[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> RQ (Jordan)), R (on the application of) v Secretary of State for the Home Department & Anor [2014] EWHC 559 (Admin) (05 March 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/559.html Cite as: [2014] EWHC 559 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 March 2014

Philip Mott QC :

1. The Claimant, at that time a Jordanian national of Palestinian descent, came to the UK in November 2009 as a visitor at the age of 23. He stayed on after his visa expired until he was arrested by police on 10 August 2012 for theft. He then claimed asylum. That was refused by the First Defendant on 24 August 2012. The Claimant appealed, but his appeal was dismissed by Judge Turquet in the First Tier Tribunal ("FTT") on 7 September 2012. Permission to appeal was refused by Judge Coker in the FTT on 12 September 2012, and by Judge Gill in the Upper Tribunal ("UT") on 21 September 2012.
2. This judicial review application was issued on 4 October 2012. Permission was initially refused on paper, but granted on an oral renewal by Ingrid Simler QC (as she then was) on 21 January 2013.
3. The single ground put forward in the hearing before me was that the FTT was in error for not granting an adjournment, and the UT was wrong not to grant permission to appeal. The remedy sought was an order setting aside the UT's decision, and a declaration that permission to appeal should be granted. It would then be for the UT to decide at a full hearing whether the appeal should succeed.
4. This is a case which was covered by the principles laid down by the Supreme Court in R (Cart) v Upper Tribunal [2012] 1 AC 663. This limits the granting of permission to cases in which the proposed appeal would raise some important point of principle or practice, or there is some other compelling reason for the grant of permission. However, it is clear from the Court of Appeal decision in R (AA (Iran)) v Upper Tribunal [2013] EWCA Civ 1523 that this second appeals test no longer applies once permission has been granted.
5. The short basis for the Claimant's asylum claim was that in about 2005 he had unwittingly got mixed up with Hamas. As a result he fears for his life in Jordan, and could not safely go to Palestine either. In any event, he claimed, he could not return to Jordan as he had renounced his Jordanian nationality.
6. In her decision letter of 24 August 2012 the First Defendant did not accept that he had voluntarily renounced his Jordanian nationality. In relation to credibility, the letter stated that the evidence he had given had been compared "both cumulatively and together with objective information about your claim and country" (paragraph 43). In other words, the adverse findings as to credibility were based not only on his asylum claim directly, but also on the rejection of his claim to have renounced his Jordanian nationality.
7. The Claimant's asylum claim was processed under the Detained Fast Track Process ("DFT"). That is why the hearing of his appeal was less than two weeks after the rejection of his asylum claim by the First Defendant. In that time the Claimant's solicitors had obtained an expert report from Professor Joffe, but had not investigated the claim about the renunciation of nationality. At the hearing Mr Vaughan, counsel for the Claimant, applied for an adjournment to allow this to take place. After a short break for him to speak to his client, he handed in a copy of a fax which was said to have come from the Jordanian Embassy, and asked for time to get it checked and translated. His application was refused.
8. Rule 28 of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 provides that:

"The Tribunal may only adjourn a hearing where –

(a) it is necessary to do so because there is insufficient time to hear the appeal or application which is before the Tribunal;

(b) a party has not been served with notice of the hearing in accordance with these Rules;

(c) the Tribunal is satisfied by evidence filed or given by or on behalf of a party that –

(i) the appeal or application cannot be justly determined on the date on which it is listed for hearing; and

(ii) there is an identifiable future date, not more than 10 days after the date on which the appeal or application is listed for hearing, by which it can be justly determined; or

(d) the Tribunal makes an order under Rule 30."

9. Rule 30 relates to transfer of a case out of Fast Track procedure, which may be for a number of reasons, including that there are exceptional circumstances which mean that the appeal cannot otherwise be justly determined. The words "exceptional circumstances" add no further test to that of whether the appeal can be justly determined: see R (SH (Afghanistan)) v SSHD [2011] EWCA Civ 1284, at paragraph [3].
10. In effect, therefore, the test for the FTT was whether it was satisfied by evidence that the appeal could not be justly determined without an adjournment. If that were the case, either it could be re-listed within 10 days under the DFT procedure, or it would have to be transferred out of Fast Track.
11. The FTT Judge, in refusing the application, said this at paragraph 6 of the Determination and Reasons:

"I did not find that there were exceptional circumstances to remove the case from Fast Track. The Appellant has had plenty of time to get evidence relating to his nationality and passport, which was a main issue. There was no explanation of why it had not been obtained. The letter from the Embassy was dated 18.7.2010 [this is accepted to be a mistake for 18.7.2012]. It could be read at the hearing. I was not satisfied that there were exceptional circumstances which meant that the appeal could not be justly determined. Rule 28(c)(i) of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 provides that the Tribunal may only adjourn a hearing, when satisfied that the appeal cannot be justly determined on the date on which it is listed for hearing. I was satisfied that the appeal could be justly determined." [Emphasis added]

12. Mr Vaughan then asked for time to take a statement from his solicitors, and this was granted. This statement explained that there was limited time and the solicitor had concentrated on getting the expert report. Armed with this statement, Mr Vaughan renewed his application for an adjournment. It was again refused, as the FTT Judge said in paragraph 7, "on the same grounds as before".
13. On 12 September 2012 another judge of the FTT refused permission to appeal. In relation to the adjournment issue, the reasons "noted that the issue of his citizenship was core to the claim and had been live for a number of months" [Emphasis added].
14. On 21 September 2012 permission to appeal was refused by the UT. The judge, in her reasons, stated that:

"[The FTT Judge] did not find any of the Appellant's evidence credible. She rejected his evidence concerning the loss of his Jordanian nationality (para 52) as well as his evidence concerning the basis of his fear of ill-treatment at the hands of Issa, his associates or Hamas (para 61). Her reasons for her adverse assessment of credibility in relation to the Appellant's fear of Issa, his associates and Hamas are set out at paras 53 to 60. She made these findings on the alternative basis that the Appellant had (contrary to her rejection of her evidence that he had) sought to revoke his nationality. The grounds do not engage with the Judge's reasoning at paras 53 to 60."

"whether or not the Appellant would be admitted to Jordan is not a matter which arguably bears upon the question whether, if admitted, he is at real risk of persecution in Jordan. The practicalities of returning an individual to a country do not affect the substantive asylum case except in limited circumstances which were not argued before the Judge"

"I have considered carefully whether the Judge's adverse assessment of credibility in relation to the Appellant's evidence about the alleged loss of his Jordanian nationality arguably affected her credibility assessment of the factual basis of his fear in Jordan and the Palestinian Territories. I have concluded that this is unarguable, as it is plain that the Judge considered the credibility of the account in relation to (b) and (c) [the fear of persecution in Jordan and Palestine respectively] separately. This is apparent not only from the opening words of para 53 but also from her reasoning at paras 53 to 60."

"Accordingly, I have concluded that it is unarguable that the refusal of the Judge to adjourn the hearing or take the case [out] of the fast track system in order to enable the Appellant to obtain the documents mentioned above has led to the Appellant having a hearing that was unfair."

15. The Claimant's counsel before me argued that this analysis disclosed errors of law such that the decision should be quashed. In particular, it was submitted that the FTT Judge did not in fact separate her findings of credibility in respect of the nationality issue from those in respect of the fear of persecution. In any event, such a task is almost impossible for a fact-finding tribunal.
16. Since the FTT hearing and the refusal of permission to appeal by the UT, further inquiries have been made by both sides. Although the results do not affect the assessment of whether there was an error of law in the UT decision, they are relevant to the question of whether this court should intervene, if such error is proved.
17. In summary, it is now accepted by both sides that the Claimant's nationality was revoked by the Jordanian authorities on 9 May 2012. This resulted from an application by the Claimant in about March 2012. Whether he paid a sum of £2,000 at that time, as he asserted at the FTT hearing, is not clear. So in essence his assertion, which was disbelieved by the FTT Judge who did not have the benefit of the full inquiries, was correct.
18. On the other hand, it is also accepted by both sides that the revocation was procured by the use of a false and forged document, purporting to be a letter from the Home Office Immigration and Nationality Directorate dated 21 March 2012 stating that the Claimant had been granted citizenship in the UK. He had not, and has not, received UK citizenship. So any future assessment of his credibility would have to take place on the basis that he was correct in stating that he was no longer a Jordanian national, but that this status had been procured by him by fraud.
19. I should add at this stage that diplomatic steps are being taken to get Jordan to accept the Claimant back, either as a national or on any other basis. So far they have not been successful, but the discussions are still going on.
20. The UT refusal of permission was clearly based on an assumption that the Claimant's assertions about his nationality might have been true, and an analysis of the FTT judgment which concluded that the findings of the asylum issue were not affected by this issue, either directly or indirectly. The First Defendant accepts that such an analysis was necessary before permission to appeal could properly be refused, as credibility was a key issue, but submits that the analysis was accurate. It is necessary therefore to examine the FTT decision to see whether this conclusion was open to the UT Judge and lawful.
21. In paragraph 40 the FTT Judge concluded "I do not find that the Appellant has provided a credible basis for challenging the assertions, analyses and conclusions in the Respondent's refusal letter". It will be recalled that this letter considered credibility "cumulatively": see paragraph [6] above.
22. Paragraphs 40 to 51 deal in detail with the reliability of the Claimant's assertion that he no longer had Jordanian nationality. They identify a number of inconsistencies, discrepancies and unlikely behaviours. Taken in the round, bearing in mind the guidance in Tanveer Ahmed v SSHD [2002] UKIAT 00439, the FTT Judge said "I place little weight on the document as evidence that this Appellant has had his nationality revoked" (paragraph 51). Paragraph 53 makes it clear that the FTT Judge did not simply place little weight on the document, but positively did not accept that the Claimant had sought to revoke his nationality.
23. Paragraph 53 opens with the words, "In the event that the Appellant sought to revoke his nationality, which I do not accept, he has not satisfied me that he would be unable to return to Jordan". That finding means that, insofar as the removability of the Claimant to Jordan had any relevance to the appeal, which is doubtful, it did not matter whether his nationality had been revoked or not. Its relevance thereafter could only be to the issue of credibility.
24. Paragraphs 54 to 58 deal with the alleged fear of persecution. Inconsistencies or discrepancies are pointed out. A number of features in the Claimant's account are said to be incredible or unlikely. Paragraph 59 begins with the words, "Given the number of implausible events and inconsistencies, I am unable to rely on the veracity of this Appellant's accounts". Counsel for the Claimant in this court has argued that this refers back not only to the fear of persecution claim (paragraphs 54 to 58), but also to the nationality claim (paragraphs 40 to 53). I am not persuaded that this is so. Certainly it was reasonable for the UT Judge to conclude that this was a free-standing assessment of credibility in relation to the fear of persecution claim. I am inclined to think that this conclusion was correct.
25. Paragraph 60 pulls together the threads in relation to credibility. Because of its importance I set it out in full:

"In TP (credibility) Zimbabwe [2004] UKIAT 00159 the Tribunal found that an Adjudicator was fully entitled to have regard to the immigration history of the Appellant and the precise circumstances in which the claim for asylum was belatedly made and to conclude that the Appellant was a person of no credibility. I find that a person in genuine fear would have claimed asylum at the earliest opportunity. I conclude that this Appellant has invented his asylum claim in order to bring himself under the protection of the Refugee Convention. I find that this Appellant had fabricated his account of involvement with Hammas and of giving up his Jordanian nationality. I cannot rely on the veracity of his evidence and this includes his account of having given up his Jordanian nationality. I find as a fact that he is a Jordanian national. In the event that this finding is flawed, I find that he could return to Jordan. He was born there as was his father." [Emphasis added]

26. There is no doubt that there was sufficient material for the FTT Judge to have made adverse credibility findings without relying on the challenge to his claims about nationality. Those could easily have been put aside as irrelevant, as they were in all respects save for credibility. Although paragraphs 53 to 59 of the FTT decision may properly be read as a freestanding critique of the Claimant's alleged fear of persecution, paragraph 60 to my mind quite clearly draws back in the adverse findings in relation to nationality. To state that this is not so, as the UT Judge has, is in my judgment an error of law.
27. In any event, where the issue of credibility in relation to nationality has been so prominent, both in the decision letter and in the FTT decision, it must be at least arguable that a decision-maker would have difficulty in putting an adverse finding on that issue out of her mind when considering credibility in relation to the alleged fear of persecution. I am only too aware that this judgment is very much easier to make with the benefit of hindsight, knowing that the finding about nationality was in fact wrong, but it is a valid supplementary argument which is available to the Claimant now.
28. What difference does this make? Instead of a finding that the Claimant was telling lies about the revocation of his nationality, he would (had the adjournment been granted) have faced a finding that he had procured that revocation by fraud. It is quite possible that the adverse assessment of credibility would thereby have been strengthened. Should I therefore grant relief at all?
29. The answer, to my mind, is to be found in SH (Afghanistan). There the Secretary of State had expert evidence on which she relied and the appellant wished to produce his own. In those circumstances, the Court of Appeal decided, it was beyond argument that the judge ought, in fairness, to have given the appellant an opportunity to produce countervailing expert evidence. In this case the Secretary of State sought to rely on the lack of evidence to attack the Claimant's credibility on the nationality point. The FTT Judge ought, in fairness, to have given the Claimant the opportunity to produce that evidence.
30. There had in fact been very little time to produce it prior to the appeal, and an adjournment would have allowed it to be produced, as subsequent events have shown. The results would have been surprising to most of the people involved in the appeal, certainly to the Secretary of State and the FTT Judge. This was one of those open and shut cases which, somehow, were not: see the quotation from Megarry J in paragraph [15] of SH (Afghanistan).
31. For me now to refuse this application on the basis that the truth does not on balance assist the Claimant on the issue of credibility would, in my judgment, be wrong, even though that might be the result of a fresh determination of his asylum claim. First, such a course would rightly lead to feelings of resentment that such an important decision was made on a false basis of fact. Secondly, this is a case of an asylum claim, where the issue is of a fear of persecution and death if returned to Jordan. Such cases demand the most anxious scrutiny, and the highest standards of fairness: see SH (Afghanistan) at paragraph [8].
32. For these reasons I shall grant the application for judicial review, and quash the UT decision of 21 September 2012 refusing permission to appeal. I will invite submissions from the parties as to the appropriate form of order.