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 Thursday 14th March, 2002

1. LORD JUSTICE TUCKEY: This is a renewed application by Gokham Ipek for permission to appeal from a decision of the Immigration Appeal Tribunal ("the IAT") who allowed an appeal from a special adjudicator's decision, which in turn allowed the applicant's appeal against the Secretary of State's refusal to grant him asylum without a hearing on the merits.
2. The special adjudicator purported to make this decision under rule 33(2) of the Immigration and Asylum Appeals (Procedure) Rules 2000, which gave him jurisdiction to make it if the Secretary of State had failed to comply with a direction given under the rules. He relied on what another special adjudicator had noted on the applicant's file at an earlier hearing on 26th September 2000, when adjourning the appeal, which said:

"Meantime, the Home Office should consider the claim - consider interviewing appellant and issue a new refusal letter."

3. The IAT decided that this was not a direction within the meaning of the rules, but, if it was, relying on the decision of this court in Mwanza v Secretary of State for the Home Department 3rd November 2000, the special adjudicator had no power to make it. The applicant contends that the IAT were wrong on both counts.
4. Little need be said about the background. The applicant is a 20 year old Turkish asylum seeker of Kurdish origin who arrived in this country hidden in a lorry on 13th April 2000. His claim for asylum was rejected because, among other reasons, he had failed to complete the statement of evidence form, the SEF, within the statutory period. The Home Office subsequently accepted that the SEF had been submitted in time, and that was no doubt the reason for the note made by the special adjudicator on 26th September.
5. That hearing occurred shortly before the 2000 rules came into force. But these rules provide that anything done or any direction given under the old rules shall be treated as if done or given under the new rules (see rule 4(2)). The power to give directions is contained in rule 30, although the rules themselves do not define what is and what is not a direction. However examples are given of the type of direction which the appellate authorities are entitled to give.
6. The IAT said that they were unable to interpret what the special adjudicator said on 26th September as a direction. In dealing with this they said at paragraph 36 of their decision:

"In our view the essence of a direction is that it is something in the form of an order or an instruction by one person to another person failure to observe which carries consequences, which in this case are spelt out in Rule 33 ... Upon consideration we find ourselves unable to interpret what was said by [the special adjudicator on 26th September] as being something of the mandatory nature which we consider a direction must have. Stating that the Home Office should consider the claim and consider interviewing the Appellant and issue new refusal letter is couched more in the form of a request, no doubt a strongly worded request, but a request only."

7. Miss Marks, who has appeared for the applicant this morning has put the case on behalf of the applicant as well and as succinctly as could be, submits that the Tribunal reached the wrong conclusion about the nature of what the special adjudicator had said. She submits further that the definition which the Tribunal attempted to give of a direction is somewhat contradictory and, for that reason alone, this is a case which should be considered by this court so as to provide clear guidance about what is and what is not a direction.
8. I am afraid I cannot accept those submissions. It seems to me that the use of the word "consider" by the adjudicator on 26th September makes the position plain. That is not a direction to the Home Office to do anything: it is, as the IAT said, a request and possibly advice. But it does not carry with it any instruction to do something, or anything of a mandatory nature which obviously the rule contemplates. I do not think the passage from the IAT's reasons which I have quoted says anything which is contradictory. It seems to me that to say that a direction must be something in the form of an instruction and to say that it is something of a mandatory nature is saying the same thing.
9. This conclusion is of course fatal to the application, since unless the adjudicator who subsequently dealt with the matter was able to find a breach of a direction by the Home Office, he had no jurisdiction to deal with the matter as he did under rule 33(2).
10. But there is a further objection to what he did, and that is that if one assumes that the special adjudicator was giving a direction on 26th September that was not something which he had the power to do. In other words, it was ultra vires the rules. That was one of the points considered by this court in Mwanza, to which I have already referred. That case concerned an asylum appeal by a national of Zaire which had been adjourned several times to enable the Secretary of State to review all cases in the light of changing country conditions in Zaire. A special adjudicator had ordered in the applicant's case that the Home Office should reconsider the matter and issue a fresh refusal letter within a stated period, which they had failed to do. The question was whether he had power to make such an order so as to invoke a comparable provision to rule 33(2) in the old rules.
11. This court agreed with the IAT that he did not. At paragraph 31 of the judgment, Sir Swinton Thomas (with whose judgment I agreed) said:

"In my judgment it is clear that the Rules ... are procedural rules and do not deal with substantive matters. It seems to me absolutely clear that the rules do not ... give power to the special adjudicator to direct the Secretary of State to issue a fresh refusal letter which is, as the appeal tribunal found, a matter of substance and can only be done after proper consideration by the Secretary of State or those acting on his behalf."

12. On the face of it, that passage indicates that if there was a direction on 26th September it was ultra vires.
13. Miss Marks sought to argue that the court had not considered in Mwanza that rule 30(4)(c)(iii) did provide the jurisdictional basis to require the Secretary of State to issue a further refusal letter. That rule says:

"Directions given under this rule may, in particular,-

...

(c) provide for-

...

(iii) the furnishing of any particulars which appear to be requisite for the determination of the appeal; ..."

14. I do not read the word "particulars" as widely as Miss Marks would like. It seems to me that those are particulars relating to the case which is before the appellate body, and it is of course the refusal letter which contains the Secretary of State's decision which sets in chain the appellate process. I do not therefore think that this rule extends to the provision of such a letter, which is part of the substance of the matter rather than procedure.
15. Miss Marks also sought to say that Mwanza could be distinguished on the facts. I am afraid I do not think it can. At the end of the day, I remain of the view that I expressed when I refused permission on paper, when I said:

"I do not think there is any real prospect of persuading this court that the IAT were wrong to conclude that what [the special adjudicator] said on 26/9/00 was a direction. If it was ... it was ultra vires (Mwanza)."

16. For those reasons, this renewed application for permission must be dismissed.
17. I should add that at the end of her submissions Miss Marks expressed concern that since the IAT gave no directions as to what should happen next in this case, the applicant's claim for asylum was in limbo. That is not how I see it. It seems to me that the effect of this procedural battle having been concluded by my decision today is that the applicant's claim for asylum is still on foot and still has to be adjudicated by a special adjudicator on the merits. Whether that is done in the context of the existing refusal letter or by some further refusal letter is a matter of detail. But the applicant's claim for asylum is still, in my judgment, a live one and still to be adjudicated on the merits.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)
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