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
		11th November 2005

Friday, 11th November 2005

1. MR JUSTICE GOLDRING: The claimant in this case comes from the Democratic Republic of Congo. In this application for judicial review he challenges the Secretary of State's refusal of 7th October 2004 to treat his asylum and human rights claim as a fresh one thereby depriving him of a right of appeal to the immigration judge. He alleges too that the Secretary of State acted in breach of natural justice.

The background

2. The claimant left the Democratic Republic of Congo on 13th July 2001. He arrived at Heathrow the next day. He claimed asylum on 18th July 2001. He made a statement for the purposes of his asylum claim. He was interviewed regarding it on 24th August 2001. Although I have neither the statement nor the interview, it is clear from the Secretary of State's subsequent refusal letter they were detailed. The claimant's case revolved around his claimed membership of the rebel group of Jean Pierre Bemba. He said in broad terms that he was taken away from his home, imprisoned, and persistently and seriously tortured and abused by government guards.

The Secretary of State's refusal letter of 12th September 2001

3. The decision letter of 12th September 2001 was detailed. For a number of reasons set out the Secretary of State did not accept the claimant's account as credible. He said, among other things, this:

"5. You claim to fear persecution on account of your claimed membership of the Ngbandi tribe to which the former president, Mobutu, belonged. There is no evidence that the present regime has targeted people of this ethnic origin for persecution...

"6. The Secretary of State found your claim to be an active supporter of... Bomba's rebel group to be lacking in credibility... The Secretary of State believes that your lack of knowledge about the rebel group you claimed to have assisted indicates strongly that you have never been a member... and... doubts that you have ever been arrested... in Kinshasa for involvement with this group.

"7. The Secretary of State also found your account of your various journeys within the Democratic Republic of Congo to be lacking in credibility...

"8. The Secretary of State... did not believe that... you [had]... been tortured and beaten [and] kept in appalling conditions...[he]... did not find your account of your escape from Bo to be credible. He noted that despite your claim that you were tortured and kept in a hole in the ground that daily you would be taken out to cut grass, given limited freedom of movement with guards so far away that you could run away from them without being noticed. The Secretary of State also noted that in your statement... you were helped to escape by relatives who were guards but in your interview you make no mention of their involvement in your escape...

"10. The Secretary of State noted that despite your claim to have been extensively tortured by two different groups you have not supplied any medical evidence to substantiate your claim and considers that given the substantial doubts raised about your claim you have not demonstrated to a reasonable degree that you have been tortured..."

4. A notice of appeal was subsequently submitted on the claimant's behalf by his then solicitors, Shahid Rahman. It was in general terms.

The first adjudication

5. On 1st March 2002 the claimant's appeal was heard. He was not present, neither were his solicitors, neither was anyone from the Home Office. The claimant states he received no notification of the hearing, either from Shahid Rahman or the Immigration Appellate Authority. The adjudicator dismissed the appeal. He purported to make findings regarding the claimant's credibility. The claimant instructed new legal advisers, then the African Legal Advisory Service. A notice of appeal was filed by them on the claimant's behalf. The Immigration Appeal Tribunal granted leave to appeal.

The appeal before the Immigration Appeal Tribunal

6. On 30th May 2002 the Immigration Appeal Tribunal heard the appeal. The claimant was there. He was represented by the African Legal Advisory Service. On 15th July 2002 the Refugee Legal Centre, who had now become the claimant's legal advisers, contacted the Immigration Appeals Authority about the appeal. They were told the determination had been reserved. In the files of the Refugee Legal Centre are notes which make it plain that the claimant periodically contacted the centre to ask about the progress of his case.
7. On 15th August 2002 the determination was promulgated. The claimant's appeal succeeded. The case was remitted to another adjudicator. Collins J, the President, described the adjudication as possibly one of the worst that he had ever seen. He observed that the claimant did not help himself. His representative was only instructed that day, he did not speak French. The claimant did not speak English, but only French. The tribunal therefore did not receive much help from them.

The second adjudication

8. On 22nd October 2002 the second adjudication took place. The claimant and his legal advisers, the Refugee Legal Centre, were not there. For present purposes it is agreed that, for the reasons I have adverted to, the claimant was not told of the proceedings. Neither was the Centre, although it plainly failed to find out when the appeal was to be heard.
9. In his first witness statement, submitted by his present solicitors, to the Treasury Solicitor, the claimant says he told the Refugee Legal Centre he had attended the Immigration Appeal Tribunal. He and they knew that the case had been remitted for a fresh hearing. He states that he does not believe the Refugee Legal Centre ever chased the Home Office or the Immigration Appeals Authority for the appeal date or ever prepared any documents for it.
10. Again, for present purposes, what happened is not in dispute. The Immigration Appeals Authority failed to update their files, although they were told that Shahid Rahman had ceased to act. The Immigration Appeal Tribunal's determination was sent to the wrong solicitors. The Refugee Legal Centre did not inform the Immigration Appeals Authority that they were acting for the claimant, although they did make enquiries about the progress of the Immigration Appeal Tribunal's decision and were told about it. Presumably the Authority believed the Refugee Legal Centre had some standing in the matter at the time.
11. Further, the Immigration Appeal Tribunal decision was sent to the claimant at an address from which the claimant had been moved by NASS. On 2nd April 2002 the claimant had informed the Refugee Legal Centre of his new address. They failed to tell the Immigration Appeals Authority.
12. Mr Hanratty was the adjudicator at the second appeal. It is clear he conducted the hearing with some care, albeit its scope was necessarily limited given the absence of the claimant and his legal representatives. Mr Hanratty was concerned that the claimant had not appeared. He referred to his failure to do so at the first adjudication. In paragraph 2 he said this:

"Having got Counsel to produce grounds of appeal... one really would have expected the Appellant to... co-operate with the immigration and judicial authorities in order to be able to establish his case... I spent some considerable time reading the papers in advance of the hearing... Without any explanation or apology the Appellant failed to turn up again. Nevertheless, I am very carefully looking at his case."

13. Mr Hanratty set out the contents of the refusal letter. As to evidence he said this (in paragraph 11):

"I did not have any oral evidence as the Appellant did not bother to turn up, for the second time. Nevertheless I have carefully read all the papers before me including the interview given by the Appellant and the statement."

He carefully analysed the objective evidence. Under the heading "Determination" he said this at the outset:

"As previously indicated I have very carefully read all the papers in this case including and especially the interview given by the Appellant and a statement which he made on advice of [his] solicitors..."

14. He went through the claimant's account in detail. He went on:

"18. It is not for me to say that I do not find the Appellant credible as I have not had the privilege and opportunity of hearing him give evidence. He may have had an answer to some of the points made but he has chosen not to provide them on the two occasions that he has been given, at public expense, to do so.

"19. I do find that his ignorance of the titles of the rebel groups and their operations and the ceasefire and the other reasons given in the refusal letter indicate that this Appellant was not a member of any rebel group at all. If he had been he would have known of the ceasefire in August 1999 when he was still in the country. This was major and important news. His journey and escape also are not credible. The ability of the Appellant to escape from armed guards when he was emaciated, weak, had been beaten up every day for six months and had malaria is not credible. The Appellant said that he was beaten every day for six months yet there was no medical evidence whatsoever about the Appellant's physical state produced before any of the immigration courts. The Appellant has had ample opportunity to get a detailed medical report on the injuries which I find he must have suffered if he was beaten every single day for six months.

"20. The account of his lengthy journey is also not credible... I also note that on two occasions the Appellant returned to Kinshasa, the centre of the government, when he was felt to be a spy for the rebels. His account of this lengthy journey by canoe to join the rebels where he should have been received as a hero but was regarded as a traitor is also utterly incredible. I find that is a clear example of a well-advised Appellant trying to establish that he has no possibility of internal flight because he is wanted both by the government and by the rebels and therefore he has a well-founded fear of persecution from everyone. I also accept [as suggested by the Secretary of State] that the Appellant lied about his journey to this country in that he said that he did not change planes.

"21. This Appellant has not bothered to try to establish his claim before me. I would have been pleased to have heard him give evidence... This Appellant has had every opportunity to present his case. I regret that the last time his case was listed... his case was not properly dealt with. I hope that it will be clear that I have taken a considerable amount of trouble very carefully to analyse this Appellant's case. I do not find the case credible.

"22. ...I find that he has simply come to this country because he was unemployed..."

Events after the second adjudication

15. The claimant says that neither he nor the Refugee Legal Centre ever received a copy of the second adjudication. He only found out his second appeal had been heard and had failed when NASS wrote to him on 23rd January 2003 and told him his support had ceased because his application for asylum had been refused. The claimant went to see the Refugee Legal Centre. They sought a copy of the second adjudication. They did not succeed in obtaining it. NASS in fact continued support until 17th November 2003. On 26th November 2003 the claimant was advised to obtain alternative representation.
16. On 1st December 2003 the claimant instructed his present solicitors. The next day they wrote to the Secretary of State. They did not then have the adjudication. First they asked that the claimant be permitted to remain "for compelling and compassionate reasons". Second, they asked that their representations be treated as a fresh asylum and human rights claim. They submitted that the new claim was sufficiently different from the previous one as to fall within paragraph 346 of the Immigration Rules in that it contained significant credible evidence not previously available to the claimant. On that basis, "or on grounds of natural justice, we ask that our client's case be reconsidered and if refused he be granted a full right of appeal."
17. The solicitors then set out the unhappy sequence of events which I have gone through. They referred to medical problems from which the claimant suffered and the absence of medical reports due to his previous poor representation. They suggested that there was fresh objective evidence relevant to the case. The solicitors did not seek to appeal the second adjudication out of time to the Immigration Appeal Tribunal.
18. On 1st March 2004 the claimant's solicitors wrote to the Secretary of State again. They set out at length why the medical evidence which they had obtained (and further evidence which they intended to obtain) should lead the Secretary of State to treat the claim as a fresh one in accordance with paragraph 346 of the Immigration Rules. They also stated:

"If you are minded to reject our client's claim and to agree with the previous findings on credibility we ask that at least, in accordance with the principles of natural justice, our client is given the opportunity to answer any points you wish to rely upon."

19. On 3rd June 2004 the Secretary of State responded. He suggested the fresh medical evidence was not sufficient to bring the claim within paragraph 346.
20. On 19th August 2004 the claimant's solicitors wrote to the Secretary of State again. They sent a further medical report and also, a fresh statement by the claimant dealing with, among other things, the history of the case. They suggested the fresh medical report brought the case within paragraph 346. They also suggested that there was fresh objective evidence bringing the case within that paragraph. They suggested the claimant should not be prejudiced by his absence, due to no fault of his, at the second adjudication.
21. As will shortly become apparent, the Secretary of State rejected both the medical and the objective evidence as bringing the case within paragraph 346. No one now suggests that he was not entitled to do so. The scarring found was described as compatible with abrasions in everyday life. It did not suggest the sort of persistent violence to the body complained of by the claimant and envisaged by Mr Hanratty if the account were true. The injury to the knee from which the claimant suffered was, at the highest, consistent with the claimant's account. The objective evidence is not said to be such as to bring the case within paragraph 346.

The decision letter

22. On 7th October 2004 the Secretary of State responded. As I have said, he rejected the medical and objective evidence for the purposes of paragraph 346. I do not need to set out why. In paragraph 3 he deals with the claimant's comments in his fresh statement regarding the interview. As to credibility and the second adjudication, the Secretary of State says this:

"3. ...The conclusions reached in the assessment of the asylum claim and the way in which it was expressed in the... Refusal letter have already been scrutinised on appeal to an adjudicator and... your client's appeal was dismissed. No new information has been provided to support any of these points now raised and as such it is concluded that this information was already available and is not now significant.

"4. ...[The claimant] has once again reiterated that he feels he received poor representation. This is a matter to be taken up with the Office of the Immigration Service Commissioner... Despite what you claim to be poor representation [the] case has been heard by an independent Adjudicator who acknowledging the appellant's absence noted "Nevertheless, I am very carefully looking at this case" and that "It is not for me to say that I do not find the Appellant credible as I have not had the privilege and opportunity of hearing him give evidence". The determination promulgated on 13 November 2002 clearly demonstrates that [the claimant] had a full and fair hearing despite his absence...

"9. Your client's... claim has been reconsidered on all the evidence available, including the further representations, and it is concluded... that the points you have raised do not meet the criteria set out in Paragraph 346... [His] representations do not constitute a fresh application for asylum or under the Human Rights Act and we are not prepared to reverse our decision of 13th September 2001 upheld by the independent adjudicator on 13th November 2002."

The application for judicial review

23. The claimant applied for judicial review of the decision of the Secretary of State. He alleged the claim should have been treated as a fresh one. He also alleged that he did not receive a full and fair hearing before an adjudicator. The application was refused on paper by Richards J (as he then was). In refusing it he said this:

"The decision not to treat the claimant's further representations as a fresh asylum and human rights claim was clearly reasoned and rational, and... is unarguable. Insofar as the challenge is based on an alleged denial of a full and fair hearing before an adjudicator, I do not think that the points can properly be advanced in the form of a challenge to the Secretary of State's decision in circumstances where no attempt was apparently made to challenge the second adjudicator's decision by an application for leave to appeal to the IAT out of time."

The application for permission to appeal the second adjudication

24. In the light of Richards J's observations, the claimant made an out of time application to the IAT for permission to appeal the second adjudication. The application was refused. The acting Vice President was "not persuaded that special circumstances have been disclosed which would make it unjust not to extend the time limit."
25. The tribunal's refusal to grant permission was sent to the claimant's solicitors on 21st March 2005. The claimant was told that the decision could be challenged by statutory review. No such challenge was made.
26. On 20th April 2005 the renewed application for permission to apply for judicial review was heard by Gibbs J at an oral hearing. He granted limited permission. He said in terms that the Secretary of State could not arguably be criticised for rejecting the fresh evidence relied upon by the claimant as sufficient to justify a fresh application. As to the Secretary of State's position on the issue of credibility he said this:

"...on the material available to him, the adverse findings of the Secretary of State about the applicant's credibility, set out in detail in his original decision and adhered to in his recent refusal, are rational, not obviously wrong and he was entitled to make them."

27. As I read what he said, Gibbs J granted leave solely on the basis of the alleged denial of a full and fair hearing before the second adjudicator; in other words, on the basis of the procedural history. As the judge put it, it is at least arguable that there has been a breach of natural justice.

The argument

28. As I understand it, there are two strands to Mr Khubber's submissions on behalf of the claimant. They both revolve around the suggested breach of natural justice in the second adjudication. First, Mr Khubber submits that in the light of that breach of natural justice the Secretary of State erred when he refused to treat the claim as a fresh one in accordance with paragraph 346 of the Immigration Rules. Second, and independently, he submits that he erred in his approach to the second adjudication. Given the breach of natural justice, no reliance could be placed on it. For that reason alone, the decision in the letter of 7th October 2004 cannot stand.

Paragraph 346 of the Immigration Rules

29. Paragraph 346 provided:

"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions [for granting asylum] will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:

(i) is not significant; or

(ii) is not credible; or

(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."

Mr Khubber's submissions on paragraph 346

30. Although not precisely in these terms, what Mr Khubber submits comes to this. The claimant was not at the second adjudication. That was not his fault. It was substantially the fault of the Immigration Appeal Authority. The issue in that adjudication was credibility. The claimant could not, by his oral evidence, seek to rebut the Secretary of State's assertions on credibility in his refusal letter. He could not advance, by oral evidence, what he says in his recent witness statement. The adjudicator, in the comments to which I have referred, held the claimant's absence against him. Had he known the full facts, he would not have done so. With the claimant present, the claim, as it would be presented on a further appeal, would be sufficiently different from the claim as it was presented at the second adjudication as to amount to a fresh claim for asylum. The material was not available when the appeal was determined because the claimant did not know of the appeal hearing. The Secretary of State was obliged to consider all those features and to see if the claim in the light of them could succeed. It could. That brings the case within paragraph 346.
31. In support of his submission Mr Khubber cites a number of authorities. I shall not refer to all of them. He submits that a wide and purposive interpretation should be given to paragraph 346.
32. He relies on The Queen on the application of Senkoy v Secretary of State for the Home Department [2001] INLR 555. That, and it is agreed to be so, makes it clear that a fresh claim can arise where convincing fresh evidence of the same risk of persecution subsequently becomes available or is disclosed. That, Mr Khubber submits, is the case here. That evidence would be the claimant's.
33. It is enough for there to be a "realistic prospect that a favourable view could be taken of the new claim". (See Secretary of State for the Home Department v Boybaeyi [1997] Imm AR 491 at page 497).
34. Mr Khubber submits that whether the evidence was available when the appeal was determined should be broadly determined. He relied on the observations of Brown LJ (as he then was) in The Queen on the application of Haile v Secretary of State for the Home Department [2002] INLR 283. In that case, evidence of a factual error by the adjudicator at the appeal hearing, which should have been released by the claimant's solicitor, did not prevent reliance upon it as fresh evidence. Brown LJ held that the requirement, in accordance with the Ladd v Marshall principles, that for fresh evidence to be admitted it could not (among other things) have been obtained with reasonable diligence at the trial, did not apply strictly in public law and judicial review.
35. Mr Khubber also submits that when considering the decision of the Secretary of State, I should not limit myself to the Wednesbury test. A more intrusive approach was needed.

Mr Chamberlain's submissions on paragraph 346

36. Mr Chamberlain, on behalf of the Secretary of State, submits that paragraph 346 is not the appropriate route to correct a procedural defect such as this. The words of the paragraph are clear. "Representations" does not include procedural defects. The paragraph is simple and easy to apply. It focuses on the difference between the two accounts. Moreover, he submits, the Secretary of State is quite entitled to accept the previous adjudication as correct on the issues before the adjudicator until and unless it is set aside. He submits the Secretary of State's position is similar to that of an adjudicator hearing, for example, a human rights appeal when a previous adjudicator has already made findings in respect of the same facts when dealing with a Refugee Convention appeal (see the decision of the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2003] ImmAR 1). How, he submits, could the Secretary of State be criticised for accepting an adjudicator's decision which has not been appealed? Paragraph 346 is apposite where a new situation arises which casts a different light on matters considered by the adjudicator.
37. Mr Chamberlain submits too that the evidence was available. He further submits that the claimant is unable to show that his appeal had any prospect of success.

My view on this aspect

38. The wording of paragraph 346 is clear. As it seems to me, it is intended to cover such situations as a credible fresh basis of a claim for asylum or significant fresh evidence on the merits of an existing claim. Here the significant fresh evidence relied upon for the purposes of paragraph 346 is said, in part, to be the account the claimant provides in response to the adverse findings of credibility by the adjudicator. That account, in substance, adds little.
39. On any view, it seems to me, the Secretary of State was plainly entitled so to conclude. Moreover, however broad an approach is taken to Ladd v Marshall principles in judicial review, that account was available at the hearing before the adjudicator. Again, as it seems to me, on any view the Secretary of State was entitled so to conclude. As Hughes J said in R (on the application of R) v Secretary of State for the Home Department [2005] EWHC 520 (Admin), the Secretary of State might, under paragraph 346, be entitled to take into account a claimed history of negligence by solicitors as an explanation for a failure to produce significant evidence. This is not such a case.
40. It is said too that the adjudicator's comments regarding the claimant's absence may amount to fresh evidence for the purpose of paragraph 346; that the Secretary of State was bound so to conclude.
41. It seems to me the Secretary of State was entitled to take the approach he did in response to the claimant's assertions regarding his absence. There was an apparently careful adjudication in which the claimant's account was analysed and considered. In substance, no fresh evidence on the merits had been advanced by the claimant. If there was a procedural defect such as the claimant was alleging, the Secretary of State was entitled to conclude that the appropriate remedy was an appeal.
42. In short it seems to me that the Secretary of State was entitled to conclude that this was not a case which fell within paragraph 346.

The breach of natural justice

43. Mr Khubber submits, rightly, that it is a person's right to attend and present evidence in support of his appeal. Here, through no fault of his own, the claimant was absent. His absence, submits Mr Khubber, had an impact as the adjudication shows. Natural justice requires that the claimant be given the opportunity properly to present his case.
44. In support of his submissions Mr Khubber relies on a number of cases in which decisions either of the adjudicator or the Immigration Appeal Tribunal were challenged on the grounds of a breach of natural justice. As I understand him, Mr Khubber is submitting that this court should approach the decision of the Secretary of State in his letter of 7th October 2004 in a similar way to a decision of an adjudicator or the Immigration Appeal Tribunal.
45. In support of his proposition he relies upon such authorities as R v Diggines, ex parte Rahmani and others [1985] 1 QB 1109. In that case it was held that the decision of the adjudicator had to be quashed where, through no fault of their own, the appellants had been deprived of the right to be heard.
46. In R v Tataw [2003] INLR a decision of the Immigration Appeal Tribunal was quashed where there had been a procedural defect in the proceedings before the tribunal.
47. Mr Khubber submits that the authorities show that the court should exercise its discretion to intervene on grounds of natural justice. He submits that it is irrelevant that in the authorities he relies upon it is the decision of the inferior tribunal which the court is quashing, as opposed to the decision of the Secretary of State. He submits the court can quash such a decision if reached in breach of natural justice. It is relevant, he also submits, that an adjudication is being impeached. If the court sees unfairness, it should say so.
48. Mr Chamberlain makes a number of points in response. He submits that the appropriate way to challenge a procedural defect is not by way of judicial review of the Secretary of State's decision but by appeal to the Immigration Appeal Tribunal, and, if unsuccessful, by judicial review or statutory review of that decision. That is what Richards J was effectively stating.
49. The decisions upon which Mr Khubber relies, submits Mr Chamberlain, are those in which natural justice constituted a ground to quash the relevant legal decision. That is because a breach of natural justice amounts to an error of law. The only way, submits Mr Chamberlain, in which natural justice can now succeed is by way of review of the Immigration Appeal Tribunal's decision. That is what Parliament provided.
50. At first, he submits, the claimant took the tactical decision to follow the paragraph 346 route. Then, in apparent recognition of the force of Richards J's observations, he embarked on the appeal rule. Before he completed it by seeking judicial review or statutory review of the Immigration Appeal Tribunal's decision on the grounds of breach of natural justice, he reverted to the paragraph 346 route. Effectively, the claimant is in the same position as he was when Richards J refused leave submits Mr Chamberlain. Judicial review as a remedy is not open until the appeal process has been exhausted.
51. In short, he submits the failure to appeal is fatal to the natural justice limb of the claim. In effect, he submits, the claimant is inviting me to quash the Immigration Appeal Tribunal's decision refusing to extend time.
52. Finally, Mr Chamberlain submits that, in any event, I should not quash the Secretary of State's decision. A procedural defect alone is not enough to permit the claimant to succeed. He must show some real prospect of success in any appeal. He relies upon the observations to that effect in R (on the application of Makke) v Immigration Appeal Tribunal [2005] EWCA Civ 176. Here, for the reasons advanced in the context of paragraph 346, there was no question of new material giving rise to a realistic prospect of success.

My view on this aspect

53. It seems to me that, on proper analysis, the position is as follows. First, having rightly decided that this was not a fresh claim, was the Secretary of State entitled to deal as he did with the suggestion of a breach of natural justice by the claimant's solicitor? It seems to me plain that he was entitled to deal with the suggestion in the way he did. It would be surprising if the Secretary of State, in the face of assertions by a claimant's solicitor, was obliged as a consequence to go behind the apparently lawful finding of an adjudicator in such circumstances. The Secretary of State would be entitled to conclude that the remedy for the complaint of procedural defect was an appeal by the claimant of that decision. There is therefore no basis to quash the Secretary of State's decision on that ground.
54. Second, the Secretary of State having taken a decision as he was entitled to, is there some residual discretion in this court now to quash the decision on the basis of breach of natural justice? I find it difficult to see how there could be. A lawful decision has been reached. The remedy to put right any wrong is an appeal. If the appeal fails then an application may lie to this court to quash that decision on breach of natural justice grounds (whether by judicial review or statutory review for present purposes does not matter). Here no application is made to quash the decision of the Immigration Appeal Tribunal. It could not be, for the appeal process has not been exhausted.
55. In such circumstances I do not see how this court can now intervene by quashing what I conclude was a lawful decision of the Secretary of State. What it really amounts to is this. The claimant, by seeking to quash the decision of the Secretary of State, is indirectly asking this court effectively to act as though there had been an appeal which had failed.
56. I should add this. I can understand how the claimant's solicitors initially chose to take the route they did. However, the fact is they took a tactical decision not to go for an appeal. Having, in the light of Richards J's comments, apparently realised that an appeal was necessary, it was then not taken to its final conclusion.
57. In short, the application on this second ground (as Richards J foreshadowed) fails.

Conclusion

58. It follows from what I have said that this application for judicial review fails.
59. Yes, Mr Henshaw?
60. MR HENSHAW: My Lord, I am instructed to ask for a costs order, but I am standing in this morning. I understand that my learned friend is in a position to submit that I am not entitled to ask for one. It may be sensible to hear from him first.
61. MR JUSTICE GOLDRING: I would, first of all, like to make one or two comments in the light of the observations you have made and I just want to add these words.
62. MR HENSHAW: Of course.
63. MR JUSTICE GOLDRING: I am conscious, as I indicated at the outset of the hearing, that in the final analysis, through no fault of his own, the claimant has never been heard. In the circumstances one could well understand why he may have a sense of injustice regarding what has happened. This, of course, is an asylum case and must be considered with care.
64. Mr Henshaw, in accordance with observations made by Mr Chamberlain at the outset of this case, has indicated that the Secretary of State has a power on application or request to reconsider this matter. As I understand what is said, in doing so he may permit the claimant to be heard.
65. Mr Chamberlain, and again Mr Henshaw has confirmed it, has indicated that the Secretary of State will listen to any observations I have without, of course, in any sense, committing the Secretary of State to any particular action.
66. It seems to me that on the particular and unusual facts of this case, it would be appropriate for the Secretary of State to consider this matter, assuming an application or request is made to him so to do. He, if I am right in my judgment, has been vindicated on the law. He would not, therefore, be setting any sort of precedent, a matter which, it may be, caused him some concern.
67. I just wanted to make those observations.
68. MR HENSHAW: My Lord, I am grateful. Those observations have been duly noted and will be passed back to the appropriate...
69. MR JUSTICE GOLDRING: Yes, Mr Khubber.
70. MR KHUBBER: My Lord, can I address you on three matters arising from the judgment. Those are just in relation to the body of the judgment; secondly, in relation to costs; and then matters of appeal. Just, firstly, in relation to the judgment, I just wanted to point out that there is references in the judgment to the Refugee Legal Service and the Refugee Legal Centre. It is in fact the latter, it is the Refugee Legal Centre.
71. MR JUSTICE GOLDRING: Thank you very much. I am afraid that is my typing, I am quite sure. Thank you very much. So I need to correct "Refugee Legal Service" to "Centre".
72. MR KHUBBER: My Lord, that is the first part. The second part of my submissions is in relation to costs. I would ask for no order for costs save for a detailed assessment of the claimant's publicly funded costs. The claimant is publicly funded and the course of this matter, and the factual nature of this matter, was an unusual one which has not hitherto been one that has had to be addressed by these courts.
73. MR JUSTICE GOLDRING: Do you have any observations, Mr Henshaw?
74. MR HENSHAW: My Lord. I would submit that things are a little bit different from that. Your Lordship has found that, in effect, what was taken was a tactical decision, first of all not to pursue an appeal and then not to pursue it to its natural conclusion. So it is a case where the wrong route was used and this route should not have been used at all.
75. MR JUSTICE GOLDRING: Well, Mr Henshaw, yes. Detailed assessment.
76. MR KHUBBER: My Lord, I am grateful. My Lord, the third matter is inevitably appeal. I appreciate the helpful observations that your Lordship has made, but I do wish to make this submission on the criteria under paragraph 52.3(6) and those are the two alternative or combined elements. That is, one, reasonable prospect of success, and, secondly, compelling reason. On the first part, my Lord, I am not really going to rehearse all the points I have made.
77. MR JUSTICE GOLDRING: You say you were right and I was wrong.
78. MR KHUBBER: My Lord, that is essentially that part. The only point I would make, my Lord, just in terms of the judgment, is what actually happened in this case, if I may respectfully submit, is that the solicitors addressed the observations of Richards J. They did not concede the force of them, they sought to address them so that they could not then be subsequently raised against them. That was a point that they took, and in my submission properly so, because Gibbs J appreciated the force of the course of action taken by the claimant's representatives. That is the only point I would make in relation to the course of the litigation and the route of redress pursued.
79. But, my Lord, in relation to the second aspect, and perhaps the more important aspect of compelling reasons or legal principles involved, clearly this case does raise important questions of law as regards the scope of paragraph 346. This is perhaps one of the first cases dealing with the issue of procedural defect and its impact upon a decision. Secondly, in relation to the issue of --
80. MR JUSTICE GOLDRING: Of course it has been overtaken now, has it not? 346?
81. MR KHUBBER: Certainly 346 has been overtaken by paragraph 353, but the same issue is undoubtedly going to arise again because the wording of 353 is much more in relation to doing away with the Ladd v Marshall test as opposed to any other element of paragraph 346. So there is clearly an important question here of the question of the impact of a procedural defect. In my submission, the point of importance here is, as was appreciated by Gibbs J, there was a material impact as regards that procedural defect in relation to the consideration of this case by the second adjudicator hence his grant of permission.
82. MR JUSTICE GOLDRING: Yes.
83. MR KHUBBER: My Lord, that is the first important aspect that I would say certainly should be reviewed by the Court of Appeal. The second aspect is, of course, in relation to the natural justice question. Just on the first aspect, my Lord, as regards paragraph 346, I know your Lordship observed that Mr Chamberlain indicated in the course of his submissions that paragraph 346 is simple and relatively easy to understand, the fact is that we have had at least five Court of Appeal judgments wrestling with the scope of it. So I think it would be a little too quick to say that it is easy to understand, particularly in the circumstances of this case where this question of the procedural defect and its application to paragraph 346 has been a simmering issue for some time.
84. My Lord, the second part is in relation to the question of natural justice and, again, an overlap with that in terms of right route of redress in terms of this challenge. In my submission there is an important point here, and it was a point in fact made very powerfully, if I recall correctly, in the case of ex parte Rahmani by Fox LJ, as I think he then was. The question is, had there been a breach of natural justice, never mind who by.
85. The question of importance here is that the decision under challenge is the decision of the Secretary of State. If the Secretary of State has refused to grant a fresh right of appeal it is his decision which is having the impact as regards the breach of natural justice.
86. MR JUSTICE GOLDRING: I am not going to give you permission to appeal, but I will set out in my refusal some of the matters that you raise and the Court of Appeal can then decide whether it wants to take them on board or not.
87. MR KHUBBER: I am grateful.
88. MR JUSTICE GOLDRING: Thank you both very much.