R v. Immigration Appeal Tribunal, Ex Parte Karaman

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

(MR JUSTICE OGNALL)

3rd December 1998

Before:

LORD JUSTICE MANTELL

LORD JUSTICE ROBERT WALKER

LORD JUSTICE KAY

REGINA - v- IMMIGRATION APPEAL TRIBUNAL EX PARTE KARAMAN

MR YASREEB ZAHEED (instructed by Messrs Duncan Lewis & Co, London E8 4AN) appeared on behalf of the Applicant.

MR ANGUS McCULLOUGH (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

LORD JUSTICE MANTELL:

I will ask my Lord, Mr Justice Kay to give the first judgment.

LORD JUSTICE KAY:

The applicant is a Turkish national of Kurdish origin. He came to the United Kingdom on 1 February 1998 from Holland travelling on a false Dutch passport and when challenged by an immigration officer claimed asylum. He was detained and since that date has remained in detention. By letter dated 11 March 1998 the Secretary of State refused his application. He appealed against that decision but his appeal was rejected on 28 July 1998. He sought leave to appeal to the Immigration Appeal Tribunal but was refused leave on 24 September 1998. On 12 October Mr Justice Ognall refused his application for leave to move for judicial review of the decisions of the special adjudicator and of the Tribunal. He now renews his application to move for judicial review.

When the matter came before the special adjudicator the applicant was not legally represented. The grounds of the application to this court contend that the special adjudicator was wrong in the circumstances of this case not to adjourn the hearing so that the applicant might be legally represented. The basis upon which such a hearing may be adjourned is contained in rule 10 of the Asylum Appeals (Procedure) Rules 1996 which provides

"(1) Subject to rule 9(1) or (2), a special adjudicator shall not adjourn a hearing unless he is satisfied that an adjournment is necessary for the just disposal of the appeal.

(2) When considering whether an adjournment is necessary, a special adjudicator shall have particular regard to the need to secure the just, timely and effective conduct of the proceeding."

This provision is a reflection on the rules generally where the need for just, timely and effective conduct of the proceedings in relation to the these very important matters is repeatedly reflected. Mr McCullough (on behalf of the Secretary of State) in his skeleton argument reminds the court that rule 10 replaced an earlier provision, namely rule 10 of the 1993 Rules, framed in more permissive language. The change was introduced because of the recognised backlog of asylum appeals.

In order to understand this application it is necessary to say a little about the nature of the application for asylum and the circumstances in which the applicant appeared unrepresented before the special adjudicator.

His claim for asylum was based on his allegation that money had been extorted from him on a number of occasions because he was a Kurd. Between 1992 and 1995 he carried on business at Kayseri making and selling children's cradles. His business was in partnership with two people of Turkish origin. The demands for money accompanied by threats had started in 1994. At the end of 1994 he said that he had reported these incidents to the Turkish authorities and as a result police officers had been sent to his village to protect him and other villagers from the criminal elements extorting money. The police kept watch for three days and this had resulted in an end to the extortion for a period of about three months, but then it had restarted.

Those responsible had said to the applicant that they knew he was of Kurdish origin and he would have to pay. They had beaten him and indicated that they were assisting the PKK in making their demands. They demanded one third of the yearly income of the shop. As a result of this conduct he had closed his shop at the end of 1995, but the demands had continued. He therefore left Turkey in May 1996, having first dealt with both his divorce and the winding-up of his business. When he left Turkey he went to Holland. He did not claim asylum in Holland but he had been told that the British Government gave asylum to Kurds. So 18 months after arriving in Holland he came to the United Kingdom.

The hearing before the special adjudicator took place on 19 May 1998. Notice of appeal had been given on 1 April 1998 and it had nominated solicitors, Leslie Brown & Co, as his representatives. Those solicitors had seen him in detention and had assisted with the completion of the notice of appeal under the legal aid green form scheme.

On 17 April notice of the hearing date was given to the solicitors together with directions pursuant to rule 23 of the rules. On 22 April the solicitors, who had no funds to act on the appeal, wrote to the applicant forwarding the Secretary of State's bundle relating to the appeal, indicating that he would be contacted directly with an appeal date and concluding, "If I can be of any further assistance kindly contact me."

On 8 May the solicitors forwarded the reply to the directions, partially completed, to the applicant, referring to the fact that it would be submitted to the immigration appellate authority. The directions included the following: "Name and address of appellant's representative who will attend at the hearing", to which the answer had been completed as "None appointed yet".

On 19 May the applicant attended the hearing. He indicated that he had expected the solicitors to be representing him. He had not paid them and they had not positively said they would attend. But he had understood that the government would pay for his representation just as they had paid for the assistance in completing the notice of appeal by way of the green form scheme. It is clear that the special adjudicator considered whether there should be an adjournment of the appeal so that the applicant could have a further opportunity to arrange representation. He decided not to adjourn and to proceed. It is effectively that part of the decision that is attacked, along with the Tribunal's refusal to grant leave to argue that point.

The challenge to the special adjudicator's refusal to grant an adjournment raises the following matters:

1.         that the special adjudicator applied the wrong test;

2.         that the special adjudicator failed to have regard to the fact that the applicant would need to make legal submissions as to why his fear, accepted as genuine by the Secretary of State, was a fear of persecution for a Convention reason;

3.         that the applicant was not afforded an opportunity himself to make such submissions;

4.         that in the absence of legal representation the applicant would be in no position to place before the special adjudicator documentary background material relating to Turkey of the kind frequently submitted in such applications;

5.         that the special adjudicator wrongly applied the standards of the British police to the Turkish police.

The first of those grounds, namely that the wrong test was applied, is in my judgment manifestly wrong. The special adjudicator in his determination and reasons set out rule 10 in detail and considered, entirely correctly, the meaning of that rule, highlighting the mandatory requirement not to adjourn unless the condition in paragraph 1 of the rule was met and reminding himself that he would have to find that it was necessary and not merely desirable to adjourn for the just disposal of the appeal before he could grant an adjournment. He explained his application of that test in the following terms:

"The case did not appear to me to be one of any real difficulty. Mr Karaman had already given his account of what had occurred to the Immigration Officer at interview. It seemed to me that he would have no difficulty in giving his account of what had occurred. It is not the normal practice of the Secretary of State to call witnesses. It did not therefore appear to be a case in which cross-examination of the Home Office witnesses would be required. I was therefore not satisfied that an adjournment was necessary for the just disposal the appeal. I had in mind, and indicated to Mr Karaman, that if it appeared at any stage that he had difficulties in giving his evidence or if any other difficulties should arise, I would reconsider my decision. Mr Karaman did not, in fact, have any difficulties in giving his evidence. No other difficulties arose."

He then considered the circumstances in which the applicant came to be unrepresented and concluded that, bearing in mind the timescale provide by the rules, Mr Karaman had had ample time in which to make the necessary and appropriate arrangements for representation.

It is argued in relation to that matter that the applicant did not speak English and had never appreciated that he was going to have to find funding for representation. The special adjudicator was entitled to have regard to the matters that he knew about this case. I can find no fault with his approach and I cannot see how his decision in this regard can properly be challenged. The submission that in any case this was a special case where the issues required legal representation is one that I cannot accept.

The decision on the appeal by the special adjudicator is encapsulated in paragraphs 11 to 15 of his determination and reason. It is clear, firstly, that he accepted the applicant's factual basis for his claim. At paragraph 11 the special adjudicator then found:

"I am not satisfied that the demands were only made of persons of Kurdish origin. I see no reason to believe and it is inherently lacking in likelihood that the extortioners should have confined themselves to making their egregious demands upon persons of Kurdish origin. As it was, they demanded one third of the total partnership income - and so were quite willing to take money from Mr Karaman's Turkish partners. ... I have no doubt but that the risk which he faced in Kayseri arose, and any risk which there may now be, either there or elsewhere will arise from the fact that he declined to contribute - and not from the fact that he is of Kurdish origin."

Paragraph 12 continues:

"I accept that Mr Karaman declined to contribute because he disapproved of the PKK and of terrorism. Any right-minded person would disapprove of the PKK and terrorism. But even if the refusal to contribute can be said to be the expression of a political opinion (opposed to the PKK and terrorism) it does not follow that any action which may be taken against him by the PKK will be taken because he holds such an opinion. I do not accept that it would be."

Nothing contained in the submissions that might have been made on behalf of the applicant or in the material which has now been placed before us would in my judgment dislodge those findings which are fatal to the applicant's claim for asylum.

The documents to which our specific attention has been drawn indicate that the PKK are prepared to target Kurds even though they are purporting to be acting in the best interests of those of Kurdish origin. Nothing in the documentation, in my judgment, goes so far as to suggest that the only people they target are those of Kurdish origin. Indeed there are documents which make exactly the contrary point.

In paragraph 13 of the determination and reasons, the special adjudicator held that there was no evidential basis for the proposition that the Turkish authorities would knowingly tolerate or condone or prove unable or unwilling to provide adequate protection from the actions of the extortioners. The special adjudicator pointed to the assistance given to the applicant by the authorities when he reported the matter to them at the end of 1994 and concluded that there was no reason to believe that they would not have given him adequate protection if the renewed extortion had been reported to them. It is quite clear that in this regard consideration was being given solely to how the authorities would behave in Turkey and the submission that the special adjudicator was applying standards in Britain is not remotely made out when his determination and reasons are read.

That last matter, relating to the help that would have been available to him, would in my judgment be fatal to the application for asylum. Again, having studied the submissions that are made and the material that has been placed before this court, there is nothing contained therein that could remotely cause the special adjudicator to have reached a different conclusion in relation to that crucial matter. The special adjudicator, who was keeping under review at all stages the question of adjournment, was entitled to draw on his experience of the matters raised in similar cases, as he makes clear he did in deciding that this was a case that could not succeed on the facts and that accordingly it was not necessary to adjourn.

The effect of the submissions and the material before us, in my judgment, only serves to confirm that he was right in this regard and that there has been no injustice to the applicant arising from the failure to adjourn. It would be surprising if the applicant is right that he was not afforded an opportunity to address the Tribunal and it is most likely that he is wrong in this regard. Certainly there is no evidence before this court that any address was made on behalf of the Secretary of State to which he had no opportunity to respond.

Even assuming, as I do at this stage, that he is right that in some way he was not afforded an opportunity to address the court on legal matters at the conclusion of his appeal, in my judgment he lost nothing as a result because, having now had the opportunity to see the matter argued by counsel on his behalf and having seen the whole of the case that would have been presented, his appeal was in any event bound to fail on the facts as found by the special adjudicator.

For these reasons I am satisfied, as was Mr Justice Ognall, that no application for judicial review could succeed and I would refuse this renewed application.

LORD JUSTICE ROBERT WALKER:

I agree.

LORD JUSTICE MANTELL:

I also agree.

Order:

Application refused; legal aid taxation.