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 IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		24 January 2006

1. LORD JUSTICE BROOKE: This was listed as an application for permission to appeal, following a refusal by a single lord justice in relation to an asylum appeal from a citizen of Iran. The recent history of the matter is that on 8 August 2005 a single immigration judge at Manchester dismissed the appeal on reconsideration on asylum and human rights grounds. He applied a recent country guidance case in reaching that conclusion. On 5 September there was a long considered refusal by a senior immigration judge in writing. The appellant's lawyers filed an Appellant's Notice with the Court of Appeal. On 1 December 2005 Buxton LJ refused permission. He said :

"This appeal has no reasonable prospect of success.

"It is impossible to erect the criticisms of the judge's analysis of the facts into errors of law. As to proselytism, the single and low-key sentence in the witness statement that is relied on cannot offset the careful analysis of the whole of the evidence in the judge's paragraph 20. As to danger on return, the judge pointed out that the earlier arrest was for a neighbourhood issue (a matter not addressed either in the grounds or skeleton) and in that context, took a view that was well open to him as to the danger to the applicant on return."

2. In the part of the form headed "Information for, or directions to the parties" Buxton LJ wrote:

"The attention of those advising the applicant is drawn to CPR PD 52.4.14A"

3. The appellant's solicitors asked for the matter to be reconsidered at an oral hearing. I have been told that the counsel who was then advising them wrote an opinion which favoured this step being taken. The case was listed for today. I studied the papers last week and asked my clerk to enquire last Thursday whether a video link was being used from Manchester for this short 30 minute hearing in order to save costs, in accordance with the guidance which I gave recently in relation to Black v Pastouna [2005] EWCA 1389, a case from Liverpool. I also asked: Where was the paragraph 4.14A statement? I did not receive any response to either of those enquiries before I took the papers home at the weekend. I spent two hours reading the papers carefully over the weekend in order to be able to handle this application this morning.
4. Yesterday afternoon, a signed form requesting the dismissal of the appellants' notice was served on the court without any covering letter or explanation at all. I directed that the matter should stay in the list and I am now giving this short judgment because it raises points of practice which are of contemporary importance. I therefore direct that it be released from the usual restrictions on the citation of judgments of this kind.
5. It is no longer acceptable that a party's representative should ignore the practice directions of the Court of Appeal. Since the new practice direction was introduced at the end of June 2004, this court has repeatedly made it clear that if a matter is listed for hearing in the Court of Appeal, all necessary papers should be filed at least seven days before the hearing. In the case of a paragraph 4.14A statement, this should be filed at least four days before the hearing. That practice direction was made because there was evidence that requests for reconsideration were being made almost automatically without a proper consideration of the merits and without a considered judgment by the Legal Services Commission whether it was appropriate to permit further expenditure of taxpayers' funds on the matter.
6. In all these asylum cases where permission to appeal is sought at an oral hearing after two refusals the merits will have been considered twice by judges who are experienced in asylum and human rights law. They will have been considered first by a senior immigration judge at the Asylum and Immigration Tribunal. They will then have been considered by one of the 12 members of this court who handle applications for permission to appeal in this field of law. Both these judges will have given written reasons explaining why, in their view, this appeal has no prospect of success. Sadly, the practice of dressing up appeals on facts as if they were appeals on law is continuing. I gave guidance in my judgment in R Iran v Secretary of State for the Home Department [2005] EWCA Civ 982 in order to make clear the nature of the distinction.
7. Against this background, it would be expected that a successful application for permission to appeal on a third application, by way of a hearing in court, would be a very rare event. This expectation is supported by statistics kept by the Civil Appeals Office over the last 12 weeks. About 25% of applications for permission to appeal in asylum appeals are granted on paper: 29 out of 122. If there is a reconsideration, the statistics show that the success rate drops to less than 3%: 2 out of 69, and in one of those two cases permission to appeal was only granted at the oral hearing because new evidence was then adduced.
8. Mr O'Ryan has explained to me that he inherited these papers from his predecessor about 11 days ago, but it was only on Friday that he gave them his proper consideration. He formed a different view of the merits of the appeal from that formed by his predecessor. He tells me that he had a conference with his clients on Monday morning explaining his view, but the solicitors did not then get in touch with the Civil Appeals Office. Instead they sought a third opinion from counsel in London on a pro bono basis, who shared the view that there was no prospect of success at this oral hearing. It was at that stage yesterday afternoon that the solicitors sent their formal request for dismissal of the Appellant's Notice to the Civil Appeals Office, without any explanation, as I have said.
9. Because the statistics I have quoted reveal a worrying feature of the success or otherwise of decisions we have made when applications for permission to appeal are taken to an oral hearing, I direct that this judgment be sent to the chief executive of the Legal Services Commission, so that the Legal Services Commission can determine whether it is necessary to take any further steps to protect the expenditure of taxpayers' funds at a stage of the appellate process in this court where the prospects of success are demonstrably so slight.
10. From the perspective of this court, the judges will, of course, consider carefully all applications are properly before them. However, each application takes up a judge's time. As I have said, I spent two hours over the weekend reading these papers and the time spent on an oral hearing also represents judicial time which would otherwise be spent in dealing with other more meritorious cases at a time when the Court of Appeal is under considerable pressure.
11. I was prompted to list this application for hearing partly because I recently received a minute from another member of the court who handles applications of this kind, in which he said:

"All the applications so far cited share the characteristics of: 1) very detailed and conscientious judgment by an immigration judge after an oral hearing in which he disbelieved the applicant: 2) refusal of appeal by a senior immigration judge in the Asylum and Immigration Tribunal: 3) refusal on paper in strong terms by a Lord Justice of Appeal: 4) support throughout, including for the oral application, for this court by the Legal Services Commission."

12. Whether or not those features apply in each of these cases, it is quite clear to me that there is a serious contemporary issue relating to the waste of resources because of hopelessly over-optimistic assessments of the prospect of success on a renewed application for permission to appeal. It is desirable, in my judgment, to draw these matters to the attention of practitioners in this field and of the Legal Services Commission.
13. I would add this. As a result of my refusing to allow this case to come out of the list, Mr O'Ryan, who behaved quite properly in advising that this appeal should not be pursued, has come all the way down from Manchester for this short hearing. In Black v Pastouna, decided last term, I drew attention to the fact that this court would now be directing those responsible for the assessment of costs to consider the comparative cost of a video link hearing from cities like Liverpool or Manchester or Birmingham on the one hand, and the cost of lawyers coming all the way down to London from one of these cities to attend a short hearing in the Court of Appeal.
14. Experience has shown that the video link works extremely well for this type of hearing. It is very desirable that this facility and the possible costs consequences of not using the facility are more widely known. I make the order as requested.

ORDER: Application refused. Order for assessment of appellant's LSC costs.