England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2002

Silber J:

1. The claimant seeks to quash a decision of the Immigration Appeal Tribunal made on 12 October 2001 allowing the appeal of the Secretary of State for the Home Department against a decision of a Special Adjudicator made on 30 May 2001 (“the second hearing”) allowing the claimant’s appeal against a decision of the Secretary of State refusing the claimant asylum and giving directions for his removal from the United Kingdom. The decision of the Special Adjudicator on the second hearing to allow the appeal was based on the failure of the Secretary of State to comply with a direction of a Special Adjudicator made at a hearing on 22 February 2001 (“the first hearing”) to consider the claimant’s substantive asylum application. Sir Oliver Popplewell granted permission to make this application. This appeal raises the issue of whether a Special Adjudicator has the power to order the Secretary of State to reconsider the claimant’s asylum application; the Special Adjudicators at the first and second hearings obviously thought that they had but the Immigration Appeal Tribunal disagreed.

The Background

2. The claimant is a Turkish national, who in 1993 entered the United Kingdom hidden in a lorry. He is therefore an illegal immigrant as defined in Section 33(1) of the Immigration Act 1971. On 19 April 2000, the solicitors then acting for the claimant wrote to the Secretary of State stating that the claimant wished to claim asylum. On 27 April 2000, the claimant presented himself at the Immigration Division of the Home Office’s premises in Croydon and claimed asylum in person. On 25 May 2000, he was given a Statement of Evidence Form (“SEF”) to complete and to return within fourteen days and that would have meant that it had to be returned by 9 June 2000.
3. On 8 September 2000, the Secretary of State refused the claimant’s claim to asylum under paragraphs 336 and 340 of HC395 (as amended). He also refused him leave to enter and he gave the claimant notice of his intention to remove the claimant to Turkey. The refusal letter explained that the claimant had not returned the SEF and that he had failed without reasonable explanation to make a prompt and full disclosure of the facts of his claim with the result that he had failed to establish his claim to asylum. The claimant duly appealed against that decision.
4. It later transpired that the claimant had completed the required SEF, which had been returned to the Secretary of State by recorded delivery post as he demonstrated by Post Office records. The Secretary of State accepted at the first hearing in front of the Special Adjudicator that he had actually received the SEF within the prescribed period. Unfortunately, the SEF was never married up with the claimant’s asylum file and so it was not then considered by the Secretary of State. At the second hearing, the Home Office Presenting Officer could offer no satisfactory explanation for this error. Therefore, when the Secretary of State determined the application under Rule 336 and 340 of HC395, he was in error because Rule 340 could not have applied to the claimant in the light of the true facts. In common with the Special Adjudicator and the Immigration Appeal Tribunal, I regard the conduct of the Home Office as unfortunate and deserving criticism.
5. When the claimant’s appeal was considered by a Special Adjudicator at the first hearing, there was according to the determination of the Special Adjudicator who presided over the second hearing, much discussion about the status of the appeal because the claimant was able to show that he had provided to the Secretary of State the material upon which a reasoned judgment on the merits could have and should have been made by the Secretary of State. Therefore, at the first hearing the Special Adjudicator adjourned the matter for a full hearing of the appeal and he also gave some directions which were apparently the product of detailed discussion between the parties and the Adjudicator.
6. Those directions were for:-

(1) the claimant to serve on the Secretary of State copies of all relevant papers relating to a previous asylum application of the claimant by 8 March 2001 (“the first direction”).

(2) the Secretary of State to serve on the claimant copies of the record of the claimant’s 1992 asylum interview and of any other available documents relating to the claimant’s 1992 asylum claim (“the second direction”);

(3) the Secretary of State to consider the claimant’s substantive asylum claim (“the third direction”). The Special Adjudicator giving the determination after the second hearing said of this order “no date was given for this, but it is implicit that it was to be done by the date of the full hearing”.

7. Although the claimant complied with the first direction, the Secretary of State had failed to comply with the second and third directions by the date of the hearing in front of the second Adjudicator on 30 May 2001. It is the failure of the Secretary of State to comply with the third direction which has led to the order which was held by the Immigration Appeal Tribunal to be ultra vires and the enforcement of which, at the second hearing is the subject of the present challenge. In order to understand subsequent developments, it is now necessary to set out some of the relevant statutory provisions.

Statutory Provisions

8. The procedural provisions applicable are the Immigration and Asylum Appeals (Procedure) Rules 2000 (“the 2000 Rules”), which were made pursuant to provisions in, inter alia, the Immigration and Asylum Act 1999 (“the 1999 Act”) and the parts of the 2000 Rules relevant to this application are:-

Conduct of appeals

30. – (1) The appellate authority may, subject to the provisions of these rules, regulate the procedure to be followed in relation to the conduct of any appeal.

(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and in order to further that objective, the appellate authority may give directions which control the conduct of any appeal.

(3) The appellate authority may give directions under this rule orally or in writing and notice of any written directions given shall be served on the appellant or his representative (if he has one) and any other party.

(4) Directions given under this rule may, in particular, -

(a) relate to any matter concerning the preparation for a hearing and may specify the length of time allowed for anything to be done;

(c) provide for –

(i) a particular matter to be dealt with as a preliminary issue;

(ii) a pre-hearing review to be held;

(iii) the furnishing of any particulars which appear to be requisite for the determination of the appeal.

(e) limit –

(i) the number or length of documents produced by, for example, requiring a party to specify to another party the passage or part of any document on which he will rely, especially if the document has to be translated into English for the hearing;

Adjournment of hearings

31. – (1) Where an adjournment of the appeal is requested, the appellate authority shall not adjourn the hearing unless it is satisfied that refusing the adjournment would prevent the just disposal of the appeal.

(2) Where a party applies for an adjournment of a hearing, he shall, where practicable, notify all other parties of the application and –

(a) show good reason why an adjournment is necessary;

(b) establish any fact or matter relied on in support of the application; and

(c) offer a new date for the hearing.

(3) Where a hearing is adjourned, the appellate authority shall give any further directions which it considers to be necessary for the future conduct of the appeal.

Failure to comply with these rules

33. – (1) Where a party has failed –

(a) to comply with a direction given under these rules; or

(b) to comply with a provision of these rules;

and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that it is necessary to have regard to the overriding objective in rule 30(2), the appellate authority may dispose of the appeal in accordance with paragraph (2).

(2) The appellate authority may –

(a) in the case of a failure by the appellant, dismiss the appeal or, in the case of a failure by the respondent, allow the appeal, without considering its merits;

(b) determine the appeal without a hearing in accordance with rule 43;

or

(c) in the case of a failure by a party to send any document, evidence or statement of any witness, prohibit that party from relying on that document, evidence or statement at the hearing.

The second hearing

9. At the second hearing, the Special Adjudicator was faced with an application by the claimant that in the light of the Secretary of State’s failure to comply with this third direction, he should invoke Rule 33(2)(a) of the 2000 Rules and that he should allow the claimant’s appeal without first considering the merits. The Secretary of State resisted this and he sought orders for an adjournment of the hearing or for the Secretary of State to proceed with the hearing. The Adjudicator said:-

6.1 “There is a conflict between the Appellant’s rights under the legislation and the rules and the Respondent’s rights as guardians of the undoubted public interest in enforcing immigration control…

6.4 It seems to me that, whatever may be the situation in other cases, in this case there was not only an undertaking by the Respondent to consider the substantive claim but also a positive direction that he should do so. With that direction he has failed to comply. No satisfactory explanation has been given for that failure. If the respondent is not sufficiently organised, with staff or appropriate systems, to enable him to comply with a simple direction such as the one in this case, he should improve his systems and staffing levels. The original fault, it must be remembered, was his and not the Appellant’s.

6.5 Of course the purpose of Rule 33 is not to punish wrongdoers: it is to secure compliance with the overriding objective. In most cases of this type it is generally unfair for an asylum seeker to have to run his case for the first time in the adversarial context of an appeal hearing before an adjudicator. The UNHCR handbook (paragraphs 195 passim) provides the rationale for that position. It may be regarded as unjust for him to have to do so. In this case it was directed in effect that he should not have to do so. Therefore to require him to continue with the full hearing of his appeal today is no longer an option.

6.6 Rule 31(1) prohibits the grant of an adjournment unless I am satisfied that refusing the adjournment would prevent the just disposal of the appeal and Rule 31(2)(a) requires the Respondent who seeks the adjournment to show a good reason why an adjournment is necessary. Since his reason is only that he has not so far managed to comply with a simple direction, I do not find that he has shown a good reason. Since a just disposal of the appeal would as well be to allow it as to refuse it, I am not satisfied that refusing an adjournment would prevent a just disposal.

6.7 Accordingly, I refused the Respondent’s request to adjourn.

6.8 In all the circumstances, which include everything set out above, I am satisfied that it is necessary to have regard to the overriding objective and in my discretion I have decided to apply Rule 33(2). I have to consider whether the sanctions contained in Rule 33(2)(a) and (b) would be a proportionate or practical reaction to the Respondent’s failure in this case to comply with the directions. In my view the material before the Authority is insufficient to enable me to fairly decide that appeal without a hearing under Rule 43. To prohibit either party from relying on material which they have failed to provide would not be satisfactory. The failure here is more fundamental.

6.9 I have decided to apply Rule 33(2)(a). The Respondent’s failures in this case are so fundamental and have such an adverse effect on the fairness of the appeal that it would in my judgment be right to allow this appeal without considering the merits”.

The appeal to the Immigration Appeal Tribunal

10. The Secretary of State then appealed against that order with leave to the Immigration Appeal Tribunal, who allowed his appeal. It considered the third direction to be ultra vires explaining in respect of the third direction:-

“ That direction should not have been made. It was the decision of the respondent which was the subject of the appeal and that had been made under paragraphs 336 as well as paragraph 340 of HC395 and thus entailed substantive, not merely procedural, consideration of the appellant’s claim. It is true that the respondent’s treatment of the paragraph 336 requirements was cursory in the extreme but nevertheless the decision was a substantive one. In such circumstances, the direction by the adjudicator that the respondent “consider the appellant’s substantive asylum application” was effectively a direction that the respondent revise his decision. Such a direction was ultra vires”.

11. The Immigration Appeal Tribunal then went on to consider “whether, disregarding the mistaken reliance on [the third] direction, the decision to allow the appeal under Rule 33(2)(a) was valid”. It decided that it was not and that the Special Adjudicator could have either determined the application without a hearing under Rule 33(2)(g) or he could have adjourned it in accordance with Rule 31.
12. It was agreed by counsel that the issue raised on this application for judicial review is whether the Immigration Appeal Tribunal erred in law by holding that the third direction (namely that the Secretary of State should consider the claimant’s substantive asylum application) was ultra vires. Two further matters were agreed by counsel. First, although the terms of the third direction were not entirely clear, it was agreed by counsel that it should be regarded as amounting to a direction to the Secretary of State to reconsider the claimant’s asylum application. Second, it is accepted by counsel that even if the Immigration Appeal Tribunal had erred in its treatment of the second direction (namely that the Secretary of State should serve on the claimant copies of the claimant’s asylum application), this would not effect the outcome of this appeal. The reason for that was that it was common ground that if the third direction was ultra vires, the Special Adjudicator at the second hearing was not entitled to allow the appeal for the reasons that he did. Therefore, no submissions were made to me on the legitimacy or validity of the second direction and I will not consider it further.

The claimant’s submissions

13. Mr. Manjit Gill QC for the claimant contends that to construe the 2000 rules, it is necessary to bear in mind the role of an Adjudicator, which is to adjudicate on disputes between the Secretary of State and the refused asylum seeker who can appeal to the Adjudicator on certain grounds that he is a refugee, contrary to the Secretary of State’s assertion: (s.69 1999 Act). The Adjudicator considers the merits of the asylum claim and looks at the up-to-date position to assess future risk, which the Secretary of State also ought to have done. He performs this task on the basis of the issues as defined for him by the parties. It is important that the Adjudicator does not stand in the place of the Secretary of State as he is not performing an executive function, but a judicial one.
14. Mr. Gill points out that the Adjudicator is not a first-tier decision-maker and that he does not possess the resources, the specialist knowledge of internal Home Office policies and practices available to the Secretary of State or the ability to apply those practices. He explains that those factors can often lead to the grant by the Secretary of State of indefinite leave to remain because he has a peculiar knowledge of some of the matters relevant to the asylum claim or because he has policies to accept some types of claims or assertions. Thus, he says that it is not the Adjudicator’s function to act like a “super Immigration Officer”, who has to deal with the asylum claim from scratch. He carries out his task within the framework of a primarily adversarial procedure whilst always being mindful of the need not to do anything which is contrary to the Refugee Convention. Thus, whilst the Adjudicator may penalise either party for failures to comply with directions or for abuse of process, he must always ensure that, notwithstanding such failures, he does not take any action which could result in a genuine refugee going back to persecution. This protection is designed to protect the refugee and not the Secretary of State who cannot be bothered to operate the system in the way that it should operate.
15. Mr. Gill drew my attention to the section in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which indicated the importance of such procedures. He also sought to derive assistance from R (on the application of Dirisu) v. Immigration Appeal Tribunal ((30 November 2001) [2001] EWHCA Admin 970) which stresses the importance of the claimant being able to put his or her asylum claim fairly.
16. Against that background, Mr. Gill proceeds to submit that the third direction was neither a direction to revise any findings nor a direction, which would trespass on the Secretary of State’s role of deciding the asylum case on its merits. He contends that it was merely a direction to provide information as to the basis on which the Secretary of State asserted that the claimant was not a refugee as the Secretary of State had access to information which he had not previously considered.
17. Mr. Gill proceeds to submit that the third direction was properly made under the general provisions in Rule 30(1) of the 2000 Rules, particularly having regard to the overriding objective in Rule 30(2). He contended that it was an order made under Rule 30(4)(c)(iii) and its purpose was to control the process of appeal. The third direction, according to Mr. Gill, enabled the Adjudicator to discover precisely what was in issue under the overall issue of whether or not the claimant was a refugee. He contends that it was a direction intended to assist the procedural task of conducting the appeal so that the issues could be clarified.

The Secretary of State’s submissions

18. Mr. Fordham for the Secretary of State submits first that the third direction was that the Secretary of State reconsider the case substantively and so it was not a procedural direction, which was outside the scope of Rule 30 of the 2000 Rules. In support, he relies on the statement of Sir Swinton Thomas (with whom Tuckey LJ agreed) in Mwanza v. Secretary of State for the Home Department ([2001] Imm AR 557 (CA)) in which he explained (paragraph 31) that:-

“In my judgment, it is clear that the rules with which we are concerned in this appeal are procedural rules and do not deal with substantive matters. Rule 24 is concerned with a failure to comply with directions. It seems to me to be absolutely clear that the rules do not, contrary to [counsel for the asylum-seeker’s] submissions, give power to the Special Adjudicator to direct the Secretary of State to issue a fresh refusal letter which is, as the Tribunal found, a matter of substance and can only be done after proper consideration by the Secretary of State or those acting on his behalf. The appropriate way, in my view, in which to bring a prolonged matter such as this to a conclusion is for the Tribunal itself to fix the hearing date and not, save in extreme circumstances, to grant any further adjournment; that is the proper way of bringing these matters to a conclusion. In my judgment it was clearly ultra vires for the Special Adjudicator to order the Secretary of State to issue a fresh refusal letter”.

19. Second, Mr. Fordham contends that the Immigration Appeal Tribunal was correct when it took the view that the Adjudicator had no power under the Rules to make the third direction. Although the Special Adjudicator purported to present it as a procedural direction that was an erroneous classification as it was a substantive reconsideration direction. It could not be justified under any of the Rules. He fortifies that point by referring to the starred decision of the Immigration Appeal Tribunal in Ali Haddad v. Secretary of State for the Home Department [2000] INLR 117 which decided that where the Secretary of State has not considered a substantive claim for asylum, the appeal should proceed as a full hearing on the material placed before the Special Adjudicator and that such appeals should not be adjourned.

Discussion (i) Mwanza

20. Mr. Gill seeks to distinguish Mwanza first, because he says it was not decided under the 2000 Rules but under the Asylum Appeals (Procedure) Rules 1996 (“the 1996 Rules”), which he contends are materially different. Mr. Fordham disagrees and he points out that both the 1996 and the 2000 Rules contain provisions stating that the overriding objective of the conduct of appeals was “to secure the just, timely and effective disposal of appeals” (Rule 23(2) of the 1996 Rules and Rule 30(2) of the 2000 Rules). The 1996 Rules then state that in order to further that objective, the authority may give directions which “control the preparations for and conduct of, any hearing” (Rule 23(2)). The 2000 Rules say that in order to further that objective, the appellate authority can give directions which “control the conduct of any appeal” (Rule 30(2)). I do not consider that difference to be material and no cogent arguments were put forward to suggest the contrary.
21. As I have indicated, in order to justify the third direction of the 2000 Rules, Mr. Gill attaches importance to Rule 30(4)(c)(iii) which entitles directions to be given under that Rule to provide for “the furnishing of any particulars which appear to be requisite for the determination of the appeal”. Identical wording appears in Rule 23(4)(c)(iii) of the 1996 Rules. No other material differences were shown between the Rules. I must therefore reject the contention that there is a material difference between the 1996 and 2000 Rules so as to prevent the Secretary of State relying on Mwanza.
22. The next point taken by Mr. Gill is that Mwanza was decided on the basis of a direction by the Special Adjudicator in that case which was substantive in nature while the third direction in the present case was procedural. The direction in Mwanza (paragraph 9) was that:-

“The Home Office have 56 days within which to reconsider this matter and if they fail to complete the consideration in that period and wish to maintain their refusal, a fresh refusal letter must be lodged within 56 days. Failing which, their original refusal will be treated as withdrawn”.

23. I accept that there is a difference between that direction and the third direction in this case, but they are similar in significant and relevant respects because first, neither related to the procedure to be followed at the hearing and second, both gave the claimant an additional right, namely the right to a new decision with a new opportunity for success on his asylum claim. The third direction does not deal with any aspect of the conduct of the appeal to the Special Adjudicator and as such it cannot be regarded as being procedural, but it makes a substantive order that could well have affected the status of the claimant.
24. Mr. Gill also seeks to derive assistance from the fact that Mwanza was distinguished by the Immigration Appeal Tribunal in The Secretary of State for the Home Department v. Razi (21 September 2001 Immigration Appeal Tribunal Appeal Number HX/60782/00), Mr. Fordham in response points out correctly that the direction in that case was very different because the Secretary of State was ordered in that case [paragraph 4]:-

“to file and intimate at or prior to 20/4/01 a note of any reasons for refusing the substantive asylum application. Failing compliance, consideration may be given to disposing of the appeal in accordance with the [2000 Procedure Rules] Rule 33”.

25. This was a procedural direction relating to the future hearing by requiring the furnishing of particulars; that is precisely what is stipulated in Rule 30(4)(c)(iii) of the 2000 Rules. Thus the Immigration Appeal Tribunal in Razi were clearly right in that case in distinguishing Mwanza. Nevertheless, on the facts of this particular case, Mwanza is relevant and the Immigration Appeal Tribunal was correct in the conclusion at which it arrived.

Discussion (ii): The 2000 Rules

26. As I have explained, Mr. Gill says that the third direction was given by the Special Adjudicator pursuant to Rule 30(4)(c)(iii) of the 2000 Rules, which provides for “the furnishing of any particulars, which appear to be requisite for the determination of the appeal”. Such a direction is made when there is uncertainty about an allegation that has been made or when more information is required of an existing allegation. The third direction does not have that aim in mind or serve that purpose. In fact, its purpose was not to deal with an existing obligation but to ensure that the Secretary of State reconsidered the matter and that is fundamentally different from what is envisaged in that Rule.
27. Thus I am unable to accept the submission that the Immigration Appeal Tribunal erred when it held that the third direction was not permitted by the Rules. In any event, I agree with the Immigration Appeal Tribunal that the effect of the third direction was, in the words of the Immigration Appeal Tribunal, “effectively a direction that the respondent revise his decision”. In essence, the third direction did not relate to a procedural matter as it was not concerned with the conduct of the appeal, but was aimed at correcting a substantive error committed by the Secretary of State in approaching the matter on the basis that the claimant had not completed the SEF. By the third direction, the claimant was being given a substantive right not concerned with the conduct of the appeal. Thus, there was no power in the Rules to make the third direction.

Discussion (iii): The powers of an Adjudicator to make directions

28. As I have heard the full argument on this matter, I set out my conclusions. The Special Adjudicator is a creature of statute and therefore his powers are derived solely from statutory provisions. I agree with Mr. Fordham that on an asylum appeal, the Adjudicator’s statutory function in making a decision entails the Special Adjudicator considering first whether the individual concerned is a refugee and second, whether he is a person whose return would breach the Convention (1999 Act s69 (1)). When the answer is in the affirmative, the refusal of asylum is ill-founded and the appeal would be allowed (1999 Act Schedule 4 paragraph 21(1)). The Adjudicator also has the power to allow an appeal for failure to comply with the rules or directions (1999 Act Schedule 4 paragraph 4(1)(b)(i) and 2000 Rules Rule 33(1)(a)).
29. The Adjudicator also has jurisdiction to issue directions but only on two matters. The first is the issue of procedural direction to regulate the procedure to be followed in relation to the appeal (2000 Rules, Rule 30(1)(3)(4)). Second, the Adjudicator is empowered to issue implemental directions to give effect to his or her determination allowing the asylum appeal (1999 Act Schedule 4 paragraph 21(5)(a)).
30. Significantly, the Adjudicator does not have the power to issue a reconsideration direction which would require the Secretary of State to take back the matter and reach a fresh decision on whether an individual is first, a refugee and second, a person whose return would breach the Convention. The simple reason for that is the Adjudicator once seized of the matter has the function of considering the evidence and then of making a decision. He has no power to remit the case to the Secretary of State. Put in another way, the function of the Special Adjudicator is to proceed to decide the appeal whether by dismissing or allowing it. That, as the Immigration Appeal Tribunal correctly say is what the Special Adjudicator at the first hearing should have done in respect of the claimant’s appeal, but he failed to do so by giving the third direction.
31. My conclusion is that there was no power at the first hearing for the Special Adjudicator to issue the third direction and therefore no steps could be taken at the second hearing to enforce it. Thus, the Immigration Appeal Tribunal was right and in spite of Mr. Gill’s interesting submissions, the claim must be dismissed.
- - - - - - - - - - - - -

MR JUSTICE SILBER: I am very grateful to both of you for your very helpful corrections. I adopted those and also made one or two additional ones, and the final version of the judgment will be ready later this morning. I think the order that I have to make is that the claim has to be dismissed.

MR GILL: My Lord, that is right.

MR FORDHAM: My Lord, the Secretary of State makes no application for costs in this case.

MR GILL: My Lord, the claimant is publicly funded, so I would ask for detailed assessment.

MR JUSTICE SILBER: Is there is a certificate on the file?

THE CLERK OF THE COURT: I will just check, my Lord.

MR JUSTICE SILBER: If there is a certificate on the file, you will get it with the greatest of pleasure.

THE CLERK OF THE COURT: There is no certificate, my Lord.

MR JUSTICE SILBER: I will say: upon producing a certificate, I will make an order for community funding.

MR GILL: I am grateful.

My Lord, that leaves the question of permission to appeal.

MR JUSTICE SILBER: I have seen your very helpful note and am pleased to see that, in spite of your fears, you could make it this morning.

MR GILL: The listing has been kind.

MR JUSTICE SILBER: Good.

I see the points that you put out there.

MR GILL: There is not really anything else, save perhaps to add one thing, and that is that what is procedural and substantive can vary from situation to situation, and the direction, which may have (Inaudible) have some substantive impact, may also have procedural impact, and those boundaries are still left unclear by your answer, so even if your answer is rightly decided -- and I cannot in this court argue otherwise -- nevertheless there is scope for this application to succeed.

MR JUSTICE SILBER: Do you oppose that?

MR FORDHAM: My Lord, I do oppose it. Will it assist your Lordship for me to make a few submissions in relation to leave to appeal? What I was --

MR JUSTICE SILBER: Can you just make some headline points?

MR FORDHAM: Yes. The headlines are these, my Lord. Your Lordship has come to a clear conclusion. The analysis is also clear. Your Lordship could only give permission to appeal if your Lordship were persuaded of either of two things. The first of these is if it is one of those rare cases where there is a compelling reason why this appeal should be heard, but it is not in that category. The second would be for your Lordship to decide that, in your view, an appeal would have a real prospect of success. I would invite your Lordship to have the courage of your convictions. What your Lordship has done is apply the wording of the regulation to the wording of this particular direction. My Lord, in those circumstances where the concept of a procedural direction is both embedded in the wording of the law and also supported by the analysis of the Court of Appeal, and where your Lordship has said that there is no cogent argument for saying that a different approach should be taken because new rules have been formulated which are in the same form, my Lord, in our submission it is not an appropriate case for permission to appeal.

MR JUSTICE SILBER: Thank you. Is there anything you want to say?

MR GILL: As your Lordship mentioned, this was a case which was of some importance --

MR JUSTICE SILBER: I think I said it is a very interesting case.

MR GILL: In any event the tribunal has been in some difficulty (inaudible). If you recall, in one case they expressly referred to the scope of the reasoning in Mwanza. For that reason it is important from our perspective -- important from the perspective of the appellant parties and capable of (inaudible).

MR JUSTICE SILBER: I come to the conclusion that there is no compelling reason for granting permission. The prospects of success come far short of reaching the required threshold because of the previous decision of the Court of Appeal in Mwanza and also because of the wording of the rules. I ought to say that the case does raise an interesting point about what are the powers of a special adjudicator. Copies of the final judgment will be available, hopefully, by late lunchtime.

Thank you very much.

MR GILL: Thank you, my Lord.

MR JUSTICE SILBER: Can I thank you very much indeed for all your help.