England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		19th May 2003

1. MR JUSTICE WILSON: What does the law require in circumstances where an adjudicator dismisses an asylum-seeker's appeal without consideration of its merits by reason of the latter's failure to comply with a direction to attend a hearing which he later alleges that he never received?
2. Rule 30(2) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000 No 2333) empowers an adjudicator and the Immigration Appeal Tribunal ("the Tribunal") to give directions which control the conduct of appeals to them. The power is to give directions in order to further a specified objective, namely "the just, timely and effective disposal of appeals".
3. Rule 30(4) of the Rules of 2000 provides:

"Directions given under this rule may, in particular,-

...

(c) provide for-

...

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

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

4. The precursor to the Rules of 2000 was the Asylum Appeals (Procedure) Rules 1996 (SI 1996 No 2070). Although Rule 23(4)(c) of the Rules of 1996 included terms identical to those quoted from Rule 30(4) above, the power to give such directions was exercised in 2000 in order to introduce a new practice in relation to appeals to adjudicators. The new practice was to introduce the facility for a first hearing, as well as for a full hearing of the appeal. Previously, as now, appellants had been directed to confirm in writing that they were ready to proceed with the hearing on the date fixed. But the problem had been that a significant minority of appellants not only failed to provide such confirmation but failed to appear at the hearing or appeared only in order to allege an unreadiness to proceed. Under the practice introduced in 2000, the absence of written confirmation of readiness triggers a first hearing, at which any problem about the date fixed for the full hearing can be addressed and any further direction given.
5. On 28 August 2001 the Secretary of State refused the application of the claimant, who is Turkish, for asylum, and, by his solicitors, he appealed to an adjudicator against the refusal. The clerk to the adjudicator issued, or purported to issue, a Notice including a direction reflective of current practice. It was dated 25 April 2002 and notified both parties that the dates fixed for the first hearing and for the full hearing were 15 May and 19 June 2002 respectively. It continued as follows:
"DIRECTION

EITHER (1) The Appellant or representative must return the attached Reply to Directions to the Immigration Appellate Authority ... before ... 3 May 2002 ...

OR (2) The Appellant or representative must attend the First Hearing on the date given above.

Failure to attend the First Hearing without a satisfactory explanation, or to return the Reply to Directions will lead to A DETERMINATION OF THE APPEAL IN THE APPELLANT'S ABSENCE AT THE FIRST HEARING."

6. The clerk to the adjudicator kept on file a copy of the Notice endorsed with three manuscript circles around the word "1st", which indicated that on 25 April three copies of it had been despatched by first class post: the first to the claimant at his home address in Croydon; the second to his solicitors in Holborn, and the third to the Secretary of State.
7. The Secretary of State duly received his copy of the Notice.
8. No written Reply to the Directions, confirming readiness to proceed, was sent by or on behalf of the claimant, whether before or after 3 May. Furthermore neither the claimant nor his representative appeared at the first hearing on 15 May. It is probable also that no one attended on behalf of the Secretary of State.
9. Thereupon the adjudicator dismissed the appeal.
10. He did so pursuant to Rule 33 of the Rules of 2000. The Rule provides:

"(1) Where a party has failed-

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

(b) ...

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 ... without considering its merits;

(b) determine the appeal without a hearing ..."

11. The precursor to Rule 33 of the Rules of 2000 was Rule 24 of the Rules of 1996. That included a power to determine an appeal without a hearing in the event of failure to comply with a direction. But there was no parallel to the power in Rule 33(2)(a) to dismiss an appeal without even considering its merits on paper.
12. In his Determination, dictated on 15 May and issued on 22 May 2002, the adjudicator wrote:

"2. On 15 May 2002, the date set for the First Hearing of the appellant's appeal, there was no appearance by him or his representatives, Messrs Bray Walker. I ascertained from the case file that the appellant and those representatives had been correctly served with notice of the hearing. There was no explanation as to why the appellant had failed to attend.

3. On 25 April 2002 a Direction under the Immigration and Asylum Appeals (Procedure) Rules 2000 was given to the appellant, requiring him to complete and return a Reply before 3 May 2002, as an alternative to attending the First Hearing.

4. The appellant has failed to comply with that Direction, in that he has neither returned the Reply by the due date (or, indeed at all), nor has he attended the First Hearing.

5. In the light of this failure, I was required by Rule 33(1) of the Procedure Rules to proceed in accordance with Rule 33(2), given that I was satisfied, in all the circumstances, that it was desirable to do so in order to give effect to the overriding objective in Rule 30(2), namely, to secure the just, timely and effective disposal of appeals.

6. In the exercise of my discretion, I decided to proceed under Rule 33(2)(a), and dismiss the appeal, without considering its merits.

7. This appeal is accordingly dismissed."

13. The claimant's solicitors received the Determination on 23 May 2002. They say that neither they nor the claimant had ever received the Notice dated 25 April 2002, and that accordingly they were taken aback by the Determination. On 6 June 2002 they filed an application for leave to appeal to the Tribunal on that single point. Although the financial and other pressures under which they do this class of work are considerable, the solicitors were perhaps unwise to let even those nine working days pass before first making their point.
14. In a Determination dated 15 June 2002 and issued on 3 July 2002, the Tribunal refused leave to appeal. The Vice President wrote:

"The appeal was dismissed under Rule 33(2)(a) of Immigration and Asylum Appeals (Procedure) Rules 2000. The file shows that the appropriate notice was served on the applicant and his solicitors by first class post on 28 April 2002 and the first hearing was on 15 May. The rules have been complied with and I can see no reason to grant leave notwithstanding what is averred in the grounds."

15. The claimant did not issue this application for judicial review of the Tribunal's decision until 3 October 2002. This delay is unexplained and, on the face of it, was even more unwise. Permission has nevertheless been granted to proceed with the present claim and Mr Patel, on behalf of the Secretary of State, sensibly concedes that the central issue is so stark that collateral delays now pale into insignificance.
16. My task is to analyse the lawfulness of the decision not of the adjudicator but of the Tribunal, before which there was an extra piece of material. Nevertheless it may be helpful for me to begin by analysing the position of the adjudicator on 15 May 2002.
17. Before the adjudicator was evidence that the claimant had failed to comply with the direction issued on his behalf. The evidence was the annotations on the file copy of the Notice dated 25 April which indicated that copies had been sent by first class post to the claimant and to his solicitors. Under Rule 48(2)(a) of the Rules of 2000, a notice sent by post shall, unless the contrary is proved, be deemed to have been received on the second day after it was sent.
18. But, before it was open to him to dispose of the appeal in accordance with Rule 33(2), there was a second matter of which the adjudicator had to be satisfied pursuant to Rule 33(1), namely:

"... 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)."

19. I find those words curious. One might expect the Rules of 2000 to contain a provision analogous to Rule 1.2 of the Civil Procedure Rules 1998, namely that in every case management decision it is necessary for the decision-maker to have regard to (or seek to give effect to) the overriding objective.
20. At all events the adjudicator was required to look at all the circumstances, including the extent of the failure and any reasons for it. He certainly looked at the extent of the ostensible failure to comply with the direction. But he did not look at any reasons for it because no reasons were before him. There has been discussion in this court as to whether, before proceeding further, the adjudicator should have sought to discover a reason for it by, for example, causing his clerk to telephone the claimant's solicitors and to seek to collect an explanation for their absence. Such is a course which, as in these courts, adjudicators, so I am told, sometimes take. But is it legally required? Perhaps not; and certainly not in every case. One must give value to the word "any" which qualifies the word "reasons". There will always be reasons, good or bad, for a failure; but the adjudicator is required to look not at "the" reasons but only at "any" reasons which are before him.
21. Whether, however, in a particular case it would at any rate be wise for the adjudicator to seek to collect the reasons for non-appearance via, for example, a telephone call may depend on the other general object of his focus under Rule 33(1), namely "all the circumstances". Mrs Hulse, on behalf of the claimant, complains with force that in the present case there is nothing on the face of his Determination to indicate that the adjudicator had regard to one relevant circumstance: for visible in the file before him was the absence of any recorded history of failure on the part of the claimant to observe time limits, in particular the time limit for giving notice of appeal against the refusal of asylum, or of other sloth or non-cooperation with procedures for enquiry into his claim. I agree that there is ground for criticising the adjudicator for apparently failing to have regard to this feature of the forensic history.
22. At all events the adjudicator then moved from the criteria set by Rule 33(1) to the powers in Rule 33(2). Although this court must guard against pedantry, I have been concerned about the mechanism by which he made that movement. Rule 33(1) says that, if the criteria are fulfilled, the adjudicator "may" dispose of the appeal in accordance with paragraph (2). Rule 33(2) says that he "may" proceed in any one of the specified ways. Each paragraph confers a discretion: no action is mandatory. One is therefore, at first sight, surprised to read the adjudicator's observation in paragraph 5 of his Determination that Rule 33(1) "required" him to proceed in accordance with Rule 33(2). One then revisits the terms of the warning at the foot of the Notice purportedly issued, namely that failure to comply "will" (rather than "may") lead to determination of the appeal in the claimant's absence. So one is led to wonder: has the discretion somehow been forgotten? I consider, however, that in the end the adjudicator clambered out of legal error in this respect. For he went on to explain that he was "required" to proceed in accordance with Rule 33(2) only because he was satisfied that "it was desirable to do so"; so in that roundabout way he restored a discretion into his consideration of Rule 33(1). He then proceeded in terms to remind himself of the discretion inherent in Rule 33(2).
23. Before the Tribunal was an extra piece of material, namely the assertion of the claimant and his solicitors that neither of them had received a copy of the Notice. In the argument before this court close study has been given to the Vice President's treatment of that assertion in the passage of his Determination quoted in paragraph 14 above. Did he accept that the copies had not been received? Mr Patel submits that he did accept that assertion yet nevertheless lawfully refused the application. But, in my view, the Vice President was careful neither to accept it nor to reject it. He considered, so I surmise, that, were he to accept it, his refusal of the application could not be justified but that, were he to reject it, it would not be easy to articulate reasons for so doing.
24. With respect, it was unlawful for the application to the Tribunal to be despatched in that way.
25. I reject Mr Patel's submission that, even if a copy of the Notice had been received neither by the claimant nor by his solicitors, it would remain a lawful exercise of the adjudicator's discretion to dismiss the appeal without consideration of its merits. Mr Patel argues that the claimant's claim for asylum has already been considered on its merits, namely by the Secretary of State, and that any facility for appeal is, if Mr Patel will forgive my paraphrase, a bonus. I disagree: the facility for appeal is a right set by section 69 of the Immigration and Asylum Act 1999. I accept that paragraph 4(1)(b) of Schedule 4 to the Act permits a rule to be made for dismissal of appeals without consideration of merits. But, in circumstances in which no Notice has been received, there has been no failure to comply with the direction contained in it in any sense relevant to Rule 33(1). Nor could a dismissal made in such circumstances further the overriding objective set by Rule 30(2). It is no accident that the rule defines the optimum disposal as "just" before it adds "timely" and "effective". Indeed it is to be noted that justice is the only overriding objective set for civil courts by Rule 1.1(1) of the Rules of 1998.
26. Mr Patel points out that the overriding objective under Rule 30(2) is to secure the just, timely and effective disposal of "appeals" and argues that any injustice in a single case is a price worth paying for the just, timely and effective disposal of many others. But we would not pay for it: the claimant would pay for it. I have deliberately not referred to the facts of his case. It suffices to say that, correctly or otherwise, he alleges that he has a well-founded fear of persecution, for a reason specified in the Convention of 1951, in the event that he were returned to Turkey. It is noteworthy that the same argument as put by Mr Patel was rejected by Sullivan J in R v Immigration Appeal Tribunal, ex parte S [1998] IAR 252 at 265. The judge there declared the unlawfulness of a decision of an adjudicator under Rule 24 of the Rules of 1996 to proceed to determine only on paper an appeal by an appellant who was admittedly in default of directions for the filing of documents but who was present and eager to give oral evidence. Mrs Hulse is correct to say that hers is an even stronger case: for in the present case there was no determination of the merits even on paper and, if her instructions be correct, there was no default in any relevant sense.
27. What, therefore, should the Tribunal do when the applicant asserts that the Notice, by reference to which the adjudicator has dismissed the appeal without consideration of its merits, has never been received?
28. The Tribunal cannot, as it did in this case, put the assertion to one side and, in effect, ignore it. It must weigh the assertion in the normal way. If the assertion has a real prospect of being found to be true, the appeal has a real prospect of success and so, pursuant to Rule 18(7) of the Rules of 2000, leave to appeal should be granted. If, on the substantive appeal, the assertion is indeed found to be true, the appeal should be allowed and the case remitted to the adjudicator for determination on its merits.
29. The Rules currently in force, namely the Rules of 2000, do not even purport to create an irrebuttable presumption that a Notice sent by the appellate authority has been received. Rule 42(1)(a) of the Rules of 1996, which did purport to do so, was held ultra vires by the Court of Appeal in R v The Secretary of State for the Home Department, ex parte Asifa Saleem [2000] IAR 529, and has not been replicated in Rule 48(2)(a) of the Rules of 2000. The latter rule provides that if the Notice was sent, it should, unless the contrary be proved, be deemed to have been received two days later. In my view the manuscript annotations on the file copy of the Notice are evidence, albeit rebuttable, that copies were sent; and, if they were sent, Rule 48(2)(a) provides deemed, but again rebuttable, evidence that they were received. An applicant may well not be in a position to rebut the evidence that the copies were sent but nevertheless be in a position to rebut the evidence that they were received. He rebuts that evidence by persuading the Tribunal to accept his assertion and that of his solicitors that they were not received.
30. There is no doubt that the task of the Tribunal in deciding whether to accept such an assertion is unenviable. Asylum-seekers with weak cases will be strongly motivated to delay appellate proceedings; and there may be suspicions that a very small minority of solicitors (not, I am sure, including the solicitors for the claimant) sometimes fail to resist the temptation to help to achieve delay for their appellant clients. Occasionally the Secretary of State will have evidence of communications which counter the assertion of non-receipt. But it is a strong step, particularly in the light of its consequences, not to accept the assertion of any professional person that a Notice sent by post, but otherwise than by Recorded Delivery, has not been received. And if the Notice posted to the solicitors was not received, that may fortify an assertion by the appellant that a Notice apparently posted to himself in the same batch was also not received. The invidiousness of the Tribunal's task and the delay caused while it is undertaken serve only to reinforce my view that, even when on the material before him the adjudicator's dismissal without consideration of merits would be lawful, a telephone call to an appellant's solicitors and, depending on its result, an adjournment of the first hearing for, say, seven days and/or a tight direction for a written reply on a form freshly sent is an option which he may care to have in mind.
31. Therefore the decision of the Tribunal is quashed and the application for leave is remitted to it for fresh consideration.
32. Ms Beach, I think you are very kindly holding the brief for Mrs Hulse this morning.
33. MS BEACH: My Lord, yes.
34. MR JUSTICE WILSON: Are there any consequential matters?
35. MS BEACH: My Lord, clearly we would require a public funding assessment in this matter because this is something which was funded by a CLS funded certificate.
36. MR JUSTICE WILSON: Are you asking for costs as against the Secretary of State or simply a public funding assessment of your costs?
37. MS BEACH: My initial instructions were public funding assessment, but, my Lord, there are some consequences, clearly, and I believe it may be sensible to make an application for costs against the Secretary of State, but I do not actually have a schedule of costs, so it would only be a general assessment by yourself, my Lord.
38. MR JUSTICE WILSON: Or I could send it for detailed assessment.
39. MS BEACH: Yes, my Lord, that would be helpful. Clearly, we are concerned because we asked for this to be settled by consent previously, and that was refused. So we may not have reached this stage if the Secretary of State had consented. So that is a costs issue. Again, it has been a waste of public funding from the CLS side of things.
40. MR JUSTICE WILSON: On balance, you are asking for costs? Let me turn to Mr Patel. On balance, there is a claim for costs against you, Mr Patel.
41. MR PATEL: I would not want it to be said that it was waste of public funding costs because it was a point that needed to be determined. But given the judgment that your Lordship has made, I cannot resist any order for costs of the appeal.
42. MR JUSTICE WILSON: With all due respect, I agree. I order the interested party to pay the claimant's costs of and incidental to this claim. Then I say such to be the subject of detailed assessment in default of agreement. Then I go on to say that, in that, the costs of the claimant are publicly funded, such be in any event subject to detailed assessment.
43. Are there any other points, Ms Beach?
44. MS BEACH: No, my Lord.
45. MR JUSTICE WILSON: Thank you. Mr Patel?
46. MR PATEL: No, my Lord.
47. MR JUSTICE WILSON: Thank you very much.