Zaier, R (on the application of) v Immigration Appeal Tribunal & Anor

This is an appeal by Tariq Zaier against the decision of Mr. George Bartlett, QC, sitting as a Deputy High Court Judge in the Administrative Court on 7^th October 2002, upholding a decision of the Immigration Appeal Tribunal that a special adjudicator had no power to allow, without consideration of the merits of his claim to asylum, his appeal against the Secretary of State’s decision to remove him as an illegal entrant after refusal of his claim for asylum.

The Secretary of State refused Mr. Zaier’s asylum claim without consideration of its merits under Immigration Rule 340, which gave him power to refuse an asylum claim where a claimant had failed to comply with a request to attend for an interview (a “non-compliance refusal”). The special adjudicator, Mr. Curzon Lewis, purporting to exercise power given to him by Rules 30 and 33 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (the 2000 Rules”), allowed Mr. Zaier’s appeal, also without consideration of the asylum merits, because of the Secretary of State’s failure to comply with a number of directions by other special adjudicators that his officials should interview him. The Tribunal held that the adjudicators had no power to give those directions and that, in consequence, Mr. Curzon Lewis’s allowance of Mr. Zaier’s appeal against the Secretary of State’s refusal of his application for asylum was unlawful. It remitted the matter to Mr. Curzon Lewis, directing him to hear and dismiss or allow the appeal on its merits.

Mr. Zaier applied to the Tribunal for permission to appeal to the Court of Appeal, which the Tribunal refused on the ground that its remission of the matter to the special adjudicator for his determination of it on the merits was not a final determination of the appeal to it, the Tribunal, and so it had no jurisdiction to give such permission. Mr. Zaier, with the permission of Sullivan J, claimed judicial review of: 1) the Tribunal’s refusal of permission to appeal to the Court of Appeal (“the jurisdiction issue”); and 2) the Tribunal’s decision that the special adjudicator’s allowance of Mr. Zaier’s appeal against the refusal of asylum was ultra vires (“the substantive issue”).

Mr. Zaier only pursued the substantive issue before the Deputy Judge, reserving his position on the jurisdiction issue for possible argument before this Court. The Deputy Judge, accordingly, dismissed his claim to quash the Tribunal’s decision refusing him permission to appeal to this Court. He also dismissed his claim to quash the Tribunal’s ruling on the substantive issue, holding that the various directions of the special adjudicators were unlawful and that, therefore, Mr. Curzon Lewis’s allowance of Mr. Zaier’s appeal against the Secretary of state’s refusal of asylum was unlawful. He ruled, following the Court of Appeal’s decision in Mwanza v. Secretary of State [2001] Imm AR 557, that the directions were unlawful because in substance they purported to direct the Secretary of State to make a fresh decision rather than give procedural directions for the conduct of the adjudication appeal.

There are two issues on this appeal. The first is whether the directions of the special adjudicators were directions to regulate the procedure of the appeal before them; if they were, they were lawful and Mr. Curzon Lewis had power under Rule 33(2)(a) of the 2000 Rules to allow Mr. Zaier’s appeal without consideration of the merits of his asylum claim. If the directions were not in substance procedural directions for the conduct of the appeal, the second issue is whether, having regard to the overriding objective of Rule 30 of the 2000 Rules “to secure the just, timely and effective disposal of appeals”, the directions would nevertheless have caused the Secretary of State to consider and particularise his case on the asylum claim on its merits, thus bringing them within that overriding objective and therefore, lawful, thereby empowering Mr. Curzon Lewis to allow Mr. Zaier’s appeal under Rule 32 (2) (a).

Following Mr. Zaier’s claim for asylum, he was requested to attend the Home Office Interviewing Centre, Lunar House, Croydon, on 29^th May 1998 to be interviewed concerning his claim. He failed to attend. As a result, on 22^nd June 1998, the Secretary of State, pursuant to the power given to him by Rule 340 of the Immigration Rules, refused his claim without consideration of the merits because of his failure to comply with the request to attend for interview, and gave directions for his removal. Rule 340 provides:

Mr. Zaier appealed to a special adjudicator under section 8(4) of the Asylum and Immigration Appeals Act 1993 against the removal directions, an appeal which, as section 8(4) makes plain, gave the adjudicator responsibility of determining the merits of his asylum claim. It provides:

In fact, the Secretary of State’s non-compliance refusal was on a mistaken basis. Mr. Zaier had not been notified of the request to attend for an interview. Some 18 months later, on 12^th January 2000, when the immigration authorities found him, he provided them with a typed statement explaining why he had not attended for interview and providing full details of his asylum claim.

On 26^th January 2000 the appeal came before a special adjudicator, Mr. Such. He accepted that the appellant had a good explanation for not having attended for his interview for 29^th May 1998, as he had not been notified of it. Mr. Such, therefore, adjourned the appeal in order to give the immigration authorities an opportunity to interview him, giving the following “direction”:

Mr. Zaier’s appeal was subsequently listed before a special adjudicator on a number of occasions. On the first, 13^th March 2000, the Home Office presenting officer told the adjudicator that the matter was being reconsidered but that no interview had yet been arranged. On the second occasion, on 15^th June 2000, the adjudicator before whom it was listed noted that the Home Office presenting officer had agreed that the appeal should be allowed to the extent that the matter was to be remitted to the Home Office for interview and reconsideration by the Secretary of State. Some months later the Secretary of State’s representatives took the point that a special adjudicator cannot both allow an appeal and remit it to the Secretary of State for reconsideration. On 23^rd February 2001, when the matter came before another special adjudicator, the presenting officer informed him that the Home Office had lost the file, that there had still been no interview and that one would take place as soon as possible. The adjudicator directed that there should be an interview of Mr. Zaier within a month and that the matter should be listed for mention in six weeks time, on 15^th March 2001. This was followed by a written direction on 15^th March:

On 18^th June 2001 the appeal came on for hearing before Mr. Curzon Lewis. The Home Office presenting officer informed him that there had still been no interview, but that, as he had Mr. Zaier’s written statement, he was ready to proceed with the substantive hearing of the appeal. Mr. Curzon Lewis declined to consider the matter on its merits and proceeded to allow Mr. Zaier’s appeal under Rule 33(2)(a) of the 2000 Rules on the ground that the Secretary of State had failed to comply with the various directions. This was his ruling, as contained in his Determination and Reasons given on 6^th August 2001:

On 2^nd November 2001 the Tribunal allowed the Secretary of State’s appeal, holding that the special adjudicators had no power, with or without his consent, to direct his officials to interview Mr. Zaier and that, in consequence, Mr. Curzon Lewis had no power to allow the appeal, as he had done, under Rule 33(2). At paragraph 13 of its Determination, the Tribunal stated:

On Mr. Zaier’s claim for judicial review on the substantive issue, the Deputy Judge held, following, as I have said, this Court’s ruling in Mwanza, that the directions of the special adjudicators to the Secretary of State were unlawful and that, therefore, Mr. Curzon Lewis’s allowance of Mr. Zaier’s appeal for want of the Secretary of State’s compliance with them was also unlawful. This is how he put it, at paragraphs 22, 24 and 25 of his judgment:

The matter is governed by the Asylum and Immigration Appeals Act 1993, the Immigration and Asylum Act 1999 and, as I have said, the 2000 Rules, in particular Rules 30 and 33, which, in their reference to “the appellate authority”, apply both to special adjudicators and the Tribunal, notwithstanding the different nature of their respective roles. Appeals to adjudicators are by way of a hearing of the claim for asylum on its merits – see 1999 Act, Sch 4, para 21; appeals from adjudicators to the Tribunal are by way of review, albeit subject to any material change in the facts at the time of the review – see 1999 Act, Sch 4, para 22. Rules 30 and 33 provide, so far as material, as follows:

There are also powers to give directions for the purpose of implementing the allowance of an appeal, as provided in the 1999 Act, Sch. 4, para. 21(5)(a).

Rule 30, true to its cross-heading, “Conduct of appeals”, thus gives a non-exhaustive list of directions for that purpose to which it applies, and Rule 33, also true to its cross-heading, “Failure to comply with these Rules”, indicates the possible consequences of such failure. In the event of non-compliance by the claimant, a special adjudicator may dismiss his appeal, and in the event of non-compliance by the Secretary of State, he may allow the appeal, in either case, “without considering the merits” - the provision on which Mr. Curzon Lewis relied in allowing Mr. Zaier’s appeal.

The important question then is whether the directions with which the Secretary of State failed to comply in this case were procedural within the meaning of Rule 30. Mr. Angus McCullough, for the Secretary of State, submitted that this Court, like the Deputy Judge, should follow its earlier decision in Mwanza and hold that they were not procedural. In that case, which concerned the then equivalents of Rules 30 and 33 of the 2000 Rules, the appellant had been refused asylum on the merits by the Secretary of State. He appealed to a special adjudicator. Because of the fluid state of affairs in the country from which he had fled, the Secretary of State sought and obtained from the adjudicator a number of adjournments. Eventually the adjudicator purported to issue a direction that, unless the Secretary of State completed his reconsideration of the case within 56 days, the letter of refusal would be treated as withdrawn and a fresh letter of refusal would have to be issued. The direction was in the following terms:

The Secretary of State failed to abide by the direction and the adjudicator made his threatened order in allowing the claimant’s appeal. The Tribunal allowed the Secretary of State’s appeal on the ground that the purported direction had been ultra vires. This Court upheld the Tribunal’s decision, holding that the adjudicator’s purported direction could not be regarded as a direction in relation to an immigration appeal, and that the rules were procedural only and gave no power to a special adjudicator to direct the Secretary of State to issue a fresh refusal letter. Sir Swinton Thomas, with whom Tuckey LJ agreed, said at paragraph 31 of his judgment:

To similar effect was the ruling of Silber J in R (on the application of Emlik) v. IAT [2002] EWHC 1279 (Admin), in which the Secretary of State had refused the asylum claim, not on the merits, but on his mistaken belief that the claimant had failed to comply with paragraph 340 of the Immigration Rules. Silber J held that a special adjudicator’s direction to the Secretary of State “to consider the claimant’s substantive asylum claim” was substantive, not procedural within Rule 30 and, therefore, ultra vires. He was of the view that there was no material difference between the wording of that direction and the direction in Mwanza, stating, at paragraph 23 of his judgment:

However, the Tribunal, in its decision in N’Da v. The Secretary of State (01/TH/1769) (2001) IAT, expressed concern about the reasoning in and effect of Mwanza, a concern that prompted Sedley LJ to grant permission to Mr. Zaier to pursue this appeal. The special adjudicator’s direction in question in that case was that the Secretary of State should make a complete, expeditious review of the case because the claimant had just reached the age of majority. The Tribunal’s concern had its root in the “overriding objective” set out in Rule 30(2) of the regulation of procedure for appeals for which Rule 30 as whole provides, that is, “to secure the just, timely and effective disposal of appeals”.

The thrust of the Tribunal’s concern, as helpfully summarised by Mr. McCullough, was that in a context of uncertainty on the all important question whether removal was in fact going to take place, it was “obviously sensible and desirable … that a conclusion should be reached on the merits”, so that a direction requiring review of the case, as in N’da, or that the Home Office should reconsider the matter, as in Mwanza, would “secure the just, timely and effective disposal of the appeal”. This is how Collins J, in paragraphs 13-14 of the Tribunal’s Decision, expressed his concern:

Mr. Drabble submitted that the effect of the directions in question was procedural in that they would or should have prompted the Secretary of State to consider the matter on its merits in the light of further information provided by Mr. Zaier and to so inform the special adjudicator conducting the appeal. He said that there was an important practical difficulty about the scope of an adjudicator’s power to issue directions under Rule 30 where, as here, the Secretary of State had not considered the merits of an asylum claim because he has dismissed it under Rule 340 of the Immigration Rules for an actual or apparent failure by the claimant to assist him to establish the facts. A direction under Rule 30 of the 2000 Rules requiring the Secretary of State to particularise his case on appeal would, in practice, serve a useful purpose in requiring him to consider the merits of the claim. He drew attention in the same context to the overriding objective in paragraph (2) of Rule 30 for the giving of procedural directions, namely “to secure the just, timely and effective disposal of appeals”, and submitted that the directions in this case should be regarded as directions controlling the conduct of the appeal so as to meet that objective.

Mr. Drabble added that, insofar as such directions presuppose that the Secretary of State will take steps, by means of an interview, to acquaint himself with the nature of the asylum claim and in substance to reconsider his decision, that would flow from the overriding objective in Rule 30(2), not from the directions. That is particularly appropriate, he said, where, as here, the Secretary of State had made no decision on the merits but only on a mistaken basis under Rule 340. He suggested that if the directions had required the Secretary of State to provide particulars of his case on the appeal under Rule 30(4)(c)(iii), a possibility perhaps contemplated by the Tribunal in paragraph 13 of its Determination (see paragraph 12 above), it would have required him effectively to consider the merits of the case for the first time.

However, Mr. Drabble acknowledged that the main obstacle to that line of reasoning is the decision of this Court in Mwanza – unless it could be distinguished. He sought to do that by narrowing its ratio to the proposition that procedural directions under Rule 30 cannot require the Secretary of State to take a fresh “administrative action”, such as substantive consideration of and decision on the asylum merits. The position was different, he submitted, if, as here, a direction fell short of that in that it merely required him to consider the merits and communicate his conclusions to the adjudicator and the claimant. However, he did not confine his submission based on that distinction to Rule 340 cases. He said that the distinction between a direction to the Secretary of State to particularise a case he has not yet thought about and one as to what he thinks about a case on which he had reached a conclusion on the merits in order to provide particulars of it is artificial. Such a direction would merely impose a timetable on what he has to do in any event for the purpose of the appeal, namely to consider the merits of the claim, so there is no conflict with Mwanza; and it meets the overriding objective in Article 30(2).

Mr. Drabble sought support for his interpretation of Mwanza and its implications for the practical working of Rule 30 in the Tribunal’s decision in N’da. He relied on the Tribunal’s expressed concern in that case that the Rule should be usable to prompt the Secretary of State to consider or reconsider, as the case may be, his decision on the merits, the directions serving effectively to impose on him a time-table for doing so, and thus for all practical purposes “procedural”.

Mr. Drabble submitted in the alternative that Mwanza was wrongly decided, but acknowledged that he could not succeed on that challenge before this Court.

Mr. McCullough submitted that whether or not, in Collins J’s words in N’da, it would be “sensible” or “desirable”, to allow an adjudicator to remit the asylum merits to the Secretary of State where a special adjudicator considers that something has gone wrong, or where circumstances have changed, the fact is that there is no provision in the Rules or elsewhere for special adjudicators to make such remissions. It is for him to decide the asylum merits himself, as the Tribunal itself has recognised in general terms in Ali Haddad v. Secretary of State [2000] INLR 117, at paras 7 – 9. He also observed that the Tribunal’s expressed concern in N’da about delays in decisions as to removal directions may be unfounded, given the observations of the Court of Appeal in the linked cases of “Afghan No. 19”, R (Secretary of State v. IAT [2001] EWHC Admin 1067, [2002] INLR 116, and Saad v. Secretary of State [2001] EWCA Civ 2008, at para. 57 that, as an asylum appeal involves consideration of a hypothetical removal at that time, it was wrong to adjourn an appeal because it was not yet known whether the Secretary of State was going to remove.

Mr. McCullough disagreed with the narrow ratio of Mwanza for which Mr. Drabble contended, namely that a Rule 30 direction cannot require the Secretary of State to take a fresh “administrative” action, such as taking a fresh decision. He submitted that since Rule 30 is, on its terms, plainly limited to procedural case-management directions, matters falling outside it would be matters of substantive nature, for example, consideration or further consideration of the matter in one form or another on its merits. That is so, he submitted, whether or not the direction requires the results of that consideration to be embodied in a decision letter or formally communicated to the Tribunal or the claimant. He questioned the equation of a substantive matter with an “administrative” action whatever that meant and of a matter of procedure with a non-administrative action. He submitted that the true ratio of Mwanza was that a direction requiring the Secretary of State to re-evaluate the merits of an asylum claim is outside Rule 30 and, therefore, ultra vires, relying on the following words of Sir Swinton Thomas, at para. 31 (which I have already set out as part of a longer passage in para. 18 above):

In summary, Mr. McCullough submitted: 1) that the Deputy Judge properly applied the Mwanza distinction between a procedural direction for the conduct of the appeal before the special adjudicator under Rule 30 and a direction to the Secretary of State to review or reconsider his decision on the merits; 2) he correctly considered that the series of directions should be looked at as a whole; 3) he correctly decided that they were not procedural directions for the conduct of the appeal, but of a substantive nature requiring the Secretary of State to interview Mr. Zaier for the purpose of reconsidering his claim for asylum on the merits; 4) the directions were, therefore, unlawful because the special adjudicators had no power to give them; and 5) Mr. Curzon Lewis, therefore, had no power to allow Mr. Zaier’s appeal on the ground that the Secretary of State had failed to comply with them.

In my view, Mr. McCullough’s submissions are to be preferred. As is plain from the legislative provisions, rules and authorities to which I have referred, an adjudicator, unlike the Tribunal to which Rules 30 and 33 also apply, has no power to remit the matter, in his case, to the Secretary of State for re-determination. His function is to determine the matter on the merits on the appeal before him; so he does not need the power to remit; which must be why the legislation does not provide it. That follows from the terms of the section 8(4) of the 1993 Act, which I have set out in paragraph 7 above, specifying as the only ground of appeal “that his removal in pursuance of the [removal] directions would be contrary to the United Kingdom’s obligations under the Convention”. Accordingly, it is an appeal by way of a hearing on the merits as to whether the claimant is a refugee and, if so, whether his return would breach the Convention; see Emlik, per Silber J, at para. 30; and in exercising that jurisdiction, whether by determining it or adjourning it with a view to future determination, a special adjudicator has no power to remit the matter to Secretary of State for him to consider or to reconsider his decision on the merits. And there is no other legislative provision enabling such remission. In contrast, the Tribunal, in keeping with its different role as an appellate body of review, had and has a power of remission of matters for reconsideration on their merits, a power to remit the appeal before it to an adjudicator “for determination by him in accordance with any directions given to him by the Tribunal” – see Immigration Appeals (Procedure) Rules 1984, Rule 21, and the 2000 Rules, Rule 23.

The function of a special adjudicator hearing an asylum appeal is well described by the Collins J in Ali Haddad v Secretary of State [2000] INLR 117 at paras. 6 and 7, albeit in the context of a failure by a claimant to comply with a procedural direction, but equally applicable in a case where there has been no such failure and/or a failure by the Secretary of Sate to comply with any procedural direction under Rule 30:

In the circumstances of a case like this where the Secretary of State has not complied with a “direction” of an adjudicator to take one of the steps open to him under Rule 340, including interview of a claimant for asylum, there are two reasons why the adjudicator is not entitled to allow, on the ground of that failure, an asylum claimant’s appeal from a refusal by the Secretary of State. The first, as I have said, is that the Secretary of State was not obliged to interview Mr. Zaier if he could inform himself sufficiently about the facts of his asylum claim in another way, and Rule 30 contained no provision entitling the adjudicators to direct him to do so. The second is that any such purported direction is not, in any event, concerned with procedural matters for prosecution of the appeal, as distinct, say, from a direct or indirect way of remitting the subject matter of it to the Secretary of State for consideration or re-consideration; so it is not within Rule 30 or, therefore, within Rule 33(2)(a) in reliance on which Mr. Curzon Lewis allowed Mr. Zaier’s appeal.

The sole purpose of Rule 30 is not to facilitate a remission, either for an adjudicator or the Tribunal, but to enable them to give procedural directions for the appeal, in the adjudicator’s case by way of a hearing, and in the case of the Tribunal, by way of review. The “overriding objective” referred to in Rule 30 (2) is “to secure the just, timely and effective disposal of” – that stage of the asylum process – “appeals”. To construe the Rule so as to enable an adjudicator to send the subject matter of an appeal back to the Secretary of State without determining the appeal would not achieve that objective. In many cases, it could delay rather than expedite the process as a whole, for example, if on a re-determination the Secretary of State adheres to his original view, that decision itself could then, contrary to the overriding objective in Rule 30(2), generate a further appeal to an adjudicator, long after he could have determined the matter on the merits himself on the original appeal.

There could, of course, be cases where, if it were possible, remission to the Secretary of State for consideration or re-consideration of the asylum claim on the merits might save time in the process overall, or where a direction differently expressed, say as a requirement under Rule 30(4)(c) to particularise his case for the purpose of the appeal, could achieve the same end in practice (see e.g. Secretary of State v. Razi 01/TH01836) 2001, IAT, paras. 12 and 13). But it is not permissible to bend the plain provisions of the legislative and regulatory scheme that I have described in the manner suggested by Mr. Drabble to achieve it. The only possible route open to Mr. Zaier on appeal to this Court, as Mr. Drabble acknowledged, would be for the Court to distinguish Mwanza.

I should say that even if we were not bound by this Court’s ruling in Mwanza, I would follow and adopt it. For the reasons given by the Deputy Judge and advanced by Mr. McCullough, I consider that its ratio is wider than that for which Mr. Drabble contended. The Deputy Judge said, at paragraphs 22 and 23 of his judgment:

On my reading of Sir Swinton’s reasoning at paragraph 31 of his judgment (see para. 19 above), any substantive matter, that is one going to the merits of the asylum claim, as distinct from procedural matters relevant to the conduct of the appeal, could not be the subject of a Rule 30 direction. The fact that in Mwanza the direction was that the Secretary of State should make a fresh decision within a set period or his original decision on the merits would cease to have effect does not mean that the ratio of the case is limited to such an extreme instance of a non-procedural and substantive direction requiring him to consider or reconsider an asylum claim on its merits. It follows that I respectfully agree with the Deputy Judge’s conclusion in paragraphs 22 and 23 of his judgment.

Although the legislative scheme is that the Secretary of State is the primary decision-maker on the merits, it also recognises in its provision for an appeal by way of a hearing at the first stage of appeal, that the adjudicator, when the matter comes to him, has the same function. And that is so, not only where the Secretary of State has made an initial decision on the merits, but also where he has not done so in a non-compliance refusal as in Mwanza and this case, albeit in the sense identified by Collins J in Ali Haddad, at paras. 5 - 9, under Rule 340 when read with Rules 334 and 336. It follows that it is immaterial that, in this case, the Secretary of State dismissed Mr. Zaier’s claim for asylum under paragraph 340 of the Immigration Rules and thus without consideration of the merits in the sense that the claimant had not furnished him with sufficient information to support his claim.

I should add that, even if the Mwanza ratio were as narrow as Mr. Drabble has suggested, I can see nothing in it to prevent this Court from adopting the wider approach for which Mr. McCullough contended.

Accordingly, I would dismiss the appeal.

I agree that this appeal should be dismissed for the reasons given by Auld LJ and add a short judgment of my own limited to the distinction between orders made by special adjudicators which are permissible and those which are impermissible for want of jurisdiction.

In paragraph 14 of his judgment Auld LJ has set out rules 30 and 33 of the 2000 Rules. Under Rule 30 the special adjudicator, like the Tribunal, has wide powers to make procedural orders in relation to the conduct of an appeal (rule 30(1)) in order to secure its just, timely and effective disposal (rule 30(2)). Rule 30(4) sets out particular examples of such directions. They include directions which provide for the furnishing of any particulars which appear to be requisite for the determination of the appeal (rule 30(4)(c)(iii)) and a skeleton argument (rule 30(4)(d)(iii)).

Auld LJ has set out the facts, which I do not therefore repeat. It appears from them that the Secretary of State originally decided to interview the appellant on 29^th May 1998, no doubt in order to give appropriate consideration to his claim for asylum. The first special adjudicator, Mr. Such, was satisfied that the appellant was not given notice to that effect. On 26 January 2000 he adjourned the appeal with a direction that the Secretary of State interview the appellant. A similar order was made on 15 June 2000, when it appears that the presenting officer concurred, and on 23 February 2001 (by which time the Home Office had lost the file) the adjudicator gave directions that the Secretary of State interview the appellant within one month. Auld LJ has set out the details of what then happened in paragraph 10. Various special adjudicators gave direction on 15 March, 9 April and 14 May 2001 that the Secretary of State interview the appellant within one month.

Auld LJ set out in paragraph 11 what happened before Mr. Curzon Lewis on 18 June 2001 when he allowed the appellant’s appeal without considering the merits under rule 33(1)(a) and 33 (2)(a), on the ground that the Secretary of State had failed to comply with directions given by several special adjudicators to the Secretary of State to interview the appellant.

I entirely agree with Auld LJ that Mr. Curzon Lewis was not entitled to dismiss the appeal without a hearing because those directions were not procedural directions permitted by rule 30 but were directions which the special adjudicators had no jurisdiction to make. For the reasons given by Auld LJ, a special adjudicator has no power to order the Secretary of State to interview an applicant for asylum and, indeed, no power to order the Secretary of State to make a fresh decision or to remit an appeal to the Secretary of State for that purpose.

It does not, however, follow that the powers of a special adjudicator under rule 30 are not extensive. In this case the Secretary of State initially wanted to interview the appellant and it seems not unlikely that there will be cases in which the Secretary of State will wish to interview an appellant at a later stage of the process, perhaps in order to reconsider his initial approach to the case. He may wish to do so in connection with the appeal. This can perhaps be illustrated by the facts of this case.

The Secretary of State might have wanted to interview the appellant after Mr. Such had accepted the appellant’s case that he was unaware of the position. Indeed it may be that that is what Mr. Such thought he would want to do. Although Mr. Such had no power to make the order he in fact made, he could as I see it have approached the matter differently. For example, the Secretary of State’s representative could have been asked whether the Secretary of State wished to interview the appellant before the hearing of the appeal. If he had said no, the special adjudicator had no power to order him to do so. On the other hand, if he said yes, the special adjudicator could have laid down a time before which any interview was to take place and given a direction that the Secretary of State give particulars of his case in order to facilitate the appeal. Such directions would as I see it have been permissible as procedural directions within rule 30. If the Secretary of State’s representative had said that he needed time to consider or to take instruction as to whether the Secretary of State wished to interview the appellant, again the special adjudicator could have given appropriate directions as to an appropriate timetable, in order, in the words of rule 30(2), to secure the just, timely and effective disposal of the appeal.

I have added these comments because it is, I think, worth stressing that, while the special adjudicator has no power to direct the Secretary of State to conduct an interview or to reconsider the merits and produce a fresh decision, he does have ample powers to ensure that the Secretary of State (and indeed the appellant) take timeous steps with a view to the disposal of the appeal as soon as reasonably practicable. However, as already stated, I agree that the appeal should be dismissed for the reasons given by Auld LJ.

I also agree.