Cangir Duman (ap) For Judicial Review Of A Determination Of Am Immigration Appeal Adjudicator In Terms Of Section 65 And 69(5) Of The Immigration And
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2005] CSOH 149 |
| Date | 11 November 2005 |
| Docket Number | P1077/04 |
| Court | Court of Session |
| Published date | 11 November 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 149 | |
| P1077/04
| OPINION OF LORD BRODIE in Petition of CANGIR DUMAN (A.P.) Petitioner; for Judicial Review of (1) a determination of an Immigration Appeal Adjudicator in terms of sections 65 and 69(5) of the Immigration and Asylum Act 1999 and (2) the refusal of an application for leave to appeal by the Immigration Appeals Tribunal ________________ |
Petitioner: Blair; Allan McDougall, Solicitors
Respondent: Carmichael; Office of the Solicitor to the Advocate General
11 November 2005
Introduction
[1]The petitioner is Cangir Duman. The respondent is the Secretary of State for the Home Department. The petitioner's date of birth is 5 June 1974. He is a national of Turkey. He entered the United Kingdom with his wife and their young daughter on 26 May 2001. He was given a Statement of Evidence Form ("SEF") to be completed and returned by April 2002. Why the respondent's officer proceeded in this way has not been explained but, in the event, the petitioner did not return the SEF within the indicated period. There was no asylum interview. The petitioner's application for asylum was rejected on the basis that he had not complied with procedural requirements. The respondent sent a Reasons for Refusal Letter dated 18 April 2002 and a Notice of Decision directing the petitioner's return to Turkey was issued on 10 May 2002. The appeal was heard before an adjudicator, Mr M D Dennis, at Glasgow on 26 September 2002 and refused in terms of a determination which was promulgated on 18 November 2002. Put shortly, the Adjudicator did not accept as credible, the full account put forward by the petitioner of his ill-treatment at the hands of the Turkish authorities. The Adjudicator was accordingly not satisfied that there was a risk that the petitioner's human rights would be contravened or that he would suffer persecution for a relevant reason in the event that he was returned to Turkey. The petitioner made an application for leave to appeal the determination of the Adjudicator, to the Immigration Appeals Tribunal in terms of Rule 18 of the Immigration Asylum Appeals (Procedure) Rules 2000 (S.I. 2000/2333) ("the Procedure Rules"). The Tribunal refused leave by determination dated 3 January 2003.
[2]The petitioner's application for judicial review of the Tribunal's decision came before me for hearing on 30 September 2005. The petitioner was represented by Mr Blair, Advocate. The respondent was represented by Miss Carmichael, Advocate. I heard submissions on 30 September which were completed on 6 October 2005. For reasons which were more fully developed in the submission on behalf of the respondent by Miss Carmichael, which submission he adopted, Mr Blair restricted the remedies sought by him to, first, declarator that the determination of the Immigration Appeal Tribunal to refuse the application for leave to appeal was unlawful et separatim unreasonable and, second, reduction of that determination. I shall return to Miss Carmichael's submission as to what was the appropriate remedy, in the event that I upheld the petitioner's submissions, later in this opinion.
Relevant statutory provisions
Appeal to the Adjudicator and application for leave to appeal to the Immigration Appeal Tribunal: the petitioner's appeal
[3]The petitioner's claim for asylum, his appeal from the decision that he was not entitled to asylum and his application for leave to appeal to the Immigration Appeal Tribunal were dealt with in terms of the then current legislation: Part IV of the Immigration and Asylum Act 1999, the Immigration Rules (HC 395) and the Procedure Rules. The relevant parts of the legislation are set out in the petition. It is convenient to summarise them at this point in the opinion. They provide as follows.
[4]Section 65 of the 1999 Act provides that a person who alleges that an authority (which means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance) has acted in breach of his human rights, may appeal to an adjudicator. Acting in breach of human rights means acting or failing to act in a way which is made unlawful by section 6(1) of the Human Rights Act 1998 (that is, in a way which is incompatible with a Convention right). Convention rights include those set out in Article 3 of the European Convention on Human Rights of 1950. Article 3 of the 1950 Convention provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Section 69 of the 1999 Act provides that a person who is refused leave to enter the United Kingdom may appeal on the ground that his removal in consequence of that refusal would be contrary to the Convention Relating to the Status of Refugees of 1951 and the 1967 Protocol to that Convention. A refugee, in terms of the 1951 Convention as amended by the Protocol, is any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
[5]Paragraph 334 of the Immigration Rules provides:
"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:-
(i)he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii)he is a refugee, as defined by the Convention and Protocol; and
(iii)refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."
Paragraph 336 provides:
"An application which does not meet the criteria set out in paragraph 334 will be refused."
[6]Paragraph 21(1) of schedule 4 to the 1999 Act provides that on an appeal to him under Part IV of the Act the adjudicator must allow the appeal if he considers, inter alia, the decision or action against which the appeal is brought is not in accordance with the law, but otherwise he must dismiss the appeal. Paragraph 21(3) of schedule 4 provides that for the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based.
[7]In terms of paragraph 22 of schedule 4 to the 1999 Act a party to an appeal to an adjudicator, if dissatisfied with his determination, may appeal to the Immigration Appeal Tribunal. On such an appeal the Tribunal may affirm the adjudicator's Determination or make any other determination that the adjudicator could have made. Given the entirely general terms of paragraph 22 (1) such an appeal might be on a matter of law or a matter of fact. Part III of the Procedure Rules applies. In terms of rule 18 of the Procedure Rules an appeal from a determination of an adjudicator requires the leave of the Tribunal. An application for leave requires to be in writing and to identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal. The Tribunal is not required to consider any grounds other than those included in the written application and leave should only be granted where the Tribunal is satisfied that the appeal would have real prospect of success or that there is some other compelling reason why the appeal should be heard.
Subsequent amendment: consequences for remedy
[8]The 1999 Act was amended by the Nationality Immigration and Asylum Act 2002. There has been further amendment. As from 4 April 2005, the provisions of the 2002 Act which related to appeals to adjudicators and to the Immigration Appeal Tribunal were, in terms of section 26 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, replaced with substituted provisions the effect of which is to institute a new unitary body for the consideration of asylum appeals. The new unitary body is the Asylum and Immigration Tribunal: Nationality Immigration and Asylum Act 2002 section 81, as amended: Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, S.I. 2005/565 (the "2005 Order"). Sections 100 to 103 of and schedule 5 to the 2002 Act cease to have effect and new sections, 103A to 103E, are added. These new sections make provision for review of and appeal from the new Tribunal's decisions. The former procedure of appeal is abolished with the abolition of the position of adjudicator and the abolition of the Immigration Appeal Tribunal. The mechanism by which the court may exercise its supervisory jurisdiction is changed. As is observed by Lord Glennie in Butt v Secretary of State for the Home Department 2005 S.L.T. 865 at 867A, prior to the enactment of the 2002 Act, the court supervised the legality of the process of decision making in appeals against the refusal of asylum claims by means of judicial review, but under the 2002 Act, this common law jurisdiction was replaced by a process referred to as statutory review, conducted on paper. Under the 2004 Act statutory review has been replaced by a procedure (again conducted on paper) whereby, in terms of the new section 103A (added to the 2002 Act by section 26(6) of the 2004 Act), a party to an appeal may apply to the court, on the grounds that the Asylum and Immigration Tribunal has made an error of law. The remedy available in the event of such an application is an order requiring the Tribunal to reconsider its decision.
[9]The amendments to which I have referred have implications for the appropriate remedy in a case such as the present (judicial review of decisions on a...
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