England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Jackson J, Moses J, Jackson J, Crane J, Wyn Williams QC,
M.Supperstone QC, M.Williams QC, N.Blake QC, P.Havers QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2003

Lord Justice Brooke :

1. This judgment is concerned with issues of general importance and is released from the usual restrictions on citation.
2. Nine applications for permission to appeal were listed before me today. All were made by asylum-seekers from Nepal: one of them is a citizen of Bhutan but has lived for many years in Nepal. In each case an Adjudicator dismissed their appeal from a decision by the Secretary of State to refuse them asylum. In each case the Adjudicator did not believe significant parts of the applicant's evidence. In seven of these cases the asylum-seeker sought permission to appeal from the Immigration Appeal Tribunal ("IAT"). Permission was not surprisingly refused since the appeal had turned on the credibility of the applicant. In the other two cases the applicant did not seek permission to appeal within the limited time prescribed by Parliament. Instead, an application was made much later for judicial review of the Adjudicator's decision. Those two applications should have been struck out soon after they were filed in the Administrative Court. In the other seven cases an application was made for permission to apply for judicial review of the IAT's refusal of permission.
3. In all nine cases the application was refused on the papers by a judge of the Administrative Court. In each case the application was renewed for a hearing in court, when it was again dismissed by a judge of that court. In each case the applicant then sought permission to appeal to the Court of Appeal from the judgment in the Administrative Court.
4. The grounds of appeal bear a very striking similarity. I will refer to the applicants by their case numbers. The standard form of words is:

"(i) All my documentary evidence are not properly considered;

(ii) My humanitarian grounds are not taken into account;

(iii) Relevant laws and country information are not properly considered;

(iv) The correct standard of proof is not applied."

5. Sometimes the reference in (ii) is to "my human rights claims". Sometimes the reference in (iii) is to "my country situation". There also appear the rubrics "Decision is not consistent with other cases" (once) and "Relevant laws are not according to the Asylum laws and Human Rights Act" (once). Each Notice of Appeal is accompanied by a skeleton argument that has clearly been prepared by the same person. All draw attention to the distressing state of affairs in Nepal, and they variously complain that if the judge in the Administrative Court (who is described as "Mr Justice" in eight of these skeleton arguments) had considered the documentary evidence with appropriate care, he would have granted permission to apply for judicial review. None of them address the point that the Adjudicator did not believe their evidence in material respects.
6. Each of these appeals represents an abuse of the processes of this court. The Practice Direction to CPR Part 52 refers to CPR52.11(3)(a) and (b), and prescribes that the grounds of appeal should set out clearly the reasons why one or other of these rules is said to apply. Since no complaint is made of any serious procedural or other irregularity in the proceedings in the lower court, the only viable ground of appeal is that the judge in the Administrative Court was wrong. To show why he was wrong, it is insufficient to recite the generalised forms of words I have quoted in paragraph (iv) above, or to refer generally to the distressing situation in Nepal or to rely on the evidence the applicant gave to the Adjudicator which the Adjudicator did not believe.
7. I have referred to the striking similarities between the nine grounds of appeal and the nine skeleton arguments. There are similar striking similarities between the Grounds for Judicial Review which were prepared in eight of these cases. In five of them it is said that these grounds were prepared with the help of Citizen's Advice Bureaux: in Aldershot (1663, 1790, 2183), Abbey Wood (1966) and Reading (2228). Another striking similarity is that although each applicant in the Administrative Court asked for an oral hearing after their application was refused on paper, none of them in fact attended before the judge at the oral hearing. In the same way, during the last 24 hours this court has received notification that none of the nine are going to attend court today
8. So far as the facts of the nine cases are concerned, No 1663 arrived here in May 2002. He said he was indirectly associated with Maoists and that he faced persecution by the Government. The Adjudicator did not believe him. No 1749 arrived here in 1999. She said that she was a member of the Maoist party and faced persecution. The Adjudicator rejected her evidence. No appeal was lodged with the IAT, and 20 months elapsed between the Adjudicator's decision and the application for judicial review. No 1790 arrived here in 1998. Her application was made on similar grounds. The Adjudicator said that her evidence was particularly unreliable, and that although she was arrested once in 1996, the police released her the next day and had no further interest in her.
9. No 1966 arrived here in July 2001. He claimed to be a member of the Nepalese Congress Party and he said that he was threatened by members of the Maoist Party. The Adjudicator made adverse findings about his credibility. No 1984 arrived here in August 2001. He claimed that he was accused by the Nepalese authorities of being a member of the Maoist Party, whereas in fact he was a member of the Nepalese Communist party. The Adjudicator accepted that he had been arrested and badly treated in February 199, but he had been released after one week, and he rejected the applicant's evidence about further police interest in him. No 2156 arrived here in January 2001. He claimed that he was a member of the Maoist party, which he had left after his brother was killed in an operation, and he then went into hiding, fearing the party's reaction. The Adjudicator did not believe him, and said that a certificate he produced was manifestly false. The IAT said that it was quite untrue that his solicitor had failed him as he had alleged, and explained why.
10. No 2182 arrived here in March 2002. He claimed to be a member of the National Democratic Party, and that he had been caught in the cross-fire between the authorities and the Maoists after a series of events which also involved members of the Communist party He feared that the Maoists might kill him, and thought that he could not stay in Nepal. The Adjudicator did not believe him. He said that an internal flight alternative was available to him in any event. No 2183 is a citizen of Bhutan who has lived in Nepal for most of her life. She arrived here in March 2002. She said she feared persecution from the Nepalese authorities and the Maoist party. The Adjudicator said that she had been captured by the Maoists because she was a nurse. She had then been arrested by the police in a round-up of Maoists, but was released on proof that she was a local nurse. There was no evidence that nurses as a group were being targeted. The Adjudicator did not accept her reason for moving to Kathmandu, and said it was highly unlikely she would have been recognised there. No 2228 arrived here in June 2001. She said she feared persecution for her political opinions and her membership of the Maoist party. The Adjudicator did not believe her evidence.
11. In each of these cases the applicants have stayed in this country long after their asylum appeals were determined by the Immigration Appellate Authority by making these unmeritorious applications for judicial review after being disbelieved by an Adjudicator. Judicial review lies to correct errors of law on well recognised grounds. It does not provide an appeal mechanism in cases where an applicant complains that the Adjudicator, who is the tribunal of fact, ought to have believed him/her, but did not. It is of course essential that there should be some appellate system in place to look out for clear cases in which it might be appropriate for an appellate court to intervene (for instance, where there were clearly problems with an interpreter, or clear signs that the Adjudicator did not understand critical evidence), but if the IAT, which is the specialist appellate tribunal, declines to grant permission to appeal, that should almost invariably be the end of the matter.
12. The reasons why these appellants have decided not to attend the hearing today also bear striking similarities. In general they refer to the political situation in Nepal, and to the concerns they originally expressed to the Adjudicator. Two of them refer to health matters, without sending a medical certificate to the court. No 1790 says that she is totally ill. If there are compassionate grounds why she should not be returned to Nepal, she should make appropriate representations to the Home Office. There are certainly no legal grounds to challenge the IAT's decision. No 2183, the nurse from Bhutan, gave birth to a child on 13^th November 2003, but there is no reason why she could not have sent a representative to court to argue her case. Mr Nicholas Blake QC, sitting as a deputy high court judge, considered a comparable application for an adjournment from her on 3^rd October on the grounds of her approaching confinement. He rejected it on the grounds that there were no prospects of a successful challenge to the Tribunal's decision, and there was no merit in her application for permission. This was obviously correct, and in the exercise of my discretion I refuse her application for an adjournment on the grounds that her underlying appeal represents an abuse of the processes of this court and is totally devoid of merit.
13. Since these applications have never possessed any merit at all, I dismiss them all today. There simply never have been any viable grounds for judicial review in these cases, and two experienced judges in the Administrative Court have already made this clear in each case.
14. As I have said, applications of this kind represent an abuse of the processes of this court, which exists to resolve genuine points of law in judicial review cases, and is not a fourth tier appellate court of fact when the original tribunal of fact has disbelieved an applicant. By virtue of the operation of section 101(3) of the Nationality, Immigration and Asylum Act 2002, which is now in force, there are now very few of these applications still awaiting determination in the Court of Appeal, and I have given a direction to the court staff to bring them all to my attention today, so that I may consider whether they should be struck out as an abuse of the process of the court.
15. The courts are receiving an increasing number of applications in these cases that are totally devoid of merit, and judges must be readier than ever to use their powers to strike out cases of their own initiative pursuant to CPR 3.3. If they are as devoid of merit as these nine appeals, it would be appropriate for a judge in the first instance to strike the matter out under CPR3.3(4) and give the applicant ten days in which to make an application for a hearing, if so advised. If a hearing is then sought, it should be speedily arranged. Taking this course in clear cases will save the massive amount of time now taken up by the administrative processing of a case before it is listed for a hearing in the ordinary way.
16. I have referred to the fact that these appellants all decided not to attend the hearing in the Administrative Court, and all decided not to attend the hearing arranged for today. Since they all clearly received notice of the hearing, no difficulty arises. It sometimes happens that an unmeritorious applicant does not attend a hearing and then complains that he/she did not receive notice of it and asks for the matter to be reinstated. Although a hearing will ordinarily be arranged, this does not follow as a matter of right in all circumstances. The decision of this court in R(Idubo) v Home Secretary [2003] EWCA Civ 1203 makes this clear. In that case Pumfrey J, with whom Judge LJ agreed, said at paras 5-9:

5. "In his letter to the court and again in a skeleton argument which was provided to us today and which we have read during an adjournment for the purpose, Mr Idubo sets out again his reasons for challenging the decision of the Adjudicator. These are what Moses J described as an attack on the merits. They do not advance a ground for review of the decision. To that extent the position remains as it was in front of Moses J.

6. The application for judicial review was renewed before Buxton LJ in the Court of Appeal. On 22 April 2002 the application was called on in court. Mr Idubo was not present and the application was struck out. The present application is dated 4 February 2003. In it Mr Idubo says that he never received any notice about his hearing before Buxton LJ. However he did in fact appear on 22 April 2002, a quarter of an hour after Buxton LJ had dismissed his application. He was told to put his application in writing; that he did. He explained that his bus had been late. The Civil Appeals Office wrote to him on 26 April 2002, that is four days after the hearing before Buxton LJ, enclosing an application and a fee exemption form, but he never replied. He was living at the same address, or at least his post was being sent to the same address throughout this period. It was still his address when he had written to the court in connection with the present application.

7. The contents of the application notice are, it seems to us, plainly untrue. The reason for this delay advanced by Mr Idubo is connected with the problems which he has had since the application before Buxton LJ, and in particular in his failure to obtain support from a firm of solicitors specialising in immigration matters in connection it would seem with his detention both at Hatfield and at Orpington. Be that as it may, the fact remains that the application is made to the court on a false basis. Two questions in these circumstances arise. The first is the nature of this application. Once an application has been called on in court there is a hearing. If the applicant does not turn up then the application is struck out or dismissed, which is what happened in this case. The court has a discretion to reinstate the application not because this is a decision of the single judge taken without a hearing, but because there is a general discretion under the Civil Procedure Rules, rule 23.11, to re-list an application on application made for that purpose which could be dealt with without a hearing if the court thinks it appropriate: see CPR 23.8. The discretion is a general one. The court will take into account no doubt the reasons advanced from non-appearance at the original hearing, any delay in making the application, but also the underlying merits. If the court did not have regard to the underlying merits then any application could be indefinitely continued by repeated applications to reinstate on which the applicant did not attend.

8. The second question is what is to be done in Mr Idubo's case. In our view nothing has been advanced which can affect Moses J's assessment of the merits of the underlying application. It has none. The delay from the hearing before Buxton LJ in April 2002 was substantial; and no efforts were made to explain it. We understand today that in part Mr Idubo has been in custody, but the court's invitation to reinstate made immediately after the hearing before Buxton LJ appears to have been turned down. The application notice itself is, for the reasons I have given, untrue.

9. It seems to us that in all the circumstances, the lack of merits in the underlying application are crucial, and for this reason, taken with the delay in the making of the application, and with the untruthfulness of the contents of the application, we take the view that there is no grounds shown for reinstating the application which has been dismissed by Buxton LJ and we refuse to do so. "

17. Courts should be ready to follow this example, again only in very clear cases. If an application is totally devoid of merit, it is abusing the processes of the court and can be handled accordingly.