Temel v. Immigration Appeal Adjudicator

Temel v An Immigration Appeal Adjudicator

Court of Appeal (Civil Division)

[1988] Imm AR 496

Hearing Date: 22 April 1988

22 April 1988

Index Terms:

Appeal -- deportation -- appellant did not attend appeal before adjudicator against decision to deport -- whether it was proper for the adjudicator to deal with the case in his absence -- no appeal to Tribunal -- subsequent assertions that some previous advisers had failed to conduct his case with due care -- whether the appellant's own conduct made the grant of relief by judicial review inappropriate. Immigration Appeals (Procedure) rules 1984 r 34.


Appeal from Nolan J. The appellant was a Turkish Cypriot who became an overstayer. An application made subsequently for indefinite leave to remain was refused. That was made through an agent and according to the appellant that agent mishandled his affairs, including losing his passport. Nevertheless, it was clear from the evidence that the appellant was made aware that the application had been refused. He also later received the notice of intention to deport. A leading firm of solicitors then submitted his notice of appeal to an adjudicator: those solicitors subsequently were obliged to withdraw from the case because they could obtain no instruction from the appellant. In fact he had chosen to seek alternative legal advice through the medium of a friend. On the day of the hearing neither the appellant nor his new solicitor appeared. The Court concluded from the evidence that the appellant had never intended to appear -- allegedly because he feared he would be detained if he did. The adjudicator heard the appeal in his absence and dismissed it. The appellant learnt of the outcome and went to ground. No application to appeal to the Tribunal was lodged. When eventually he was discovered, application for judicial review was made. Before the learned judge at first instance it was argued that there had been a breach of natural justice. Folowing the Court of Appeal judgments in Rahmani reliance was placed on the conduct of some of the appellant's advisers. The Court refused relief, holding that the appellant's own conduct, in his late change of legal advisers and his failure himself to appear at the hearing were material contributing causes of the result. Those arguments were repeated before the Court of Appeal. Held: 1. A person seeking relief on the grounds of a breach of natural justice resulting from the failure to be heard must discharge the onus that there has been a prejudice to the justice which was administered to him. 2. On the facts, the appellant never intended to appear before the adjudicator: the background facts were before the adjudicator in the papers on file. 3. If an immigrant does not avail himself effectively of the remedies available to him through the immigration appellate authorities, the Court should scrutinise the case with care before holding he should have yet another opportunity. 4 An immigrant of full age and capacity can be expected to attend personally to the task of procuring legal representation: if he leaves it to an intermediary, he cannot subsequently complain if he is ill-served. 5. His failure to deal with his affairs and his failure to attend the hearing were matters properly taken into account in refusing relief: ex parte Rahmani distinguished.

Cases referred to in the Judgment:

R v Diggines ex parte Rahmani and ors (CA) [1985] QB 1109: [1985] 1 All ER 1073. R v Diggines ex parte Rahmani and ors (HL) [1986] AC 475: [1986] Imm AR 195. R v Immigration Appeal Adjudicator ex parte Hassan Temel (unreported, QBD, 18 November 1987).


Miss C Fielden for the appellant; PN Havers for the respondent. PANEL: Purchas, Staughton LJJ, Sir George Waller

Judgment One:

PURCHAS LJ: This is an appeal from the order of Nolan J made on 18 November 1987 in which he dismissed the appellant's motion under RSC Order 53 rule 3(2) seeking an order of certiorari to quash a decision of an immigration appeal adjudicator given on 5 November 1985. The appellant, Hassan Temel, is a Cypriot of Turkish nationality. His family was a split family before he was born and there was a question mark over his paternity. He was brought up by his grandmother in Cyprus. His father and his brothers and sisters came to this country and have settled here, as indeed has his uncle. He came to this country after one of his sisters had visited Cyprus and persuaded the family to invite him to come on a visit to her. He came to the United Kingdom on 22 May 1982 and, on the grounds of visiting his sister, was granted leave to enter for one month. On 8 June he obtained leave to extend his visit to 30 July 1983, and that leave on 27 July was extended yet again to 6 September 1982. Thereafter he remained in the United Kingdom as an overstayer. On his visit to this country it is his case that his father's doubts about his paternity were resolved and he became reconciled with his father. From the point of view of the authorities in this country nothing more was heard of him until 27 May 1983 when an agent, Mr Taylor-Cambray, applied on his behalf for leave to remain indefinitely. This was refused in late June 1983 and notification of the refusal was given to his agent, Mr Taylor-Cambray. Later on, there was a subsequent request for reconsideration and that was refused on the grounds, amongst others, that he was an overstayer by eight months without giving any explanation. There is a good deal of confusion on the evidence as to what in fact was happening during those eight months. In his own affidavit it is suggested that he sought advice from mr Taylor-Cambray, who lost his passport by neglect and the money he had been paid and as a result of that he became an overstayer. There is some substance in that because Mr Taylor-Cambray was later sentenced to prison and in his possession there was found, amongst other things, the appellant's passport. That has not seriously been challenged. In a letter that was written a good deal later, but clearly on information provided by him, by a Maria Davidson of the Hackney Law Centre on 12 January 1987 to Sir Hugh Rossi, a Member of Parliament, on the appellant's behalf, a letter of considerable length, the account was given that he had been given extensions until September 1982 and went on: "During this period of time Mr Temel's father was urging him to stay in the United Kingdom and, for someone who had never previously experienced family life, to find themselves accepted both as a son and as a brother, and to be offered caring relationships never previously existing, such a request would be well-nigh impossible to reject. Mr Temel therefore asked his father to take him to a solicitor to get some advice as to his immigration status. However, Mr Temel was informed by his father that he did not need any legal advice, and that he could stay in the United Kingdom past the date his leave expired without encountering problems. It was during this period that Mr Temel's leave to remain in the United Kingdom expired." He was then, according to this letter, put in touch with Mr Taylor-Cambray, whose questionable reputation is described in the letter and the loss of the passport, and then the letter continued: "Mr Temel, with his uncle's help, repeatedly tried to contact Mr Taylor-Cambray. Eventually they managed to find him in about mid 1983, and showed Mr Taylor-Cambray a letter from the Home Office which Mr Temel had received via his uncle's work address. The letter stated that Mr Temel should leave the United Kingdom in 15 days time from the date of the letter. When Mr Temel asked Mr Taylor-Cambray for advice on this development in his case, Mr Taylor-Cambray assured Mr Temel that there was nothing to worry about and that he would deal with the matter. Mr Temel and his uncle therefore agreed to Mr Taylor-Cambray's suggestion, and for some time they were under the impression that the problems Mr Temel was experiencing with his immigration status were being dealt with properly by Mr Taylor-Cambray." The reasons that were contained in a letter from the Home Office dated 6 August 1985, as I have already indicated in this judgment, contained a statement that the appellant, when asked for reasons for overstaying, had given no explanation, so that the failure to give the explanation may be due to the oversight of Mr Taylor-Cambray. It may be due to the failure of the appellant to give consistent information to Mr Taylor-Cambray. I do not suppose anyone will ever finally discover where the truth lies. The refusal of the application, however, for leave to remain permanently was communicated in late June 1983. The police attempted to serve a notice on the appellant, unsuccessfully. Mr Taylor-Cambray, as I have already said, asked for further consideration. Further consideration was given to the matter. The Secretary of State declined to change his mind. Mr Taylor-Cambray was informed on 23 December 1983 and a formal notice was sent on 5 April 1984 via the place of employment of the uncle. Reverting for a moment to the letter from Miss Davidson dealing with this communication and the notice, the letter says this: "The result of this traumatic situation was to make Mr Temel, his father, and his uncle lose hope that the immigration problems could be clarified and resolved. Mr Temel has told us that there was a long period of time during which he did not seek legal advice. He knew that he was an overstayer, but without papers, and a passport he did not know that there was anything he could do to seek advice and assistance. It would appear to us that Mr Temel has been subject to advice of a very poor standard, and that the family as a whole were, and still are, totally unfamiliar with the intricacies of immigration law and procedure." The notice of 5 April 1984 was clearly received, as indeed was an earlier notice sent on 27 March of that year giving the notice of the decision to deport, because on 30 March the appellant's brother wrote a letter. This is an indication that, whatever lines of communication did exist at that point of time, they appeared to be reasonably effective. The letter -- it is not necessary for me to refer to it in detail -- sets out the case on compassionate grounds for the appellant. The appellant instructed a firm of solicitors, Winstanley Burgess & Co, who, it may be said, are known to the court as being experienced in these matters. On 1 April 1985 there was a notice of appeal to the adjudicator against the deportation order. The grounds which were put forward by those solicitors on behalf of the appellant were compassionate grounds on the basis which I have already referred to: that the father, two sisters and other family members are settled in the United Kingdom, there were no relatives remaining in Cyprus and no home there. All important to this appeal, a hearing of the appeal was requested. That is a printed part of the form and you cross out either "is" or "is not" accordingly. Then, on the next page of the form a request was made for an interpreter and an indication that two witnesses would be called. It is now necessary to consider very shortly the steps that were taken folowing the notice of appeal. According to the appellant's affidavit, he said this: "That having the right of appeal I instructed solicitors to handle my appeal. Following a friend's advice I attempted to change solicitors shortly before the hearing, as a result of which I was not legally represented at all. My appeal was dismissed in my absence and in the absence of my solicitor." That is a laconic description of the events that have been put before this court and elsewhere as to the circumstances in which the appellant did not, as he puts it, have a hearing. In Miss Davidson's affidavit she says this: "On 25 October 1985 Mr Temel was not represented at his deportation appeal. He had initially instructed the firm Winstanley Burgess to represent him at this hearing. A Mr Alpey Esat then urged him to change solicitors and, in an attempt to have his case represented by the best possible firm of solicitors, he followed that advice. The new firm were asked to instruct counsel but, on the day of the hearing, neither the solicitors nor counsel attended. As Mr Temel had not attended the hearing himself, again on the advice of Mr Esat, he was unaware of this failure of representation until some time afterwards. Mr Temel does not have the name of these solicitors and Mr Esat has been singularly uncooperative in supplying this information to me. I can however assure this Honourable Court that it was Mr Temel's undoubted intention to (be) legally represented, as is perhaps shown by the fact that he initially instructed the firm Winstanley Burgess." In the letter to Sir Hugh Rossi it is put in this way: "However, Mr Temel subsequently spoke to a friend about his appeal hearing, and was advised by this man, Alpay Esat, that he should firstly not attend the hearing as he would be arrested immediately and put on a 'plane to Turkey, and secondly he should not instruct Winstanley Burgess to represent him at his appeal, rather Alpay Esat's friend who was a solicitor would take up the case for him. Mr Temel was swayed by Mr Esat's reasoning, and therefore neither attended the hearing nor did he instruct Winstanley-Burgess any further. Unfortunately, Mr Temel failed to inform both Immigration Appeals, and Winstanley-Burgess of his intention, otherwise he might have been persuaded against taking such a misguided course of action. Mr Esat failed to contact his 'friend' -- in fact in the light of other promises to other members of Mr Temel's family which failed to materialise, it would appear tht Mr Esat is someone who is well practised in the art of deception. Our enquiries of Mr (Temel) have elicited the information that he gave his solicitor 'friend' papers relating to Mr Temel's case but that he then failed to do anything with the case, and is now out of the country, and cannot be contacted as Mr Esat does not have a forwarding address." That is a variation, with respect to the author of the documents, to the account in the affidavits to which I have just referred. Moreover, it does not sit easily with the letter of 11 October 1985 addressed to the Immigration Appeals Office in which Messrs Winstanley Burgess asked to be taken off the record because they could not get instructions from the appellant. One thing that is clear from these documents is that at no time did the appellant ever intend to attend the hearing himself. The reasons for that vary, but the fact remains that at no time did the appellant indicate that he wished to be there as well as his representatives, and it is significant that, in the appellant's affidavit, no mention is made of what might in the case of someone who is unversed with these matters or unintelligent have been of great significance, that he had been misled into a fear that attendance at the Immigration Appeals Office at Thanet Hosue would involve his immediate incarceration and removal to Turkey. Of the fact that he had notice of the hearing and was aware of the date there can be no doubt. The maligned Mr Alpay Esat became less uncooperative and before this court, without any objection from Mr Havers, his affidavit was put before us. We have, therefore, information that was not available to the judge. But there again, there is no reference to advice or even to the fact that the appellant did not attend because of fears he was holding as to his liberty. The whole blame is placed in this affidavit, understandably, upon a Mr Nevzat, who Mr Alpay Esat describes as his lawyer, and it would appear from this affidavit that this solicitor behaved irresponsibly. The further unfortunate matter was that, owing to traffic difficulties, Mr Alpay Esat and the appellant's sister, who were bound for Thanet House to attend the hearing before the adjudicator, were late. There is no evidence that they made their presence felt in any formal way and nothing is said anywhere as to their reporting back, as one would have thought was almost inevitable, to the unfortunate appellant as to what had happened on the day of 25 October 1985. I must return in a moment to the manner in which the adjudicator dealt with the questions before him. His decision, however, was not announced until 5 November 1985. No appeal was lodged against that decision and, as Miss Fielden has told us, if an application for leave to appeal is not lodged in time to the Immigration Appeals Tribunal, then that is the end of the matter as far as the immigration appellate system is concerned. Indeed, nothing more is known about the appellant until 19 November 1986. A deportation order was signed on 17 March 1986, it appearing to the Home Office that the appellant had not left the country. The circumstances of the re-establishing of contact with the appellant appear from the letter written over the signature of Mr David Waddington from the Home Office of 13 January 1987. He was dealing with the representations that were made in December 1986 by Sir Hugh Rossi on the appellant's behalf. He records the making of the deportation order and continues in this way: "Nothing further was heard from Mr Temel until an immigration officer, acting on information received visited his sister's address on 19 November 1986. Initially she denied that he lived there but he was subsequently found hiding in an adjacent garden. He admitted that he was aware of the appeal decision and had not sought legal advice prior to the hearing." Unless there was some misunderstanding by the immigration officer interviewing the appellant on that occasion that would not appear to be correct. He continues: "He also confessed to being unwilling to return to Cyprus and in the circumstances it was decided to detain him pending further consideration of his case. His father was also interviewed but he appeared to know little about his son's position here." Then the letter goes on to say that Mr Waddington had reviewed the case in the light of the representations made and the immigration officer's report and had decided that he should not withdraw the deportation order. That letter in fact crossed the letter from Miss Davidson to which I have already referred and so the matter was considered yet again in the light of that letter. Mr Waddington said that, having considered the whole matter again and everything contained in Miss Davidson's letter, he had not changed his mind. The position therefore would appear to be that, after the unsuccessful appeal to the adjudicator, it is inconceivable that the appellant was not aware, as he admitted in his interview with the immigration officer, of the result, and that, not to put too fine a point upon it, he then lost contact with the authorities. It was not until he found himself detained at the Centre that he then got in touch with the Hackney Law Centre and had the great advantage of having his case conducted by Miss Davidson. The application for leave to review the decision of the adjudicator under Order 53 rule 3(2) was made in February 1987. The matter came with great expedition in front of Nolan J, in the first instance, on 19 February 1987, the application for leave to move being 3 February. I am now turning to the transcript of the judgment. The learned judge had said that, when the matter came before him in open court, the grounds were that the adjudicator had wrongly dealt with the matter under rule 12 of the Immigration Appeals (Procedure) Rules, whereas that was inappropriate because a hearing had been requested. The learned judge suggested to Miss Fielden that it should also be considered as a decision under rule 34 which provides for the hearing of an appeal in the absence of the appellant. Accordingly, he stood the matter over for further enquiries and it was before him again on 27 February 1987, and I now read from the transcript: "By then, Miss Fielden had been able to obtain information of a somewhat conflicting nature from the adjudicator's office. I accordingly thought it right, since on the basis alleged there was a possibility that the applicant had suffered the injustice of being denied a proper hearing, to give leave, but on condition that the matter should be reconsidered by the applicant and his advisers when the evidence for the respondent had been filed." Perhaps over optimistically, the judge thought that the respondent would, with expedition, file an affidavit saying what had happened and that, if that affidavit had been properly drawn and fully disclosed the situation, there might have been no further need for a hearing. But, for some reason or other not disclosed, the affidavit was not sworn until 12 November 1987, which was some six days, including a weekend, before the adjourned hearing. It is no function of mine to comment adversely upon that, but it certainly defeated the object of the exercise from the judge's point of view. On the other hand, it may well be said that it would not have made any difference anyway, so we do not know. However, it did not make the task of the judge any easier and certainly involved a full hearing. The judge went on to comment adversely, I regret to say, on the fact that the appellant's advisers had apparently not improved the shining hour during the intervening months, but there was some good reason for that owing to the illness of Miss Davidson. At the same time, with respect, I would agree with the comments of the judge that it is difficult to imagine there was not someone else who could take over the conduct, or even just the preparation of the case. There was then at that stage before the judge an adjournment for fresh evidence to be obtained from the applicant. The judge rejected that application on two grounds: "The first was that the applicant had already had ample time, with warning that Rule 34 was going to be in issue, to put forward any further evidence upon the issue of natural justice or anything else to which he wished to refer. Secondly, the affidavits already before the court gave no reason to suppose that any further useful information could be obtained from him." There has now been a passage of three or four months and the only further evidence that has emerged has been the affidavit to which I have referred form Mr Alpay Esat. Apart from throwing conflicting evidence and doubt upon other accounts given by the appellant there is very little constructive evidence to assist his case in that affidavit. Before the learned judge a number of points were taken. Miss Fielden very properly and advisedly has abandoned two out of four of them and we are concerned only with the matters relating to natural justice. The first two grounds related to an assertion that there had not in fact been a hearing under rule 34. It was conceded at the opening of her submissions by Miss Fielden that she could not sustain that as a ground of appeal, so the matters with which this court is concerned relate solely to the other grounds, grounds three and four, which really are concerned with the same problem from two slightly different angles. It will be convenient at this point to read the judge's decision on these two points: "Leaving aside, then, the precise provisions of the Rules, and here I come to Miss Fielden's third and main submission today, was there here a breach of the rules of natural justice? The evidence, she submits, shows that there was here a case of the kind contemplated in Ex parte Rahmani [1985] 1 All ER 1073" -- the learned judge should in fact have been referred to the report in the Law Reports which is to be found in [1985] 1 QB 1109 -- "where an applicant, unfamiliar with English law and English legal procedures, had been let down by his legal representative (see in this connection the judgment of Lord Justice Stephenson at pages 1081 to 1082). Substantially, the same point arises under Miss Fielden's fourth submission which is to the effect that even if there was a fault on the applicant's part in failing to attend or be represented at the hearing, it was of negligible value compared with the faults of others. He was not the only begetter of his misfortune. The difficulty, as it seems to me, with all of these submissions lies in the total failure on the part of the applicant to pursue the matter. He had been duly served with notice of the hearing. He must have well known, no one better, of the importances of the matter to him. He chose, according to his own evidence, simply to instruct solicitors to handle the appeal, and then he attempted to change solicitors shortly before the hearing. Miss Davidson has included in her affidavit a statement to the effect that she understands that Mr Temel was advised by them not to attend the hearing, or it may have been on the advice of the mysterious Mr Esat." I pause to interpolate that the affidavit now available from Mr Esat confirms that he advised Mr Temel to employ his own lawyer but does not confirm that he (Mr Temel) had been advised not to attend the hearing and on Mr Esat's affidavit it would appear highly unlikely that his lawyers had given any direct advice to the appellant at all. Continuing with the judgment: "However, I cannot, I fear, regard that as evidence sufficiently strong to excuse the failure on the part of the applicant. The history of the matter does not disclose any such merit in this application as would lead me to think that justice requires it to be adjourned or further considered. It is, as it seems to me, a motion which, on the evidence, has no ground to support it, and which I must dismiss." It appears from that part of the judgment that before the learned judge the secondary point which Miss Fielden made before this court, namely that, even if a lawyer had attended the hearing, all he could have done would have been to ask for another adjournment, was not made. The point made before the learned judge was a somewhat inchoate application for a further adjournment for the matters before him, and rightly he took the decision that there was no ground for granting such an application. That then was a new point taken in this court and it suffers accordingly from that fact, but nevertheless it has received full consideration by this court. On that position it is now necessary to consider Miss Fielden's submissions to us that the learned judge wrongly exercised his discretion and should have followed the case of R v Diggines ex parte Rahmani and ors [1985] 1 QB 1109. In that case the point had arisen so far as the court was concerned for the first time as to whether there was jurisdiction in the court to make an order under Order 53 rule 3(2) where there was no fault or error disclosed in the proceedings in respect of which the order was sought. That proposition has only to be stated to demonstrate that it is an important point. However, the court dealt with positions which were not dissimilar from the position in this case. It is important to remember also that, although in Rahmani's case it might have been said that the appellants -- there were a number of ladies involved -- had been themselves to blame in not keeping in touch with their legal advisers, in order to isolate what the court thought was an important point of principle it was argued on the basis of the ladies being entirely blameless. What in fact had happened was this. The applicants had requested an oral hearing. By the date of the hearing their advisers could not get in touch with them because the advisers had no record that the applicants were moving to a new address. They informed the adjudicator that they had no instructions and invited him to determine the appeals on the available material. The adjudicator did so and dismissed the appeals. When the applicants discovered that the appeals had been dismissed they applied for judicial review to quash that order, and Taylor J (as he then was) quashed the adjudicator's decision and ordered him to hear the appeals again. It might have been said that, when there were proceedings crucial to one's future, when moving to a new address it might have been thought wise to keep their legal advisers informed; but, as I emphasise, that was excluded as a factor in the decision of this court in Rahmani. The matter, we are told, went to the House of Lords, who granted leave to appeal -- which was refused by this court -- presumably because of the important issue of principle. It is perhaps disappointing that their Lordships did not in the event deal with this point but disposed of the appeal on a purely procedural technicality. The position, however, is that the ultimate authority at the moment which binds this court is the case of Rahmani and the judgments delivered in it on this particular topic. It is necessary to refer only to three short passages in the judgments I think. At page 1122 F-G Stephenson LJ (who gave the leading judgment) considered the approach to the main problem and said: "We do not have to consider, and the judge very properly did not consider, whether it is ever permissible to grant judicial review to an applicant who is not wholly innocent. Where the mistake or misunderstanding which leads to the denial of natural justice is the applicant's own, it may seldom, if ever, be right for the court to exercise its discretion in his or her favour; for in most, if not all, cases of this kind there could be no unfairness towards the author and only begetter of the procedural defect. But I would hold, if necessary, that the court has the discretionary power to review and quash a decision reached as a result of an applicant's own fault." Miss Fielden seizes upon one phrase in that passage, namely "the author and only begetter of the procedural defect", as being an authority that the court should exercise its discretion even when the applicant is the begetter but not the only begetter of the procedural defect. In my judgment, that is reading far too much into the judgment of Stephenson LJ. At page 1123 E-H Stephenson LJ adopts the approach of Taylor J in these terms: "I am content to accept what Taylor J said at the conclusion of a judgment in which I can detect no confusion or error: "It seems to me that there is a clear distinction to be drawn between the situation in the present case -- which must be rare indeed -- where there has been no oral hearing at all in a case which gravely affects the applicant's future, and cases on the other side of the line where there has been an oral hearing but subsequently some further evidence has emerged which it is suggested might have made a difference to the outcome. In the former case, which is the present case, it seems to me there has been a basic failure in the rules of natural justice. There has been an irregularity in the sense that a wholly different type of determination has been carried out, namely, a determination purely on better evidence as against a full oral hearing." I cannot put it better than that, and I would only add that there was nothing wrong with the adjudicator's decision, which may turn out to be right after all, on the accepted facts, but there was a fundamental flaw in the decision-making process. I would affirm the judge's judgment and dismiss the appeal, but must not be taken to be giving any encouragement to immigrants to absent themselves when their appeals come up for an oral hearing and then to blame their advisers or the adjudicator for dismissing their appeals." If it is permissible, I would only refer to two short passages in my own judgment at page 1126H: "The problem, therefore, becomes neatly defined. The principle of audi alteram partem is one of the most fundamental concepts of natural justice known to the law . . . but the whole history of natural justice demonstrates the fundamental importance of this principle. Nor in this case is the court required to consider the distinctions between judicial and other administrative acts, since the statute and regulations made thereunder provide that the applicant is entitled to a hearing; see rule 12 of the Immigration Appeals (Procedure) Rules 1972, already cited by Stephenson LJ. The question is one of jurisdiction only. It is accepted that if the jurisdiction exists this is a case in which the court ought to exercise its discretion and grant relief." I venture to cite that passage but emphasise that, on the facts in Rahmani's case, there was no question that, if the jurisdiction existed, discretion should be exercised in favour of the applicant. Finally, at page 1128D: "With respect to the able argument of Mr Collins I cannot agree that in the presence of an established breach on the part of an inferior tribunal of the rules of natural justice, eg, a failure to obey the principle 'audi alteram partem', the court has no jurisdiction to grant an order of certiorari, notwithstanding that the failure has arisen through no fault of the tribunal itself. Whether or not the court should exercise its discretion will depend on ascertaining the cause of the failure in relation to the conduct of the applicant." I hope that in that passage I left the matter quite clearly as one of discretion even where there was a technical lacuna in the operation of the judicial function in the tribunal below. On the facts already disclosed in this judgment it must be patently obvious that, so far as the conduct of the appellant is concerned, he has been anything but wholly innocent or blameless. His whole conduct has drawn an atmosphere of deception and unreliability into his affairs and over his evidence and the evidence of his witnesses so far as that evidence was available. That is a matter to which the learned judge very properly directed his attention in exercising discretion in the case. A person who comes to the court for relief on the grounds of a breach of natural justice resulting from the failure to be heard must discharge the onus that there has been a prejudice to the justice which was administrated to him. It is clear from what I have already said that at no stage did the appellant ever intend himself to be present. For my part, I would be reluctant to accept on its face value the story, uncorroborated by other parts of the appellant's own evidence, that he was afraid he would be thrown into custody and removed to Turkey. He wanted someone to present his case for him but the source of the material to support the only ground available to him under which to challenge the deportation order was the compassionate ground. The full facts behind that ground were already fully disclosed in the documents which the adjudicator had before him and it is in relation to this last aspect of the case that I now turn to the affidavit, albeit filed at the last minute, by the adjudicator himself. He describes his dealing with the appeal on 25 October 1985 and says: "The appeal had been listed for hearing in accordance with the request made in the Notice of Appeal and an official interpreter in the Turkish language was in attendance, also at the request of the Appellant. The appeal was called but there was no appearance by or on behalf of the Appellant. Mr Jones, Home Office Presenting Officer, appeared on behalf of the Respondent. I noted from the file that on 14th August 1985 Notice of Hearing had been sent by recorded delivery post to the Applicant's then solicitors Messrs Winstanley-Burgess . . ." So on the facts of this case there is no question that the appellant was aware of the date. ". . . In all the circumstances I decided to hear the appeal in the absence of the Appellant in accordance with rule 34(2) of the Immigration Appeals (Procedure) Rules 1984 . . ." and he relates his enquiry of Mr Jones. He said: "I reserved my determination as I wished to give full consideration to the information in the Explanatory Statement and the annexes thereto and to the Applicant's grounds of appeal. I now produce and exhibit hereto marked

'IMSD2' a copy of the record of proceedings.My determination dismissing the appeal was promulgated on 5th November 1985, a copy being sent by recorded delivery post to the Applicant at his last known address and to the Respondent on that date in accordance with the provisions of rule 39(2) of the Procedure Rules. The Appellant did not seek leave to appeal further either from myself or from the Immigration Appeal Tribunal."

In all those circumstances, even without the assistance of the affidavit from Mr Alpay Esat, it is clear that Nolan J was fully justified in the exercise of his discretion to refuse to grant the application for certiorari to quash the decision of the adjudicator. In this court that is the limit of the enquiry on appeal. But I have to add that, for my part, had I been in the shoes of Nolan J, I would have come to precisely the same conclusion and exercised my discretion in precisely the same way. For those reasons this appeal must be dismissed.

Judgment Two:

STAUGHTON LJ: I agree. The law is not ungenerous in the remedies which it affords to those who are disappointed with the decisions of the Secretary of State or his officials in relation to immigration matters. There may be an appeal to an adjudicator; there may with leave be an appeal to the Immigration Appeal Tribunal; there may be an application for leave to apply for judicial review; if that fails, it may be renewed before this court; if it succeeds, but the application for judicial review itself fails, there may again be an appeal to this court. If an immigrant does not avail himself effectively of the remedies which are available to him the law shoud, I think, scrutinise the case with care before holding that he should have yet another opportunity. However, as my Lord has said, the Court of Appeal in the case of R v Diggines ex parte Rahmani said that, if through no fault of his own an applicant has not had a hearing of his appeal, then at any rate as a matter of discretion it may well be right to give him a further remedy. As I read that decision, it also says that there is a discretion to grant a remedy where the applicant has himself been at fault wholly or in part. "Fault" there no doubt means "personal fault", but one must look carefully at the applicant's conduct. One must also bear in mind that immigrants may well be vulnerable and exposed to exploitation by advisers who are incompetent or even dishonest. But it seems to me that, if an immigrant wishes to enjoy the benefit of legal representation, he can be expected to attend personally to the task of procuring it, at any rate if he is of full age and capacity. Mr Temel did not do that. He left it to Mr Esat, of whom it is said in the letter of the Hackney Law Centre written by Miss Davidson that he is "someone who is well practised in the art of deception". Mr Temel was, in part at any rate, at fault in that respect. Mr Esat entrusted the representation of Mr Temel to someone who was either incompetent or dishonest or both -- that is, if what Mr Esat says in his affidavit is true. Alternatively, Mr Esat's affidavit may be a pack of lies. On either view, the appellant must bear part of the blame, fault or responsibility for not attending to the matter himself. Secondly, he should have himself attended the proposed hearing by the adjudicator. If the account which he gave to Miss Davidson is true, even though it does not appear in his affidavit, he foolishly accepted wrong advice. In that respect also there was personal fault on his part. It may well be, as Miss Fielden submits, that, even if he had turned up at the hearing, there would have been an adjournment and no effective hearing that day because his papers were still with his former solicitors. But at least some progress would have been made, and there would have been a hearing soon after that, towards the end of 1985 perhaps. That is now two and a half years ago. I agree with my Lord that there was material upon which the learned judge could properly exercise his discretion in dismissing this application and I also agree that, had the discretion been mine, I would have reached the same result. Accordingly, I too would dismiss this appeal.

Judgment Three:

SIR GEORGE WALLER: I agree with both judgments which have been delivered and only add a few words of my own. The question before the learned judge, and indeed ultimately before this court, was whether or not there was a breach of the rules of natural justice. So far as the adjudicator is concerned, no complaint has been made and notice of the hearing had been received by the appellant. The appellant was not present at the hearing. There was nobody there on his behalf. The adjudicator was entitled to conclude that the appeal had been abandoned. The appellant's explanation is that his attention had been drawn to the Home Office notice of intention to deport him and he then consulted Messrs Winstanley-Burgess and an appeal was lodged. They were given notice of the hearing of the appeal, at that time in the distance. What happened after that is not clear. The appellant had intended Winstanley-Burgess to represent him, but a short time before the hearing there was a change and he says he left Winstanley-Burgess. Winstanley-Burgess wrote to the adjudicator saying they wished to be taken off the record because they had not received any instructions. That letter was written on 11 October. Three days later the appellant was given personal notice of the hearing by recorded delivery which was going to be on 25 October. My Lord has already mentioned the circumstances in which the appellant said he relied on his lawyer and asked for an adjournment, but that is not good enough. It was his appeal. He should have been there in person. He had been served with a notice and had signed the receipt, but he did not attend the hearing. That, in my view, in itself disposes of the question. But, when one looks at the conclusion of the evidence as to what precisely was happening with the other lawyer, it makes the appellant's case even weaker. I agree that there was no breach of the rules of natural justice. I agree that the learned judge correctly exercised his discretion and, indeed, I also would have found in the same way. I would also dismiss this appeal.


Appeal dismissed


Tower Hamlets Law Centre; Treasury Solicitor.

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