Ayse Ayran v Immigration Appeal Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 05 April 2004 |
| Neutral Citation | [2004] EWCA Civ 478 |
| Docket Number | C1/2003/1545 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 2004 |
[2004] EWCA Civ 478
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE ADMINISTRATIVE COURT
(MR JUSTICE GOLDRING)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Laws
C1/2003/1545
The Appellant was not represented and did not attend
The Respondent was not represented and did not attend
This is a renewed application for permission to appeal against the decision of Mr Justice Goldring given in the Administrative Court on 1 July 2003 when he refused to grant judicial review permission to challenge the refusal on 23 January 2003 by the Immigration Appeal Tribunal (the IAT) to grant leave to appeal to itself against the earlier determination of the adjudicator made on 13 December 2001. The adjudicator had dismissed the applicant's appeal against the Secretary of State's refusal of the applicant's asylum claim. Lord Justice Keene refused permission to appeal to this court on consideration of the papers on 8 March 2004.
Neither the applicant nor any representative on her behalf has appeared today to prosecute the application. Less than 20 minutes before the time listed for the hearing of the matter a faxed letter was received by my clerk from solicitors, Messrs Tyrer Roxburgh, seeking an adjournment for seven days. The letter indicated that at 5 pm last Friday, 2 April, there was a telephone call from the Legal Services Commission to the solicitors indicating that funding for the appeal (they must mean the application) was granted. However fifteen minutes later, says the letter, a fax arrived from the Legal Services Commission saying that the funding was refused. The matter was thus in a state of some confusion; hence the application for an adjournment.
I do not propose to adjourn the case because, albeit with considerable hesitation, having carefully considered the paper, I have decided to grant permission. I will explain why shortly.
The applicant is a Turkish Kurd who arrived in the United Kingdom on 11 January 2001. She claims to fear that she would be persecuted if she were returned to Turkey because of her family's support for the Kurdistan Workers Party and the PKK. The applicant gave detailed evidence before the adjudicator. The adjudicator stated (paragraph 28) that she accepted the applicant's account in its entirety. However she proceeded to find that the applicant was not, and never had been, a suspected separatist and would not be at any real risk because of her background if she were returned to Turkey.
The applicant's grounds of appeal to the Immigration Appeal Tribunal put forward detailed criticisms of these conclusions. In refusing leave the Immigration Appeal Tribunal did not confront these grounds. They referred merely to an earlier Immigration Appeal Tribunal decision in Polat [2002] UK IAT 04332. They stated:
"The grounds of appeal make no reference to Polat….., now recognised as the leading decision on risk on return to Turkey for returnees with some record of involvement in a separatist organisation. The Tribunal in Polat was satisfied that a Turkish appellant of Kurdish origin could not now succeed unless he could show, by reference to factors of the kind set out in that determination, something more than that the authorities would have a record of his involvement in or sympathy for a separatist organisation. Nothing in these grounds indicates that following Polat the claimant would be at risk on return. The grounds ….. do not disclose any arguable error of fact or law which would have made a material difference to the outcome of this appeal."
In her lengthy judicial review grounds the applicant complained of the Immigration Appeal Tribunal's failure to address her grounds of appeal. She complained also of the Immigration Appeal Tribunal's reliance on Polat, submitting that, apart from anything else, the guidance given in Polat had been revised in a later case of Hayser [2002] UKIAT O783. The Polat decision has been the subject of an appeal to this court: [2003] EWCA.Civ 1059. Mr Justice Goldring refused judicial review permission because he concluded that whatever might be said about the IAT's reasons for refusing leave, the adjudicator's conclusions were really unassailable so that —this is implicit in...
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