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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Amin, R (on the application of) v Secretary Of State For Home Department & Anor [2000] EWHC Admin 371 (17 July 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/371.html
Cite as: [2000] EWHC Admin 371
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QUEEN and SECRETARY OF STATE FOR HOME DEPARTMENT A SPECIAL ADJUDICATOR Ex Parte MOHAMMED IMRAN AMIN [2000] EWHC Admin 371 (17th July, 2000)
CO/4956/1998
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17th July 2000
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
THE HON MR JUSTICE LANGLEY
Between:
THE
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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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Mr A Underwood and Ms G Broadfoot (instructed by The Treasury Solicitor for the Respondent)
Ms. M. Phelan (instructed by Messrs Thompson & Co for the Applicant)
As Approved by the Court
Crown Copyright ©
This application raises issues as to the appropriate procedure to be followed in the hearing of asylum appeals by Special Adjudicators where the claim to asylum has been certified by the Secretary of State under paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended). It also raises substantive issues about the decision of the Special Adjudicator in the case of the applicant. At the end of the hearing I dismissed the application and I now state my reasons for doing so.
The Applicant is a national of Pakistan. He arrived in the United Kingdom on 20 September 1997. He entered unlawfully and claimed asylum 2 days later. He was interviewed on 17 November. The grounds of his application for asylum were that he had a well-founded fear of persecution in Pakistan based on his membership of the Pakistan Peoples Party (PPP) and because of his alleged arrest on two occasions in Pakistan said to have been instigated by political opponents.
The application was refused by letter served on 9 February 1998. Part of the reasoning for refusal was the Secretary of State's doubts as to the credibility of the applicant and his claim. The Secretary of State also certified the application under Paragraph 5(2) of schedule 2 to the 1993 Act because the applicant was liable to be sent to a designated country (Pakistan) and because the evidence adduced by the applicant did not establish a reasonable likelihood that the applicant had been tortured in Pakistan.
The applicant's appeal was heard by a Special Adjudicator (Mr McGeachy) on 16 July 1998. The Applicant was not present but he was represented by a solicitor. His solicitor submitted a medical certificate dated July 15 stating that the applicant was suffering from backache and was unfit to attend the court. The Special Adjudicator refused to adjourn the hearing and invited submissions. The solicitor asked to be permitted to make submissions in writing and the Special Adjudicator agreed, providing they were lodged by 4 August. The Notice of Appeal itself was in the most general of terms and unaccompanied by any documents or statements.
Written submissions were lodged on 4 August. Apart from production of the applicant's original membership card for the PPP and the US Department of State Report on Pakistan for 1997 again no documents or statements were relied upon. Reference was made to the two occasions on which it was said the applicant had been arrested in Pakistan one of which (a charge of murder) was said to be outstanding against him.
There was nothing put forward which amounted to a challenge to the certificate of the Secretary of State, the effect of which, if valid, was to preclude any further appeal by the applicant to the Immigration Appeal Tribunal should the Special Adjudicator decide against him.
The Special Adjudicator's written "Determination and Reasons" was dated 9 September 1998 and was sent by post to the applicant on 15 September. The appeal was dismissed. The Special Adjudicator considered the written submissions which he (rightly in my judgment) characterised as not advancing the applicant's claim in any way. He referred to the correct standard of proof; he, too, considered that the applicant's credibility was in doubt; and he referred to the lack of any evidence about the charges against him on which the applicant relied.
At the conclusion of his determination the Special Adjudicator wrote:
"... having dismissed the appeal I also uphold the Certificate."
The grounds originally advanced were essentially two-fold: that the Special Adjudicator was wrong to refuse an adjournment in a case in which credibility was in issue and, when, in the event, he did allow more time for written submissions to be made; and that he had failed to take into consideration "the objective evidence" of police, judicial and other abuse in Pakistan. By amendment to the grounds the further point was taken that the manner in which the Special Adjudicator had proceeded was a breach of rule 11(2) of the Asylum Appeals (Procedure) Rules 1996. Permission to make this application was granted by Hidden J on 14 April 1999.
The special procedure for claims certified under paragraph 5 of schedule 2 to the Asylum and Immigration Appeals Act 1993 (as substituted by Section 1 of the Asylum and Immigration Act 1996) ("certified claims") arose in this case because Pakistan is a designated country under sub-paragraph (2) of paragraph 5 and the applicant did not adduce any evidence to establish a reasonable likelihood that he had been tortured in Pakistan under sub-paragraph (5). Indeed it was never the applicant's case that valid grounds for certification of his claim did not exist.
Sub-paragraph (7) provides that if on appeal the Special Adjudicator "agrees that the claim is one to which" the conditions for certification apply then there is to be no further appeal by an applicant to the Immigration Appeal Tribunal. The legislative purpose was plainly to truncate the appellate process and attendant delays in what were described in the title of paragraph 5 as "claims without foundation". The only possible further legal process available in case of a certified claim is an application to review judicially the decision of the Special Adjudicator.
So far as material the Asylum Appeals (Procedure) Rules 1996 provide that:
2(3)(a) an appeal is determined when written notice is sent of the decision ....
9(1) Unless the time limit is extended under rule 41, a special adjudicator shall decide an appeal not later than 42 days after receiving the documents specified in rule 5(8).
(2) The period specified in paragraph (1) shall be 10 days in a case where the appeal relates to a certified claim ....
10(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.
(3) Where a hearing is adjourned the special adjudicator shall -
(a)
(b) give notice either orally or in writing to every party to the proceedings of the time and place of the adjourned hearing.
11(1) The special adjudicator shall wherever practicable pronounce his decision at the conclusion of the hearing and he shall not later than 10 days after the conclusion of the hearing send to every party to the appeal written notice of the determination.
(2) In an appeal which relates to a certified claim the special adjudicator shall, if he agrees that the Secretary of State was right to certify the claim, pronounce his decision at the conclusion of the hearing and he shall not later than 5 days after the conclusion of the hearing send to every party to the appeal written notice of the determination.
Rule 41 provides generally for extension of time limits where that is necessary to enable a fair decision to be made. I was told, and have no reason to doubt, that such extensions are commonly taken as read as regards time limits of the sort which are to be found in Rule 9.
Miss Phelan, on behalf of the applicant, put her submission as follows. Rule 11(1) and 11(2) provide for mutually exclusive regimes: 11(1) for non-certified claims for asylum and 11(2) for certified claims. The word "decision" in 11(2) therefore refers to both the "decision" on the appeal itself and on the "rightness" of the Secretary of State's certificate. The rule is obligatory ("shall") and it requires a pronouncement of the "decision" at the conclusion of the hearing. "Pronouncement" means an oral statement in contrast to the "written notice" to be sent later. Mr Underwood agrees with these submissions with the qualification that they can only apply "if", which he submits means "provided that then", the Special Adjudicator does agree with the Secretary of State at the end of the hearing and so is in a position to "pronounce" his "decision" to that effect. If he is not, because he needs time to reflect or indeed has decided that he does not agree with the Secretary of State, he is under no obligation to say anything at the conclusion of the hearing.
I have to say that I find the greatest difficulty in achieving a satisfying construction of the words in the sub-paragraph. The purpose is not in doubt: to inform all parties as soon as possible of the outcome, but apparently only where that outcome is unfavourable to the applicant. The words used also appear to assume that the correctness of the certificate and the decision on the appeal itself must each have the same answer whereas this case, in which the certificate was not challenged but a claim to asylum was nonetheless pursued, illustrates how that may not be the case. Further, unlike rules 9 and 11(1), rule 11(2) has no express qualification by reference to rule 41 or "wherever practicable".
In this case the reality only serves to demonstrate the unsatisfactory language used. The Special Adjudicator could (because it was not challenged) have pronounced the certificate "right" at the end of the hearing on 16 July 1998. But he could not reasonably then have pronounced his decision on the appeal because he had agreed to accept written submissions on behalf of the applicant. Indeed, for that reason, he might have been unwise to pronounce even on the certificate at that time. So what was he to do? He could, and Miss Phelan says should, have adjourned the hearing to a later date after he would have had an opportunity to consider the written submissions, in order to have the parties in just to "pronounce" what in effect was contained in the last sentence of the pre-penultimate paragraph and the penultimate paragraph of his Determination. That seems to me to be close to absurd. I would strive to avoid such a conclusion, although it may be just that to which Latham LJ was referring in paragraph 56 of the decision of the Court of Appeal in Nanthakumar v Secretary of State for the Home Department (Unreported May 22, 2000).
I have considered whether "the hearing" could be so defined as to provide a solution but I do not think it can. If "the hearing" ended (as I think it did) on 16 July there was no pronouncement then. If it ended at a later date (whether on receipt of written submissions or the completion of the determination) there was no "pronouncement" then either as the word is plainly used to refer to an oral statement in contrast to a written one.
The court is left, I think, with a choice. Either the hearing must be pointlessly adjourned and re-convened or the rule is to have no application at all in a case where the "decision" on both appeal and certificate is not one which can be pronounced at the end of the hearing. Faced with that choice, I think Miss Phelan's submission has to be preferred, or there is a gaping hole in the provisions for certified claims.
That, however, is very far from being the end of the matter. Where a tribunal has failed to carry out some procedural requirement of the sort in question here, which Miss Phelan rightly accepts is "technical", not only is the grant of a remedy a matter of discretion but the remedy would normally be to require the step to be taken subject to the gravity of the consequences of the failure originally to do so. Yet Miss Phelan's submission is that the failure to pronounce on the certificate has the consequence that the certificate has not been upheld and so is to be treated as invalid thus enabling the applicant to appeal to the Immigration Appeal Tribunal.
That, in my judgment, would simply be to add to the absurdity. It has never been and is not the applicant's case that the claim was other than a properly certified claim. There has therefore never been a further right of appeal. The procedural failure has not deprived the applicant of a right of appeal. Nor can there be any doubt as to what the Special Adjudicator's decision and determination were (and would have been pronounced to be had he done so). He did agree that the claim was a certified claim. That in my judgment is sufficient to satisfy sub-paragraph 5(7) of the 1993 Act, which unsurprisingly makes no reference to any requirement for an oral expression of agreement as a condition of validity of the certificate.
Moreover, despite Miss Phelan's attempts to submit otherwise, I can see no prejudice at all to the applicant from what occurred. Had the decision been "pronounced" at an adjourned hearing after the written submissions had been considered, he and his advisers would still have awaited the written determination to consider if there were grounds for reviewing it. They would, as they did, have thought there were (regardless of the procedural point). The applicant has remained in this country in any event. There has therefore been no question of prejudice as suggested because of any failure to alert him earlier to his fate. Indeed there is nothing to require the pronouncement to be made on a separate occasion to delivery of the written determination and in circumstances such as this case doing the two together would at least provide some small purpose for an adjourned hearing. There can be no prejudice in not having a right of appeal you never had. I should perhaps add that I see no point whatsoever in ordering that a pronouncement now be made.
It follows that whilst on balance I do think a different procedure should have been followed by adjourning the hearing to enable the decision to be pronounced at a later date, I do not consider that the failure to do so is such that it is appropriate to grant any relief to the applicant. I appreciate that to a limited extent this issue overlaps with the attack made on the Special Adjudicator's refusal to adjourn the hearing but insofar as they are related the matter is addressed below.
Rule 10(1) is in strong terms. The statutory requirement for despatch in certified claims is manifest. No statements or documents were produced in support of the claim. To the date of the hearing of this application that remained the case from which I think it fair to conclude that the only evidence which might have been or was sought to be adduced would have been oral evidence from the applicant. Even in his case, however, no statement was ever produced and he had already given answers at interview which (rightly in my judgment) formed the basis for much of the adverse comment on his credibility. The content of the written submissions was thin and unpersuasive. Nor do I think it right to characterise the grant of time to make written submissions such that an adjournment should have been allowed for the applicant to give evidence. There were no guarantees he would be fit in any given timescale; documents and independent evidence was what was really needed if the sting was to be drawn of the criticisms made by the Secretary of State; and there is a real difference between allowing written submissions and convening an oral hearing at which evidence is to be heard. In my judgment the Special Adjudicator's ruling was correct; it was not in any event so unreasonable as to be open to challenge. The connection with the procedural issue is that Miss Phelan submitted that if the Special Adjudicator had appreciated that he had to convene a further hearing to pronounce his decision he would and should have been more receptive to an adjournment to enable the applicant to give evidence. I do not agree, really for the same reasons. The difference between a formality and a substantive hearing is obvious.
The Special Adjudicator took account of everything that was said and referred to in the written submissions. The points made were derived from general statements about Pakistan. The difficulty for the applicant was that the evidence that any such matters had had or would have any effect upon him was either rejected or non-existent. The Special Adjudicator dealt with the issues reasonably and convincingly. I think his determination is unassailable.
For the above reasons, this application must be refused, and I will hear the parties if there are any consequential orders to be made.
© 2000 Crown Copyright