R v. Immigration Appeal Tribunal, Ex parte Baira

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	9 June 1994
Citation / Document Symbol	[1994] Imm AR 487
Cite as	R v. Immigration Appeal Tribunal, Ex parte Baira, [1994] Imm AR 487, United Kingdom: High Court (England and Wales), 9 June 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b67f20.html [accessed 17 September 2023]
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R v IMMIGRATION APPEAL TRIBUNAL ex parte BAIRA

Queen's Bench Division

[1994] Imm AR 487

Hearing Date: 9 June 1994

9 June 1994

Index Terms:

Appeal -- application by applicant's late-instructed new representatives for adjournment -- refused -- medical certificate put in on day of hearing that applicant unfit for work -- special adjudicator refused adjournment -- whether special adjudicator entitled to conclude that it had not been shown that the applicant could not attend the hearing. Immigration Appeals (Procedure) Rules 1984 r 34(3).

Held:

The applicant for leave to move for judicial review had appealed to a special adjudicator against the refusal by the Secretary of State to grant her asylum. She changed her representatives a week before the hearing date. The new representatives sought an adjournment to have time to prepare the case. That application was refused.

On the day of the hearing the applicant did not appear: her counsel submitted a medical certificate recording that the applicant was suffering from migraine and could not attend work for a week. The adjudicator concluded that the certificate did not show that the applicant could not attend the hearing. He refused an adjournment but put the case further back in the list. The applicant declined to attend later in the day. The adjudicator heard and determined the case in the absence of the applicant.

Counsel submitted that in the circumstances the adjudicator had not been entitled to proceed as he had.

Held

1. Under rule 34(3) of the Procedure Rules the adjudicator was entitled to proceed as he had if "in the circumstances . . . it appears proper to do so."

2. He had not accepted the explanation put forward for the absence of the applicant: he was entitled not to accept that explanation and to proceed as he had.

Counsel:

E Yakubu for the applicant; R Tam for the respondent

PANEL: Popplewell J

Judgment One:

POPPLEWELL J: This is an application for judicial review of a decision of a special adjudicator in relation to his conduct of a hearing on 21 April 1994.

The applicant had previously had solicitors called Hartnell. On 15 April 1994 a different firm of solicitors, Singh & Choudry, were instructed. They asked for an adjournment of the hearing which was due to take place on 21 April. On 18 April that application was refused by the acting Chief Adjudicator, and therefore the hearing was due to take place on 21 April. On that day the applicant was represented by counsel instructed by solicitors, and counsel put in a medical certificate which said:

"This is to certify that in my opinion Charity D Baira is suffering from severe migraine and is unable to attend work for one week."

The special adjudicator indicated that he did not regard that as satisfactory. He said that he would hear a number of other cases, that this case would be called on later in the day and that he was extremely doubtful whether he would adjourn it on the basis of the medical certificate. In the light of the application by the solicitors for an adjournment and in the light of the terms of the certificate, he took the view that there was nothing to prevent the applicant attending to give evidence and that he simply did not believe, in the light of all the circumstances, that she was unable to attend. She did not accept the offer to come to the tribunal later that day. Accordingly, he refused the adjournment.

The rule governing the hearing of an appeal in the absence of the party is rule 34. Rule 34(3) reads:

"The appellate authority shall not, unless in the circumstances of the case it appears to the authority proper to do so, proceed with the hearing in pursuance of paragraph (2) above if the absent party has furnished the authority with an explanation of his absence."

There was an explanation. It was an explanation that was not accepted. It was proper in my judgment for the adjudicator not to accept it. Accordingly, I shall not grant leave. If leave were to be granted, there is no sensible prospect of this application succeeding.

DISPOSITION:

Application dismissed

SOLICITORS:

Singh & Choudry, London E8; Treasury Solicitor