Scottish Court of Session Decisions

[1] The petitioner seeks judicial review of decisions of the special adjudicator to decline to adjourn the hearing of the petitioner's appeal before him although a medical certificate had been lodged certifying the medical unfitness of the petitioner to attend the hearing.

[2] In terms of Article 5 of the petition, the petitioner was born in Pakistan on 21 August 1949. He entered the United Kingdom illegally on or about 15 April 1996. He sought political asylum in the United Kingdom on 19 April 1996. The application was refused in a letter dated 13 November 1997. On 10 December 1997 the petitioner was served with directions for his removal to Pakistan. He exercised his right to appeal to a special adjudicator against the making of the order, on the ground that the implementation thereof would place the United Kingdom in breach of its obligations under the 1951 United Nations Convention on the Status of Refugees.

[3] In terms of Article 6 of the petition, the hearing of the appeal was scheduled to take place on 1 April 1998. The petitioner became unwell. On 30 March 1998 he attended his general medical practitioner, Dr S.R. Chaudray of Keir Street, Glasgow. The doctor certified that the petitioner was suffering from low blood pressure and effusion of his left knee. He certified the petitioner to be unfit to attend the appeal hearing. The petitioner's solicitor, Dilip K. Deb, sent a copy of the certificate to the clerical office in Glasgow which deals with such appeals. He did so under cover of a letter dated 30 March 1998 seeking an adjournment of the appeal. By letter dated 31 March 1998 this was refused. The solicitor then withdrew from acting as he had no instructions to represent the petitioner in his absence. He intimated this to the clerical office on 31 March 1998. The special adjudicator concluded that he was not satisfied that an adjournment was necessary for the just disposal of the appeal.

[4] In terms of Article 7 of the petition, on 1 April 1998 Mungo Deans, a special adjudicator, heard the appeal. He was aware that the solicitor had withdrawn from acting. He decided to hear the appeal outwith the presence of the petitioner. He did not try to ascertain whether the petitioner had been advised that he had to be present in person to argue his appeal. He concluded that he had not been furnished with a satisfactory explanation of the petitioner's absence.

[5] In terms of Article 8 of the petition, the special adjudicator erred in law when he refused an adjournment. No reasonable special adjudicator would have concluded that he had not been given a proper reason for an adjournment. He applied the wrong test to the request for an adjournment. He stated that he was not satisfied that the medical conditions described on the certificate would prevent the petitioner from appearing. He had no evidence upon which to base such an assertion. The special adjudicator erred in law in hearing the appeal outwith the presence of the petitioner. No reasonable special adjudicator would have heard the appeal outwith the presence of the petitioner. The hearing was of the utmost importance to the petitioner. He has no right of appeal from the decision reached on the appeal. The special adjudicator could not have been satisfied that the petitioner knew that he had to be personally present on 1 April 1998 to argue his appeal.

[6] The petitioner was apprehended on 18 June 1998. In terms of the petition, he also sought liberation but he has in fact been liberated.

[7] Mr MacDonald, for the petitioner, referred to the Asylum Appeals (Procedure) Rules 1996, which govern procedure in appeals in asylum cases.

[8] Rule 10 provides,

[9] Mr MacDonald explained that rule 9(1) and (2), which concern time limits, had no application to the present matter.

[10] Mr MacDonald then referred to the provisions of rule 33(1), which provides,

[11] Mr MacDonald said that, in view of the terms of rule 33(1), the special adjudicator, in proceeding with the appeal hearing in the absence of the petitioner, must have done so using some power other than that provided for in rule 33(1). It was reasonable to read into the decision of the special adjudicator that the petitioner had not furnished him with a satisfactory explanation of his absence in terms of rule 33(3) because the medical certificate containing the explanation for his absence had already been considered unsatisfactory.

[12] Mr MacDonald said that he accepted that the onus was on the person seeking an adjournment to satisfy the special adjudicator that the adjournment was necessary in terms of rule 10(2). The criteria involved justice, timeliness and effectiveness of the conduct of the proceedings.

[13] The letter from the petitioner's solicitor to the appeals office dated 30 March 1998 referred to the hearing on 1 April 1998 at 10.00am and said,

The medical certificate enclosed was also dated 30 March 1998 and stated,

[14] Upon receipt of the solicitor's letter and enclosed certificate, the clerk to the adjudicator responded to the petitioner's solicitor by faxed letter dated 31.3.98, referring to the petitioner's scheduled hearing for the following day and to the solicitor's letter of 30 March requesting an adjournment of the appeal. She intimated,

[15] Mr Macdonald said that he accepted that the rules did not require reasons to be specified for a decision to decline an application for adjournment. The position was different in the case of a determination (rule 2(3)(b)).

[16] Mr MacDonald then referred to the case of Jeneba Deen-Koroma v Immigration Appeal Tribunal (1997 Imm. A.R. page 242), a decision of the Court of Appeal. That case concerned application of the Immigration Appeals and Procedure (Rules) 1984, in force prior to the 1996 rules replacing them. In that case, the special adjudicator determined the appeal in the absence of the applicant or her representative after an application for adjournment had been refused and a medical certificate received on the morning of the hearing which, so far as legible, revealed no reason why the applicant could not attend the court. There was no explanation for the failure of the representative to attend. It was argued on behalf of the appellant that the special adjudicator was obliged to accept a medical certificate as prima facie evidence that the applicant could not attend court, and his decision in the circumstances to proceed with the case was Wednesbury unreasonable. (Associated Provincial Picture Houses v Wednesbury Corporation (1948 1 K.B. 223)). It was held that there was no law which obliged the adjudicator in the circumstances to accept the medical certificate, received at the last minute and with no explanation why the applicant could not attend the hearing. The adjudicator's decision to proceed with the hearing was not Wednesbury unreasonable. Saville L.J. (at page 243) quoted what the special adjudicator had to say about the medical certificate, namely that the doctor had stated,

Saville L.J. said that he was satisfied that the special adjudicator had properly applied the relevant rules. With regard to the contention that the special adjudicator was bound by law to accept the certificate unless there was some evidence which could reasonably entitle him to reject it, he said that where the certificate had arrived at the last moment and was to a degree illegible it seemed to him that there is no law which requires the adjudicator nevertheless to accept it on its face value. The certificate did not provide an explanation as to why the applicant was unable to attend court for two weeks. It contained references to her back pain and palpitations but, as the adjudicator himself pointed out, it did not make clear why it was that she would be unable to attend court. He considered the point as to Wednesbury unreasonableness to be the central point because the short question in the case came to be whether the decision of the special adjudicator refusing an adjournment was so unfair that it was one which no special adjudicator, properly applying himself to his task, could have reached. He was unpersuaded that it was arguable that this was such a case. He did say that it could perhaps be described as a tough decision, but he was unable to subscribe to the proposition that it was a decision which no special adjudicator, properly applying himself to his task, could have reached. Morritt L.J and Thorpe L.J. agreed that the application should be dismissed.

[17] Mr MacDonald submitted that the situation in the present case was materially different. The certificate was lodged not at the last minute but some eleven hours before the hearing. He said that, furthermore, there was no dispute in the present case as to the terms of the medical certificate. He further submitted that the decision of the Court of Appeal was wrong and that there was a duty on the special adjudicator to enter into some form of dialogue in the circumstances which had occurred in that case. In the circumstances of the present case, no reasonable special adjudicator would have heard the appeal in the absence of the appellant. The special adjudicator should have accepted that he had been furnished with a satisfactory explanation of the petitioner's absence and should not have proceeded to a hearing. In his determination and reasons for refusing the petitioner's appeal, the special adjudicator had used the language of rule 10 to explain why he declined the application for adjournment, stating that it was because he was not satisfied that an adjournment was necessary for the just disposal of the appeal having regard to the need to secure the just, timely and effective conduct of the proceedings.

[18] Mr MacDonald submitted that, in the whole circumstances, the reductions of the special adjudicator's decisions to refuse the adjournment sought in terms of his faxed letter of 31 March 1998 and to proceed with the hearing on the following day in the absence of the petitioner despite the application for adjournment should be granted.

[19] Mr Murphy, for the respondent, said that he accepted that, if there was to be reduction as sought for the petitioner, the appeal should be remitted back to a special adjudicator other than Mr Deans to be heard anew. Mr Murphy said that it appeared that there were truly three decisions of the special adjudicator being attacked. These were firstly, the refusal to grant an adjournment in the faxed letter of 31 March 1998, secondly, the failure to give adequate and proper reasons in that letter for that decision and thirdly, the decision to hear the appeal outwith the presence of the appellant on 1 April 1998. The third was necessarily dependent on the first. Accordingly the crux of the matter concerned the first two decisions mentioned. It was agreed that there was an onus on the applicant in terms of rule 10 to make out a case for adjournment. The special adjudicator was entitled to view the certificate critically and reach his conclusions so long as they could be justified objectively. It was accepted that on the face of the certificate it was issued by a qualified doctor and indicated that the petitioner would be unable to attend the appeal hearing. It was also accepted that the reasons given by the doctor in the certificate for inability to attend the hearing were reasons which may or may not be a good reason for inability to attend. This was the case so far as those reasons, namely low blood pressure and effusion of left knee, are concerned singly or collectively. The special adjudicator was entitled to say that he was not satisfied. He was not bound to be satisfied. The important point is that what the solicitor had been informed was that the special adjudicator was not satisfied. It was necessary for the solicitor to proceed on the basis that the certificate had not satisfied the special adjudicator. The solicitor could have obtained amplification of the certificate and, in any event, attended on the day of the hearing and renewed the motion for adjournment. It was to be assumed in the absence of any explanation in the petition as to what had passed between the petitioner's solicitor and the petitioner on 31 March 2000 that the petitioner knew that the application for adjournment had been refused and that he knew that his solicitor was not going to attend on the following day.

[20] At this stage of the hearing, I invited Mr MacDonald to attempt to ascertain what had actually passed between the petitioner and his solicitor on 31 March 2000 in particular. Mr MacDonald ascertained that after receipt of notification of refusal of the application for adjournment, the solicitor spoke by telephone to the petitioner. He told the petitioner the application to adjourn had been refused. The petitioner had repeated that he was unfit to attend the next day. The solicitor, realising that full oral presentation of the appeal could not be achieved in the petitioner's absence decided that the only appropriate course was for him to withdraw from acting. Mr MacDonald said that it was a fair inference that the solicitor told the petitioner that he could not act for him and that the petitioner accepted that the solicitor could not present the case fully without him. Mr MacDonald said that it was accepted that the petitioner knew that the hearing was to take place on 1 April 2000, that the application for adjournment on the basis of the certificate which he had given to his solicitor had been refused, that he knew directly or by implication that the hearing was still going to take place and that he would not be represented at it. Mr MacDonald submitted that once the letter of 31 March 1998 from the adjudicator's office had been sent, nothing done by the petitioner or his agent was capable of curing any defect in what had happened. He accepted that any decision on 31 March 2000 as to refusal of the application for adjournment was a decision in hoc statu. He also stated that he accepted that the petitioner cannot found on any shortcomings on the part of his solicitor in conduct of the case if there was any question of any such shortcomings in the circumstances (Al-Mehdawi v Secretary of State for the Home Department (1990 1 A.C. 876)).

[21] Mr Murphy said that, in the light of Mr MacDonald's explanation of what had happened, it was clear that the petitioner and his solicitor had decided that the only appropriate thing to do was for the solicitor to withdraw from acting. On the day of the appeal hearing there was no appearance for the petitioner. It must have been known to the solicitor that there would be no special circumstances to change the position concerning the application for adjournment. Notice of the hearing had been properly served in terms of the 1996 rules. The Deen-Koroma decision in the Court of Appeal showed that the special adjudicator was entitled to look behind the medical certificate. There was no material difference in the present case. Mr Murphy referred to the case of R v Secretary of State for the Home Department ex parte Lal Singh (1998 Imm. A.R. page 320). In that case, the applicant had been refused asylum by the Secretary of State. He appealed. The day before the hearing date set for his appeal his representatives applied for an adjournment submitting a medical certificate. The representatives were told that the certificate was unsatisfactory and no adjournment had been granted. There was then no appearance before the adjudicator who determined the appeal in the absence of the appellant. It was argued that the adjudicator's decision to determine the appeal in the absence of the appellant had been unreasonable. Sullivan J. held that the adjudicator's decision had not been unreasonable, that the medical certificate had given no information as to why the applicant could not have travelled to the hearing and the representatives had made no effort to follow up the certificate by providing further medical evidence, that the adjudicator was not obliged simply to accept at its face value a medical certificate in the terms of the certificate submitted and that the application was refused on its merits. The certificate in that case stated,

On the same day, 28 May, the appellate authority had telephoned the applicant's solicitors to tell them that that application had been refused and sent a fax confirming the refusal. It appears that no further action was taken by either the applicant or his solicitors in order to obtain further information from the doctor or confirmation of what the position was on 29 May. The special adjudicator concluded that,

Sullivan J. concluded (at page 322),

Mr Murphy pointed out that the present was a "fast track" case and had been certified as such by the Secretary of State. There was no evidence of torture. The appeal hearing had already been adjourned on an earlier occasion to enable documents to be translated for presentation of the appeal. The application for reduction should be refused.

[22] In my opinion, there is no sound reason for granting the reduction sought. I agree with the submissions for the respondent and reject those for the petitioner. In particular, it is clear that the special adjudicator was not bound by the opinion expressed in the doctor's certificate to the effect that the petitioner was unfit to attend the appeal hearing. It was fairly accepted for the respondent that either or both of the conditions of low blood pressure and effusion of the left knee could incapacitate an applicant whereby that applicant was unfit to attend a hearing but in my view the special adjudicator was no more bound to accept the certification of unfitness proffered in the present case than was the special adjudicator in either of the two cases cited. More generally, I agree that in determining whether he or she is satisfied in terms of rule 10(2) of the 1996 rules that an adjournment is necessary for the just disposal of the appeal, a special adjudicator is not bound to be satisfied as to an applicant's ability to attend merely because the terms of a doctor's certificate include certification to that effect. It follows that it was incumbent upon the petitioner, once he had received notification of the refusal to grant the adjournment through his solicitor, to decide whether to seek to obtain amplification of the medical certificate already obtained or further medical information from another source, or to arrange for the solicitor to appear on the morning of the hearing to make further representation upon the matter or, as actually happened, to decide effectively to do nothing whereby there was no appearance for the petitioner at the appeal hearing. In my opinion, it cannot be said that the special adjudicator acted unfairly or unreasonably, bearing in mind that he was required under the rules to proceed unless he was satisfied that the interest of justice required an adjournment. In my opinion, the decision of the special adjudicator refusing an adjournment and his subsequent decision to continue with the hearing in the absence of the petitioner cannot be said to be decisions so unfair that they are ones which no special adjudicator properly applying himself to his task could have reached.

[23] In the whole circumstances I repel the first plea-in-law for the petitioner and sustain the first plea-in-law for the respondent. It is agreed that the second plea-in-law for the petitioner should be repelled as unnecessary and I sustain the second plea-in-law for the respondent to that effect.