England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. IM/15453/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th January 2008

Sir Paul Kennedy:

1. On 17 May 2007 at Hatton Cross, the Asylum and Immigration Tribunal in the person of Immigration Judge Axtell sat to reconsider a narrow issue which arose in the appellant's unsuccessful appeal against a deportation decision made by the Secretary of State.
2. The appellant was not at Hatton Cross on 17 May 2007 nor was he represented, but the respondent was represented by a Home Office presenting officer, Mr Roy. As the immigration judge knew, the appellant was aware of the hearing date because he had been present before the tribunal on 30 April 2007 when the date was fixed, and on 17 May the tribunal had no knowledge of any reason for his absence. It did, however, have some information in relation to his representatives, AR Immigration Consultants, hereafter referred to "AR". On the previous day, 16 May 2007, they had sent a fax to the tribunal which read:

"It has come to our attention that our legal representative has come down with a bout of flu and will not be able to attend the appeal scheduled for the above named client on Thursday 17 May 2007.

We do appreciate that the case has already been adjourned, however, we kindly request the case to be adjourned for a later date.

We sincerely apologise for any inconvenience caused to the court and we look forward to hearing from you soon.

Many thanks for your cooperation in this matter."

3. Enquiries indicated that the tribunal office had responded to the fax by advising the senders that the request for an adjournment had been received too late, or at least that was the inference which the judge drew from the pencil note which he saw upon the fax. At 11:30 am on 17 May the court usher attempted to telephone AR but the telephone seemed to be unmanned. Prior to 17 May the tribunal had experienced considerable difficulties when attempting to list and deal with this reconsideration, and I will look at those difficulties later in this judgment. Mr Roy, for the respondent, drew attention to those difficulties and submitted that there should be no further adjournment. He invited the tribunal to proceed with the hearing as it was entitled to do under the Asylum and Immigration (Procedure) Rules 2005. See, in particular, Rule 4, which deals with the overriding objective, and Rule 19, which with effect from 10 April 2007 read as follows:

"The tribunal may hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative -

(a) has been given notice of the date, time and place of the hearing and

(b) there is no good reason for such absence."

Prior to 10 April the rule had required a tribunal to hear an appeal:

"…in the absence of a party or his representative, if satisfied that he or his representative -

(a) has been given notice of the date, time and place of the hearing and

(b) has given no satisfactory explanation for his absence."

4. Immigration Judge Axtell decided not to adjourn. He decided that he could properly deal with the narrow issue identified by the tribunal when it ordered reconsideration, namely, whether if deported the appellant would be at risk in Jamaica because he was known to have been willing to give evidence for the prosecution in a criminal case in England. Immigration Judge Axtell found no evidence sufficient to enable him to make findings favourable to the appellant in relation to the narrow issue. That inevitably meant that the original determination of the Asylum and Immigration Tribunal, promulgated on 12 October 2005, was ordered to stand, with its conclusion that the appellant's appeals were dismissed.
5. In her 23-paragraph grounds of appeal and skeleton argument, the appellant's present counsel raises a number of issues, but those which are properly arguable at this stage are fourfold and even some of those have not been deployed before us. First, that Immigration Judge Axtell misunderstood his powers, believing that, as required by Rule 19 in its unamended form, he was obliged to proceed. Secondly, that if he did not misunderstand his powers he should not have exercised them as he did and he should in fact have granted an adjournment. Thirdly, that even if his decision not to adjourn seemed right at the time it can now be seen that he should not be held accountable, that is to say the appellant should not be held accountable, for his absence and that of his representatives on 17 May, and this court should grant him relief in the form of an order for a fresh hearing. And fourthly, even if the immigration judge was right to proceed and his decision to do so cannot now be impugned he should not have decided the narrow substantive issue as he did.
6. In order to deal with those four issues, I need to set in context the tribunal proceedings of 17 May 2007 and to that end I start by explaining how the appellant came to be the subject of a decision to deport. He is a native of Jamaica born on 9 April 1975, so he is now 32 years of age. He came to the United Kingdom as a visitor in 1993 and in 1999 obtained indefinite leave to remain, as the husband of a woman from whom he was divorced in 2002. There are two children and at the time of the original appeal in September 2005 there was an issue as to the extent to which the appellant has been involved in caring for those children. Immigration Judge Kulatilake found the relationship to be tenuous and his alleged family ties, that is to say the appellant's alleged family ties, are not a live issue in this court.
7. Since his arrival in this country the appellant has acquired a significant criminal record. In 1995 he was convicted of an offence of possessing counterfeit currency and two offences of theft. In 1998 in the Crown Court he was convicted on two counts of handling stolen goods and on 10 October 2001 he was convicted, on his own confession, of supplying a controlled drug of class A, namely crack cocaine, for which he received a sentence of five years' imprisonment. It was that conviction which on 12 July 2004 motivated the Secretary of State to give notice of his intention to make a deportation order.
8. The appellant appealed against that decision, principally on the basis that he had assisted the police in relation to a murder investigation, to the extent of being willing to give evidence for the prosecution; and in relation to his family commitments, as he alleged. The murder was committed in December 2000, and one of those responsible for the murder and related drugs offences was convicted at the Central Criminal Court on 25 February 2005. That defendant received a severe sentence but two other defendants were granted bail in July 2004 and then absconded to Jamaica. In a letter written on 2 March 2005 and updated in a recent letter dated 2008, Detective Sergeant Felton of the Metropolitan Police expressed the view that the presence of the two absconders in Jamaica would put the safety of the appellant at great risk if he were to be sent there. That letter, which was attached to the original grounds of appeal, was considered by Immigration Judge Kulatilake in the original determination of the tribunal, promulgated on 12 October 2005, but the judge must have misread the letter because he said that there was no evidence that the absconders were in Jamaica. That mistake was what prompted the tribunal on 26 October 2005 to order reconsideration, but the tribunal made it absolutely clear that the police officer's letter could not simply be taken at face value.
9. On 29 March 2007 the hearing date was fixed for 30 April 2007 and directions were given. In particular, the tribunal required in advance copies of witness statements and copies of documents to be relied upon, together with a skeleton argument and a chronology. The directions had not been complied with by 30 April 2007 when the matter was listed before Immigration Judge Dineen. AR telephoned the court on the morning of the hearing to say they no longer represented the appellant, but he was present and claimed to have paid them £600 to represent him. When telephoned by the court usher, Mr Frempong of AR accepted that the money had been paid and said that Mr Laddie was supposed to be at court to represent the appellant. Apparently Mr Laddie had represented the appellant on a previous occasion when the matter was being considered for reconsideration.
10. It was in those circumstances that Immigration Judge Dineen adjourned the matter and fixed the hearing date for 17 May 2007. The appellant knew of that date and he then left.
11. After the hearing of 17 May 2007 the next date which is apparent from the documents is 18 June 2007, which was some 18 days after the day on which the decision of Immigration Judge Axtell of 17 May was promulgated. On 18 June 2007 this appellant, now having gone to a different firm of representatives, his present solicitors, Eden Solicitors, signed a statement in which he seeks to explain his absence on 17 May. Paragraphs 2 and 3 of that statement read as follows:

"2 My then legal representation, AR Immigration Consultants, were also aware of the adjourned appeal hearing date. On 16 May 2007, the day before the appeal hearing, my then representatives telephoned me to inform me that the person who would be representing me at court, Mr Laddie, was unwell and would be unable to attend. My then representatives informed me that as Mr Laddie was familiar with my case and had all the necessary papers, an adjournment would be requested. I was told by my then representatives that I would not have to attend court".

3 As I am not familiar with the court procedure I accepted the advice from my then representatives and believed that my case would be adjourned. If I had known that there would be a possibility that the

hearing would go ahead in my absence then I would have attended court."

12. We today were asked to admit in evidence that statement from the appellant, and having received submissions from counsel in relation to the matter we admitted the statement in evidence, subject to the qualification that the respondent should be in a position to cross-examine the appellant. That is what happened. The appellant accepted that the statement accurately represented his position. But under cross-examination he gave evidence which was in many respects not entirely satisfactory. He was forced to accept that he was not totally unfamiliar with court procedure; but as to what had happened on 16 May 2007, he said that he was telephoned on his mobile by someone giving the name Richard around about noon, who said he could not get hold of Mr Laddie because he was ill and he was going to try to get the case adjourned, the case that was listed for the next day. According to the appellant he was told by Richard that he did not have to go to court because he would not have anyone to represent him. He did not apparently react to that advice but on 17 May, according to the appellant, he did try to make contact with AR to find out what had been going on. He was totally unable to do so. He did not think of telephoning the tribunal himself because he did not know that he could, and it was only after receipt of the tribunal's decision which was promulgated on 1 June, which he says he did not receive until some time after that, that he instructed his present solicitors on 13 June.
13. With some hesitation, having heard the evidence from the appellant, I have come to the conclusion and, as I understand it, my Lord and my Lady are of the same opinion, that this appellant's evidence is to be accepted when he says what happened so far as he was concerned on 16 May. We therefore proceed upon the basis that he was told by his then representatives not to attend before the tribunal on that day.
14. In this court we also have before us a letter from Detective Inspector Horsley, which is dated 10 November 2005. It was apparently written soon after the tribunal ordered reconsideration. It is in general terms, similar to those used by Detective Sergeant Felton in his first letter, and does not go as far as Detective Sergeant Felton does in a letter dated 7 January 2008, in which that officer says this:

"It is currently believed that both McGANN and MYKOO [who are the two who absconded] are in Jamaica and it is highly unlikely that either will try and return to Britain.

Roy JONES used to run drugs for both Robert      McGANN and David      WILSON [David Wilson was the defendant who was actually convicted at the Central Criminal Court] and therefore due to information that Roy JONES gave Police Robert MCGANN and Junior MYKOO although not aware of precise information is well aware via David WILSON that Roy JONES assisted police even though he did not give evidence at the trial. Threats were made to Roy JONES when he was in prison and I believe that he is still under threat from this family if he was returned to Jamaica where this family have considerable influence. A statement in a pseudonym but made by Roy JONES was served prior to the trial and I believe that the defence had worked out that Roy JONES had given that statement.

In my opinion Roy JONES safety would be at great risk if he were returned to Jamaica and the WILSON family were made aware of this fact. It would be likely they would be aware of his return as Jamaica is a far smaller place than Britain and for JONES to be able to avoid the family in Jamaica may be possible but in my experience unlikely."

15. I return now to the four issues which I identified earlier in this judgment. For my part I do not accept that Immigration Judge Axtell misunderstood his powers. He plainly believed that he had a discretion to exercise when deciding whether or not to adjourn. In paragraph 27 of his determination he said:

"In view of the history of this appeal since the original determination, the failure to comply with directions and the unsatisfactory conduct of the appellant's representatives as well as the failure of the appellant himself to attend I decided I could justly determine this appeal and further that at this stage it should be determined having regard to the overriding objective expressed in Rule 4 of the said rules".

16. That is not what he would have said if he believed that under the rules he was obliged to proceed, and the words used in paragraph 35 of his determination by way of overall conclusion do not raise any doubt in my mind as to the judge's understanding of the law.
17. Secondly, given that the judge knew that he had a discretion to exercise when deciding whether or not to adjourn, I do not see how on the information available to him the judge's decision not to adjourn can now be faulted. As he said in paragraph 27 the history was persuasive.
18. The third question to which I will give some further attention is whether we, with the benefit of the additional information we have, should now intervene to in effect override the judge's decision and send this matter back for reconsideration. But before I deal with that, I propose to look briefly at the fourth issue; namely, whether the judge was right to decide as he did on the narrow substantive issue. Again, as it seems to me, on the information available to him his conclusion cannot be faulted. Even if the second letter of Detective Sergeant Felton had been available and the letter of Detective Inspector Horsley, it does not seem to me, any more than it seemed to the tribunal when ordering reconsideration, to provide the sort of information required if the appellant is to discharge the burden of proof.
19. Miss Longhurst-Woods for the appellant submits that we should set aside the decision of Immigration Judge Axtell on the basis that, an error of law having been identified by the tribunal itself, he should not have endorsed the decision, which was found to contain an error of law. That, to my mind, is a complete misunderstanding of the way in which Immigration Judge Axtell proceeded. It is true that at the very end of his determination he did say, in paragraph 35:

"There is therefore no alternative but to dismiss the appeal and endorse the decision made by the original Immigration Judge".

20. But in paragraph 31 he had referred explicitly to the error of law earlier identified and he had dealt with the evidence available to him in a perfectly proper way, which did not replicate the mistake made by Immigration Judge Kulatilake. He dealt with the evidence such as it was -- that is to say, in the form of a letter from a police officer -- and he concluded at paragraph 33 by saying this:

"There has been no attempt by the appellant or his representatives to comply with directions. Regardless of the criticism that could be levelled at them or the appellant or both of them, the fact of the matter is that there is no evidence on which this court can make any finding favourable to the appellant on the issue or issues open to it as indicated by two Senior Immigration Judges.

21. Accordingly all that he was doing in paragraph 35 was, at the end of a determination itself devoid of any error of law, coming to a conclusion that was, in effect, the same as that expressed by an earlier tribunal, albeit that tribunal had made an error of law in the course of reaching its conclusion. There is therefore no ground whatsoever, in my judgment, for criticising Immigration Judge Axtell in this court.
22. That brings me back to the third issue which I identified and which is the issues on which we have spent time. Should we, in the light of our evaluation of the evidence given to us by the appellant, now order this matter to be remitted for a fresh hearing? Mr Sheldon, on behalf of the respondent, has persuasively argued that we should not do so. He submits that no useful purpose would be served by reconsideration. He points out rightly that no proper step has ever been taken to comply with the directions given by the tribunal when it ordered reconsideration. And Miss Longhurst-Woods' assertion that the appellant has now been competently represented has to take account of that telling submission on the part of the respondent. The fact is not enough has been done. In reality hardly anything has been done.
23. The point is also made by Mr Sheldon, and rightly, that even if Detective Sergeant Felton and Detective Inspector Horsley were properly adduced as witnesses -- that is to say, leave was asked to call them, their statements were put before the tribunal and they attended to give evidence (as no doubt they would if the proper steps were taken to secure their attendance) -- their statements do not deal with the sort of detail which would be required if this appellant was to discharge the burden of proof which lies upon him of showing that if he were to be returned to Jamaica he would be seriously at risk. Those officers in general terms expressed that view, but they do not give details, as to their experience of conditions in Jamaica now and of the risk now presented to this appellant were he to be returned there. As Mr Sheldon points out they do not really deal with the question of sufficiency of protection in Jamaica at all, and this appellant and his advisors have been told time and again that that is an issue which has to be addressed. It was raised in the original letter from the Secretary of State; it was raised at the original    hearing     before Immigration Judge Kulatilake; it was raised by Senior Immigration Judge Freeman and by Senior Immigration Judge Perkins and yet nothing has been done. Both AR and the appellant's present advisors are to be criticised for that.
24. Mr Sheldon also submits that there was no significant unfairness to the appellant; because if he had been present on 17 May he himself would have had nothing to add, and Detective Sergeant Felton's letter, the original letter from that officer, was before the tribunal. That is a submission which I find it more difficult to accept. It seems to me that if the appellant had been present on 17 May he would have been able to tell Immigration Judge Axtell, as he told Immigration Judge Dineen at a previous hearing, what were his difficulties. In other words he would have been able to point out that he was not being properly represented. Insofar as the directions had not been complied with, and no doubt Immigration Judge Axtell would have pointed that out to him, he could have explained that it was because of the incompetence of his lawyers.
25. In those circumstances it seems to me at least possible and indeed probable that the judge would have granted an adjournment. Certainly he would have been in possession of information which he did not have, and relevant information, and in those circumstances I find it impossible to say that this appellant did not suffer and was not the victim of unfairness as a result of the intervention of AR on 16 May in the way that I have described.
26. I reach that conclusion with some hesitation because I recognise the force of Mr Sheldon's third submission that in this court we should be slow to interfere with what he describes as case management decisions of the tribunal. I endorse that submission. I endorse it to the extent of saying, as I have said already, that in my judgment the Immigration Judge on 17 May was right not to adjourn. I recognise that if we take the step in this case of ordering that this matter be reheard before the Asylum and Immigration Tribunal on the basis of the fresh evidence that we have heard we are, in effect. giving some support, maybe, for those who seek to abuse the system. I would for my part wish to do everything in my power to prevent that happening. If lawyers seek to abuse the system it seems to me that they should as a matter of course be penalised in costs. If representatives who are not lawyers seek to abuse the system I do not see why they should not suffer the same sanction and if, in order to ensure that the sanction can be implemented, they are required to deposit funds with the tribunal before they secure representation that seems to me to be a possibly appropriate course. But so far as the present case is concerned, if one accepts, as I for my part do, that on 16 May this appellant was told not to go to the tribunal on the following day, and if one accepts that as a result he was unable to explain to the judge why his case had not been prepared for proper deployment in accordance with the directions originally given by the tribunal itself then, as it seems to me, it is impossible to escape the conclusion that he has suffered an injustice and the only way in which this court can put it right is to order that the decision of Immigration Judge Axtell be set aside, that is to say, his final determination, so that the way is clear for the matter to be dealt with by the tribunal on a future occasion. I would accordingly so order.

Mrs Justice Black:

27. I agree.

Lord Justice Wall:

28. I also agree. My Lord has covered the ground fully and I add points only by way of emphasis. I was of course party to the decision of this court in the case of FP (Iran) and MB (Libya) v Secretary of State for the Home Department [2007] EWCA Civ 13. I see that n the course of my judgment in that case, I observed that it would be foolish to shut one's eyes to the sheer volume of work involved in the AIT and the enormous pressure under which the system was obliged to operate. I also commented that it would not be sensible to shut one's eyes to the possibility of the system being abused or exploited by the unscrupulous.
29. I thus have considerable sympathy with the third submission advanced by Mr Sheldon this afternoon, to which my Lord has adverted. In my judgment it is difficult to conceive of circumstances in which it would be good advice for any lawyer or quasi-lawyer to tell a client not to attend a tribunal, and I would anticipate that in the future any such argument advanced by an applicant for relief would be received with some scepticism.
30. However, in this case we have decided, having heard the appellant give evidence, that on balance he was advised not to attend the hearing before the tribunal on 17 May and, like my Lord, I have come to the view that had the Immigration Judge on 17 May had the appellant before him, and had the appellant explained the difficulties he found himself in, it is possible if not probable that an adjournment would have been ordered. Like my Lord I make no criticism whatsoever of the Immigration Judge on the information with which he was provided and like my Lord I would be anxious to ensure that no future abuse of the system results from the amendment of the law following the decision of this court in FP (Iran).
31. I therefore respectfully endorse all the comments which my Lord has made. Nonetheless, on the particular facts of this case, I have come to the clear view that the appellant may well have suffered an injustice. There is an arguable point for him to put to the tribunal on the next occasion which I anticipate will be the last. I say nothing as to outcome but in my judgment the only course this court can properly take, having reached the conclusion it has on the admissibility of the appellant's statement, is to allow the appeal and set aside the Immigration Judge's order. I like my Lord would so order.

Order: Appeal allowed