R Burhan Savas v Secretary of State for the Home Department

The claimant seeks permission to apply for judicial review and the continuation of an interim injunction, granted by Munby J after consideration of the papers on 18 October; that is, two days ago. Munby J's order runs out in 20 minutes.

The claimant is a Turkish national, who entered the country illegally, as is conceded in the claim form, on 20 January 2000 from Turkey, accompanied by his wife and five year-old son. He applied for asylum and was turned down on 26 June 2001. He appealed to an adjudicator, who by a determination promulgated on 23 January 2002 dismissed the appeal.

His appeal was based on alleged activity in support of the PKK in Turkey. The appellant alleged he had, among other things, acted as a spy for them. The adjudicator's assessment of the appellant's credibility was unfavourable, and he did not believe the appellant's account of being pursued and tortured by those who wanted him to act as a spy. The adjudicator found there was no real risk of persecution for Convention reason, or treatment in breach of Article 3 if the appellant was returned to Turkey.

An application for leave to appeal to the Immigration Appeal Tribunal was refused on 11 March 2002. No application for statutory review was made (at least none that is in the papers before me, and if any was made, it was refused), and thus by about the end of March 2002, the appellant's statutory rights were exhausted.

In December 2002, he made an application to remain in the United Kingdom as a businessman under the ECAA Agreement (better known as the Ankara Agreement). For reasons about which Mr Paul Greatorex for the Secretary of State has no instructions today, no determination of that application took place until a few days ago when it was refused and removal directions were set. Another thing which happened earlier this week is that the claimant's solicitors made a claim, or purported fresh claim, raising ECHR grounds, both Article 8 and Article 1, Protocol 1.

The Secretary of State, by a decision of 17 October (that is three days ago), gave reasons for rejecting the application. He referred only to Article 8. I shall come to Article 1, Protocol 1 myself later in this judgment. But the letter also stated that the Secretary of State did not consider that the representations made constituted a fresh claim within the meaning of paragraph 353 of the Rules.

The claimant has also this week lodged an application to the Asylum and Immigration Tribunal for permission to appeal against the refusal of the Ankara Agreement claim, and Mrs Rothwell, on his behalf, has referred me in that context to the decision of the three-member Tribunal in the recent case of SS and others (Turkey) [2006] UKAIT 74.

The removal directions originally set earlier this week had in fact been revoked, given the applications to this court and to the AIT. But given that the way this matter has gone, it would clearly be wasteful and inefficient for me to have sent the parties away on the grounds that there is no longer anything in dispute. Mr Greatorex has made it clear that the Secretary of State intends to set new removal directions as soon as there is no legal impediment to his doing so, and it is clearly desirable that I should indicate my view on whether removal directions could now lawfully be set once again.

The first question is whether there is an arguable appeal to anyone—whether an appeal to the AIT or grounds for judicial review—against the refusal of the Ankara Agreement claim. The answer, in my judgment, is a clear "no". The adjudicator disbelieved the appellant and found that his claim to asylum was without merit. This, in the view of Collins J in the case of Aslan (CO/0260/2006), is a ground for treating the case as within the fraud exception to Dari and Tum [2004] EWCA Civ 788. Further, the claimant's entry into the country is accepted to have been illegal: see the more recent decision of Collins J in Temiz (13 October 2006). Further, and in any event, see what Lord Woolf LCJ said about the fraud exception in Dari and Tum itself, and the Advocate General's opinion in the same case now that it has been referred to Luxembourg.

As to the AIT's decision in SS, that says that those who have lodged appeals based on the Ankara Agreement, or...