Ghebru v Secretary of State for the Home Department

This is an appeal from the determination dated 7^th December 2005 of a single immigration judge on a reconsideration of Miss Ghebru’s appeal against a refusal of asylum.

On 20^th January 2006 a senior immigration judge granted permission to appeal because the grounds of appeal (and in particular Grounds 1 and 3) raised properly arguable points of law material to the determination. On 9^th February the Notice of Appeal was filed at this court.

On 13^th April the Civil Appeals Office directed that the appeal should float over 19^th-20^th July at an appointment attended by the clerks to counsel on both sides. It was the duty of counsel’s clerks to notify their solicitors of the date(s) for the hearing fixed at this appointment.

It was apparently not until my clerk inquired last week why the respondent’s skeleton argument had not been filed by 12^th July that the Treasury Solicitor’s office became aware of the hearing date. The person dealing with the case has told the Civil Appeals Office that he was expecting to be notified of the hearing date by the court, but this is not the practice of the Civil Appeals Office when it has fixed the hearing date at an appointment attended by the clerks to both counsel.

In these circumstances it was not until two days ago that the court was told for the first time that the Secretary of State had consented to an order remitting the appeal to the AIT for reconsideration on grounds remarkably similar to those on which the senior immigration judge had granted permission to appeal six months ago. Counsel told us very frankly that on this occasion he was at fault because he had been instructed to advise in good time, but he did not deliver his advice until two days ago.

I directed that this case remain in the list for mention because all too often nowadays the court is being told that an asylum appeal has been conceded by the Home Office when it is far too late to include another case in the list. On this occasion it appears that there was a breakdown for which counsel was responsible, but on every occasion on which this happens the business of the Court of Appeal is disrupted, and the present occasion has given me the opportunity to draw public attention to a very troublesome contemporary problem affecting the work of the court before I retire as Vice-President of the court.

The court has already arranged hearings for just under 200 asylum appeals this year, about twice as many as were arranged during the whole of 2003. Statistics kept by the Civil Appeals Office reveal that about 60% of these appeals are being disposed of by way of a consent order. In these cases when the court is told that a consent order is being proposed a short time before the hearing, a Bench Memorandum will usually have been prepared by a Judicial Assistant, and the judges will often have read all the papers before they learn for the first time that a consent order is in the offing. Because it is not possible to place asylum appeals in a Short Warned List, there is then usually a gap of two to four hours in the court’s list when other cases could have been listed if only the Home Office had given earlier notice of its intention in relation to the appeal.

Richards LJ reported to me that on 9th June a permission to appeal application was listed in his court (C5/2005/2544), which the lord justice considering the papers had adjourned to an oral hearing on notice to the Secretary of State. Only as he finished reading the papers on the Thursday afternoon did he notice that the Secretary of State had been directed to submit a skeleton argument by noon that Thursday. His clerk then made inquiries of counsel for the Secretary of State, who told her he understood that there was going to be a consent order in the case. Further inquiries established that the parties had agreed (perfectly sensibly, given the nature of the case) for the matter to be stood out pending a fresh determination of Sudanese cases in the AIT following the decision of the House of Lords in Januzi. The case was taken out of the list on the Friday morning after Richards LJ had wasted two hours reading the papers the previous afternoon.

On Thursday 22^nd June 2006 Scott Baker LJ reported to me that he had three immigration/asylum cases in his list, one for that day and two for the following Monday (C5/2005/2581, C5/2005/2757 and C5/2006/0005). Two were full appeals: the other was listed for permission with the appeal to follow. When he received the papers there was nothing to indicate the Secretary of State's position. On 15^th June he caused inquiries to be made of the Treasury Solicitor. On each occasion he was told that the Secretary of State was not resisting the appeal. It nevertheless took time for the consent orders to be drawn up, agreed and sent to the Civil Appeals Office. It was much too late to list any other cases.

I am aware that similar problems have often occurred in recent months, and the clerks to the lords justices are now having to spend far too much of their time “chasing” the representatives of the respondent shortly before a hearing in order to inquire about the Crown’s position in relation to the appeal.

On 29^th June 2004 the revised Practice Direction to CPR Part 52 relaxed the time at which the respondent was required to file a skeleton argument in those cases in which a respondent’s notice is not filed. But this relaxation was never intended to absolve a respondent’s advisers from considering the merits of the appeal at the much earlier stage at which it is required to consider whether to file a respondent’s notice and to add any additional documents to the appeal bundle. Any privately funded respondent would have to do this in any event as a matter of course, in order to guard against the danger of incurring expense in connection with an appeal which he or she was not going to be able to resist.

Given that it is Government policy to speed the consideration of asylum appeals, I do not know why the Home Office appears on many other occasions to be deferring its decision whether or not to resist an appeal for months after it has received notice of the grounds on which permission to appeal has been granted. This delay in its decision-making process is now creating serious problems for the proper administration of justice in the Court of Appeal. It is also delaying the hearing of other appeals which could have been brought into the list if only the Treasury Solicitor had been in a position to notify the Civil Appeals Office of the Home Office’s intentions much earlier. It is to be hoped that prompter consideration may be given to these matters in future.

That said, the court is willing to make a consent order in the terms agreed between the parties. The appeal will be allowed, the decision of the Asylum and Immigration Tribunal quashed, and the matter will be remitted to a different immigration judge for reconsideration in accordance with Senior Immigration Judge Lane’s order dated 26^th May 2005.

I agree.

I also agree.