Secretary of State for the Home Department v Makke

This is an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against the judgment of Wilson J dated 21 June 2004 whereby he quashed a decision of the Immigration Appeal Tribunal dated 19 January 2004. The Tribunal had refused an application by Mr Moatseim Ali Makke (“the respondent”) for permission to appeal, out of time, against the decision of an adjudicator dated 9 May 2003. The adjudicator had dismissed the respondent’s appeal from the refusal of the Secretary of State on 4 January 2003 to grant him asylum in the United Kingdom. The case involves consideration of the circumstances in which an applicant for asylum, who has not appeared before the adjudicator because he has had no notice of the hearing, should be granted permission to appeal out of time.

The respondent is a national of Sudan. He claimed to have been a member of an opposition party in Sudan and to have been detained there for substantial periods in 1996 and 1997. On arrival in the United Kingdom, on 8 November 2002, he claimed asylum.

Notice of appeal to the adjudicator was given by London solicitors. The respondent was “dispersed” from London to Gateshead and then instructed solicitors in Newcastle. Neither the claimant nor his Newcastle solicitors were aware of the date set for the hearing before the adjudicator, which was 28 April 2003, and the respondent was neither present nor represented at that hearing. The London solicitors had received notice of the hearing but took no action. The Newcastle solicitors wrote to the London solicitors stating that they had been instructed and requesting transfer of the file. They received certain documents in reply but these did not include a copy of the notice of appeal, the formal notice of hearing or a further letter received from the Immigration Appellate Authority (“IAA”) pressing for a return of the Reply to Directions.

The Newcastle solicitors wrote to different sections of the Immigration and Nationality Directorate (“IND”) but not to the IAA. They received no reply. It was only after the hearing before the adjudicator that the Newcastle solicitors asked the London solicitors by telephone whether notice of appeal had been given. The Newcastle solicitors did not receive notice of the adjudicator’s determination, though a copy was sent to the London solicitors promptly. In late July 2003, the respondent himself was notified that his appeal to the adjudicator had been dismissed. He reported promptly to the Newcastle solicitors who wrote to the IAA on 25 July stating that the respondent had been unaware of the appeal and requesting a relisting. It was only on 24 September that the IAA sent a copy of the determination, and earlier notices, to the Newcastle solicitors, despite chasing letters from the solicitors. On 1 October, about four months out of time, application was made to the Tribunal for permission to appeal from the adjudicator.

The adjudicator had, on 28 April, exercised her powers to determine the appeal without a hearing. She had before her a record of the respondent’s interview with immigration officials, a statement given to the London solicitors and in-country material. No Home Office presenting officer was at the hearing. There is every indication that the adjudicator carefully considered the material before her. On that material, she reached a decision which she was entitled to reach.

In a careful analysis of the reasons for the non-attendance before the adjudicator and the subsequent delay, the judge has attached fault to the London solicitors (“most at fault”) and also, in relation to the non-attendance, to the Newcastle solicitors and IND and, in relation to the subsequent delay, to the Newcastle solicitors and IAA. He concluded that the respondent personally was “in no way at fault”. The parties have not sought to challenge the judge’s analysis, save for an allegation of failure by the respondent to comply with procedural rules. I do not dissent from the analysis and, in view of the points on which this appeal turns, I do not intend to conduct a further analysis, save to mention one aspect of the respondent’s conduct.

The grounds of appeal to the Tribunal set out the reasons for the delay in making application. They did not address the merits of the claim for asylum. In a further letter, the Newcastle solicitors made clear that the relief sought was remittal of the case to an adjudicator for a fresh determination. As the judge put it, at paragraph 22, “the implied corollary was that the [respondent] did not aspire to press the merits of his ultimate claim for asylum before the Tribunal”. That remains the respondent’s position. At no stage have grounds been advanced to suggest an error of law or of fact in the adjudicator’s reasoning and decision. The respondent rests his case on the procedural point that the adjudicator’s decision cannot stand because the respondent had no opportunity to put his case to her.

The Tribunal refused permission to appeal out of time. In written reasons for decision, the Vice President stated:

“The adjudicator heard the appeal, with neither side present, on 28 April 2003: her decision was sent out on 8 May to the claimant at the only address given on his notice of appeal to the adjudicator, which was care of his then solicitors, who also received a copy. He now says his present solicitors were instructed in February, and gave his new home address, and theirs, to the Immigration and Nationality Directorate; but he only got to hear his appeal had been dismissed when his benefits were stopped. The adjudicator however did nothing irregular in proceeding to hear the appeal, when notice of hearing had been sent to the only address available to the IAA; and she considered its merits with some care. If her decision were to be successfully challenged (for which a point of law was not required at the time it went out), then the proposed grounds of appeal needed to address what she said about the merits, so as at least to show an arguable case that she was wrong on them.”

The judge quashed the refusal of permission:

“33.

Let me say, in fairness to the Vice President, that I have had not only the benefit of a fuller account of the sorry forensic history than was put before him but also the luxury of far greater time for consideration than was available to him. I also recognise that appellants in asylum cases all too often blame their former lawyers for whatever has gone wrong; and it would not be surprising if decision-makers were to develop an ethos of scepticism about such allegations. Although his grounds of appeal in the application notice to the Tribunal did not apportion blame in quite the right way – in particular he was too merciful towards the Newcastle solicitors who instructed and instruct him – Mr Currer’s main assertion was that the claimant was not personally responsible either for the non-attendance or for the subsequent delay; and, crucially, this was an assertion for which he gave detailed and prima facie compelling justification. This was the central point relevant to where the justice of the matter lay. But the Vice President made no reference to it. Instead, although the contrary had not been suggested, he devoted most of his Reasons to an explanation of why responsibility for the claimant’s non-attendance did not lie with the IAA. Then, as I have explained, he fell into further error in holding that the failure to address the merits of the ultimate claim was fatal to the application. He did not say and could not have said, that it was obvious that the claim for asylum would fail. The Secretary of State had not certified, under paragraph 9(4)(b) of Schedule 4 to the Immigration and Asylum Act 1999, that the claimant’s alleged fear of persecution was manifestly unfounded; and, in reading the adjudicator’s determination, the Vice President knew that it had been made without the benefit even of any documentation filed on the claimant’s behalf.”

The judge added, at paragraph 34, that if the absence of submissions as to the merits of the ultimate claim was fatal to the application, the Tribunal “should in the circumstances have granted a narrow permission to the claimant so to vary his grounds of appeal as to seek to make good the deficiency”.

In seeking to uphold the judge’s conclusion, Mr Currer, for the respondent, relies on the judge’s finding that the respondent himself was in no way at fault in relation to his non-attendance before the adjudicator or the subsequent delay in filing a notice of appeal. The purpose of the application to the Tribunal was to secure a remission to an adjudicator to enable the respondent to make submissions upon the strength of his case for asylum. The failure to address the merits of the claim for asylum in the application to the Tribunal was not fatal to the application; it was only when the outcome of the application for asylum was obvious and no purpose would be served in re-hearing that the merits were relevant. The issue before the court was whether there was a real prospect of securing a remittal to an adjudicator. No error by the adjudicator is alleged; the application was made unequivocally on the basis that, solely because of the failings of others, the respondent had not had a hearing before the adjudicator. In the alternative, the respondent seeks to uphold the judge’s finding at paragraph 34.

Reliance is placed on the decision of the Tribunal in Nazarina HX/40492/2002, 25 November 2003, (in which the Newcastle solicitors were also involved). In that case, there was no notification to the applicant of the hearing before the adjudicator or of the adjudicator’s determination. Granting leave to appeal to the Tribunal, the Vice President stated, on 25 November 2003:

“If there is any saving grace in this at all it is that the Home Office has done the decent thing and written to the appellate authority supporting this application [for leave to appeal to the Tribunal]. It is certainly powerfully arguable that the appeal will have to be heard again”.

On 23 January 2004, the Tribunal allowed the appeal to the extent of remitting the application to be heard afresh by an adjudicator. This was stated to be “for reasons which were set out in the grant of permission to appeal”. Nazarina was decided on procedural grounds, without reference to the merits of the applicant’s case. Consistency required the same decision in the present case, it is submitted.

For the Secretary of State, Mr Palmer submits that the respondent must demonstrate a real prospect that the adjudicator’s decision on asylum would be reversed. It was not enough to establish the loss of a hearing; the loss of an opportunity to put forward identified and arguable points relevant to the claim for asylum must be shown. In accordance with Rule 17(3) of the Immigration and Asylum Appeal (Procedure) Rules 2003 (read with the transitional provisions in the Nationality, Immigration and Asylum Act 2002 (Commencement No.4) Order 2003), the appellant must identify the errors of law and fact alleged to be present in the adjudicator’s determination, it is submitted, and explain why such errors made a material difference to the decision.

(The 2003 Rules apply to any appeal or application to an adjudicator or the Tribunal pending on 1 April 2003, which would include the present appeal. However at the time when the notice of hearing was purportedly served, the Immigration and Asylum Appeals (Procedure) Rules 2000 (“the 2000 Rules”) were still in force. It is common ground that the effect of transitional provisions in the 2003 Rules is that the grounds on which the respondent was entitled to apply to the adjudicator were not restricted to a point of law but could have included a matter of fact. That result is achieved by reading Rule 18(4) of the 2000 Rules, which permits reference to “errors of fact or law”, as in force at the material time because Rule 61(1) of the 2003 Rules provides that the Rules are to apply with specified modifications and also “such other modifications as are appropriate.” That opened the way in the present case to a challenge for an alleged error of fact. In their reasons for refusing permission to appeal, the Tribunal acknowledged the right, on appeal to them in this case, to allege an error of fact.)

It is also submitted by Mr Palmer that the adjudicator was wrong to conclude that the respondent was not personally at fault for his non-attendance before the adjudicator. His faults included failing, under Rule 47(1), to inform the appellate authority of his change of address and failing, under Rule 35(4), to notify the appellate authority that a representative had ceased to act and to notify the name and address of the new representative.

As to the submission that reference to the merits was unnecessary because all that was sought was a remission by the Tribunal to the adjudicator, the appellant relies on Rule 18(4) of the 2003 Rules:

“The Tribunal may grant permission to appeal only if it is satisfied that –

(a)

the appeal would have a real prospect of success; or

(b)

there is some other compelling reason why the appeal should be heard.”

Success, it is submitted, means success in reversing the underlying decision which is the adjudicator’s decision.

The Secretary of State seeks to distinguish Nazarina on the basis that it may be inferred from Home Office support for the application for leave that it was acknowledged that there was a real prospect of success in an appeal to the adjudicator.

The claim to a limited right of appeal contemplated by the judge at paragraph 34 of his judgment was unsound, it is submitted, Rule 18(2) of the 2003 Rules provides that the Tribunal is not required to consider any grounds of appeal other than those included in the application.

The Secretary of State relies on the decision of Maurice Kay J in Simeer v Immigration Appeal Tribunal [2003] EWHC (Admin) 2683. As in the present case, the claimant had confined his grounds of appeal to the Tribunal to procedural issues. It was common ground that the claimant would only have had a case before an adjudicator if he could establish that he was an exceptional case in terms of return to Sri Lanka. Maurice Kay J stated, at paragraph 41:

“It is not enough to approach this issue on a wing and a prayer along the lines of : “If I am given a chance, I may be able to produce cogent evidence.” The fact is that none has ever been produced.”

Maurice Kay J concluded, at paragraph 43, that the Tribunal was “correct to take the view that the appeal would have no real prospect of success.” He added, at paragraph 44:

“Mr Martin submits that there was another compelling reason, namely the need to give the claimant a fair hearing. However, I reject the suggestion that the procedural shortcoming to which I have referred entitles the claimant to succeed either in the Immigration Appeal Tribunal or here. He has not succeeded in establishing that the Immigration Appeal Tribunal was wrong to refuse leave to appeal.”

Mr Palmer also referred to Ko Ko Naing & Another v Immigration Appeal Tribunal [2003] EWHC (Admin) 771, where Davis J referred, in paragraph 59, to the:

“general desirability of ensuring compliance with the rules; of ensuring that all grounds of appeal are duly raised in the application for leave to appeal itself so that they can be expeditiously dealt with; and of ensuring that the Immigration Appeal Service is operated fairly, speedily and efficiently to the benefit of all those who are seeking to resort to it. If this is not acknowledged as so, the system would soon cease to be workable”.

There was, as the judge found, a failure to follow proper procedures in this case and those at fault, on the judge’s findings, included IND and IAA. In different circumstances, an extension of time in which to appeal to the Tribunal might well have been appropriate, even if there was some fault on the respondent himself, as to which I make no finding. I approach the case on the assumption that the respondent was not at fault either in his non-appearance at the hearing before the adjudicator or in the subsequent passage of time and also on the basis that faults by his solicitors are not to be visited on him. The strict application of a time limit might in other circumstances have worked an injustice.

The application for an extension of time, however, fails (and the appeal must in my view be allowed) because of the failure of the respondent at all stages to address the merits of his case that he should be allowed to remain in the United Kingdom and that the adjudicator reached the wrong decision. We have been assured that the respondent has at all times been available to his current solicitors to give them instructions. There is an apparently sound adjudicator’s decision, in its approach to the evidence, its reasoning and its conclusion.

The 2003 Rules require grounds of appeal to identify relevant errors in the adjudicator’s determination and explain why such errors made a material difference to the decision (Rule 17(3)). The Tribunal is not required to consider any grounds of appeal other than those included in the application (Rule 18(2)). These are no mere technicalities; they follow, as does Rule 18(4), already set out, from the basic principle that cases are to be decided on their merits. One aspect of that principle is that a party seeking a substantial extension of time in which to appeal must show that the appeal would have a real prospect of success if permission is granted. I respectfully agree with the approach adopted by Maurice Kay J in Simeer. It is not sufficient to rely on a procedural point; an applicant in the respondent’s position must condescend to the merits of his challenge to the adjudicator’s decision.

The principle is not confined to immigration proceedings. CPR 13.3 makes similar provision where application is made to set aside or vary a judgment. Proceedings in the absence of a party which lead to an order against him may also be set aside if conditions are satisfied. The conditions include establishing that there is a reasonable prospect of success at the trial (CPR 39.3). The right to a hearing is provided to enable a party to put forward a case at the hearing. A party who is refused a hearing because he declines to state what his case would be if a hearing were to occur does not suffer an injustice in present circumstances.

In this case, the evidence was carefully considered by the adjudicator and an apparently sound conclusion reached. When refusing leave to appeal, the Tribunal referred to the care with which the adjudicator had considered the merits of the case. The Tribunal referred to the need to address the merits so as at least to show an arguable case that the adjudicator made a relevant error with respect to the merits of the case. The Tribunal correctly recognised that the fact that only a remission to the adjudicator was sought did not justify a failure to address the merits of a remitted claim. The Tribunal in my judgment adopted the correct approach and their decision should be upheld. Nazarina does not establish a contrary principle. The position might be different if there had been a plain error on the face of the adjudicator’s decision.

This is a jurisdiction in which the passage of time may be a significant advantage to persons in the position of the respondent. It is not necessary to decide what his motivation was in failing to submit grounds on which the merits of the adjudicator’s decision could be challenged, whether the absence of such grounds, a wish to cause further delay, a genuine belief in the stance taken, or some other reason. In the absence of such submissions, an extension of time should not be granted to him.

For those reasons, I would allow this appeal.

I agree.

I also agree.