AG (Turkey – CA – fresh evidence) [2005] UKIAT 00014

IMMIGRATION APPEAL TRIBUNAL

Date:  23 November 2004
	Date Determination notified:
	24th January 2005

Before:

The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
Mr N H Goldstein (Vice President)

Between:
APPELLANT

and

Secretary of State for the Home Department
	RESPONDENT

Appearances:	
For the Appellant:	Mr J Dutton of O’Keeffe Solicitors 
For the Respondent:	Ms L Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	This is an appeal against the determination of an Adjudicator, Ms C M Bell, promulgated on 6 August 2004.  The Appellant was born on 1 March 1948 and arrived in the United Kingdom in December 2002.  Her asylum claim, based on an alleged fear of persecution by Turkish authorities as an Alevi Kurd, was refused in March 2004.

2.	The Adjudicator accepted that the Appellant was illiterate, had a bad memory, was poor with dates, inarticulate and vague.  She concluded in relation to the asylum claim as follows:

“I accept therefore that the appellant is an ethnic Kurd who faced harassment and threats and intimidation whilst living in her Kurdish village from 1990 to 2000, form both the PKK and the gendarme.  I do not accept that this treatment amounted to persecution.  The appellant then moved to Istanbul where she felt discriminated against and was briefly detained in connection with the whereabouts of one of her sons.  She was verbally abused and slapped.  Although I accept she was treated badly, I do not accept that the treatment she experienced amounts to persecution.  She was released as it was accepted that she did not know where her son was.  She left Turkey because she wanted to be with her children in the UK and to avoid the harassment and discrimination she was facing.  I do not accept that the appellant has experienced treatment in Turkey which crosses the high threshold required to constitute persecuted or ill-treatment in breach of Article 3.”

3.	The Adjudicator concluded that there was no real risk to the Appellant on her return to Turkey and no issue has been raised in this appeal about the Adjudicator’s treatment of the asylum claim.  This appeal relates to the Adjudicator’s conclusions on Article 8.

4.	The Appellant had said that in 1990 her husband had left her and had come to the United Kingdom.  He had divorced her and remarried.  He was now in the process of divorcing that second wife and intended to remarry the Appellant.  She had three sons in the United Kingdom and a daughter in Germany.  The Adjudicator found:

“42.	The appellant claims to live with her former husband and three children.  She is not legally married to her husband but states that they have reunited and intend to remarry.  Her children are all adults.  The appellant has been in the UK since December 2002 and had not previously lived with her husband since 1990.  She had not lived with her children since they too left Turkey at various different unspecified times.
43.	I find it reasonably likely that the appellant is living with her former husband and three adult children in the UK and accept that a form of family life exists.
44.	When considering whether the decision to remove the appellant would constitute an interference with this family life I note that there is no evidence as to why the appellant’s former husband and children could not return with her to Turkey if they so wished.  There is no evidence that any of them have been recognised as refugees or even that they have the right to remain in the UK.  Therefore the appellant has not demonstrated that the decision would interfere with her family life.”

4.	The Adjudicator considered that the return of the Appellant to Turkey would be a reasonably proportionate decision, saying:

“… It is relevant that the appellant is aware that her former husband’s status in the UK is precarious as he is said to be awaiting a ‘final determination’.  The appellant’s family life is with her former husband, from whom she lived separately for many years, and her adult children, and there is no evidence of any exceptional dependence between the appellant and her adult children over and above the normal ties between adult children and their parent.  If the family bonds are close enough for them to wish to stay together there is no evidence of any insurmountable obstacles preventing family life continuing overseas.”

5.	Removal was not outside the range of reasonable responses.

6.	There was very little in the grounds of appeal which related to an error of law in this determination on the material placed before the Adjudicator.  Almost all of the grounds related to the effect of new evidence, which itself almost entirely related to the position of various family members as at the time of the Adjudicator’s determination.  The case of CA v SSHD [2004] EWCA Civ 1165 makes it clear that before any such evidence could possibly be examined the Appellant had first to establish that there was indeed an error of law in the Adjudicator’s determination.  That case dealt with the effect of sections 101 and 102 of the Nationality, Immigration and Asylum Act 2002 for Adjudicator determinations after 9 June 2003.  It is quite clear that under this new regime there is a real change required in the way in which new evidence is considered.

7.	Even up-to-date evidence of personal or country circumstances changed after the date of the Adjudicator’s determination is not admissible unless a “material” error of law has been found in the Adjudicator’s determination.  By “material” we take it that the Court of Appeal means that, at the stage of substantive consideration of the appeal, the error must be one which would cause the appeal to be allowed either to the extent of a remittal or through a complete reversal of the Adjudicator’s decision.  Only once the conclusion has been reached that such an error of law has been made can evidence which was not before the Adjudicator, even of up-to-date circumstances, personal or country, be examined to see whether the appeal should still be allowed either in whole, or in part to the extent of a remittal.  The grant of permission to appeal to the Tribunal does not itself suffice to make such evidence admissible.

8.	It is important in the light of that very clear decision that the Tribunal point out that what it said obiter in MA* (Fresh Evidence) [2004] UKIAT 00161 in paragraphs 21 to 23 is wrong in relation to evidence of up-to-date circumstances under the 2002 Act.  We had wrongly seen the combination of sections 101 and 102(2) as giving rise to an issue of construction as to when evidence of subsequent events could be admitted, to be resolved pragmatically in the context of the well-known approach in Ravichandran v SSHD [1996] Imm AR 97.

9.	Of course the restrictions on fresh evidence referred to in CA do not apply where the fresh evidence itself is necessary to establish the error of law.  There may be evidence which relates to procedural unfairness or which sets out the material or argument which was in fact placed before the Adjudicator, or which evidences the unusual but now recognised class of error of law which is an error of fact; see E v SSHD [2004] EWCA Civ 49.

10.	Mr Dutton submitted that there was an error of law in paragraph 45 of the determination in the Adjudicator’s conclusion that there was no evidence of exceptional circumstances of dependency between the Appellant and her adult children.  He said there were such circumstances:  the Appellant’s age, which led Mr Dutton to describe her as “very elderly”, her illiteracy and the fact that one daughter was in Germany and she did not know where one son was.  This all made her the more dependent on the two of her sons who were in the United Kingdom and unmarried.

11.	We reject this entirely.  The Adjudicator knew well that the Appellant was 56 and not “very elderly”, illiterate and knew of the location of the children, at least as described by the Appellant in paragraph 43.  (The Adjudicator there says that the Appellant is living with her former husband and three adult children in the United Kingdom, as the Appellant had claimed.)  The Adjudicator considered those factors in the context of family life.  Mr Dutton conceded that it would only be exceptionally that family life could be found to exist between a parent and adult children.  He also accepted that there was no evidence before the Adjudicator that the adult children could not return to Turkey.  The issue of dependency, he accepted, had not been explored “in significant detail”, to use his words, before the Adjudicator.  In fact the determination did not refer to any submission that some exceptional dependency should be found to exist because of the factors relied on by Mr Dutton.  There is no suggestion that the record or evidence of submissions is inaccurate and there is nothing to suggest that the Adjudicator failed to deal with any submission about dependency that had actually been made to her.

12.	We do not consider that the factors relied on could possibly show that the Adjudicator had erred in law in her conclusions in relation to family life and the proportionality of return.  This is particularly so in the light of her correct conclusion in paragraph 44 that there was no evidence that any of them had been recognised as refugees or had any right to remain in the United Kingdom.

13.	The only possible error of law in the Adjudicator’s determination, and it is not one upon which we express any concluded view, is one which favoured the Appellant.  It may well be that when considering the factual ingredients of family life for Article 8 purposes, the standard of proof is not one of reasonable likelihood but a balance of probabilities.

14.	However, even if there had been an error of law, as contended by Mr Dutton, it would not follow that any new evidence then became admissible.  It would still be necessary to show that that error had had a material effect on the decision in the way in which we have described.  However, if that position had been reached, it would be still wrong to suppose that new evidence is then automatically to be admitted without regard to the Ladd v Marshall principles, as summarised in paragraph 23 (ii) of E v SSHD [2004] EWCA Civ 49.

“New evidence will normally be admitted only in accordance with ‘Ladd v Marshall principles’ (see Ladd v Marshall [1954] 1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party’s legal advisers provides no excuse: see Al-Mehdawi v Home Secretary [1990] 1AC 876.” 

15.	We have not overlooked that E was decided under the 1999 Act and not under the 2002 Act, but we can see no reason why the mere fact that the gateway to the admission of new evidence has been passed, means that any new evidence should therefore and on that account alone be admitted.  Passing the gateway under the 1999 Act ie obtaining permission to appeal, still required the new evidence to satisfy the Ladd v Marshall tests.  The same approach should apply under the 2002 Act once the stage has been reached where it is permissible to consider whether new evidence should be admitted.  This is the approach we adopted in the actual decision in MA*.  The difference is only that under the 2002 Act, the gateway to considering new evidence of any description is the finding that there was a material error of law in the Adjudicator’s determination.

16.	Of course, if the evidence is of changed or up-to-date personal or country circumstances later than the Adjudicator’s determination, then it would by definition satisfy the first test in Ladd v Marshall ie that it could not have been obtained with reasonable diligence for use before the Adjudicator.  Its materiality and credibility might well still have to be assessed.  However, in order to do that the evidence would have to be considered.  The admission of up-to-date personal and country circumstance evidence may also mean that it is necessary to examine other evidence which was not before the Adjudicator, even though it could and perhaps should have been, in order for the Tribunal to make a proper assessment of the later evidence.  We set that out in MA*, paragraph 24.  However, evidence that does not relate to up to date personal and country circumstances may well fail the first Ladd v Marshall test and we emphasise that all three tests would have to be satisfied.  We also note in this context the last sentence of paragraph 23 of E which points out the general rule that the failure of the parties’ legal advisers provides no excuse such as to enable the evidence to be adduced.

17.	We now consider the evidence which Mr Dutton seeks to rely on against those Ladd v Marshall tests.  We do so even though we have concluded there is no error of law and the evidence which he seeks to adduce certainly shows no error of law itself.  We do so because of certain submissions which Mr Dutton made which is useful to comment on.  Mr Dutton conceded that almost all of the evidence could and should have been before the Adjudicator.  Nothing of any significance in our judgment could not have been before the Adjudicator.  Accordingly, it failed the first requirement of Ladd v Marshall.  The reason for its not being placed before the Adjudicator was said to be that the previous advisers, well known immigration solicitors, had failed in their duty to obtain it.  We have said before and repeat that if such allegations are to be made the failure to put such allegations to the previous adviser without clear and sound reasons for not doing so, is likely to lead to adverse inferences being drawn as to the true reason for the failure of such evidence to be produced.  This is because such an allegation is very easy to make and to do so based on partial or inaccurate information.  To omit an elementary and simple check is strongly suggestive of real reluctance to have the assertion tested.  Mr Dutton said that the comments of the previous advisers had not been sought because he did not expect them to reply.  That position should have been tested.

18.	Second, there is not the slightest evidence that the allegation made against the previous advisers is true, either by reference to what the Appellant said about the family or what she said to her advisers or sought advice about.  The allegation should never have been made in those circumstances.  There is no evidence from the Appellant that she ever told the previous advisers of these witnesses’ availability or alternatively, that they were unaware that such witnesses existed.  It is quite insufficient for Mr Dutton to say that he obtained the statements quickly after the appeal was lost.  There is a danger that these unevidenced allegations could result from a tactical decision by the previous adviser to focus on the asylum claim and to minimise reference to the details of the family in the United Kingdom, so as to reduce the risk of a conclusion being arrived at that an asylum claim had been made merely in order to advance the Appellant’s true aim of simply joining her family.  As we say later, much of the evidence sought to be adduced now about the location of and background to the presence of the other family members would have been problematic to the Appellant’s case;  the previous solicitors might have known or suspected that.  Once the asylum appeal has been lost, the focus can then switch to the position of the other family members as there is little to be lost by evidence which, if presented earlier, would have cast doubt on the now failed asylum claim.  The evidence sought to be adduced also fails the requirement that it would probably have had an important influence on the result of the case.  If admitted, it would have been wholly unpersuasive.

19.	We take first what the husband’s evidence was said to show in his statement of 6 August 2004.  He says that he claimed asylum on arrival in the United Kingdom in 1990 and that his appeal was dismissed in 1997.  He divorced the Appellant in 1993 or 1994, marrying an Irish citizen.  In 1996, he applied for a residence permit which was refused in May 1998.  His appeal was dismissed in April 1999 and a subsequent application for leave to appeal to the Tribunal was refused in June 1999.  He also said that he had separated from that wife in August 1998, that is three months after the failure of his application for a residence permit based on the marriage.  However, it follows that he had then continued his appeal against the refusal of a residence permit after he had separated from the wife upon whom that appeal depended.  Mr Dutton was constrained to recognise that there was likely to have been some deceit by the husband in the pursuit of the appeals in April and June 1999.  He was someone apparently willing to lie to advance his immigration status.  In March 2003, he applied to stay on compassionate grounds and for Indefinite Leave to Remain because he had been in the United Kingdom for over fourteen years;  since 2001 he had lived on disability benefits.  He intended to remarry his first wife as soon as his divorce was finalised.

20.	The husband also produced a letter from the Home Office dated 26 July 2004 to his MP.  He did not take issue with its contents.  However, it reinforces the impression of someone who regards the immigration system merely as something to be evaded, rather than complied with.  He was first removed from the United Kingdom in September 1976 but he returned ten years later and was removed again in 1987, following refusal of his asylum application, as an illegal entrant.  His asylum application was formally refused in October 1993 but while his appeal was outstanding, he had married a British citizen and in February 1994 submitted an application for leave to remain on that basis.  This was refused in January 1995, a refusal maintained in April 1996.  In September 1996 he made an application for a residence permit as the spouse of an EEA National, for his wife was an Irish citizen.  That residence permit application was refused in 1998.  We have dealt with his subsequent appeal.  His other applications are outstanding.

21.	Mr Dutton said that the significance of this evidence was that the husband was likely now to succeed in obtaining Indefinite Leave to Remain under the fourteen year rule.  It was reasonable to infer therefore that he would not be removed and that the Appellant, his wife-to-be, would not therefore be removed.  The fact that the husband did not yet have settled status, however, meant that the wife-to-be could not return to Turkey successfully to make an application for entry clearance and so to return her would be disproportionate.

22.	Mr Dutton prayed in aid two Tribunal decisions:  K (Turkey) [2003] UKIAT 00116 and N Kenya [2004] UKIAT 00408.  In the first case, the Tribunal rejected an argument that the Adjudicator should have ignored the prospect of an asylum applicant’s wife with Exceptional Leave to Remain obtaining Indefinite Leave to Remain because it held that the Adjudicator was simply drawing a reasonable inference from the evidence.  It also suggested that it was disproportionate to remove someone who could not apply for entry clearance, though it would be different if they could.  In the second case, it was said that the Adjudicator and the Tribunal should give weight in considering proportionality to Government policy concessions and the policy presumption in some concessions that enforcement action would not be taken against certain categories of person.

23.	These submissions call for some comments.  As to policies and concessions, first, it is not for the Tribunal or the Adjudicator to apply such policies or concessions.  Their application in any given case is a matter for the Secretary of State.  It is not for the Adjudicator or Tribunal to second-guess the application of the policy to any individual by the Secretary of State.  A decision may not be in accordance with the law if a relevant policy or concession has been ignored or misinterpreted.  Second, policy will, however, be relevant to the circumstances in which the public interests of immigration control yield to Article 8 (1), that is in the assessment of proportionality;  see M* (Croatia).  It is a statement as to general circumstances in which those responsible for immigration policy would regard return as disproportionate.  It may also be relevant where the position of someone other than the Appellant is relevant because it may affect the position of the Appellant.  But that is a remoter question, involving two assessments:  that of the individual whose position is relied on, and then of any implications which that may have for the Appellant.  It may not be possible to resolve both uncertainties.  Third, in order to take the policy into account, it needs to be understood in full, including any exclusionary provisions embodied by the policy.  It needs to be recognised that there may be additional unstated exceptions properly applied by the Secretary of State.  The facts also need to be clear before any conclusion is reached as to the way in which an applicant might or might not fit with a concession.  This is even more problematic when the requirements of the concession are not yet, but may in the future, be fulfilled.  Therefore, the weight given to any concession in the proportionality judgment must vary with the certainty as to the position which the Tribunal has.

24.	Here, Mr Dutton did not provide us with any material relating to the policy or exceptions and there is real scope for doubt as to the true facts in relation to the husband’s position.  The material in the Home Office letter shows that if in other respects the concession was met, there is clear scope for an exception to be made, having regard to the whole of the immigration history of this family, including the husband’s remaining after a series of refusals, (and asylum was refused in 1997), and the possible deceit involved in the pursuit of some of his subsequent applications.  It may well be that formal enforcement action has been taken.  We do not think that any conclusions could be drawn as to the prospect of the success of the husband under any concessions, and none as to the position therefore of the Appellant.

25.	Even if it could be said that the husband was very likely to be granted Indefinite Leave to Remain, or even if in fact he were granted Indefinite Leave to Remain, it is a fallacy then to suppose that that could make any necessary difference to the Article 8 conclusion here.  He would not be granted Indefinite Leave to Remain as a refugee but only because he had been able to stay for fourteen years despite the failures of his successive claims.  There is no reason why any such concessionary grant of Indefinite Leave to Remain should present an obstacle to his return to Turkey with his ex-wife, if the relationship is genuinely rekindled.

26.	If it is possible for a spouse to seek entry clearance upon return because of the status of the husband or wife in the United Kingdom, it would normally be proportionate to return an applicant in order for an entry clearance application to be made.  Of course there are exceptional circumstances in which that would not arise, such as the extensive and particular delay in the case of Shala [2003] EWCA Civ 233, or if there were serious logistical difficulties because of the absence of diplomatic arrangements in someone making such an application from the country to which he would be returned.  But it is quite illogical to say that a person should not normally return because he would be unable to obtain entry clearance, where the reason for that is that he falls outside the Immigration Rules anyway.  That would put those with the weaker case for staying in the stronger position to stay.

27.	The Immigration Rules are to be taken as generally embodying a proportionate procedural system and substantive basis for entry to and removal from the United Kingdom, and in particular for those who rely on family relationships for their immigration prospects.  The inability of someone to apply for entry clearance on return because he or she would not meet the Rules is a factor which tells strongly in favour of the conclusion that their return is necessary in the interests of immigration control (subject to the degree of interference with family life under Article 8).  It is not a positive factor for an applicant to rely on.  Any Tribunal decision to the contrary has either been misunderstood or is wrong, and should not be followed.

28.	We turn to the adult children.  The Adjudicator was prepared to conclude that the mother was living with the three adult children and her ex-husband in this country.  The three adult children produced witness statements dated shortly after the Adjudicator’s determination.  All three are living at different addresses from each other and different from their father and mother’s address in London.  The two upon whom Mr Dutton placed greatest reliance live at separate addresses in outer East Anglia.  We drew these addresses to Mr Dutton’s attention when he was making submissions about exceptional dependency, but he was unable to assist in how the Adjudicator had been told what she had been.  There is no suggestion of a recent change of address.  The children simply did not live with the mother and cannot readily have been in face to face contact.

29.	The two sons most relied on were said to have a claim to stay, albeit as failed asylum seekers, under the Ankara Agreement.  They are said to be running a fast food business.  It is not possible for the Tribunal to assess on that exiguous material whether the sons have any prospects at all under that agreement.  Accordingly, the Adjudicator’s conclusion that the father and those two sons have no status remains correct, as does her conclusion that they could still go back with her to offer support, resuming such family life as they had in Turkey.

30.	Even if the father and sons had some sort of entitlement to remain in the United Kingdom, it is quite wrong to say that such entitlement necessarily represents an obstacle, let alone a significant or insurmountable obstacle, to someone returning voluntarily to be with the family member in the country of origin.  Such entitlement may never have originated in an accepted claim for international protection, and might no longer justify such a claim, even if it had.  It is not necessary for any cessation clause to be invoked for such a family member to be shown to have no insurmountable obstacle to return.  Still less can a status based on mere length of stay be an obstacle to return.  It simply puts in question the genuineness of the family feeling relied on.

31.	Another son, then aged twenty-five, married a United Kingdom citizen (forty-five, divorced and severely disabled) after he had been refused asylum. His marriage application was successful in July 2003, but he was only granted leave to remain till July 2005.  Again, that very limited status is no necessary bar to his going, even if married to a disabled United Kingdom citizen.  She might be able to go with him.

32.	This evidence is wholly inadequate to show that there would be any significant interference with any family life with adult children or that the return of the Appellant would be disproportionate in view of their lack of status and ability to return to Turkey.

33.	This appeal is dismissed.  It is reported for what we say about CA, MA*, fresh evidence and assertions as to prospective status.

MR JUSTICE OUSELEY
PRESIDENT