R v. Secretary of State for the Home Department, Ex parte Akli Semaane

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte Akli SEMAANE

CO/3573/97

14 October 1997

Queen's Bench Division: Sullivan J

Appeal-initiated in Glasgow-applicant moved to London-request for transfer of appeal to London-pressure of lists-appeal transferred to Birmingham-applicant unable to pay train fare-alternative means of transport available-whether reasonable for appeal to be listed in Birmingham. Asylum Appeals (Procedure) Rules 1996 rr. 23 (2), 23 (4)(b).

The applicant for leave to move for judicial review was a citizen of Algeria. He had been refused asylum by the Secretary of State. He lodged an appeal while living in Glasgow, where the hearing, in due course, was listed. He then moved to London. He applied for the appeal hearing to be moved to London: because of the pressure on the lists in London the appellate authorities moved the hearing to Birmingham. The applicant asserted he could not afford the train fare. Before the court his counsel argued relying on Adedayo that the decision to list the appeal in Birmingham was unreasonable.

Held:

1. Under the Asylum Appeals (Procedure) Rules the appellate authorities had an obligation to "secure the just, timely and effective disposal of appeals". The proximity of an applicant's accommodation to the hearing centre was not the only factor to be considered. The 12 to 18 months' delay for a hearing in London was also a factor the appellate authorities were entitled to take into account.

2. The applicant, who unlike the applicant in Adedayo, was not without some financial resources, could reach Birmingham by other cheaper means than by train and the appellate authorities were willing to arrange the time of the hearing to enable the applicant to travel by coach.

3. On the facts, the decision by the appellate authorities was not unreasonable.

B Cox for the applicant

A Underwood for the respondent

Cases referred to in the judgment:

R v Secretary of State for the Home Department ex parte Ghaly (unreported, QBD, 27 June 1996).

Adedayo (unreported)(14940).

SULLIVAN J: In this matter Mr. Cox seeks leave on behalf of Mr. Semaane to challenge a decision of an adjudicator on 7 October 1997 maintaining the decision of the Regional Adjudicator of the Glasgow immigration appellate authority to list the applicant's appeal at the Birmingham hearing centre for 16 October.

The applicant is an Algerian national. He arrived in the United Kingdom in September 1990. He claimed asylum in July 1996. His application was refused by the Secretary of State on 7 June 1997 and he appealed. He had been living in Glasgow and his appeal proceedings were initiated there. He then travelled to London. By letter of 31 July his appeal was listed to be heard on 21 August 1997 in Glasgow. His representative informed the appellate authority that he had returned to London and requested that the appeal be transferred from Glasgow to London. The appellate authority replied:

"In view of the extremely long waiting lists in London, the Regional Adjudicator has agreed to transfer the appeal to Birmingham for hearing there. "

As I have indicated, it was listed for hearing there in a few days' time. There were further representations. In essence, the appellate authorities adhered to their position, most recently saying:

"Given current delays at London Hearing Centres the decision of the Regional Adjudicator in Glasgow (under Rules 23 (2) and (4) of the Procedure Rules) is entirely justified.

There is ample time for the Applicant to make suitable travel arrangements from London to Birmingham, having lived in the UK since 1990."

The appellate authority were referred to the decision of the Tribunal in Adedayo but they adhered to their position saying that that decision was taken on its own facts.

Mr. Cox accepts that the appellate authority has a discretion under rule 23 of the Asylum Appeals (Procedure) Rules 1996 to specify the place at which the appeal shall be heard under rule 23 (4) (b). He points to sub-rule (2) of rule 23 which states that:

"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."

It is his submission that the requirement upon the applicant that he travel to Birmingham is unreasonable and unfair. He submits that the court is not simply confined to looking at this matter to see whether there is Wednesbury unreasonableness because in R v Secretary of State for the Home Department ex parte Ghaly (unreported) dated 27 June 1996, Sedley J indicated:

"Questions for adjournment by inferior tribunals receive in many cases a closer scrutiny from this court than a Wednesbury rationality test because the question frequently throws up fundamental questions of fairness. If the maxim of both sides are to be fairly heard is to have any effect, it means that each side has to have a fair opportunity of preparing to deal with what the other side is going to say."

This is not of course an adjournment case but Mr. Cox says that by analogy one should be applying the same principles to a decision of this kind.

The evidence put forward on behalf of the applicant was simply that he was unable to afford the cost of travelling to Birmingham. His evidence discloses that since he moved to London he stayed with friends for a while but then started working on a casual basis in a clothing manufacturing factory earning about 0 per week. The applicant says that he cannot afford the cost of a train ticket from London to Birmingham at 9.50.

In the case of Adedayo the Immigration Appeal Tribunal allowed an appeal and remitted the matter for redetermination by a special adjudicator in circumstances where an applicant had contended that he was unable to attend an appeal hearing in Birmingham but, nonetheless, the special adjudicator had refused to grant any adjournment and proceeded with the hearing in his absence. It is to be noted that in that case, the particular appellant had, (I quote from the Tribunal's decision) "no visible means of support".

It seems to me that the facts of this case are to be distinguished from the particular facts of the Adedayo case, notwithstanding Mr. Cox's submission that they are on all fours. The circumstances in this case are that the applicant, having commenced his appeal proceedings in Glasgow, was in fact able to travel from Glasgow to London. He seeks to have the proceedings transferred there. It appears to be common ground between the parties that there would be some 12 to 18 months' delay in hearing the proceedings in London. If one looks at rule 23(2) the appellate authorities have to take a balanced decision. The convenience of the parties in terms of proximity of venue cannot be the sole criterion. If one considers that the objective is to secure the just, timely and effective disposal of appeals, it is in the interests of justice, let alone timeliness, that cases of this kind are disposed of without undue delay.

Mr. Cox referred me to a document that is called the "Marylebone Directive" in which the appellate authority indicated how it would proceed in terms of allocating hearings to various centres.*[1] There is some debate as to whether the directive is still effective. Mr. Underwood, for the Secretary of State, has submitted that it is no longer effective. It is unnecessary for me to resolve that matter because it is plain in paragraph 6 of the document that there is a degree of flexibility in the system:

"Where the judicial capacity at any hearing centre is fully committed."

That is the position on the facts in the case. There are lengthy delays in London. But, whilst it may well be difficult on the facts for the applicant to afford the cost of a train ticket, the train is not the only way of getting from London to Birmingham. He is earning 0.00 per week. During submissions I mentioned the possibility of his taking, for example, a coach. Mr. Cox submits that that would simply not be a practical option because, for example, one would have to arrive in time for the hearing. It seems to me that the sensible way around that difficulty is to focus on the time of arrival of the coaches and simply make a much more limited application, that is to say, that the time of the hearing be arranged so that the applicant can travel to Birmingham by coach.

Mr. Underwood tells me, upon instruction, that the coach fare is about 0 and, were I to give leave, evidence would be able to be given as to that. Mr. Cox does not dispute that the coach fare is of that order. Mr. Underwood has further indicated that the appellate authorities would be content to fix the time of the hearing to suit the applicant's ability to travel up to Birmingham by coach. It seems to me that is an eminently sensible solution to the problem. Unlike Adedayo the applicant has some means. He has managed to travel somehow all the way from Glasgow to London. I do not think it is unreasonable or unfair, given the delay in London, and given that it is in the interests of both parties to ensure the timely disposal of these cases, to offer a compromise that the hearing does not go back to Glasgow but to Birmingham.

As I understand it, the alternative to the London centres for those who are not detained are Birmingham, Manchester or Glasgow. Of those alternatives, Birmingham, as I indicate, seems to me to a perfectly reasonable compromise. It is not on the facts of this case, which are different from those in Adedayo, in the least unfair provided, as I say, the hearing time can be fine-tuned so as to enable an arrival by coach on the basis that the applicant is not able to arrive by train. For all these reasons, I am not disposed to grant leave in this case.

Application dismissed

Solicitors: Gill & Co, London, WC1; Treasury Solicitor

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[1]*The "Marylebone Directive" was an instruction issued in 1993/4 by the then Acting Chief Adjudicator directing inter alia that where both an appellant and his representative had an address north of the Marylebone Road, the appeal be listed in Birmingham to alleviate pressure on the lists in London.