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
		27th January 2004

Tuesday, 27th January 2004

MR JUSTICE SULLIVAN:


1. This is an application for judicial review of a decision by the Immigration Appeal Tribunal, dated 11th March 2003, refusing leave to appeal against an adjudicator's determination. The adjudicator's determination was promulgated on 13th January 2003.
2. The claimant is a Polish national, but a citizen of Pakistan. His claim for asylum was rejected by the Secretary of State and he appealed. In due course the appeal came before the adjudicator on 13th December 2002.
3. The claimant was initially represented by counsel, Mr Hussain. The adjudicator's determination records that Mr Hussain made an application for an adjournment on behalf of the claimant upon the basis that there was a letter from the Polish government asking for reasons relating to the claimant's nationality application and why reasons were not going to be given, and there was not a proper translation available. There was another letter from the Polish government responsible for issuing nationality to the Secret Service section, asking whether there was any reason why a passport or nationality should or should not be given to the appellant. It was said that this letter was incorrect and it was beyond the power of the government to ask for such a report.
4. That was the limited basis on which an adjournment was sought, and it is to be noted that the adjournment was not sought until the opening of the hearing. No earlier indication had been given that an application would be made for an adjournment.
5. The statutory framework within which the adjudicator had to consider that application is to be found in the Immigration and Asylum (Procedure) Rules 2000. Rule 31(1) provides:

"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".

Thus, there is a very clear statutory steer given to adjudicators not to adjourn unless a refusal would prevent justice from being done.

6. It is against that background that the adjudicator's explanation for refusing the adjournment sought by counsel has to be considered. The adjudicator says this:

"I refused the adjournment as firstly this matter had been outstanding for some considerable time, the decision appealed against being given in February 2002 but more importantly the matters contained within that application were already canvassed by the appellant in his evidence. What weight I gave to such matters was to be considered in the round at the end of the hearing but I noted that both the appellant and his wife were present, it was stated that they could speak both Polish and English fluently."

7. I should say that the claimant has told me that he does not speak Polish. However, his inability to speak Polish was not a matter that was raised in the grounds of appeal to the Immigration Appeal Tribunal.
8. In any event, the adjudicator having refused the application for an adjournment, counsel then felt that he did not have sufficient instructions to proceed and therefore withdrew from the case. So the adjudicator then turned to the claimant and his wife. He briefly introduced them to the procedures and ensured that they could speak English. He indicated that he was not minded to accept any request from them for an adjournment. That is readily understandable given the terms of Rule 31 which I have set out above. But, importantly, the adjudicator says this in paragraph 7 of his determination:

"In actual fact both the appellant and his wife made it crystal clear that in fact they were vehemently opposed to any adjournment and wished the matter determined that day. The matter was then adjourned over lunch to enable them to speak to their Counsel if he was so minded as to advise them as to any procedure to follow."

9. Apparently counsel did not change his mind and the case then proceeded with the claimant and his wife representing themselves. The adjudicator heard their oral evidence. He also considered the documentary evidence. That included the documents in question which the adjudicator described as:

"... a letter in Polish from the Governor to the URP (considered to be the state security operators). I was informed by the appellant and his wife that this was a request for details concerning the appellant's application for nationality and whether or not there was any security implications."

10. The second letter was:

"... again in Polish for the Passport Office informing the appellant that the intended to start to cancel his application for Polish citizenship referring to various legal provisions dated 8th July 1999".

There was what was said to be a translation of the first of those two documents.

11. The grounds for appeal to the Immigration Appeal Tribunal contended that the claimant was deprived of the right to legal representation:

"My counsel applied for an adjournment on the basis that one letter was not translated and the other was translated incorrectly... In fact my counsel knew nothing about my case. We met each other first time on the day of hearing and I believe on that day he started to read all my history. Anyway, the adjournment request was refused by the adjudicator, so my counsel withdrew from the case. In further procedure I was never asked if I would like any legal representation".

12. In response to that ground of challenge the Tribunal said this:

"The claimant's counsel withdrew before the Adjudicator. The Adjudicator offered the claimant, who is an educated man, an adjournment. He declined the offer. Thereafter the proceedings seem to me to have been conducted fairly and applying the correct legal principles to the questions that arose. I can accordingly see nothing in grounds 1 to 5 that could found an appeal.

"Likewise I am of the view that the other grounds are without real substance".

The Tribunal then went on to say why it concluded that the other grounds had no real substance.

13. The sole issue raised in this claim for judicial review is the alleged failure by the adjudicator to enable the claimant to have legal representation. The claim form says:

"I have had no legal representation before the Adjudicator which I believe I am entitled to under Article 6 of the Human Rights Act 1999."

14. The claim form further asserts that the right of legal representation was denied by the adjudicator and the claimant was not given an opportunity to have legal representation.
15. In my judgment there is no possible basis for saying that the adjudicator denied the claimant legal representation. The claimant had legal representation, counsel made an application for an adjournment. That application for an adjournment was refused, for perfectly understandable reasons. What is not understandable, however, is why counsel found it necessary to withdraw from the case, that application for an adjournment having been refused by the adjudicator. But that is not a matter that can be laid at the door of the adjudicator.
16. Moreover, the adjudicator records what occurred in front of him. That is to say, that the claimant and his wife were not seeking an adjournment, having been deprived of counsel's services. They wished to proceed with the matter. There is no satisfactory evidence, and I underline evidence as opposed to submissions, as to what occurred before the adjudicator, to displace the adjudicator's account of what happened at the hearing on 13th December 2002.
17. So the position as presented to the Immigration Appeal Tribunal was this: counsel had asked for an adjournment, the adjournment had been refused, counsel had withdrawn, the claimants then wished to proceed. In those circumstances it is not in the least surprising that the Immigration Appeal Tribunal declined to grant permission to appeal. There is no question of the claimant being deprived of legal representation. Nor is it arguable that the refusal of the adjournment was not within the powers of the adjudicator.
18. I have already mentioned the fact that the application was made without any prior warning on the morning of the hearing. It related to alleged inaccuracies in two documents which had been translated. The adjudicator was under the impression that the claimant and his wife spoke Polish, as well as English, and indeed some form of translation of the documents had been provided and they had been incorporated into the claimant's account of events. In those circumstances it is not surprising that the adjudicator refused the adjournment.
19. For all these reasons, in my judgment, there was no error of law in the Tribunal's decision refusing permission to appeal. I therefore dismiss this application for judicial review.
20. Thank you, Mr Syed.