A v Secretary of State for the Home Department

Judgement

1. The appellant in this case was born on 10 March 1977 and is a Turkish Kurd of the Alevi religion. He obtained a passport in August 2003 in his home area of Malacha. On 24 March 2004 he came to the United Kingdom using his passport and claimed asylum on arrival. He asserted that he and his family had given shelter to a female second cousin, Miss Ozlem Taz, who had been an active and militant member of the military wing of DHKP-C, an illegal Kurdish separatist movement. She had carried out her activities in the area of Denizli. It was said that in 1999 she had been sentenced to a 36-year term of imprisonment for being a member of the relevant organisation, but had gone on hunger strike and in 2003 was temporarily released for six months, to obtain medical assistance. She applied for an extension to her temporary release, which was refused. Two weeks before the end of her six month release period, she arrived and was sheltered for a short time by the appellant's family. Thereafter she melted away, but Turkish soldiers came looking for her. The appellant, who was questioned and then beaten up, escaped to Istanbul, thence by air to Germany and three months later by lorry to the United Kingdom.

In a very full letter of 25 March 2004, the Home Office rejected the appellant's claim for asylum, on the basis that there was no well-founded fear of persecution and that there would be no contravention of his human rights for him to be returned to Turkey. The appellant appealed to an adjudicator, Miss A D Baker, who on 9 June 2004 disbelieved his account in relation to Miss Taz; that she had been released temporarily in 2003 for medical reasons, and sheltered by his family, giving rise to a need for the appellant to flee from his home. The adjudicator considered that the appellant's account of Miss Taz being released in February 2003 was "wholly not credible", since the evidence was that release of hunger strikers had only occurred in 2001. There was no evidence that such releases occurred in 2003. She also concluded that it was not likely that Miss Taz was a relation of the appellant at all. She added that the appellant would not have been allowed to leave Turkey on his own passport, or even to obtain a visa to leave for Germany, if he was genuinely of interest to the authorities. Moreover, there was no adverse interest in the appellant when he was in Turkey, and no adverse interest was likely on his return. He appealed to the Immigration Appeal Tribunal, but before the appeal was heard, that tribunal ceased to exist. On 4 April 2005 the Asylum and Immigration Tribunal came into existence, and took over appeals originally made to the IAT. The hearing of the appellant's appeal, if in the light of the transitional arrangements that is the right word for it, actually took place on 4 April 2005, the first day of the AIT's existence.

The grounds of appeal to the IAT dated 25 June 2004 were that the appellant had "fresh evidence" from Germany, to the effect that Miss Taz:

"… was arrested and imprisoned by the Turkish authorities, because of her active political involvement, and was subsequently released for an interim period by the Turkish authorities, due to her medical condition."

On 2 September 2004, Mr Batiste on behalf of the IAT, granted permission to appeal, since in his view the new evidence relating to the treatment of Miss Taz appeared to be relevant to the adjudicator's reasoning for her adverse findings on credibility. The new evidence needed to be assessed, to ascertain whether it had any impact on the sustainability of her conclusions. It will be apparent that this decision to grant permission to appeal was made before the IAT became fully aware that their power to hear appeals on fact in relation to any decision by the adjudicator made after the first week of June 2003 had been revoked by Parliament and that they only had jurisdiction to hear appeals on questions of law. Neither the appellant's grounds of appeal, nor the grant of permission, identified any question of law to which the fresh evidence would be relevant. It was only after the decision of this court in Mlauzi v SSHD [2005] EWCA Civ 128 rendered on 7 February 2005, that this restriction on the jurisdiction of the IAT may have become fully apparent.

By the time the appeal came before the AIT, by virtue of the transitional provisions contained in the Asylum and Immigration Act 2004 substituting the AIT for the IAT, it had become apparent to members of both the IAT and the AIT that a point of law had to be found before they could exercise their jurisdiction. The AIT observed that the appeal was to be treated as a reconsideration, pursuant to Article 5(2) of the Asylum and Immigration Treatment of Claimants Act 2004, (Commencement No. 5 and Transitional Provisions) Order 2005, and proceeded first to consider whether the adjudicator had made a material error of law. Since no such error had so far been alleged, Mr Bazini, then appearing on his own for the appellant, applied to amend his grounds of appeal to attack the adjudicator's findings of credibility, and in particular to say, to put the matter broadly at this stage, that the material considered as a whole supported the assertion that Miss Taz would indeed have been released for medical reasons in 2003, and was thus likely to have been sheltered by the appellant's family.

The AIT held however 1) that they had no jurisdiction to allow an amendment to the grounds of appeal because paragraph 62 (vii) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 limited their reconsideration of the adjudicator's decision to the grounds on which the IAT had granted permission to appeal; 2) that even if they had jurisdiction to allow an amendment to the grounds of appeal, they would not exercise it at such a late stage of the proceedings; 3) that by concession, in the absence of any amendment, no error of law by the adjudicator could be shown.

Before the AIT, Mr Bazini had sought to invoke the principle set out in the SSHD ex parte Robinson [1998] QB 929, in which it was held that if there was a "readily discernible and obvious" point, of what Maurice Kay LJ, in Miftari v SSHD [2005] EWCA Civ 481 Paragraph 39, has referred to as refugee convention law, which the appellant had not taken, the Immigration Appeal Tribunal and the court on any appeal should permit such point to be taken, or take it of their own motion and if appropriate, allow an appeal. The IAT made no reference to Robinson, either in their decision or in their refusal of permission to appeal to this court. The appellant has, however, been given permission to appeal to this court, on the basis that it is arguable that the Robinson principle applies, despite the provision of Rule 62 (vii) of the 2005 rules and that even if the Robinson principle does not apply, the rule itself is ultra vires or unreasonable.

In granting that permission, Neuberger LJ sagely observed that the Robinson type errors identified in the appellant's skeleton argument might well be insufficient to allow the appeal to succeed. Since counsel for the Secretary of State accepts that it is open to the IAT in law to invoke the Robinson principle, the first point in the appeal is whether the points sought to be made in the Amended Grounds of Appeal to the AIT are indeed Robinson points. It is important to note that Lord Woolf MR said in Robinson that the relevant point had to be strongly arguable.

The Amended Grounds of Appeal

The first amended ground is that the adjudicator's reasoning in paragraphs 6(g) and (h) is unreasonable. In these paragraphs the adjudicator says that the claim that Miss Taz was released in 2003 was not credible because the conditions of detention had by then been eased. Relying on a Committee for the Prevention of Torture report after a 2002...