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Cite as: [2004] UKIAT 102, [2004] UKIAT 00102

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APPEAL No. JZ (Procedure – Adjudicators – No Hearing) Ivory Coast [2004] 00102

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 13^th January 2004

Date Determination notified: 14 May 2004

Before

Mr C M G Ockelton (Deputy President)

Mr A Jordan (Vice President)

Mr J Perkins (Vice President)

Between

JZ	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms C M Fielden, instructed by Roelens Solicitors

For the Respondent: Mr M Blundell, Home Office Presenting Officer

DETERMINATION AND REASONS

The Appellant, a citizen of the Ivory Coast, appeals, with permission, against the determination of an Adjudicator, Mr M A Clements, dismissing his appeal against the decision of the Respondent to direct his removal as an illegal entrant, having refused asylum. This appeal has a remarkable and, we trust, unusual procedural history, which has caused us to decide to remit it for reconsideration at Adjudicator level.

The Appellant claims that he arrived in the United Kingdom on 13^th November 2000 using a French travel document to which he was not entitled. That, at any rate, was the day on which he sought asylum at Croydon. He was given a form to complete. He completed it on 24^th November, indicating that he had a fear of persecution for his political opinion or perceived political opinion arising out of his membership of the RDR. The Appellant made a further statement on 26^th April 2001 and was interviewed on 17^th July 2001. On the following day, 18^th July, a letter was written refusing the Appellant's claim to asylum. Two months later, on 21^st September 2001, the Respondent made the decision to direct the Appellant's removal as an illegal entrant. The Appellant appealed against that decision forthwith, that is to say on 1^st October 2001.

On receiving the notice of appeal, the Respondent was obliged by the 2000 Procedure Rules to send the relevant documents, all of which were in his possession, to the Appellate Authority "forthwith". The Respondent's interpretation of that word apparently allowed him to retain the documents for over a year before forwarding them to the Appellate Authority on 12^th December 2002. In the meantime, the Appellant had written to the Secretary of State with further evidence which he said supported his claim. The result of that was that the Secretary of State issued a supplementary letter saying that he still refused the claim to asylum and, rather surprisingly, a new notice of decision to issue removal directions. That notice is dated 28^th October 2002 and there has been no separate appeal against it. Also in the meantime, the Secretary of State wrote to the Appellant's solicitors, Irving & Co, on 16^th October 2002 indicating that the Secretary of State was satisfied that the Appellant's removal, as anticipated in the decision of September 2001, would not infringe the United Kingdom's obligations under the European Convention on Human Rights: that was, apparently, something he had forgotten to say in the first letter of refusal.

When the Appellant's appeal bundle arrived at the Appellate Authority, it was dealt with in the usual way. A notice, entitled 'Notice of First Hearing and Full Hearing' (form ADJ61) was sent to the parties and the Appellant's representative. It was issued on 17^th March 2003. It listed dates for the first hearing on Thursday 10^th April 2003 and for the full hearing on Friday 13^th May 2003. There was a direction (again in usual form) as follows:

"DIRECTION

EITHER 1. The Appellant or representative must return the attached Reply to Directions to the Immigration Appellate Authority at the correspondence address given below before Tuesday, 01 April 2003. Boxes A and D must be completed.

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.

3. IF the appeal proceeds to a Full Hearing, the Appellant must attend. The appeal will be determined in the Appellant's absence unless a satisfactory explanation is furnished.

The Directions for filling documents must be complied with 7 days before the date of the Full Hearing."

The directions for filing documents were enclosed, as was a copy of the Reply to Directions form.

That form was not sent to the Appellate Authority within the time limited by the direction. Roelens Solicitors, who were by then the Appellant's representative, sent it only on 9^th April 2003. Of course, they knew when they sent it that it was late. They knew that either they or the Appellant needed to attend the First Hearing: having failed to comply with direction 1, they needed to comply with direction 2. However, there was no appearance at the First Hearing. In due course, the Appellant and Roelens received the determination dismissing the appeal.

The appeal to the Tribunal is based on the fact that the form had been returned, although not in time. It is fair to say that Ms Fielden did not press this matter very hard before us. On the contrary, she conceded that the solicitors were entirely wrong to assume that it was satisfactory to return the form late; and she said "if the solicitors had had any sense they or the Appellant would have gone to the hearing". We entirely agree. The Appellate Authority deals with an enormous number of appeals and the interval between the closing date for return of the Reply to Directions form and the First Hearing itself is fixed so as to ensure that the form reaches the Adjudicator's file before the First Hearing takes place. It is not an arbitrary interval, intended to make things difficult for appellants, but the minimum time that is necessary to allow the Adjudicator hearing system to be run efficiently. It is quite unacceptable for appellants or their solicitors to claim that, provided that the form is returned before the hearing, that suffices. An appellant or a solicitor who does not return the form so as to comply with direction 1, needs to comply with direction 2, in other words to attend the hearing. He knows, from the terms of the direction, that if he does not attend the hearing the matter will be determined in his absence. An appellant or a solicitor who returns the form late (thus acknowledging receipt of the directions) but does not attend the First Hearing must, in our view, be taken to have deliberately decided to allow the appeal to proceed in his absence, whatever be the standard terms of the reply to directions which he has submitted late.

If that were the end of the matter, therefore, we should probably have dismissed this appeal. Although it is right to say that the Adjudicator's treatment of the substance of the case is rather summary, he does say that he has considered the papers on file and that he agrees with the Secretary of State's conclusions. Bearing in mind the lack of any real or substantive challenge by the Appellant to the decision that the Respondent had made and the detailed reasoning which the Respondent had given, that, in the circumstances of this case, would have been an adequate determination.

Whilst we were in court, however, and were checking the papers on the file in order to be certain of the history of the case, a further remarkable feature came to light. This was that Mr Clements, who, as we have said, prepared the determination of the Appellant's appeal, was not the Adjudicator who heard the appeal (insofar as there was anything to hear at the First Hearing on 10^th April 2003). On the file is a record of proceedings of that date, indicating that the appeal was before Mr M H F Clarke. There was no Presenting Officer and no appearance by or on behalf of the Appellant. Mr Clarke has written "I direct Paper Determination" and has signed it. Of course, the Appellant and his representative, not having been present on that occasion, were not aware that Mr Clarke was the Adjudicator. The determination issued by Mr Clements does not indicate that Mr Clarke was the Adjudicator. The determination is headed "Determined at Taylor House on 15.04.03" and "Determination Promulgated Date 23 April 2003" and then occur the words "Before: M A Clements Esq". The parts of the determination that deal with the procedural history before the Appellate Authority are as follows:

"2. The Appellant was not present at the hearing on the 10^th April 2003.

3. The Respondent was not represented.

…

7. I was satisfied that the parties had been properly served with the Notices of Hearing. No explanation has been put before me for the Appellant's absence. I therefore proceeded with the hearing.

8. Neither the Appellant nor the Respondent appeared or where [sic] represented. I am satisfied from the court file that the papers were properly served and in time. I decided to proceed in the absence of the parties as provided for by Rule 44 of the Immigration and Asylum Appeals (Procedure) Rules 2003."

At the end, the determination is signed and is dated 15.4.03.

We have the gravest concerns about the form of the determination. It appears to be intended to be read as indicating that Mr Clements was the Adjudicator on 10^th April. He says "I therefore proceeded with the hearing". But there does not appear to have been any hearing at which Mr Clements was present. He says "I decided to proceed in the absence of the parties", but he does not appear to have given them any opportunity to appear before him on 15^th April, which was apparently when he received and dealt with this file. What appears to have happened is that after Mr Clarke held the First Hearing, and recorded that there was no appearance, he put the file aside, making it available to any other Adjudicator who had time to write a determination on it. Mr Clements was that Adjudicator, and it is clear that so far as he was concerned, he was determining the appeal without a hearing.

The processes of determining an appeal by (or at) a hearing at which the parties may or may not be present, and of determining an appeal without a hearing, are dealt with separately by the 2003 Rules. (Those Rules came into force on 1^st April 2003 and apply to procedures taking place after that date.) Rules 44 and 45 are as follows:

"Hearing of appeal in absence of a party

44(1) An adjudicator or the Tribunal must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative

(a) has been given notice of the date, time and place of the hearing; and

(b) has given no satisfactory explanation for his absence.

(2) Where paragraph (1) does not apply, an adjudicator or the Tribunal may hear an appeal in the absence of a party if satisfied that

(a) a representative of the party is present at the hearing;

(b) the party is outside the United Kingdom;

(c) the party is suffering from a communicable disease or there is a risk of him behaving in a violent or disorderly manner;

(d) the party is unable to attend the hearing because of illness, accident or some other good reason;

(e) the party is unrepresented and it is impracticable to give him notice of the hearing; or

(f) the party has notified the appellate authority that he does not wish to attend the hearing.

Determining the appeal without a hearing
45(1) An adjudicator or the Tribunal may, subject to paragraphs (2) and (3) of this rule, determine an appeal without a hearing if

(a) all the parties to the appeal consent;

(b) the party appealing against a relevant decision is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented;

(c) a party has failed to comply with a provision of these rules or a direction of the appellate authority, and the adjudicator or Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or

(d) the adjudicator or Tribunal is satisfied, having regard to the material before him or it and the nature of the issues raised, that the appeal can be justly determined without a hearing.

(2) Where paragraph (1)(c) applies and the appellant is the party in default, the adjudicator or Tribunal may dismiss the appeal without substantive consideration, if satisfied that it is appropriate to do so.

(3) Where paragraph (1)(d) applies, the adjudicator or Tribunal must not determine the appeal without a hearing without first giving the parties notice of his or its intention to do so, and an opportunity to make written representations as to whether there should be a hearing."

When there is to be a hearing, notices of hearing are sent out (Rule 39) and the Adjudicator who is hearing the appeal makes a decision about whether to proceed to determine the appeal in the absence of the parties. If the appeal is determined as a result of that hearing, it must obviously be determined by the Adjudicator who was conducting the hearing. In the case of a "First Hearing", we would not wish to say that that Adjudicator is seised of the appeal to such an extent that no other Adjudicator can determine it without a Transfer Order being executed under Rule 52, but if some other Adjudicator does deal with the matter after the First Hearing it must be recognised that that Adjudicator is not dealing with it because he was the Adjudicator that heard it, but for some other reason.

It may well be that, in an appropriate case, the second Adjudicator decides to determine the appeal without a hearing, that is to say without any further hearing. Rule 45 indicates the circumstances in which that may happen. The Appellant's failure to attend himself or send any representative to the First Hearing, or to return the Reply to Directions, may cause the second Adjudicator to reach certain conclusions about the Appellant's interest in the appeal and the matters which he wishes an Adjudicator to determine, and as a result he may conclude that determination without a hearing is now appropriate. But that is an exercise of the second Adjudicator's discretion, not the first Adjudicator's discretion. And the second Adjudicator is not acting under Rule 44, but under Rule 45. He needs to be aware of the provisions of Rule 45(3) unless he can identify a breach of the Rules or directions, which would open the possibility of proceeding under Rule 45(1)(c).

All this applies entirely generally. But we would emphasise in addition that, if this procedure is adopted, it must be both recognised and openly acknowledged that the date when the appeal is being determined is not the date of the hearing but the date when the second Adjudicator proceeds to determine the appeal without a hearing. That aspect of the procedure means that it is equally important that the second Adjudicator reviews the facts upon which he bases the exercise of his discretion on that date and does not merely proceed as if the facts were the same as they were at the time of the First Hearing. In particular, we should have thought that it would be essential to see whether it was still the case that the Reply to Directions had not been submitted or was not available. Although, as we have indicated, there is clear justification for requiring that reply to be submitted a suitable period before the First Hearing, when the appeal is not in fact determined at that hearing but at a previously unspecified date after the First Hearing, it becomes very much more difficult to justify the rigorous application of a Rule requiring a reply to be submitted by a particular date.

To summarise, there is nothing objectionable in an Adjudicator who conducts the First Hearing passing the file to another Adjudicator to determine. If the second Adjudicator is to determine the appeal without a further hearing, however, he must do so within the parameters of Rule 45, considering whether, at the date on which he determines the appeal it is appropriate to do so without a hearing, and indicating in his determination the basis upon which he exercises his discretion and the result of that exercise.

For the foregoing reasons, we are satisfied that the determination issued by Mr Clements in this appeal was not lawful. Further, we cannot say whether he would have determined the appeal in the manner he did if he had appreciated that he had a discretion of his own to exercise under Rule 45, and that he ought to have considered whether, at the time he determined the appeal, the fact that the form had now been submitted was something which he ought to take into account.

In these circumstances, this appeal to the Tribunal is allowed and we direct that the Appellant's appeal be considered again by an Adjudicator other than Mr Clarke or Mr Clements.

C M G OCKELTON

DEPUTY PRESIDENT