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

MR JUSTICE COLLINS: The claimant, Shahhosseini Hossein, is from Iran. He is claiming judicial review of a decision of the Immigration Appeal Tribunal which was given almost a year ago, whereby leave to appeal from the dismissal by an Adjudicator of his claims for asylum and human rights to permit him to remain in this country were dismissed.

The details of his claim I can deal with relatively briefly. He left Iran, he said, in October 2001 as a result of a series of political persecutions by the authorities because of his views and activities. What finally triggered his decision to leave Iran was that he was aware that he and his wife had been the subject of summonses in connection with alleged criminal activity. The criminal activity in question was his political involvement.

He indicated that he had been harassed because of his political views for a number of years, ever since he had become a member of a group known as the Liberation Movement of Iran that he joined in 1985. He alleged that he had been detained on two occasions and had been tortured whilst detained; that was in 1987 and 1988. Thereafter, he was interrogated from time to time and harassed by the authorities. His wife was detained and tortured, he said, in the winter of 1997. It was in 2001 that he finally determined to leave Iran.

He is clearly an intelligent person. He had, in fact, been in and out of Iran on a number of occasions before he decided to claim asylum. There is some confusion in the accounts that he gave as to how he actually managed to come to this country. He appears to have told the immigration officer who interviewed him that he had travelled through Turkey, having left Iran by lorry, and entered the United Kingdom, in due course, illegally. But the statement that he provided for the purposes of his appeal says that that is wrong, that in fact he left by air, coming openly from Iran to the United Kingdom and when he arrived in the United Kingdom he claimed asylum on the day that he arrived.

That is perhaps of some significance in the light of his assertion that it was the existence of summonses or warrants -- there has been some argument about their precise description -- which had been issued to require him to attend for interrogation. If such warrants had, indeed, been issued, it is somewhat surprising that he was able to leave Iran openly through the airport on his own passport, but that is apparently what happened.

The Adjudicator heard his appeal on 15th August 2002 and dismissed it in a decision promulgated the next day. The claimant's solicitors instructed his counsel, Mr Harris, who had appeared before the Adjudicator and who has appeared before me, to draft grounds of appeal. The grounds were drafted and on 5th September it is said that a notice of appeal, accompanied by counsel's grounds, was faxed to the Appeal Tribunal. However, in the meantime, the claimant himself had prepared his own notice of appeal and accompanying grounds and those had been sent by post to the Tribunal. They arrived on the morning of 5th September.

Those grounds are relatively extensive and are typed, it would seem, on a word processor. There was no reason at all for the Tribunal to believe that they were other than a proper submission of an appeal. The Tribunal wrote a letter of acknowledgment the day that both the notices should have been received. In fact, enquiries have established that the Tribunal has no record of what I shall call counsel's application ever having been received. Before issuing proceedings, the claimant's solicitors sought to persuade the Tribunal under Rule 19 of the Procedure Rules 2000 to reconsider the matter on the basis that it was the fault of the Tribunal that counsel's application had somehow got lost. The Tribunal, in due course, refused to accede to that request largely because, as I say, there had been no record that that application had ever been received.

The notice which was sent by the Tribunal, acknowledging the receipt of the application, was in standard form. It is dated 5th September. It is addressed primarily to the solicitors who were on the record as representing the claimant, but a copy was sent to the claimant himself. When they received that acknowledgment the solicitors, perhaps not unreasonably, believed that it was an acknowledgment of the application which they had lodged; that is to say, counsel's application. They were apparently unaware that the claimant, himself, had decided to lodge his own application.

There is before me a supplemental statement made by the claimant in which he points out that he was, at that time, in Wolverhampton which, of course, was some way from London where his solicitors were. He made, he said, detailed notes about his concerns in relation to the conduct of the appeal hearing before the Adjudicator. He realised that time was running out as the appeal had to be lodged by 5th September and so, according to his statement, he completed his notes and simply forwarded them to the IAT as he was very anxious about the time limit.

He goes on in that statement to say that he had no idea that his notes would form the basis of an application for leave to appeal as he had already instructed his solicitors to lodge the appeal on his behalf and that he had no intention of lodging an appeal and had instructed his solicitor to explain the situation and request that the tribunal determine the application on the grounds submitted by counsel.

The problem with what he there says is that the application lodged by him was a properly filled out form applying for leave to appeal, to which were annexed the grounds of appeal. Accordingly, what he says in his statement is clearly wrong and it is not to be believed that he thought he was doing no more than submitting notes. In truth, he was clearly submitting an application for leave to appeal on the appropriate form and he says, in the grounds, that he believed the Adjudicator's determination was wrong because of the information on the attached five sheets. Essentially, he was attacking the adverse credibility findings.

What, in fact, the Adjudicator had done was to disbelieve him comprehensively. The Adjudicator gave perfectly good reasons for so doing and his conclusion was that the claimant had simply made up the account which justified asylum or permission to remain on the basis that it would be in breach of his human rights to send him back. In paragraph 8.22 of his determination the Adjudicator says this:

He went on to reject that the appellant was of any adverse interest to the Iranian authorities and he did not accept that there were any criminal charges outstanding against him.

When the Vice President came to consider whether he should grant leave to appeal, the only application before him was the one put in by the claimant in person. The Vice President gave a very detailed refusal decision, far more detailed than is, perhaps, to be regarded as usual in the case of refusals of leave to appeal. He went through the matters raised by the claimant in some detail and he rejected the complaints which were made, stating that, subject to one factual error, there was no substance in any of the complaints that were made. That factual error, he rightly indicated, could not have, itself, undermined the overall conclusion reached by the Adjudicator.

One of the matters raised by the claimant in his application was to attack the rejection by the Adjudicator of the authenticity of documents which had been produced by the claimant, purporting to be summonses or warrants requiring him and his wife to attend for interrogation. The Adjudicator gives reasons to query the likely authenticity of those documents. Mr Harris, in his grounds, had relied on the Adjudicator's failure to accept their authenticity, saying that in reality, they strongly supported the claim which was being made by the appellant and the Adjudicator should have appreciated that. In fact, it is well known to Adjudicators that documents such as this are often produced in order to attempt to show that a claim has validity. It is worth noting that the existence of these was not, it would seem, disclosed to the Secretary of State. It is not a matter that was dealt with in the refusal letter and since they effectively, it was said, triggered the claimant's decision to leave Iran, it is exceedingly surprising they were not in the forefront of his case.

The Tribunal, in the decision of Tanveer Ahmed, has indicated what is the correct approach in relation to documents such as this and an Adjudicator is quite entitled to look at the overall evidence and to decide whether he can accept that such documents are authentic and whether weight should be attached to them. This Adjudicator, for good reason decided that the account, overall, was one he could not accept and was entirely justified, in those circumstances, in rejecting the authenticity of these documents. I have dwelt on that factual item because that was really the only matter that Mr Harris was able to put forward as indicating something which was in his grounds which was not, in a proper fashion, to be found in the grounds put forward by the claimant himself.

The reality is that, quite apart from the technical problems to which I will turn which, as I understand it, led to permission being granted in this case, this claim totally lacks merit on its facts. There is no chance that even if the Vice President had had counsel's application, leave to appeal would have been granted. It clearly would not and there was no arguable case that the determination of the Adjudicator was in any way flawed. Accordingly, even if I had been inclined to think there was any merit in the technical matters to which I shall turn, in discretion this is a claim which would undoubtedly have failed.

The technical matters are these. The submission made is that where, as here, there were two applications, it was incumbent upon the Tribunal to consider that which came from the representative and which was drafted and put forward by counsel. As a matter of fact, as I have said, the Tribunal has no record at all of the receipt of counsel's application. Mr Harris submits that now that the fax record has been produced by the solicitors, it is clear that on 5th September at 1.42 pm, a fax totalling seven pages was sent to the relevant Tribunal office in Loughborough which is where these applications have to be sent.

The requirements of the rules, to which I should now turn, are set out in Rule 18 of the 2000 Procedure Rules. Rule 18 deals generally with applications for leave to appeal from Adjudicators to the Tribunal. The relevant paragraphs of the rule, for our purposes, are 4 and 6. Paragraph 4 requires that:

Miss Anderson points out that the fact the fax was only seven pages means it could not have been accompanied by the Adjudicator's determination so there was a failure to comply with all the requirements of paragraph 4. She also points out there are seven pages whereas the letter and the accompanying grounds, together with the page of the required form, are a total of six so there is one page which appears to be extra.

In any event, paragraph 6 then goes on to provide:

That application is the application for leave to appeal which is referred to in paragraph 4.

The purpose behind Rule 18 was to put a stop to a practice which had been all too prevalent whereby applications for leave to appeal were lodged and it was indicated that fuller grounds would follow, or that the right was reserved to include further grounds later. In the rules which pre-existed the 2000 rules, there was a requirement that the decision of the Tribunal must be made within ten days of receipt of the application and if it was not, leave to appeal would be deemed to be granted. Accordingly, there was a potential benefit to those who wished to delay the inevitable. I say, in parenthesis, there are many, of those applying to the Tribunal who are set upon delay rather than belief in a good claim.

If the Tribunal could be persuaded to wait for further grounds, or if it was open for further grounds to be lodged before the time limit for appeal expired, there was always a good chance that they would not be married up with the existing application or that there would be a delay so that the ten day rule would come into play and the application would be deemed to be granted.

Fortunately, in the 2000 rules, that ten day rule was abolished. In addition, it was made clear that there was to be one application and that application must include the grounds. I issued a practice direction on 4th October 2000 when I was President of the Appeal Tribunal. So far as material, it read as follows, and is to be found in 2001 Immigration Appeal Reports at page 172, 2(i):

Mr Harris admits that this case is not covered by that practice direction or the purpose behind the provisions in Rule 18. He submits that here there is a situation which is by no means unique in the experience of the Tribunal; for whatever reason, two applications come in, one lodged by the appellant himself and one by his representative. In those circumstances, he submits that the Tribunal ought to regard them as one application and to consider them together. That, in my view, is incorrect. One of the purposes behind Rule 18 is to ensure that there be as speedy a determination of an application as possible. Indeed, it is well known that Parliament has continually been concerned about the delays and about the length of time that is taken in dealing with appeals in asylum matters.

It is clear, in my view, that one of the purposes behind Rule 18 was, as I say, to try, so far as possible, to avoid such delays. Accordingly, it is necessary for the Tribunal to begin to process appeals as soon as applications are received and that is what is done and properly done. It is not necessary, indeed it would be quite contrary to the approach Parliament has required, for the Tribunal to wait until the ten days given for lodging an application for leave to appeal is up, just in case further applications or further grounds should arrive.

The reality is that once the application is lodged, the process should begin by getting the file and sending it to the Vice President for consideration to be given whether leave to appeal should be granted. That will apply whether or not grounds are included because, there are occasions when applications are lodged without grounds, it being said that grounds will follow or sometimes nothing being said at all. The application is an application for leave to appeal and must be dealt with on what is before the Tribunal.

The decision of the Court of Appeal in Robinson provides protection for the applicant inasmuch as even if particular grounds are not raised, if the Tribunal ought to appreciate that there is a ground, which clearly does arise on the face of the Adjudicator's determination and which appears to be a ground which might affect the validity of the Adjudicator's determination, then it should, even if the ground is not specifically raised, give leave to appeal. That, as I say, is protection for an applicant if proper grounds are not put in.

But where an application with grounds is received, it is all the more obvious that the matter should begin to be processed. In this case, it would seem as a matter of timing, although that is clearly not determinative, that the claimant's application arrived by the morning post whereas the fax from the solicitors, assuming it did arrive, did not come until 1.42 pm. Thus, even if it was the Tribunal's error that the fax went missing, the reality is that the Tribunal was perfectly entitled to deal with the claimant's own application as if it were, as indeed it was, the application for leave to appeal. There was no obligation, in my view, upon the Tribunal to consider the second application.

Having said that, I do not doubt that if it had been received, and if it had been married up with the existing application which had just come in, then both would have been put before the Vice President and he would have considered both. There is no reason why that should not happen if it transpires that both have come in, perhaps, within a matter of minutes, or even hours, of each other. All I am deciding is that there is no obligation upon the Tribunal to consider more than one application. In the circumstances of this case, that means that even if the Tribunal was in error in not tracing the counsel application, there was no error of law in the matter having gone ahead on the basis of the claimant's own application. There was no obligation on the Tribunal to put the subsequent application before the Vice President.

I would have found the same had it been the other way round. If the evidence had been that the counsel application ought to have been received before the claimant's, nonetheless I would have indicated that there was no obligation upon the Tribunal to consider other than an application which did come before it, in this case the claimant's. It is perhaps more obvious that the Tribunal's obligation does not arise where the one that has not been considered was subsequent to the one that was. In my judgment, that is not necessarily fatal. Accordingly, I reject the argument raised by Mr Harris that the Tribunal erred in not considering what I describe as the counsel's application.

The second matter raised by Mr Harris was an argument that there was a legitimate expectation which was breached. The legitimate expectation was that the grounds prepared by his legal representatives would be given consideration by the Tribunal. In my judgment, there was no such expectation that can be teased out of the facts of this case, nor indeed is there any such expectation in any case. The only expectation is that the Tribunal will properly consider an application for leave to appeal put before it, and that it did.

Mr Harris suggested that the form of acknowledgment, addressed as it was to the solicitors with a copy to the claimant, gave the impression that what had been considered was an application lodged by the solicitors. That is, in my judgment, a quite hopeless submission. The fact that the representative is sent the primary copy of the acknowledgment is simply because it is known that he is the representative and there is an obligation, under the rules, for an appellant to keep in touch with his representative and for the representative to notify the Tribunal if there is any change. That is because it is sometimes the case, and the Tribunal knows this, that for various reasons, individual appellants move around the country and move addresses from time to time. It is not always possible to be sure that communications have been received by individual appellants whereas if they have representatives such as solicitors, it is possible to be relatively sure that communications will reach those representatives.

There was nothing in the form of the application for leave to appeal which should have made the Tribunal believe, or even put it on enquiry that it might be the case, that the solicitors were unaware of the application which had been made in the name of the claimant. Accordingly, that argument I also reject.

Thus, both on the technical grounds and because the underlying claim has absolutely no merit, this claim for judicial review is dismissed.

MISS ANDERSON: My Lord, I do ask for my costs but I am afraid I do not know what my learned friend --

MR JUSTICE COLLINS: You have not filed the necessary documentation. You can have the usual order but on the usual terms, that it must be filed within 14 days. If it is not, you will not get the order. As far as costs are concerned, well, Mr Harris, I do not think you can resist an order on the usual basis. Mr Harris, of course you can make submissions but I do not think you can resist that order.

MR HARRIS: I am not going to, my Lord.