R v. Secretary of State for the Home Department, Ex parte Messaoud Herida

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte MESSAOUD HERIDA

CO/3848/97

4 November 1997

Queen's Bench Division: Potts J

Asylum-appeal dismissed-application for leave to appeal to Tribunal-asserted that an important witness had been advised not to give evidence before special adjudicator but was subsequently willing to do so-whether Tribunal entitled to refuse leave to appeal-the evidence which should have been put to the Tribunal in the application for leave to appeal to support the assertion. Asylum Appeals (Procedure) Rules 1996 rr. 27(2), 27(3).

The Applicant for leave to move for judicial review was a citizen of Algeria. His appeal against the refusal by the Secretary of State to grant him asylum was dismissed. He applied for leave to appeal to the Tribunal. The grounds asserted inter alia that an important witness had been advised by his legal representative not to give evidence on the applicant's behalf because his own application for asylum had not been decided: by the time application was made to the Tribunal the witness was able and willing to give evidence. The Tribunal refused leave to appeal.

For the applicant it was argued that in the circumstances it had been unreasonable for the Tribunal to refuse leave to appeal to enable the case to be remitted for the special adjudicator to hear further evidence.

Held:

1. The assertion by the applicant that the witness had been advised by his legal representatives not to give evidence to the special adjudicator was not evidence that the witness had declined to give evidence: that required evidence from the witness or his legal representatives.

2. If the applicant had wanted the Tribunal to consider the witness's evidence as a ground for granting leave it would have been necessary for

2. 1A copy of that evidence to be submitted to the Tribunal

2. 2Notice to be given pursuant to rule 27(2) of the 1996 Procedure Rules

2. 3Evidence properly sworn relating to the circumstances in which the witness declined to give evidence.

3. Absent compliance with the procedure rules, the Tribunal was entitled to refuse leave to appeal.

Miss V Nassar for the applicant

M Fordham for the respondent

No cases are referred to in the judgment

POTTS J: The applicant, an Algerian citizen aged 32, seeks to challenge the Immigration Appeal Tribunal's decision of 6 August 1997, notified on 15 August 1997, refusing him leave to appeal against the determination of a special adjudicator dated 10 July 1997, dismissing his appeal against the decision of the Secretary of State dated 17 January 1997 to refuse to revoke a deportation order against him and to refuse to grant him political asylum in the United Kingdom.

The applicant arrived in the United Kingdom on 26 August 1994, having left Algeria in August 1991 and having travelled first to France. On 2 September 1994 he claimed asylum based on his membership of the FIS. He said he had been held for six days and tortured, and that he had been released by a friend who was a policeman. He subsequently applied for leave to remain on the basis of his marriage, on 5 December 1994, to a British citizen. That application ultimately resulted, in October 1996, in his being arrested and charged with seeking to obtain leave to remain by deception. He was convicted and sentenced to six months' imprisonment with a recommendation to deport. Having completed the sentence, he remained in detention as an immigration detainee.

On 17 January 1997, the applicant was served with notice of refusal of leave to enter and with a deportation order signed on 20 December 1996. The Secretary of State certified his asylum application under paragraph 5(3)(b) of schedule 2 of the 1993 Act as amended, owing to the applicant's failure to declare to the immigration officer on arrival that his travel documents were not valid. However, the certificate was subsequently held invalid by the special adjudicator.

In applying for leave to appeal to the Tribunal, the applicant applied for leave to adduce the evidence of the Algerian policeman friend who had released him, it was said, from detention in Algeria, a Mr. Belabbes. A copy of Mr. Belabbes' statement, undated and unsigned, is at page 136 in the bundle. Ground I of the application for leave to appeal to the Tribunal is in these terms:

"Mr. Belabbes was intending to give evidence at the appeal hearing of the applicant, the attached statement was provided by him to the applicant's solicitors. However, he was advised by his own solicitors not to do so until the outcome of his own application for asylum had been determined. (See the statement of the applicant at paragraph 46.) Mr. Belabbes has now been recognised as a refugee and therefore is able and willing to give evidence in relation to the applicant."

Ground I of the present application is in similar terms.

Miss Nassar, who appears for the applicant, relies on rule 27(3) of the Asylum Appeals (Procedure) Rules 1996, which provides:

"In any proceedings on an appeal

(a)The Tribunal may, in its discretion, receive or decline to receive further evidence of which notice has been given in accordance with paragraph (2)... "

Rule 27(2) provides:

"If any party to the appeal wishes to adduce evidence before the Tribunal further to that to be received in accordance with paragraph (1) above, he shall give notice in writing to that effect to the Tribunal indicating the nature of the evidence; and any such notice shall be given

(a)in the case of the appellant, with the notice of appeal or as soon as practicable after notice of appeal is given or is deemed to have been given. "

Miss Nassar submits that, given the contents of Mr. Belabbes' statement and its relevance to the issues raised by the appeal to the special adjudicator, the Tribunal erred in the exercise of its discretion in refusing to grant leave and refer this matter back to the special adjudicator so that he could consider Mr. Belabbes' evidence.

It seems to me that two matters of evidence are of particular relevance:

(1)evidence that Mr. Belabbes was not prepared to give evidence to the special adjudicator;

(2)evidence that Mr. Belabbes could give evidence relevant to the appeal before the special adjudicator.

Ground I of the application for leave states in terms that Mr. Belabbes was advised by his own solicitors not to give evidence until the outcome of his own application for asylum had been determined. That assertion is not confirmed by affidavit evidence. The only affidavit before the court is that of Mr. Rashid. That affidavit makes no reference to Mr. Belabbes' position at the time of the appeal to the special adjudicator. The only material before the court as to Mr. Belabbes' position at that time is to be found in the special adjudicator's determination and reasons at page 17, paragraph 46. There the special adjudicator quotes from the applicant's statement:

"The police officer who obtained my release from the Hussein Dey Prison on June 1991 was Belabbes Rizic Amirouch, who lived on the same street as our client, namely Hai el Badr. He is an asylum seeker in the United Kingdom and lives in Turnpike Lane. I asked him to make a statement in support of my asylum application but he was advised by his legal representatives not to."

In case anyone reading this judgment is misled by the reference to "our client" in the above passage, I would refer to page 14 of the determination, where the special adjudicator states:

"The appellant's evidence-in-chief is contained in the written statement at pages A to A, which so far as material are as follows...",

the above quotation being a direct quotation from that written statement.

In my judgment, the assertion made by the applicant in the passage quoted above to the effect that Mr. Belabbes was advised by his legal representatives not to make a statement in support of his asylum application could not be evidence that Mr. Belabbes had declined to give evidence at the appeal hearing of the applicant before the special adjudicator. Evidence that Mr. Belabbes was not prepared to give evidence at that hearing because of advice received by his legal representatives could only come from Mr. Belabbes, or for example, from his legal representatives. There was no evidence to this effect before the Tribunal when it came to consider the application for leave to appeal. All the Tribunal had was the unsigned statement of Mr. Belabbes referred to above. On the face of it, that statement raised issues relevant to the applicant's case.

It is correct to point out that the Trivunal did not refer in terms to ground I of the application or to Mr. Belabbes; nor did the Tribunal refer to rule 27. Only one passage in the determination could refer to the point taken today, and that passage reads:

"The Tribunal considers that the applicant and his advisers had ample opportunity to put before the special adjudicator all the evidence they chose in connection with this appeal."

On behalf of the Secretary of State, Mr. Fordham submits that this passage is sufficient to dispose of Miss Nassar's arguments, since, as he says, when the Tribunal had to consider this matter it had no evidence that Mr. Belabbes was not prepared to give evidence before the special adjudicator or was, at the time of the application for leave, prepared so to do because his own application had been detenmined. This was undoubtedly the case.

In any event, in my judgment, if the applicant wished the Tribunal to consider Mr. Belabbes' evidence as a ground for giving leave, it was necessary not only:

(i)to adduce a copy of that evidence but also

(ii)notice under rule 27(2) relating to that evidence and such notice regarding

(iii)the evidence relating to the circumstances in which Mr. Belabbes declined to give evidence before the special adjudicator as well as

(iv)a copy of that evidence properly sworn to.

The applicant failed to take the steps set out in (ii), (iii) and (iv). In the circumstances, I consider that the Tribunal was entitled in the exercise of its discretion to take the course that it did. The applicant has no arguable case for relief on this ground.

As to the other grounds advanced by Miss Nassar and developed in detail in her application for leave, I would only say this. The special adjudicator's determination and reasons run to some 36 pages. The special adjudicator heard evidence which is clearly and fully analysed in the determination. He considered the applicant's immigration history, his substantive asylum claim and the background material, and he came to his conclusions in the light of that analysis. He dealt with the issue of certification and the appeal against deportation, as well as a request for a recommendation.

The special adjudicator could not have given more careful consideration to this appeal than he did. He was fully entitled to reach the conclusion which he did on the material available to him, and the Tribunal was accordingly entitled to refuse leave to appeal. There are no arguable grounds for relief.

This application must be refused.

Application dismissed

Solicitors: D. P. Ryan, London, SW6; Treasury Solicitor