England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE STANLEY BURNTON
CO/6616/2005

		Royal Courts of Justice Strand. London, WC2A 2LL
		21/02/2007

LORD JUSTICE HOOPER:

1. This is an application for permission to appeal the decision of Stanley Burnton J. by which he refused permission to the appellant to apply for judicial review against a decision of an immigration judge, Mr Sacks.
2. The application raises an issue of considerable importance: Can an application for judicial review of the decision of an immigration judge succeed even though a High Court judge has, pursuant to section 103A of the Nationality, Immigration and Asylum Act 2002 ["the 2002 Act"], dismissed on paper an application for a reconsideration of a Tribunal's decision on an appeal against a decision of the Secretary of State for the Home Department ("SSHD") refusing an asylum or human rights claim? By virtue of sub-section (6) of section 103A the decision of a High Court judge "shall be final".
3. Mr Sacks, on an appeal from the refusal of the appellant's asylum and human rights claims by the SSHD, refused the appellant permission to call evidence by means of a telephone link from the Cameroon and refused to adjourn the appellant's hearing of her appeal notwithstanding her absence due to illness and the lack of any effective representation. Mummery U sitting with Wilson LJ adjourned the application for permission to appeal the decision of Stanley Burnton J to a Court consisting of three Lords Justices. An extension of time is also sought. I would grant that extension.
4. Although the SSHD was served as an interested party, he was not represented at the hearing. At the end of the first day of the hearing we asked Mr Chamberlain to see whether the SSHD wished to make any submissions about the possibility of a fresh asylum claim being made. No such submissions were forthcoming. Mr Chamberlain expressly conceded that this Court should not take into account this possibility when resolving the issues in this application.
5. It is my view, for reasons which I shall now give, that permission to appeal should be granted, that permission to apply for judicial review should, be granted and that this Court, as presently composed, should, after further argument, decide whether or not to grant the orders requested by the appellant.
6. I start by setting out the facts, as drawn from the contemporaneous documents and from witness statements. There are disputes about what happened. The Respondent does not accept the allegations of procedural impropriety but "does not propose to defend the claim on that basis" at the permission stage.
7. AM was born an 'anglophone' Cameroonian on 26 Dec 1966.
8. According to AM, in October 2001 police come to her home searching for her husband, saying that he was a wanted man. Because AM would not say where her husband was, she was taken to a police station where she was beaten and interrogated by Francophone police. She was pregnant at the time. After a month, she was transferred from the police station to a prison. According to AM, she was treated in this way because of her husband's political activities for the SCNC, an Anglophone opposition party seeking independence for anglophone Cameroon.
9. AM claims that, with the assistance of a prison supervisor, she escaped detention while acting as an unpaid domestic for the chief of the prison at which she was detained. Shortly thereafter she fled Cameroon for the Ivory Coast where she was reunited with her husband and children. On 22 June 2002 she gave birth to her youngest child. She lived and worked there without any right of residence. In January 2003 during fighting as part of the ongoing insurgency, rebels in the Ivory Coast burnt AM's home. On 6 January 2003 AM arrived in the UK under control of an agent and on 22 January 2003 she claimed asylum.
10. On 4 Feb 2003 AM submitted her "statement of evidence form" and statement. She was interviewed by the SSHD nearly a year later on 16 January 2004.
11. On 7 July 2005, over a year later, AM was served with the SSHD's decision refusing her asylum and human rights claims. The letter made clear that the SSHD did not accept that the appellant's account was credible. On any appeal AM's credibility would be a central issue.
12. On receipt of the decision on about 9 July, Browell Smith, her solicitors, granted themselves funding to represent AM before the AIT and prepared the necessary appeal papers.
13. Alex Bell, a case worker in the Immigration Department, was given conduct.of the case. He has been a caseworker involved with immigration matters since 1992.
14. AM told Mr Bell about two witnesses living in Cameroon, one a barrister, who could support her account of what had happened to her. Mr Bell concluded that the most effective way of presenting the evidence of the two witnesses was by a live telephone link from Cameroon. Mr Bell in a statement written in August 2005 describes the difficulties which he was to encounter in his attempt to present the,evidence in this way. Having been told that the Tribunal had no facilities for a telephone link, he had made further enquiries. His statement reads, in part:

"8. I understand however that the telephone conference facility was available at the County Court. The County Court is located in the same building as the AIT and it is. on the same floor. I therefore made enquires with the AIT regarding the use of the County Court facility but my request was hindered. I wrote to the county court but I did not receive a reply. I telephoned Field house. I was told that installing telephone conference facility was an accommodation issue and was asked to write to the ECO for advice but I did not get a reply.

9. Because I did not get satisfactory replies from the AIT and the County Court I made an application to the Legal Service Commission (LSC) to fund the installation and connection of the telephone conference facility. Funding was granted in full"

15. Importantly, that funding was not granted until 9 August.
16. On 15 July 2005 the AIT notified AM that her appeal would be heard on 11 August 2005, with a Case Management Review Hearing ("CMRH") to take place on 28 July 2005.
17. On 27 July 2005 Browell Smith wrote a letter to the AIT requesting further time for the lodging of evidence. On 28 July 2005 at the CMRH a request was made for telephone conference facilities in order to call oral evidence by telephone link. Mr Sacks, an Immigration Judge, refused the application.
18. Katie Fischer, who identifies herself as KFX in her notes attended the CMHR on 28 July. Her note reads as follows:

Attendance at CMRH:

Immigration Judge: Sacks

Clerk: Colin Walsh

HOPO: McSween

KFX confirming address, acting and no interpreter present.

Both parties agreed not suitable to float.

Do we have chronology - confirmed no, but will submit.

Do we have skeleton argument - confirmed no, but will submit.

KFX handing over letter that had been sent to court [presumably letter of 27 July] and was provided to me by the clerk before the hearing. Immigration Judge read out request and asked HOPO for comments- none made.

KFX raising issue of telephone conference with Immigration Judge - initial query as to what further information could be obtained that was not in the CIPU report! Explaining that the individual had personal knowledge of our client's circumstances in the Cameroon and that he had in fact applied for bail for our client whilst in prison. Immigration Judge explained he had not dealt with this issue before and adjourned to check whether the court had the facilities. Asked if I knew the time distance - confirmed I did not.

Clerk returned and said likely could be carried out using facilities from the .county court - but they can not make international outgoing calls and therefore would have to receive a telephone call in.

In absence confirmed to HOPO the details of the barrister and law firm.

Immigration Judge returned to state that the answer was no - that there were no facilities set up with Cameroon like there was re Nigeria. That there were standard directions in existence on this point and that there was no means by which we can verify the identity/ credibility and authenticity. Can not be done and if it was done we would have to pay. If give evidence must be here before us.

KFX putting to Immigration Judge that the identity of the individual could be checked by the British Embassy and we could telephone link from there. He could provide his passport to the embassy and evidence of qualifications. If this court does not have the facilities we could transfer the matter to Bradford.

Immigration Judge confirming that the telephones in court can not link from GPO and GPO verify this is usually between two solicitor firms in the UK. KFX advising that the individual in question worked for a solicitor firm - could the contact be carried out through that means.

No - he should file a sworn affidavit if he wants to at the embassy.

Any witnesses - potentially individual from Cameroon if we can get funding.

Immigration Judge confirmed that he would need advance notification if a witness was to attend so that he could make suitable arrangements to accommodate a witness who had travelled so far. That it would also increase the estimated length of the hearing.

HOPO confirmed that they wished only to rely on the reasons for refusal. Then raised s8 in relation to travel with agent on forged passport. False documents (A8 of bundle) Immigration Judge noted standard directions. Drew his attention to request for reduced time agreed to submit 2 days before the hearing.

Convention - political and gender

HR- 3,8,5,6,7-

Immigration Judge noted 5,6,7 would not succeed without article 3. KFX confirming still wish to rely on them.

Medical Reports - confirmed that the medical report had been submitted and was a part of the HO bundle (E2-5) and that we may obtain an updated report depending on whether there is any further information. All reports should be served within the time scale in the directions.

Language - English.

Change ground of appeal - no

Anything agreed upon = Nationality

Family members - no

HOPO relying on updated CIPU and authorities -handed a copy.

Any other matters:

KFX pointing out to immigration Judge that BofP [burden of proof] was on the Appellant, the issue of the witness was particularly important. Immigration Judge noting that they can not entertain such an action, I was unlikely to get funding and in any event authenticity was an issue.

KFX explaining again about link with embassy. Time difference raised and KFX confirming unlikely to be significant given the placement of Cameroon compared to the UK. Conference could be arranged at the embassy as it was unlikely we would get funding for witness important to consider telephone conference.

Immigration Judge stated that the answer was no. If calling a witness let them know in advance."

19. Mr Bell writes in a statement prepared for the Court of Appeal:

"7. At paragraph 3 of IJ Sacks statement, he states that he did not consider it appropriate to allow such evidence to be admitted in this form. He said that it was not practical to hear evidence from a telephone link. He failed to give reasons and in my view did not consider the possibility with an open mind.

8. I believed that it was not appropriate to challenge J Sacks decision by Judicial Review following the CMRH until I had ascertained whether the telephone link could in any event be made possible. So I embarked on making enquiries with both the AIT and seeking co-operation from the British High Commissioner (BHC) in Cameroon. (Ex 3).

9. Unfortunately I was confronted with negative responses from the AIT and the British High Commissioner. They were unhelpful (Exs 3 & 7). I did not obtain a response from AIT in Field House from my enquiries (Ex 13).

10. I approached the Legal Service Commission (Ex 4) and I was granted funding to make the telephone link possible.

11. With the LSC funding and my firm the connection and the equipment was purchased to enable the evidence to be heard in court. With this I sincerely believed that the Immigration Judge would not have objected to our request if the funding, equipment and technology was made available."

20. According to Brian Craven a Home Office Presenting officer ("HOPO"), at the hearing of 28 July a request was made for a video-link to be set up to enable a barrister from Cameroon, Mr Ambo Daniel Amombi, to present evidence in the appellant's case. This was refused because of an absence of facilities at the AIT, because there was no available mechanism to verify the identity of the witness at the other end of the video link, and "there was the cost implication of providing the service, which, in any event, would have to be met by the Appellant's solicitors". If these accounts are accurate Mr Sacks was being told both the name of the witness and was being informed of the fact that the witness could give very important evidence in the case. He also knew that the County Court had facilities for a telephone link.
21. I refer later (in paragraph 29) to a memorandum issued by Hodge J in which he wrote that conference calls were not feasible in proceedings before the AIT for both practical and procedural reasons.
22. In his witness statement Mr Sacks gives his account of what happened both at the hearing and in the days following:

"3. With regard to my refusal to consider hearing evidence from a witness in the Cameroon, I am aware that under the Procedure Rules I have discretion as to how and in what form evidence can be admitted. The Appellant was seeking leave for telephone evidence to be admitted, and for her witness in Cameroon to attend at the British Embassy, and to have his credentials verified at the Embassy, and for him then to give evidence over a telephone link at the hearing. I did not consider it appropriate to allow such evidence to be admitted in this form. ...

4. The Appellant's representative, following my decision on 28^l July 2005 to refuse to admit evidence by telephone, sought to overturn my decision by approaching the management staff at the North Shields centre. I understand that quite rightly they refused to consider the approaches that were being made by the Appellant's representatives, bearing in mind that I had already made a judicial decision. I understand that the representatives were very persistent in their approaches to the Office Manager at North Shields on this particular point."

23. In his Determination and Reasons for dismissing the appeal, Mr Sacks wrote:

"13. The Case Management Review took place on 28^th July 2005. At that hearing the Appellant made an application that the court grant permission for a telephone link to enable a witness in Cameroon to give evidence. This witness was a Barrister who had represented the Appellant's husband in the past. Paragraph 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 gives me power should I so wish to exercise it, to make provision for a hearing to be conducted or evidence given or representations made by video link or by other electronic means. Having considered the Appellant's request I did not consider it appropriate to make such an order. I consider that there was more than adequate time for affidavit evidence from that witness to be lodged and considered by the court. I directed that the matter proceed to a full hearing on 11^th August 2005.

14. The Appellant's solicitors sought to challenge my refusal to receive evidence via the telephone conference, and by their letter of 9 August 2005 indicated that they would want the matter re-considered at the hearing on 11 August 2005, and in their letter confirmed that the LSC had agreed to fund any telephone conference. They identified the basis of their arguments for seeking such a facility, and identified the witness that they would be calling, and the evidence that he would be giving."

24. It is clear from these passages that Mr Sacks accepts that he had the power to make an order permitting evidence to be given by a telephone link. He concluded that it was not appropriate to make such an order. He gives no reasons for this conclusion. He considered that that there was more than adequate time for affidavit evidence from that witness to be lodged. He does not explain why, in his view, affidavit evidence would be a sufficient substitute for evidence by a telephone link. Nor does he take into account the substance of what the witness had to say and the importance of the evidence of the witness in the case, about which he had been, so it appears, informed.
25. On 9 August Mr Bell wrote a letter to the AIT:

"We respectfully give notice of our request for permission to adduce evidence via telephone conference at the above name appeal hearing as preliminary issue at the appellant's hearing tomorrow.

We initially made the request before Mr Sacks at the CMR hearing recently and it was refused on the basis that the facility is not available at North Shields hearing centre. We confirm that we can now have the facility made available.

We made extensive enquiries with the AIT with a view of obtaining the telephone conference facility on loan from the County Court but our efforts were hindered.

We have consulted with LSC and applied for funding. They have today agreed to fund the installation and telephone connection between the court and the witnesses in Cameroon.

In view of the available funding, we ask the court to give directions for the evidence to be given by telephone conference. We ask the court to consider the following:-

1. According to the law the burden of proof is on the appellant. The appellant is seeking to adduce evidence that support her claim and corroborate what she has said. In the interest of justice the appellant should be allowed to prove her case.

2. There is no legal basis to prevent the appellant from adducing evidence via telephone conference.

3. There is no practice direction to prevent or prohibit the installation of such equipment and for evidence to be obtained in this way. According to practice direction telephone evidence is allowed in bail applications and there is no distinction of such to prevent such a method of or to discriminate against an appellant in obtaining evidence in an asylum appeal hearing.

4. We would remind the court that procedural rule 53, 2005, (Burden of proof) states that if facts are asserted, it is for the appellant to prove that the fact asserted is true.

5. Rule 51 states that the Tribunal may allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal... even if the evidence would be inadmissible in a court of law.

6. Rule 45, the Tribunal may give directions for a hearing to be conducted or evidence given or representations made by video link or by other electronic means ...

With regard to the evidence, the appellant stated that she was arrested, tortured and imprisoned in October 2001. The Home Office rejected her evidence. The witness we intend to call is a Supreme Court Barrister at law who states that AM was amongst those detained in October 2001 and that he was asked by a Human Rights group to get her and others bail. There are other issues which the witness can give evidence in relation to prison condition, arrest, fair trial, detention, escape prisoners, prosecution, law and procedure and what will happen to the appellant on returning to Cameroon. We are of the opinion that the witness evidence is vital and support the appellant's claim entirely.

We also intend to call a Human Rights Activist in Cameroon.

We confirm that we will provide the Home Office the details of our witnesses and we would invite the Home Office to allow the witnesses to attend the Commissioner's office where identity of the witnesses and their qualification can be checked by the Commissioner's legal team and where they can give their evidence by telephone.

According to BT (BT legal line) the installation of the device and connection of the facility can be completed within 30 minutes. A device is plugged into an ordinary telephone socket. There should not be any grave concern of disruption to the court during installation, if any, it would be very small. The installation of the connection can be done on very short notice.

We respectfully ask for our request to be considered as a preliminary issue at the start of the hearing oh the 11^th August. We are guided by the court.

If the court is minded to hear evidence via telephone conference we would be grateful if the court would adjourn the matter to accommodate the installation of the device and connection and at a time and date when suitable to all.

Please do not hesitate to contact this office if we can be of further assistance."

26. In my view this letter has, at least arguably, considerable merit in it and called for the closest consideration.
27. Kelly Swan the AIT Centre manager gives her account of this period:

"I first became aware of the case on 10 August 2005, when a letter was received from Browell Smith & Co asking that telephone conference- facilities be made available for the substantive hearing on 11^th August 2005 to enable a witness from Cameroon to give evidence. The request was referred to me and, since it was a matter of court procedure, I referred it to the Resident Senior Immigration Judge, Mr Conway. I understand that the letter was taken to Mr Conway by Patsy Porter, a Court Clerk at the centre, and that he rejected the request. I understand that Mrs Porter telephoned Mr Bell and informed him of the decision of Mr Conway, that he was transferred to Mrs Judith Davies, the Court Clerk Manager and that because of the manner in which he was speaking to her, Mrs Davis requested that I speak to Mr Bell.

Mr Bell was transferred through to me and he explained that he wanted telephone conferencing equipment available at the hearing and that he did not understand why Mrs Porter had spoken to Mr Conway about this as it did not involve him. I explained that Mr Conway is our Resident Senior Immigration Judge and a request like this would have to be looked at by a member of the Judiciary not the administrative staff. I explained to Mr Bell that I would look at the file and would call him back, although I did explain that we did not have such facilities available at the AIT. I spoke to both Mrs Davis and Mrs Porter to ascertain what they had both said to Mr Bell and what exactly Mr Conway had said. On looking through the file I noticed that at the Case Management Review (CMR) hearing which was held on 28^th July 2005 this had been requested by the representatives and had been refused by Mr Sacks. I then went to see Mr Conway myself and he showed me the memorandum that was sent by Mr Justice Hodge. I then telephoned Mr Bell to inform him that I had spoken to Mr Conway again and that the information he had been given by Mrs Porter was indeed correct. I also explained that as he had already requested this at CMR and it had been refused by the Immigration Judge, we could do no more. Mr Bell became very irate again and insisted that this be looked at again. I was keen to do everything possible to assist and I informed Mr Bell that Mr Sacks was in the centre tomorrow so I would ask him to look at it and inform Mr Bell of his comments.

The next day I took the file to Mr Sacks and asked him to look at it. Mr Sacks informed me that his decision remained the same and that was to refuse the application, and that if Mr Bell was not happy with this decision he would have to appeal it. I telephoned Mr Bell again and informed him of this decision. He again became very irate with me and we had a very long conversation . which did not progress matters. I informed Mr Bell that I could not help him any further and that I would have to terminate the conversation because of his manner and lack of progress.

Mr Bell then wrote to the County Court office and asked if he would be able to use their equipment. This request was shown to me by a member of County Court staff who was unsure what to do with it as County Court staff have no jurisdiction within AIT. I again telephoned Mr Bell and informed him of the procedures to follow if he was not happy with the Judge's decision at the CMR and that the County Court could not overrule an Immigration Judge's decision.

Over the next few weeks phone calls came almost daily, with Mr Bell requesting that telephone conferencing facilities be available and with me informing Mr Bell of the previous conversations and the action he would need to take. I had put this in writing to Mr Bell to clarify the situation but the telephone calls still persisted. I found Mr Bell's behaviour and tone completely unacceptable and, due to the length of time that he persisted with telephone calls and letters, it became intolerable. The telephone calls ceased at the time of the first substantive hearing which was held on. 11 August 2005."

28. I do not find it easy to follow the chronology as set out by Kelly Swan, who on her account first became aware of the case on 10 August and who states that the telephone calls ceased at the time of the first substantive hearing on 11 August 2005. What is of note, however, is that, on her account, Mr Sacks on 11 August refused the application contained in Mr Bell's letter of 9 August before he had heard any oral argument in support of the application. In her words describing what happened when she showed the 9 August letter to Mr Sacks:

"Mr Sacks informed me that his decision remained the same and that was to refuse the application, and that if Mr Bell was not happy with this decision he would Have to appeal it."

29. Patsy Porter, a court clerk, states that she took the 9 August letter to Resident Senior Immigration Judge Conway who referred to a memorandum from AIT President Mr Hodge "which stated that such conference calls were not feasible in proceedings before the AIT for both practical and procedural reasons." She says that Mr Bell became very irate when told of Mr Conway's decision to refuse the application.
30. In a later statement prepared by Mr Bell dated 4 December 2006, he denies the behaviour ascribed to him and notes that no mention was made about his alleged behaviour in contemporaneous correspondence. He does not understand why it was thought that he was undermining the decision of Mr Sacks when making efforts to enquire about the facilities for a telephone link. It was his understanding that the principal objection made by Mr Sacks on 28 July was a practical one and he was making attempts to overcome any practical difficulties. He gave his views in paragraph 5 as to why it was important to set up the link:

"The request was made because I believed that evidence by telephone link from a barrister in Cameroon could corroborate our client's claim which had been rejected by the Home Office as untrue some three and a half years after it was made. I am aware that such delay can hamper a witness's recollection and given that a doctor had reported that our client has brain lesions which may impair her memory I was anxious to provide the best evidence available. A draft affidavit, a fax copy affidavit or a scan copy affidavit by e mail would only carry very limited weight, if any as evidence, especially when it could be subject to change and correction, given the susceptibility to such evidence to accusations from the Home Office of being 'self-serving' and the problems of obtaining a finding from the court that such evidence is 'reliable'. It would be wrong and irresponsible to submit evidence of which is not certain of its content. Also, the postal service from Cameroon is not reliable. The sense of urgency in Cameroon is not similar to our sense of urgency in the United Kingdom and despite diligence from my end documents sometimes do not arrive in time for the hearing (as in this case). To hear live evidence would have been more beneficial and efficient and would have given the Home Office an opportunity to put to the Cameroonian barrister and human rights activist any matters which caused concern."

31. Again, as it seems to me, Mr Bell presents an arguably very convincing case for what he was trying to achieve.
32. {Catherine Henderson, head of the Immigration Department at Browell Smith in a statement dated 1 December 2006 gives some of the personal history of Mr Bell and states that she has never seen him lose his temper or become irate. In paragraph 13 she explains the difficulties faced by solicitors' firms given the tight timetable of asylum appeals.
33. It may well not be necessary to resolve some of the issues raised in these statements. It is sufficient for my purposes, at this stage, to note that Mr Sacks appears to have made his decision to refuse the August 9 application before he had heard any oral argument. That he had apparently pre-judged the matter finds support in the account of the 11 August hearing given by Bridget McVay, to which I turn next. I also note that there was within the AIT Centre irritation at the perceived behaviour of Mr Bell and of Browell Smith, an irritation about which Mr Sacks was aware and an irritation which, so it appears, he shared.
34. I turn to the hearing of 11 August.
35. Bridget McVay of counsel attended on behalf of the appellant and made an attendance note that day. The accuracy of the note is confirmed by Mr Bell. The note reads as follows:

"1. I was instructed to represent the Appellant (AM) in a hearing today at North Shields and to apply for an adjournment on the basis that a telephone link was required to be put in place for the final hearing in order for evidence to be adduced by telephone conference from two witnesses in Cameroon. The witnesses (a Cameroonian lawyer and an officer of recognized human rights NGO) were able to give evidence corroborative of AM's evidence that she had been unlawfully detained in Cameroon.

2. I had received and considered recent medical evidence dated 9^th August 2005 regarding the Appellant's life-threatening condition and I was accordingly concerned that the Appellant should not be put at risk at the hearing.

3. The Immigration judge, Mr. Sacks, opened proceedings by stating that he did not wish to hear any submissions from me with regard to any adjournment application in order to enable telephone evidence to be adduced as he had seen the letter dated the 9^th August 2005 from my I. S. He said that the reason for refusal was clear. The IJ asked if the HOPO, Brian Craven, wished to say anything and he did not, save to say that an application had already been made in this matter and was refused.

4. The Immigration Judge made it clear that the decision . that he had made at the case management review hearing (CMRH) was based not only on the economics and practicality of the situation but also "on the case as a whole". He said that the Procedure Rules guided him and in the circumstances of this case he did not consider it appropriate to adjourn. He said that it was his judicial decision.

5. I submitted that all the factors in the case should be considered and that the recently filed medical evidence setting out the real risk of death if her blood pressure was to rise sharply was a significant factor in considering the way in which the Appellant's case should be approached. In the event that it may not be possible to call the Appellant herself to give evidence any other evidence that can be adduced should be adduced in the interests of justice and fairness. I explained that the evidence from the lawyers in Cameroon was crucial as it was central to the issues to be decided that the appellant establishes whether she was detained in prison in Cameroon. This fact has been challenged by the Secretary of State. Solicitors acting for A have arranged and secured funding for the evidence of a lawyer in Cameroon concerned with A's detention to be given by telephone, enabling the Home Office Presenting Officer (HOPO) to test such evidence by way of cross-examination. Efforts are being made for a witness statement to be taken and checked in such a way that it will be acceptable to the court.

6. I was surprised by the Court's unwillingness to hear any submissions from me as it seemed that the reasons for refusing the request for facilities to be made available for the telephone link were purely practical. The practical difficulties were seemingly overcome by the purchase by my Instructing Solicitors of the telephone and the confirmation from BT that it would only take about 30 minutes to set up the connection. Moreover, the Legal Services Commission had agreed to fund it. Katy (a clerk) from my Instructing Solicitors did write an attendance note which suggests that her understanding of the reasons for the refusal were essentially practical.

7. The HOPO took the view that the written evidence could be obtained from the barrister in Cameroon and he said that enquiries had been made with the High Commission and that their view had been sought.

8. The Immigration Judge said that if my Instructing Solicitors were unhappy with the earlier decision to refuse an adjournment in order that the telephone link evidence could be adduced, that decision made at the case management review hearing (CMRH) should have been judicially reviewed. He said that in the absence of such a challenge the decision must stand, it was a "judicial decision".

9. I explained that there had been further developments since that application as at that point the facilities could only theoretically be provided whereas now there were concrete arrangements in place and the Legal Services Commission had agreed to fund the arrangements. I explained that it was imperative that the evidence from the lawyers should be adduced - be it in the form of statements or telephone link. But by this stage it was apparent that the IJ wanted to hear the case immediately and would not allow any more time for anything.

10. The Immigration Judge showed his anger that I kept trying to put forward my client's case in the absence of any reason for his objection to my application to adjourn in the circumstances of this particular case. It seemed that his mind had been clearly made up before he came into court. He kept repeating that it was a judicial decision and could only be challenged by judicial review.

11. I explained that it seemed appropriate to renew my application to adjourn today before proceeding to hear the case as full funding from the Legal Services Commission had only just been obtained, the appellant was seriously ill and statements had not been received by the lawyers in Cameroon despite having been requested by my Instructing Solicitor. As soon as my Instructing Solicitor became aware of the relevance of their evidence he had asked for their assistance in both statement and telephone evidence form. It was in the interests of justice that such evidence be adduced as we were aware of its availability and the fact that it would be forthcoming within a few days.

12. The Immigration Judge kept repeating that his had been a judicial decision and that he was entitled to exercise his discretion as he saw fit. Again he showed his irritation and at one point banged his fist on the table.

13. I asked the Immigration Judge if I could have a few minutes to speak to the Appellant before calling evidence as I needed to be sure that she would be well enough to give evidence, that she wanted to do so and that her blood pressure was stable. As I took her out of the court room I could hear that she was breathing irregularly, and when we got to a seat she began to slump and could not sit up straight. She complained of a pain in the back of her head which she had had at the beginning but was getting worse.

14. I returned to the court room to say that the Appellant was in a very distressed state and that I was concerned that it had all been too much for her. I was concerned for her wellbeing in view of the Doctor's report about rising blood pressure caused by stress. The Immigration Judge said that all Appellants get stressed and that there should be no reason why she should not be able to give evidence shortly. I said that I felt that the proceedings had been unduly stressful for her and reminded him of the fact that he had commented on the medical report by saying .that it was "mere supposition" and he had also banged his fist on the table saying that he would hear this case today whatever I tried to say to convince him otherwise.

15. The Immigration Judge asked her to come back into court so that he could assess the situation himself. It was clear that he was sceptical about the Appellant's condition and so I went out to see if she could come back into Court. When I went out again she was lying on the floor with a first-aid officer and a doctor who happened to be in the building, and they were waiting for an ambulance to arrive. She had started to lose consciousness on the floor. Her eyes were shutting and the whites of her eyes looked red. I was profoundly concerned.

16. When I returned to the court room the Immigration Judge clarified what he had meant when he referred to the medical report as 'pure supposition'. He said that what he had meant was that to say that whether the Appellant might only live for two days after deportation was pure supposition. He said that when he came to hear the case he would consider the evidence in the light of the guidance given by the case of "M" and would proceed by taking the evidence slowly.

17. As it became clear that the Appellant was in a very serious medical condition the Immigration Judge said that he would adjourn the case to 18^th August 2005, "only because of her medical condition as manifested today". This was not a date upon which I was available to appear. After some persuasion on my part he agreed to try to adjourn it to Tuesday 23^rd August 2005 but when the Court said that that date was not available he reverted to the 18^th August notwithstanding the lack of availability of myself or any Counsel at such short notice. He stated that the case would be first on the list and if the Affidavit evidence (from Cameroon) could be available for that day it could be admitted (and short service accepted.) He stated that if the Appellant's condition is such that she cannot attend then a request for a further adjournment confirming her medical condition and unfitness to attend should be provided. The Immigration Judge reserved the case to himself."

36. If this account of how Mr Sacks opened the proceedings is accurate (an account which as I have said finds support in the evidence of Kelly Swan), it gives considerable support to the submission that the appellant's important application contained in the letter of 9 August was not given a fair hearing. Additionally, the decision by Mr Sacks to list the case on 18 August notwithstanding the fact that he was told that the appellant's counsel Bridget McVay would not be available and nor would any Counsel be available "at such short notice" gives rise to concern. It is arguable that the conduct of Mr Sacks if accurately described by Bridget McVay reflected a lack of impartiality on his part and that his decision to hold the hearing on 18 August was to lead to the appellant not receiving a fair hearing on that day.
37. Alex Bell wrote in a statement prepared for the judicial review proceedings:

"3. I was present in court on the 11^th August 2005 with the appellant and counsel, Ms. McVay.

4. I have had the opportunity of perusing Ms. McVay's attendance note and the appellant's statement regarding Mr. Sacks conduct on the 11* August 2005. I wish to echo what has been said by Ms. McVay and by the appellant as I witnessed the same incident.

5. I cannot explain why Mr. Sacks acted irrationally in the way that he did.

6. When I saw AM at the Accident & Emergency department she informed me that she was afraid of Mr. Sacks. AM said that she would be afraid of returning to court to face Mr. Sacks. She did not believe that she would get a fair hearing from Mr. Sacks.

11. When Ms. McVay made the adjournment application Mr. Sacks reacted very angrily and refused to entertain the idea of a renewed application and said that he had made his decision and that it was final. He said that he had received my letter and noted the content and he was not prepared to change his mind. In court he said that we should Judicially Review his decision, When counsel tried to explain why we were making the application Mr. Sacks appears to be behaving even more irrationally.

12. I saw Mr. Sacks pound his desk with his fist. He was not willing to listen to counsel.

13. When counsel realised that Mr. Sacks would not listen to further representations, in light of Dr. Wohlrab's letter counsel requested a short break to check with client regarding her fitness to give evidence. Initially Mr. Sacks was reluctant to agree to this. Mr. Sacks said that the medical report was mere supposition.

14. We were eventually given a short break but Mr. Sacks said that he will remain in court and that we should return in five minutes.

15. I noticed that AM did not appear to look well as she could not stand without being assisted. I held her arm and walked with her to the waiting area. I took her to the toilet. She later returned to the waiting area. She sat down but could not sit herself up straight. She was slanting to one side. AM complained that she was not well.

16. Counsel and I returned to the court to inform Mr. Sacks of AM's condition. Mr. Sacks did not accept our account and asked that AM to appear before him. He went on to say "I would have all day to wait, she will recover."

17. Counsel and I went out to see AM. We. found her collapsed on the floor. She was attended by I believe a doctor who happened to be in court and by the court first aider. I gave the first aider Dr. Wohlrab's letter and after reading the content of the letter she immediately called the ambulance.

18. As we waited for the paramedics and ambulance to arrive I called Dr. Wohlrab and informed him of the situation.

19. Counsel and I returned to court to see Mr. Sacks. At this stage, Mr. Sacks had been informed by the court staff of AM's condition and he adjourned the matter to the 18 August 2005 reserving the matter for himself. Ms. McVay informed Mr. Sacks that she was not available on that day and asked if it could be listed on a later date. The 23 August was suggested but the court administrative said that it was not possible. Mr. Sacks said that he was not available for two weeks in September and therefore the matter will be back before him on the 18 August 2005. Mr. Sacks were well aware that Ms. McVay will not be available on that day.

20. Immediately after the adjournment counsel and I went to the hospital to visit AM. She was awake and alert. She was distressed and tearful. AM said that she was frightened of the judge and she does not think that she will receive a fair hearing if the matter was to be heard before Mr. Sacks."

38. In a statement prepared for this hearing before this Court, Mr Bell wrote:

"12. On the 11 August 2005, as we had funding from the LSC I instructed Bridget McVay to renew our application for telephone link evidence with the benefit of the further information now available. IJ Sacks refused to listen to her further representations and was somewhat intemperate in his response. At paragraph 5 of IJ Sacks' statement he said he saw no reason to alter this decision despite the fact that we had funding and equipment. No explanation was given for his refusal either in the statement or in court. He appeared to view our wish to put the additional matters before him as an attack on his authority. Unfortunately his attitude and manner was witnessed by the appellant and had a severe effect on her. She was escorted from the room and was obviously very unwell and beginning to lose consciousness.

13. During a short adjournment the appellant became really ill and she collapsed in the Tribunal building and was taken to Accident and Emergency by ambulance. The Immigration Judge was aware that the Appellant had a rare and serious blood pressure problem that could rise to a dangerous level cause by stress. Medical evidence had been produced to show this to which he acted dismissively and described it as 'supposition'. Despite the attempts by Counsel to explain her nonavailability and the practical problems involved in relisting the matter for only seven days' time, the Immigration Judge refused to adjourn for any longer and reserved the matter to himself. On return to the office (having first visited the Appellant at A&E) I resolved to do the best I could to evidence the case and obtain medical evidence as to whether the Appellant was sufficiently well to give evidence."

39. The appellant said this about the hearing in a statement dated 19 August 2005:

1. On 11^th August 2005 I went to North Shields Asylum Immigration Tribunal for the hearing of my case. I suffer from acute hypertension and my doctor, Dr Wohlrab, prepared a report for the court setting out his concerns that the stress of the proceedings might raise my blood pressure to dangerous levels. The first time I heard about the report was when I got to court as it had only just been received by my solicitors.

2. My barrister asked me how I felt and I told her that I had a pain in the back of my head. I said that it was because I was in court and that the Doctor had recently increased the medication to try to deal with my high blood pressure. I confirmed that I was still alright but that I would tell her if it got worse.

3. I went into court and as soon as my lawyer tried to speak the judge said that he did not want to hear from her as he already had a letter and kept repeating the fact that he had made a judicial decision. My barrister kept trying to argue my case but he would not listen and seemed to get angry. He said nothing can change him from the decision he has made.

4. He pounded the table and said that he would hear this case and would not allow the adjournment because it was his judicial decision. He did not give reasons for rejecting what my barrister said. I became at this stage very afraid of the judge. I was frightened that I was not given a fair hearing. I felt my body suddenly became weak and heavy. I was getting dizzy and my vision was blurry. I was becoming confused.

5. I was shocked when the judge referred to my Doctor's report as "pure supposition" as my Doctor knows about my health problems. I do not understand how the judge can say such a thing. When. I heard this I started to get chest pain. I felt that my heart was beating very fast. At this stage I became paralyzed, unable to speak. I was sjtting on the appellant chair a desk length away from the representative desk. I was unable to inform my lawyers that I was not feeling well. Everyone in court was listening and looking at the judge.

6. The judge made me very uncomfortable when he pounded the table and said negative things about my case. It was the judge who made me feel even more stressed than I was already just by being in court that day to have my case heard. I was frightened of the judge. When my barrister asked for time to check how I was feeling, I told her that my head ached and I could not tell her more. I wanted to get out of the court. My solicitor had to help me walked back to the waiting area as I could not stand up straight. It was my head and my chest that really hurt. I now know that my blood pressure had shot up to dangerous levels because of the stress and as a result I had to be taken to A and E in an ambulance. Apparently I had collapsed in the waiting area. I cannot remember what happened. I remembered waking up in the hospital.

7. I am being referred to Professor Wilkinson at the Renal Department Sunderland Royal Hospital and I hope that he will help to find the right medication so that my blood pressure will be back to normal levels again so that I don't collapse again under stress.

8. I do not feel that the judge took my medical condition seriously at the hearing as he did nothing to reassure me that my case was being considered fairly. I hope to be able to give evidence in my case if the professor can find the right mix of drugs "that will work for me. I would like to be given the opportunity of trying to get my blood pressure problems sorted out. I know that at the moment it would not be safe for me to try to go back to court.

9. I do not think that I will get a fair hearing if the case is heard by Mr. Sacks. I am afraid of him. I would ask the Court to remove him from hearing my case. I did not think that judges would pound the table as he did and just keep refusing everything for no reason. He certainly did not help my situation.

40. Mr Sacks says this about the hearing in his witness statement:

"5. The application was renewed at the hearing of 11^th August 2005. I had already, for the reasons that I had given to .the Appellant's representatives on 28* July 2005, made a decision on this particular point and saw no reasons to alter this decision. The Appellant's solicitors, at the hearing of 11^th August then sought to have the matter adjourned so the affidavits could be lodged from Ambo Daniel Amombi, who was the witness they wished to call, he being a Barrister at Law. I considered that they had had more than sufficient time to lodge affidavits and refused an adjournment request on this particular point.

Attendance Notes of Bridget McVav, Barrister

10. 10. I confirm that I have read Ms McVay's attendance note. At the case management hearing I did hear from Ms McVay on her application to have evidence adduced via a telephone link. I am aware that there had been a previous application made in this matter which had already been refused. After hearing Ms McVay's arguments I saw no reason to alter the decision, and again, refused this application. I was aware that I had a discretion as to whether such evidence should be introduced, and consider that I properly exercised my discretion in this matter by refusing to have evidence adduced via a telephone link.

11. 11. Ms McVay was reluctant to accept my decision in this matter, and despite my decision on the question of a telephone link, kept trying to re-open her arguments. I maintained my position. I do not accept that I showed anger towards Ms McVay. I would have been firm in my approach to her, bearing in mind her persistence and reluctance to accept the judicial decision that I had made.

12. As to the suggestion that on 11^th August I refused to hear a repeat submission by Ms McVay to adjourn to enable telephone evidence to be adduced, Ms McVay's attendance note clearly indicates she was heard on the matter. I maintained my decision to refuse the adjournment, and it was her continued challenge to the decision that I sought to bring to a conclusion and proceed with the hearing.

13. I do not accept Ms McVay's suggestion that I showed anger. If I banged my first on the table, which I do not recall, it would have been merely to emphasise the point and was not a display of anger, as suggested.

Witness Statement of Alexanda Chapman Bell

14. I have considered Mr Bell's statement and do not accept his contention that I acted in anything other than a professional and judicial way in dealing with this appeal. I am aware that Mr Bell had been in contact with the Court Manager and court staff on a number of occasions prior to the hearing of this matter, and that his attitude towards the court staff had caused some concern. I do not accept that I acted irrationally in any way. I do not accept what he says in paragraph 11 of this statement, namely, that I "reacted very angrily" when Ms McVay made an adjournment application.

15. As previously stated, neither Ms McVay or Mr Bell would accept any of the judicial decisions that I made, and were constantly trying to re-open applications and challenge what I considered to be final judicial decisions. I do not accept, as Mr Bell states at paragraph 12, that I "pounded [the] desk with [my] fist", I was always willing to listen to Counsel, but as previously stated, felt that I had to take control of the proceedings and refused to entertain repeat applications and repeat arguments over judicial decisions that had already been made. Having made what I considered to be the right and proper judicial decision, I wished to proceed to deal with the issues before me, and had to adopt a firm approach to both the Appellant's Counsel and her solicitor to achieve this end.

16. I take issue with the picture Mr Bell seeks to paint as to my conduct at all the hearings. At all times I allowed the Appellant's representatives to present their arguments. They, however, refused to accept my decisions and sought to challenge my decision by continued aggressive arguments both in court and to staff in the centre. This was not acceptable, as I pointed out to them. I take issue with the suggestion I displayed anger and acted irrationally, I acted in what I considered to be in a polite, firm judicial manner, and it was indeed those that represented the Appellant who, by their unprofessional attitude and approach to this case, created the situation they now seek to complain of.

Statement of Appellant

18. I have read the statement of the Appellant and note what she says. I do not accept what the Appellant has said about my refusal to listen to arguments that were put forward. I have already dealt with the allegation that I pounded the table. I repeat that it was the Appellant's representatives that I considered to have acted unreasonably and unprofessionally in their approach to this matter in that whatever decision I made in court, which was not to their liking, they chose to challenge immediately and attempted to re-open and reargue "at the time. I was not prepared, having made the decision, to hear further arguments, and any firmness that I showed was to enable me to process this appeal. and hear it to a conclusion.

19. At no point did the Appellant give any indication that she was fearful of me, or was fearful that she would not get a fair hearing. There was no indication at the hearing on 11^th August 2005 that the Appellant felt unwell, and she walked into the court and walked out of the court without any difficulty. When I granted the five minute adjournment, after refusing to adjourn the matter in full, I thought that this was merely so that the Appellant's representatives could take further instructions from her, and at no time was there any indication to me that she was feeling ill and likely to collapse. So far as the Appellant's condition is concerned, I did not immediately adjourn the case generally on 11^th August, considering that I should allow time for the Appellant's condition to resolve and then to assess for myself whether I considered that she was fit and able to proceed. It was only when I learned that she had been taken to hospital that I considered it appropriate to adjourn the case generally on 11 August 2005."

41. In his Determination and Reasons for dismissing the appeal, Mr Sacks wrote:

"15. At the hearing on 11^th August Mr Craven represented the Respondent. He was not prepared to consent to an adjournment request. Ms McVay, on behalf of the Appellant, relied upon the reasons set out in her letter of 9^th August 2005. The application was considered afresh by me and refused. The Appellant then lodged a second application to adjourn, namely, for time to lodge affidavits by the witness in Cameroon who they intended to call to give evidence by the telephone link. I considered that the Appellant had had more than adequate time to lodge such affidavits, and again, refused an adjourn for this purpose. The witness that they intended to call was a lawyer, and would have been well versed in preparing affidavits which could have been prepared by him and sent by fax. At this point the Appellant's solicitors sought a ten minute adjournment to allow them to take instructions from their client with regard to a medical report that had been received and was dated 9^th August 2005, the report being from Dr C Wohlrab. Before the court could reconvene, I was advised that the Appellant felt unwell, her condition deteriorated to the extent that an ambulance was called to the centre, and the Appellant was taken to hospital for a check up. I considered at this point that having regard to the Appellant's sudden onset of illness, I had no alternative but to adjourn, and for this reason only, adjourned the hearing until 18* August 2005."

42. There are a number of areas of dispute between the account of Mr Sacks and that of Bridget McVay and Mr Bell. Mr Sacks' statement in paragraph 10 of his statement that he made his decision not to permit evidence to be given by a telephone link "after hearing Ms McVay's arguments" is arguably incorrect, as also his statement in paragraph 15 of his Determination and Reasons that "the application was considered afresh by me and refused": It is also arguable that Mr Sacks was wrong to conclude that "the Appellant had had more than adequate time to lodge" the affidavits. It is arguable that he overlooked the difficulties faced by the appellant's legal advisers in the light of the fact that the additional funding had only been granted on 9 August and the problems of communicating with Cameroon, problems which, according to Mr Bell, were to persist in the week following.
43. Mr Craven the HPO said in his witness statement:

"4. During preliminary proceedings at the 11 August 2005 hearing the Appellant's Counsel made repeated adjournment requests in an aggressive manner to IJ Sacks, on the basis that she understood there now was funding available for such a video-link. IJ Sacks did reconsider this request in light of the additional evidence that was presented at the time of the hearing and again refused the application.

5. IJ Sacks clearly pointed out several times that no judicial challenge had been made by the Appellants' representatives to the decision made at the CMR stage to refuse permission for live evidence to be given. IJ Sacks said that any challenge to his application would have to be by way of judicial review. IJ Sacks said that challenging this decision via administrative staff at the court and the Home Office was not acceptable.

6. During the proceedings, IJ Sacks was accommodating to counsel's repeated aggressive requests for an adjournment on the same grounds. Counsel seemed determined to avoid the appeal being heard, and was unwilling to accept IJ Sacks' decision. At one point IJ Sacks did strike the table. I should emphasise however, that this was not done in anger but was more an act of frustration. IJ Sacks again outlined to the representative his reasons for the adjournment not to be granted.

7. Counsel for the Appellant explained that the Appellant's representatives had not had sufficient time to acquire affidavit evidence from the Mr Amombi, who was based in Cameroon.

8. Counsel for the Appellant also raised the issue of the Appellant's medical condition. The medical report indicated that survival rate, if medication for hypertension was withheld, would be between 3 days and 6 months. Counsel again aggressively requested an adjournment based upon the conclusions contained in the GP's medical report. IJ Sacks was of the view that some of the contents of this report was supposition and referred to the case of N (Kenya) (2004) UKIAT 00053, which he regarded as relevant to the medical issues pertaining to the Appellant's case.

9. IJ Sacks indicated that the Appellant had had sufficient time to fully prepare her case prior to 11 August 2005 hearing and refused the application for an adjournment.

10. Counsel for the Appellant indicated during these proceedings that no skeleton argument was available, due to confirmation of funding only being made on the 9 August 2005.

11. Counsel then requested a short ten-minute adjournment to enable her to consult with the Appellant as to her medical condition and the contents of the GP report which had been served at the hearing on 11 August 2005. IJ Sacks granted this adjournment request.

12. During the short adjournment the Appellant became unwell in the reception area of the hearing centre. The Appellant collapsed and was attended to by Court staff with medical training. Subsequently, an ambulance was called to the hearing centre and took the Appellant from the hearing centre to hospital.

13. In light of the circumstances, the Appellant was unable to give evidence at her appeal hearing. IJ Sacks subsequently adjourned the hearing until 18 August 2005. The adjournment would enable the representatives to acquire the affidavit evidence from the Mr Amombi in Cameroon. It would also enable further medical evidence to be obtained regarding the Appellant's present medical condition. IJ Sacks specified that any further adjournment request received before 18 August 2005 must be accompanied by a medical report. Hearing proceedings were then terminated.

44. This statement would provide support for both parties in their respective contentions.
45. I turn to the events following the 11 August hearing.
46. On 16 August Dr Wohlrab wrote a letter to Mr Bell of Browell Smith about the appellant's health. The letter reads:

"Thank you very much for keeping me updated about AM.

I was sorry to hear she collapsed in court. As you know she was taken to North Tyneside General Hospital. A& E of North Tyneside General Hospital faxed me a report of 10 pages (not including the cover page).

On arrival at A&E her blood pressure was 199/134.

As you know from my previous report, such a high blood pressure is dangerous. It can cause headaches, heart attacks and strokes.

In the A&E notes it read 'hypertension induced headache secondary to the stress of the day's events'. It also read: 'severe headache triggered by hypertension caused by stress of court admission'.

Without further medication (further to her regular medication), apart from analgesia, the blood pressure settled gradually in A&E to a normal reading of 126/84.

Since this event AM has chest' pain, it is worse in exertion. The pain is perceived behind the sternum, right inside the chest. This definitely sounds cardiac.

Because of her insufficient blood pressure control I am sending her to Professor Wilkinson of the Renal Department Sunderland Royal Hospital for further advice before her planned appointment with him in September. This is only done because her blood pressure proves so difficult to control. Usually blood pressure is handled within primary care (i.e. by the GP).

AM is physically unfit to attend any further court hearings for now. I am afraid for her health and life. She had this collapse in court once. We do not want this to be repeated with a possibly fatal outcome next time. I did experience a man in a stressful discussion collapse and after a few days in intensive care he died."

47. The receipt of that letter led Mr Bell to write a letter dated 17 August:.

"Late yesterday we received a letter from Dr Wohlrab regarding AM's health following her collapse in court on Thursday 11 August 2005.

The court is aware from earlier medical reports regarding AM's serious hypertension problem.

We respectfully ask for an adjournment of this case on the 18 August 2005 for a short period to enable AM to be seen by Professor Wilkinson with a view to control her blood pressure which is dangerously high at the present time. We have today by fax requested Professor Wilkinson to see AM at his earliest convenience and stressed that it would have to be soon.

Dr Wohlrab stated that AM is physically unfit to attend any further court hearings for now. AM would like to give evidence in her case and she would like to be given the opportunity to attend court to prove her case.

As it is possible to control AM's medical condition it is not unreasonable therefore to ask for her case to be adjourned to a later time in September with a view to reviewing her situation again. We shall keep the court informed of AM's appointment with Professor Wilkinson.

Please do not hesitate to contact this office if we can be of further assistance."

48. The application to adjourn was dealt with by a Designated Immigration Judge, Mr Aitken, who refused it by telephone. The AIT sent an order confirming that:

"The application by the Appellant for the adjournment of the hearing of this appeal from 18 August 2005 is refused for the following reason(s):

1. This application does not comply with Practice Direction 9.1 Application must be made on the day."

49. Practice Direction 9.1, we were told, requires any application to adjourn to be made at least twenty four hours in advance of the hearing.
50. Mr Bell in his statement prepared for this hearing said:

"14. On the 17 August 2005 I wrote to Home Office Presenting Unit advising them on our progress in obtaining the signed affidavit from Cameroon (Ex 14).

15. I was concerned that the matter had remained before IJ Sacks on the 18 August 2005 after the earlier incident when the Appellant had collapsed in the Tribunal building. I thought he would have removed himself from the proceedings as he had expressed his doubts over the seriousness of her medical condition prior to the Appellant's illness becoming apparent when she was taken to Accident and Emergency. Please note Brian Craven's statement at paragraph 8, referring to the medical report "IJ Sacks was of the view that some of the contents of this report were supposition..." As a practitioner I felt it was inappropriate for the IJ to retain the .case when he had expressed doubts about the evidence and provoked such a reaction in the Appellant."

51. In the letter Exhibit 14 to his statement, Mr Bell told the HOPO that Amanda Weston was being instructed about the merits of a judicial review application and:

"We have taken witness statements from Mr Amombi and Mr Churchill but it is still in the draft form. We have sent the document back for each witness to read and check for mistakes. As soon as the statements are signed we will forward copies to you and the to the court.

We can however, inform you that both of the witnesses will confirm that they are aware of AM's imprisonment and that Mr Amombi was instructed to obtain bail."

52. I turn now to the important hearing of 18 August when the application to adjourn was refused and the appeal continued in the absence of the appellant, without any evidence (in any form) from the Cameroon witnesses and without the appellant being, in effect, represented. As Mr Sacks had been told Ms McVay was not available on the 18^th. Mr Bell was not qualified to represent the appellant at the hearing- indeed, as we were told, it would have been a criminal offence for him to speak on the appellant's behalf.
53. I start with the statement of Rehana Haque who attended the hearing:

"1. I attended AM's hearing on 18 August 2005 as Counsel who originally had conduct of the case, nor any alternative Counsel was available at such short notice. My colleague Alex Chapman Bell a caseworker at this firm who has full conduct and knowledge of this case was unable to represent the Claimant in court due to the fact that he is yet to be accredited.

2. I have had no involvement or preparation in this case. I had acquired only limited knowledge of this case and was briefed only in respect of the adjournment request.

3. In light of the refusal to Adjourn by the Immigration Judge I did not feel that it was in the interest of justice or fair disposal of the case that this matter proceed without the Appellant's oral evidence."

54. In answer to the witness statements served by the respondent, Mrs Haque made a further statement:

"3. I have had the opportunity to read the statements made by Immigration Judge Lawrence David Sacks, Brian Craven, Loma Bavage, Kelly Swan and Patsy Porter.

4. I would like to point out that I have very limited knowledge of this case, Alex Bell has had full conduct of this case until proceedings commenced in the Higher Courts. We are an extremely busy department and are responsible for our own individual large caseload. Alex Bell requested at very short notice that I represent the Appellant on the 18^th of August 2006 to request adjournment as he was not accredited to do so himself and Counsel Bridget McVay with previous conduct of the case was not available at such short notice. I understand that he was only informed that his written application for an adjournment had been refused late on the afternoon of 17 August. I was due to attend court on 18 August on a CMRH hearing for one of my own cases. Alex Bell attended with me on the day and had indicated to me that he felt that in view of the Appellant's temporary incapacity, that an adjournment should be granted. He provided me with a letter from the appellant's doctor indicating that further specialist treatment was to be arranged.

5. My request for an adjournment was refused for the reasons stated by Mr Sacks in his statement and that the case was to proceed to a full hearing. Mr Sacks said that if I disagreed with his decision then I should judicially review the issue. Thereafter I asked for an adjournment to lodge my Judicial Review and he refused. At this point I stated that I refused to participate in the hearing as it was not in the interest of Justice and fair disposal of the case that the matter proceeded in the Appellants' absence. I was also profoundly concerned that I knew so little about the case that it would simply be against my rules of professional conduct to hold myself out as being competent to conduct the appeal. Asylum appeals raise matters of the utmost importance and demand careful and thorough preparation. This was a very difficult decision for me to take but in good conscience I simply did not feel that it was appropriate for me to step in and try and improvise. Mr Sacks then asked whether I was withdrawing the appeal at which point I said no but reiterated my very difficult position. I disagree with the last sentence in paragraph 17 of Mr Sack's statement. I sought permission to leave the Court to deal with my other CMRH hearing but this was refused by Mr Sacks despite the fact that Alex Bell would remain to take notes. Please refer to Ms Bavage's hand written notes of the proceedings on the day.

6. At the end of the hearing following Ms Bavage's closing submissions, Mr Sacks again gave me the opportunity to make submissions on behalf of the Appellant to which I again re-iterated my position and added that the Appellant as a result of her absence has not been given the opportunity to address the credibility issues raised by the Home Office in their submissions. I have to admit to being somewhat flabbergasted by the approach taken by the judge in the face of what I had felt were carefully explained and conscientious reasons for being unable to conduct the appeal. I cannot understand how the learned Immigration Judge felt it was just or desirable for someone who was attending on an emergency basis to deal with an adjournment application only and who therefore had little knowledge of the case, to make submissions on it. I confirm that I have at all times acted mindful of my professional obligations to the court and the firm's client."

55. Mr Bell wrote in a statement prepared for this Court:

"18. In relation to the hearing on the 18 August 2005, my colleague Rehana Haque, an accredited immigration solicitor (who was attending another matter), was instructed to attend the Tribunal to make a further application for an adjournment because the Appellant could not attend because of ill health. I had faxed a letter to the Tribunal on the 17 August 2005 (Ex 5). My request was refused (Ex 11).

19. Rehana Haque had no knowledge of the matter in detail and she would not have been able to represent the Appellant adequately, especially when the Appellant was not there. I was not in a position to represent the Appellant because I was not accredited at that time. I had just returned to work after a very serious illness. I was exempted from the accreditation examination briefly with the permission of the L.S.C. However, I was able to gain my accreditation from the 13 October 2005(Exs9&10).

20. On the 18 August IJ Sacks said that if we disagreed with him we should Judicially Review his decision. After making this comment Rehana Haque made a request for an adjournment to lodge a Judicial Review application but again this was refused. Rehana Haque submitted that this was not a fair hearing.

21. I believe our client should have been allowed to give evidence at her appeal hearing. Our client expressed to us her very strong wish to give evidence as soon as she was fit to do so. In view of what has happened at the tribunal previously I had hoped and believed that the Immigration Judge would be allowing a reasonable period of adjournment to enable the Appellant to recover from her illness and for her medication to take effect and control her blood pressure. Rehana Haque and I were very surprised when our application was refused."

56. The HOPO, Lorna Bavage, wrote in her statement:

"3. I was the Presenting Officer at the appeal hearing of AM, the Appellant, on the 18 August 2005 before Immigration Judge Sacks. At this hearing, the Appellant's representative, Ms Haque of Counsel, sought an adjournment on the ground of the Appellant's ill health. I opposed this adjournment on the basis that the evidence provided by her GP provided no indication as to when the Appellant would be fit to give evidence and it was therefore unclear what purpose an adjournment would serve.

4. The Immigration Judge refused the application for an adjournment. At that point, Counsel indicated to the court that she would no longer participate in the proceedings. When asked by the Judge whether this meant that the Appellant was withdrawing her appeal, Counsel answered in the negative but reconfirmed that she would not be participating further. The Judge asked that their position be reconsidered but Counsel for the Appellant remained adamant and declined to participate any further.

The hearing therefore proceeded on the papers and, as Presenting Officer, I made oral submissions. The Judge then gave the Appellant's representative a further opportunity to make oral representations. She again declined to do so, citing the reasons for her refusal, namely that to proceed without the Appellant giving oral evidence was not in the interest of justice. The Judge gave the Appellant one final opportunity to respond before reserving his decision.

57. Patsy Porter, the court clerk, wrote:

6. On 18 August 2005 I was the designated court clerk for Immigration Judge Sacks who was presiding over the Appeal. I was informed by Miss Haque, counsel for the appellant, that the Appellant would not be attending court on that day due to her illness and that they would be submitting an application for the adjournment at the hearing due to this. I informed Judge Sacks of the situation and then gathered counsel for the Appellant, Mr Bell (the Appellant's solicitor) and Ms Bavage (Home Office Presenting Officer) into court.

7. The hearing commenced and the representatives submitted an application to adjourn the hearing due to their client not being present. Judge Sacks dismissed this application and informed all parties that the hearing was to proceed. The representatives at this point informed the Judge that they would take no part if the proceedings were to continue. The Judge then asked the representatives if they were withdrawing the appeal and they stated that they were not. Judge Sacks then invited the Home Office Presenting Officer to give her submissions. During this time Miss Haque stood up and informed Judge Sacks that she was going to deal with a CMR in another court. Judge Sacks informed Miss Haque that she was instructed to deal with this case and that she would remain in this court until the case had concluded. During the hearing neither Miss Haque nor Mr Bell made any submissions on behalf of the Appellant. The hearing concluded after the Home Office submissions.

8. The proceedings were unusual and I remember them because it is the first and indeed only time I have seen the representatives turn up then refuse to take part, although I have seen occasions when a representative has withdrawn. There was nothing overbearing or ill tempered in Mr Sacks' manner when he dealt with the case."

58. Mr Sacks in his witness statement wrote:

8. There was an application on 17 August 2005 to adjourn. This was not dealt with by myself. I believe it was dealt with by the Designated Immigration Judge, Mr John Aitken, who refused the application by telephone. The application was renewed on 18^th August 2005 and again refused by me. Having considered all the medical evidence that was on the file and having decided that it was sufficient for me to be fully aware of the Appellant's medical condition, I considered that the evidence within the file, including all statements by the Appellant, all documentary evidence, all the objective evidence and all other relevant documents enabled me to deal with this appeal in the absence of the Appellant without, in my opinion, the Appellant being prejudiced.

9. In reaching this decision I had regard to the fact that the medical evidence indicated that no definite date could be given as to when, or if, the Appellant would be fit to attend court at any adjourned hearing. I considered that it was in the interests of none of the parties for this matter to remain outstanding indefinitely, and felt that in view of the fact that there was little likelihood of the Appellant being pronounced fit to attend the hearing in the imminent future, the only course open to me was to proceed to deal with the matter which I proceeded to do.

…..

17. With regard to the disposal of this matter on 18^th August 2005,1 must state that I was extremely surprised by the attitude taken by those representing the Appellant on that occasion, in that they chose to withdraw their representation of the Appellant on my advising them of my intention to proceed notwithstanding the non-attendance of the Appellant. Having withdrawn representation, they then remained in the court to make a note of what then transpired in the hearing of the case."

59. In his Determination and Reasons Mr Sacks wrote:

16. The appeal appeared before me again on 18¹ August 2005. A medical report from Dr Christian Wohlrab dated 16^fh August 2005 was produced. The matter had earlier appeared before Designated Immigrated Judge Aitken on 17 August 2005 when he refused an application to adjourn because such application did not comply with practice direction 9.1. The application to adjourn was repeated by the Appellant's solicitors based on the medical report from Dr Wohlrab of 16^th August 2005. I was advised that the Appellant was unwell, unable to attend court and wished to give evidence. I read carefully Dr Wohlrab's report. His conclusion was that the Appellant was physically unfit to attend any further court hearings for now. He did not give any indication when he considered that she may be fit to attend a future hearing, which presumably would only be when or if the Appellant's blood pressure became controlled.

17. I considered the Appellant's request to adjourn and rejected it. The Appellant had been suffering from her blood pressure problems for at least the last two years. There was no indication when or if she would be fit to attend a hearing. In view of the uncertainty, I decided that the case should proceed to be dealt with on the papers and submissions. I was satisfied that the papers contained sufficient evidence and arguments to allow me to decide the issues fairly and without prejudicing the Appellant in any way.

18. At this stage the Appellant's representative indicated that having regard to my refusal to adjourn, that whilst they were not withdrawing from the court, they did not intend to take any further part in these proceedings, and would not be making any submissions or presenting any arguments on the Appellant's behalf. The Appellant's representative did not consider that it was in the interests of justice or a fair disposal of the case that the hearing go ahead in the absence of the Appellant being given an opportunity to give evidence. At this point, I invited the Appellant's representative to reconsider the stand that they had taken which I did not consider was in the best interest of their client. The Appellant's representative 'maintained a position on behalf of the Appellant, and at that point I decided, having carefully read the file, that the evidence and issues were clearly identified and presented no problem in me hearing and fairly disposing of the matter at the hearing.

60. In his conclusions Mr Sacks wrote:

"50....

c) I am satisfied that the medical evidence that has been produced to me from Dr Wohlrab gives an accurate assessment of the Appellant's medical condition. I am further satisfied that the Appellant has been suffering her present problems for the last two years, and that there appears to be no resolution to the problems, and that the future prognosis is uncertain. The medical evidence confirms that until further examination of the client has taken place, and possible further treatment, it would be unwise for her to give evidence in any hearing. This of itself satisfies me that the decision to proceed in the absence of the Appellant was a right and proper decision to make, there being no realistic prospect of a future date being identified when the Appellant would be available to give evidence in this case. To adjourn a case indefinitely for this reason is highly unsatisfactory and is the basis of the reasoning behind my refusal to allow an indefinite adjournment for the purposes of the Appellant to give evidence.

s) This is an unusual case in that because of my refusal to grant the Appellant an adjournment on 18^th August 2005 to enable her to give evidence, the Appellant's representatives, whilst not withdrawing from representing the Appellant, declined to take any active part in the proceedings before me on 18^th August. They did not raise any challenges or make any submissions on their client's behalf. The issue that they take is that the Appellant has been denied the opportunity to give evidence. I am satisfied however, having considered in great detail the papers that were before me, that there was more than sufficient information contained within those papers to enable me to fairly and justly deal with the Appellant's evidence. The Appellant's representatives did not indicate to me what issues they . considered clarification was required on. I do not consider that I have in any way been prejudiced by the fact that I have not heard directly from the Appellant. There is more than adequate evidence contained within the file to, as I have previously stated, enable me to deal with this case equitably and justly. I do not consider that this Appellant has in any way been prejudiced. In any event, I could not have permitted a situation to exist whereby I would be granting an adjournment without being aware of when or if indeed this case could have hoped to have been heard. The Appellant has been suffering from her existing condition for the past two years without improvement, there is no suggestion of what treatment she is likely to receive, whether that treatment will be successful, and whether that treatment would have enabled her to be fit enough to give evidence. The risks of the Appellant giving evidence have been clearly identified in the medical report. It is having regard to these risks that I have come to the conclusion that the best way forward for this matter would be to deal with the appeal on the evidence that is contained in the file. It is unfortunate that the Appellant's solicitors did not agree with this course of action and assist me by presenting arguments on her behalf and making the appropriate submissions. This was their choice, however, with which I cannot argue."

61. It is sufficient for present purposes to say that Mr Sacks on the material available to him found the appellant not to be a credible witness. In particular he did not find her account of her arrest, detention and escape credible.
62. It seems to me to be arguable that the conclusion of Mr Sacks that he "was satisfied that the papers contained sufficient evidence and arguments to allow me to decide the issues fairly and without prejudicing the Appellant in any way" is a conclusion that no reasonable judge could reach. Given that the letter of 17 August asked "for her case to be adjourned to a later time in September with a view to reviewing her situation again" and given the inevitable outcome of the appeal if the appellant did not give or call evidence, it is arguable that Mr Sacks was wrong to refuse an adjournment.
63. It is arguable that Rehana Haque was right to refuse to take part in the proceedings - anyone who has had any connection with asylum and associated human rights claims knows how complex they can be. I shall assume, for the purposes of this application, that Rehana Haque ought to have put before Mr Sacks the draft statements, explain why the affidavits Were not ready and apply for permission to serve them late. Even if that be right and even if Mr Sacks would have granted the application, it arguably does not affect the proposition that the appellant was not given a fair hearing. Taking an overview of the case, it seems to me to be arguable that Mr Sacks was not giving the appeal "the anxious scrutiny" that it required.
64. The Determination and Reasons were, the front sheet states, prepared on 18 August. Mr Sacks must have later added the passage about the receipt of the affidavits which he refused to consider.
65. The Determination and Reasons were served on the appellant on or about 7 September. This according to Katherine Henderson, solicitor and Head of the Immigration Department at Browell Smith, was an unusual course and led, she says, to the late filing of the application for reconsideration.
66. I add that Mr Bell, in a statement prepared for this Court, wrote:

"15. I was concerned that the matter had remained before IJ Sacks on the 18 August 2005 after the earlier incident when the Appellant had collapsed in the Tribunal building. I thought he would have removed himself from the proceedings as he had expressed his doubts over the seriousness of her medical condition prior to the Appellant's illness becoming apparent when she was taken to Accident and Emergency. Please note Brian Craven's statement at paragraph 8, referring to the medical report "IJ Sacks was of the view that some of the contents of this report were supposition...' As a practitioner I felt it was inappropriate for the IJ to retain the case when he had expressed doubts about the evidence and provoked such a reaction in the Appellant."

67. On 30 August 2005 Browell Smith made a formal complaint to the DCA about the conduct of Mr Sacks.
68. I turn to the issue of the affidavits which were not considered by Mr Sacks in reaching his conclusion.
69. As to the affidavits Mr Bell in a further statement said:

"6. The witnesses in Cameroon were asked to prepare their affidavits for the hearing on the 11 August 2005. I cannot be sure when the draft affidavits arrived by e-mail. However, I have a letter of which I wrote to Home Office Presenting Officer 17 August informing them of the contents of the affidavit. I believe the draft only came to this office on the 17 August 2005 for checking. On the 19 August 2005 I believe I received an e-mail with an attached scanned copy of the signed affidavits of which I immediately forwarded to the Tribunal for consideration (Ex 12)."

70. Mr Bell said that when on the 19 August 2005 he faxed a copy of the signed affidavits he did so for the attention of the Immigration Judge. There was, he said, no response. 19 August was a Friday. As I shall show below, Mr Sacks says that he received them on 22 August, which was a Monday.
71. In his decision Mr Sacks said about the affidavits:

"19. There was no application made at the hearing for me to receive late evidence. Despite this, a fax was received from Broweil Smith and Co on 22" August 2005 enclosing what they claimed to be affidavits from two people in Cameroon. In the covering fax they invited me to adjourn my consideration of the case, and once again they asked me to receive evidence by telephone link, an application for which had already been refused. A decision on these issues had been made by me following arguments from both sides at the hearing on 18^th August 2005. Accordingly, I do not consider it appropriate to take heed of these documents submitted without permission after the hearing.

….

50 d) There was no application made at the hearing for me to receive late evidence. Despite this, a fax was received from Browell Smith and Co on 22^nd August 2005 enclosing what they claimed to be affidavits from two people in Cameroon. In the covering fax they invited me to adjourn my consideration of the case, and once again they asked me to receive evidence by telephone link, and application for which had already been refused. A decision on these issues had been made by me following arguments from both sides at the hearing on 18 August 2005. Accordingly, I do not consider it appropriate to take heed of these documents submitted without permission after the hearing."

72. Both affidavits appear to be dated 18 August.
73. In his affidavit the barrister, Mr Amombi, wrote:

"I, Ambo Daniel Amombi, adult male Cameroonian Barrister, Solicitor and Notary Public of the Supreme Courts of Nigeria and Cameroon, and Partner in the Ngenko Law Firm with headquarters along the Commonwealth Avenue Kumba, PO Box 459 Kumba, do make oath and state as follows:

1. That I am holder of a Bachelor's Degree (LLB Hons) in Law from the University of Yaonde, Cameroon (1992) and also a Law graduate from the Nigerian Law School Aduja (BL Hons.), and was sworn into the Abuja Branch of the Nigerian Bar Association in September 1999.

2. That I was sworn into the Cameroon Bar Association on April 14, 2000, and hold membership No. 805 on the roll of Practicing Advocates in Cameroon for the 2004 Judicial year.

3. That I am also the Board Chairman of the Youths for Peace Initiative Cameroon, YPIC, (a national NGO on Peace building through human rights and democracy) with headquarters in Kumba YPIC is registered number G39/D14/5/1006 of November 1,2004.

4. That I have worked as Legal Adviser for the Human Rights Defence Group - Southwest Office (HRDG/SWP) in Kumba from 2000 to 2004, and continue to offer my assistance to the group. HRDG is registered as an NGO No. E29/1111 /Vol6/400/APP and has its head quarters in Bamenda in the Northwest Province of Cameroon.

5. That my responsibilities to the HRDG were to offer free legal counselling to the organization and victims of rights violations. I intervened in many cases to seek the release of some unlawfully detained persons from the prison, police and gendarmerie cells in Kumba.

6. That I have, at the instance of the HRDG/SWP, intervened on many cases to address the detention of SCNC Militants.

7. That most detained SCNC militant are hardly ever charged with an offence and are kept in prolonged pretrial detention on administrative orders of District Officers, Senior Divisional Officers and Governors.

8. That sometime in October 2001, I was contacted by the. HRDG/SWP Coordinator Mr Samba Churchill about the arrest and detention of some SCNC militants. We visited the Kumba Prisons where they were detained and discovered that some of them, including AM were arrested in the place of their relations, who are SCNC activists. I did not meet AM personally and had no particular interest in her individual case.

9. That I contacted the Senior State Counsel of Meme Judicial Division, Mrs Vera Ngassa, to demand the reason for the arrest of all the 'SCNC militants', and ask for their release on bail. She told me that she was not aware of their arrest and detention and could not order for their release.

10. That I contacted the Prison Superintendent and they informed me that the militants were brought to the prison on the orders of the SDO for Meme Division, I then contacted the SDO especially about the plight of four persons, including AM, arrested in the place of their relations. The SDO said the militants were being held for 'hostilities against the fatherland', meaning Cameroon, and that AM and the three others could only be released if the targeted relations showed up.

11. That I reported this to Mr Samba Churchill and he wrote a petition to the SDO to unconditionally release all the detained persons, or charge them with an offence. The SDO insisted that he had the right to arrest and detain persons for 15 days renewable, citing Section two of Law No 90/054 of December 19 1990 on the maintenance of law and order that empowered him to 'take measures to detain persons for a renewable period of 15 days'.

12. That Mr Samba reminded the SDO of article 45 of the Cameroon Constitution to the effect that all duly ratified international treaties shall following their publication override national laws, and inferred from the International Covenant on Civil and Political Rights (ICCPR) that all arrested and detained person ought to be charged with a penal offence and that due process of law ought to be respected at all times.

13. That Mr Samba later informed me that all his pleas fell on deaf ears.

14. That I am not particularly aware of how AM escaped from the prison and only heard about the escape of some of the detained person from Mr Samba Churchill. I also learnt of the release of the others from him.

15. That I swear to the aforementioned facts to be true to the best of my knowledge and information."

74. Mr Churchill's affidavit reads as follows:

I, Samba Churchill, certify the following,

1. I am a Cameroonian citizen who currently resides in Kumba, Cameroon. I am holder of a Diploma from the Cameroon Institute of Journalism in Limbe.

2. I am the Chief Executive Officer of the Youths for Peace Initiative Cameroon. A not for profit making non governmental organisation registered No G39/14/5/10006 on November 1 2004. See www.vpicm.ora.

3. I have worked as Coordinator of the Southwest office of Human Rights Defence Group (HRDG) in Kumba from July 1999, and I am still acting Coordinator of the Organisation.

4. HRDG was created in 1995 for the promotion and protection of human rights. The Danish Immigration Service reported, 'HRDG is a credible and serious human rights organization', (the Danish Immigration Service fact-finding mission to Cameroon (2001) (§ 5.1.1) and (§ 6.1.4)). Its mission is to foster a democratic and human rights culture in Cameroon. HRDG is one of Cameroon's most active human rights organizations, and we have worked closely with Amnesty International to compile reports of human rights abuses in Cameroon. I lead an office of five university-educated human rights activists who investigate government practices and examine their legality in the context of the Cameroon Constitution, the African Human Rights Charter and International Protocols such as the ICCPR (International Covenant on Civil and Political Rights).

5. As part of my responsibilities for HRDG, I held seminars for rural community members and police officers to educate them on constitutional rights. Because I work to educate police officers, and visit their cells regularly to seek the release of illegally detained persons, I have gathered a wealth of information on police and gendarmes' tactics and human rights abuses.

6. I am also the Editor-in-Chief of 'The Freedom Forum,' the official newsletter of HRDG, which reports, amongst others, human rights violations such as detention, torture, and 'disappearance' perpetrated by the government. As Editor-in-Chief, I have published numerous articles on detention and even outright killing of SCNC (Southern Cameroons National Council) activists and supporters.

7. I am also the Secretary of the Cameroon Association of English Speaking Journalists, (CAMASEJ) for its Meme Divisional Chapter.

8. Before joining the HRDG, I had worked as correspondent for various newspapers and was one of the founding reporters of Cameroon's leading English bi-weekly newspapers, The Post (See www.postline.com)

9. I am also Editorial Assistant of a national weekly publication, Express newspaper, with Headquarters in Kumba, and I write most of the editorials addressing country political situations such as the SCNC and elections.

10. In much of Cameroon, you must forget SCNC unless you want to disappear. Government officials can detain SCNC members indefinitely with impunity. In Douala and Yaounde, for example, Anglophones are prisoners of conscience and rarely express their opinion or sympathy to the SCNC even though they are provoked daily. There are many cases of Anglophones being held in Kondengui Maximum Security Prison and Douala New Bell prison on trumped-up charges.

11. The government also operates under the assumption of guilt by association, if one's family members and friends are SCNC then one is likely to be placed under Surveillance and harassed by government security operatives. In October 2001, Police and Gendarmes arrested the wife of Isaac Mbohbako Sona, SCNC Southern Zonal Chairman, and his son when they visited his house and could not find him. The two were detained in the Kumba police station for two days and only released when the HRDG and some diplomatic sources intervened.

12. I am aware of the arrest and detention of AM by police in Kumba, after the October 1, 2001 incident. She was arrested in the place of her husband, who was said to have disappeared after arrested SCNC militants, after torture, allegedly gave his name as the driver that transported them to Kumbo for the 40^th anniversary celebrations of the Southern Cameroons Independence.

13. The HRDG intervened to secure her release amongst others on bail to no avail, as police authorities insisted that her detention was administrative and that she could only be released on the orders of the SDO for Meme.

14. The SDO told HRDG Field workers that he could only release AM if her husband gave up himself.

15. A police confidante later informed me that they conducted a search of the family residence and found 'subversive and seditious documents and materials', referring to SCNC literature, flags, banners etc.

16. I later learnt of the escape of AM and others from the Kumba prison and thought it was a lie, fearing that she could have been jettisoned to the Kondengui Maximum security prison in Yaounde.

17. Many times arrested notorious SCNC militants are taken from the English parts of Cameroon, where they are arrested, and detained in the French parts to.be tried under civil law procedures that are quite alien to their common law background, and without any guarantee of an impartial trial.

18. Prison conditions in Cameroon, generally,- are horrible and inmates are often afflicted with diseases such as tuberculosis, dysentery, diarrhoea, limp paralysis, body rashes and scabies etc.

19. Most prison inmates are poorly fed and most often denied visitation from their relations, while prison medical facilities lack even basic drugs for cold.

20. I am aware of many cases of deaths of detained persons in prisons due to the horrible conditions, and sometimes due to torture,

21. I am aware of the deaths of many SCNC activists in prisons in French-speaking parts of Cameroon Mr Titahonjio Mathew, a teacher in Ndop and Social Democratic Front (SDF) party electoral district Chairman died in early 2001 in the Bafoussam Prison where he was awaiting trial after arrested in Ndop, for alleged SCNC involvement. Daniel Ntanen, another SCNC activist died in the Kondengui Maximum security prison in Yaounde on April 30, 2003, at age 31. Much recently, Julius Ngu Ndi, an SCNC activist also died in the Kondengui prison. On January 3, 2005, an Anglophone activist, Sunday Kula Nya, was beaten to death allegedly by special proteges of the administration in the Douala New Bell Prison.

23. Failed asylum seekers extradited to Cameroon usually go through so much torture and prolonged detention without any charges levelled against them.

24. Against the foregone, I am of the considered opinion that AM is likely to suffer untold hardship in the place of her husband if sent back to Cameroon at this junction.

I Samba Churchill Chifu, declare under penalty of perjury under the laws of the United Kingdom that the foregoing is true and correct."

75. On 25 August 2005 (after the hearing but before the promulgation of the decision) the appellant lodged a claim for judicial review of the interlocutory decisions made by Mr Sacks, namely the decisions refusing to allow oral evidence by phone, refusing to grant adjournment for such evidence and refusing to grant adjournment for the appellant to give live evidence. An application was made for a stay of the proceedings and an application for urgent consideration. On 29 August, the papers were served on the respondent and on the SSHD as an interested party.
76. Following the serving of the decision of Mr Sacks upon the appellant personally, Browell Smith made an application for reconsideration. That was considered by Mr Lane, senior immigration judge. He dismissed the application writing:

"1. The application was made outside the period specified in section 103A of the Nationality, Immigration and Asylum Act 2002. The determination is marked "served in person by Sarah Brown at North Shields Reporting Centre" and bears the date stamp "07 SEP 2005". The last day on which an application could be made was thus 14 September but the application was not filed until 19 September, having been posted on 16 September.

2. No reasons have been given as to why it was not reasonably practicable to have made the application in time nor is there anything to suggest that this might be the case. The appellant is said to have high blood. pressure but this has not precluded her from instructing representatives to challenge (by judicial review) the Immigration Judge's decision not to adjourn the appeal hearing or to make the section 103 A application itself.

3. Even if the application had been made in time, I would not have ordered reconsideration. The Immigration Judge did not act perversely or otherwise unlawfully in concluding at paragraphs 13 to 17 of the determination that he would proceed in the appellant's absence or to refuse to admit the evidence referred to at paragraph 19. The Immigration Judge's findings of fact were open to him as a matter of law.

4. Time is not extended under section 103A(4)(b) and there is accordingly no valid application under that section."

77. Ms Henderson of Browell Smith explains why the application was late. She thought that, in the normal way, it had been served by post on Browell Smith and that time ran from then. In any event, as she says, it is not clear from the Determination and Reasons when it was served on the appellant. The date of Promulgation is "07 Sep 2005", which has been inserted, so it appears, using a date stamp. Underneath are the words: "Served in Person at North Shields Reporting Centre". No date is given for the service. Ms Henderson was unaware that the application might be out of time. She wrote in a statement for these proceedings:

"1. I note from the file that AM was served in person at North Shields Reporting Centre. I have identified this by the handwritten note but this only gives the date the determination was promulgated. There is no evidence as to the specific date AM was served.

2. None of our clients have ever been served a Notice of Determination in person in the last four years. It is not simply a matter of it being an unusual step to take for it to be served personally by the Home Office, it is simply unique in terms of the determinations received at this office.

3. I have asked a colleague of mine to call other solicitors firms in the region. To date no other solicitors firm is aware of asylum determinations being hand delivered. We have contacted Brar & Company (based in Newcastle), David Gray Solicitors (based in Newcastle, and Donnelly Adamson Solicitors (based in Middlesbrough), none of these firms have any clients whose determinations were delivered in person.

4. We normally receive the determinations by post. We received a copy of this determination by post and therefore assumed that it was being served in this normal way. We have not been given any satisfactory reasons to date why this particular client was served by this most unusual method."

78. On 14 September Hodge J considered the application for a stay on paper and refused it. There is no material before us to explain why the application was not placed before a High Court Judge on or very shortly after its receipt by the Administrative court on 25 August. Hodge J wrote:

"When this application reached me I enquired of the Asylum and Immigration Tribunal if the determination of the Immigration Judge who heard this case on 18^th August 2005 had been promulgated. I was told it had been and that the appeal had been dismissed. I have not seen the determination of the Immigration Judge.

There is therefore nothing to stay as asked for in the application for urgent consideration.

I was also told by the Asylum and Immigration Tribunal that there appeared to be no application for a reconsideration filed.

It may well be arguable that the Immigration Judge was wrong in law in the way he dealt with this case. A decision will have to await the acknowledgment of service. But the case may also raise the issue of whether the appropriate way to challenge decisions such as were made in this case by the Immigration Judge is by judicial review or by following the more obvious route of applying for a reconsideration."

79. The application for permission to apply for judicial review was considered on the papers by Beatson J. He ordered that the application should be listed for oral hearing on notice to the defendant and interested party. The order was sent to Browell Smith on 10 October. Beatson J wrote:

"1. Ms McVay's note of the proceedings on 11 August state that the Immigration Judge states that if there was dissatisfaction with the case management decisions they should have been judicially reviewed (paragraphs 8 and 10). Neither this nor what is said about the Judge's behaviour is contradicted in the defendant's summary grounds of defence. The Judge's statement about how challenges should be made would appear to make this case materially different from the case of M and G. The defendant's summary grounds of resistance do not address the question of why, notwithstanding this distinction, lodging an application for judicial review on 8 September constituted an abuse of process.

2. There is no application before me of the decision of the Senior Immigration Judge not to reconsider the Tribunal decision. If there is one pending it would be appropriate for it to be considered at the same time as the application to move for judicial review."

80. On the next day, . 11 October, Browell Smith wrote a letter to the Administrative Court drawing attention to the last paragraph of the observations of Beatson J. The letter was marked for the attention of Beatson J and was sent by special delivery.
81. Most unfortunately what Beatson J wanted to happen (and what so it seems to me should have happened) did not happen. The application to the High Court under the statutory review procedure for an order requiring reconsideration was not linked with the oral application on notice for permission which Beatson J had ordered.
82. Bean J considered the application to the High Court under the statutory review procedure on 11 November, a month after the order of Beatson J. Bean J refused the application, writing:

"1. I do not consider that the Immigration Judge committed what counsel for the Applicant sees fit to describe a "flagrant breach of natural justice involving judicial conduct prejudicial to the interest of justice". On the contrary:

(a) the judge had given directions on 28^th July refusing permission for a telephone link to receive evidence from a barrister in Cameroon; he was well entitled to do so.

(b) Nevertheless that matter was reargued on 11 August, with the same outcome.

(c) An adjournment request was made to obtain an affidavit from the witness which could and should have been obtained in the intervening fortnight, and was quite rightly refused.

(d) The Appellant felt unwell and was taken to hospital and an adjournment was granted.

(e) At the adjourned hearing two reports from a GP were produced. The first (9^th August) sets out the serious consequences which a hypertensive patient can suffer if treatment is withheld; for present purposes irrelevant. It asks that stress be avoided when she attends court. The second (16^th August) records that on arrival at A&E on 11^th August her blood pressure, was 199/134, within the range of hypertensive crisis as defined in the first report, but settled to a normal reading without medication. The GP expresses the opinion that she is unfit "for now" to attend any further court hearings. He gives no indication as to when, if ever, that will change.

2. The Immigration Judge was faced with a very difficult decision as to whether to deal with the case on the papers and submissions. It was within his discretion to do so and I find no error of law in his decision. His treatment of the medical evidence at para. 50(c) is impeccable.

3. The Applicant's representatives then refused to take any part in the hearing. If this was without the prior instructions of their client it seems to me prima facie unprofessional behaviour. I will assume in their favour that they were acting on instructions. In that event the Appellant must take the consequences.

4. On the material before him the Immigration Judge was entitled to make the adverse credibility findings which he did in para. 50. There is no arguable error of law in his conclusions."

83. The assumption made by Bean J in paragraph 3 that the appellant instructed her solicitors not to take part in the proceedings does not appear to be right. It is contradicted by the statements to which I have made reference and we were told by Mr Rabinder Singh QC that no such instructions had been given. I note also that Bean J, like Mr Sacks, did not refer to the letter of 17 August from Browell Smith which "respectfully asked for an adjournment of this case on the 18 August 2005 for a short period" and stating that "it is not unreasonable therefore to ask for her case to be adjourned to a later time in September with a view to reviewing her situation again".. Bean J makes no reference to the judicial review proceedings, to which there was reference in the papers before him. He apparently did not know about the order of Beatson J. I say "apparently" because I am not entirely certain about which documents Bean J had in front of him.
84. The test which Bean J had to apply was: "May there have been an error of law made by the Immigration Judge at the pre-hearing stage or in his conclusions on the merits?"
85. For some reason a copy of the order of Bean J apparently reached Browell Smith only some time later. By letter of 15 December Browell Smith wrote to the High Court, for the attention of Judith Nicholson:

"... we are naturally concerned to learn that the matter was not linked with our client's outstanding JR application which is now listed for hearing on the 19 December 2005. My office has specifically informed the court the wishes of Honourable Mr Beatson to have the matter before him. I am also attaching our letter dated 11^th October 2005 for your information."

86. The application for permission to apply for judicial review was heard and refused by Stanley Burnton J on 19 December 2005. The transcript reads:

"1. MR JUSTICE STANLEY BURNTON: This is an application for permission to bring judicial review proceedings in respect of interlocutory decisions made by an immigration judge, Mr L D Sacks, in the course of his consideration of the claim for asylum by the present claimant, AM, a citizen of Cameroon. It is unnecessary for the purposes of my decision to consider the substance of the complaints made in respect of Mr Sacks' decisions. Ultimately, he rejected the claim.

2. The claimant sought reconsideration under section 103A which was rejected by the senior immigration judge and reconsideration was sought again by the High Court. On 10th November 2005 Bean J made an order on the papers, necessarily, rejecting the application for reconsideration of Mr Sacks' decision under the present statutory regime.

3. It is clear that there were genuine complaints about Mr Sacks' procedure and these proceedings were begun before he had made his final decision, so at that date only his interlocutory decisions and determinations had been made and therefore the judicial review proceedings could apply to them. It follows, however, that if he had made decisions which were unfair and which were unfairly prejudicial to the claim for asylum, his substantive decision would be liable to be set aside by the judicial review proceedings or under section 103 A, because his procedural errors would constitute errors of law.

4. As appears from what I have already said, there have been two sets of proceedings commenced by AM to challenge, in practice, the decision of Mr Sacks; namely judicial review proceedings and proceedings under section 103 A. The Tribunal has appeared today by Miss Broadfoot to challenge the judicial review proceedings on the basis that they constitute an abuse of the process of the court, or are otherwise inappropriate in a case such as the present. She relies on the decisions of the Court of Appeal in M and G [2004] EWCA Civ 1731, and the more recent decision of Andrew Collins J in Y [2005] EWHC 2845.

5. The procedure laid down under section 103A of the Nationality, Immigration and Asylum Act 2002 clearly is intended to be the normal procedure available to any applicant who is disappointed by a decision of the Asylum and Immigration Tribunal. It restricts the challenge to errors of law and restricts the number of occasions in which an order may be made for reconsideration; that is to say, in relation to any appeal an order can only be made once (see section 103A(2)). The Act imposes very stringent time limits for the making of an application for reconsideration. Manifestly, section 103A was introduced by Parliament with a view to expediting consideration of asylum claims to the appeals system. It is, I think, accepted by Miss Weston on behalf of the claimant that in the normal course it would be inappropriate, and possibly an abuse of the court, to seek to challenge a decision of the Tribunal which is open to the section 103A procedure by means of judicial review. Judicial review is,' in general, but particularly in this context, an exceptional remedy.

6. The question for me is whether, in the circumstances of this case, that exception has been established so as to justify judicial review proceedings.

7. As I have already stated, material procedural errors which may have affected a determination of the Tribunal will be now regarded as errors of law which should lead to an order for the reconsideration of the immigration judge's decision. Miss Weston contends that in a case such as the present evidence would be required in order to establish whether or not there were material procedural errors or defects in procedure before the immigration judge: demonstration of bias, unfairness, exclusion of admissible evidence and the like. However, if seems to me that where such allegations are made, it is open to an appellant ~ that is to say someone seeking reconsideration ~ to put before the senior immigration judge and the Court of Appeal the evidence on which he or she relies in order to establish those procedural errors, as indeed occurred in the present case. I do not see that the procedure under section 103 A is inappropriate to deal with complaints such as those made in the present case.

8. Furthermore, I am considerably troubled by the fact that if I were to give permission in this case the matter would come before a High Court judge who would, in effect, be asked to rule that Bean J, who refused reconsideration and gave substantial reasons for doing so, was in error. It can be only in the most extreme circumstances, if ever, that one High Court judge dealing with the same, case and the same complaints as another could be invited to come to a different conclusion. If I were to give permission in this case, it seems to me that if I were to hear the substantive claim I should be sitting as a Court of Appeal from the decision of Bean J. Bean J had before him the complaints of breach of natural justice and unfairness. He examined them to see whether they were arguable and ruled that they were not. Complaints may be made about the conclusion that he reached, but it is inappropriate for such a complaint to be made to another High Court judge and Parliament has stipulated that his decision is, in any event, final.

9. It seems to me that this case is not distinguishable from the general rule as stated by the Court of Appeal in G. It is unnecessary for me to find that these proceedings are an abuse of the process. It is sufficient for me to say that in the circumstances of a case such as the present, it is inappropriate for permission to challenge the decision of the immigration judge by way of judicial review to be granted.

10. I would add that although these judicial review proceedings concerned interlocutory decisions, in due course one would have expected the substantive decision also to be challenged. Generally it is inappropriate to challenge interlocutory decisions. A party complaining of those decisions is normally required to await the substantive decision. I have not considered the merits of the procedural complaints made in this case. I appreciate that those complaints are complaints which are strongly held but, having regard to the statutory regime and the authorities' which it seems to me have considered the position, for material purposes, I refuse permission.

11. MISS WESTON: My Lord, I simply remind the court that the immigration judge did invite the claimant to seek interlocutory judicial review. When one considers whether it is an abuse of process one has to consider that.

12. MR JUSTICE STANLEY BURNTON: Perhaps I should add something. I am reminded that the immigration judge himself suggested judicial review of the interlocutory decisions we have made. It seems to me that he erred in that respect, but it does mean, that those representing the claimant are not to be faulted in the same way for having sought to do so. I have no doubt also that they brought proceedings rapidly because they were concerned that there has been an injustice."

87. It should be noted that Stanley Burnton J said: "I have not considered the merits of the procedural complaints made in this case."
88. The application for permission to appeal the decision was refused on paper by Neuberger LJ. The renewed application was heard by Mummery LJ and Wilson LJ. It is sufficient to say that it is clear from the judgments that they had considerable concerns about what had happened.
89. On the material put before this Court by the appellant, unchallenged as it is at this stage of the proceedings, it is in my view strongly arguable that the appellant did not enjoy a procedurally fair appeal to which she was entitled. Indeed it is strongly arguable that there was gross procedural unfairness in the manner in which the appellant's appeal from the decision of the SSHD was handled.
90. On the papers it is strongly arguable that this lack of fairness was not her responsibility. If she had received a procedurally fair appeal, it is strongly arguable that the result of her appeal might well have been different. I list what I see as the arguably unfair features of the appeal- and there may be others:

i) The manner in which Mr Sacks dealt with the application to call evidence by telephone as well as the decision to refuse the application;

ii) The decisions to adjourn the hearing to 18 August notwithstanding the absence of counsel and to continue with the hearing on 18 August in the absence of the appellant and in the absence of any proper legal • representation.

91. If it is a relevant factor, then it is strongly arguable that the appellant's application for reconsideration was not considered by the High Court in the manner in which it should have been. In particular the direction given by Beatson J was not followed.
92. I turn now to the law.
93. Lord Bridge of Harwich in J? V SSHD ex p. Bugdaycay [1987] AC 514, HL said at 531:

"I approach the question... on the basis that... the resolution of any issue of fact and the exercise of discretion in relation to an application for asylum... He exclusively within the jurisdiction of the Secretary of State subject only to the court's powers of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under review is said to be one which may put the applicant's life at risk, the basis of the decision must call for the most anxious scrutiny."

94. In R v Secretary of State exp Thirukumar and Others [1989] Imm AR 402, at 414 Bingham LJ said: "Asylum decisions are of such moment that only the highest standards of fairness will suffice". Mr Singh also cites R v. Smith ex parte Ministry of Defence [1996] QB 517.
95. It is, in my view, strongly arguable that the appellant's appeal against the decision of the SSHD did not receive the "anxious scrutiny" which it should have received and that the appellant did not enjoy the "highest standards of fairness."
96. I turn to the relevant legislative provisions. Section 82 of the 2002 Act, as amended, states:

"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal."

97. Sub-section 2 defines the words "immigration decision". The definition includes the decision made in the appellant's case by the SSHD.
98. By virtue of section 103A:

"(1) A party to an appeal under section 82 ... may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

(2) The appropriate court may make an order under subsection (1)-

(a) only if it thinks that the Tribunal may have made an error of law, and

(b) only once in relation to an appeal.

(3) ...

(4) ...

(5) An application under subsection (1) shall be determined by reference only to

(a) written submissions of the applicant, and

(b) where rules of court permit, other written submissions.

(6) A decision of the appropriate court on an application under subsection (1) shall be final.

(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to-

(a) a procedural, ancillary or preliminary decision, or

(b) ….

(8) ...

(9) In this section "the appropriate court" means-

a) in relation to an appeal decided in England or Wales, the High Court,

b) ...

c) ...

(10) ..."

99. By virtue of complicated transitional provisions to which it is not necessary to refer in detail, a prospective appellant from a decision of a Tribunal is first required to apply to the AIT for reconsideration. If that application is refused, as in this case it was, the appellant is entitled to invoke the section 103A paper procedure, known as statutory review. The purpose of section 103 A was to introduce a much speeded up procedure for the final determination of appeals from the decisions of Tribunals.
100. It is common ground in this case that sub-section (7).of section 103A prevented any independent application for statutory review of the decisions not to permit telephone evidence and to continue with the 18 August hearing. Sub-section (7) requires a party affected adversely by an interlocutory decision to await the decision on the merits. If that decision is adverse to him or her then he or she is entitled to rely on the adverse interlocutory decision to show that "the Tribunal may have made an error of law".
101. Mr Singh draws our attention to Rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 which provides so far as is relevant:

"(1) Where a party applies for an adjournment of a hearing of an appeal, he must-

(a) if practicable, notify all other parties of the application;

(b) show good reason why an adjournment is necessary; and

(c) produce evidence of any fact or matter relied upon in support of the application.

(2) The Tribunal must not adjourn a hearing of an appeal on the application of a party unless satisfied that the appeal cannot otherwise be justly determined."

102. He also refers to Rule 45(4)(h) which provides that by directions the Tribunal may: "provide for a hearing to be conducted or evidence to be given or representations made by video link or by other electronic means".
103. Mr Singh argues that the application for judicial review of the interlocutory decisions made by Mr Sacks should be treated in the same as any other application for judicial review of interlocutory decisions made by courts or other bodies. He submits that the statutory policy behind section 103A is neutral as to whether interlocutory decisions should be challengeable by way of judicial review. He submits that we should approach the case as if the clock had been wound back to the time when the application for judicial review was issued (after the hearing but before the decision). He submits that if a judge of the Administrative Court had been asked to consider the application for a stay at that point, it is at least arguable that he would have granted a stay. He points out that Mr Sacks himself thought that the remedy available to the applicant was by way of judicial review.
104. Mr Chamberlain accepts that there may be interlocutory decisions made by immigration judges which are properly challengeable by judicial review but he submits that this is not one of them. He draws the well-known distinction between those cases in which the applicant for judicial review has an alternative remedy (in the present case an application for reconsideration and statutory review, a remedy which permits the applicant to argue procedural unfairness) and those cases in which the applicant has no remedy. Judicial review might be available, for example, if an immigration judge adjourned an appeal when he ought not to have done so. The remedy, achievable by judicial review, would be an order requiring the judge to hear the appeal. Mr Chamberlain submits that if an Administrative Court judge had been asked to deal with this application at the time, he or she would have declined to do so, given that the outcome of the appeal was not known and given that the applicant had a statutory' remedy. He relies" on the decision of Collins J in R (Wani) v. SSHD [2005] EWHC 2815 (Admin), and in particular paragraphs 24-25. Collins J said:

"24. Mr Tarn's main submission was that since the reconsideration was, as he put it, a single exercise, judicial review of what was an interlocutory decision should not be entertained. The court undoubtedly has jurisdiction to consider claims such as this, but will not in general entertain challenges to interlocutory decisions on the ground that the challenge is premature: cf: R (on the application of Nader) v Secretary of State for the Home Department [1998] Imm AR 33 and R (on the application of Buck) v Rochford JJ (1978) 68 Cr App Rep 114, [1978] Crim LR 492. The proceedings should be allowed to take their course and, if the Tribunal was wrong to find errors of law where none existed, the remedy lies in an appeal to the Court of Appeal. While that approach may sometimes be modified in relation to a decision to adjourn proceedings, it will normally apply to a decision such as is in issue in this case which amounts to a preliminary ruling. If, as I believe, the parties must see the reasons and are able in the circumstances which I have set out in this judgment to argue against them, there is all the more reason to refuse to entertain proceedings for judicial review. I am satisfied that the court should not permit claims such as these. They are premature and can only create delays which are manifestly contrary to the intention of Parliament as appears from r 31(1) of the Procedure Rules. There is no prejudice to the aggrieved party since, if the alleged error persists in the final determination, there is a right of appeal to the Court of Appeal. And it is always possible that he will succeed in the appeal.

25. Accordingly, I am satisfied that it would normally be an abuse of the process of the Court to seek to pursue claims such as this. I have learnt that it is dangerous to say 'never' in this jurisdiction, but I find it difficult to conceive of circumstances in which such a claim would be proper."

105. Whilst not prepared to say that Mr Singh's submission is unarguable, I see ¦, much force in the argument of Mr Chamberlain. I would be concerned if it became standard practice to seek judicial review of interlocutory decisions by immigration judges in circumstances where there is the alternative remedy under section 103 A.
106. I turn to Mr Singh's second argument. Both he and Mr Chamberlain agree that subsection (6) of section 103 A does not in law preclude judicial review. Mr Singh submits that (arguably) this is one of those rare cases of such procedural unfairness that judicial review should be available. Mr Chamberlain does not agree. He seemed to be saying that procedural unfairness, at least of the kind alleged in this case, is insufficient. Both Mr Singh and Mr Chamberlain rely on R (rota) G & M v (1) IAT & (2) SSHD [2005] 1 WLR 1445, where the Court of Appeal (Lord Phillips MR, Sedley and Scott Baker LJJ) considered the adequacy of statutory review (as provided at the material time by s101 NIAA 2002) in respect of decisions susceptible thereto (i.e. determinations by the IAT to refuse permission to appeal). The Court said:

"24. In Sivasubramaniam [ [2002] EWCA Civ 1738; [2003] 1 WLR 475 ] this court referred to the pressure on the IAT and the serious consequences of error on their part. The court commented on the need for anxious scrutiny of individual cases and the desirability of a review by a High Court judge as part of that process. Section 101 provides for such a review, but on paper only. Is this adequate?

25. How likely is it that the judge conducting the statutory review will overlook an arguable point of law that may affect the outcome in circumstances where he would not do so on an oral hearing or where his error would be identified by the Court of Appeal? The possibility cannot be discounted, but it is not great, as experience shows. The judges conducting the statutory review are judges of the Administrative Court with great experience in this area of the law. Their task is not to decide the answer to any arguable point of law, but simply whether an arguable point of law exists. If they so decide, their order will be more advantageous to the applicant than a successful application for judicial review, since it will require the IAT without more to hear the appeal. Judges will be aware of the importance of their decision and can be expected to give the most anxious scrutiny to the documents and written submissions placed before them. The comments made by Laws LJ in Sengupta were general; in the particular situation with which we are concerned we do. not consider that oral submissions are likely to add significantly to what can be set out on paper by a lawyer who remembers that precision is more important than verbosity.

26. For these reasons, and subject to the question of discrimination to which we are about to turn, we have concluded, in agreement with Collins J, that the statutory regime, including statutory review of a refusal of permission to appeal, provides adequate and proportionate protection of the asylum seeker's rights. It is accordingly a proper exercise of the Court's discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review.

27. We would add two observations. First, the applicability of the well-established principle that judicial review is a remedy of last resort is tested objectively by the court. Thus our conclusion has had regard to the legislative purpose and effect of s. 101 but not to any wider policy - if there is one - of excluding recourse to the courts. Secondly, our decision concerns only cases, such as the two before us, in which the application for judicial review is coextensive with the available statutory review. Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review."

107. Mr Singh submits that:

"importantly, the Court framed its decision as a lawful exercise of the Court's discretion in declining to consider an application for judicial review and did not include decisions which did not attract such remedy as, in the instant case, interlocutory decisions. Further, in the decision by Collins J at first instance, the learned judge had identified situations such as '... evidence of fraud or bias or similar matters' as potentially providing an exception to the general rule."

108. Mr Chamberlain takes the last sentence of paragraph 27 and submits that judicial review will only be available "in cases of justiciable errors not susceptible of statutory review". Mr Singh does not accept that interpretation.
109. In my judgment it is arguable that the decision in G does not prevent a court from granting such relief as is necessary where gross procedural unfairness of the kind (arguably) shown in this is established.
110. Stanley Burnton J did not examine the evidence of procedural unfairness. I have, as have also Mummery and Wilson LJJ on the renewed application for permission.
111. This is a case which, in my view 'requires this "most anxious scrutiny"'. Permission to appeal and to apply for judicial review should be granted and this Court, as presently composed, should, after further argument, decide whether or not to grant the orders requested by the appellant.

Lord Justice Rix:

112. I refer gratefully to the full account of the facts set out in the judgment of Lord Justice Hooper, and to the review of the authorities found both there and in the judgment of the Vice-President, Lord Justice Waller.
113. In sum, AM complains about four interlocutory decisions of the immigration judge, Mr Sacks. The first was his refusal to allow oral evidence to be given at AM's appeal by telephone link from Cameroon; the second and third were his refusals to adjourn the appeal to enable such a link to be set up and utilised; the fourth was his refusal to adjourn the appeal for more than 7 days to enable AM, who had become unwell, to attend the hearing to give live evidence in her own support. She seeks (permission to apply for) judicial review of these decisions. In her grounds of application she expressed her claim in these ' terms:

"1. The Claimant...claims:

(i) by a decision dated 28 July 2005 refusing to admit and/or facilitate oral evidence by telephone;

(ii) by decisions dated 11 August 2005 and 18 August 2005 refusing to grant an adjournment in order for such evidence to be facilitated without cost or inconvenience to the AIT; and

(iii) by a decision dated 17 and 18 August 2005 refusing to grant an adjournment in order for the Claimant...to give evidence having been temporarily incapacitated by illness (hypertensive crisis see doctor's reports atppl-20)

the AIT acted unreasonably and unfairly and that proceedings consequentially before it are and were procedurally unfair."

114. That application was made on 25 August 2005, namely, after the hearing of her appeal in her absence on 18 August but before the promulgation of Mr Sacks' decision, rejecting her appeal, on 7 September 2005. Her Grounds, which were in a document attached to her claim form, asked for the decisions complained of to be quashed; for an order requiring the AIT to allow a reasonable opportunity for telephone evidence to be adduced; for an order staying the hearing and/or determination of the appeal "until she has been given a reasonable opportunity to stabilize her medical condition and attend to give evidence"; and for "this matter to be considered urgently and in any event no later than 4 pm on Wednesday 24 August 2005". The Grounds were dated 23 August, but the application was not filed until 25 August 2005, by which time that particular deadline had already passed. Whether for that reason, or because the claim form (Form N461) itself stated "No" (ie the box marked "No" had been ticked) against both the question "Are you making any other applications? If Yes, complete Section 7" and the question "Are you claiming exceptional urgency, or do you need this application determined within a certain time scale? If Yes, complete Form N463 and file this with your application". Section 7 ("Other applications") had been completed "None", and no Form N463 had been completed.
115. In these circumstances AM's claim form did not come before a judge until 14 September, when Hodge J dealt with it on the papers by refusing a stay (since the determination of the immigration judge had already been promulgated) and directing that the matter be placed urgently before a single judge for consideration on the papers (and see para 78 above).
116. The papers then came before Beatson J. His disposal, which was to adjourn the application into open court on notice to the AIT and the Secretary of State, was received by AM's solicitors on 10 October 2005. His comments were reasonably favourable to AM, and he also remarked that if there was a section 103A application for reconsideration pending before the court, it should be considered at the same time as the adjourned hearing of the claim for judicial review (see para 79 above). In the meantime there had been an application to the AIT under section 103A for reconsideration of Mr Sacks' decision but that had been refused on 27 September 2005. On 11 October 2005, no doubt in response to Beatson J's order of the previous day, AM's solicitors sent to the court, for the attention of Beatson J, AM's PF 244 section 103A application. In their covering letter, they drew attention to Beatson J's observation that any such application should be considered at the same time as the application for judicial review. Unfortunately that did not happen.
117. On 11 November 2005, Bean J refused the section 103A application on the papers. Subsequently, on 19 December 2005 Stanley Burnton J heard the judicial review application and refused it on the ground that normally judicial review of an interlocutory decision was inappropriate, in any event where the statutory review procedure under section 103 A was available to pick up any error of law, such as the complaints of breach of natural justice and unfairness made in the present case. Especially where Bean J had already determined the section 103A application, a decision which statute made final, judicial review was not available. Therefore, he said "I have not considered the procedural complaints made in this case". He was prepared to assume or accept that the complaints made were genuine and strongly held, but there could be no going behind Bean J's decision that they did not even arguably amount to an error of law.
118. On this application for permission to appeal, Mr Singh accepts (i) that the matters of complaint are reviewable errors of law within the section 103 A procedure, (ii) that normally it is premature to seek judicial review of interlocutory decisions pending a final decision, and (iii) that a refusal of reconsideration under section 103 A is final. However, he submits (i) that there is no statutory bar to judicial review by reason of section 103A, (ii) that section 103 A(7) emphasises in any event that the section 103 A procedure does not encompass "a procedural, ancillary or preliminary decision", (iii) that the appropriateness of judicial review has to be considered at the time when judicial review was requested (the "stop the clock" argument), (iv) that the finality of the section 103A procedure cannot remove the court's separate judicial review jurisdiction, and (v) that the circumstances of this case demonstrate the need for exceptional consideration of AM's complaints.
119. In response, on behalf of the AIT Mr Chamberlain has submitted that Stanley Burnton J was right for the reasons which he gave. He accepted that judicial review jurisdiction was not excluded by section 103 A, but. submitted that G and M upheld the general principle that judicial review should make way for the acceptable alternative remedy under what is now section 103A (then section 101), that the prematurity principle relating to procedural and interlocutory decisions in judicial review was reinforced by subsection (7), that whatever might be said about exceptional cases where there could be no remedy even though the ultimate decision might be overturned on review (eg in a Bloody Sunday tribunal situation relating to the exposure of witnesses, or where a lengthy planning inquiry might be a waste of public money and time) here the section 103 A review was capable of correcting an error of law whereby procedural unfairness in interlocutory decisions undermined the ultimate decision, and that in any event the matters complained of were unexceptional, even if controversial, case management decisions typical of litigation.
120. In choosing between these cogent submissions, attractively argued, I have been assisted by the considerations canvassed by the Vice-President and Hooper LJ in their draft judgments, which I have had the opportunity to read. Ultimately, it seems to me that existing authority does not conclude the matter, for G and M is not concerned with questions of unfairness as distinct from substantive merits and in any event acknowledges that what is now section 103A does not formally exclude judicial review jurisdiction so much as reinforce its inappropriateness in the face of what is acknowledged as an acceptable alternative remedy. It is therefore necessary to consider the question before us as a matter of principle, albeit aided by the factors which emerge from existing jurisprudence and which have led Mr Singh and Mr Chamberlain each to make the concessions which I have recorded above.
121. We are not here concerned with an attempted appeal in form from the section 103 A procedure. AM is not seeking to appeal a decision, that of Bean J, which Parliament has enacted is to be "final". Such statutory limitations to the process of appeal have long been recognised (Lane v. Esdaile [1891] AC 210), although it is possible to say that such enactments will not exclude all possibilities of considering an appeal premised on unfairness, as distinct from substantive error, in the making of the decision which statute has pronounced final (AstraZeneca Insurance Co Ltd v. CGU International Insurance Plc [2006] EWCA Civ 1340 ). In the present case, however, it is not said that Bean J, or Stanley Burnton J for that matter, has been unfair.
122. What we are concerned with is an attempted appeal from the decision of Stanley Burnton J on the grounds that he was wrong, or at any rate arguably wrong, to say that judicial review is not available in the circumstances of this case, against the background of section 103 A and the decision of Bean J on the merits of AM's complaints. In effect it is said against this application for permission to appeal that judicial review was not available pending Mr Sacks' decision and a fortiori is not available after his decision in order to get around the statutory finality of a high court judge's views on the merits of the complaint.
123. In essence the competing arguments are that, because judicial review is not excluded as a matter of jurisdiction, an exceptional case will take a complainant out of the ordinary rule; whereas on the other side it is said that if that were so, then the ordinary rule would be lost in an avalanche of applications which, save for those which might be stopped at first base as unarguable, would destroy the function of the section 103 A procedure to provide a one stop, stream-lined, and robust system for separating out those cases which are worthy of reconsideration on review from the rest. As Lord Phillips of Worth Matravers MR said in G and Mat para 15 -

"To permit simultaneous applications for statutory review and for permission to seek judicial review would rob section 101 of the finality which it seeks to achieve."

124. In these circumstances, it seems to me that the first critical issue is to ask whether, on the particular facts of this case, the rejection of AM's section 103 A procedure is itself a conclusive bar to her application for judicial review. In my judgment, arguably, it is not. AM is not seeking to review or appeal Bean J's decision. It is accepted on behalf of the AIT that in at any rate an exceptional case, it might be possible to obtain leave to move for judicial review of an interlocutory decision by an immigration judge. The question therefore is whether this is such an exceptional case. Beatson J, on an initial consideration of the papers directed that AM's judicial review application should be heard orally and on notice and should link up with any section 103 A application that there might be. That unfortunately did not happen, but it was no fault of AM or her legal representatives that it did not. It seems to me therefore that there is force in the "stop the clock" argument. An applicant to the court should not be prejudiced by mere defect in procedural machinery. Therefore, an applicant who has been granted an ~ oral hearing for her complaint should not be turned away simply because, as things have turned out, that oral hearing has been pre-empted by another decision the subject- matter of which Was directed to be considered in tandem with the application for judicial review but was not. The importance of an oral hearing in our procedure has been highlighted in the passage which Lord Phillips cited in G and M (at para 16) from the judgment of Laws LJ in Sengupta v. Holmes [2002] EWCA Civ 1104 at para 38:

"[The fair-minded and informed observer] would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it."

125. It is true that before Stanley Burnton J, and now again before this court, AM has had the opportunity to present her complaint in an oral hearing. Therefore the court has also had the opportunity to correct the error which occurred in its procedure. However, that opportunity is not really there if the judge below and this court merely say that, in the light of Bean J's section 103A decision, the merits of AM's judicial review application are no longer open. It seems to me therefore that this court arguably should be prepared to revisit the question which would have faced Beatson J or another judge if they had heard AM's application to move for judicial review immediately before dealing with her section 103 A application on paper. Although AM has had her complaint considered on paper under the section 103 A procedure, she has not been given what Beatson J's order directed should happen, namely consideration of her judicial review application in oral hearing.
126. The second issue, therefore, is whether this, is an exceptional case which should not be denied on the prima facie standard ground that an application for leave to move for judicial review in respect of a procedural, ancillary or preliminary decision will be premature pending a final decision which can be reviewed for error of law under the section 103 A statutory review.
127. That raises two questions: the question in principle as to the width and nature of any exception; and the question in this case as to whether it falls within any such exception.
128. It is impossible and undesirable to attempt any exclusive definition of the exceptional, and I do not seek to do so. I start from the premise that, both for the reasons given in G and M, and the additional considerations relating to interlocutory decisions discussed by Collins J in Want, the courts will be highly unlikely to find that the statutory review granted by section 103 A will be an inadequate safeguard. In Sivasubramaniam Lord Phillips MR, speaking in the context of judicial review of the decisions of the county court, spoke of "very rare cases" relating to jurisdiction or "procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing". It seems to me that the logic of the situation is such that a case must (a) go beyond the complaint that the interlocutory decision impugned was unfair in itself, (b) demonstrate such a challenge to the fairness of the final hearing as to amount to a denial of justice, and do so (c) in circumstances where the statutory review is not well adjusted to give relief.
129. I comment a little further on these considerations. As for (a), interlocutory decisions which are concerned with the legal or judicial process are naturally described, when they are criticised, as being "unfair". They are "wrong" because they are "unfair". The judge or tribunal is concerned to be fair, and to hold the balance fairly between the litigants and the court's own interests, on behalf of the public at large, in its process. However, as it seems to me, it is not every such decision which is criticised as being wrong and unfair that can be described as an exceptional case. Courts and tribunals constantly have to make, often finely balanced and difficult, decisions about evidential matters or adjournments. Thus, only those interlocutory decisions which amount to a denial of justice at final hearing ought in principle to be the subject-matter of the exception under consideration (b). As for (c), this is to highlight the underlying factor that judicial review is not appropriate where there is a suitable alternative remedy. However, exceptions can always arise, even exceptions which do not fit well within consideration (b), which are not really served by the availability of statutory review. Examples are those which have been discussed in the course of argument, such as the unfair adjournment which amounts to a denial of justice - in such a case a final decision is not reached and the statutory review is not available. Another example is that of the threatened witness (the Bloody Sunday illustration), where an impeccable legal outcome does not remove the inherent danger. It seems to me that a third example is where the tribunal is said to demonstrate bias. A final hearing which might be derailed by bias should not be taking place. Moreover, the availability of statutory review on paper may not be well adjusted to provide an opportunity to make good an allegation of bias. There may, exceptionally, be other situations, apart from bias, where the real gravamen of the complaint cannot be demonstrated from the final decision itself, but only with the aid of further evidence such as judicial review provides an opportunity for.
130. For these reasons it seems to me that it is necessary for this court to consider whether AM's application arguably falls within the category of the exceptional. This is not something which Stanley Burnton J did below. Hooper LJ has conducted that exercise at any rate for the purpose of the application to this court, and has concluded that permission to appeal and to apply for judicial review should be granted.
131. I have not found this matter easy. It seems to me, however, that the argument that this is an exceptional case has not previously been considered and needs to be addressed. In the great majority of cases it is likely that such a submission can be easily dealt with. As Lord Phillips suggested, albeit in another context, it will be the very rare case which falls into the exceptional area where the statutory procedure does not provide an adequate review. I do not think, however, that it is possible at this stage to conclude that this is not an exceptional case, essentially for two reasons. The first is that, as I have already pointed out, Beatson J directed that AM's judicial review challenge should be heard, in court, at the same time as, that is to say, prior to any section 103 A decision. That, I take it, would still have had to be done on paper, but by the same judge. I do not think that can, in fairness to AM, be shrugged off. Although AM has now had two oral hearings, one before Stanley Burnton J and the other here, neither of them will be of any use if they are simply foreclosed by Bean J's decision on the papers. The second is that, although the matter is by no means clear to me and I would very much not want to put any words in AM's, or Mr Singh's, mouth, I think that it is possible that AM's real complaint about Mr Sacks' four decisions is not so much that he came to the wrong, unfair, decision on each occasion, but that along the way he so lost his objectivity as to become, subconsciously or otherwise, incapable of rendering an unbiased decision. If so, then it is not so much a question of whether his decision is rendered appealable because of an error of law: it is rather that he should never have been hearing AM's case at all.
132. It is important to state that I am uncertain about this second aspect. AM's original Grounds do not complain of bias. Mr Singh has not in terms submitted that Mr Sacks was biased. On the other hand, he has submitted (see para D.2 of his and Ms Weston's skeleton argument) that Mr Sacks displayed "inappropriate and intemperate conduct"; and of course the underlying complaint is that he ruled unfairly not once but four times. If I turn to the evidential material before me, I note the following. In his statement prepared for this court, Mr Bell said, in connection with the CMRH on 28 July 2005, that Mr Sacks "failed to give reasons and in my view did not consider the possibility with an open mind" (see at para 19 above). After reviewing further material, Hooper LJ himself comments (at para 33 above) that Mr Sacks appears to have made his decision to refuse the 9 August application before he had heard any oral argument.
133. As for the 11 August application, Ms McVay, counsel that day on behalf of AM, made an attendance note, confirmed by Mr Bell, in which she states that Mr Sacks was unwilling to hear submissions from her on the subject-matter of the telephone link, that he showed anger, and that "It seemed that his mind had been clearly made up before he came into court" (see para 35 above). Hooper LJ remarks, on the basis of this evidence, that Mr Sacks' conduct that day "if accurately described by Bridget McVay reflected a lack of impartiality on his part" (at para 36 above). On that occasion, which it will be recalled was when AM became ill and had to be taken to hospital, Mr Bell, in a statement prepared for the judicial review proceedings, stated that "she informed me that she was afraid of Mr Sacks... she would be afraid of returning to court to face Mr Sacks. She did not believe that she would get a fair hearing from Mr Sacks" (at para 37 above; see also his further statement, made for this court, at para 38 above). AM made her own statement about the 11 August hearing: in it she said that Mr Sacks pounded the table and said that he would hear this case and would not allow the adjournment - "I became at this stage very afraid of the judge. I was frightened that I was not given a fair hearing": see para 39 above. As a result of what had happened at the hearing of 11 August, including what is said to have been at any rate initial scepticism on the part of Mr Sacks with regard to AM's medical condition, Mr Bell observed, in his statement prepared for this court, that he thought that the immigration judge would have recused himself thereafter: "As a practitioner I felt it was inappropriate for the IJ to retain the case when he had expressed doubts about the evidence and provoked such a reaction in the Appellant" (see at para 50 above).
134. Turning to the final hearing of 18 August 2005 itself, AM was able neither to attend herself nor to obtain representation other than by Ms Haque and solely for the purposes of making a further request for an adjournment. It was submitted that it was unfair for the judge to proceed in such circumstances. The judge has explained his decision to continue. It may be observed that the letter from Dr Wohlrab dated 16 August which was before the tribunal stated that AM was physically unfit to attend court "for now", but also that she would be attending an appointment with Professor Wilkinson in September. That led Mr Bell, in his letter of 17 August to the tribunal, to request an adjournment on the grounds of AM's ill-health "for a short period to enable AM to be seen by Professor Wilkinson" (see at paras 46/47). Mr Sacks has since stated, in his determination and also subsequently, that he refused the request for an adjournment on the ground of AM's ill-health because no definite date could be given as to when, or if, AM would be fit to attend court. He did not refer, however, to Mr Bell's letter with its reasoned request for an adjournment "for a short period".
135. Of course, the court now has a number of statements made by witnesses on behalf of the AIT, including a lengthy statement by Mr Sacks himself. Much of what is said on behalf of AM is disputed, and Mr Sacks has added to what he said in his determination itself in explanation of his reasoning. There are possible grounds in that material for concluding that the account given by AM and her legal representatives is one-sided and itself unfair. Nevertheless, if it is open for AM to do so, the evidence submitted on her behalf enables her in my judgment to say that it is arguable that AM has suffered gross procedural unfairness of a kind which calls into question the objectivity and integrity of the judicial process.
136. Is it still open, then, to AM to make such a complaint, after Bean J's decision, and for the purposes of the pursuit of judicial review? That is the third main issue. Ultimately, I agree with Hooper LJ that arguably it is. She has made an arguable case which speaks to the denial of justice where the interests of justice must be most sensitive, in terms of the integrity and objectivity of the judicial process itself. That case should have been considered before a decision was taken pursuant to section 103 A. Moreover, having got this far in the analysis, I consider that it becomes relevant at this stage to note that the case made by AM is not one which the section 103 A procedure is readily designed to deliberate or adjudicate upon. I accept the submission made by Mr Singh that in these particular circumstances there are, arguably, valid reasons why a paper review is an inadequate remedy.
137. It remains possible that Bean J's decision on statutory review, which by the serendipitous process described in these judgments preceded Stanley Burnton J's consideration of the judicial review application, is by its mere existence an unassailable bar. That, however, is not how the matter was decided by Stanley Burnton J himself, nor, I think, how the matter has been argued here. There nevertheless remains a problem as to its status, rendered final and unappealable by statute. Can there ever be a collateral attack on a final, unappealable, decision? Or, were the grounds for judicial review to be made good, would it be possible to say that as a result the final decision of Mr Sacks was itself a nullity so that Bean J's decision in turn could no longer stand? We have not as yet heard submissions on such questions.
138. Finally, therefore, what is to be done? I would grant permission to appeal. I also agree that this court, as presently composed, should, after further argument, decide whether or not to make the orders requested by AM. I have hesitated whether, on the road to doing that, this court should here and now give permission to apply for judicial review. However, since Hooper LJ thinks that that should be done, I am content to agree. Either way, I am quite satisfied that the particular facts of this case can give no satisfaction to any applicant who thinks that judicial review ordinarily gives an alternative route to statutory review. I emphasize my present understanding that this court has not yet resolved the merits of AM's application for judicial review. I am confident that the courts will not permit casual allegations of unfairness in the interlocutory process to subvert statutory review. It will only be in exceptional and very rare cases which amount to a denial of justice that judicial review may be necessary.

Lord Justice Waller:

139. I have read the judgment of Lord Justice Hooper who has set out the facts at length, and concluded that permission to move for Judicial Review should be granted so that the matter can be further considered. I have also read the judgment of Lord Justice Rix whose detailed analysis brings him not without some anxiety to the same conclusion.
140. I am fully persuaded that it would be right to grant permission to appeal from the decision of Stanley Burnton J to enable this court to consider the question whether judicial review might be available where Section 103 A was also available, but I have had great doubt as to whether we should reverse Stanley Burnton J and grant permission to move for judicial review.
141. As was common ground, jurisdiction to grant judicial review is not ousted by Section 103A for decisions which may be the subject of review under Section 103A (1). But it will only be in exceptional cases that in the exercise of its discretion the court would grant permission to move. This flows from R(G & M) v Immigration Tribunal [2005] 1 WLR 1445 where the Court of Appeal considered the previous and like position under Section 101 and upheld Collins J's refusal to grant permission to move for judicial review in the light of the new statutory "on paper only" procedure available. Lord Phillips, then Master of the Rolls, giving the judgment of the court recognised that the common law power of the judges to review the legality of administrative decisions was a cornerstone of the rule of law and one that judges guard jealously. He recognised that the courts would not readily accept that legislation achieved that end citing Anisimnic v Foreign Compensation Commission [1969] 1 All E.R. 208 but he upheld Collins J's view that the paper procedure as a whole carried a satisfactory assurance that the rights of those entitled to asylum would be upheld [paragraph 23 - 27]. He considered whether it was likely that under the "on paper" procedure a judge would overlook an arguable point of law and recognised that it could not be discounted but he was of the view that the possibility was not great. He concluded (subject to an argument on discrimination which is not relevant) in these terms:-

"26. For these reasons, and subject to the question of discrimination to which we are about to turn, we have concluded, in agreement with Collins J, that the statutory regime, including statutory review of a refusal of permission to appeal, provides adequate and proportionate protection of the asylum seeker's rights. It is accordingly a proper exercise of the court's discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review.

27. We would add two observations. First, the applicability of the well-established principle that judicial review is a remedy of last resort is tested objectively by the court. Thus our conclusion has had regard to the legislative purpose and effect of section 101 but not to any wider policy - if there is one - of excluding recourse to the courts. Secondly, our decision concerns only cases, such as the two before us, in which the application for judicial review is co-extensive with the available statutory review. Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review."

142. That case however was, it is right to say, neither concerned with an interlocutory decision nor with a challenge to a decision on the ground of breach of natural justice. As regards an interlocutory decision which did not involve a challenge on natural justice grounds the position is as follows. Section 103A(7) makes clear that the interlocutory decision as such cannot be challenged by the "on paper" procedure, the subject of Section 103A. But under the former procedure where appeals on points of law could ultimately be made to the Court of Appeal, the general rule was that the court would not entertain challenges to interlocutory decisions on the ground that the challenges were premature. Collins J recognised that position in R (Want) v Secretary of State for the Home Department & The AIT [2005] EWCA Civ 1104. In that case he was considering a situation in which under Section 103 A there had been a direction to reconsider. The procedure at that time required the Tribunal carrying out the reconsideration to decide first whether there was a material error of law. If the decision was that there was an error of law, appeal of. the final decision lay on the point of law to the Court of Appeal. On an attempt to challenge the tribunal decision that there was an error of law by judicial review, Collins J said this in paragraphs 24 and 25:-

"24. Mr Tarn's main submission was that since the reconsideration was, as he put it, a single exercise, judicial review of what was an interlocutory decision should not be entertained. The court undoubtedly has jurisdiction to consider claims such as this, but will not in general entertain challenges to interlocutory decisions on the ground that the challenge is premature: cf: R v Secretary of State for the home Department Ex p Nader [1998] IAR 33 and R v Rochford JJ Exp p Buck (1978) 68 CAR 114. The proceedings should be allowed to take their course and, if the Tribunal was wrong to find errors of law where none existed, the remedy lies in an appeal to the Court of Appeal. While that approach may sometimes be . modified in relation to a decision to adjourn proceedings, it will normally apply to a decision such as in an issue in this case which amounts to a preliminary ruling. If, as I believe, the parties must see the reasons and are able in the circumstances which I have set out in this judgment to argue against them, there is all the more reason to refuse to entertain proceedings for judicial review. I am satisfied that the court should not permit claims such as these. They are premature and can only create delays which are manifestly contrary to the intention of Parliament as appears from Rule 31(1) of the Procedure Rules. There is no prejudice to the aggrieved party since, if the alleged error persists in the final determination, there is a right of . appeal to the Court of Appeal. And it is always possible that he will succeed in the appeal.

25. Accordingly, I am satisfied that it would normally be an abuse of the process of the Court to seek to pursue claims such as this. I have learnt that it is dangerous to say 'never' in this jurisdiction, but I find it difficult to conceive of circumstances in which such a claim would be proper."

143. Consistent with the above, if the alleged error in an interlocutory decision "persists in the final determination" to which Section 103A applies, and will be the subject of review under Section 103 A, the court will still be as reluctant as previously to grant permission to review an interlocutory decision. This was recognised by Stanley Burnton J in paragraph 10 of his judgment and that was not the subject of any criticism in argument before us.
144. Where the challenge either to an interlocutory decision or the actual decision is a challenge by reference to there being a breach of natural justice, the argument in faVour of an applicant having a remedy by virtue of judicial review despite Section 103 A is, I accept, much stronger. In the context of the Court of Appeal considering points on natural justice on appeal from the Immigration Appeal Tribunal in Macharia v The Immigration Appeal Tribunal [2000] INLR 267 Sedley U said this:-

"Manifestly, this Court has jurisdiction to entertain the issue which has been argued. The challenge is, in my view, of a class which ought to be made by way of Judicial Review. The Crown Office List is the natural forum for questions of natural justice, arising from tribunal proceedings. Any allegation that there has been, for want of fair procedure, typically raises questions both of law and of fact, in other words, questions, not only of what the relevant rules were, but of what happened. The latter ordinarily requires evidence, but evidence is ordinarily given on affidavit. While this Court has power to admit fresh evidence, this is normally only in relation to the issues canvassed below.

The present case is not of this kind. It concerns not what was argued but what happened. The preferable course in such a case would have been and should be in future to put the applicant's account of events on affidavit in this case it would be Miss Fieldens affidavit and another counsel would have to conduct the case. If leave is granted, both the Home Office and the Immigration Appeal Tribunal will be served with notice of motion, and each, if so advised, may put in its account of events, this may be important, where, as here, the conduct of the Tribunal itself is in question. If there is a conflict, the Court of Judicial Review has means of resolving it."

145. In R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 Lord Bingham CJ considered the position of magistrates. He referred to the fact that a decision of magistrates could be appealed to the Crown Court where a fresh hearing would take place, or could be challenged on a point of law by virtue of the case stated procedure. He accepted that if it were challenged by case stated, a point of law could involve a challenge on the grounds that natural justice had been breached. But he was of the view that the fact there was an alternative remedy by way of appeal did not preclude the court granting judicial review where it was the validity of the original decision which was in issue by virtue of a breach of natural justice. He said this at page 125:-

"While we do not doubt that Ex parte Dowler [1997] OB 911 was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates' court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates' courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. The crucial role of the magistrates' courts, mentioned above, makes it the more important that the jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are. maintained.

Two notes of caution should however be sounded. First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates' court. Immaterial and minor deviations from best practice would not have that effect, and the court should be respectful of discretionary decisions of magistrates' courts as of all other courts. This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. Many factors may properly influence the exercise of discretion, and it would be both foolish and impossible to seek to anticipate them all. The need for an applicant to make full disclosure of all matters relevant to the exercise of discretion should require no emphasis. We do not, however, consider that the existence of a right of appeal to the Crown Court, particularly if unexercised, should ordinarily weigh against the grant of leave to move for judicial review, or the grant of substantive relief, in a proper case."

146. Before leaving Rowlands I would draw attention to the following points. First, Rowlands itself was concerned with a situation in which an application was being made for judicial review before the applicant had sought either to appeal to the Crown Court or appeal by way of case stated. In Rowlands certain authorities were distinguished as not being authority for the proposition that judicial review should not be permitted where an alternative remedy was available. They were cases in which the applicant had exercised his right of appeal and in one instance a case where that appeal had been heard and the appeal dismissed. The court had in all instances actually refused to permit judicial review. Exparte Dowler [1997] Q.B. 911 and Reg v Mid-Worcestershire Justices ex-parte Hart [1989] C.O.D. 397 are examples of appeals pending, and Rex v Barnes, exparte Lord Vernon (1910) 102 L.T. 860 was a case where by the time the applicant sought to make the order for certiorari absolute his appeal to quarter sessions had been dismissed. In Hart, where the ground for applying for judicial review was procedural unfairness and where the applicant had failed to mention his pending appeal to the Crown Court, Lord Parker said this:-

"I do not propose, because it is unnecessary, to go into the question of whether the existence of the pending appeal is a bar to proceeding by judicial review in the sense that it is an inevitable bar, for it appears to me that in some cases it may be possible for a judicial review to proceed notwithstanding such an appeal. But in this case I have no doubt that judicial review should not be granted. The issues which arise appear to me to be much more suitable to be tried on appeal to the Crown Court, and there are a number of points which clearly can be made and no doubt will be made on the hearing of the appeal. I propose to say no more about them because if there is an appeal coming before the Crown Court, it would not be right that this court should make observations about the merits of the case."

147. It was in the above context that Lord Bingham said "we do not however consider that the existence, of a right of appeal to the Crown court, particularly if unexercised (my emphasis), should ordinarily weigh against the grant of leave to move for judicial review..."
148. Lord Phillips MR giving the judgment of the court in R (Sivasubramaniam v Wandsworth County Court) [2002] EWCA Civ 1738, when considering the question whether there could be judicial review of a county court decision, also took the view that simply because there was an appeal procedure provided by statute, judicial review was not ousted, but the discretion would only be exercised in exceptional circumstances. The exceptional circumstances the court sought in that case to define in the following language:-

"56. The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established."

149. Collins J in stating that it would normally be an abuse to seek judicial review of an interlocutory decision in the passage I have above quoted left open the possibility of judicial review in certain cases and it seems from his language that one such case might relate to "adjournment".
150. What then in the Section 103A context is the proper attitude of the court to judicial review of interlocutory decisions and in particular decisions where a breach of natural justice is alleged? By Section 103A Parliament was dealing with a particular problem. The legislation was being introduced to speed up the process of dealing with immigration appeals. Section 101 originally and Section 103A were designed to be a simplified "judicial review". I do not think Section 103A(7) was neutral as Mr Singh would suggest in considering whether judicial review should be granted in relation to interlocutory decisions. It is in my view more consistent with it being the policy that applicants should not be able to delay appeals by bringing proceedings to review interlocutory decisions. But I accept that could only be on the basis that the review of the decision as ultimately promulgated under Section 103A can include a meaningful consideration of the lawfulness or otherwise of the interlocutory decision.
151. In these circumstances I do not think that there is a complete analogy between the decisions of magistrates subject to the two appeal processes or the position of the county court subject to its appeal process. In so far as some support could be gained from the decisions dealing with those matters, to the effect that breaches of natural justice might form exceptions to what otherwise would be the appeal procedure provided by statute, there is less force in the argument that the exceptions should apply in the Section 103A context if the review will take proper account of the allegations made. Account must be taken of the fact that the original process in the immigration context included judicial review covering all aspects, i.e. errors of law and questions of natural justice, and the intention of Parliament was so far as possible to exchange for the former procedures, including the traditional judicial review with oral hearings, a review by the court albeit on paper.
152. There may be exceptional cases where the Section 103A review will not provide a remedy, but if and in so far as it does, it must have been the intention of Parliament that Section 103A should be used rather than the traditional judicial review. It must, furthermore, be the more difficult to argue that the circumstances are exceptional and incapable of being adequately dealt with under the Section 103 A procedure, if that procedure has been invoked and the precise circumstances are made part of the grounds for seeking an order for reconsideration under Section 103A.
153. Do the circumstances of this appellant's case arguably fall within the exceptional circumstances where judicial review might have been available? As already indicated, if a Section 103 A review would not give relief against an interlocutory decision, then clearly judicial review should be available. It should for example be available if a decision was that a particular witness should be called where there was a strongly arguable case that the calling of the witness would endanger that witness. Such a decision could not be challenged by the Section 103A procedure and because by the time a Section 103A review came about, it would be too late to protect the witness, judicial review must be available to challenge such a decision.
154. But do the allegations in this case come within the exception? In stark terms the allegations are of a refusal to adjourn and/or a refusal to allow a telephone link. But I accept from the analysis of the facts by Lord Justice Hooper and Lord Justice Rix's analysis that something more is being alleged in the nature of a procedural unfairness "which calls in question the objectivity and integrity of the judicial process." Despite the serious nature of the allegations what concerns me is that the challenge made under Section 103 A in this case relies on the same grounds on which the permission to move for judicial review was based. Paragraph 1 states the grounds for review in the following terms:-

"1. The Claimant C claims that the determination of the Immigration Judge (IJ) dated 7.10.2005 discloses the following errors of law:

(i) flagrant breach of natural justice including judicial conduct prejudicial to the interests of justice;

(ii) unreasonable refusal to grant (i) an adjournment for C to attend and give evidence;

(iii) unreasonable refusal to admit (a) telephonic and (b) written evidence;

(iv) misapprehension of fact amounting to error of law."

The remainder of the grounds set out the details to support that assertion.

155. Having regard to the fact that it was obviously intended by Beatson J that the application for permission to move for judicial review should come on before the same judge who was to consider the Section 103A application, and before any decision under Section 103 A had been taken, it is fair at least initially to consider the position as it would have been before a Section 103A decision had been taken. The court would in those circumstances have been considering the matter before it knew what view Bean J had taken. My Lords take the view that oral argument might have persuaded a judge that the circumstances of this case were so exceptional that it was right to grant permission to move for judicial review. My inclination is to feel that a judge would have taken the view that if there was a point relating to serious procedural unfairness, that point would be appreciated by the judge considering the Section 103 A review, and thus that the Section 103 A review would provide a remedy. On that basis the judge would have refused permission to move for judicial review. But I must accept that the appellant through no fault of hers never had the chance of seeking to persuade a judge by oral argument of the exceptional nature of her case.
156. In fact Stanley Burnton J was being asked to consider the position, not only once the Section 103 A procedure had been invoked, but following a review decision under Section 103A. That decision by statute is final. That as it seems to me poses a yet further problem. If it could be alleged that what had happened had "infected" the Section 103 A decision itself, there would obviously be room for the court to interfere with Bean J's decision. No argument has so far been presented to us which suggests any such infection. Lord Justice Rix suggests possible arguments based on a finding that the decision of the Immigration Judge was a nullity, and he suggests that we have not heard full argument on this aspect. I accept that may be so.
157. The conclusion of both my Lords is that the appellant should have had an opportunity of fully arguing at an oral hearing that her case is of the exceptional nature required for the court to exercise its powers of Judicial Review despite the Section 103A procedure. I agree with that conclusion. The question is whether she should have that right now having regard to the likely conclusion that a judge would have reached and to the fact that a Section 103 A decision is now in place. They are of the view that the nature of her allegations are such that she should be given that opportunity now. They are of the view also that Stanley Burnton J did not fully analyse the nature of the allegations and did not fully take into account the fact that the court had erred in failing to provide an oral hearing as envisaged by Beatson J, and that thus we are free to exercise our discretion afresh.
158. Despite my doubts I am persuaded that we are entitled to interfere with the decision of Stanley Burnton J and that we should grant the permission my Lords suggest. The circumstances in which permission to move is being sought are exceptional, the court having erred in the way matters should have been considered. The nature of the allegations being made are extremely serious and I am persuaded that the appellant should be given the opportunity of arguing they come within the narrow compass of "exceptional". I agree that the appeal should be allowed.

Lord Justice Waller

I agree.

Lord Justice Rix

I also agree.