ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
The Immigration Appeal Tribunal
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE PATTEN
| SH (Afghanistan) by Litigation Friend The Official Solicitor
|- and -
|Secretary of State for the Home Department
Ms Susan Chan (instructed by The Treasury Solicitors) for the Respondent
Hearing dates: 29th September 2011
Crown Copyright ©
Lord Justice Moses :
"(c) The Tribunal is satisfied by evidence filed or given by or on behalf of a party that –
(i) the appeal for application cannot be justly determined on the date on which it is listed for hearing; and
(ii) there is an identifiable future date not more than ten days after the date on which the appeal or application is listed for hearing by which it can be justly determined;
(d) the Tribunal makes an order under Rule 30."
Paragraph 30 permits removal of pending proceedings from the Fast-Track and includes the provision that a Tribunal is required to order removal:-
"(1)(b) If it is satisfied by evidence filed or given or on behalf of a party that there are exceptional circumstances which mean that the appeal or application cannot otherwise be justly determined;"
"I was more sympathetic to granting a short adjournment to enable the independent age assessment to be conducted, particularly as this was unopposed. However, no appointment had been made for the appellant to be assessed, and I was only given a rough estimate of when the final report would be available. It was not appropriate to grant a lengthy adjournment and I consider that I could justly determine the appeal on the basis of the evidence already available." (paragraph 27)
"[Immigration Judge Froom] drew a conclusion from the photograph and from the age stated on the visa application that that was indeed a more accurate reflection of the age of the appellant in 2008. That finding was properly open to be made in all the circumstances. The judge also concluded, on the basis of the false information and false identity, whether by the appellant or by his family on his behalf, that such undermined credibility generally. That finding also would seem properly open to be made. " (my emphasis)
"52. …having considered the first issue as to whether or not the Immigration Judge erred in refusing to grant an adjournment, I find that his decision was one properly open to him and was not Wednesbury unreasonable or perverse or unfair.
53. Even were I to widen the ambit of consideration to the more general question of unfairness, I do not find that even had the Immigration judge adjourned the matter and considered the report that is now presented, it is reasonably likely that he would have reached any decision other than the one which he had reached." (my emphasis)
"Whether fairness is required and what is involved in order to achieve fairness is for the decision of the courts as a matter of law. The issue is not one for the discretion of the decision-maker. The test is not whether no reasonable body would have thought it proper to dispense with a fair hearing. The Wednesbury reserve has no place in relation to procedural propriety." (page 24)
"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious," they may say, 'why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
In the instant appeal it was impossible to say, at the stage an adjournment was requested, that any report obtained by the appellant could make no difference.
"We feel that it is unlikely that he is significantly older than 17 and less likely that he is an adult, i.e., over the age of 18."
The report is twenty-four pages long. In the course of that report it appears that the appellant was questioned about the age and name he gave when seeking a passport and subsequently a student visa. He is recorded as asserting that an "uncle" had taken him to Pakistan and admitting that he had there attempted to obtain a student visa. He alleges that that "uncle" supplied the passport. He denied that he had had his fingerprints taken, notwithstanding that it was a biometric check which revealed that the appellant had applied for a student visa at the British High Commission in Islamabad, Pakistan, in the name of Nasib Ullah, born 21 April 1990, from Kabul.
Lord Justice Patten:
Lord Justice Ward: