Idubo, R (on the Application of) v Secretary of State for the Home Department

LORD JUSTICE JUDGE: Mr Justice Pumfrey will give the judgment of the court.

MR JUSTICE PUMFREY: This is an application by application notice dated 5 February 2003 for permission to reinstate an application for judicial review made to Mance LJ on 22 April 2002. This application was itself refused by Buxton LJ and this is a hearing in open court.

Mr Idubo is an unsuccessful applicant for asylum. The original application was to review a decision of the special adjudicator delivered on 25 April 2001. Mr Hopkins, the adjudicator, in what appears to us to be a careful decision, formed the view that Mr Idubo could not be believed and concluded that there was not a reasonable degree of likelihood that he was in fear of persecution. The Secretary of State's certificate in respect of Mr Idubo's claim was upheld and Mr Idubo was accordingly not entitled to appeal to the Immigration Appeal Tribunal.

The application to review the decision of the special adjudicator was dismissed on the papers by Sir Richard Tucker and then listed for oral hearing before Moses J on 28 November 2001. Moses J was asked to adjourn the hearing but refused to do so since, as he put it, no arguable attack other than an attack on the merits was advanced. He considered the application to be plainly unarguable and he dismissed it. In paragraph 3 of his judgment he said that the adjudicator considered the appellant's credibility and for reasons that he, to my mind, clearly sets out in his adjudication did not accept the attacks had taken place as described. He said that the appellant was not a truthful witness and there was not a reasonable degree of likelihood that he was a person in fear of persecution. He set out those grounds for that conclusion, including looking at the background documentation as to circumstances in Nigeria. The Secretary of State certified the appeal and the certificate was upheld. Then in paragraph 4 he said:

In his letter to the court and again in a skeleton argument which was provided to us today and which we have read during an adjournment for the purpose, Mr Idubo sets out again his reasons for challenging the decision of the adjudicator. These are what Moses J described as an attack on the merits. They do not advance a ground for review of the decision. To that extent the position remains as it was in front of Moses J.

The application for judicial review was renewed before Buxton LJ in the Court of Appeal. On 22 April 2002 the application was called on in court. Mr Idubo was not present and the application was struck out. The present application is dated 4 February 2003. In it Mr Idubo says that he never received any notice about his hearing before Buxton LJ. However he did in fact appear on 22 April 2002, a quarter of an hour after Buxton LJ had dismissed his application. He was told to put his application in writing; that he did. He explained that his bus had been late. The Civil Appeals Office wrote to him on 26 April 2002, that is four days after the hearing before Buxton LJ, enclosing an application and a fee exemption form, but he never replied. He was living at the same address, or at least his post was being sent to the same address throughout this period. It was still his address when he had written to the court in connection with the present application.

The contents of the application notice are, it seems to us, plainly untrue. The reason for this delay advanced by Mr Idubo is connected with the problems which we has had since the application before Buxton LJ, and in particular in his failure to obtain support from a firm of solicitors specialising in immigration matters in connection it would seem with his detention both at Hatfield and at Orpington. Be that as it may, the fact remains that the application is made to the court on a false basis. Two questions in these circumstances arise. The first is the nature of this application. Once an application has been called on in court there is a hearing. If the applicant does not turn up then the application is struck out or dismissed, which is what happened in this case. The court has a discretion to reinstate the application not because this is a decision of the single judge taken without a hearing, but because there is a general discretion under the Civil Procedure Rules, rule 23.11, to re-list an application on application made for that purpose which could be dealt with without a hearing if the court thinks it appropriate: see CPR 23.8. The discretion is a general one. The court will take into account no doubt the reasons advanced from non-appearance at the original hearing, any delay in making the application, but also the underlying merits. If the court did not have regard to the underlying merits then any application could be indefinitely continued by repeated applications to reinstate on which the applicant did not attend.

The second question is what is to be done in Mr Idubo's case. In our view nothing has been advanced which can affect Moses J's assessment of the merits of the underlying application. It has none. The delay from the hearing before Buxton LJ in April 2002 was substantial; and no efforts were made to explain it. We understand today that in part Mr Idubo has been in custody, but the court's invitation to reinstate made immediately after the hearing before Buxton LJ appears to have been turned down. The application notice itself is, for the reasons I have given, untrue.

It seems to us that in all the circumstances, the lack of merits in the underlying application are crucial, and for this reason, taken with the delay in the making of the application, and with the untruthfulness of the contents of the application, we take the view that there is no grounds shown for reinstating the application which has been dismissed by Buxton LJ and we refuse to do so.

In the result, therefore, this application is dismissed.

LORD JUSTICE JUDGE: I agree.