R v. Secretary of State for the State Department, Ex parte Salman Elhasoglu

SALMAN ELHASOGLU
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

21 March 1997 Court of Appeal: Butler-Sloss, Henry LJJ, Morland J Appeal-asylum-dismissed by adjudicator-recommendation applicant be granted exceptional leave-on basis of his knowledge of current circumstances Secretary of State declined to follow recommendation-whether Secretary of State estopped from differing from adjudicator's conclusions leading to recommendation. Renewed application for leave to move for judicial review following refusal by Sedley J. The applicant was a citizen of Turkey, an Alevi Kurd. He had claimed asylum. His application was refused by the Secretary of State. He appealed. His appeal was dismissed by the special adjudicator. The adjudicator however concluded that any Kurd was at risk in Turkey and recommended the applicant be granted exceptional leave to remain. The Secretary of State considered the recommendation but declined to follow it. He concluded that there were parts of Turkey in which a person circumstanced as the applicant could live safely. Counsel argued that the Secretary of State was bound by the findings of fact by an adjudicator which underlay a recommendation and that an applicant had a legitimate expectation that the Secretary of State would be so bound. The court set out the principles to be derived from relevant authorities.

Held:

1. An applicant had no legitimate expectation that the Secretary of State would accept an adjudicator's recommendation, only that such a recommendation would be given very serious consideration.

2. The Secretary of State in assessing a recommendation was not restricted to considering the material that had been before the adjudicator.

3. If he disagreed with the recommendation he had no obligation to appeal against it to the Tribunal.

4. The principles of res judicata or issue estoppel had no application to such cases.

A Riza QC and S Agha for the applicant S Kovats for the respondent

Case referred to in the judgments:

R v Secretary of State for the Home Department ex parte Alakesan 315.

HENRY LJ:

The applicant, Mr. Elhasoglu, is a Kurdish Alevi, and a citizen of Turkey. He has come to this country and claimed asylum. In March 1994 he was refused asylum by the Secretary of State for the Home Department. He appealed that decision to the special adjudicator, who in a written decision dated 19 January 1995, concluded:

"Having examined all the evidence and considered the submissions I find that the appellant has not demonstrated that there is a reasonable likelihood that he would be subject to persecution for a "Convention reason" if he were to be returned to Turkey. The appellant therefore is outside the Convention. It follows that I find the decision of the Secretary of State was correct; it accords with the law and Immigration Rules and conforms with the United Kingdom's obligations under the Convention. Therefore I dismiss this appeal.

However, given the general position of Kurds in Turkey, and bearing in mind the Amnesty Report of 7 February 1994 I find as a fact that the risk of danger to any Kurd, whether from government forces acting under orders or otherwise, or from the PKK, is such that the appellant should not be returned to Turkey in present circumstances. I so recommend but it is entirely a matter for the Secretary of State to determine how long and upon what basis the appellant remains in this country".

The Secretary of State considered that letter, but by a reasoned letter of 16 February 1995 indicated that he was not prepared to exercise his discretion to allow the applicant to enter the United Kingdom exceptionally outside the immigration rules, and was not satisfied that all Kurds had a fear of persecution wherever they might live in Turkey. In April 1995 Laws J granted leave ex parte to challenge the Secretary of State's February decision by judicial review, following which the Secretary of State agreed to reconsider the matter, and on reconsideration of it withdrew the earlier decision and said that a fresh decision would be taken. The fresh decision was contained in a letter of 18 August 1995. There the Secretary of State said:

"The Secretary of State does not accept that he is bound by findings of fact made by a special adjudicator when considering a recommendation from that adjudicator that the Secretary of State should exercise his discretion outside the Immigration Rules. However, the Secretary of State does of course give serious consideration to findings of fact made by an adjudicator in these circumstances. Having said that, a decision whether or not to exercise discretion outside the Immigration Rules is one for the Secretary of State alone based on a reasoned assessment of all the information available to him".

The Secretary of State then considered internal conditions in Turkey, together with the activities of the PKK there, in some considerable detail over several pages and finally concluded:

"The Secretary of State is satisfied that it is a reasonable option for a Kurd from south-east Turkey, who may have come under suspicion of supporting the PKK but was never convicted of this offence, or who left his home voluntarily or under compulsion as a result of security operations against the PKK, and who may have a well-founded fear of persecution if he remained in his home area as a result of continuing military action, to live in safety elsewhere in Turkey. This view is supported by the other members within the European Union.

For the above reason the Secretary of State is not prepared to exercise his discretion to allow your client to enter the United Kingdom exceptionally outside the Immigration Rules."

The appellant has sought to challenge that decision by way of judicial review. The grounds attached to Form 86A disclose submissions:

1)That the Secretary of State should be bound by (alternatively should not circumvent) the findings of fact of an adjudicator when considering a recommendation.

2)That the Secretary of State should not substitute his own findings in place of the adjudicator's findings as to the general position of Kurds in Turkey.

3)That the matters set out above showed there to be a legitimate expectation that the Secretary of State would be bound by the material findings of fact of the adjudicator (or would not disregard or circumvent them).

4)That the Secretary of State's decision was irrational: it is submitted that given the adjudicator's finding that there was a risk of danger to the appellant if he returned to Turkey it is irrational that the Secretary of State has not granted exceptional leave to remain.

The contentions made in this challenge were similar to other contentions due to be heard by the court in the case of R v Secretary of State for the Home Department ex parte Alakesan. so the application for leave was sensibly adjourned pending the substantive hearing in that case. That case was similar in its basic outline to this one, though it related to the proposed return to Sri Lanka of a Tamil whose application for refugee status had been dismissed. There too the special adjudicator's recommendation that he be granted exceptional leave to remain was not acceded to by the Secretary of State. There two special adjudicators' assessment of the foreign country's domestic situation differed from that of the Secretary of State. That matter came before Brooke J who gave judgment on 22 April 1996 (CO/3774/94). There Brooke J considered the earlier authorities, and I get from that case the following propositions:

1)When dealing with the exercise by the Secretary of State of his extra-statutory discretion, although his refusal to accede to a recommendation by a special adjudicator is amenable to judicial review, the courts will rarely interfere in such a case.

2)But recommendations from the special adjudicator will be given very serious consideration, and great weight be attached to them. Beyond that there is no legitimate expectation that they will be accepted.

3)That no principle of res judicata or issue estoppel requires the Secretary of State to follow the special adjudicator's views as to the state of affairs in the country in question, nor is he restricted to considering the same materials as were before the adjudicator. And as he is not bound by those findings, he is under no obligation to appeal against them.

Each of those propositions seems to me to be clear on the authorities. Accordingly, that application for judicial review failed. A renewed application for leave to appeal went before Stuart-Smith LJ, who on 5 July 1996 refused leave stating:

"The only basis for your appeal is the finding that the special adjudicator creates an issue estoppel which the Secretary of State is bound by unless he appeals to the Immigration Appeal Tribunal. Even assuming that issue estoppel applies to this branch of the law, the point is unarguable in this case for the reason given by Brooke J. The situation in Sri Lanka is not static. The Secretary of State is entitled to have regard to the latest information available to him and the views of other adjudicators which confirm his own. Fresh evidence is always an answer to issue estoppel."

Accordingly, with those materials before him, Sedley J (who was the judge who had granted leave in Alakesan (supra) though on a different ground to that which was eventually argued) refused leave in this case. Mr. Alper Riza QC, who appeared for the applicant both before us and in Alakesan, renewed the application to us and sought to distinguish this case from that on the grounds that there had been a change in the overall situation in Sri Lanka between the special adjudicator's decision and the Minister's consideration of the recommendation, while that was not the case here. I believe that to be a distinction without a difference. Whether or not such a factual distinction existed, it would make no difference in law whatsoever. The Minister, presumably through the prerogative, is the custodian of the discretion to exercise these extra-statutory powers. The special adjudicator has not been entrusted with those powers, though whenever the special adjudicator thinks it right to express a view on their exercise, the Secretary of State takes that into account (as set out above) as he is entitled (and chooses) to do. But it remains the Minister's discretion and his discretion alone. There is no room in that situation for any application of the principles of res judicata or issue estoppel in any form whatsoever. There are no arguable grounds for granting leave to appeal in this case, and so I for my part would refuse it.

MORLAND J:

I agree.

BUTLER-SLOSS LJ:

I also agree.

DISPOSITION

Application dismissed

Solicitors:

Vincent Buffoni & Co, London, N1; Treasury Solicitor