United Kingdom Asylum and Immigration Tribunal

EG (Abuse of process-legitimate expectation) Serbia and Montenegro [2005] UKIAT 00074

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 8 December 2004

Date Determination notified: 22 March 2005

Before
The Honourable Mr Justice Ouseley (President) Dr H H Storey (Vice President) Ms C Jarvis (Vice President)
Between

 

EG	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr T Buley, instructed by RFK Solicitors For the Respondent: Mr C Elliott, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a national of Serbia and Montenegro. He is an ethnic Albanian who had lived in Preshevo, southern Serbia. He appeals against the determination of an Adjudicator, Mr G D Thompson, promulgated on 28 January 2004, dismissing his appeal against a decision taken on 23 June 2003 to refuse asylum and to give directions for his removal as an illegal entrant to Serbia and Montenegro (Serbia). There had been two earlier decisions on this case. The first, on 7 August 2001, was withdrawn. There had then been a decision on 1 November 2001 to give directions for his removal to the Federal Republic of Yugoslavia (Kosovo) and to refuse asylum. The Appellant had appealed, and in a determination promulgated on 12 March 2002, an Adjudicator, Mrs R Goldfarb, allowed that appeal because she considered those directions were not in accordance with the law.
2. Mr Thompson, in his 28 January 2004 determination, found that when the Appellant left southern Serbia in 1999 he was fleeing persecution at the hands of the Serbian police, particularly the VJ Army who had targeted him for his support of the LDK. However, in view of the material change of circumstances which had occurred in southern Serbia since early 2001, the Adjudicator dismissed his asylum as well as his Article 3 grounds of appeal.
3. In relation to Article 8, Mr Thompson first considered whether the medical evidence disclosed a breach of that Article. That issue was complicated by the fact that the medical report relied on had been written by a Dr Baluchi, into whose professional conduct there was an ongoing enquiry. He concluded that he could place no reliance on this doctor's report save for the physical description it gave of the Appellant's injuries.
4. Turning to the private and family life aspects of the Appellant's Article 8 claim, he noted that the presence of the Appellant's wife and his dependants had not been raised in the notices of appeal or in Counsel's skeleton argument. In any event, he noted, the Appellant was excluded from consideration under Article 8 in relation to family life by virtue of the judgment of the Court of Appeal in Ullah & Do [2003] 1 WLR 770 on jurisdictional grounds.
5. In our view, the Adjudicator's reliance on the Court of Appeal judgment in Ullah & Do was misplaced, as the judgment of the House of Lords in the same case has confirmed: see [2004] UKHL 26, 17 June 2004. However, the issue of whether or not that reliance constituted an error of law at the time the Adjudicator promulgated his determination is not important in this case, since it had no material effect on his decision to dismiss the Article 8 grounds of appeal. In our view, that decision was fully justified for other reasons he gave.
6. Mr Thompson considered a further Article 8 argument based on the Court of Appeal judgment in Shala [2003] EWCA Civ 233. The Appellant had first been refused asylum in August 2000, removal directions being set for Kosovo. Over a period of some three years, there had subsequently been nine adjournments of the appeal against the November 2001 decision so that the Secretary of State could reconsider and amend the removal directions. It was submitted that during this period of delay, attributable solely to the Respondent, the Appellant and his wife had established a significant private life in the United Kingdom with which it would be disproportionate to interfere.
7. The Adjudicator rejected this argument largely because there was no evidence that the Appellant had been deprived by the delay of the opportunity to make an in-country application akin to that involved in the Shala case.
8. The Adjudicator gave separate consideration to an argument based on legitimate expectation, but rejected it in the following terms:

"46. Counsel also mentioned 'a legitimate expectation'. As I understood it, that doctrine only arises where there is a promulgated Government Policy, which is not followed by the Department concerned. There is no such Government Policy that I can ascertain, in the present case. Counsel argued that the breach of the intimation given by the Leeds office over the telephone, that papers would be issued to appellant, gave rise to such a 'legitimate expectation'. There is no evidence that the person in the Leeds branch who gave the indication that documents would be issued, mentioned in paragraph 7 of the solicitor's statement, was a person of sufficient seniority, or possessing sufficient authority to give such an indication. The indications are that the responsible person considering the case, who had been dealing with the solicitor previously over the telephone, was away sick at the time of that indication. I accept Counsel's assertion that there is an internal minute compiled by his instructing solicitor of the effect of that telephone conversation (that documents would be issued) but that does note mean that the person concerned had sufficient authority to give that indication. I conclude that no 'legitimate expectation' can arise from that telephone conversation."

9. The Adjudicator turned next to Counsel's argument based on there having been an "abuse of process". This he rejected by saying that there was no process on which to base such an argument. In support, he cited a starred Tribunal determination MNM [2000] UKIAT 00TH02423 * [2000] INLR 576 holding that immigration and asylum appeal proceedings did not engage Article 6 of the ECHR.
10. The grounds of appeal to the Tribunal raised four arguments which may be summarised as (i) Article 8 (the Shala point); (ii) abuse of process; (iii) legitimate expectation; and (iv) issue estoppel.
11. Permission to appeal to the Tribunal was refused on (i) the Shala grounds in particular.
12. Before us, Mr Buley for the Appellant did not pursue (iv) – the fourth grounds of appeal based on "issue estoppel" – except insofar as this equated to the concept of "abuse of process". That left as the only surviving grounds:

(ii) abuse of process/issue estoppel;

(iii) legitimate expectation.

13. These two grounds had to be examined, maintained Mr Buley, against the following background: that the Appellant's original appeal against the November 2001 decision had been allowed, that there was a course of conduct prior to and after the appeal in that the Secretary of State had not taken opportunities to correct his decision, that there had been a delay of 1½ years, and that an authorised official had given a promise that leave would be issued.

Jurisdiction

14. The decision in this case was made on 23 June 2003, hence the appeal against it arises under the 2002 Act. Mr Buley confirmed that he did not seek to rely on any human rights grounds. He based his case squarely on s84(1)(a) of this Act; the decision, he maintained, is not "in accordance with the law".
15. The appeal being under the 2002 Act also means that our jurisdiction is confined to that of a material error of law, see CA [2004] EWCA Civ 1165.

Legitimate expectation

16. Mr Buley's argument on legitimate expectation was twofold. Firstly, he submitted that the Adjudicator was plainly wrong to consider that this doctrine could only arise out of a failure to follow promulgated policy; a specific promise or practice could suffice; in this case there was both. Secondly, to the extent that the Adjudicator did go on to grapple with legitimate expectation issues, he erred in failing to find that there was a relevant practice and a relevant promise.
17. The practice was the settled policy of the Respondent to grant some form of leave to remain to asylum appellants whose appeals were allowed by Adjudicators. The promise was that made to the Appellant in December 2002, via his solicitors, that he would be issued with status papers within a few days. The grounds observed:

"'… During one particular conversation the appellant's solicitor, Mr David Foroo, was told that papers were in the process of being issued for the grant of status and would be [sic] reach the appellant in the next few days. That conversation was evidenced before the [current] Adjudicator that it did in fact take place … ."

18. On the facts of this case, the Adjudicator was wrong to doubt that the person who made the promise lacked sufficient authority, since no evidence had been adduced to show that the Home Office official did not have the requisite authority.
19. The Adjudicator also erred, contended Mr Buley, in failing to consider the proportionality or otherwise of not giving effect to that legitimate expectation. Applying the proportionality test as set out in cases such as R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 115, the Respondent could not show any overriding policy justification for resiling from his promise. On the exceptional facts of this case, there would be no detriment to any deterrent effect on other immigrants if this Appellant were now permitted to stay. It was important, added Mr Buley, to recall that at the time this Appellant entered the United Kingdom he had a legitimate claim to enter for asylum reasons.
20. Mr Elliott, for the Secretary of State, submitted that the Home Office had not sought to appeal against the original Adjudicator's determination allowing the Appellant's appeal because that determination did not deal with the substantive aspect of the appeal. There was no basis for the legitimate expectation argument since the original Adjudicator had not decided anything substantive and the Home Office official who spoke to the Appellant's solicitors plainly did not have authority to make any such representation as regards this case.
21. We accept the Adjudicator was wrong to think that the doctrine of legitimate expectation could only arise in the context of a (promulgated) governmental policy. However, we do not consider this resulted in any material error on his part, partly because he did in any event consider some legitimate expectation issues outside the policy context, but mainly because we do not accept that the Appellant had a legitimate expectation.
22. We see nothing in Mr Buley's attempt to identify a relevant practice. It is true that it is for the Secretary of State to act on a determination by an Adjudicator which allows an appeal. But how he acts depends on what the Adjudicator decides. The fact that an Adjudicator allows an appeal does not automatically entail that the Secretary of State must act on it by granting leave to remain. It may often, indeed normally, happen in asylum or human rights cases that some form of leave to remain is granted, but a decision still has to be made as to what action is appropriate. Here the appeal did no more than reject the lawfulness of the country of destination in the removal directions. It said nothing about the merits of the claims or about removeability to any other country. There was nothing in the decision to require or even to suggest that it should be given effect to by the grant of some form of leave to remain as opposed to another decision to remove him elsewhere. So there is no practice to help the Appellant.
23. Mr Elliott was not able to cast a great deal of light on what was done with the Appellant's file immediately after the original Adjudicator had allowed the appeal. It would appear it went to the Home Office branch in Leeds tasked with implementing decisions to grant leave, but plainly that entailed looking to see if a grant of leave was the appropriate action to take as a result of the decision on the appeal. It went to that office because that is where "allowed appeals" go.
24. That leads us to what was said by the official in that office in relation to the Appellant's case. The solicitor's statement does not properly describe a promise being given that leave would be issued. The solicitor knew the outcome of the appeal, which was that it had been allowed because of the supposed unlawfulness of the removal directions and not because of any substantive merits in the claim. He made his phone calls to Leeds in the self-generated expectation that the Secretary of State would either grant some permission to stay, or appeal. After some months of chasing the Immigration Service and the Home Office, he spoke to the Home Office Presenting Officers Unit on a number of occasions who referred him to Leeds on 18 December 2002. He spoke to an unnamed official; he does not say what the official was asked or was told about the inquiry or whether it had any legal significance to the case. He says "they [sic] informed me that they would issue Mr [G] with papers in the next few days". The person dealing with that file appears to have been away ill, as the solicitor knew. He continued to press Leeds but got no adequate response. On 9 January 2003, he was told that the file had gone to the Home Office Presenting Officers Unit and they said it had gone to Croydon, where he was told that the case was under consideration. Eventually, a fresh appealable decision was issued, which led to the determination which we are now considering.
25. We have no difficulty in accepting that the solicitor was told that leave would be issued because that was the usual process for cases sent to Leeds. That is where "allowed appeals" were apparently sent for consequential action to be taken, which would normally be the grant of leave. We deduce that when the file was later examined there by the person dealing with it, it was realised that this was not a normal case and that it was thus properly dealt with as an unfinished case. Within a short time after the telephone conversation, the solicitor knew that the case was still or again under consideration and had left Leeds.
26. We do not accept that this conversation, in the context of an understandable if slow administrative process, could have given rise to any soundly based expectation that a grant of leave would follow. A conventional response was given to a normal telephone inquiry. It ought to have been clear to the solicitor that any statement from the official was subject to the implied caveat that leave would follow if that were appropriate. It could not have been reasonably considered to be a representation that leave would follow, whether or not that was the appropriate consequence of the Adjudicator's decisions. In our view, no such expectation could arise in the case of a conversation of this sort with a particular individual in the absence of (i) a clear statement as to the purpose and expected consequence of any answer to the inquiry; (ii) a clear answer in consequence; and (iii) either acting to one's detriment on a clear answer as to what would happen, or some other factor which would make it unfair to go back on the supposed promise, or to go back on it without affording any opportunity to say why that should not happen. The degree of unfairness required for the former is significantly higher. There is nothing to suggest that the conversation had any such clarity or explicit purpose to it. There is nothing to suggest that any greater thought lay behind the official's answer than the normal assumption that a grant would happen simply because that was what was normally done with files sent to this particular office in Leeds.
27. Even assuming that an official said that leave would be granted and those other requirements were fulfilled, we agree with the Adjudicator that there is no evidence that any promise was made by someone with authority to make it. Mr Buley has contended that "it is clear that the respondent allowed its agent to behave in such a way as would give an ostensible authority even if the requisite authority did not exist". An agent cannot hold himself out as having authority which he does not have and so bind his principal. The principal must have held him out as the agent. However, as the Adjudicator observed, the solicitor was told that the person dealing with the Appellant's case was on sick leave. There is no evidence that the official had any authority to promise or had been held out as having authority to promise a grant of leave, let alone where it was not the inevitable consequence of the Adjudicator's decision.
28. Even if there had been an expectation, there would be no "legitimacy" to any expectation so created. The only legitimate expectation was that the consequence would emerge which gave effect to the Adjudicator's determination; this was that no grant of leave would follow immediately but only that the question of more appropriate removal directions would finally be addressed. If the determination of the original Adjudicator gave rise to any legitimate expectation on the part of the Appellant, it can only have been that there would be a decision with proper removal directions. It certainly could not have engendered an expectation that the Appellant would be treated as a refugee, or be granted leave to remain on some other basis; the original Adjudicator made no findings to suggest that.
29. The surrounding course of conduct (what Mr Buley described as "nothing being done") could not amount to the giving of a promise either by itself or together with what the official said. But even on the assumption that the Appellant's solicitors justifiably considered that a promise had been made, it was open to them, as soon as it became clear to them that leave was not going to be granted, to seek a remedy against the Secretary of State by way of Judicial Review. They did not do this. We do not accept Mr Buley's argument that the appeal lodged against the fresh decision to give removal directions, this time to Serbia and Montenegro, was an available and appropriate alternative remedy, since appeal against that decision was statutorily confined to grounds, all of which are concerned with the lawfulness of the fresh decision, not with the failure to act on the earlier decision in a particular way.
30. It would have required far stronger circumstances than exist here, where the relevant representation endured in effect for perhaps a few days before the solicitors were told that the case was again under consideration, to give rise to a substantive legitimate expectation, breach of which could be an abuse of power. There was no evidence of anything either which could have persuaded the Secretary of State to adhere to that expectation, if all that the representation generated was a requirement that the Appellant be given the chance to say why the representation should be adhered to.
31. Given that we do not accept that there was any legitimate expectation of a grant of leave, it is not necessary for us to address Mr Buley's further arguments going to the issue of the proportionality or otherwise of failing to give effect to a legitimate expectation by way of a grant of leave.

Abuse of process/issue estoppel

32. This ground of appeal relied on the fact that Mrs Goldfarb's decision in March 2002 to allow the Appellant's appeal was made against after the Respondent had persisted with removal directions to Kosovo despite nine adjournments granted by the appellate authorities with a view to the Respondent considering issuing fresh removal directions to Serbia and Montenegro. She must therefore have assumed, it was urged, that the effect of her determination was that the Respondent had lost the opportunity to argue that the Appellant should be removed at all. Both the Appellant and his solicitors believed her determination would lead to the granting of some status, presumably exceptional leave to remain.
33. This sequence of events was an abuse of process, said Mr Buley, because subsequent proceedings (before Mr Thompson) had seen matters raised which could have been litigated earlier (before Mrs Goldfarb). The Respondent could have ensured that the Appellant's refugee claim was determined by the simple expedient of amending the removal directions: it had failed to take nine opportunities to do so. This abuse was made all the more serious by the fact that in the asylum context, the passage of time can alter the outcome of the litigation, so that the Respondent may effectively achieve a benefit to itself deliberately or accidentally. He cited in support Yat Tung Investment Company Limited v Dao Heng Bank Limited [1975] AC581 and R v Governor of Pentonville Prison ex parte Tarling [1979] 1 WLR 1417.
34. Mr Buley only wished to rely on issue estoppel insofar as it equated to an abuse of process. There was any other form of issue estoppel in this case, because there was no final decision on any issue by a competent court, which the second Adjudicator was later considering.
35. The concept of abuse of process has a restricted application in the field of immigration and asylum appeals. This is not ordinary civil litigation, and in the interests of finality, is made effective within the discrete statutory framework which provides for rights of appeal against specified immigration decisions, but does not regulate the power of the Secretary of State to withdraw decisions or to make new ones. Indeed, the statutory framework expressly recognises the ability of persons to make fresh applications or claims and provides for the Secretary of State to respond in one or more ways. The system recognises the changeability of circumstances. It is true that the 1999 Act introduced the notion of the "one-stop shop", but this did not and does not impact on the power of the Secretary of State to make a fresh decision.
36. There is no equivalent to pleadings, or claim and counterclaim in the statutory appellate framework. The Secretary of State makes sequential decisions which can lead to sequential appeals. The requirement for an Appellant to bring forward all bases which he and his family have for staying does not require him to anticipate removal to where no-one proposed to remove him. The notion that a decision is variable according to informal but not appealable expressions of view by an Adjudicator, a notion which underpins the argument here, and if not so varied is incapable later of finding expression in a fresh decision, does not find support from the statutory framework.
37. It is no surprise that the immigration and asylum appeals system does not parallel ordinary civil litigation. It is inherent to decision-making on immigration and asylum applications that there may be sequential decisions, as matters change or as knowledge of an individual's origin is gained and much of what Adjudicators are enjoined to do by statute is to make a prospective assessment of risk.
38. The Adjudicator was right to observe that immigration and asylum proceedings do not come within the meaning of the phrase "determination of civil rights" so as to engage Article 6 of the ECHR. But that was not decisive of the issue of whether, in the context of the immigration and asylum appeal system, there had in any case been an abuse of process. However, once again, we do not consider that this error on the part of the Adjudicator was a material one.
39. It may be that the conduct of the Respondent in this case, in failing to amend the removal directions notwithstanding nine adjournments made so that he could consider doing so, was derelict given that he issued a fresh decision later. But there are also reasons for supposing that he was right to resist those indications, which we deal with later.
40. We do not know more about the circumstances surrounding those adjournments than what is stated by Mrs Goldfarb at paragraph 23 of her determination:

"It appears that this case has been before the appellate authorities no less than on nine occasions in order, in part, for the error made by the Respondent to be dealt with. The Respondent had, in fact, withdrawn a previous decision refusing asylum by a letter of refusal dated 7 August 2001 and removal directions were also made at that time for removal to FRY Kosovo."

41. Mrs Goldfarb went ahead and determined the appeal on the basis of the Mrs Goldfarb went ahead and determined the appeal on the basis of the unamended directions. Given that nine previous adjournments had not persuaded the Respondent to change anything, that was plainly not just a course open to her but was what should have been done much earlier. Under the Immigration and Asylum Appeals (Procedure) Rules 2003, Rule 30(1) and (2) provided:

"The Appellate Authority may, subject to the provision of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal. (2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authorities may give directions which control the conduct of any appeal."

42. Indeed, we find it difficult to understand why the Adjudicator or Adjudicators who were involved in adjourning the appeal against the 1 November 2001 decision on no less than nine occasions did not get on with deciding the appeal, rather than adjourning. There was no power for the appellate authorities to compel the Secretary of State to amend or reconsider his removal directions and, so far as we know, there was no promise to amend them. The task for an Adjudicator is not to decide whether another decision of the Secretary of State would better reflect the facts and to adjourn so that he can do what the Adjudicator thinks the Secretary of State should do, but which the Adjudicator fails to hold in an appealable determination is what the Secretary of State should do. The Adjudicator's task is to get on and decide the appeal against the decision. This was a misuse by the Adjudicators of the power to adjourn cases. There is no evidence that these were even sought by the Secretary of State. The Adjudicators should have done much earlier what Mrs Goldfarb eventually did. The Secretary of State could then appeal or make another decision. He cannot appeal informal indications.
43. The Adjudicators may or may not have been right that the Secretary of State could amend removal directions and amend thereby the decision under appeal: what was the precise relevance of the removal directions to the appeal? Would an amendment necessitate or constitute a fresh appealable decision? But Mrs Goldfarb certainly erred in law in supposing that she could allow the appeal on the basis of the unlawfulness of the removal directions by reference to the Immigration Act 1971. Her decision reflected the Tribunal's decision in Zecaj but that was overturned by the Court of Appeal, [2002] EWCA Civ 1919: no appeal lay against an asylum decision on the mere basis that the country of proposed removal fell outside the scope of paragraphs 8-10 of Schedule 2 to the Immigration Act 1971.
44. If the Secretary of State was dissatisfied with the eventual determination of the Adjudicator, made on the basis of the decision to give directions for removal to FRY (Kosovo), it would have been open to him to seek to appeal to the Tribunal or, alternatively, as he eventually did, to issue a further decision. Thus refusing to adjourn would not have left the parties without a remedy against the eventual decision.
45. We do not accept that Mrs Goldfarb said anything to suggest that the effect of her determination was that the Respondent, to use Mr Buley's words, "had lost the opportunity to argue that the appellant should be removed". She reached no findings or conclusions whatsoever regarding whether removal in consequence of the refusal decision would be contrary to the Refugee Convention. Her assessment was confined to setting out paragraphs 9 and 10 of Schedule 2 to the Immigration Act 1971 and then finding that the Appellant did not come under any of the categories authorised by these provisions for lawful removal. She ended:

"I consider that the present removal directions are not legal, they cannot be enforced, the respondent has had a very considerable amount of time to deal with this case lawfully and they [sic] have failed to do so."

46. We also add that since it was plain in this case that the Secretary of State had made removal directions to the correct country of nationality, it is hard to see why the specification of removal to one part of that country rather than to another part could itself invalidate the removal directions. It may have been a matter on which, in the light of the Appellant's fears at the time as regards Serbia, there was scope for a Secretary of State undertaking, but it remained the case that the removal directions were in accordance with paragraph 8 of Schedule 2 of the Immigration Act 1971.
47. It might have been open to the Appellant to seek Judicial Review of the Secretary of State's decision to issue directions which reflected the determination, were it an abuse of power. The Appellant did not do so; he instituted these proceedings against that decision. It is necessary for the IAA then to deal with this appeal, which of course is not what is said to be an abuse of process. The fresh Secretary of State decision is not an abuse of IAA processes of itself, for it does not engage them; that is done by the appeal.
48. The Secretary of State could have amended his decision, in the eyes of the Adjudicator: the statutory basis for that is however unclear, as is the status of such an amendment. But he could issue a fresh decision rather than amend an existing decision, thereby giving further rights of appeal. This is a necessary power, because the effect of a determination may mean that another country of removal has to be considered either after nationality has been determined, or after a claimed nationality has been rejected. The decision and appeal-making structure does not envisage that the Secretary of State bring forward in his decision all countries to which an individual might be removable, nor does the individual have to anticipate all of those in his one-stop appeal. If there is an entitlement to amend, it is not an obligation and does not preclude an Adjudicator's decision on the case put forward.
49. For the above reasons, we reject Mr Buley's argument that a matter was raised in subsequent proceedings which could or should have been dealt with in earlier proceedings.
50. For the above reasons, this appeal is dismissed. It is reported for what we say about the adjournments, the decision-making process, legitimate expectation and abuse of process.

MR JUSTICE OUSELEY

PRESIDENT