R v The Secretary of State for The Home Department ex parte Abdullah Turgut
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE SCHIEMANN,LORD JUSTICE THORPE |
| Judgment Date | 28 January 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0128-14 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2000 |
| Docket Number | Case No: FC3 1998/7436/C |
[2000] EWCA Civ J0128-14
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice Schiemann and
Lord Justice Thorpe
Case No: FC3 1998/7436/C
Mr A. Nicol QC and Mr. M. Henderson(instructed by Howe & Co. of Wood Green ) for the Applicant
Mr N. Pleming QC and Mr M. Bishop (instructed by the Treasury Solicitor, London, SW1H 9JS ) for the Respondent
Mr M. Fordham (instructed by the Treasury Solicitor, London) as amicus curiae
Friday 28 January 2000
The applicant is an unmarried 30 year old Turkish Kurd who in March 1993 entered this country illegally, he says by concealment in the back of a lorry. On 20 April 1993 he claimed asylum, a claim which was rejected by the Secretary of State on 19 January 1995 and rejected again by the Special Adjudicator on appeal on 20 March 1997. The Special Adjudicator found him "entirely lacking in credibility", his evidence "littered with discrepancies", and that there was "no serious possibility that the events related by the appellant" had happened. That the applicant is a draft evader from Turkish military service is not in doubt. As for the rest, the probability appears to be that he entered Germany in December 1987, applied unsuccessfully for asylum there, but nevertheless managed to remain in that country for most if not all of the years prior to his arrival in the United Kingdom in 1993. The applicant's asylum claim in this country has now run its course: the Immigration Appeal Tribunal refused him leave to appeal against the Special Adjudicator's determination and against that refusal there was no challenge.
That, however, merely sets the scene for the present challenge, a challenge which was rejected by Carnwarth J on 22 May 1998 but which on 27 October 1998 the Court of Appeal (Lord Woolf MR, Henry and Clarke LJJ) permitted and indeed, retained for itself. What is now impugned is the Secretary of State's refusal to grant the applicant exceptional leave to remain, the alternative course to removing him back to Turkey as the illegal entrant he undoubtedly is. His claim to exceptional leave rests on Article 3 of the European Convention on Human Rights �"No one shall be subjected to torture or to inhuman or degrading treatment or punishment" �the Secretary of State having for some years past publicly undertaken not to expel someone where substantial grounds are shown for believing there to be a real risk that on return that person would face treatment proscribed by Article 3 (which for brevity's sake I shall henceforth call Article 3 ill-treatment).
The very fact that the applicant has been found so hopelessly wanting in credibility is what turns this challenge into the test case which both parties now recognise it to be. It has to be put, and is put, on the unvarnished basis that any young male Turkish Kurd draft evader who is returned to Turkey as a failed asylum seeker without travel documents, will, by virtue of those facts alone, face a real risk of being subjected on return to Article 3 ill-treatment. Although precise statistics are not available, it seems clear that many thousands of such claims for exceptional leave will turn upon its outcome; the 60-odd challenges stayed in the Crown Office List pending its resolution represent but the tip of an iceberg.
Two issues of fundamental importance are raised before us:
1. Is it for this court to assume upon such a challenge the primary fact-finding role? Must we, in other words, decide for ourselves whether on all the material before us we for our part regard the applicant (and those in like case) as subject to the risk in question? Or are we exercising what still remains essentially a supervisory jurisdiction, heightened though our responsibilities would undoubtedly be in the context of so fundamental a human right as that at stake here?
2. On whatever be the correct approach, how does the court assess the material before it? Can this applicant properly now be returned to Turkey?
Before turning to these issues, I should deal with one or two preliminary matters. First, as all agree, the material date for the assessment of risk is the time of the court's consideration of the case �see Chahal v United Kingdom (1997) 23 EHRR 413 at 461 where, in paragraph 97 of their judgment, the court said this:
"In determining whether it is has been substantiated that there is a real risk that the applicant, if expelled to India, would be subjected to treatment contrary to Article 3, the Court will assess all the material placed before it and, if necessary, material obtained of its own motion. Furthermore, since the material point in time for the assessment of risk is the date of the Court's consideration of the case, it will be necessary to take account of evidence which has come to light since the Commission's review."
Second, for that reason, the Secretary of State has of necessity more than once had to reconsider his assessment of risk in this case so that there are now before us no fewer than five successive decisions refusing the applicant exceptional leave to remain. These were taken respectively on 13 March 1998, 23 October 1998 (four days before the Court of Appeal granted leave to move), 11 January 1999, 17 August 1999 and 13 December 1999. In the result, the Court's papers have grown ever more voluminous. More and more reports have been assembled, more and more enquiries made. The bundles before us now number no fewer than 1500 pages. Whatever approach falls to be adopted, the Court's burden is a heavy one.
Let me next clarify by reference to the Strasbourg jurisprudence just what sort of ill-treatment Article 3 is directed to. This I can conveniently do by reference to two cases in particular. First, Soering v UK (1989) 11 EHRR 439 where in paragraph 100 of their judgment, the Court said this:
"As is established in the Court's case law, ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental affects and, in some instances, the sex, age and state of health of the victim." (This formulation was repeated in Cruz Varas v Sweden (1991) 14 EHRR 1 at page 37.)
Second, Selmouni v France (1999) 7 BHRC 1 at page 24:
"95. The court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. � Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15(2) even in the event of public emergency threatening the life of the nation �
96. In order to determine whether a particular form of ill-treatment should be qualified as torture, the court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering �
99. The acts complained of [in Selmouni] were such as to arouse in the applicant feelings of fear, anguish, and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The court therefore finds elements which are sufficiently serious as to render such treatment inhuman and degrading � In any event, the court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 �
101. The court has previously examined cases in which it concluded that there had been treatment which could only be described as torture � However, having regard to the fact that the Convention is a `living instrument which must be interpreted in the light of present-day conditions', the court considers that certain acts which were classified in the past as `inhuman and degrading treatment' as opposed to `torture' could be classified differently in future � It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."
Issue 1 �the Court's approach
Critical to the Secretary of State's successive decisions has been his assessment of risk. Each time he has reconsidered this case, he has concluded that no substantial grounds exist for believing that the applicant would be at real risk of Article 3 ill-treatment if returned to Turkey. These decisions are challenged on the ground of irrationality �the contention being that such a conclusion was not one properly open to the Secretary of State on the facts �and the conventional approach to such a challenge is that set out in Sir Thomas Bingham MR's judgment in R v Ministry of Defence ex parte Smith [1996] QB517 at 554:
"Mr David Pannick [for the applicant]...
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