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Bogou, R (on the application of) v Secretary Of State For Home Department & Anor [2000] EWHC Admin 292 (15 February 2000)
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[2000] EWHC Admin 292
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R AND SECRETARY OF STATE FOR HOME DEPARTMENT and IMMIGRATION APPEAL TRIBUNAL v. EX PARTE LOU BAHAMAN BOGOU [2000] EWHC Admin 292 (15th February, 2000)
Case No: CO/2972/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 15 February 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY
|
REGINA
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|
|
AND
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(1)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) IMMIGRATION APPEAL TRIBUNAL
v.
EX PARTE LOU BAHAMAN BOGOU
Application for Permission to Move for Judicial Review
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Respondents
Applicant
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Eleonor
Gray (instructed by The Secretary of State for the Respondent)
Eric Fripp (instructed by Roelens & Co. for the Applicant)
- - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE MAURICE KAY:
This is a renewed application for permission to apply for Judicial Review,
permission having been refused on the papers by Scott Baker J. The Applicant
is a citizen of the Ivory Coast. She arrived in the United Kingdom with three
children on 14 July 1995, having travelled from the Ivory Coast via France
using a false passport. On 24 July 1995 she claimed asylum. On 5 March 1997
she was interviewed. She claimed that she and her husband had suffered
persecution in the Ivory Coast by reason of their involvement with an
opposition party known as the FPI. She described a number of incidents. On 29
December 1991 there had been an incident in which a car had been driven at the
Applicant, her husband and their youngest daughter, on which occasion the
daughter was injured. On 18 February 1992 a demonstration was violently
attacked by the police and the Applicant suffered a broken jaw. As a result,
she escaped detention because she was hospitalised. The injuries had left
permanent scars. On another occasion the Applicant was stoned and driven from
her father's village when seeking to campaign for the FPI. As time went by she
received several summonses and constantly changed addresses. Her house was
ransacked frequently by the police. In February 1995 her husband left the
Ivory Coast in the belief that his family would be safer following his
departure. However, the Applicant continued to be harassed by the authorities
who were seeking details of her husbands whereabouts. She continued to move
around. Eventually she heard that an arrest warrant had been issued and this
caused her to flee.
By letter dated 13 January 1998 the Applicant was informed that the Secretary
of State had refused her claim for asylum. She gave notice of appeal to a
Special Adjudicator and nominated Messrs Chanas, solicitors, as her authorised
representatives. The Notice of Appeal is dated 12 February 1998. In his
Determination the Special Adjudicator described the period between the Notice
of Appeal and the actual hearing as follows:
"On 4 March 1998, notice of the time and place of the hearing fixed for 30 June
1999 was sent to Chanas.......On 25 August 1998 the Immigration Appellate
Authority sent a fresh Notice of Hearing to Chanas stating that the appeal
would be heard on 23 September 1998 at Gravesend. A copy was also sent to Mrs
Bogou on the same day. On 18 September 1998, Chanas requested an adjournment
on the grounds that they had submitted an application for legal aid on 9
September. They further indicated that if legal aid should be refused they
would be transferring her case to a charitable body which would require time to
prepare the case for representation. On 21 September 1998, the Ivorian Relief
Action Group wrote requesting an adjournment on the basis that Mrs Bogou had no
funds to pay for representation and that the Refugee Legal Centre was unable,
in the time available, to represent her, having more work than it could
manage."
It is surprising that application was being made for legal aid as it is common
knowledge that legal aid is not available for a hearing before a Special
Adjudicator.
Among the exhibited documents is a notice from the Refugee Legal Centre dated 4
September 1998 informing the Applicant that the Centre was "not able to accept
you case due to lack of capacity. We are not able to represent you at your
appeal."
On 23 September 1998 the appeal was listed before Mr C J Bennett, a Special
Adjudicator. The Applicant was unrepresented. She appeared in person and
sought an adjournment. It was refused. The Special Adjudicator went on to
determine the appeal against the Applicant. He was not satisfied that if she
were now to return to the Ivory Coast the authorities would have any interest
in either her or her husband. He accepted that she feared persecution upon
return but was not satisfied that her fear was well founded. Accordingly, he
dismissed the appeal. The Applicant sought leave to appeal to the Immigration
Appeal Tribunal. The Grounds advanced on her behalf went to the merits of the
decision and did not refer to the refusal of an adjournment. On 18 December
1998 the Immigration Appeal Tribunal gave notice that the application for leave
had been refused. In the Determination no reference was made to the refusal of
an adjournment by the Special Adjudicator.
The present application was received in the Crown Office on 22 July 1999. I
shall return to the question of delay later. The Grounds attached to the form
86A were settled by Mr. Fripp who has also appeared on this renewed
application. He places at the centre of the application the refusal of the
Special Adjudicator to grant an adjournment. In his Determination, the Special
Adjudicator went into considerable detail on the matter of the application for
an adjournment. He began by setting out the provisions of rule 10 of the
Asylum Appeals (Procedure) Rules 1996. Rule 10 is in the following terms:
"(1) Subject to Rule 9(1) or (2), a Special Adjudicator
shall not
adjourn a hearing unless he is satisfied that an adjournment is
necessary for the just disposal of the appeal.
(2) When considering whether an adjournment is
necessary, a Special
Adjudicator shall have particular regard to the need to secure the just, timely
and effective conduct of the proceedings." (Emphasis added by the Special
Adjudicator).
These provisions came into force on 1 September 1996. They are undoubtedly
more stringent than the previous provision in the 1993 rules, Rule 10(1) of
which provided that, generally, a Special Adjudicator
"may grant an application for an adjournment of a hearing upon being satisfied
that there is good cause for the adjournment."
In the present case the Special Adjudicator was clearly aware of this change.
He stated:
"The words `shall not adjourn' in sub-rule (1) are mandatory. Adjournment is
prohibited unless I am satisfied of its
necessity for the just disposal
of the appeal. I have no discretion as to whether to grant an adjournment
unless its
necessity for that purpose is established. The use of the
word `necessary' indicates that the test is more stringent than if the word
`desirable' or `appropriate' had been used. Even bearing in mind the potential
gravity in an asylum appeal, if a wrong decision is made, (and it is
inconceivable that the potential consequences were not in the draftsman's
mind), `necessary' cannot be equated with `desirable' or `appropriate'.
`Necessary' must be given its ordinary and natural meaning. I had in mind the
general desirability that any asylum appellant should be represented, if that
is his wish, but as I have indicated, `desirable' is not the test. The
question is whether it is necessary for the just disposal of the appeal that
Mrs Bogou should be represented."
In the course of his submissions Mr. Fripp described that analysis by the
Special Adjudicator as "over academic and legally erroneous". I do not agree
with his submission. In my judgment the analysis by the Special Adjudicator
was rigorous and correct.
The Special Adjudicator then went on to consider the facts of the present case
in the light of that analysis. He stated:
"The case is not one of any real difficulty. Mrs. Bogou has already given her
account of what occurred to the Immigration Officer at interview. It
therefore seemed to me that she would have no difficulty in giving me her
account of what had occurred. It is not the normal practice for the Secretary
of State to call any witnesses in rebuttal of an appellant's evidence. This
was not therefore a case in which cross examination of Home Office witnesses
would be required. It therefore seemed to me that Mrs Bogou would suffer no
prejudice if the matter proceeded and I heard her evidence that day. I had in
mind that if at any time it should appear that the matter was more difficult
than it had seemed to me at the outset I could review my decision and adjourn
if the necessity for an adjournment should become apparent. Nothing emerged in
the course of the hearing to indicate that an adjournment was necessary. I
indicated however that I would delay the final preparation of my Determination
until Wednesday 7 October 1998 so that Mrs Bogou and either her solicitors or
the RLC could submit any documentary evidence as to the circumstances currently
obtaining in the Ivory Coast or which would otherwise evidence a current risk
of persecution. In those circumstances I was not satisfied that the grant of
an adjournment was necessary for the just disposal of the appeal. I was
precluded by the mandatory provisions of rule 10 from adjourning the hearing.
I therefore refused Mrs. Bogou request. "
In my judgment that is a very careful consideration of whether or not in all
the circumstances, it was
necessary to adjourn the hearing for the just
disposal of the appeal. I do not consider that it discloses any error of law.
I should add that the Special Adjudicator went on to consider the application
for an adjournment on the alternative basis that, contrary to his primary
finding, he had a discretion to exercise. He decided that, on that basis, he
did not consider it appropriate to grant the adjournment. Again, this
conclusion was reached after a careful consideration of the relevant factors.
If the Special Adjudicator and I were both wrong about the proper construction
of rule 10 of the 1996 Rules, I do not consider that his alternative
consideration on the basis of discretion is susceptible to challenge.
In the course of his submission Mr. Fripp suggested that the authorities point
to a general presumption in favour of representation and of the granting of
adjournments to facilitate it. He suggested that the approach of the Special
Adjudicator was flawed by the failure to refer to these authorities.
Ironically, some of the authorities were appeals from this same Special
Adjudicator so it is more than likely that he was aware of them. The first in
time was
Ajeh (Immigration Appeal Tribunal 30 August 1996). It will be
of observed that this decision was made before the 1996 Rules came into force.
The Tribunal stated (transcript page 4):
"Whether or not a appellant is articulate the need for representation if (it)
is wanted appears almost axiomatic given the obligation to give the most
anxious scrutiny to cases of this kind."
The next case,
Diazayisua (Immigration Appeal Tribunal, 16 October
1997) takes the matter no further because the outcome was on agreed terms. In
Osho (Immigration Appeal Tribunal 16 September 1998) the Tribunal was
chaired by the same Chairman as had presided in
Ajeh. This time the
Tribunal stated:
"In the Tribunal's view the Grounds of the Appeal have substance. It was
unfortunate that in this case neither party was represented. If an Adjudicator
is to proceed with an appeal in those circumstances or where the appellant is
not represented there must be clear reasons for so doing stated in the
Determination. It would be rare that an asylum claim would not be better put
by a competent representative than by a case emerging through questions by an
Adjudicator and his statement that he was considering all the documentary
evidence. There would no doubt have been a structured presentation of the
appellant's case and suggestions given to the adjudicator as to the assessment
of documentary evidence."
Again it seems that the Secretary of State did not oppose a remittal. The same
Chairman also presided in
Juma (Immigration Appeal Tribunal, 17 July
1998). On this occasion the Tribunal stated:
"While the Tribunal sympathises with adjudicators faced with numerous
applications for adjournment, it is in our view important that such an
application be considered in the context of the importance of an asylum
claimant claimed to the appellant, this is particularly so where, as here, the
adjudicator finds the evidence before her is inconsistent. We appreciate that
the appellant declined to give oral evidence before the adjudicator but in our
view there is a considerable risk that the lack of representation would effect
the focus and relevance of the evidence given"
Once more, the Secretary of State did not oppose a remittal. In
Cabrera
(Immigration Appeal Tribunal, 21 May 1998) the Tribunal again presided over by
the same Chairman, stated:
"We sympathise with the adjudicator in facing the issue of an adjournment in a
long standing case. However, we agree with the view expressed in
Ajeh
......there is considerable risk in assessing an appellant as able to conduct
his own case, particularly when the central issue is that of asylum. While, no
doubt, the adjudicator did all he could to ensure fairness to the appellant
that, with respect, is not to be equated with being represented. Although the
adjudicator's approach was understandable, we take a different view of the
circumstances as a whole and the matter will therefore be remitted for a
hearing."
Finally, in
Kyeyune (Immigration Appeal Tribunal 25 November 1998) the
Tribunal (this time with a different chairman) again gave effect to agreed
terms remitting the matter for a rehearing following the refusal of adjournment
by a Special Adjudicator. Reference was again made to
Ajeh.
In my judgment there are curious features about this series of Tribunal
decisions. One is that
Ajeh has continued to permeate them, no
reference being made to the fact that it was decided under the 1993 Rules and
not the more stringent 1996 Rules. Secondly, in none of the decisions is
reference expressly made to Rule 10, either in its 1993 form or in its 1996
form. Nowhere is rule 10 subjected to the kind of analysis to which the
Special Adjudicator subjected it in the present case. As I have said, I
consider his analysis to have been entirely correct. In these circumstances, I
do not accept that representation is a matter of presumption, nor is it
axiomatic. There will be cases where it will be necessary to adjourn an appeal
because the just disposal of the case requires representation. There will be
other cases where it does not. What is most important is that Special
Adjudicators have regard to the provisions of Rule 10 of the 1996 Rules and
that they do not simply regard the situation as one of discretion or
presumption.
There is another matter to which I should refer in relation to the primary
ground of challenge being based on the refusal of an adjournment. As I stated
earlier, this ground was not advanced when leave to appeal was sought from the
Immigration Appeal Tribunal. The present application is in form a challenge to
the decision of the Immigration Appeal Tribunal in refusing leave to appeal.
Miss Gray submitted that it is entirely inappropriate to seek to challenge the
decision of the Immigration Appeal Tribunal by reference to a point which was
never raised as a ground of appeal before that Tribunal. The application for
leave to appeal to the Immigration Appeal Tribunal in this case appears to have
been settled by a lawyer. I observe that when leave was refused the
notification was sent to a firm of solicitors who must have been on the record.
The grounds of appeal fell under two headings, namely credibility and internal
flight. In the three page document, there was no reference to the refusal of
an adjournment. There are circumstances in which the appellate authorities
should apply their minds to points which were not expressly taken in the
material before them. In
Regina v. Secretary of State for the Home
Department ex parte Robinson 1997 4 All ER 210 Lord Woolf MR stated (at
pages 222 - 223):
"Because the Rules place an onus on the asylum seeker to state his grounds of
appeal, we consider that it would be wrong to say that mere arguability should
be the criterion to be applied for the grant of leave in such circumstances. A
higher hurdle is required. The appellate authorities should, of course, focus
primarily on materials adduced before them, whether these are found in the oral
argument before the Special Adjudicator or, as far as the tribunal is
concerned, in the written grounds of appeal on which leave to appeal is sought.
They are not required to engage in a search for new points. If there is
readily discernible an obvious point of convention law which favours the
applicant although he has not taken it, then the Special Adjudicator should
apply it in his favour, but he should feel under no obligation to prolong the
hearing by asking the parties for submissions on points which they have not
taken but which could be properly categorised as merely `arguable' as opposed
to `obvious'. Similarly, if when the tribunal reads the Special Adjudicator's
decision there is an obvious point of convention law favourable to the asylum
seeker which does not appear in the decision, it should grant leave to appeal.
If it does not do so, there will be a danger that this country will be in
breach of its obligations under the convention. When we refer to an obvious
point we mean a point which has a strong prospect of success if it is argued.
Nothing less will do. It follows that leave to apply for judicial review of a
refusal by the Tribunal to grant leave to appeal should be granted if the judge
is of the opinion that it is properly arguable that a point not raised in the
grounds of appeal to the Tribunal has a strong prospect of success if leave to
appeal were to be granted."
The point in issue in the present case, namely the refusal of an adjournment,
can hardly be classified as "an obvious point of convention law which favours
the applicant". Here the Immigration Appeal Tribunal was faced with a closely
argued document setting out substantive grounds of appeal. Is it arguable
that, when scrutinising the determination of the Special Adjudicator in the
light of the stated grounds of appeal, the Immigration Appeal Tribunal ought,
of its own motion, to have felt such concern about the refusal of an
adjournment that they should have granted leave to appeal by reference to that
point. In my judgment that is not at all arguable. It would amount to a
requirement "to engage in a search for new points". Immigration Appeal
Tribunals work under considerable time constraints. Save in the important
respects referred to by the Master of the Rolls in
Robinson, it would be
quite wrong to place them under any kind of duty to seek out points to which
their attention has not been directed. I have already indicated that, in my
judgment, the refusal of an adjournment in the present case was proper. Even
if I had doubts about that, I would not have considered it appropriate to grant
permission to apply for judicial review of the refusal of leave by the Tribunal
by reference a ground such as this which made its first appearance in the form
86A.
Although almost all the hearing before me was taken up by the adjournment
point, Mr. Fripp also sought to pursue his application by reference to
perceived substantive deficiencies in the determination of the Special
Adjudicator and in the refusal of leave by the Immigration Appeal Tribunal in
relation to them. He frankly conceded that they were points which were linked
to the issue of the adjournment refusal because he was submitting that, if an
adjournment had been granted, a trained lawyer would have made submissions
which would have necessitated consideration or more consideration of these
points by the Special Adjudicator. To the extent that the points are dependant
upon linkage with the adjournment refusal, they automatically fail in the light
of my decision about that. As free standing points they also fail because they
were either properly considered and rejected by the Immigration Appeal Tribunal
or, if they were not raised in the grounds, they were properly ignored in the
circumstances of this case.
It follows from all I have said that, in my judgment, this is a case in which
the applicant has failed to produce arguable grounds of challenge in his
application for permission to seek judicial review. There is, however, a
further matter to which I should refer. When Scott Baker J refused permission
of the papers he said:
"Your application is long out of time and there are no grounds to suggest that
if I grant leave any application would be successful."
As has been seen, the application has not been successful upon a full
consideration of the grounds of challenge. Miss Gray submitted that the
application should also be refused on grounds of delay. The decision of the
Immigration Appeal Tribunal was notified to the applicant's solicitor by a
letter dated 18 December 1998. The present application was received in the
Crown Office on 22 July 1999. By Order 53 Rule 4(1):
"An application for leave to apply for judicial review shall be made promptly
and in any event within three months from the date when grounds for the
application first arose unless the court considers that there is good reason
for extending the period within which the application shall be made."
Also, section 31 (6) of the Supreme Court Act 1981 provides that where the High
Court considers that there has been undue delay in making an application for
judicial review the court may refuse to grant leave for the making of the
application. The primary duty of an applicant is to "apply promptly". Can it
be said that the applicant applied promptly in the present case? An affidavit
by the trainee solicitor in the firm which lodged the application gives an
unsatisfactory account of the delay in the present case. It accepts that from
the moment the notice of determination arrived from the Immigration Appeal
Tribunal, "there was thereafter delay for which this firm was responsible".
There follows a description of logistical difficulties in the firm following
the departure of an employee and the delay in finding a replacement.
Nevertheless, the firm appears to have increased its workload during that
period. The affidavit states that:
"Ironically, because there was an approaching deadline for submissionsof a
judicial review application, it was not in Mrs Bogou's case considered
appropriate to ask her to transfer to another firm of solicitors."
Apparently the Applicant signed a legal aid application form on 1 February 1999
and the firm were put in funds to seek counsel's advice as to the merits of an
application. However, counsel was not instructed until 1 March 1999. Again,
the reason was "pressure of casework during and after the casework vacancy and
the imposition of extra work in the course of preparation for the firm's
franchise preliminary audit scheduled for 26 March 1999". Counsel's positive
advice was received on 11 March 1999. Delays for the same reasons to which I
have already referred resulted in further correspondence with the legal aid
authorities not taking place until 22 March 1999. Between that date and 1 July
1999 the delay appears to have been caused by problems in obtaining a legal aid
certificate involving an appeal to an Area Committee and administrative delays
of a familiar kind. Counsel was instructed again on 9 July 1999 and on 20 July
1999 he provided the necessary documentation for the application to be lodged.
It was lodged the next day. In my judgment, it cannot be said that the present
application was lodged promptly. By the time the legal aid application was
submitted on 22 March 1999 the deadline for the "in any event" period of three
months had already passed. In my judgment this was a case of "undue delay" and
a singular lack of promptness. If it had raised grounds of challenge which
were plainly arguable I would probably have seen fit to extend time. However,
it did not and, quite apart from the lack of merit in this application, I would
refuse it also on grounds of delay. I should add that the firm of solicitors
who were involved in the preparation of this application are not the same firm
who were advising the Applicant prior to the hearing before the Special
Adjudicator.
For all the reasons I have given this application for permission is
refused.
© 2000 Crown Copyright