Neutral Citation Numbr: [2003] EWHC 355 (Admin)
Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF SERGIY SHVETSOV
(CLAIMANT)
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT)
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MR C JACOBS appeared on behalf of the CLAIMANT
MISS J ANDERSON appeared on behalf of the DEFENDANT
Thursday, 13th February 2003
J U D G M E N T
MR JUSTICE SULLIVAN: This is an application for judicial review of the Secretary of State's decision refusing to accept that certain representations made on behalf of the claimant were sufficiently significant and credible to found the basis of a fresh claim, and to certify the claim under section 73(8) of the Immigration and Asylum Act to the effect that one purpose of the application was to delay the removal of the claimant from the United Kingdom and that the claimant had no legitimate purpose for making it.
The background to the matter is as follows. The claimant left the Ukraine in December 2000. He remained for a while in France and then arrived in the United Kingdom in February 2001 and claimed asylum. His claim was refused. He appealed and his appeal was heard by an Adjudicator on 22nd August 2001. The Adjudicator recorded that:
"The appellant claimed that he left the Ukraine at the end of December 2000. The reason he left was because he had to go into the army".
Having considered the evidence, the Adjudicator said in paragraph 12.1 under the heading Findings:
"The appellant's claim is based upon:
a. his conscientious objection to military service and that the punishment for refusal to serve would be persecutory in nature, and
b. his medical condition is such that if required to undertake military service, that would be persecutory in itself, or amount to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights".
As to the first of those claims, the Adjudicator did not accept that the claimant had any deeply held conscientious objection to military service and he said that the objective material indicated that the nature of the punishment for draft evasion was not persecutory in nature. Thus, he concluded that the claim to fear persecution or inhuman or degrading treatment on account of refusal to perform military service must fail.
The Adjudicator then dealt with the claimant's medical condition, "namely his phobia with regard to all things military". Before the Adjudicator there were two certificates. One of those certificates stated that the claimant was an outpatient at a regional psychiatric and neurological hospital, suffering from obsessive and compulsive disorder.
The second certificate of the same date, 5th July 2000, said that the following symptoms had been observed by the doctor examining him:
"High morbid excitation towards every issue relevant to the military (military persons), that expresses in fear anxiety, insomnia, bad dreams, intensified sweating, general weakness, headaches and vertigo".
The doctor recommended that the claimant should avoid being near the locations of military divisions.
The Adjudicator found it likely that these two certificates were genuine and said:
"From the evidence of the appellant it is apparent that these reports were obtained to assist the appellant's father to continue to seek exemption from military service for the appellant on military grounds".
In paragraph 12.7, the Adjudicator said:
"I am unable to find as being likely that the military authorities in the Ukraine have maintained a continuing interest in the appellant because of his failure to answer to his call-up. I am also unable to find as being reasonably likely that they would have had no regard to the appellant's medical condition if he were to return and have to face a possible call-up".
In reaching his findings, the Adjudicator had regard to certain other matters. They included the fact that the claimant was able to leave the Ukraine using his own valid passport, which the Adjudicator thought would have been unlikely if the authorities have been interested in him as a draft evader. He also noted that the claimant was in France for a period of a month and did not claim asylum there when he had an opportunity to do so.
Looking at the whole of the evidence, the Adjudicator found the claimant's account of his claim to be most unsatisfactory. He was in essence satisfied that the claimant's principal objective in coming to this country was to enter and remain for the purpose of visiting his brother.
The Adjudicator's determination was promulgated on 23rd August. On 14th September, the claimant sought leave to appeal from the Immigration Appeal Tribunal. Leave was refused on 8th October. On 15th October, the claimant's solicitors received from the claimant another official document. That official document was dated 27th August 2001 and was from the Military Commissariat of the Ternopil City. It says to the claimant:
"Your following request for exemption from military service following a medical report of the psychiatrist is not enough to grant the exemption. If you do not report to the Military Commissariat by 17th September 2001 the appropriate actions will be taken according to the paragraph about evading of military service".
Having received this document, the solicitors did not transmit it to the Secretary of State. Instead, an application was made for judicial review. This new document was not mentioned in that application.
Permission was refused on the papers on 19th March 2002 and a renewed oral application was refused by Stanley Burnton J on 23rd March 2002. It was not until 24th March 2002 that the claimant's solicitors drew the certificate of 28th August 2001 to the Secretary of State's attention.
In a letter dated 24th March 2002, the day after the renewed oral applications had been refused, they wrote to the Secretary of State referring to the certificate:
"The appellant has adduced new evidence in the form of an official document dated 27th August 2001 -- copy attached with translation -- which shows that the military authorities refused to accept the appellant's medical condition as grounds for exemption from military service. Please note that the original document is in our possession and is available for inspection upon request. This evidence appears to rebut the Adjudicator's findings that the authorities had either exempted the appellant from military service or that they no longer had any interest in him . . . In the circumstances we would request that you consider . . . a fresh asylum claim based upon the new evidence.
We would submit that the new evidence meets all the criteria for a new claim as set out in rule 346. It is significant and credible; it was not available at the time of the appeal hearing nor when the Tribunal considered the claimant's application for leave to appeal -- the Tribunal's determination was notified 8th October 2001, while the document was received by this firm on 15th October 2001".
On 11th April 2002, the Secretary of State replied that he was unwilling to treat the further representations as a fresh claim. So a further application for permission to apply for judicial review was issued.
On 6th September 2002, Maurice Kay J granted permission on the papers, saying:
"It is just about arguable that the Secretary of State for the Home Department has misunderstood/misdirected himself as to the facts".
In the light of that observation, the Secretary of State reconsidered the matter and his new decision is set out in a letter dated 31st October 2002. In that decision, the Secretary of State said that he was:
" . . . not satisfied that the material provided is sufficiently significant or credible to found the basis of a fresh claim, nor has he been provided with evidence that shows that it was impossible for your client to produce such a document at an earlier stage".
In paragraph 2, the Secretary of State said that on its face, the claimant's case fell far short of demonstrating:
" . . . that he has a well founded fear of persecution on return on account of his religion, race, political opinion, nationality or social group".
Paragraph 3 goes on to say:
"On the contrary, the new document provides no indication to support your client's account of being a fugitive wanted by the authorities for escaping arrest in January 2000. Further, the document does not show that your client would suffer treatment that constitutes persecution within the meaning of the Geneva Convention if he were to run to the Ukraine. Finally, the document refers to a request for an exemption on medical grounds alone and does not engage any matter concerning your client's race, religion, political opinions, nationality, social group so as to fall within the scope of the Geneva Convention.
4. Further the Secretary of State notes that no evidence has been provided of the provenance relating to this document. The omission of evidence indicating the circumstances surrounding the creation of this document and how it came into the possession of your client limits the credence that may be attached to the document, particularly in the light of the adverse findings that have been made concerning your client's case during the appeal process. In addition, no evidence has been produced to show that it was impossible for your client to produce any such document at an earlier stage to satisfy the requirements for a fresh claim".
The Secretary of State then went on to consider the claim under the European Convention on Human Rights and said:
" . . . in the light of the conclusions above as to the limited significance and credence that may be attached to the document in these circumstances, and in the overall circumstances of this case, the Secretary of State is satisfied that there would be no breach of the ECHR by upholding the Immigration Rules in respect of your client".
The Secretary of State then went on to certify the application of 24th March 2002 under section 73(8) of the Act.
As I have said, the letter of 31st October 2002 was an entirely fresh decision upon a reconsideration of the application made on the claimant's behalf by his solicitors. It is plain from the face of the document that it was not simply a reiteration of an earlier determination or a letter stating that it was not intended to alter an earlier determination. It is, in terms, a fresh determination upon a reconsideration of the matter.
But, notwithstanding that, it was not until 6th February 2003, more than three months after this fresh decision, that the claimant filed and served amended grounds for judicial review which sought to challenge the new decision upon the basis that it was Wednesbury unreasonable and that certification was Wednesbury unreasonable.
The amended grounds were accompanied by a witness statement from the claimant, dated 12th November 2002, which explains how the new document reached him from his parents and says:
"As soon as I received it I brought it into my Solicitors firm".
It is only fair to record that Mr Jacobs has only very recently been instructed in this matter and he bears no personal responsibility for the delays which have occurred, but I am quite satisfied that there has been wholly unreasonable delay in challenging the decision of 31st October. There is no sensible reason why the challenge to that decision was not made until 6th February 2003.
Moreover, even if one accepts that the claimant did give the report of 27th August 2001 to his solicitors as soon as he had received it -- information which was not placed before the Secretary of State in the letter of 24th March 2002, there is still no explanation whatsoever for the failure to send that document to the Secretary of State until after the conclusion of the first judicial review proceedings. This was simply an exercise in procrastination. The Secretary of State's certificate, far from being unreasonable, was entirely merited.
I indicated to Mr Jacobs that I would consider the substantive arguments as to why the decision of 31st October 2002 was erroneous in law before deciding whether it would be right to grant an extension of time to enable the decision to be challenged. Having considered those arguments, I am satisfied that it would not be right to grant an extension of time.
Mr Jacobs submitted that the new document was credible upon its face, and if it was presented to an Adjudicator, it might be sufficient to allow him to reach a different decision. He referred to the conditions in the military in the Ukraine, the bullying of recruits, for example, and also to the conditions in prisons in the Ukraine. But if one goes back to the Adjudicator's findings, which are not in issue in this case, save to the extent that they might be altered by the document dated 27th August 2001, it is plain that there was simply no basis for the claim under the Refugee Convention.
There is no question of the claimant having any conscientious objection to military service and, even if he had such objection, there is no question of any punishment for draft evasion being persecutory in nature.
Thus, the potential effect of the document, on the assumption that it is genuine, simply goes to the Article 3 claim that compelling this claimant with his medical condition to undertake military service would amount to inhuman or degrading treatment.
The Adjudicator said that it was not reasonably likely that the Ukrainian authorities would have no regard to the appellant's medical condition if he were to return and have to face a possible call-up. It is plain from the face of the document that the authorities did indeed have regard to the claimant's medical condition. Having had regard to it, they concluded that it was not enough to warrant an exemption. There is nothing to suggest that the application for exemption was not considered. The fact that the claimant did not receive the answer that he wished does not mean that his application for exemption on medical grounds was not considered.
As the Secretary of State said in paragraph 3 of the letter of 31st October, the new document does not suggest that the claimant was a fugitive or wanted by the authorities for escaping arrest. It says that if he does not report to the Military Commissariat by 17th September 2001, then appropriate action would be taken. Nor does the document show that the claimant would suffer treatment which constitutes persecution, and it is plain that exemption was sought not on any ground under the Refugee Convention, but simply on medical grounds, and that application was considered by the authorities but not accepted.
Thus, it is clear that there was no force in the asylum claim. What of the Article 3 claim? The Secretary of State observed in paragraph 4 of the letter that no evidence had been provided of the provenance of the new document. That is true. The letter of 24th March 2002 did not explain how the document arose, nor how it came into the solicitor's hands.
The Secretary of State said that this limited the credence that could be attached to it. He was fully entitled to reach that view, absent any explanation as to how the document came into existence, or how it came into the solicitor's hands; in particular, absent any explanation as to how a document dated 27th August 2001, which is of some significance, according to the claimant, was only placed in the hands of the claimant's solicitors on 15th October 2001 after the Immigration Appeal Tribunal had notified its decision to refuse leave to appeal.
The Secretary of State went on to say that no evidence had been produced to show that it was impossible to produce the document at an earlier stage. Again, that is true. All the solicitors said was that they had received the document on 15th October 2001. They did not give any indication as to when the claimant had received this document, dated 27th August 2001.
That information was not provided, and then in very general terms, in the claimant's witness statement of 12th November 2002, in which he says that as soon as he received the document, he brought it into his solicitors' firm.
As I have mentioned, there was no explanation whatsoever for the failure to mention the existence of this document between 15th October 2001 and 24th March 2002. Against this background, the Secretary of State was fully entitled to conclude that the document was neither sufficiently significant nor credible to found the basis of a fresh claim.
The delay in producing the document to the Secretary of State, when coupled with the further delay in challenging the decision of 31st October 2002, merely confirm the correctness of the Secretary of State's conclusion that the real purpose of this exercise was to delay the claimant's removal from the United Kingdom, and there was no legitimate purpose for making this fresh claim the day after permission had been refused at the renewed oral application in the first set of judicial review proceedings.
For all of these reasons, I decline to extend time to permit the claimant to challenge the decision letter of 31st October 2002, and make it plain that even if time had been extended, I would have had no hesitation in refusing this application.
MR JACOBS: If I could ask for a Community Services detailed legal assessment order, my Lord?
MR JUSTICE SULLIVAN: You may. There is a certificate on the file.
MISS ANDERSON: My Lord, I do ask for my costs, subject to the usual Legal Aid restriction.
MR JUSTICE SULLIVAN: Can you resist that?
MR JACOBS: No.
MR JUSTICE SULLIVAN: Very well. Then I so order. Thank you both.