AB (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 05 November 2007 |
| Date | 05 November 2007 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Ward, Buxton and Laws LJJ
Representation
Mr R Fortt instructed by Messrs Paragon Law, for the Claimant;
Miss S Broadfoot instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
Magill v Porter; Magill v WeeksUNK[2001] UKHL 67; [2002] 2 AC 357
Evidence assessment of evidence credibility of the claimants procedure and process procedural irregularities cross-examination no opportunity to explain evidence appearance of bias
The Claimant, a citizen of Turkey, arrived in the United Kingdom in 1999 and applied for asylum. He said he had been detained and tortured on three occasions because of family connections and involvement with the PKK. The Secretary of State for the Home Department refused the application and made it clear that he disbelieved the Claimant's account. On appeal, the Claimant submitted a witness statement, which stood as his evidence-in-chief. The Claimant also adduced evidence in the form of a newspaper article that purportedly demonstrated that his brother had been murdered in 1994 by local security forces. Following cross-examination by the Home Office Presenting Officer on one or two matters, the Adjudicator indicated that he did not believe the Claimant's story. The Claimant made a request to be recalled or further cross-examined so that points of difficulty could be put to him, but the Adjudicator refused that request. He said that he did not place much weight on newspaper articles. In his determination, the Adjudicator did not accept the claim that the article established that the brother had been killed by security forces. The Adjudicator dismissed the appeal and made it clear in his determination that he disbelieved virtually the whole of the Claimant's case.
On reconsideration the Asylum and Immigration Tribunal held that the Adjudicator had not made an error of law in his treatment of the newspaper article and that in any event, a finding that the brother had been murdered by security forces did not assist the Claimant as eight of his siblings had been living safely in Turkey since the brother's death.
Before the Court of Appeal the Claimant submitted first, that the Adjudicator was not entitled to make negative credibility findings in circumstances where the Claimant had not been given a proper opportunity to explain his evidence; secondly, that the Adjudicator had demonstrated bias by his remarks in open court as to the weight to be given to newspaper articles; and thirdly, that the Tribunal had made an error of law in failing to identify that appearance of bias.
Held, allowing the appeal and remitting it to the Tribunal for reconsideration on all issues:
(1) although the Claimant's entire story could have been characterised as implausible and might not have been well repaired by further examination, the Adjudicator had expressed sufficient additional concerns to render it necessary that the Claimant be recalled, at least to explain those significant matters; it was for the Adjudicator to determine whether that took the form of cross-examination or to request that further evidence be adduced; there was no need for this to be a long process but fairness and proper scrutiny of the case required it; the Tribunal's approach to the Adjudicator's treatment of the Claimant's evidence did not sufficiently meet the difficulties; in the circumstances, the matter had to be remitted to the Tribunal so that the Claimant's evidence could be properly tested (paras 2122);
(2) the Claimant had confused the two broad heads under which questions of bias were considered; interest bias was where the judge had an interest in the outcome of the case and subject matter bias was where the judge formed a premature and unfair view about the merits of a case; an appearance of interest bias would result in the judge's automatic disqualification; in circumstances where there might be subject matter bias, it was necessary to look at the whole conduct of the judge and ask whether any premature view would have affected the conclusion made by the judge to the extent that the conclusion could not be upheld: Porter v McGillUNK[2001] UKHL 67 applied; the Tribunal had correctly addressed the bias complaint (paras 2426);
(3) in his determination the Adjudicator had not disqualified the article as evidence just because it was a newspaper report, nor had he questioned its authenticity; he had critically assessed the article and concluded that it did not demonstrate that the attack had been perpetrated by security forces as opposed to other criminal elements; there was, however, sufficient uncertainty about whether the Adjudicator had been justified in coming to that conclusion; accordingly that question also had to be reconsidered by the Tribunal (paras 27, 31, 33 and 34).
Lord Justice Buxton:
[1] This is an appeal by Mr AB, who is a citizen of the Republic of Turkey, against a determination of the Asylum and Immigration Tribunal entered on 11 December 2006. That was, in turn, an appeal from a determination of an adjudicator, as he then was, Mr T R P Hollingworth, promulgated on 21 February 2005.
[2] It is very painful to have to record that Mr B came to this country on 14 October 1999 and immediately claimed asylum. Eight years later his status still remains uncertain. The reasons for those delays are to some extent apparent on the papers before us. The first part of the period was substantially caused by what appears to have been a serious administrative error in the Secretary of State's department. Some of the later delays are broadly (but not entirely) explicable by the necessary difficulties caused in the judicial system by a number of changes in the law. What can, however, be said (apart from deploring the situation) is that none of the delays are to be laid at the door of Mr B, or of any of the (fairly numerous, as it now is) persons who have advised him.
[3] He complains of two errors in Mr Hollingworth's conduct of the case in his determination, neither of which was seen to be such by the Asylum and Immigration Tribunal. Those were as follows. First, a procedural decision by Mr Hollingworth in the course of the hearing before him. As I shall have to explain in somewhat more detail, the appellant's case alleges involvement in Turkey with the PKK, an organisation well known in this jurisdiction, and a number of attacks on him and ill-treatment of him on that ground by the authorities, as a result of which he says he has a well-founded fear of that persecutory attitude being continued should he be returned to Turkey.
[4] The form of...
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