Simeer, R (On the Application Of) v Immigration Appeal Tribunal

J U D G M E N T

1. MR JUSTICE MAURICE KAY: The claimant is a Sri Lankan national. He arrived in this country on 27th June 2001 and claimed asylum two days later. His claim was refused by the Secretary of State on 25th July 2001. He appealed to an adjudicator on asylum and human rights grounds.

2. The hearing was to take place on 21st August 2002. In the determination of the adjudicator, it is stated in paragraph 5:

"The appellant did not attend at the hearing nor was he represented. I was satisfied that the Notice of Hearing had been correctly and timeously served. I resolved to deal with the appeal on the papers, pursuant to rule 43(d) (i) (ii) Immigration and Asylum Appeals (Procedure) Rules 2000."

3. That provision in the rules reads as follows:

"(1) An appeal may be determined without a hearing under this rule if:

" ... (d) The appellate authority is satisfied, having given every party an opportunity to make representations and having regard to -

"(i) the material before it; and

"(ii) the nature of the issues raised;

"that the appeal could be so disposed of justly."

4. It is a matter of irresistible inference that the adjudicator had examined the file and satisfied herself that the notice of hearing had been correctly sent out to both the claimant and his solicitor.

5. The determination of the adjudicator was adverse to the claimant on both asylum and human rights grounds. It is not a determination that was attenuated in any way by reason of the absence of the parties. I say "the parties" in plural, because it is a fact that no one was present to represent the Secretary of State either. Unfortunately it is not uncommon for the Secretary of State to be unrepresented at such hearings, and one would not expect the adjudicator to place very much significance on that fact.

6. The claimant then sought to appeal to the Immigration Appeal Tribunal. The grounds of appeal settled by the solicitor were confined to the fact that the adjudicator had proceeded in the absence of the claimant and his solicitor. The grounds stated that neither had ever been notified of the hearing. They also stated that:

" ... there is a serious breakdown in communication even within the Immigration Appellate Authority. This is evidenced by the fact that IAA even failed to arrange an interpreter for the appeal hearing despite the "Reply to directions" dated 7th June 2002 indicating under Section A that a Tamil interpreter is required."

7. It is certainly the case that the determination of the adjudicator has a blank next to the word "interpreter" on the first page. The grounds of appeal suggested that at the very least, the absence of the interpreter should have alerted the adjudicator to the breakdown in communication.

8. The Immigration Appeal Tribunal refused leave to appeal. Dealing with the issue of the adjudicator having proceeded in the absence of the parties, the Vice President stated:

"The contention that neither the applicant nor his representatives received notice of hearing is without any foundation. I have checked the file and note that the notice of hearing was served upon both. It was sent out by first class post on 26th June 2002 ... "

9. The Vice President, having concluded that the adjudicator had been correct in proceeding as she had, then stated:

" ... her determination is a full and fair review of the appellant's case. Based on the current objective evidence the appellant is most unlikely to succeed even if a fresh hearing were ordered."

10. In those circumstances, the Vice President took the view that the appeal did not have a reasonable prospect of success, and there was no other compelling reason for grounds of leave.

11. The case for the claimant in this court is that the adjudicator has acted contrary to the principles of natural justice and contrary to the Rules, and that the Immigration Appeal Tribunal, whose decision is the decision sought to be challenged in these proceedings, had acted in a Wednesbury unreasonable manner by refusing leave.

12. The first question that I have to address is whether the adjudicator had in fact erred. It is, as I have said, an irresistible inference that she had checked the file and satisfied herself that the notices had been sent. On behalf of the claimant, Mr Martin submits that that is simply not enough. He points to rule 14, which provides:

"(1) Except where rule 43 or 44 applies, a hearing shall be conducted to determine the appeal."

13. His point is that no such hearing was conducted.

14. The difficulty with that submission is that Rule 14 is expressly in terms, "Except where Rule 43 ... applies". In this case, the adjudicator had proceeded under Rule 43 (1) (d) having been satisfied that the appeal could be justly disposed in the way that it was.

15. I do not think that the approach of the adjudicator can be faulted. Having satisfied herself that the notices were sent out, Rule 48 (2) came into play. That provides that: "Any notice ... that is sent shall, unless the contrary is proved, be deemed to have been received ... " by particular dates.

16. The adjudicator was rationally satisfied that the notices had been sent, and there was no evidence before her proving that they had not been received; in other words the presumption under Rule 48 (2) had not been rebutted. However, that is not the real issue in this case. The real issue is whether the Immigration Appeal Tribunal fell into error.

17. It is plain that the Immigration Appeal Tribunal had before it material that was not before the adjudicator. It had an affidavit from the claimant stating that neither he nor his solicitor had received the notice, and grounds of appeal settled by the solicitor to the same effect. It also had before it the point about the absence of an interpreter.

18. On behalf of the Secretary of State, Miss Broadfoot seeks to make light of the interpreter point by suggesting that it is common at Taylor House for interpreters to sit in another part of the building and not to come into the adjudicator's room until required to do so. I am simply unable to comment upon that one way or the other. The fact is that the absence of the interpreter was put on the agenda as a point of materiality by the claimant in the Grounds of Appeal to the Immigration Appeal Tribunal and in relation to this application for judicial review, and there is no evidence disputing the assertion that the Immigration Appeal Tribunal had failed to arrange for the presence of an interpreter in relation to this case.

19. Mr Martin seeks to rely on the recent decision of Wilson J in the case of R (Mehmet Karagoz) v IAT & SSHD (as interested party) [2003] EWCH 1228 Admin . There the court was concerned with proceedings in which an asylum seeker's appeal had been dismissed without consideration of its merits by reason of his absence on the day when the case was listed to be heard. In other words, that was not a case disposed of by the adjudicator pursuant to Rule 43 but was disposed of instead by resort to Rule 33.

20. In the course of his judgment, Wilson J stated at paragraph 21 that in such a case:

" ... it would at any rate be wise for the adjudicator to seek to collect the reasons for non-appearance via, for example, a telephone call."

21. I agree with that observation. If there is a total absence, it does suggest to me that the better course is to seek to ascertain such information as might be available from obvious sources including the solicitor by way of a telephone call. I do not say that the failure to make one vitiated the adjudicator's approach in this case, I refer to it simply because it seems to me that in the future, in such circumstances, it would be a wise precaution.

22. Wilson J was faced by similar evidence in the court before him; namely an assertion on the parts of the claimant and his solicitors that there had been no receipt of the relevant notice. He was critical of the Immigration Appeal Tribunal in that case for something of a cop out in relation to the issue of whether or not the claimant and his solicitor had received notice. As he said:

" ... the Vice President was careful neither to accept it nor to reject it."

23. That does not arise in this case, because I interpret the words of the Vice President in the present case as really dismissing the assertion that the notices had not been received.

24. Wilson J then went on to say:

"What, therefore, should the Tribunal do when the applicant asserts that the Notice, by reference to which the adjudicator has dismissed the appeal without consideration of its merits, has never been received?

"The Tribunal cannot, as it did in this case, put the assertion to one side and, in effect, ignore it. It must weigh the assertion in the normal way. If the assertion has a real prospect of being found to be true, the appeal has a real prospect of success and so, pursuant to Rule 18(7) of the Rules of 2000, leave to appeal should be granted. If, on the substantive appeal, the assertion is indeed found to be true, the appeal should be allowed and the case remitted to the adjudicator for determination on its merits."

25. Later on, he referred to the unenviable task of the Tribunal in having to decide whether such assertions are true and added:

"But it is a strong step, particularly in the light of its consequences, not to accept the assertion of any professional person that a Notice sent by post, but otherwise than by Recorded Delivery, has not been received."

26. Mr Martin places reliance on that authority. He also draws attention to the fact that there was no history of default by the claimant or his solicitors in this case prior to the hearing before the adjudicator, and he is able to point out now that there is no evidence in the Home Office file of a Notice of Hearing having been received by the Home Office.

27. On behalf of the Secretary of State, Miss Broadfoot seeks to distinguish Karagoz by drawing attention to the fact that it had not involved a consideration of the merits, and there had not been a conclusion as to the receipt or non-receipt of the Notice. She observes that the solicitors had not put in any evidence in the present case of their post system and the recording of items received in the office; in essence she submits that all there is in this case is a bare assertion of non-receipt.

28. I appreciate that there are differences between this case and the case of Karagoz , but I do agree with the observation made by Wilson J about it being a strong step not to accept the assertion of any professional person in circumstances such as these. In addition, there were circumstances which were before the Immigration Appeal Tribunal that were not present in the case of Karagoz .

29. The point about the interpreter, unless and until evidentially refuted, seems to me to have at least some significance. Accordingly, one has not only the claim by the defendant's solicitor asserting non-receipt, but something in the surrounding circumstances suggesting that there might have been a breakdown of communication in this case. The fact that the Home Office files do not contain such a notice is not conclusive, but again, it is a pointer in the same direction.

30. I have come to the conclusion that it was an error on the part of the Immigration Appeal Tribunal in the sense of it having been Wednesbury unreasonable, to conclude and express itself as it did on the issue as to whether the notices had been received by the claimant and his solicitor. To that extent, I accept the submissions of Mr Martin.

31. However, the matter does not end there. The Immigration Appeal Tribunal went on to consider the merits in the terms to which I have referred, concluding that:

"Based upon the current objective evidence, the appellant is most unlikely to succeed even if a fresh hearing were ordered."

32. I construe the words "most unlikely to succeed" as being at least the equivalent of "no real prospect of success".

33. In my judgment, the Secretary of State is on strong ground in seeking to uphold the refusal of leave by the Immigration Appeal Tribunal. One may ask the question: did the claimant have a case with a real or indeed any prospect of success? In my judgment, the answer is no.

34. The adjudicator had considered the recent jurisprudence of the Immigration Appeal Tribunal in relation to the safety of returning Tamils to Sri Lanka. That jurisprudence was a response to the ceasefire in Sri Lanka. It began with the case of Brinston v Secretary of State for the Home Department [2002] UK IAT 01547 , and was developed by Collins J as President of the Immigration Appeal Tribunal in the case of Jeyachandran v Secretary of State for the Home Department [2002] UK IAT 01869 .

35. Collins J referred to the ceasefire in February 2002 and to the CIPU report of April 2002. His judgment then contained this passage:

"The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety."

36. It is of course necessary for each case to be considered on its own facts. The appellant in Jeyachandran succeeded because he was someone who in the view of the Immigration Appeal Tribunal was an exceptional case, because he was someone who "must be wanted in a relatively serious fashion."

37. That trend in the Immigration Appeal Tribunal continued in the case of Tharmakulaseelan v Secretary of State for the Home Department [2002] UK IAT 03444 , which referred to the previous cases and expressed agreement with them.

38. All those cases had been decided before the hearing before the adjudicator in the present case, and she took full account of them, quoting them in paragraph 44 of her determination. She also quoted the CIPU report and the UNHCR material that had played a part in these cases.

39. All that leads to common ground in the present case before me to the effect that the claimant would only have a case before an adjudicator if he could establish that he is exceptional. In his grounds of appeal to the Immigration Appeal Tribunal, he did not even begin to advance such a case. As I have indicated, he confined his grounds of appeal to procedural issues.

40. Mr Martin submits that, within the determination of the adjudicator, there are references to parts of the evidence which could be a foundation for exceptional categorisation. One of them is a reference to the killing of the claimant's father by the EPRLF, and the second is to death threats to the claimant concerning his complaint to the police about his father's death. The point sought to be made by Mr Martin is that the EPRLF are not parties to the ceasefire.

41. It is my understanding that the EPRLF is a government supporting body, and that certainly is consistent with the way in which the adjudicator approached it. There was no evidence before the adjudicator or before the Immigration Appeal Tribunal, nor is there evidence before this court, that the EPRLF aspect of this case might begin to place the claimant in an exceptional category. 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.

42. Miss Broadfoot refers to rule 18 (4), which requires the grounds of appeal to the Immigration Appeal Tribunal to:

"(c) Identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome , together with all the grounds relied on for the appeal."

43. She submits, in my judgment correctly, that the grounds contained nothing to suggest anything that would have made a material difference to the outcome. I am left with the clear conclusion that this case would not and could not have succeeded. In my judgment, the Immigration Appeal Tribunal was correct to take the view that the appeal would have no real prospect of success, for that is what I interpret the decision to mean. It was also correct to conclude expressly that there was no other compelling reason to grant the appeal.

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.

45. Moreover, having regard to all that I have said, this is not a case in which this court in its discretion would have been disposed to grant relief, having regard to what I find to be the inevitability of the outcome of the result if there had been a further hearing.

46. I observe in passing that the trend in the Immigration Appeal Tribunal already established at the time of the hearing before the adjudicator in the present case has continued unabated since the hearing before the adjudicator. The examples of that are within the authorities referred to by Miss Broadfoot in the form of the cases of Jeyabalan v Secretary of State for the Home Department [2002] UK IAT 05992 and Sivarasa v Secretary of State for the Home Department [2002] UK IAT 06453 .

The prominence given to Jeyachandran is illustrated in a passage in Sivarasa , where the Tribunal stated:

"There is certainly nothing to be gained from reference to any case heard before Jeyachandran came out on 10th June."

For the reasons I have given, and notwithstanding the procedural fairness point in relation to the Immigration Appeal Tribunal, this application for judicial review fails.

Are you publicly funded?

47. MR MARTIN: My Lord, no.

48. MR JUSTICE MAURICE KAY: Thank you both very much.