R. v. Secretary of State for the Home Department, Ex parte Suat Bakis
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 3 November 1995 |
| Cite as | R. v. Secretary of State for the Home Department, Ex parte Suat Bakis, United Kingdom: Court of Appeal (England and Wales), 3 November 1995, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6504.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
SUAT BAKIS
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)
Held
1. The assessment of credibility did not necessarily depend on seeing an appellant, as counsel had argued. Two firms of experienced solicitors had made written submissions but those submissions had lent no support to any credibility on behalf of the applicant who had damaged his credibility by telling different stories at different interviews. 2.If counsel's submission were upheld it would apply to every case of political asylum where an applicant did not turn up before an adjudicator and then asserted he had another unidentified story which might be credible. 3.The Secretary of State's decision was not unreasonable. Miss J Francis for the applicant H Harrop-Griffiths for the respondentCase referred to in the judgments:
R v Secretary of State for the Home Department ex parte Suat Bakis (unreported, QBD, 1 November 1995).LEGGATT LJ:
Schiemann LJ will give the first judgment.SCHIEMANN LJ:
This is a renewed application for leave to move for judicial review, leave having been refused by McCullough J. The decision of the Secretary of State for the Home Department which is sought to be impugned is one made under section 21 of the Immigration Act 1971 which reads:"Where in any case-
(a)an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal...
the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal.
(2)Any reference under this section shall be to an adjudicator or to the Appeal Tribunal, and the adjudicator or Tribunal shall consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator or the Tribunal thereon."
The background to the present case is helpfully set out in the Form 86A and is as follows:"The Applicant is a Turkish national of Kurdish ethnic origin who arrived in the United Kingdom on 20th April 1994 and applied for asylum on arrival."
He was interviewed on 20 April and interviewed again on 29 April 1994 and he was refused asylum by a letter dated 18 August 1994 to which I shall come. As a result of the refusal of asylum, the applicant was refused entry. On 30 August 1994 he lodged an appeal on asylum grounds against the refusal of entry pursuant to section 8(1) of the Asylum & Immigration Appeals Act 1993. He was at that stage being advised and represented by solicitors Winstanley-Burgess. On or shortly after 11 March 1995 he was informed in writing that his appeal was to be heard by a special adjudicator on 3 August 1995. His intention was to attend the appeal hearing in person and give evidence. But he was without the representative since he was unable to afford the fees that would be payable. Shortly after 26 July 1995 the applicant received a letter of that date from Winstanley-Burgess informing him that, inter alia:"If I do not hear from you by 31st August I will write to Immigration Appeals on that date and inform them that you will not be represented at your appeal."
The applicant says that as a result of this he assumed that there would not be any appeal hearing on 3 August as he had heretofore supposed and that the hearing would be on some date after 31 August 1995. What had happened was apparently some muddle in Winstanley-Burgess's office. All of this was unknown to the adjudicator who, in the absence of the appellant, on 3 August dismissed in a written determination sent to him on 16 August 1995 his appeal on the basis that he did not believe the applicant's version of events. Shortly after receipt of the determination the applicant telephoned Winstanley-Burgess and was given an appointment to attend their offices on 29 August 1995 which he did, but by this time his time-limits for appeal to the Immigration Appeal Tribunal had expired on 25 August. Thereupon, he went to new solicitors Birnberg & Co and they asked the Secretary of State to exercise his powers under section 21 which I have read. It is useful to refer now to the original refusal letter of 18 August 1994 in which the Secretary of State set out his view of the matter. It is not necessary to read it all but he says this crucially:"According to information you gave when interviewed on arrival in the United Kingdom, you had never been arrested and you did not claim any involvement with any political organisations. You also claimed that your journey to the United Kingdom had not been organised by any organisation. When you were interviewed on the second occasion, you claimed to have been a member of the TKP-ML and that they had arranged your journey to the United Kingdom, but you did not give anything other than extremely superficial information about the organisation. When asked why you had not mentioned the organisation when you were first interviewed and why, in your second interview, you were refusing to give any detailed information about them, you said that the organisation had told you to say nothing until you had consulted a solicitor, and that you could not give detailed information about TKP-ML because you feared that information could be relayed back to Turkey and endanger the lives of the organisation's members there. However, the Secretary of State does not consider it credible, if you had been advised to say nothing until you had consulted a solicitor, that when you first arrived in the United Kingdom you would, when asked if you had ever been arrested, have replied that you had not, and then gone on to say that your house had been raided and your uncle had been shot by the security forces. He considers it more likely that, if your organisation had advised you not to say anything until you had consulted a solicitor, you would have refused to comment when asked questions at that time."
After a further passage about the Handbook he goes on:"The Secretary of State does not accept that your refusal to give further information about the organisation you claim to have been involved with was due to any instruction that organisation may have given you or that you feared that information you gave would get back to Turkey. He is led to believe that you did not give substantial information about the organisation of which you claimed to be a member because you possessed little knowledge of that organisation. Consequently he doubts that you were a member of TKP-ML, that you were arrested as claimed in your second interview, and that you are wanted in Turkey. He attaches little weight to the claims made in your second interview, and considers that information you gave when you first arrived in the United Kingdom is more likely to be the truth."
He goes on to say that on the basis of the first story there was here no ground for asylum. In essence, as will be seen, this is one of those cases where the immigrant changes his story between the first and second interview and the story as told in the second interview is disbelieved by the Secretary of State. When the matter came before the special adjudicator, for the reasons I have indicated, he carried on in the absence of Mr Bakis and he, in substance, followed the reasoning of the Secretary of State. He points out that Messrs Winstanley-Burgess submitted a further statement by the appellant to the respondent. That statement runs to five pages and a copy is appended to the papers before me. I have considered that statement with great care. Essentially, it repeats the matter set out by the appellant in his second interview. In some respects it gives more details. It repeats the explanation made in the second interview for the discrepancies between what was claimed at the first interview and what was claimed at the second interview. It states:"At my pro forma interview, I did not mention anything about the Cypriot passport or the organisation that arranged my passage, as I had been instructed by them not to. I was also instructed by the organisation that I should say my reasons for applying for political asylum were because of persecution of Kurds in Turkey and because my military service was due. They instructed me not to say anything about politics until I had had an opportunity to see a solicitor."
The adjudicator then set out the Secretary of State's original letter which I have already read. Effectively, it follows the Secretary of State's reasoning. He points out that there was a change of story. He says he has noted that even now no further details have been given about the TKP-ML. He goes on:"I do not consider that his claim that his refusal to give any information about the TKP-ML is because of a fear that information could be relayed back to Turkey and endanger the lives of members there is credible. I consider it much more likely that his refusal to give any detailed information about the TKP-ML is because he has no such knowledge.
I do not consider it credible that, had he indeed been arrested and detained, as he claimed in his second interview and in his statement, that he would not have mentioned this at his first interview, but did mention the fact that his brother had been taken away on three or four occasions and that his house had been raided on several occasions. The giving of the information about his brother and the raids on his house is inconsistent with his claim that he had been told by the TKP-ML to say nothing until he had consulted a solicitor.
Even applying the lower standard of proof set out above, I do not find the appellant's claim to have been a member of the TKP-ML and to have suffered persecution as a result thereof to be credible. In short I o not believe his story.
Even on his account his claim that he has a well-founded fear of persecution because of his Kurdish origin and his call-up for military service was simply a story that he had been told to present on arrival. No further matters in support of that claim were put forward either at the second interview or in the statement submitted on his behalf at a later stage. In the circumstances, and again applying the lower standard of proof set out above, I am not satisfied that he has a well-founded fear of persecution on that basis."
It is right to say that that decision is not sought to be attacked in these proceedings. It is one to which the adjudicator was entitled to come. The letter under attack in these proceedings is dated 24 October 1995 and is concerned with the application that the Secretary of State should deploy section 21. So far as presently relevant, it reads:"The Secretary of State is, of course, aware of the discretion conferred on him by Section 21, to refer any matter relating to the case which was not before the adjudicator. Such a referral would not enable the adjudicator to re-hear the appeal, but to report his opinion to the Secretary of State. You will understand that the Secretary of State would not deploy Section 21 in every case, where it is suggested that it might be appropriate to do so. The Secretary of State's practice is to consider any new factors himself in the first instance and to evaluate whether a well-founded fear of persecution has been made out, notwithstanding the adjudicator's adverse determination. Ordinarily, the Secretary of State considers that this exercise can be performed without it being appropriate to refer the matter to the adjudicator for assistance and advice under Section 21. In certain cases, however, particularly those where the Secretary of State perceives the merits to be finely balanced and the adjudicator's further advice on credibility is considered valuable, a Section 21 referral may be appropriate. It is to be emphasised that each case is considered on its own merits."
He sets out the background of the history and the adjudicator's reaction and carries on:"In those circumstances, the Secretary of State considers that the Appellant's claimed asylum would have had no prospect of success at the appeal hearing unless the Appellant had been able to provide an explanation for the story."
I think it means by that an explanation for the change of story."Any such explanation would, very probably, also have had to have been consistent with the replies given by the Appellant in the first interview. The Appellant would, very probably, also have had to explain credibly why this new explanation had not been proffered at the second interview instead of (the now rejected) explanation which was actually proffered.
No such explanations have been suggested to the Secretary of State. He thinks it unlikely in the extreme that the Appellant had any sufficiently credible explanations of these matters which he could advance to the adjudicator at the appeal hearing. Consequently, the Secretary of State thinks that the Appellant's absence from the hearing, although regrettable, did not adversely affect the outcome of the appeal itself. [He] also thinks that it is unlikely in the extreme that the Appellant now has any sufficiently credible explanations of these matters "
and he rejects the application. The essence of Miss Francis's case is this: first, that the case is one where there may be a meritorious case on behalf of the applicant, but chiefly she says, and says rightly, that everything here turns on the credibility of the applicant and the Secretary of State has effectively agreed to deal with a situation which turns on credibility entirely on the basis of paper. That is, of course, true. She claims that credibility must always be judged by seeing the person in question. Why something coming through the ears of the adjudicator should be more valuable than something coming through his eyes, namely material provided by the applicant in writing, is not immediately apparent. In my judgment, the Secretary of State here had a discretion whether or not to send the matter back to the adjudicator under the section which I have quoted. He was certainly entitled to send it back and he realised he was entitled to send it back. He considered the information which had been put before him over a long period on behalf of the applicant by two firms of solicitors, both very experienced in this particular field, lent no support to any credibility on behalf of the applicant who had damaged his credibility by telling different stories at different interviews. That was the view which was open to the Secretary of State. If Miss Francis's submissions are right, then, as my lord pointed out in argument, this would apply to every case of political asylum where an applicant does not turn up and then says he has another unidentified story which might be credible. In my judgment McCullough J was absolutely right to refuse leave to appeal in this case. I would similarly refuse leave.