Immigration law

Political opinion - By Jane Coker, Coker Vis Partnership, LondonYuriy Storozhenko v Secretary of State for the Home Department (CA) 2001 (Lords Justice Simon Brown, Brooke, Mance) 15 June This case raised the issue of the construction of 'political opinion' within the Geneva Convention although it came to no conclusion.Yuriy Storozhenko had fled the Ukraine after being repeatedly threatened by friends of a police officer against whom he had made a complaint.

At the Immigration Appeal Tribunal (IAT) he contended that he had suffered persecution within the meaning of article 1A (2) of the Geneva Convention for his political opinion, because his political belief was that the rule of law had to be upheld.

The IAT held that he did not fall within the Geneva Convention.

In his appeal Mr Storozhenko submitted that the IAT erred by construing 'political opinion' too narrowly.

The Court of Appeal held that the relevant ground of appeal not having been submitted to the special adjudicator hampered consideration of the appeal; the meaning of the words 'political opinion' had not, in the present context, been considered by an English court.

Reference was made to the United Nations High Commission for Refugees Handbook, academic analysis and to Canadian and Australian authorities.

However, those authorities did not assist Mr Storozhenko as he had been unable to establish the nexus between fear of persecution and political opinion that existed in the Canadian and Australian authorities.

Simply pursuing a complaint against a police officer did not amount to political activity.Practitioners should take warning from this to ensure that all potential grounds of appeal are raised as soon as possible.

Practitioners should also be aware of the potential relevance of non-UK authorities and the opportunity to draw on wide-ranging expertise, although this was unsuccessful for Mr Storozhenko.Grounds raised at IATVullnet Xhezo + 2 (Immigration Appeal Tribunal, 01/TH/0625; 12 July 2001; Chair Dr Hugo Storey, Immigration Law Update,17 July 2001)This case also considered the situation where the grounds of appeal did not raise issues until the IAT.

In this case, Vullnet Xhezo, a citizen of the Federal Republic of Yugoslavia made no mention of human rights grounds in his appeal against refusal of asylum until grounds of appeal were submitted to the IAT.

It was submitted to the IAT that the adjudicator's failure to address human rights compliance was a fundamental error in view of section 6 of the Human Rights Act 1998 (HRA) and section 77 of the Immigration and Asylum Act 1999.

The IAT agreed that section 6(1) of the HRA imposed a positive obligation to ensure that the adjudicator acted in compliance with a person's convention rights, but held that section 65(1) of the 1999 Act only conferred a right of appeal in relation to human rights where a person alleged a breach of his human rights.

If a breach were not alleged that meant the appellant had failed to exercise his right to appeal on human rights grounds.

The IAT considered that failure to mention human rights issues did not prevent an adjudicator considering whether the decision maker had acted in breach, but neither the positive duty placed on adjudicators by section 6(1) of the HRA nor section 65(3) of the 1999 Act required adjudicators automatically to identify a human rights issue when neither party has raised the issue.

However, human rights grounds were raised before the IAT and thus the IAT considered the issue, rejecting the appeal on the basis that none of the human rights issues raised by the appeal had any substance.

The IAT stated it would expect adjudicators, as a matter of good practice, to deal specifically with the issue of whether there were any human rights aspects to a one-stop appeal as a matter of course to ensure compliance with obligations under section 6(1) of the HRA; but an adjudicator will not err in law in failing to consider whether a decision is in breach of human rights unless there is an obvious human rights point, that is to say a point which has a strong prospect of success.A second issue raised by this case was the lack of representation of the appellant before the adjudicator.

The appellant had been written to, in English, just over a month before the hearing that his representatives would not be able to represent him at his hearing before the adjudicator.

It took the appellant some two weeks (including the Christmas period) before he made contact with other representatives, who, because of the lack of time, were also unable to represent him.

The adjournment request based on this chronology, even though it was accepted that the appellant's English was limited, was not accepted and the hearing proceeded with him unrepresented.

The IAT found, on the facts of the case that the adjudicator had taken care throughout the case to ensure that the refusal of the adjournment had not prevented a just disposal of the appeal.The conclusions to be drawn from this case are that it is essential that human rights issues are considered early, and pleaded, to ensure proper consideration at as early a stage as possible.

Furthermore, if practitioners find themselves unable to represent, they should, although there may be no criticism levelled at them by the court, ensure that the client is aware of the urgency with which alternative representation should be arranged; otherwise clients could well end up unrepresented.

Judicial review of special adjudicator's decisionR v (1) Special Adjudicator (2) Secretary of State for the Home Department, ex parte Kadem Dusmez (Administrative Court) Mr Justice Maurice Kay; 28 June 2001 This was an application for judicial review of a decision of a special adjudicator (SA) on 31 August 2000.

Kadem Dusmez was a Kurdish asylum seeker from Turkey who claimed asylum on arrival in the UK on 23 March 2000.

She was refused leave to enter on 29 April 2000 and her claim was certified under schedule 2, paragraph 5(3)(a) to the Asylum and Immigration Appeals Act 1993 - non-production of a valid passport on arrival and failure to provide a reasonable explanation.

The matter came before the SA who upheld the certificate and also refused an adjournment for expert reports, notably psychiatric/ psychological reports.

The administrative court held that the SA was entitled to uphold the certificate under paragraph 5(3)(a) of the 1993 Act.

Ms Dusmez's explanation that she had never applied or possessed a passport entitled the SA to look into why she had travelled from Turkey without one.

The construction of paragraph 5(3)(a) was clear and unambiguous and had to be given its ordinary natural meaning.

The test was whether the SA was entitled to find in all the circumstances that the explanation as a whole was not reasonable.

The court also held that the SA had adopted the correct approach to the request for an adjournment for reports and had used his discretion under rule 10 of the Asylum Appeals (Procedure) Rules 1996, applying the test of what was necessary for the just disposal of the appeal and to secure the just, timely and effective conduct of the proceedings.

The Administrative Court took into account that the SA had agreed to a further medical report being prepared before his determination as a safety net to allow any necessary reconsideration.

On the evidence before the SA, he was entitled to proceed to a determination.

The application for judicial review was successful because the decision was expressed in a manner which gave rise to legitimate criticism.The SA's decision did not do justice to the evidence in the case and the issues before it.

It did not make clear or rationalise the SA's findings.It is clear from this case that representatives will have to ensure that necessary evidence is obtained as quickly as possible to minimise the risks to the client.

Detailed instructions must be sought at an early stage to ensure that adequate and full explanations as to failure to produce requisite documents are given.