Sahin, R (on the application of) v Secretary of State for the Home Department

Under rules 18 and 19 of the Immigration and Asylum Appeals Procedure Rules 2000, fresh evidence not submitted to an adjudicator must be filed with, or before, an application for leave to appeal. A reference to evidence being prepared does not amount to reliance on that evidence or an application to extend time. An extension requires a formal application and special circumstances making it just. Failure to obtain readily available expert evidence through an obvious omission is not a good reason for late submission. Judicial review will also fail where clarification or review under rule 19 was available and the evidence could not have affected the result.

The claimant sought judicial review of an Immigration Appeal Tribunal decision refusing leave to appeal against an adjudicator’s dismissal of his asylum and Article 3 case. He relied on an expert report concerning blood feuds, corruption and state protection in Turkey. The report reached the Tribunal’s offices on the day the Vice President decided the application but was not placed before him.

The claimant argued that the Tribunal should have considered the report, or that the failure to state clearly that it had not done so caused unfairness and prevented a review under rule 19. The issues were whether the report was properly relied upon under rule 18, whether time should be extended, and whether any procedural error caused material prejudice.

1. The claim was dismissed. The report was not before the Vice President when leave to appeal was refused. The natural reading of his decision made that clear.
2. Rule 18(11) did not require the Tribunal to consider the report. It had not been submitted to the adjudicator because no one had considered obtaining it. That obvious omission was not a good reason within rule 18(11).
3. Fresh evidence relied upon for leave to appeal had to accompany the application or be produced before it was determined. A reference to prospective evidence was insufficient. The claimant had neither filed the report in time nor made a formal application under rule 18(3).
4. An extension application had to identify its nature and address the requirement for special circumstances making an extension just. The circumstances relied upon did not satisfy that requirement.
5. The Tribunal’s decision was not unlawful through lack of clarity. The claimant could have sought clarification or applied under rule 19. In any event, the report could not have affected the outcome because it contained general background information already available to the adjudicator and did not address the decisive issue concerning the alleged influence of the Arap Yusuf family.
6. Leave to appeal was refused because the proposed appeal had no prospect of success.

The judgment records that the Special Adjudicator dismissed the claimant’s asylum appeal on 8 January 2002. The Immigration Appeal Tribunal refused leave to appeal on 27 February 2002. The High Court dismissed the judicial review claim and refused leave to appeal.