R v. Secretary of State for the Home Department, Ex parte Ibrahim Janneh

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte IBRAHIM JANNEH

CO/995/96

5 December 1996

Queen's Bench Division: Latham J

Appeal-political asylum-no appearance by applicant before special adjudicator-no explanation for non-appearance-appeal determined-application for leave to appeal to Tribunal-medical certificate then submitted considered unsatisfactory-leave to appeal refused-whether decision unreasonable-whether of its own motion the Tribunal should have held an oral hearing of the application for leave to appeal to enquire further into circumstances of applicant's non-attendance before the special adjudicator Immigration Act 1971 s. 21: Immigration Appeals (Procedure) Rules 1972 r. 11(4): Asylum Appeals (Procedure) Rules 1993 rr. 10(1), 13(5).

Application for judicial review of the refusal by the Tribunal to grant the applicant leave to appeal from the dismissal by a special adjudicator of his appeal against the refusal by the Secretary of State to grant him asylum. The applicant was a citizen of Sierra Leone.

When the case was called before the special adjudicator the applicant was not present. There was no explanation for his absence and the adjudicator determined the appeal. On application for leave to appeal to the Tribunal it was asserted that a medical certificate had been sent to the appellate authorities. There was no trace of that certificate among the papers. There was a document from a medical practitioner stating that on the day after the hearing he had given the applicant a certificate diagnosing him as suffering from influenza and confirming he would be unfit for work for a week: it did not state that the applicant could not have attended court. The Tribunal considered the certificate unsatisfactory and refused leave to appeal.

Counsel argued that the approach by the Tribunal had been unreasonable. It should, if unhappy with the terms of the certificate, have of its own motion arranged an oral hearing of the application to clarify whether the applicant could have attended the hearing before the special adjudicator.

Held:

1. No special circumstances had been identified in the application for leave to appeal: no oral hearing of the application had been requested: it was not incumbent on the Tribunal of its own motion to determine whether an oral hearing was appropriate.

2. Only if clear material were put to the Tribunal which would entitle the Tribunal to conclude that such a hearing would have substantial value and identifying what value it would have, would the Tribunal be obliged to consider an oral hearing of the application.

3. Applicants and their representatives had to appreciate that a tight control had to be exercised over the listing of appeals and that applications for adjournments would be viewed with great caution.

4. Applicants should be told by their representatives that if they wished to give evidence it would be of paramount importance that they appeared before the adjudicator at the time fixed for the hearing.. The adjudicator or the Tribunal had to be provided with information which could properly justify an adjournment, if an adjournment were to be sought.

M Murphy for the applicant

S Kovats for the respondent

Case referred to in the judgment:

R v Immigration Appeal Tribunal ex parte Rashila Prataprai Mehta [1976] Imm AR 38: [1975] 2 All ER 1084.

LATHAM J: This is an application for judicial review to quash the decisions respectively in point of time of the special adjudicator in relation to the decision which he gave on this applicant's appeal to him. Secondly, the decision of the Immigration Appeal Tribunal on the applicant's application for leave to appeal. Thirdly, the decision of the Secretary of State for the Home Department in declining to remit the issue or indeed any issue to an adjudicator for further consideration.

The background facts which give rise to this application are as follows. The applicant, who is a citizen of Sierra Leone, was born on 8 November 1954. On 30 July 1994 he arrived in the United Kingdom. On 8 August 1994 he applied for asylum. That application was refused by the Secretary of State in December 1994. It is against that decision that the applicant appealed to the immigration appellate authorities. The first step was to have been an appearance before the special adjudicator on 27 November 1995. He was represented at the time by solicitors. He did not attend on that day, had given no explanation to his solicitor, indeed had made no contact with his solicitor. It follows that the solicitor had no explanation to give to the adjudicator at the date of the hearing as to why the applicant was not present. Nonetheless he applied for an adjournment. The special adjudicator considered the matter in the light of the Asylum Appeals (Procedure) Rules 1993 rule 10(1) which empowers a special adjudicator to grant an application for an adjournment of a hearing upon being satisfied that there is good cause for the adjournment. Not surprisingly on the material before him, he refused the application for an adjournment. He proceeded to deal with the appeal in the absence of the applicant and on 4 January 1996 he refused to interfere with the Secretary of State's decision in a reasoned decision.

It is said on behalf of the applicant that in the meantime solicitors acting on his behalf had written a letter to the immigration appellate authorities, dated 29 November 1995, enclosing a medical certificate, dated 28 November 1995, stating that the applicant was unable to attend work for a week due to influenza. Unhappily, there is no trace of the letter or the certificate in the immigration appellate authorities' papers. It follows that there was nothing to alert the special adjudicator to what was contained in that letter. The applicant instructed his solicitors to appeal against the decision of the special adjudicator, which they did on the basis that the decision of the special adjudicator was unfair in that the applicant had not been given an opportunity to be heard, on the grounds also that there was a medical certificate which had been sent to the appellate authorities which should have been, but was not, considered by the special adjudicator. The authorities dealing with the appeal did receive from the applicant's solicitors a certificate and assert that is the only certificate which is contained in the applicant's papers. The certificate which was made available to the Immigration Appeal Tribunal when it considered the application for leave to appeal was from Dr Edward Adams and read as follows:

"I gave this man a certificate to be unfit for work from 28 November 1995 for one week. His diagnosis was influenza."

The Immigration Appeal Tribunal, in refusing leave, said as follows:

"The adjudicator heard no oral evidence: there was no appearance before the adjudicator by the applicant. No medical certificate is on file save the copy now sent: it is dated the day after the hearing and does not certify that the applicant could not attend court."

The application for leave to appeal was therefore refused. The applicant's solicitors, having received that decision, requested the Secretary of State to reconsider the matter on the basis that first, the applicant had not been able to attend due to his illness and had therefore had his appeal dismissed without a hearing and also, by submission of further evidence which they said affected the situation that the applicant would face if he were made to return to Sierra Leone. They requested that the applicant's case be referred back to the special adjudicator under section 21(1) of the Immigration Act 1971. The Secretary of State, by letter dated 1 October 1996, has now not only refused to remit it but given full reasons for that refusal.

The applicant who appears before me today, by Mr. Murphy of counsel, accepts that the decision of the special adjudicator cannot be challenged. There was no material before the special adjudicator which could have justified any grant of an adjournment. There were, quite simply, no grounds, let alone good grounds, put forward for such an adjournment. In so far as it is alleged that the special adjudicator was wrong in failing to reopen the hearing on receipt of the letter and its enclosure dated 29 November 1995, Mr. Murphy accepts that he cannot pursue that on the evidence that is before this court. The learned special adjudicator quite simply did not ever see that letter or its enclosure. It follows that he cannot be faulted in simply proceeding, to the decision which he eventually reached.

The challenge which Mr. Murphy makes today is to the decision of the Immigration Appeal Tribunal. He argues that the material before it justified the conclusion that the applicant was indeed ill at the time of the hearing and that therefore he was unfit to attend and therefore the matter should have proceeded to an appeal, in other words leave should have been granted. Alternatively, he argues that there should have been, at the very least, a hearing of the issue raised by the application for leave to appeal pursuant to the powers of the Immigration Appeal Tribunal under rule 13(5) of the Asylum (Procedure) Rules 1993 whereby the Immigration Appeal Tribunal is empowered to order a hearing of an application for leave where there are special circumstances making a hearing necessary or desirable. Mr. Murphy's argument is that, at the very least, on receipt of the information that the Immigration Tribunal had, it was desirable for there to be a hearing even if it could not be said that it was necessary to have a hearing. In this context he has referred me to the case of Mehta v The Secretary of State for the Home Department [1975] 2 All ER 1084 when the court had to consider the proper construction to be given to the Immigration Appeal (Procedure) Rules 1972 whereby:

"The appellate authorities shall not be required to dismiss the appeal but may allow it to proceed by reason of special circumstances if it is just and right so to do."

In that case, the Court of Appeal determined that the overriding words of that particular rule were the words "just and right" so that the words "special circumstances" should not be used to preclude the consideration of the matter on the merits if it would be just and right, in the circumstances, for the matter to be dealt with.

The argument on behalf of Mr. Murphy is that I should apply the same approach to this particular case so as to ensure, as he would put it, that the applicant has a full and proper opportunity to have his case determined. It seems to me that Mr. Murphy faces an impossible task in that regard. The Immigration Appeal Tribunal was faced with no material upon which it could conclude that the applicant was so ill at the time of the hearing before the adjudicator that he could not attend that hearing. The only material was the medical certificate to which I have already referred. It seems to me that it was not incumbent on the Immigration Appeal Tribunal, of its own motion, to determine that this was an appropriate case for the exercise of its power under rule 13(5) to require a hearing. No special circumstances were identified in the notice of appeal which could have alerted the Immigration Appeal Tribunal to the suggestion that this was a case which fell within those provisions. The applicant's solicitors did not suggest that it was appropriate for there to be such a hearing. It seems to me that the Immigration Appeal Tribunal had no alternative on the material before it but to come to the conclusion that it did. I appreciate that the Immigration Appeal Tribunal, as with all such tribunals dealing with cases such as this, must be alert so as to ensure that justice is done to any particular applicant and to that extent I accept that the decision in the case of Mehta has relevance. But it is to be noted that the rule that was under consideration in Mehta is quite different in its wording.

In my judgment, the Immigration Appeal Tribunal does not have to embark on any enquiry in order to determine whether it is necessary or desirable to order a hearing unless there is clear material which could entitle the Tribunal to conclude that such a hearing would have substantial value. In the absence of any indication from an applicant that such a hearing would have such value, identifying what value it would have, it seems to me that the Immigration Appeal Tribunal should not, of its own motion. be required to be astute to find out whether or not there might be such material.

It is to be noted in this case. lest it be thought that my conclusion that these two decisions, that is of the special adjudicator and the Immigration Appeal Tribunal are unimpeachable, is harsh, that there is to date no material before this court to suggest that this applicant was in truth unfit to attend court. I cannot help noting that in an Opinion which is annexed to the papers which are before the court Mr. Murphy indicated that it would strengthen this applicant's case if there was such material. He was then referring to the case to be put to the Secretary of State for a reconsideration of the matter. I would, if I may respectfully say so, echo what he was saving in that Opinion, namely that if there had been material before this court which suggested that he was so ill that it would have been impossible for him to attend court then there might, and I say no more than that, have been room for the court to assist. But there is no material which could justify the court in coming to the conclusion that any injustice has been caused to this applicant at all. As far as the claim in relation to the decision of the Secretary of State is concerned, Mr. Murphy has not pursued that. He accepts that the decision which has now been given on 1 October 1996 is a decision which cannot be challenged in judicial review proceedings. It is right however to note that the decision post-dated both the application for leave and the grant of leave to move in this case.

I do not wish to depart from this case without making one or two general comments. The immigration appeals structure is at the moment coping with a vast quantity of work. The proper administration of that work, for the purpose of ensuring justice for all persons who are seeking to make use of it, requires the immigration appellate authorities to keep a tight rein on the listing of appeals. It follows that any application for an adjournment will be viewed, as happened in this case, with great caution. Applicants cannot expect there to be any consideration given to an adjournment unless there is material before the special adjudicator, if it be the special adjudicator, before the hearing is to be heard, which establishes that the applicant is not fit to be there. The solicitors and others who appear for applicants before the immigration appellate authorities should ensure that their clients are told that it is of paramount importance, if they wish to give evidence themselves, of being before the adjudicator at the time fixed for the hearing. They should ensure that the adjudicators or Immigration Appeal Tribunal are provided with information which could properly justify an adjournment if circumstances arise in which an application for adjournment is considered appropriate. Unless such material is before the adjudicators or Tribunal, I cannot see how the adjudicators and the Tribunal can deal with the matter other than by refusing adjournments, even though the consequence may appear to be harsh to the particular applicant. It is for the applicants and their advisers to provide the material which enables the matter to be considered properly. For the reasons that I have given, this application for judicial review is dismissed.

Application dismissed

Solicitors: Ranjit & Co, London, SW17; Treasury Solicitor

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