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R v. Immigration Appeal Tribunal, Ex parte S

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 9 February 1998
Cite as R v. Immigration Appeal Tribunal, Ex parte S, United Kingdom: High Court (England and Wales), 9 February 1998, available at: http://www.refworld.org/docid/3ae6b61bc.html [accessed 26 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE S

Queen's Bench Division
Sullivan J
9 February 1998

Asylum - Appeals - Whether there is absolute right to oral hearing in asylum appeals - Whether appeal can be determined without oral hearing where appellant has failed to comply with directions - Whether appeal can be determined without oral hearing where credibility is in issue or where there has been abuse of power - Whether appeal can be determined without oral hearing despite full compliance with directions - Meanin g of ‘disposed of justly' - Whether rr 24, 35(1)(e) of the Asylum Appeals (Procedure) Rules 1996 are ultra vires - Immigration Act 1971 ss 20, 22 - Asylum and Immigration Act 1993 s 8

The applicant, a national of Kenya, applied for asylum on the grounds of his activities for the IPK, asserting that he had been arrested, detained and beaten by the Kenyan authorities. On 6 March 1996 the Secretary of State refused the application. The applicant appealed and on 23 December 1996 the hearing was adjourned by a special adjudicator because the applicant had not been given sufficient notice of the hearing. The special adjudicator issued, in the course of adjourning the hearing, directions pursuant to r 23 of the Asylum Appeals (Procedure) Rules 1996 requiring the applicant to file witness statements, bundles of documents, a chronology and (unless the applicant was unrepresented) a skeleton argument. A copy of the directions was given to the applicant but its contents were not explained to him. On 7 February 1997 the matter came before another special adjudicator. Although the applicant did not attend due to ill health, counsel appeared on his behalf and E submitted a medical certificate confirming the applicant's inability to attend. An adjournment was granted and the special adjudicator reissued the earlier directions and provided a copy for counsel. The matter came before the same special adjudicator on 29 May 1997 when the applicant attended with his counsel and a witness. The special adjudicator, after drawing attention to the fact that the directions had not been complied with, proceeded to determine the appeal without a hearing pursuant to r 24(1)(c) of the 1996 rules. In his subsequent determination the special adjudicator dismissed the applicant's appeal and found that he was not credible. On 26 June 1997 the Immigration Appeal Tribunal refused leave to appeal. The applicant applied for judicial review of the Tribunal's decision, leave to move having been granted by Scott Baker J.

Held - allowing the application -

(1)Given that there was no necessary inference to be drawn from ss 20 and 22 of the Immigration Act 1971 that there must be an oral hearing in all immigration cases, no such inference could be properly drawn from s 8 of the Asylum and Immigration Appeals Act 1993, the effect of which was simply to confer a right of appeal. The policy of the 1993 Act was, however, to provide for appeals which would normally be by way of an oral hearing. However, given the subject matter of asylum appeals, the types of cases where it would be appropriate to dispense with a hearing may well be fewer than in the field of immigration appeals generally.

R v Immigration Appeal Tribunal ex parte Jones (Ross) considered.

(2)Where there is a failure to comply with directions, r 24 of the 1996 rules did not allow a special adjudicator to determine an appeal without a hearing; any decision to proceed without a hearing must be made under r 35, otherwise the references to r 35 in r 9(4) and r 24(1)(c) would be redundant.

(3)Mere non-compliance with directions was not sufficient to justify dispensing with a hearing. The essential question for a special adjudicator to ask is: am I satisfied that the appeal can be disposed of justly without a hearing, having regard to the three factors listed in r 35(1)(e)? Arriving at an answer to that question involves a consideration of the interests of both the appellant and the respondent.

(3)The word 'justly' in r 35(1)(e) was not shorthand for the 'just, timely and effective disposal of appeals' in the wider public interest as in r 23(2). Rule 35(1)(e) focuses on the just disposal of the instant case and does not allow a hearing to be dispensed with in cases where a special adjudicator is satisfied that the proceedings are an abuse of process. Nor does r 35(1)(e) empower a special adjudicator to dispense with a hearing if there has been no failure to comply with directions.

(4)The special adjudicator's decision to proceed without a hearing when the applicant was present and contrary to his wishes, was a Draconian step and had the special adjudicator applied his mind to the three factors and the underlying test in r 35(1)(e), the court would expect, particularly when credibility was in issue, to find some indication as to why it was proper to proceed without a bearing. The special adjudicator had dispensed with a hearing simply on the basis of the failure to comply with the directions. Accordingly the decisions of the special adjudicator and Tribunal fell to be quashed.

Obiter: there was no reason, so far as r 24(2) was concerned, why an applicant should not abide by the mistakes of his representatives. That did not mean, however, that the question of who was in default was an irrelevant factor. If there was clear evidence before a special adjudicator that the default was due to the applicant's advisers, the special adjudicator was entitled to take such a default into account, but was not obliged to conduct an investigation as to who was the person in default.

Statutory provisions considered

Immigration Act 1971, ss 20, 22

Asylum and Immigration Appeals Act 1993, s 8(1), (6), Sch 2

Immigration Appeals (Procedure) Rules 1984 (SI 1984/2041)

Asylum Appeals (Procedure) Rules 1996, rr 20)(b), 9(4), 23, 24, 35(1), (4), 36

Cases referred to in judgment

Bakis v Secretary of Stale for the Home Department [1996] Imm AR 487, CA

Dedman v British Building & Engineering Appliances Ltd [1974] 1 WLR 171, [1974] 1 All ER 520, CA

Deen-Koroma (Jeneba) v Immigration Appeal Tribunal [1997] Imm AR 242, CA

Grovit v Doctor and Others [1997] 1 WLR 640, HL

Meflah v Secretary of State for the Home Department [1998] INLR 150, IAT

Pepper (Inspector of Taxes) v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, HL

R v Immigration Appeal Tribunal exparte Jones (Ross) [1988] 1 WLR 477, [1988] 2 All ER 65, CA

R v Local Government Board ex parte Arlidge [1914] 1 KB 160, CA

R v Secretary of State for the Home Department ex parte Al-Mehdawi [1990] 1 AC

876, [1989]3 WLR 1294, [1989] 3 All ER 843, HL

International case referred to in judgment

Federation of Canadian Sikh Societies v Canadian Council of Churches [1985] 1 SCR 178, Sup Ct of Canada

Mr P. Duffy QC, Mr R. de Mello and Mr S. Taghavi for the applicant
Mr P. Elias QC and Mr R. Tam for the respondent

SULLIVAN J:

I shall call the applicant in this matter 'S' in view to preserve his anonymity.

The history of his claim for asylum is not a happy one. He claimed asylum on his arrival from Kenya on 13 January 1994, having flown via Uganda, Abu Dhabi and Muscat. He had a pro forma interview on 14 January 1994, followed by a fuller asylum interview on 16 January 1994. On 6 March 1995 the Secretary of State refused his application for asylum. The applicant claimed to be a member of the Islamic Party of Kenya (‘IPK') and to have been arrested, detained and beaten as a result of a policy of persecution towards IPK supporters.

The Secretary of State concluded that there was no evidence that mere membership of the IPK would result in unfair treatment, did not accept that the alleged arrests, detention and beatings were the result of a policy of persecution of the IPK, and considered that the Kenyan authorities had no real interest in the applicant and his family. The applicant appealed to the special adjudicator; his appeal was dismissed in July 1996. He appealed to the Immigration Appeal Tribunal, who, in October 1996, allowed his appeal and remitted the matter de novo to another special adjudicator. The matter first came before the second adjudicator, Mr Chalkley, on 23 December 1996. The applicant appeared in person, but said he had received notice of the hearing only a couple of days earlier, so the special adjudicator adjourned the hearing until 7 February 1997. He also made directions under r 23 of the Asylum Appeals (Procedure) Rules 1996 (‘the rules'). The directions dealt with the filing of witness statements, the preparation of bundles, the filing of any further documents, a chronology, and (unless the applicant was to be unrepresented) a skeleton argument. According to the special adjudicator's account of the history of the matter in his determination, which was dispatched on 17 June 1997, he dated the directions 23 December 1996. The interpreter confirmed that she and the applicant understood each other and the special adjudicator handed a copy of the directions to the applicant. I take the remainder of the procedural history verbatim from the special adjudicator's determination:

‘On 5 February 1997 the appellant's solicitors wrote to the immigration appellate authority enclosing a medical certificate requesting an adjournment because of the appellant's ill health.

A special adjudicator considered the application for an adjournment but refused it noting that directions had been given. That the directions had not been complied with and that the attendance of representatives was required to show why the appeal should not be treated as abandoned or determined without a hearing under r 24 of the Procedure Rules. The appellant's solicitors were notified accordingly.

On 7 February 1997 the matter came for hearing before me again. The appellant was represented by Mr D. Gordon of counsel who handed to me a medical certificate signed by the appellant's medical practitioner. He asked me to grant an adjournment. In the circumstances I considered that an adjournment was necessary for just disposal of the appeal. I asked that the appeal be transferred to the Gravesend Hearing Centre for listing for the first available date after 3 weeks.

I pointed out to Mr Gordon that directions had been made at the earlier hearing and appeared not to have been complied with. He confirmed that he had a copy of the directions. I reissued the directions and asked that a copy be handed by the usher to Mr Gordon before he left court.

I noted from the file that on 18 February 1997 the appellant's solicitors were sent a notice of adjourned hearing with the directions attached.

By letter dated 3 February 1997 the appellant's solicitors enclosed a selection of documents (to which I refer below) in support of the appeal.

The matter came for hearing before me again at Gravesend on 29 May 1997 when the appellant was present and was represented by Mr Preston of counsel. Mr J. Baker Smith, a Home Office presenting officer appeared on behalf of the respondent.

I pointed out to Mr Preston that it appeared that the directions I had earlier made had been ignored. I told him that it was not the first time that directions appeared to have been ignored by his instructing solicitors and reminded him that I had issued directions first on 23 December 1996 and given a copy of them to the appellant personally. I reminded him that I reissued those directions on 7 February 1997 and handed a copy to the appellant's then-counsel, Mr D. Gordon. I also reminded him that a further copy of the directions had been sent to his instructing solicitors with the notice of the hearing. I asked him why the directions appeared to have been ignored. He told me he did not know but surmised that it may have been because of lack of funds. Mr Preston agreed that in the circumstances I would be entirely justified in determining the appeal without a hearing under r 35 of the Procedure Rules, in accordance with r 24(1)(c) of the Procedure Rules.

In the absence of any satisfactory explanation as to why the appellant had not complied with the directions, I advised Mr Preston that I was proposing to determine the appeal without a hearing under r 35 in accordance with r 24(1)(c) of the Procedure Rules.'

The adjudicator then proceeded to his determination. He summarised the evidential material on the papers and reached certain findings of fact. On a number of points he did not accept criticisms of the applicant that were contained in the Secretary of State's refusal letter, and he reached conclusions which were favourable to the applicant. But when he came to deal with the applicant's account of his arrest, he said this:

‘The appellant claims that he was arrested on five occasions. I do not believe him.'

He then went on to explain why and which aspects of the account he did not find credible. Under the subheading ‘Credibility' he said:

‘I did not find the appellant to be credible. I do not believe he was ever arrested and detained as he had claimed.'

So in this, as in so many other asylum appeals, the determination turned on the credibility of the applicant. Because of his ruling, the special adjudicator did not hear the applicant, even though he was present, waiting to give evidence and had a witness with him, who he wished to call. His counsel, instructed the previous day, did not know why the directions had not been complied with. His recollection, to which he deposed in an affidavit, is that he tried to make submissions that the hearing should proceed, notwithstanding the failure to comply with the directions, but that it soon became clear that the special adjudicator did not agree, and was determined to proceed without a hearing. He (counsel) felt that in the circumstances he was not in a position to oppose that course.

There is no affidavit from the special adjudicator, but the respondent has put in his record of the proceedings. That is brief in the extreme, and simply says:

‘Directions have been ignored. Doesn't know why, may be lack of funds. I advise that two lots of directions appear to have been ignored and in the circumstances I decide to deal with the appeal on the papers under r 24(1)(c).'

That is consistent with counsel's recollection, and it will be observed that the special adjudicator did not seek the views of the Home Office presenting officer as to whether he would have been prejudiced by the failure to comply with any of the directions if the case proceeded to a hearing on that day.

In his affidavit the applicant explains how it came about that the directions were not complied with. On 23 December 1996 he says that the interpreter did not explain the directions to him (the special adjudicator's determination does not suggest that such explanation was given by the interpreter), but simply told him in Swahili to hand them to his solicitor who would know what to do with them. He did so and, in summary, he thought that the directions were being attended to by his (then) solicitors.

In March 1997, as a result of a discussion with a friend, he realised that the directions required him to lodge a statement, and he further realised that that had not been done. He went to the solicitor's offices and asked them to take statements from him and his potential witness, a Mr Wahid, the leader of the IPK in London. The solicitors took the necessary notes and thereafter he was assured by them that ‘everything was in order'.

He attended the hearing on 29 May 1997 with Mr Wahid, both of them ready to give evidence. He subsequently changed his solicitors and attempted, without success, to recover the file containing the interview notes for his statement. The applicant's new solicitors have obtained information as to the evidence which Mr Wahid could have given had the matter proceeded to a hearing. In a nutshell, Mr Wahid would have said that he had been arrested on numerous occasions because of his political activities with the IPK and on one such occasion he shared the same cell as the applicant, who had been arrested for possession of IPK documents. He had heard of another occasion when the applicant had been arrested and would have been able to speak as to the applicant's role in the IPK and the likely attitude of the Kenyan authorities to those involved with the IPK.

The credibility of that evidence would, of course, have been for the adjudicator to assess. His determination and his record of proceedings suggest that he did not ascertain whether the applicant wished to call any witnesses, much less what the scope of their evidence might have been.

Was the special adjudicator entitled to proceed as he did and determine the applicant's appeal without a hearing? The Immigration Appeal Tribunal thought that he was and, on 26 June 1997, refused to grant the applicant leave to appeal against the special adjudicator's decision.

The relevant statutory provisions are as follows. Section 8(l) of the Asylum and Immigration Appeals Act 1993 (‘the 1993 Act') provides that an asylum-seeker who is refused leave to enter ‘may appeal' to a special adjudicator. By subs (6), s 8(1) has effect subject to Sch 2 to the Act, which in its turn applies certain provisions of the Immigration Act 1971 (‘the 1971 Act') to asylum appeals, including s 22(l) of the 1971 Act, which enables the Secretary of State to make ‘rules of procedure' for regulating the exercise of a right of appeal.

The Asylum Appeals (Procedure) Rules 1996 (‘the rules') have been made under s 22 of the 1971 Act. They provide that, by r 2(3)(b):

‘For the purposes of these Rules-

(a)...

(b)every determination shall consist of a concise statement of-

(i)the decision on the substantial issues raised;

(ii)any findings of fact material to the decision;

(iii)the reasons for the decision.'

Rule 9(4):

‘Except where an appeal is determined without a hearing in accordance with Rule 35 or summarily in accordance with Rule 36, a hearing shall be held to decide an appeal.'

Rule 23 (conduct of appeals):

‘(1)The appellate authority may, subject to the provision of these Rules, regulate the procedure to be followed at the hearings.

(2)The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the authority may give directions which control the preparation for, and conduct of, any hearing.

(3)The authority may, after receiving a notice of appeal, give directions under this Rule orally or in writing and notice of any written directions so given shall be served on all parties to the appeal.

Paragraph (4) sets out the kind of directions which may be given. They include the directions given by the special adjudicator in the present case.

Rule 23(6):

‘Directions shall be given under this Rule in an appeal in which the appellant is unrepresented only where the appellate authority is satisfied that the appellant will be able to comply with the directions.'

Rule 24 (failure to comply with directions):

‘(1)Subject to paragraph (2), where a party fails to comply with a direction given under Rule 23 the appellate authority may

(a)treat that party as having abandoned the appeal or, as the case may be, treat the decision appealed against as having been withdrawn;

(b)proceed with the appeal; or

(c)determine the appeal without a hearing under Rule 35.

(2)Where the appellate authority is satisfied that the party in default was prevented by circumstances beyond his control from complying with the direction given under Rule 23, additional directions may be given under that rule.'

Finally, r 35(1) (determination without hearing):

‘An appeal may be determined without a hearing under this Rule if-

(a)the special adjudicator has decided, after giving every other party to the appeal an opportunity of replying to any representations submitted in writing by or on behalf of the appellant, to allow the appeal; or

(b)the special adjudicator is satisfied that the appellant is outside the United Kingdom or that it is impracticable to give him notice of a hearing and, in either case, that no person is authorised to represent him at a hearing; or

(c)a preliminary issue has arisen and, the appellant having been afforded a reasonable opportunity to submit a written statement rebutting the respondent's allegation-

(i)the appellant has not submitted such a statement, or

(ii)the special adjudicator is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing; or

(d)the parties agree in writing upon the terms of a determination; or

(e)the special adjudicator is satisfied, having regard to-

(i)the material before him;

(ii)the nature of the issues raised; and

(iii)the extent to which any directions given under Rule 23 have been complied with,

that the appeal could be so disposed of justly.'

Rule 35(4):

‘This paragraph applies where-

(a)the decision appealed against has been withdrawn or reversed by the respondent, and the special adjudicator is satisfied that written notice of the withdrawal or reversal has been given to the G appellant by the respondent; or

(b)the special adjudicator is satisfied, having regard to the material before him or to the conduct of the appellant or his failure to appear or otherwise to prosecute the appeal, that the appeal has been abandoned; or

(c)the special adjudicator is satisfied, having regard to the material before him or to the conduct of any party, that the decision appealed against has been withdrawn.'

We are not concerned with summary determinations under r 36.

Mr Duffy QC, on behalf of Mr S, submits that ‘appeal' in s 8(1) of the 1993 Act means an oral hearing. He points to extracts from Hansard which show that ministers assured Parliament during the passage of the Asylum and Immigration Appeals Bill that cl 8 (as it then was) gave all asylum applicants ‘a right to' or ‘the opportunity of' an oral hearing. Mr Elias QC, for the respondent (the Immigration Appeal Tribunal), said that this parliamentary material was not admissible since it did not fall within the criteria set out in Pepper (Inspector of Taxes) v Hart [1993] AC 593. I will turn to that matter in due course.

Mr Duffy submits that s 22 of the 1971 Act, which gives power to make rules of procedure, cannot be exercised so as to effectively remove the right to an ‘appeal', that is to say an appeal by way of an oral hearing, conferred by the 1993 Act. To construe s 22 in that way would be, he says, an impermissible deviation from the primary litigation. He points out that asylum appeals are concerned by definition with matters of the utmost gravity from the point of view of the applicant, whose credibility will very often be the determining issue, and whose only opportunity of an independent hearing of his claims will be his appeal before an adjudicator.

Turning to the 1996 rules against that statutory and factual background, he says that r 24(1)(c) does not give a freestanding power to dispense with an oral hearing merely because there has been a failure to comply with directions under r 23. That, he says, would conflict with r 9(4) which provides that there must be a hearing unless the appeal is determined without one in accordance with r 35 or r 36. Rule 24 does not say ‘determine the appeal without a hearing', but ‘determine the appeal without a hearing under r 35'.

In r 35(1)(e) we have the conjunctive ‘and' after ‘nature of the issues raised'. Thus, in deciding whether to dispense with a hearing under r 35(1)(a), the special adjudicator has to consider all three matters referred to in para (e), and not simply the extent to which there has been compliance with directions under r 23, before he can be satisfied that an appeal could be disposed of justly without a hearing. The overriding question must be, not ‘has there been a failure to comply with directions', but, in the light of all three factors mentioned in para (e), is it just to determine the matter without a hearing?

Mr Duffy says that, on the facts here, which I have set out above, the special adjudicator erroneously asked himself the former question, not the latter. Had the special adjudicator asked himself the proper question, then in accordance with r 2(3)(b) one would have expected to see some findings of fact and reasons, however briefly expressed, explaining why he was satisfied that the appeal could be dealt with justly without a hearing, in the light of the three factors, which would include under factor (ii), ‘the nature of the issues raised', that the applicant's credibility was bound to be in issue.

Here, Mr Duffy says, we find no indication that the special adjudicator did consider whether, in the light of all three factors mentioned in r 35, the appeal could be disposed of justly without a hearing. The special adjudicator's approach was simply, ‘because of the failures to comply with the directions I shall deal with the matter without a hearing'.

Mr Duffy's submissions as to the interpretation of, and the special adjudicator's approach to, r 35 would, if correct, be sufficient to dispose of this application on its particular facts. However, both he and Mr Elias QC for the respondent have urged me to bear in mind that the applicant's case should not be considered in isolation. The scope of the power conferred by r 35(1)(e) has been in contention in a large number of asylum appeals. It seems that, as a matter of practice, some special adjudicators have been deciding to dispense with a hearing simply because there has been a failure to comply with directions, whilst others have felt able to dispense with a hearing even though there has been no failure to comply with directions, having regard to their view of the matters set out in subparas (i) and (ii) of r 35(1)(e). Mr Elias urged me to give such general guidance as to the scope of the rule and its operation for the future, as I felt appropriate in the context of deciding this particular case.

The scale of the problem facing special adjudicators should not be underestimated. It is set out in a most helpful background paper prepared by Mr Latter, the deputy chief special adjudicator. The number of asylum appeals is such that a large backlog has built up in the hearing centres in the South of England. Last November the backlog was nearly 23,000 appeals. And the waiting time for substantive appeals was some 65 weeks. All of this is aggravated by a high dropout rate of between 25% to 30%, where there is no appearance on the day of the hearing and where no written submissions are provided. It will be remembered that the instant case is not one of nonappearance, that is addressed by r 35(4)(b). In this case the applicant had appeared and wished to be heard.

Reverting to Mr Latter's background paper, steps have been taken to identify those cases that are likely to drop out and those cases where it might be appropriate to use the provisions of r 35(1) as part of an overall attempt to reinforce judicial case management. By way of example, between 3 July and 15 October 1997, 1233 appeals were listed over 71 days (that is an average of just over 17 a day) of which 311 were either withdrawn or abandoned and 305 were considered suitable for determination under r 35(1)(e). When it is appropriate to invoke r 35(1)(e) is, therefore, a question of considerable importance. Mr Latter says this:

‘(28)A special adjudicator can determine an appeal without a hearing under r 35(1)(e) when he is satisfied having regard to the material before him, the nature of the issues raised and the extent to which any directions given under r 23 have been complied with, that the appeal could be so disposed of justly. This is a matter for the discretion of each adjudicator. It does seem to me that if the basis of the claim does not engage the Convention at all or if on the basis of appellant's own account there will be no entitlement to protection under the Convention, determination under r 35(1)(e) may be appropriate. There may be cases raising issues of la where there is no dispute as to the facts which can be more economically and effectively determined without a hearing on the basis of written submissions. However, where there is any real degree of likelihood that the outcome of the appeal depends upon the appellant's credibility, I would accept that the appeal should be listed for hearing.

(36)There would appear to be no reason in principle why a special adjudicator should not consider the use of r 35(1)(e) at the full hearing of an appeal when there has been a failure to comply with directions.

(37)Even so, however blatant or inexcusable such failure may be, it must be looked at in the context of the material available and the issues involved and would be subject to the overriding requirement that the appeal can be disposed of justly without a hearing. The Immigration Appeal Tribunal has given guidance in Meflah v Secretary of State for the Home Department [1998] INLR 150 on the use of r 35 in cases of a failure to comply with directions. As the Tribunal stated "where both the appellant and the representative are present at a hearing an adjudicator should exercise extreme caution before deciding to determine an appeal without a hearing because of a failure to comply with directions".'

In Meflah, the failure to comply with directions did not go to any essential part of the case. The Immigration Appeal Tribunal said that the special adjudicator's action in dispensing with the hearing was a misuse of the power conferred by the rules. Such a misuse, they said, ‘is likely to bring the power to give directions into contempt'.

In addition, by way of background, the applicant produced a number of helpful studies, including a report to the Lord Chancellor by Professor Genn into ‘The Effectiveness of Representation at Tribunals'. In a comprehensive survey of the subject, Professor Genn notes that the success rate between appeals which went to a hearing and those decided on the papers varies dramatically: 30% of the former are allowed in full or in part, as opposed to only 2% of the latter. As to credibility, one special adjudicator is recorded in the report as saying ‘Assessing credibility is nine-tenths of the job'.

The difference that having a hearing makes to the success rate of appeals is confirmed by the experience of the Refugee Legal Centre (‘RLC'). They point out that the Secretary of State's decision to grant or refuse asylum is based on, inter alia, interview notes, but the decision-taker would not be the interviewing officer. The former may attach significance to matters in the interview which were not considered to be important by the latter, hence were not fully explored. The hearing before an adjudicator is the appellant's first opportunity to explain his position directly to the person who is actually taking the decision.

Against this background Mr Duffy's broader submission was that where credibility was in issue ‘the nature of the issues raised' under r 35(1)(e)(ii), meant that an adjudicator could never be satisfied that an appeal could be disposed of justly without a hearing, if the appellant was present and wished to give oral evidence. In short, if the appellant was present and credibility was in issue, one could not dispense with an oral hearing. Any other, interpretation of r 35 would, he said, be ultra vires s 8 of the 1993 Act.

In addition, insofar as failure to comply with directions was concerned, he submitted that under r 24(2) a party in default might be prevented by circumstances beyond his control from complying with the direction, if the failure was due to his legal representatives. So that if there was default the special adjudicator would have to consider who was responsible, the appellant personally or his legal representatives. If the special adjudicator was satisfied that it was the latter, then rather than dealing with the appeal under r 24(1), he should consider giving additional directions under r 24(2).

In response to these broader submissions, Mr Elias contended that there were circumstances in which it would be lawful to dispense with the hearing.

He referred me to R v Immigration Appeal Tribunal ex parte Jones (Ross) [1988] 1 WLR 477 in which the Court of Appeal decided that r 20 of the Immigration Appeals (Procedure) Rules 1984, which gave a discretion to the Immigration Appeal Tribunal to determine appeals without oral hearings, was not inconsistent with s 22(1) of the 1971 Act to which I have referred above. In that case Russell LJ said this at 481:

‘The question to be answered is whether the word "hearing" necessarily and in all circumstances involves an oral hearing. In my judgment it does not and in so concluding I derive support from the words of Hamilton LJ in R v Local Government Board ex parte Arlidge [1914] 1 KB 160, 191.'

Having summarised the facts of the Arlidge case and set out the dicta of Hamilton LJ, Russell LJ said:

‘Mr Jay, on behalf of the Secretary of State, submitted that even if Schedule 5 does contemplate an oral hearing - and he was inclined to concede that it does - it does not in any way prohibit the disposal of an appropriate appeal without such a hearing. Indeed, Mr Jay submitted that it is only if by necessary implication one can read into the statute a mandatory requirement of an oral hearing that the argument of derogation from the enabling provision can be valid. No such inference can be drawn from the wording of either section 20 or section 22 of the Act of 1971, submitted Mr Jay. I agree with that submission.'

At 482 Russell LJ said this:

‘In my judgment the policy of the legislation with which this appeal is concerned is to provide for a system of appeal which normally will be by way of oral hearing. However, in appropriate cases that hearing may be dispensed with by virtue of the procedural rules made under the Act. I can discern nothing in the overall structure of the statute or in any provision of it that expressly or by implication requires an oral hearing in all appeals.'

I realise that ex parte Jones is not an asylum case, but s 20(1) of the 1971 Act which refers to ‘an appeal', and s 22(1), the rule-making power, were both directly in issue. It is also true that ex parte Jones was concerned with appeals from the special adjudicator to the Immigration Appeal Tribunal, so that there would already have been one opportunity for a hearing. But if there is no necessary inference to be drawn from ss 20 and 22 of the 1971 Act that there must be an oral hearing in all cases, I do not believe that any such inference can properly be drawn from s 8 of the 1993 Act which simply confers a right of appeal. In principle such a right may be exercised by way of an oral hearing or by way of written representation. Applying the dicta of Russell LJ, the policy of the 1993 Act is to provide for appeals which normally will be by way of an oral hearing.

In appropriate cases a hearing may be dispensed with by virtue of procedural rules. Given the subject matter of asylum appeals it may well be that the types of case where it will be appropriate to dispense with a hearing will be fewer than in the field of immigration appeals generally. Subject to the proper interpretation of r 35, to which I will turn in due course, that policy is achieved by r 9(4) of the 1996 rules.

I do not find Hansard of any assistance in interpreting s 8 of 1993 Act. The references by ministers to an oral hearing were made in the context of their assuring Parliament that an earlier proposal in the Bill, which had included a requirement to obtain leave to appeal, was not being pursued. Thus the assurances were concerned with whether there would be an appeal as of right, and not what would happen if, for example, an appellant abandoned his appeal, indicated that he wished for it to be dealt with in writing, failed to appear at the hearing, was disruptive during the course of the hearing, or failed to comply with procedural directions; that is to say, it was not concerned with the kind of matters that one would expect to be dealt with in detailed procedure rules.

So far as r 24(2) is concerned, Mr Elias says that if an appellant goes to his lawyers and they make a mistake, then the appellant must, on the ordinary principles of agency, abide by their mistake, as in any other area of litigation: see Dedman v British Building & Engineering Appliances Ltd [1974) 1 WLR 171, per Lord Denning at 177. A similar approach was adopted in the immigration context by Lord Bridge in R v Secretary of State for the Home Department ex parte Al-Mehdawi [1990] 1 AC 876.

Since it is not necessary for me to resolve this issue for the purposes of determining this application, anything I say about r 24(2) will be obiter. In the circumstances I confine myself to saying that I can see no reason not to apply the approach of Lord Bridge in Al-Mehdawi to r 24(2).

Whilst I recognise the problems associated with poor representation referred to by the RLC, such problems are not confined to this jurisdiction, and I can see grave practical problems if the special adjudicator was obliged to ascertain precisely who was in default, the appellant personally, his solicitors, his counsel or witnesses, before being able to proceed under r 24(1). I do not mean to suggest that the question of who was in default is an irrelevant factor, if there is clear evidence before the special adjudicator that the default was indeed due to the appellant's advisers. It is a factor the special adjudicator may take into consideration, but he is not obliged to conduct an investigation as to who, on the appellant's team, was the person in default.

Turning to Mr Elias' submissions on r 35(1)(e), he accepts that the special adjudicator must have regard to all of the considerations (i) to (iii) in para (e), and that he must be satisfied that the appeal could be disposed of justly without a hearing. But he takes issue with Mr Duffy's construction of r 35 on three specific points. First, he says that ‘justly' does not mean what would be just, looked at from the appellant's viewpoint alone. He says that the special adjudicator may take into consideration the ‘just, timely and effective disposal of appeals' (see r 23(2)) in the interests not only of the parties to the appeal in question, but also in the interests of the proper and efficient disposal of the very large backlog of appeals generally. Thus it may be appropriate to penalise a particular appellant in order to encourage others to comply.

Secondly, he says that the special adjudicator may decide to proceed without a hearing under r 35(1)(e) even where there has been no failure to comply with directions. Thus the special adjudicator would have regard to the extent to which any directions under r 23 have been complied with, conclude that there had been full compliance, and provided that he continued to bear that factor in mind, he could then satisfy himself that a hearing was unnecessary having regard to factors (i) and (ii). He points to the fact that subpara (iii) refers to the extent of compliance and not to ‘the failure to comply with any directions'.

Thirdly, if he is right on the first point, the wider interests of justice, the backlog of cases and the delays to which I have referred may justify the special adjudicator in deciding to dispense with an oral hearing, even if credibility is in issue if he is satisfied that flagrant breaches of directions amount, in substance, to a deliberate attempt to delay proceeding, or are otherwise an abuse of process. He refers by way of analogy to the speech of Lord Woolf in Grovit v Doctor and Others [1997] 1 WLR 640.

Turning to the facts of the instant case, he asks rhetorically, what more could the special adjudicator have done to try to secure compliance with his directions? They were breached twice, counsel was given an opportunity to explain why there had been non-compliance. Whilst the special adjudicator B did not address the question whether the appeal could be disposed of justly without a hearing in terms, he had considered the ‘just disposal' of the case in deciding to grant an adjournment on 7 February 1997. Merely because he did not specifically refer in his determination to the considerations mentioned in r 35, it would not be right to assume that he did not have them in mind: see Deen-Koroma (Jeneba) v Immigration Appeal Tribunal [1997] Imm AR 242, per Saville LJ (as he then was) at 244.

Mr Elias accepts that if the adjudicator was simply saying, ‘There has been a failure to comply with directions, therefore I dispense with the hearing', then he erred unless the concept of ‘justly' in r 35 embraces the wider interests of justice, and the need to impose sanctions in order to prevent failures to comply which amount to abuse of process.

Turning to my conclusions:

(1)Neither r 24 nor r 35 should be construed in isolation. Each must be considered in the context of the 1996 rules as a whole. The starting-point is r 9(4) which requires a hearing unless the appeal is determined without one in accordance with r 35 (r 36 is irrelevant for present purposes). Rule 9(4) does not provide that an appeal may be determined without a hearing in accordance with r 24. In turn, where there is failure to comply with directions, r 24 does not allow an adjudicator to determine an appeal ‘without a hearing'. Any decision to proceed without a hearing must be made under r 35.

Thus it is not permissible to say, as has been said by some adjudicators, ‘You have failed to comply with directions, therefore I will determine the appeal without a hearing'. Such an approach would give no effect to the references to r 35 in rr 9(4) and 24(1)(c).

(2)Turning to r 35(1)(e), it is clear, as was conceded by Mr Elias, that mere non-compliance is not sufficient to justify dispensing with a hearing. The essential question is: am I satisfied that the appeal can be disposed of justly without a hearing, having regard to the three factors listed in para (e)?

Whether an appeal can be disposed of justly without a hearing involves a consideration of the interests of both the applicant and the respondent. The words are not ‘could be disposed of without prejudice to the appellant'. Ensuring that the disposition of the case is just in the interests of both parties may well mean that one or other suffers some degree of prejudice.

(3)I do not accept that the word ‘justly' is shorthand for the ‘just, timely and effective disposal of appeals' in the wider public interest. Rule 35(1)(e) focuses on the just disposal of the instant case. If it was intended that the special adjudicator should take into consideration the interests of justice in the broader sense, one would have expected the list of factors in r 35(1) to include, for example:

'...the need to secure the just, timely and effective disposal of appeals', as well as factors (i), (ii) and (iii) which all relate to the circumstances of the particular case.

It may be desirable in the broader interests of justice to ‘strike out' an appellant who has delayed, or otherwise failed to comply with directions, but it is noteworthy that r 35 does not expressly provide for a hearing to be dispensed with in cases where the special adjudicator is satisfied that the proceedings are an abuse of process. In the absence of such an express power, I do not consider that r 35 should be interpreted so as to, in effect, confer such a power. I bear in mind that Sch 2, para 5 to the 1993 Act provides for an expedited procedure where the Secretary of State certifies that an appeal is without foundation because (inter alia) it is otherwise frivolous or vexatious.

(4)I do not accept Mr Elias' submission that a hearing may be dispensed with under r 35(1)(e) even if there has been no failure to comply with directions.

If one has regard to the extent to which directions under r 23 have been complied with, then one is inevitably driven to consider not merely r 23, but also r 24. If there was a power to dispense with a hearing, whether or not directions have been complied with, r 24(1)(c), which provides that that may be done where there has been a failure to comply, would have been unnecessary. Moreover, if factor (iii) in r 35(1)(e) applies whether directions have been complied with or not, then r 35 effectively applies to all appeals. It would enable a special adjudicator in any appeal to dispense with a hearing if he felt that it could be disposed of justly, having regard to factors (i) and (ii), despite full compliance with directions. Since factors (i) and (ii) are sufficiently broad to embrace almost any aspect of the particular appeal, such an approach to para (e) would render the other, much more specific grounds under which a hearing may be dispensed with, unnecessary, for example, paras (c) and (d).

As is to be expected (see Russell U in Jones and r 9(4)), the circumstances in which a hearing may be dispensed with are carefully defined and circumscribed in all the other paragraphs in r 35. Mr Elias's construction would drive a coach and horses through r 35 and confer a very broad discretion upon special adjudicators to dispense with a hearing in any case. Mr Elias says that the requirement for there to have been a failure to comply with a direction may lead to the absurd consequence that r 35(1)(e) comes into play if there has been a minor failure, for example, to put in a paginated bundle, but not otherwise.

If one starts from the position that the ‘policy of the legislation' is that appeals will normally be by way of oral hearing, the fact that a minor failure to comply with directions may bring r 35 into play is less of an anomaly than construing the rules so as to confer an almost open-ended discretion on special adjudicators to dispense with a hearing whenever they conclude that an appeal could be disposed of justly without one.

In my view, r 35(1)(e) must be read, not in isolation, but together with r 24(1)(c), so that the former comes into play only when the latter is applicable.

(5)Finally, on r 35(1)(e), is Mr Duffy correct in saying that where credibility is in issue and the appellant is present and wishes to give evidence a special adjudicator could never be satisfied having regard to (ii) ‘the nature of the issues raised' that his appeal could be disposed of justly without a hearing, even though there had been a failure to comply with directions?

He referred me to a decision of the Supreme Court of Canada: Federation A of Canadian Sikh Societies v Canadian Council of Churches [1985] 1 SCR 178 in which Wilson J said at 213:

‘Do the procedures set out in the Act for the adjudication of refugee status claims meet this test of procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and know the case he B has to meet? This seems to be the question we have to answer and, in approaching it, I am prepared to accept Mr Bowie's submission that procedural fairness may demand different things in different contexts: see Martineau, supra at p 630. Thus it is possible that an oral hearing before the decision-maker is not required in every case in which s 7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s 7. If "the right to life, liberty and security of the person" is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances.

I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that when a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v The Ship "Kathy K" [1976] 2 SCR 802, at pp 806-08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.'

Mr Elias points out that Wilson J then went on to say:

‘As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss 45 to 48 and 70 and 71 of the Immigration Act 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet.'

Mr Elias also refers me to Bakis v Secretary of State for the Home Department [1996] Imm AR 487 in which the Secretary of State's power to refer an asylum case back to the adjudicator was in issue. In the Court of Appeal Schiemann U said at 492:

'The essence of Miss Francis's case is this: first, that the case is one where there may be a meritorious case on behalf of the applicant, but chiefly she says, and says rightly, that everything here turns on the credibility of the applicant and the Secretary of State has effectively agreed to deal with a situation which turns on credibility entirely on the basis of paper. That is, of course, true. She claims that credibility must always be judged by seeing the person in question. Why something coming through the ears of the adjudicator should be more valuable than something coming through his eyes, namely material provided by the applicant in writing, is not immediately apparent.

In my judgment, the Secretary of State here had a discretion whether or not to send the matter back to the adjudicator under the section which I have quoted. He was certainly entitled to send it back and he realised he was entitled to send it back. He considered the information which had been put before him over a long period on behalf of the applicant by two firms of solicitors, both very experienced in this particular field, lent no support to any credibility on behalf of the applicant who had damaged his credibility by telling different stories at different interviews. That was the view which was open to the Secretary of State. If Miss Francis's submissions are right, then, as my Lord pointed out in argument, this would apply to every case of political asylum where an applicant does not turn up and then says he has another unidentified story which might be credible. In my judgment McCullough J was absolutely right to refuse leave to appeal in this case. I would similarly refuse leave.'

This issue of principle raised by Mr Duffy does not arise on the facts of this case and in those circumstances there is sense in the adage: ‘Never say never'. Where the appellant's credibility is in issue and he is present and wishes to give evidence, it would only be in rare cases that a special adjudicator could properly be satisfied that the appeal could be disposed of justly without a hearing. But I can envisage cases where the failure to comply with directions has been not merely so persistent and gross, but has so prejudiced the position of the respondent, that a special adjudicator could properly decide having regard to the factors in r 35(1)(e) that the appeal could be disposed of justly without a hearing, even though credibility was in issue. A right to a hearing is rarely unconditional, even where matters of life and liberty are at stake. One may have to appeal within a certain time, appear at a certain time, not be abusive or disruptive, file certain documents in support of the appeal and so forth. Having an opportunity for a hearing does not mean that one may not disentitle oneself from taking up that opportunity if one behaves in a certain manner. I do not consider that it offends any fundamental principle to say that certain breaches of procedural rules may mean that an appellant loses his right to a hearing in certain circumstances. The more serious the issues, and refugee cases are concerned with matters of life and limb, the more serious the breaches would have to be in order to justify depriving an appellant of his right to a hearing. No doubt for that reason, mere breach of the procedural rules, however gross, is not of itself a ground for dispensing with a hearing under r 35(1)(e). In being satisfied that an appeal could be so disposed of justly, the special adjudicator must have regard to all three factors which will include the vital importance, from the appellant's point of view, of his credibility being assessed in the light of his oral testimony. Construed in the manner which I have set out above, r 35 is not ultra vires the primary legislation, and I do not accept Mr Duffy's fallback submission to that effect.

That brings me to the facts of the present case, which I can deal with very shortly. There is no doubt that the special adjudicator here approached the matter on the basis that ‘there have been failures to comply with directions. Therefore I propose to determine the appeal without a hearing'. In so doing he was in error as to the scope of r 24(1)(c) and r 35(1)(e) for the reasons that I have set out above.

I accept Mr Elias's submission that one should not assume that he failed to have regard to the test in r 35(1)(e), whether the appeal could be disposed of justly without a hearing, merely because he did not expressly refer to it in his determination. One has to look at his determination as a whole and read it in a cornmonsense manner. If he considers the substance of the appropriate test, it does not matter that he fails to cite particular paragraphs. However, to decide to proceed without a hearing, where the appellant was present and contrary to his wishes, was a Draconian step. Had the special adjudicator applied his mind to the three factors and the underlying test in r 35(1)(e), one would have expected to find some reflection of that, however brief, in his reasoning (see r 2(3)(b)). In particular, given the importance of credibility, one would have expected to find some indication as to why it was proper to proceed without a hearing notwithstanding that credibility would clearly be in issue. There is no such indication in the reasoning of this special adjudicator.

It follows that this application must be allowed, and the decisions of the special adjudicator and Immigration Appeal Tribunal must be quashed.

In conclusion I would wish to add that the extent to which I am indebted to the very helpful arguments of counsel is plain from the terms of this judgment. Any errors and omissions are mine alone.

DISPOSITION

Application granted with costs. Leave to appeal refused.

Solicitors:

Gill & Co for the applicant

Treasury Solicitor


 

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