Tataw, R (on the application of) v Immigration Appeal Tribunal

1. LORD JUSTICE MAY: This is the hearing in this court of a judicial review application on behalf of Manyi Tataw arising from the judgment and order of Pitchford J on 19 July 2002. It is an asylum case which, accordingly, requires the court's most anxious scrutiny.

2. Pitchford J heard and refused the appellant's renewed application for permission to seek judicial review of a determination of the Immigration Appeal Tribunal on 18 September 2001, refusing her leave to appeal a determination of a special adjudicator which had been promulgated on 22 June 2001.

3. The case has a history of procedural mishap to which the substance of the applicant's claim for asylum has become subordinated.

4. The claimant was born on 7 April 1975. She is a citizen of Cameroon. She entered the United Kingdom on 26 June 1999. She did not immediately claim asylum but did so on 24 November 1999. Her stated reason for leaving Cameroon was that she had been persecuted by the elders of the two tribes of which she was a member. They were determined to subject her to female circumcision and they had threatened to kill her if she would not submit to this treatment. Female circumcision is not, apparently, unlawful in Cameroon.

5. After she had claimed asylum, the Secretary of State wrote inviting her to attend an interview in Liverpool on 27 October 2000. She had been away from home in London visiting a friend, so that she did not receive the letter until the day of the interview itself. She telephoned the Home Office to arrange an alternative date. The person she spoke to agreed to fix an alternative date, provided that she undertook to write to the Home Office to confirm what she had said over the telephone. She did this but she was not offered an interview. Instead, she received a letter from the Home Office dated 8 January 2001, in which her application for asylum was refused. The letter stated that no satisfactory explanation had been given for her failure to attend the interview arranged for 27 October 2000. The letter proceeded to consider the substance of her asylum claim in detail, rejecting it on the ground that it lacked credibility. The Secretary of State concluded that she had not established a well-founded fear of persecution and that she did not qualify for asylum.

6. She appealed to an adjudicator, Mr Richard Chalkley, who heard her appeal on 11 June 2001 and promulgated his decision on 22 June 2001. The written determination appears, from the documents at least, to have been sent by post addressed to the appellant's address in Tottenham, North London. The appellant's written grounds of appeal to the adjudicator included three short points about the substance of her application and then complained that she had been promised an interview which she had not been given. Accordingly, the Secretary of State's decision had been reached, it was said, without giving her the benefit of an interview.

7. The appellant appeared before the adjudicator in person. There was an interpreter present but she was able to give evidence in English without apparent difficulty and declined the use of an interpreter. She had submitted a Statement of Evidence form which she confirmed to be true, and which she relied upon as part of her evidence. She also gave further oral evidence before the adjudicator. The adjudicator also had objective background evidence from which he noted that female genital mutilation was said not to be widely practised throughout Cameroon and that the government had criticised the practice but no law prohibited it. It was said usually to be performed on pre-adolescent girls.

8. The adjudicator directed himself as to the law he had to apply, including the standard of proof in asylum cases such as this. He reviewed the evidence at some length, describing an instance at the appellant's grandfather's funeral in 1985 when she was ten; her graduation from the University of Yaounde (Law Faculty) in 1993; telephone calls in June or July 1994 ordering her to report to her home village for circumcision; her being forcibly abducted from the university on about 23 June 1995, with other girls, and taken back to the village, where she escaped from the car and crawled to a nearby house in which she remained in hiding for five days; her subsequent flight to North Cameroon and then her return to her university; evidence of receiving a note dated 21 June 1998 (the original of which she said she would produce but did not); going into hiding with a friend she met at the Pentecostal Church; leaving Cameroon on 27 July 1998 and travelling to Zimbabwe, where she remained until 26 June 1999; and arriving in the United Kingdom on 28 June 1999, having stopped in Holland on the previous night. She did not, as I have said, apply for asylum immediately.

9. The adjudicator did not find the appellant a credible witness. He did not believe anything she had said which was material to her asylum claim. He gave fairly detailed reasons for this by reference to the evidence. He did not believe that there was any credible evidence which led him to believe that there was any likelihood that the appellant would be subjected to persecution for a Convention reason. He dismissed her asylum appeal. Given his findings in relation to the asylum appeal there was simply no credible evidence, in his view, before him to suggest that the appellant's removal from the United Kingdom would engage any of the articles of the European Convention on Human Rights.

10. The appellant applied for leave to appeal to the Immigration Appeal Tribunal by fax received on 7 August 2001. This was, on the face of it, out of time under rule 18(2) of the Immigration and Asylum Appeals (Procedures) Rules 2000. This requires that an application for leave to appeal by a person within the United Kingdom must be made no later than ten days after the applicant has received written notice of the determination. Rule 48(2)(a) provides that any notice or other document that is sent shall be deemed to have been received on the second day after it was sent unless the contrary is proved. Rule 18(3) gives the Immigration Appeal Tribunal power to extend the ten-day time limit where it is satisfied that because of special circumstances it is just that the time limit should be extended.

11. Mr Moulden, Vice-President of the Immigration Appeal Tribunal, determined that the application for leave to appeal was out of time and that the tribunal could find no reason to extend the time limit. No explanation had been given why the application was delayed, and there had been no request for an extension of time. The only relevant information on the file was an application dated 20 July 2001 from the appellant's representatives asking for a copy of the determination. The vice-president observed that even if the representatives had not received the determination it had been sent to the appellant herself on 22 June 2001.

12. On 4 December 2001 the appellant applied for permission to seek judicial review of the decision of the Immigration Appeal Tribunal. The grounds in support of this were that she had been denied an interview by the Secretary of State in the circumstances which I have already set out. In additional grounds, submitted on 13 December 2001, it was said that neither the appellant nor her representatives had received the determination of the adjudicator until after the representatives had asked for it on 20 July 2001. On this basis it was, and is now, the appellant's case that in truth, although unknown to the vice-president who made the determination, her application for a permission to appeal to the Immigration Appeal Tribunal was in time.

13. On 6 March 2002 Elias J granted permission to apply and quashed the refusal of leave by the Immigration Appeal Tribunal. This was on an entirely mistaken basis because a document from a wholly different case, indicating that in that case the Secretary of State did not oppose an appeal, had somehow found its way into the papers before the judge. When this was explained, Scott Baker J on 14 June 2002 ordered that the permission granted by Elias J should be set aside and that the matter should be relisted for an oral permission application. He also provided that the appellant might amend her application and serve additional supporting evidence. The appellant did this in a witness statement dated 16 July 2002 in which she explained how she had not received the adjudicator's determination until it had been received by her representative following the request of 20 July 2001.

14. Pitchford J held that on the basis of the material before the Immigration Appeal Tribunal their finding was inevitable. On the material before the vice-president the application for permission was out of time. There was no application for an extension of time and no basis upon which an extension of time might be granted. The judge held that the court had no power to interfere with the Immigration Appeal Tribunal's refusal of leave on the basis of the material that was before the tribunal at the time the application was made. If the claimant wished to address the matters relied on to the Appeal Tribunal itself, she was able to do so. The judge also held that he would not in any event have given permission for her to proceed with her application for judicial review because the adjudicator had made no error of law and upon the findings of fact made, the decision was inevitable.

15. We have not seen the written grounds of appeal to the Immigration Appeal Tribunal. Miss Busch has told us that attempts have been made to find them, but that they have been to no avail.

16. Application for permission to appeal against the decision of Pitchford J was made to this court. Schiemann LJ considered the matter on two occasions, on the second with the assistance of counsel on behalf of the applicant. Schiemann LJ after the second hearing gave permission to appeal to this court upon two of the three grounds advanced by counsel on the appellant's behalf. He refused permission to challenge the decision to set aside the decision of Elias J granting permission to claim judicial review and remitting the matter to the Immigration Appeal Tribunal. He also directed that today's hearing should be the substantive judicial review hearing.

17. The grounds upon which Schiemann LJ gave permission were, first, whether Pitchford J was correct to decide that the court had no power to interfere with the Immigration Appeal Tribunal's refusal of permission to appeal on the basis that it was a correct decision on the material then before the tribunal; secondly, whether it was fair and proper for Pitchford J to address the merits of an appeal from the substantive decision of the adjudicator when that was the statutory function of the Immigration Appeal Tribunal if leave had been granted.

18. Miss Busch's submission on the first issue is essentially very simple, although she supports it by liberal reference to authority. It is this. The appellant's application for leave to appeal to the Immigration Appeal Tribunal was in fact in time. There is no factual challenge to this on behalf of the Secretary of State. Through no fault of the Immigration Appeal Tribunal, the vice-president's decision was based on an erroneous understanding of facts. The error was no fault of the appellant. The Administrative Court has jurisdiction to quash the decision of the Immigration Appeal Tribunal and remit it for reconsideration of the application for permission for leave to appeal on its substantive grounds. The jurisdiction derives from a procedural error, the fault of nobody, and justice requires that the appellant's substantive application should be considered. Miss Busch characterises what happened as a breach of natural justice: the appellant did not have a proper opportunity to put her substantive case and have it determined.

19. I am not sure that breach of natural justice is an entirely apt characterisation, but I do not think it matters. There was undoubtedly a procedural error, as a result of which the appellant's application to the Immigration Appeal Tribunal failed to surmount a purely procedural hurdle. Nor am I troubled that the Immigration Appeal Tribunal itself made no error which could properly be described as its fault. Justice requires that the procedural hurdle should be knocked down and the substance of the matter addressed. Nor does it seem to me that rule 48(2)(a) of the 2000 procedural rules, amended to accord with the decision of this court in R v Secretary of state for the Home Department ex parte Saleem [2001] 1 WLR 443 enables the contrary to be proved only at the time of the original decision.

20. I am satisfied that this analysis accords with authority. In R v Diggines ex parte Rahmani [1985] QB 1109 the claimant's appeal to an adjudicator against a refusal of an application for an extension of leave to remain in the United Kingdom was heard in her absence. Her representatives had failed to contact her and had informed the adjudicator that he should determine her appeal on the available material. The Court of Appeal held that the adjudicator's decision should be quashed. Stephenson LJ would have held, if necessary, that the court had a discretionary power to review and quash a decision reached as result of the applicant's own fault, but Fox LJ said at page 1124 that:

"What happened here was that, without any fault by the adjudicator or the applicant, the adjudicative process failed and the applicant was wholly denied the oral hearing she had asked for and to which she was entitled. It is difficult to regard that as other than a deprival of justice."

Fox LJ went on to say that the real question was whether there was in truth a breach of the rules of natural justice. That required in each case an examination of the facts, including the conduct of the applicant. If the court concludes that there was, he did not see why the court could not grant certiorari if it thinks fit, even if the tribunal itself did not err. Purchas LJ agreed. He referred to R v Immigration Appeal Tribunal ex parte Jusoh (unreported, 28 July 1976) in which Lord Widgery CJ had said:

"The normal practice, and I think the one we ought to follow here, is that if it is once accepted, as it is, that there was an error in the procedure, and that the proper grounds of appeal were never before the tribunal, I think the proper answer myself is that certiorari should go to quash the refusal of the application for leave to appeal, thus clearing the way for a further application for leave to appeal."

Miss Busch also referred to Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330 and R v Immigration Appeal Tribunal and the Lord Chancellor ex parte Ali [1998] INLR 526. It is not in my view necessary to refer to these authorities in detail.

21. Mr Patel submits on behalf of the Secretary of State that the decision of the Vice-President of the Immigration Appeal Tribunal was unimpeachable on the material before him. I agree. He goes on to submit that if it subsequently transpired that the grounds of appeal were in fact lodged out of time, it was for that evidence to be presented to the tribunal and for the tribunal to determine whether leave should be granted on that basis. He has referred us to rule 19(1) of the Immigration and Asylum Appeals Rules 2000, which enables an appellant to apply to the tribunal to review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the tribunal and that the application has to be made not later than ten days after written notice of the decision was received. It is not clear to me whether there is power to extend this ten-day period. But Mr Patel struggled to say that the difficulty here was as a result of administrative or procedural error by the tribunal (my emphasis) so that this power of review does not arise.

22. On the special facts of this case I do not think it was an administrative or procedural error by the tribunal, and accordingly I am not satisfied that there is a specific procedural route provided in the rules whereby the Immigration Appeal Tribunal could have entertained such an application. Mr Patel nevertheless submits that it is not appropriate for a challenge to be made to the court on the basis of material and facts not presented to the tribunal where the appellant has not taken the matter, or tried to take the matter, back to the tribunal itself as she could, he suggests, have done.

23. It is possible that in practice the appellant could have taken such a course and that the Immigration Appeal Tribunal might have entertained the application on pragmatic grounds. But I do not consider that that means that this court does not have jurisdiction to consider and, if it thinks appropriate, quash, the vice-president's decision. I am satisfied that in the special circumstances of this case the court does have jurisdiction, and that in justice the court should consider doing so. The evidence to the effect that the appellant's application for leave to appeal to the Immigration Appeal Tribunal was in time has not not up to now been challenged. It may be open to the Secretary of State to revisit this question if the matter goes back to the tribunal. But in my view this court should proceed to consider whether in its discretion it should quash the decision and remit the matter. That leads to the second ground of appeal.

24. Miss Busch, in effect, submits that the task of the court in a claim for judicial review is to review the lawfulness of the decision that is challenged and not to make the substantive decision on the decision-maker's behalf. Mr Patel points to rule 54.19(3) of the Civil Procedure Rules as enabling the court to take a decision itself where the court considers that there is no purpose to be served in remitting the matter to the decision-maker. Miss Busch has cited an authority for her submission as The Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at 1160 and observations of Stephenson LJ in Rahmani . She submits that in the present case the appellant was denied an opportunity to present her claim to the Home Office by way of an interview; that she had no legal representation before the adjudicator; and that she has been deprived by a procedural mishap of an opportunity to seek permission to appeal. She submits that, regardless of the contents of the adjudicator's determination, there is inadequate evidence before this court to enable it to decide that her asylum claim and her human rights claim are wholly unmeritorious. This should be determined, she submits, by the appropriate tribunal, in this instance the Immigration Appeal Tribunal.

25. Mr Patel submits that Pitchford J was entitled to reach the secondary conclusion which he did. He accepts, I think, that a court on judicial review which quashes a decision for procedural error would not normally proceed to decide the substantive issue. But he has referred us to R v Secretary of State for the Home Department ex parte Atabaky [2002] EWCA Civ 234 at paragraphs 26 and 27 in support of his submission that the court is not barred from refusing in its discretion relief, even if the consequence of that refusal is to prevent the claimant exercising a statutory right of appeal. Latham LJ said in that case that the court would not lightly exercise this discretion; it would only do so in "the most plain and obvious cases".

26. Mr Patel submits that this is such a case. He submits that the merits of an appeal from the decision of an adjudicator are hopeless. The appellant's complaint in the judicial review proceedings is that the Secretary of State did not afford her the opportunity of an interview. But she was entitled to, and did have, a full hearing of her claim before the adjudicator on an occasion at which she was present and gave evidence. The adjudicator was able to consider any error made by the Secretary of State and had power to, and did, consider the matter afresh. The appeal would have to be against the adjudicator's decision and no error has, or, submits Mr Patel, could be, identified in that decision. The adjudicator rejected the appellant's claim because he disbelieved the entirety of her evidence. There has been no proper or sustainable complaint in the two years since the adjudicator's determination which impugns the substance of that decision, nor the manner in which it was reached.

27. I have not found this an easy point. In short, the appellant says that she comes from a part of Cameroon where female circumcision is practised. She said she left the area by deceit and that she escaped when there was an attempt to force her to undergo this practice. She says that efforts were made to capture her in order to enforce the practices of the two tribes to which she belonged. Those are questions which tribunals of fact, who are necessarily unfamiliar with practices of this kind in the place in which they occur, need to approach with circumspection, not least because the case brings Article 3 of the Human Rights Convention into consideration.

28. We have not seen the appellant's substantive grounds of appeal because they cannot now be found in any quarter. They may have been largely her own unaided attempt to put together grounds of appeal. I see the full force of Mr Patel's submission that the adjudicator's determination, depending as it did on comprehensive adverse findings of credibility, may not be open to effective challenge. But in the end I am persuaded that this is a sensitive case and that it is not so plain and obvious that there are no viable substantive grounds of appeal that this court should refuse relief. The case has been submerged for the past two years in procedural distraction and those now advising the appellant have not concentrated on matters of substance. In my judgment the opportunity should be afforded for that to be done.

29. For these reasons I would allow the application for judicial review, quash the decision of the Immigration Appeal Tribunal, and remit matter back for further consideration.

30. LORD JUSTICE MANTELL: I agree.

31. LORD JUSTICE BROOKE: I agree, and I have only a few words to add about the final matters to which Lord Justice May referred.

32. One of the most difficult contemporary problems facing immigration adjudicators and members of the Immigration Appeal Tribunal is to reach findings of fact relating to the conduct of people who are concerned with very rare cultural practices which are practised in remote parts of the world with which the relevant tribunal may not be readily familiar. Cameroon is a country of 15 million people. There are no fewer than 200 ethnic groups within this country. The appellant is a member of the Bayang and Ejagham tribes in a division of Manyu in Cameroon, and the customs of this particular tribe include female circumcision. It appears from the Home Office country intelligence report that female genital mutilation continues to be practised in some areas of the far north and south-west provinces of Cameroon.

33. As Lord Justice May says, Article 3 of the European Convention on Human Rights may well be engaged in this case. On the appellant's story, members of her tribe were deceived when she was ten years old, and this case is all about what they did or did not do when they learned that by deceit a female member of the tribe had not been circumcised in accordance with the practices of the tribe. The appellant appears to have produced original letters, presumably for the Home Office, in connection with her original application. The adjudicator criticised her for not producing them at the appeal but, on the material which is at present before me, it may well be that the originals were sent to the Home Office. This gives me a little bit of further anxiety about the factual treatment of this case.

34. But in the last resort I simply do not have the expertise to conclude that an appeal, in the manner in which it may be formulated now that the appellant has competent legal advice, would be bound to fail, and in a matter as sensitive as this, I too would decline to refuse to exercise my discretion to grant judicial review following the principles set out by Latham LJ in the Atabaky case. I consider that this is essentially a matter for the expert appeal tribunal to consider rather than this court.

35. The application is therefore allowed and the decision of the Immigration Appeal Tribunal will be set aside.

ORDER: Application allowed. The decision of the Immigration Appeal Tribunal will be set aside and the appellant if so advised should file a notice of appeal within 10 working days at the Immigration Appeal Tribunal. Detailed funding assessment of the appellant's costs.

(Order not part of approved judgment)