R v. Immigration Appeal Tribunal, Ex parte Makhan Singh




Royal Courts of Justice Strand London WC2

Thursday, 15 October 1998



MS M PHELAN (instructed by Chhokar & Co Sols, Southall Middlesex UB1 1JY) appeared on behalf of the Applicant.

MISS E GREY (instructed by Treasury Solicitor) appeared on behalf of the Respondent.



The applicant is a citizen of India who claimed asylum in this country in November 1995. He was interviewed by an executive officer, Mr Buckley, and subsequently on 3 July 1996 he was refused asylum by the Secretary of State in a letter signed on behalf of Mr Buckley.

The applicant appealed against that decision to the special adjudicator, who dismissed the appeal in a determination promulgated on 8 December 1997. There was an application to the Immigration Appeal Tribunal for leave to appeal. Leave was refused in a determination notified on 9 January 1998.

There is before the Court an application to apply for judicial review of all those decisions. The application was received in the Crown Office on 5 August 1998. The first point that was originally taken on behalf of the applicant, which has been the subject of substantial argument before me, is that this decision was not lawfully taken because it was taken by somebody who did not have the necessary delegated authority within the Home Office.

Prior to the hearing, the Home Office had sent a letter dated 14 August 1998 explaining that the actual decision in this case was taken by a higher executive officer, a Ms Young. She approved the proposal that had been put to her by Mr Buckley, the interviewing officer.

It was submitted initially that even a higher executive officer cannot lawfully take an asylum decision of this kind. Points were made, by reference to the lack of full clarity in the letter of 14 October 1998, as to whether a higher executive officer is even authorised to take decisions of this kind.

In the event, Ms Grey, appearing on behalf of the Home Office, has told me on clear instructions that higher executive officers are officers duly authorised to take asylum decisions and, indeed, are the ordinary decision makers in such cases. In the light of that statement on instructions which, of course, I accept for the purposes of my ruling, Ms Phelan, on behalf of the applicant, withdrew the ground based upon lack of authorisation.

I should, nonetheless, make it clear that I would not have accepted, in any event, that the case upon which she relied, namely Regina v Secretary of State Home Department ex parte Oladehinde [1991] 1 AC 254, provides support for the proposition that an asylum decision of this kind could not lawfully be taken by somebody in the position of Ms Young, the decision maker in this case. It does not support the proposition that such decisions can be delegated or devolved only to an officer of the rank of senior executive officer or above.

Further, insofar as that case might provide support for the proposition that decisions can be delegated or devolved only to an officer of suitable seniority, and that it is the Court's role to determine whether an officer is of suitable seniority, there was not before the Court any material to cast doubt upon the suitability of a higher executive officer to make a decision of this kind.

I move to the other grounds of the application, which focus on the approach of the adjudicator and the decision reached by the adjudicator. In order to understand those submissions, I should indicate briefly the background to the claim made by the applicant for asylum. The matter is summarised in paragraph 2 of the Secretary of State's decision letter set out in the adjudicator's decision:

"You said that you were not a member of any political party in India but feared persecution from the police there. You said that since early 1995 you had helped to arrange for the release from detention of people suspected of various crimes. You claimed to have been arrested twice; in March 1995 you were detained for two days on suspicion of murder, and in July 1995 you were held for two hours on suspicion of burglary. You said that you were detained for two days and 21 hours respectively, beaten and released without charge both times after paying a bribe."

The adjudicator, in a lengthy decision, came to the view that on a proper analysis of the evidence what the appellant was in truth complaining about was his arrest and detention on those two occasions. Each case was linked with suspicion of commission of the crime, and as the adjudicator put it:

"It therefore appears to me, that this particular case is not concerning any political involvement, but really only because of the appellant's two detentions, both for very brief periods of time, and on criminal matters, for which no charges were eventually preferred."

On that basis the adjudicator went on to say:

"I do not find that the appellant's version of events is incredible. I just do not find that the appellant's version of events engaging the Convention."

In effect, what he is saying is that because the reason for the detention was a criminal matter not linked with any political activities or opinions of the applicant, any fear on the part of the applicant arising out of such detention was not fear of persecution on a Convention ground.

Ms Phelan complains about the adjudicator's decision, raising a number of points. She submits that the adjudicator misdirected himself by finding that the main issue was essentially criminal and that the applicant had a fear of prosecution rather than persecution. In particular, she says that if the adjudicator was not going to accept the applicant's case that he was persecuted because of his political opinion, then he should have put the applicant on notice of that and given the applicant an opportunity to deal with the issue. He should, in effect, have invited argument on the point from those appearing at the hearing. Reliance is placed on Regina v Secretary of State Home Department, ex parte Fayed (1997) 1 All ER 228 at 237 (j).

Further, it is said that in reaching the decision that he did, the adjudicator made implied, adverse findings as to the applicant's credibility without affording the applicant an opportunity to deal with the adverse matters; that the adjudicator, in effect, went behind the parties' agreement that the facts were not themselves in issue. Complaint is also made of what is said to be a failure to make any proper analysis of the issue of objective risk, and a failure to deal satisfactorily with the question of future risk on Convention grounds.

Those are the main matters put forward on behalf of the applicant. They do not amount to an arguable case for judicial review. I accept the submissions made on behalf of the Home Office by Ms Grey in respect of each of the points. First, the adjudicator simply found, on his assessment of the evidence, that it did not go far enough to establish a well-founded fear of persecution on Convention grounds. Reference is made in particular to the statements made by the applicant in his interview which are to be found at pages 150 to 152 of the bundle. It is said, in my view said rightly, that the adjudicator was entitled to look at that evidence and to conclude on the basis of it that there was no caused link between the detentions of which the applicant was complaining and his political opinions, and further to conclude that for that reason the Convention was not engaged.

The evidence simply did not go far enough to establish the applicant's case. That is not a matter which the adjudicator was obliged to raise specifically with the applicant. It was simply a point which he was entitled to decide in performing his function at the end of the day of reaching a decision on the basis of the evidence before him.

Ms Grey took me to the case of R v Sahota [1995] Imm AR 500 where on analogous but, of course, not precisely similar facts, the Court of Appeal held that there had been no breach of natural justice in the adjudicator's approach. By contrast I do not consider the present case to be remotely similar to that of Fayed relied on by Ms Phelan. In this case it cannot be said that there was procedural unfairness in the adjudicator reaching the decision that he did on that central point, without in some way spelling out to the parties at the hearing that that was a way in which he was contemplating deciding the case.

As to credibility, although I accept that in the course of the adjudication there were some comments that might be seen as potentially adverse comments on the applicant's credibility, it is plain that nothing turns on those matters at the end of the day. As I have already said, the adjudicator in his conclusion said that he was not finding the appellant's version of events to be incredible, that is to say he was not basing his decision on an adverse view of the applicant's credibility. He was simply reaching the view that the applicant's version of events, even if fully accepted, did not engage the Convention.

So far as the assessment of objective risk is concerned, I am satisfied from passages in the adjudicator's determination, to which I have been directed, that he did look at relevant material, and was plainly aware of the general background. It was unnecessary for him to go further having regard to the conclusion that he had reached on the central issue which I have already described.

I think it unnecessary to deal with any other specific matters. It is sufficient to say that in respect of none of the points raised do I consider this to be a case suitable for the grant of leave. For the reasons I have given, the application is refused.

MS PHELAN: The applicant has had Legal Aid and I ask for Legal Aid taxation.

MR JUSTICE RICHARDS: You may have Legal Aid taxation and that prompts me to observe (and perhaps I will add it to my judgment) that this is a case where there has been delay, and in particular a period of two months, without a satisfactory explanation between attempts to obtain Legal Aid. However, had I been of the view that there were substantial grounds meriting consideration by this Court, I would not have been inclined to rule the applicant out on grounds of delay alone. You may have Legal Aid taxation.

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