R v. Immigration Appeal Tribunal, Ex parte Rachid Bouchtaoui

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	7 May 1992
Citation / Document Symbol	[1992] Imm AR 433
Cite as	R v. Immigration Appeal Tribunal, Ex parte Rachid Bouchtaoui, [1992] Imm AR 433, United Kingdom: High Court (England and Wales), 7 May 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6264.html [accessed 29 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

R v IMMIGRATION APPEAL TRIBUNAL ex parte RACHID BOUCHTAOUI

Queen's Bench Division

[1992] Imm AR 433

Hearing Date: 7 May 1992

7 May 1992

Index Terms:

Political asylum -- dismissal of appeal by adjudicator against refusal by Secretary of State to grant applicant political asylum -- refusal of leave to appeal by Tribunal -- refusal made on the papers before the chairman -- whether a person had an automatic right of appeal to the Tribunal when he asserted he had a well-founded fear of persecution -- whether, to determine if he had a well-founded fear of persecution in the country to which he would be returned, the Tribunal had an obligation to hear the applicant before determining the application for leave to appeal. Immigration Act 1971 (as amended) s 3(5)(a): Immigration Appeals (Procedure) Rules 1972 r 14(2)(b): Immigration Appeals (Procedure) Rules 1984 r 14(2)(b).

Held:

Application for judicial review of the refusal by the Tribunal to grant leave to appeal against the dismissal by an adjudicator, of an appeal against the refusal by the Secretary of State to grant the applicant political asylum.

The court characterised the claim on the facts as unmeritorious. Before the court however the only issue raised was the true interpretation of Procedure Rule 14(2)(b) and whether an applicant asserting he had a well-founded fear of persecution had in consequence an automatic right of appeal to the Tribunal. In the alternative it was suggested that the Tribunal was not entitled to refuse leave to appeal, in those circumstances, without hearing the applicant to determine whether he had a well-founded fear of persecution in the country to which he would be returned.

The applicant was a citizen of Morocco. He had arrived in the United Kingdom as a visitor: he secured variation of leave as a student. He was unsuccessful as a student: he became an overstayer: the Secretary of State served notice of intention to deport, pursuant to section 3(5)(a) of the 1971 Act (as amended). The applicant raised a claim to political asylum. His appeal against deportation and on the basis of asylum, was dismissed by an adjudicator: the Tribunal refused him leave to appeal, on the papers before it.

Held

1. The Tribunal had not erred in its approach. It had not been bound to grant leave to appeal.

2. An automatic right of appeal to the Tribunal only arose when the applicant had already established that he had a well-founded fear of persecution in the country to which he would be removed.

3. The Tribunal was entitled, in an appropriate case, to form its own conclusion without hearing the applicant to assess if his fear were well-founded. It was entitled to come to its conclusion on the basis of the papers before it and taking note of the adjudicator's findings on credibility.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Enwia and ors [1983] Imm AR 40. R v Immigration Appeal Tribunal ex parte AS [1983] Imm AR 40.

Counsel:

R Scannell for the appellant; D Pannick QC for the respondent

PANEL: Macpherson J

Judgment One:

MACPHERSON J: In this case a citizen of Morocco called Rachid Bouchtaoui applies for judicial review in order to challenge the decision of the Immigration Appeal Tribunal made on 8 January 1991. In that decision the Tribunal refused the applicant leave to appeal to the Tribunal against the determination of Lady Anson, an adjudicator, given on 26 September 1990. By that decision the adjudicator dismissed the applicant's appeal against the decision of the Secretary of State to initiate deportation proceedings against the applicant. That basic decision was, in fact, made on 3 May 1990 and is to be found at page 25 of the bundle.

The history of this man's stay in this country is quite short. It reveals an unmeritorious claim. He came here in 1988 with leave to stay for six months as a visitor. His application for leave to remain as a visitor was refused on 2 February 1989. On 16 April 1989 he applied for leave to remain as a student. That was ultimately granted and he was given permission to stay until 31 January 1990.

As a matter of history he was a notably unsuccessful student. Indeed, the evidence shows that when the applicant was interviewed he said that he came to the United Kingdom to study. But in May 1990 he could not remember the names of the schools he had attended. He took no examinations here. Indeed, the probability is that he never attended school at all. At one stage he said that was because he was ill.

However, he stayed beyond the relevant date in any event. On 3 May 1990 he was arrested by the police in respect of a criminal charge which was not proceeded with. He was interviewed as an overstayer. He was served with the notice of intention to deport and, as Mr Scannell has indicated, the removal directions indicated that he should go to Morocco.

As another example of the unsatisfactory nature of the case, the applicant was staying at that time he was about to be married to an Irish girl aged about 19, called Wyne. Her surname was not known to him nor was her address in London. All that was material which the applicant was putting before the immigration authorities at that time.

On 13 June 1990 a notice of appeal against the decision was filed. The applicant objected to going to Morocco on what he called political grounds. He said that he had political problems in Morocco and, at that stage, he was contending that he would travel to Italy at his own expense.

He was interviewed on 15 June 1990. A political asylum questionnaire was completed and a statement was submitted on his behalf. On 13 July 1990 the asylum application was refused. The adjudicator heard the case, as I have indicated, on 26 September 1990.

It is important to note that Lady Anson's decision is a long and detailed one. She considered every conceivable aspect of the complaint made by the applicant and of the fears which he registered in connection with his political activities. But the adjudicator found him to be an incredible witness. The expression she used was this. She said: "The appellant gave evidence at the appeal hearing and I did not find him a credible witness." Having regard the whole of the adjudicator's decision, I am not surprised that that expression was used. However, with moderation, she simply concluded that the appellant had not proved to the necessary standard that his deportation would be contrary to the United Kingdom's obligations under the Refugee Convention. There is no need to refer to that Convention, which is familiar to all those who practise in these courts. But in effect she concluded that he had no well-founded fear of being persecuted for reasons of race, religion or nationality, etc.

Against that decision the applicant sought to appeal and the matter came in due course before Mr Maddison. His determination is also before the court. He considered all the documents in the case. He refers specifically to all the documents on file including, of course, the record of proceedings before the adjudicator. He read the adjudicator's determination. He made reference to her findings and conclusions and indicated that in the opinion of the Tribunal this was not a proper case in which to grant leave. And accordingly leave was refused.

The appeal to the adjudicator was, as Mr Scannell has indicated, under section 15 of the Immigration Act 1971. The appeal or purported appeal to the Tribunal was also made under the same Act. There is only one point in this case and it concerns the interpretation of rule 14 of the Immigration Appeals (Procedure) Rules 1984. In parenthesis, it is important to note that those rules superseded (SI 1972: 1684) Immigration Appeal (Procedure) Rules. Shortly I shall refer to a very important variation of the wording of rule 14(2)(b). Rule 14 indicates that an appeal shall lie only with the leave of the adjudicator or the Tribunal, so that the adjudicator and the Tribunal have general discretion as to whether to grant leave to appeal.

Paragraph (2) reads as follows:

"In addition to the circumstances in which leave to appeal must be granted by virtue of section 22(5) of the Act (existence of certificate of entitlement or entry clearance), an appellate authority to whom application for leave to appeal as aforesaid is duly made shall grant it . . ."

Then there are two sub-paragraphs. Therefore, under that rule theImmigration Appeal Tribunal must grant leave to appeal if an applicant is within the provisions of section 22(5), which do not apply in this case, or within rule 14(2)(a) or (b). Sub-paragraph (a) does not apply in this case. Mr Scannell relies upon sub-paragraph (b), which reads as follows:

"(b) where an adjudicator has dismissed an appeal by a person who is in the UK, if the authority is satisfied that the country or territory to which he is to be removed is one to which he is unwilling to go owing to a well-founded (emphasis added) fear of being persecuted there for reasons of race, religion, nationality, membership of a particular social group or political opinion."

In the 1972 Regulations the equivalent sub-paragraph (b) read as follows:

"(b) where an adjudicator has dismissed an appeal by a person who is in the United Kingdom, if the authority is satisfied that the country or territory to which he is to be removed is one to which he is unwilling to go owing to the fear of being persecuted there for reasons of race, religion, nationality, membership of a particular social group or political opinion".

The only case to which I have been referred in order to provide assistance in interpreting that sub-paragraph is a case called R v Immigration Appeal Tribunal ex parte Enwia and others. Coupled with that case there is another case R v Immigration Appeal Tribunal ex parte AS [1983] Imm AR 40. In fact, limited assistance is obtained, in my judgment, from that report because different considerations arose and the court concluded that the purpose of rule 14(2)(b) of the 1972 Rules was to give a right of appeal only to a person under directions for removal to a fixed destination which was the country or territory where that person feared persecution. And the court held that a person did not come within the sub-paragraph unless or until he appealed under section 17(1) of the Immigration Act. Furthermore, the court found that since the applicants had only been required to leave the United Kingdom with no directions for removal to Iraq which was the country where they feared persecution, rule 14(2)(b) was not applicable.

It must be noted, as Mr Scannell himself notes in his grounds, that the court held in that case under the old rules that a person had an automatic right of appeal from the adjudicator to the Tribunal where a person was under a direction for removal to a fixed destination which was the country or territory where that person feared persecution. That is his submission as set out in the grounds.

In my judgment, however, in this case the Tribunal was absolutely right in its conclusion that it was not bound to give leave. It seems to me quite clear upon the ordinary meaning of the English words as set out in sub-paragraph (b) that unless there is a well-founded fear of persecution there is no obligation upon the Tribunal to grant leave; otherwise there would have been no purpose, as it seems to me, in altering the wording in the 1984 Rules. Mr Scannell says that in those circumstances the sub-paragraph is otiose and unnecessary. But, as Mr Pannick has pointed out, it is not the case that everyone with a well-founded fear is entitled not to be removed to the place where he fears persecution. Such circumstances may of course be rare, and I think that Mr Pannick would accept that is so. But there are circumstances where national security or other reasons set out in the relevant learning apply where it may well be that a person, even though he was a well-founded fear, is still liable to be removed to the place which he fears.

The ordinary English interpretation of the sub-paragraph, in my judgment, means that if a person does not have a well-founded fear of being persecuted then he cannot avail himself of that compulsory right of appeal. If that were not right, it would mean that anybody could say that they had a subjective fear of being removed, for example, to France or Holland, friendly countries in the

Common Market, and seek a right of appeal as a right under this subparagraph.

Lastly, Mr Scannell argues that the rule must mean that the Tribunal itself must form its own view about the "well-foundedness" of the applicant or would-be appellant. I suppose the suggestion is that in order to reach such a conclusion the Tribunal must hear the appellant and consider his evidence together with all the other material which is available. In my judgment that argument is ill-founded. The Tribunal must form its own view of the situation. In my judgment, Mr Maddison was perfectly entitled to look at all the documents and the very strong conclusions of the adjudicator in order to decide the matter for himself. As I have already indicated, this is a case in which the adjudicator's decision was particularly strong.

Reading the papers for myself, it seems to me that no reasonable person could have concluded that this man had a "well-founded fear". His suggestion that he was fearful of going back to Morocco was raised very late. The matters which he raised were not particularly serious, and in any event the adjudicator who saw and heard him found him, as I have indicated, to be incapable of belief. In those circumstances, in my judgment, Mr Maddison's conclusion was correct. He was not bound to grant leave to appeal. Furthermore, as Mr Pannick has indicated, even if there was anything in the argument and even if Mr Scannell's argument had some validity, the merits of this case are such that I would unhesitatingly have refused to grant relief in the exercise of my discretion. In my judgment there are no grounds at all upon which this matter can succeed and accordingly the application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Bindman & Partners, London NW1; Treasury Solicitor