appeal Tribunal Ex Parte Shen , [2000] INLR 389. Nevertheless, upon examination of that decision it can be seen that Dyson J was merely applying the Robinson test to the facts of the case before him. Furthermore the facts of that case were far removed from the facts of the present case. Although I have read this judgment with interest, I come to the conclusion that it does not directly assist me in the task which I face, or indeed the claimant, in the submissions which he makes.

36. I have come to the conclusion that it is quite impossible to say that the Immigration Appeal Tribunal erred in law in refusing leave to appeal in the present case. The Immigration Appeal Tribunal properly and fully considered all the matters which were placed before it and in a concise and reasoned decision the Vice-President dealt with the proposed grounds of appeal. The matter which is now pursued in these judicial review proceedings was not raised in that notice of appeal. It was not one of such degree of obviousness that the Tribunal ought to have spotted it and taken it of its own motion. Furthermore, it seems to me that when the point is analysed the adjudicator reached a decision which was open to him.

37. For all these reasons the sole ground upon which this claim is pursued must fail and the claim for judicial review is dismissed.

38. MISS CHAPMAN: My Lord, I merely ask for taxation. The claimant is in receipt of public funding from the legal services. We do have a certificate. May I have time to lodge it?

39. MR JUSTICE JACKSON: Yes, certainly.