Monde, R (on the application of) v Asylum & Immigration Tribunal & Anor

LORD JUSTICE WILSON: The applicant makes a renewed oral application for permission to appeal against the refusal by Stanley Burnton J, sitting in the Queen’s Bench Division, Administrative Court, on 19 December 2005 to refuse the applicant permission to apply for judicial review. In fact Ms Weston on her behalf has today sought an adjournment of today’s hearing on the basis that she aspires to procure for the applicant public funding for the briefing of leading counsel even upon this application for permission; but, in the light of my Lord’s indication as to how we would be minded to dispose of the application. Ms Weston has expressed herself more than content with the course thus proposed.

By her application for judicial review, which was issued on 25 August 2005, the applicant challenges the lawfulness of interlocutory decisions reached by an immigration judge, Mr L. D. Sacks, sitting in the Asylum and Immigration Tribunal, North Shields, in connection with her appeal to it against the refusal of the Secretary of State for the Home Department on 7 June 2005 to grant her asylum or to uphold her claim that removal of her from the UK would infringe her human rights. The interlocutory decisions are dated 28 July 2005, 11 August 2005 and 18 August 2005. By the first decision the judge refused the applicant’s application for her to be permitted to adduce, by telephone from Cameroon, the oral evidence of a witness and to tender him for cross-examination by telephone. By the second decision he refused an analogous application made on a somewhat firmer logistical foundation. By the third decision, notwithstanding the absence of the applicant by reason of ill health, he refused an application for further adjournment of the hearing of her appeal.

One substantial complication plainly arises. Following his refusal of the adjournment on 18 August 2005, the judge, albeit in the absence of any oral evidence from the applicant and of any active participation on the part of her advocate, proceeded to determine the appeal on paper. By a decision promulgated on 8 September 2005, i.e. after the issue of the application for judicial review, he dismissed the applicant’s appeal on the basis that he disbelieved the alleged factual basis of it, namely her account of her historical persecution in Cameroon by reference to her husband’s political opinion. The dismissal opened the door to an application under section 103A of the Nationality, Immigration and Asylum Act 2002 for a review of the tribunal’s decision. In applying for such review the applicant properly included her complaints about the interlocutory decisions to which I have referred as well as her complaints about the substantive decision reached by the judge. But, first by adverse decision of a senior immigration judge and then by adverse decision of Bean J, her application for review of the tribunal’s decision has reached its final negative conclusion. So the Secretary of State has thereby become able to complain, such being an argument which found favour with Stanley Burnton J on 19 December 2005, that the present proceedings for judicial review represent an improper attempt to challenge a decision under section 103A, which, by subsection (6), was provided by Parliament to be final.

It was and is the case of the applicant that she is married to a militant activist in the SCNC, an English-speaking secessionist movement in Cameroon; that in October 2001 the authorities in Cameroon, hunting her husband, arrested and detained her in lieu of him and pending location of him; and that she was detained in brutal circumstances for four months until she managed to escape and to pay for travel, ultimately to the UK. On about 18 August 2005 two affidavits were sworn in Cameroon in support of the applicant’s appeal. They were sworn by Mr Amombi, a barrister and solicitor in Cameroon and a prominent human rights lawyer there; and by Mr Chifu, a prominent journalist and human rights activist there. By their affidavits, both confirm that in October 2001 the applicant was indeed arrested and detained, along with three others, on the basis only that she and they were related to SCNC militants whom the authorities wished to arrest; and that later they both learnt that somehow the applicant had managed to escape. In the light of the fact that on 18 August the judge refused to adjourn the hearing of the appeal, it follows that the two affidavits, sworn only on that day in Cameroon, were not then able to be placed before him. Under cover of a letter dated 22 August the applicant’s solicitors did forward them to him; but he ruled that the evidence came too late and, in his determination, made no substantive reference to them.

The hearing on 28 July 2005 had been a case management review hearing. On that date the solicitor for the applicant, apprised of the fact that, in particular, Mr Amombi could give highly relevant evidence to support her historical account, applied to the judge for permission to adduce his evidence by telephone to the tribunal. The application was refused. In his substantive determination the judge was later to explain that the refusal had been based upon the fact that there was ample time before the substantive hearing, then fixed to take place on 11 August, for the applicant’s solicitors to procure an affidavit from Mr Amombi. The attendance note of the applicant’s advocate indicates however that the reason given by the judge for refusing the application had been that there were no facilities for the tribunal to receive evidence by telephone from Cameroon and that, of course, there were difficulties about establishing the identity of witnesses giving evidence in that way.

Although the applicant’s solicitors set about the procurement of an affidavit from Mr Amombi, and indeed from Mr Chifu, they renewed, initially by letter to the tribunal dated 9 August, their application for evidence to be given by telephone. In the letter they explained that their aspiration was to adduce evidence in that way not only from Mr Amombi but also from Mr Chifu and that, in the light of the judge’s expression of practical difficulties about the tribunal’s receipt of telephone evidence from Cameroon, they had secured the permission of the Legal Services Commission to fund the installation at the tribunal premises of appropriate facilities for the receipt of evidence by telephone from that country.

On 11 August 2005, being the date fixed for the substantive hearing, counsel for the applicant enlarged upon the renewed application to call the evidence by telephone. According to counsel’s attendance note, the judge was not prepared to review the refusal of the application made on 28 July. According to her, he opened proceedings by stating that he did not wish to hear submissions from her with regard to the adduction of telephone evidence or to any consequential adjournment of the hearing in order for it to be arranged. According to her, he referred to the facility for the applicant to apply for judicial review of his decision and said that, in the absence of such a challenge, the decision stood. According to her, he became angry and, after she had pointed out that her solicitors had not yet succeeded even in obtaining affidavits from the two witnesses in Cameroon, at one point banged his fist upon the table. Even though she submitted to him that the affidavits should be forthcoming only within a few days, the judge refused to countenance any adjournment.

At the hearing on 11 August counsel also asked the judge to consider a report on the applicant by Dr Wohlrab, her GP. The doctor there referred to the applicant’s hypertension, and stated that even on a fairly high does of anti-hypertensive medication, her blood pressure was still excessive, namely 172/123. He expressed concern that any cross-examination would raise her blood pressure further and to a dangerous level. Following his refusal to countenance any substantive adjournment, the judge granted counsel an adjournment of a few minutes in order to enable her to determine whether the applicant would be well enough to give evidence. In the corridor outside the hearing room the applicant, according to counsel, began to breathe irregularly and slumped into a seat. When counsel returned to the hearing room in order to inform him of the applicant’s condition, the judge said, according to her, that there was no reason why the applicant should be unable to give evidence shortly and that he intended to hear the appeal come what may. When counsel returned to the corridor, she discovered the applicant lying on the floor and starting to lose consciousness. She was taken by ambulance to a hospital in Newcastle-Upon-Tyne. In those circumstances the judge adjourned the hearing until 18 August 2005, being a date when counsel explained that she would be unavailable.

On 18 August 2005 the solicitor/advocate for the applicant, who did not have conduct of the case and who says that she knew sufficient about it only in order to press for a further adjournment and not to conduct the substance of the appeal, placed before the judge a further report from the GP dated 16 August 2005. He reported that, on arrival at A & E on 11 August, the applicant’s blood pressure had been 199/134; that, without medication additional to her regular medication, apart from analgesia, her blood pressure had gradually settled to a normal level of 126/84; and that thus she had been discharged from hospital without admission. The GP said that, in the light of the insufficiency of control of the applicant’s blood pressure, he was asking her specialist to see her urgently, in advance of her planned appointment with him in September 2005. The GP concluded by saying that the applicant was physically unfit to attend any further court hearings “for now”; that he was afraid for her health and life; and that any further collapse in court might possibly have a fatal outcome. Thus it was that the applicant was not present at the hearing on 18 August. Exercised, in particular, by the fact that, however inevitably, the GP had at that point been unable to predict when the applicant would be fit to attend the hearing, the judge refused the advocate’s application for a further adjournment. The advocate was later to be severely criticised, both by the judge and by Bean J, for thereupon stating that, since she did not have conduct of the applicant’s case and knew effectively nothing about the substantive issues raised in the appeal, she felt unable to participate actively in the hearing then about to begin.

By the determination dated 7 September 2005 the judge, as already indicated, rejected the history given by the applicant in statements that she had been imprisoned as a result of her husband’s political activities, had there been grossly ill-treated for four months and had then managed to escape. In a long and careful determination he made a number of points, later to be castigated by the applicant’s representatives as trivial or misconceived, which in his view led him to reject the history given by her.

In firmly expressed reasons dated 10 November 2005 for refusing the application for reconsideration under section 103A, Bean J concluded that there was nothing arguably unlawful about the interlocutory decisions which the judge had reached and that he had been entitled to make the adverse credibility findings.

In refusing permission to apply for judicial review Stanley Burnton J pointed out that the applicant’s attack on the lawfulness of the interlocutory decisions had been included in her application under section 103A and that, although complaints might be made about the conclusion reached by Bean J, it was inappropriate for the complaints to continue to be ventilated in proceedings for judicial review, in which another High Court judge would be called upon in effect to review the conclusions which Bean J had reached. He held that the case was indistinguishable from the general principles set out by this court in M and G [ 2004] EWCA Civ 1731 and that, while he declined to describe the proceedings as an abuse of process, it was nevertheless inappropriate for them to continue. Upon being reminded at the conclusion of his judgment that on 11 August the immigration judge had himself adverted to the possibility of proceedings by the applicant for judicial review, Stanley Burnton J added that the judge had erred in encouraging any proceedings in advance of the substantive determination and outside the tramlines of section 103A.

It is clear that the applicant may face considerable, indeed perhaps insuperable, difficulties in seeking to challenge decisions by reference to matters which have already been the subject of ostensibly final determination in the proceedings under section 103A. Nevertheless in my view (and without, I hope, revealing my provisional opinion of the merits of her proposed appeal one way or the other) the applicant should have a full opportunity of trying to persuade this court either that her case arguably falls outside the ambit of the normal principle in that the proceedings for judicial review seek to challenge only interlocutory decisions and were issued prior to the substantive decision or that, in words criticised by Bean J, but about which Ms Weston remains unrepentant, the interlocutory decisions represent a “flagrant breach of natural justice involving judicial conduct prejudicial to the interests of justice”, such as to make this an exceptional case which, regardless of general principle, compels intervention. I suggest that we should adjourn today’s application to be heard, by three judges, on notice to the tribunal and to the Secretary of State, and on the basis that:

LORD JUSTICE MUMMERY: I agree. I am confident that Wilson LJ’s judgment will be of great assistance to the parties and their advisors, to the public funding authorities to whom an application is to be made to fund the briefing of leading counsel in this matter. I think it will also be of great assistance to the full court that comes to hear the application for permission and, if it so decides, to hear the full appeal. The order we make is that this is stood over in the terms indicated by Wilson LJ.