England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday 13th February, 2001

1. LORD JUSTICE ALDOUS: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is an appeal (with permission granted by the Tribunal on 25th May 2000) against a decision of the Immigration Appeal Tribunal of 21st February 2000 when they dismissed the appellant's appeal against a determination made by the special adjudicator on 21st September 1998, who had in turn dismissed his appeal against the Secretary of State's refusal of asylum as long ago as 28th August 1996.
3. I should say at this stage that in the course of exchanges between counsel and the court, Mr Qureshi for the Secretary of State has this morning accepted that the decision ought to be quashed. I will in those circumstances seek to express myself briefly.
4. The appellant is a Moroccan national who arrived in the United Kingdom with his wife and two children on 15th March 1995 and claimed asylum. It is however unnecessary to go into the details of his claim in light of the nature of the grounds of appeal put forward.
5. Permission to appeal against the special adjudicator's determination had first been refused by the Tribunal on 6th October 1998. The appellant launched judicial review proceedings against that refusal, which was quashed by a consent order made by the Crown Office judge and permission to appeal was thereafter granted by the Tribunal on 16th July 1999. The appeal was heard and dismissed, as I have said, on 21st February 2000. The appellant did not attend and was not represented.
6. In its determination the Tribunal was to say this:

"7. Notice of the hearing of the appeal was sent to the appellant, at his home and to his representatives dated 26th January 2000.

8. By letter dated 11th February 2000, the appellant's solicitors, Messrs Raja and partner, confirmed their receipt of the notice of hearing and stated that they no longer represented the appellant. They said that they knew not if he had new representatives.

9. We heard the appeal on 21st February. The respondent was represented by Mr Cheesman. The appellant did not appear.

10. The case was listed for 1000. We did not start until 1110. We read the letter from Raja and partners to the respondent. There were no documents on file for to us to consider apart from the core bundle. We had no application to call evidence.

11. We were satisfied that the appellant had had notice of the hearing. The appellant had not furnished us with any explanation for his absence. We therefore decided to hear the appeal in his absence under rule 33."

7. Then going to the last sentence of paragraph 13:

"The appellant had had ample time to prepare his case and had the benefit of solicitors until the 11th February 2000. Nothing was done to prepare or to progress the matter in accordance with the rules.

14. In the circumstances, we see no reason to interfere with [the] determination."

8. After re-promulgating this determination on 3rd May 2000, the Immigration Appeal Tribunal granted permission to appeal on 25th May 2000, as I have said, and expressed themselves thus:

"Leave to appeal is granted as it is clear that notice of hearing was not served on the applicant's solicitors. The Tribunal proceeded to determine the appeal on a misapprehension as to representation. It has no power to set aside its determination but the Court of Appeal may, in the circumstances, decide so to do."

9. It is necessary before explaining what is the reference there to a misapprehension, just to cite rule 33 of the Asylum Appeals (Procedure) Rules 1996. It appears that the Secretary of State's original interest in resisting this appeal was because he was concerned with the construction of that rule:

"33(1) The appellate authority may, where in the circumstances of the case it appears proper so to do, hear an appeal in the absence of the appellant if satisfied that- [then certain matters are set out];

(2) Without prejudice to paragraph (1) but subject to paragraph (3), the appellate authority may proceed with the hearing of an appeal in the absence of a party (including the appellant) if satisfied that, in the case of that party, such notice of the time and place of the hearing, or of the adjourned hearing as is required by rules 14(2) and 18(3) ... has been given.

(3) The appellate authority shall proceed with the hearing in pursuance of paragraph (2) if the absent party has not furnished the authority with a satisfactory explanation of his absence.

(4) ...

(5) For the purposes of this rule a reference to a party (including an appellant) includes a reference to his representative."

10. What had happened here was this. A firm of solicitors by the name of Raja & Partners had seemingly at some stage acted for the appellant. But those in fact acting for him at all relevant times, at any rate from the grant of permission to appeal in May 2000 until today, and who indeed had acted for him in the earlier judicial review proceedings, were Messrs Irving & Co of the Kentish Town Road. In order to understand the basis of the Tribunal's grant of permission to appeal to this court and the issue in the appeal, it is necessary to refer very briefly to the course of certain correspondence entered into before the appeal hearing on 21st February 2000.
11. The relevant letters are conveniently attached to Mr Qureshi's skeleton argument. I will summarise it as briefly as I may. First, on 21st December 1999 the Tribunal gave notice to Irving & Co of a "mention" hearing to be listed on 21st January 2000. On 20th January Irving & Co wrote to the Tribunal saying they were not in funds to attend the mention hearing but submitting on the merits that the case should be remitted for a de novo hearing before a different special adjudicator. They wrote a second letter the same day asking to be advised of the outcome of the directions hearing.
12. On 26th January 2000 the Tribunal wrote not to Irving & Co but to Raja & Partners and also to the appellant in person giving notice of the substantive hearing fixed for 21st February 2000. The letter to the appellant in person merely enclosed the letter to Raja & Partners and indicated that he should ask his representative for advice as to whether or not his, the appellant's, attendance at the hearing was necessary. By a statement of truth made on 12th February 2001, the appellant's solicitor, Miss Meates of Irving & Co, gives an account of communications she had had with the appellant. It is not necessary to set them out in detail. The consequence is that there is credible material to the effect that the appellant for his part did not receive the notice sent to him personally from the Tribunal on 26th January.
13. Then lastly on 11th February 2000 Raja & Partners wrote to the Tribunal indicating that they no longer represented the appellant.
14. In consequence therefore it can be seen that Irving & Co were never notified of the substantive hearing, and it is at least possible that the appellant for his part was not notified of it either.
15. In my judgment there was clearly an error here within the Immigration Appeal Tribunal. They had written to Irving & Co as the appellant's solicitors and had done so perfectly correctly. But by some administrative mistake the notice of the substantive hearing was sent to the other solicitors, Raja & Partners. The strong inference, as I see it, from the terms of the Tribunal's determination itself is that the members of the Tribunal then sitting had no knowledge whatever of Irving & Co's role, believed that Raja & Partners had been acting, at any rate until 11th February 2000, and had they known the true position would in all probability have adjourned the hearing.
16. In those circumstances, this case is not really about the construction of rule 33 at all. It is a case in which the Tribunal arrived at a decision - the decision not to adjourn but to proceed - on an undoubtedly mistaken basis of fact. That is plainly sufficient, as I see it, to justify this appeal being allowed, not least given the anxious scrutiny with which these cases have to be viewed both by courts and tribunals.
17. For my part, I would allow the appeal on that short basis. The consequence would be that the case would have to go back to the Immigration Appeal Tribunal who no doubt would list a new date for the hearing of the substantive appeal.
18. LORD JUSTICE CHADWICK: I agree.
19. LORD JUSTICE ALDOUS: I also agree.
ORDER: Appeal allowed with costs; the decision of the Immigration Appeal Tribunal quashed and the case remitted back; legal aid assessment of the Appellant's costs. (Order not part of approved judgment)