Ruslanus Irzekevikius For Judicial Review Of Decisions Of The Secretary Of State For The Home Department, A Special Adjudicator And The Immigration Ap V.
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 14 July 1999 |
| Docket Number | P12/14A |
| Court | Court of Session |
| Published date | 14 July 1999 |
| OUTER HOUSE, COURT OF SESSION
| |
| P12/14A/98
| OPINION OF LORD MACFADYEN in Petition of RUSLANUS IRZEKEVIKIUS Petitioner; For Judicial Review of decisions of the Secretary of State for the Home Department, a Special Adjudicator and the Immigration Appeal Tribunal. ________________
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Petitioner: Sutherland; Lindsays, W.S. (for Gray & Co, Glasgow)
Respondent: Lindsay; Scottish Office
14 July 1999
Introduction
The petitioner is Lithuanian. He was born on 11 November 1973. He came to the United Kingdom in July 1994, and was granted leave to enter for six months. In October 1994 he applied for political asylum. By decision letter dated May 1997 and served on the petitioner on 9 August 1997 his application for political asylum was refused. The petitioner appealed against that decision, and a hearing took place before a Special Adjudicator on 14 October 1997. The Special Adjudicator's determination dismissing the appeal was issued on 5 January 1998. The petitioner then applied to the Immigration Appeal Tribunal ("the Tribunal") for leave to appeal against the Special Adjudicator's determination. That application was refused by the Chairman of the Tribunal on 13 January 1998. In this petition, which was presented on 19 February 1998, the petitioner seeks to bring under judicial review the decision of the respondent, the determination of the Special Adjudicator and the refusal of leave to appeal to the Tribunal. He seeks declarator that each of the decisions was unreasonable and wrong in law, and reduction of each of the decisions. He was granted interim liberation on 19 February 1998. His crave for suspension of a removal direction does not now arise because the removal direction was cancelled administratively on presentation of the petition.
Scope of the Petition
It is convenient, before turning to the substance of the submissions which Mr Sutherland made on behalf of the petitioner, to consider the scope of the petition. As I have already indicated, the remedies which the petitioner seeks are set out in statement 3 of the petition as (1) declarator that (a) the decision of the respondent, the Secretary of State for the Home Department, dated May 1997, (b) the determination of the Special Adjudicator promulgated on 5 January 1998 and (c) the determination of the Tribunal dated 13 January 1998 refusing leave to appeal were all unreasonable and wrong in law, and (2) reduction of each of those three decisions. Mr Sutherland's submission was that I should grant the petitioner all of those remedies, to the effect of leaving the petitioner's application for political asylum once more before the respondent for determination. Mr Lindsay for the respondent, however, submitted that I should go no further back through the decision-making process than was necessary to afford the petitioner a remedy, and that accordingly I should, if persuaded that the petitioner's attack on the validity of the Tribunal's refusal of leave to appeal was well-founded, grant declarator in relation to, and reduction of, that decision only, to the effect of leaving the application for leave to appeal before the Tribunal for determination anew in light of my decision.
The decision-making scheme which applies in relation to applications for political asylum is that the application is first considered by the respondent; from an adverse decision at that stage an applicant has a statutory right of appeal to a Special Adjudicator; that appeal is not restricted to a review of the respondent's decision, but takes the form of a complete re-hearing of the application, at which the applicant is entitled to lead such evidence and make such submissions as he chooses; there is a further right of appeal to the Tribunal, for which leave is required, and at any such appeal the introduction of further evidence and the possibility of remit to the Special Adjudicator are matters within the Tribunal's discretion. There is no statutory right of appeal from a decision of the Tribunal refusing leave to appeal to it, and consequently (as is not a matter of dispute in this case) such a decision is susceptible to judicial review. In an application to this court for judicial review of a refusal by the Tribunal of leave to appeal to it, the question for determination is whether the Tribunal's refusal of leave was invalid. It was not disputed in the present case that if it were shown that the Tribunal had refused leave to appeal in circumstances in which there was an arguable case that the Special Adjudicator's decision was erroneous in point of law or invalid, the Tribunal's decision would fall to be set aside. What was, however, disputed was whether this court should, in these proceedings, go further back into the decision-making process and set aside the Special Adjudicator's determination, or entertain an attack on the validity of the original decision by the respondent.
In the course of the first hearing before me that issue was discussed, but was not made the subject of full citation of authority. I therefore propose to confine my decision to the circumstances of this case. I am not persuaded that it would be appropriate in this process to review the respondent's original decision of May 1997. That was a decision from which the petitioner had a statutory right of appeal (Asylum and Immigration Appeals Act 1993, section 8). He exercised that right. Although he did not in the event submit to the Special Adjudicator any oral evidence, it was open to him to submit such evidence and to make such submissions as he and his advisers chose, untrammelled by the scope of the material considered in the respondent's decision. The question for the Special Adjudicator was whether the petitioner's removal from the United Kingdom would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees (1993 Act, section 8), i.e. whether a case for asylum had been made out before him. The Special Adjudicator's duty was to allow the appeal if he considered that the respondent's decision was not in accordance with the law or any applicable immigration rules, or that the respondent's discretion should have been exercised differently (Immigration Act 1971, section 19(1), as applied to asylum cases by paragraph 4 of Schedule 2 to the 1993 Act). The respondent's decision, and all the material contained in it, formed part of the material before the Special Adjudicator, but was not definitive of the matters which he was entitled to consider. In these circumstances it seems to me that the appeal to the Special Adjudicator afforded the petitioner a full remedy against any error or inadequacy in the respondent's decision, and there is no proper basis on which it could be held to be appropriate for this court in these proceedings to undertake judicial review of that decision. Mr Sutherland submitted that the flaws which he said were present in the respondent's decision "poisoned" the whole proceedings, so that the matter could not be put right by way of the statutory appeal process, and could not be remedied otherwise that by judicial review. I am not persuaded that there is any merit in that submission. Having regard to the fact that before the Special Adjudicator the petitioner could have adduced whatever evidence he considered was necessary to correct any errors of fact disclosed in the respondent's decision, and could have made any submissions that he chose about errors in law or defects in reasoning disclosed in that decision, and was entitled to have the issue of whether he had made out a case for political asylum determined de novo by the Special Adjudicator, I am unable to understand how the respondent's decision can be said to have "poisoned" the whole proceedings in such a way as to have rendered the statutory appeal process ineffective. I am of opinion that in the circumstances of this case, the petitioner having exercised his statutory right of appeal to the Special Adjudicator, nothing has been said in argument before me which justifies judicial review of the respondent's decision of May 1997.
I am also of opinion that it would be inappropriate for me to entertain a direct attack on the validity of the Special Adjudicator's decision. It was not suggested that there were any circumstances in which ground for review of that decision could be made out while ground for review of the Tribunal's refusal of leave to appeal was not made out. The attack on the validity of the Tribunal's decision depended on the proposition that there were flaws in the Special Adjudicator's determination which the Tribunal should have recognised as justifying the grant of leave to appeal. It is therefore necessary for me to consider the criticisms which were made of the Special Adjudicator's determination. But it does not follow, in my opinion, that it would be appropriate for me, if satisfied that there were defects in the Special Adjudicator's decision, to deal with them myself by declarator and reduction, and cut out the statutory role of the Tribunal as the forum for appeals against erroneous or invalid decisions by the Special Adjudicator. Mr Sutherland pointed to the fact that on appeal before the Tribunal, further evidence could only be introduced if the Tribunal in its discretion permitted it (Immigration Appeals (Procedure) Rules 1984, rule 18, as applied by the Asylum Appeals (Procedure) Rules 1993, rule 22(2)), whereas if I reduced the Special Adjudicator's decision, the appellant would, in the further hearing before a Special Adjudicator which would then require to take place, be entitled to lead such evidence as he chose. That is no doubt so, but the statutory scheme defines the scope for further evidence in an appeal from the Special Adjudicator to the Tribunal, and Mr Sutherland's submission is simply a plea to be released from such restrictions as that scheme imposes. If before the Tribunal on appeal a good...
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