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 HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(MR J CHATWANI)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 November 2003

1. LORD JUSTICE WARD: Lord Justice Scott Baker will give the first judgment.
2. LORD JUSTICE SCOTT BAKER: This application for permission to appeal was adjourned by Sedley LJ in July of this year on the basis that he would have given permission but for the question of delay which he wished to have considered further, and for the Secretary of State to have an opportunity of answering such explanation as had been given by the applicant for the delay.
3. The applicant is a Nepalese Maoist. She claims a well-founded fear of persecution by reason of her political opinions. She arrived in the United Kingdom on 2 October 1997 and claimed asylum on 23 October 1997. Her claim was refused by the Secretary of State on 5 December 1997. She appealed. There was a directions hearing before an adjudicator, Mrs Lester, on 1 March 1999 to which I shall return. On 2 June 1999 the substantive appeal was heard by another adjudicator, Mrs Drummond Farrall. She dismissed the appeal in a decision promulgated on 1 July 1999. The applicant sought and obtained leave to appeal to the Immigration Appeal Tribunal. The hearing before the Tribunal took place on 24 March 2000 and the decision was notified on 28 April 2000.
4. It was not until February 2003 that the applicant sought leave to appeal. She was notified by the Tribunal on 27 February 2003 that her application would not be considered because it was out of time. There was a letter from the secretary for the Tribunal on 8 April 2003. She eventually lodged her notice of appeal to this court on 23 April 2003.
5. It will immediately be apparent that there was a substantial delay between the Tribunal's decision at the end of April 2000 and the applicant's first attempt to seek permission to appeal in February this year.
6. What explanation has the applicant for the delay? She says that on 27 March 2000 she changed her address and told her solicitors, Yoga Raja & Co, the following day, to inform the Home Office and the Immigration Appellate Authority. She says that she subsequently telephoned her solicitor several times requesting information about the outcome of her appeal to the Tribunal. She was told that they would inform her as soon as they had the determination from the Tribunal. She continued to telephone them but, some time in the middle of 2000, they eventually told her to stop calling.
7. Thereafter the applicant did absolutely nothing until she learned from a friend on 7 January 2003 that her solicitors had been closed down. On 13 March 2002, at the request of the Law Society, another firm called Russell Cooke had been invited to intervene and to take over the practice. She asked the Law Society to trace her file and eventually obtained a copy from Russell Cooke. However, the file did not contain a copy of the Tribunal's determination.
8. The applicant has waived her privilege and this court has been supplied with a copy of the file. Included in it is a letter dated 28 April 2000 from the Immigration Appellate Authority to Yoga Rajah & Co saying that enclosed was the determination of the Appeal Tribunal in this case. It pointed out that there was a time limit for seeking leave to appeal. The determination, however, is nowhere to be found in the file.
9. The presence of that letter in the file does suggest that if at around that time the applicant was making repeated telephone calls to the solicitors, it was very surprising if she was not told that there had been a decision by the Tribunal. Her case is that she was not told. It is plain that there were deficiencies in the manner in which this solicitor's practice was being operated. I am prepared to accept that, for whatever reason, somehow the result of the Tribunal hearing was not conveyed to the applicant. But in my view that is not a satisfactory and complete explanation for this very considerable delay.
10. Also included in the file is a letter from the Asylum Seekers Team in Greenwich dated 4 October 2000 referring to the applicant and to her former address from which she says she had moved in March. The letter pointed out that the applicant had been advised that the Asylum Support body would no longer be responsible for payment of rent, council tax, gas and electricity charges.
11. The applicant accepts that those benefit payments did cease as early as the spring of 2000. That would inevitably put someone in the shoes of the applicant on notice that the reason they ceased was, in all probability, that the appeal had been decided against her. However, the applicant says that is not the conclusion that she drew.
12. Looking at matters as favourably as possible for the applicant it might be said that there was a reasonable excuse in respect of the first three or four months after the decision for not lodging an application for leave to appeal, but thereafter there simply can be no excuse at all. Therefore, the starting point is that there is in this case considerable delay. Only in the most exceptional circumstances, with unexplained and unjustified delay of this length, could this court contemplate granting permission to appeal.
13. In a moment I shall turn to consider the submissions made on behalf of the applicant, most persuasively and forcefully by Miss Gallafent that there are exceptional circumstances that justify the grant of permission.
14. Before I do that I pause to ask the question what has the Secretary of State being doing over the last three years or more? One might have thought that when the Tribunal finally decided the case against the applicant, that removal directions would be put in place quite swiftly. There is no evidence of any contact on the part of the Home Office with the applicant. Nor is Miss Giovannetti, who appears for the Secretary of State, in a position to tell us today of anything that has been done to remove this asylum seeker from the country.
15. The Home Office file has apparently been filed away on a permanent or semi-permanent basis and it has not been possible to obtain any information from the port authority as to any steps that they may have been taking. On the face of it, it seems to me that the Secretary of State should have removed this applicant from this country long ago.
16. Miss Gallafent argues that the merits of the applicant's case are so strong that they trump the lengthy delay. This, she submits, is a case where not only should permission to appeal be granted, but also that the appeal should be allowed and the case remitted to the Immigration Appeal Tribunal. In my judgment, the longer the delay that has occurred the stronger must be the merits before an extension of time is granted. By referring to the merits, I do not mean simply the merits of the instant case in the Tribunal below, I mean merits in the wider sense of the overall circumstances relating to the applicant.
17. Miss Giovannetti submits that it is important to look at the consequences for the applicant of not extending time. The consequences are not, she points out in this case, that the applicant will immediately be returned to Nepal with the risk of persecution or a possible breach of Human Rights. It is open to the applicant to make a human rights claim to the Secretary of State, both under Article 3 which would cover very much the same territory as her failed asylum claim, and also, if appropriate, a claim under Article 8. If such a claim is not accepted by the Secretary of State, the applicant has a right of appeal to an adjudicator. This is a case where the asylum claim relates back to 1997 at which time the Human Rights Act had not been implemented in this country. That is why this applicant still has a human rights claim outstanding.
18. We have been referred to the case of Mr Indra Gurung [2002] UK IAT 04870 heard on 28 May 2002. Miss Gallafent relies on that decision because it illustrates, she submits, and I accept the force of this submission, that achieving residence in this country through a successful human rights claim does not place the applicant in the same position as regards status as would be the case had she succeeded in her asylum claim. Therefore, submits Miss Gallafent, the applicant is by no means in as good a position with her human rights claim outstanding as she would be if her asylum claim remained to be properly disposed of. The particular passage upon which she relies in Gurung is at paragraph 80 and reads as follows:

"Currently in the UK significant differences in status flow from a person being recognised as a refugee and someone only considered to be an Art 3 risk. The former possesses a number of civil, political social and economic rights guaranteed by Arts 2-30 of the Refugee Convention; there is also currently a policy to grant him indefinite leave to remain (previously it was limited to leave to remain). The latter may in certain circumstances possess nothing more than a guarantee of non-removal for so long as his return would place him at Art 3 risk."

19. Accordingly Gurung takes Miss Gallafent part of the way down the road but, in my judgment, only part of the way and not sufficiently far for her purposes. Also, submits Miss Giovannetti, whatever the merits of an appeal to this court if brought timeously, this is not a case that raises an issue of law of general importance which might provide a compelling reason for relaxing the ordinary time constraints. She submits that this is a case which depends very much on its own facts.
20. In my judgment, the procedure followed before the adjudicator was less than satisfactory. When the Secretary of State refused asylum initially, the letter of refusal of 5 December 1997 said the following:

"In reaching his decision, the Secretary of State also took into account the documents, including the statement, submitted by your representatives in support of your asylum claim..... the Secretary of State has carefully considered the two documents concerning the alleged arrest warrant which your representatives have submitted on your behalf. However, in the light of the above, the Secretary of State took the view that such documents, without substantial independent corroborating evidence, are of little value and is of the opinion that they do not in any way enhance your claim to asylum."

So there were two arrest warrants that were translated and there was a third one to which I shall refer, which was not translated.

21. On 1 March 1999, Mrs K Lester, an adjudicator, gave some preliminary directions. Those directions included:

"That the respondent shall obtain verification of the arrest warrant produced by the appellant and shall file his report thereon on or before 14 days before the hearing."

The directions also required the applicant to obtain and file a psychiatric report, which she did. She was also required to file a chronology and skeleton argument which those acting for her did not do.

22. Miss Gallafent points out that there was no suggestion from the Home Office when these directions were made that it was not possible to check the validity of the warrants. In the circumstances it appears that the adjudicator was persuaded to make an unusual order, but she did so on the particular facts of this case which included the fact that there appeared to be a psychiatric background.
23. The law was not as clear in 1999 as it is today about the burden of proof in circumstances where doubt is raised as to the genuineness of a document. We have been referred to the recent decision of Mungu v The Secretary of State [2003] EWCA Civ 369, which was decided by this court on 20 February 2003. In my view, this case accurately states the law and I refer in particular to the passage from the judgment of Latham LJ at paragraph 16 where he said:

"16. I accept that where an apparently genuine document is said to be a forgery, there will inevitably and in practice be an evidential burden on the Secretary of State to undermine the authenticity of the document. That accords with the general approach any court or tribunal will adopt to the resolution of such a factual issue. But it seems to me that it is important to bear in mind the exercise on which the court or tribunal in question is engaged. In the case of this adjudicator, he was concerned to determine whether or not the appellant had established on the evidence an entitlement to remain in this country, either under the Geneva Convention or on the basis that her removal would amount to a breach of Article 8 of the European Convention on Human Rights.

17. In carrying out that exercise, the proper approach has been considered by this court in Zarandy v Secretary of State for the Home Department [2002] EWCA Civ 153. In that case the court considered an earlier decision of this court in R v Immigration Appeal Tribunal ex parte Davila-Puga [2001] EWCA Civ 931, and said:

'13. That case [Davila-Puga] is ample authority for the proposition that a claimant's case, which will often, as here, consist in part of oral assertions, in part of documents which are placed in front of the appellate authorities and in part of background material relating to the country in question, must be looked at in the round so that the appellate authorities may decide whether the claimant has proved his case that he was a refugee to the appropriate standard. As Sedley LJ said in Karanakeran v Secretary of State for the Home Department [2000] 3 All ER 449:

'Everything capable of having a bearing has to be given the weight, great or little, due to it .... so far as they can be established, are signposts on the road to a conclusion.'

14. [Counsel] who appeared on behalf of the appellant, made submissions which at one point seemed to suggest that it was his contention that if any piece of paper was produced by a claimant it must be taken as evidencing what was asserted in that piece of paper unless either there was evidence from elsewhere that the paper was not what it appeared to be or alternatively had been improperly procured or there was evidence appearing from the face of the document that it was unreliable I do not accept that proposition. The adjudicator must look at all of the material in the round and see whether he is persuaded of the claim.'

18. That directs the tribunal's attention to the proper issue. The question is whether the document can be relied on in support of the appellant's claim in the light of all the evidence."

24. The full hearing came on before the adjudicator, then Mrs Drummond Farrall, on 2 June 1999. At page 2 of the determination she said:

"In terms of documents, where copies of warrants for arrest were concerned, for example, the Secretary of State did not find that they enhanced the appellant's claim. At a previous hearing a Special Adjudicator, Mrs Lester, had directed that the Home Office check the veracity of the warrants which the appellant had produced. She also required on 1 March 1997 that the appellant file a chronology and a skeleton argument. Neither of these had been done at the time of the hearing and Ms Jenkins applied for an adjournment because the directions of the previous Adjudicator, Mrs Lester, had not been complied with. Mr Richmond explained that it was simply not practical for the Home Office to undertake such a task. I refused the adjournment. It was not normal for the Home Office to verify documents and since I was not seized of this case, it was my view that it was for the appellant to prove her case and not the function of the Home Office. My own position was, of course, unlike the Secretary of State, that I was neutral as to the genuineness of the warrants."

25. At page 4 the adjudicator had this to say in respect of the warrants:

"There was a further warrant mentioned at the hearing. This was an untranslated warrant which had been given in by Ms Jenkins who had not copied it. It was not translated but the appellant explained that this warrant had been sent to her after she had come to the UK by her older sister who was not in fact a member of the party. She had got it from 'other people'. She did not know who they were. As to the other warrants, they had come from friends who were not party members. Some of them had got the warrant and told her that she should not return to this country. Her colleagues were still working underground although they had not been arrested."

26. The first ground of complaint is that the adjudicator did not grant an adjournment to require the Secretary of State to comply with the order in respect of the warrant. She went on with the appeal notwithstanding the Home Office's failure to do so. It is said that she took a different view about the burden of proof and that the applicant had an opportunity to have the warrants verified. Not only had she not done so before the matter came on before the adjudicator, but she still had not done so when the matter came to the Tribunal and, even today, has still not done so.
27. In my judgment, that is not a satisfactory answer to the point that an order was made that the Secretary of State should verify these warrants. The Secretary of State did not do so and there was no real investigation into the circumstances of that failure by the adjudicator. Counsel on both sides have referred to two relevant rules under The Asylum Appeals (Procedure) Rules 1996. The first is rule 10 which states:

"(1) Subject to rule 9(1) or (2), a special adjudicator shall not adjourn a hearing unless he is satisfied that an adjournment is necessary for the just disposal of the appeal.

(2) When considering whether an adjournment is necessary, a special adjudicator shall have particular regard to the need to secure the just, timely and effective conduct of the proceedings.

(3) Where a hearing is adjourned, the special adjudicator shall-

(a) consider whether further directions should be given under rule 23, and

(b) give notice either orally or in writing to every party to the proceedings of the time and place of the adjourned hearing."

28. There is no doubt that at the time of this hearing, the adjudicator would have had in mind the rule about adjournments and the presumption in rule 10(1) that the proceedings were to go ahead unless there were good reasons why they should not. The other rule to which I would refer is rule 24:

"(1) Subject to paragraph (2), where a party fails to comply with a direction given under rule 23 the appellate authority may-

(a) treat that party as having abandoned the appeal or, as the case may be, treat the decision appealed against as having been withdrawn, or

(b) proceed with the appeal; or

(c) determine the appeal without a hearing under rule 35."

Rule 24(2) contains a provision for what should happen when a direction has not been complied with for reasons beyond the control of the party who should have complied with it. It does not appear that this rule, or rule 10, was referred to specifically.

29. In my judgment there is a strong argument, to put it at its lowest, that Mrs Drummond Farrall should in the circumstances have acceded to the applicant's request for an adjournment to require the Secretary of State to comply with what he had been ordered to do.
30. We have been shown a document emanating from the British Embassy in Kathmandu from which it is apparent not only that enquiries of this kind are quite frequently made, but also that, according to the Kathmandu Embassy in March 2002, not one of the documents investigated had at that stage proved to be genuine. Miss Drummond Farrall went on to consider the appeal. She did not find the applicant's case credible. She said:

"I do not find the appellant's claims to be credible. She claims to have been a leader at the age of fifteen in Nepal and yet at interview she said that she was merely a member. I find it implausible that she remained underground for ten years."

She then said these significant words:

"I also found incredible the manner in which she described how she obtained the warrants for arrest. She said that her sister had sent the third one to the UK but no attempt had been made by the Solicitors to translate this document. I give it no weight whatsoever. I have no doubt whatsoever that a responsible solicitor would have ensured that was his duty to have it translated if it had been an important document."

These are the only findings that the adjudicator made with regard to the warrants.

31. Miss Gallafent submits, first, that there was a wilful default on behalf of the Home Office in not verifying the warrants and, secondly, that she effectively ignored the reason for the first adjudicator's order. The question, if there was one, of impracticability was, in the circumstances, never investigated.
32. Further, submits Miss Gallafent, the adjudicator made no findings about the first two arrest warrants. If she did not believe they were genuine, she should have given her reasons. These warrants, and she was referring to the first two warrants which had been translated, were at the heart of the applicant's case. As I have already mentioned, the letter from the British Embassy in Kathmandu, dated 12 March 2002, shows that steps could perfectly well have been taken to check them.
33. The applicant appealed to the tribunal. Her grounds of appeal, and I summarise, were these: (i) that the adjudicator erred in refusing to adjourn the case; and (ii) that her decision that the applicant was not credible was suspect because she made no findings whatsoever as to whether she accepted the arrest warrants as genuine and what weight, if any, was to be placed on them. Therefore, in the circumstances, her findings on credibility were flawed or incomplete. The Immigration Appeal Tribunal said:

"Although we agree that the adjudicator did not make any explicit findings on the warrants, we do not accept that the determination is flawed and the matter needs to be remitted for a rehearing."

The tribunal did not deal at all with the question of failure to grant an adjournment.

34. It is argued that this finding should not stand. The documents were, as the Tribunal appeared to accept, vital to the applicant's case. Also, the Tribunal never dealt with the procedural irregularity flowing from the first adjudicator's direction. There are other difficulties about the Tribunal's decision. The Tribunal said that if the warrants were genuine, they related to prosecution, not persecution. I am unable to see how such an observation can be justified.
35. There are, therefore, some unsatisfactory features, both about the adjudicator's decision and the Immigration Appeal Tribunal's decision on appeal. Miss Gallafent might in other circumstances have persuaded me that there was at least an arguable case for the case to be sent back to the Tribunal to reconsider the appeal from the adjudicator with the possible result of a further remission for a fresh hearing before another adjudicator. However, the delay is so long that it is important to look at the wider considerations of the overall interests of justice.
36. Refusing relief to the applicant will cause her some disadvantage, but it is not so great that it ought to outweigh the considerable delay of which she is culpable. In particular, she will not, without more, be returned to Nepal to face the risk of possible persecution. She can make a Human Rights Act claim under Article 3 which will cover virtually the same territory as her asylum claim. Ordinarily, this would have been heard at the same time as her asylum claim, but her asylum appeal was launched before the Human Rights Act came into force. Litigants who fail to comply with time limits in all branches of the law are liable to suffer disadvantages of one kind or another. In this case I accept that there is a potential disadvantage to the applicant in respect of the difference between Article 3 status and status as a guarantee of asylum.
37. I have come to the conclusion that the delay is so long that very exceptional reasons would have to be advanced for granting permission to appeal after such a long period of time. In these circumstances, I would refuse the application for permission to appeal.
38. LORD JUSTICE CARNWATH: I agree. There is always a balance to be drawn between the length and effects of delay and the merits of the case. But I find it difficult to envisage merits which would override a delay of almost three years without some powerful excuse. Failure of the solicitors to notify the decision might explain a short delay, but the applicants have their own responsibility to keep in touch with what is going on. According to the applicant her last contact with the solicitors was in June 2000. Even accepting that the solicitors for some reason did not tell her of the decision which had by then already been issued, and even accepting that they told her not to keep ringing, she must have realised that a decision was reasonably imminent. Nothing she has said can justify or explain her failure to do anything whatsoever over the next 2½ years.
39. LORD JUSTICE WARD: When in this field lawyers are often criticised for improperly milking public funds in pursuit of hopeless cases, it is appropriate for the court to pay tribute to Miss Gallafent who, acting pro bono, has so obviously spent a considerable amount of time in preparing the case for herself and for us. I express my gratitude to her for so doing and for so eloquently putting Miss Pant's case. It could not have been better done. If Miss Giovannetti feels left out of this out pouring of praise, she can take it for granted that we are always grateful for her for the succinctness of her submissions.
40. Despite the eloquence that Miss Gallafent has demonstrated, I am satisfied that two and half years' delay is far too long. The explanations for it are too tenuous for that delay to be excused. Although I have sympathy with the submission that she may have been denied a fair trial, the merits of her case are not so overwhelming as to have outweighed that delay. Time limits have to be obeyed, even by asylum seekers.
41. In agreement with my Lords I, too, would dismiss this application.

Order: Permission to appeal refused.