Gurdial Singh For Judicial Review Of Determination Of The Immigration Appeal Tribunal And An Immigra V.
| Jurisdiction | Scotland |
| Judge | Lord Abernethy |
| Date | 23 June 1999 |
| Docket Number | P26/14a |
| Court | Court of Session |
| Published date | 23 June 1999 |
| OUTER HOUSE, COURT OF SESSION
| |
| P26/14a/98
| OPINION OF LORD ABERNETHY in Petition of GURDIAL SINGH Petitioner; for JUDICIAL REVIEW OF DETERMINATION OF THE IMMIGRATION APPEAL TRIBUNAL AND AN IMMIGRATION ADJUDICATOR ________________
|
Petitioner: Collins; Henderson Boyd Jackson, W.S.
Respondent: O'Neill; R. Henderson
23 June 1999
The factual background to this petition for judicial review was not in dispute. The petitioner is a citizen of India, born on 7 March 1945. He arrived in the United Kingdom on or about 12 September 1982 and was given limited leave to enter the United Kingdom as a visitor. This was initially for one month, but was subsequently extended until 9 February 1983. It was a condition of his entry that he did not take up employment, whether paid or unpaid. On the expiry of his limited leave to remain the petitioner did not leave the United Kingdom. Instead, he stayed on without leave as an illegal over-stayer. On 9 September 1989 he was interviewed by an immigration officer, but at that interview assumed a false identity, namely, that of his brother Bhagat Singh, who holds a British passport. The petitioner's true identity only became known to the immigration authorities on or about 29 June 1990. It was only in the course of an interview on 30 June 1990 with the immigration authorities after the petitioner had been identified as an illegal over-stayer that he indicated a wish to apply for political asylum. A formal written application for asylum was made on or about 3 February 1991. This application was refused by the Secretary of State by letter from the Immigration and Nationality Department dated 20 August 1993 on the grounds that the Secretary of State was not satisfied that the petitioner had a well-founded fear of persecution in India for reasons of race, religion, nationality, membership of a particular social group or political opinion. On 24 October 1993 the petitioner was served personally with this letter, together with a notice of refusal to grant leave to remain and of intention to deport for over-staying his leave. The petitioner was then taken to Aikenhead Road Police Station, Glasgow and thereafter detained in Gateside Prison, Greenock. On 24 November 1993 he was served with removal directions. On 1 December 1993 the petitioner, through the agency of N.J.L. Brockbank of Leamington Spa, appealed against the decision to deport him. On 4 December 1993, through the agency of Dilip Deb, Solicitor, Glasgow, the petitioner appealed to the Special Adjudicator against the refusal of asylum on the grounds that the decision was "unfair and unjust and contrary to the 1951 U.N. Convention" and that the Home Secretary had failed to take into account compassionate grounds. The Special Adjudicator turned down this mixed appeal on 31 January 1994. The petitioner applied for leave to appeal against that decision. That was turned down by a decision of the Immigration Appeal Tribunal of 7 February 1994. A deportation order under section 5(1) of the Immigration Act 1971 was pronounced against the petitioner on 31 March 1994 and directions for his removal were sent on 27 August 1994. In September 1994 a petition was presented for judicial review of these decisions. On 9 February 1995 this petition was conceded on the advice of counsel. The matter was then remitted back to the Immigration Appeal Tribunal for reconsideration. The Tribunal sent the whole matter back to be reconsidered de novo by a different Special Adjudicator. This second Special Adjudicator, Mr M.E. Deans, issued a determination on 25 August 1995 refusing both appeals. The petitioner sought leave to appeal against that decision. On 6 September 1995 the Immigration Appeal Tribunal refused leave. On 9 September 1995 the petitioner was again served with a notice of intention to deport. On 24 December 1995 the petitioner was again detained in Gateside Prison, Greenock pending his deportation, which was fixed for 5 January 1996. On 29 December 1995 the petitioner presented a second petition for judicial review. This sought interim liberation from detention together with reduction on the grounds of unreasonableness of the decision of the Immigration Appeal Tribunal to refuse him leave to appeal and reduction on the grounds of unreasonableness and breach of natural justice of the decision of the Secretary of State to detain and then remove the petitioner from the United Kingdom. The petitioner attacked the decision of the second Special Adjudicator as having been reached unreasonably and in error of law and contended that accordingly the decision to refuse leave against this decision was one which no reasonable Immigration Appeal Tribunal, properly directing itself, could have reached. On 13 December 1997 this second petition for judicial review was conceded, as regards the decision of the Immigration Appeal Tribunal, on the advice of counsel. The basis for this concession was that the Immigration Appeal Tribunal's determination revealed legal and factual errors such as to render the determination of the Immigration Appeal Tribunal indefensible. No concession was made as regards the soundness of the decision of the Special Adjudicator of 25 August 1995. This decision was not reduced. The whole matter was then remitted to a differently constituted Immigration Appeal Tribunal to consider the matter de novo. On 18 February 1998 the Immigration Appeal Tribunal again refused the petitioner leave to appeal against the decision of the second Special Adjudicator dated 25 August 1995. This present petition for judicial review, the third that the petitioner has presented, seeks reduction of the decision of the Special Adjudicator dated 25 August 1995 and of the decision of the Immigration Appeal Tribunal dated 18 February 1998, together with an order for interim liberation.
In his determination of 25 August 1995 the Special Adjudicator found that he was unable to accept the credibility of the evidence advanced on behalf of the appellant to support his asylum appeal. He gave the following reasons for this conclusion:
"In my view the appellant's credibility is undermined by his delay in making his asylum application at any time in the period between his arrival in the United Kingdom in 1982 and his detention by immigration officers in 1990. Only following his detection by the Immigration Service did he seek to claim asylum. Indeed when he was approached by immigration officers in 1989 he chose to deceive them as to his identity rather than to claim asylum at that point. Given these circumstances, I find that the appellant's claim that he has a fear of persecution for Convention reasons lacks credibility. Nevertheless, in his submission Mr Deb raised certain issues which I wish to deal with on an individual basis. Mr Deb referred to the letter dated 2 March 1993 from Maninder S. Chavan. He pointed out that in their letter of 20 August 1993, the Immigration and Nationality Department said of Mr Chavan's letter that 'The Secretary of State is also aware of at least one other asylum case in which a supporting letter from Mr Chavan was submitted together with a copy of what was alleged to be a warrant for the applicant's arrest. On investigation, however, this document was not found to be genuine'. Mr Chavan (both counsel accepted that this was a mistake and plainly should have been Mr Deb) pointed out that this was an assertion made on behalf of the respondent but did not amount to evidence. Mr Deb contended that if Mr Chavan's letter was to be challenged on this basis, then evidence should be provided of the other asylum application in which it was said that his letter was found not to be genuine. It seems to me that Mr Deb's point was not without justification. It would be wrong of me not to accept the credibility of Mr Chavan's letter on the basis of mere assertion by the Immigration and Nationality Department. However Mr Chavan's letter was written some time after the appellant had applied for asylum. As I have already pointed out, this application was itself made only after the appellant was detected by immigration officers having exceeded his leave to remain in the United Kingdom by several years. In my view Mr Chavan's letter does not contribute to the appellant's claim for asylum but is as lacking in credibility as the appellant's own evidence. I have reached a similar conclusion, for similar reasons, in respect of the credibility of the letters from the appellant's wife.
Turning to the copy warrant of arrest dated 8 December 1980, Mr Deb referred to the comments made about this warrant in the letter dated 20 August 1993 from the Immigration and Nationality Department. Mr Deb submitted that the Immigration and Nationality Department were wrong to suggest that the appellant had ever said that this warrant was issued in respect of a murder in 1982. Even accepting Mr Deb's submission on this point however, it seems to add little, if anything, to the appellant's case. The appellant has provided no explanation as to the reason for the issuing of the warrant. It might be that the warrant, if it indeed refers to the appellant, was issued for some reason totally unrelated to persecution under the 1951 Convention. Accordingly, I am not satisfied that the warrant is credible evidence in support of the appellant's claim of asylum, given my reservations about the appellant's credibility generally.
Mr Deb made a further submission in relation to an alleged discrepancy...
To continue reading
Request your trial