Hasa, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE TOULSON: This is an application for judicial review in two parts. First, it is an application for review of a decision by the Immigration Appeal Tribunal promulgated on 14th November 2002 refusing leave to appeal against a decision of an adjudicator. The adjudicator had dismissed an appeal from a decision of the Secretary of State declaring the claimant to be an illegal immigrant, proposing directions for her removal from the United Kingdom and refusing her claim for asylum. Second, it is an application for review of the Secretary of State's removal of the claimant from the United Kingdom on 28th November 2002.

This is a disquieting case. It has a tortuous history. There are no villains in the story, but it is one of muddle, mistake and misfortune. I will begin with a brief summary. The claimant is an ethnic Albanian from Kosovo. She came to the United Kingdom with her husband and two children in June 1999 and claimed asylum. Her claim was refused and she appealed. In the meantime, there were matrimonial problems. Her husband was violent. She obtained from the court a non-molestation order with a power of arrest. The police were involved on more than one occasion. She was rehoused by the local authority. She changed her solicitors because there would have been a potential conflict of interest if the same solicitors had been acting for her husband and herself in relation to their asylum claims.

Her new solicitors told the Home Office Support Unit of their interest, but not the Immigration Appellate Authority. In the result neither the claimant nor her new solicitors were aware of the hearing before the adjudicator until some months after it had taken place.

In dismissing her appeal, the adjudicator commented that the appellant's personal credibility was of considerable importance in the appeal, but that since unfortunately she had neither attended the hearing nor furnished an explanation for her absence, nor requested anybody on her behalf to apply for an adjournment, it was difficult for him to reach the conclusion that she was somebody whose word could be relied upon, as her story had not been tested under cross-examination or her account subjected to scrutiny. In short, the fact that she failed to attend the hearing, for no reason of which the adjudicator was aware, was fatal to her appeal. That is not, of course, to say that if she had attended her appeal would necessarily have succeeded. That would be another matter. But it is plain that her non-attendance meant that it was impossible for her to discharge the burden of proof which lay on her.

When her solicitors learned of the outcome they sought a review. There was correspondence between the solicitors and other parties to which I will have to refer in more detail. Ultimately, they issued an appeal on her behalf. The appeal was rejected by the Immigration Appeal Tribunal as being out of time. Thereafter, the solicitors wrote to the Home Office and Treasury Solicitor on 25th November 2002, giving notice of an intention to apply for judicial review and asking for an undertaking not to remove the claimant pending their rely to the solicitors' letter.

Unfortunately, on 27th November the claimant was arrested in the evening and was flown out of the United Kingdom on the following morning, without her having been able to make contact with her solicitors in the meantime. But there is no suggestion of bad faith on the part of the Secretary of State in the timing of her removal. It was a further chapter in an unhappy history of events.

Two matters stand out. The first is that the claimant has not herself had the opportunity of putting her case for being allowed to remain in the United Kingdom on asylum and/or human rights grounds to an appellate tribunal. The second is that this situation is through no personal fault on her part. Whether those matters in combination enable her to succeed in any part of the relief which she claims is another matter. Before I address that, I should set out the history of events in fuller detail.

The Secretary of State's decision refusing the claimant's asylum claim was notified to her on 5th December 2000. On 14th December 2000 her original solicitors submitted on her behalf an appeal and statement of additional grounds. The appeal form was sent as required to the Home Office's Appeals Support Section.

On 27th July 2001 the Secretary of State rejected the additional grounds put forward on her behalf. His letter of that date concluded by saying that her appeal would now be forwarded to the Immigration Appellate Authority.

As I mentioned in my brief summary, the claimant had in the meantime been the victim of domestic violence. A non-molestation order was made for her protection by the Waltham Forest Family Proceedings Court. There is an internal inconsistency in the document as to the date on which it was issued. It is referred to in different places as having been made on 21st June 2000 or 20th June 2001. It seems that the latter is more probable. I note that the order was not made ex parte and that there was an attached power of arrest. The claimant's husband was prohibited, among other things, from going within 100 metres of her address, which was shown as an address in Walthamstow. Other documents in the bundle show that there were occasions when the police were involved and that the claimant was later rehoused, as I understand it, because of further harassment on the part of her husband.

On 13th August 2001 the claimant instructed her current solicitors to act for her in relation to her asylum claim. On 10th September 2001 they wrote to the Home Office's Appeals Support Section informing them that they were now advising and assisting the claimant, giving notice of her new address and asking the Appeals Support Section to amend their records accordingly.

The solicitors did not notify the Immigration Appellate Authority ("IAA"), as they ought to have done under the Immigration and Asylum (Procedure) Rules 2000, rules 35 and 47. Rule 47 deals with address for service as follows:

The claimant's solicitors have explained that their reason for notifying the Appeals Support Section and not the IAA that they were now acting for the claimant was because they had experience in other cases of writing to the IAA to tell them that they were acting for a particular person, but having their correspondence returned on the ground that no appeal reference number had been given and the IAA had no appeal documents. They have produced some examples of this.

The explanation seems to be this. The Appeals Support Section plays a role as a kind of secretariat which receives a notice of appeal and -- subject to any further consideration on the part of the Secretary of State of the kind which had occurred in this case, when he had considered the claimant's further grounds -- will prepare an appeal bundle which will then be sent to the IAA and to the interested parties. The IAA will give the matter a reference number and will in due course notify the parties of the date for hearing. If somebody writes to the IAA before the IAA has received any information on the subject from the Appeals Support Section, it will not have a file or any knowledge of the matter. But once the Appeals Support Section has put the file together and sent it on to the IAA, the progress of the appeal lies within the control of the IAA.

So it is that when the Appeals Support Section sends to an interested party a copy of the appeal bundle, it tells the party by a standard form of letter that the IAA will contact the party directly regarding the date, time and place of any oral hearing and specifically draws to the party's attention that any change of address or change of representatives should be notified immediately to the IAA.

The fact that in this instance the solicitors sent notice of their interest in the matter to the Appeals Support Section, and failed to notify the IAA, set off an unfortunate chain of events. It is only during the course of today's hearing that it has been possible to piece together a fuller picture of what must have happened than was apparent from the papers lodged for the purposes of this hearing.

On 27th October 2001 the Appeals Support Section sent to the claimant's former solicitors a bundle of appeal documents and a standard form letter of the kind to which I have referred. In doing so, the Appeals Support Section must have overlooked the letter from the claimant's new solicitors dated 10th September 2001.

The old solicitors returned the bundle to the Appeals Support Section under cover of a letter dated 5th November 2001, in which they said that they no longer represented the claimant.

Unbeknown to the claimant or her new solicitors, on 7th November 2001 the IAA sent to the old solicitors notice of a hearing on 23rd November 2001. On 9th November 2001 the old solicitors returned that notice to the IAA saying that they were no longer representing the claimant.

Meanwhile, on 14th November 2001 somebody from the Appeals Support Section rang the claimant's new solicitors' office to enquire whether they were now representing her. The inference is that that person had seen the letter on the file which the new solicitors had written to the Appeals Support Section on 10th September 2001. The person dealing with the matter at the new solicitor's office was out at the time.

On 22nd November 2001 the claimant's solicitors returned the call and confirmed that they were acting for the claimant. At this stage they, of course, had no idea that the appeal had been listed for hearing the following day, and it is to be inferred that the Appeals Support Section did not have that information either. This would not have been the responsibility of that section.

So it was that the adjudicator heard the appeal in the claimant's absence and dismissed it as I have indicated.

On 14th December 2001 a strange form letter was sent to the claimant's solicitors. It appears to be a copy letter posted, one imagines, in mistake for the top copy. The letter read:

Enclosed with the letter, as I understand it, was the letter the old solicitors had sent to the Appeals Support Section on 5th November returning the documents previously sent to them.

Miss Giovannetti, who represents the Secretary of State, is understandably puzzled that this letter could have come from the Home Office, because in form it is unlike any other letter that she has ever seen from the Home Office. But I do not have to resolve any puzzle as to the provenance of that letter, because it is fairly accepted on both sides that the solicitors understandably took it as coming from the Home Office. The only other possible source would appear to be the old solicitors, and it is not obvious why they should have been writing to the new solicitors even if they had known their identity.

So the claimant's solicitors' position at that stage was that they were expecting in due course to be given a hearing date. As I understand it, they inferred that the Appeals Support Section in sending out the appeal bundle to interested parties would have notified the IAA that they were now acting for the claimant. Not only was that of course erroneous, but also unknown to the Appeals Support Section when they sent their letter dated 14th December 2001 (if indeed it came from them) referring to an appeal, the date of which was to be advised soon, was the fact that it had actually been heard in the previous month.

On 14th December 2001 the adjudicator's decision was promulgated by being sent to the old solicitors and the claimant's previous address, so that time for appealing against it would have started to run; although, of course, the claimant and her current solicitors were still believing that the appeal was yet to be heard.

On 21st March 2002 the solicitors wrote to the IAA commenting that they had still not received details as to a hearing date, and asking to be told as a matter of urgency whether the hearing date for the claimant's appeal had been scheduled.

The IAA replied by letter dated 27th March 2002 enclosing a copy of the adjudicator's determination, which they correctly said had been heard on 23rd November 2001. A new chapter of events then began.

On 2nd April the claimant's solicitors wrote to the IAA asking them to forward what they described as "the appeal papers", because they said that these had not been received by the claimant or by themselves and they would wish to appeal the decision as a matter of urgency, since they had not received notification of the hearing date.

On 15th April 2002 the solicitors wrote to the Chief Adjudicator, asking for an urgent review of the determination. They said in their letter:

On 18th April 2002 the IAA sent to the solicitors a copy of the bundle which had been used at the hearing before the adjudicator. On 3rd May 2002 the IAA responded to the solicitors' letter of 15th April 2002, saying that they would need to peruse the file in order to deal with the solicitors' enquiry and that they had requested the file from their storage facility.

On 8th May 2002 the IAA wrote to the solicitors saying that they had now retrieved the file. From reading it, the adjudicator had dealt with the matter correctly according to the information on the IAA's files at the relevant time. Therefore, as far as the IAA was concerned, the appeal was finalised and the request for rehearing the appeal was turned down.

At that stage the solicitors sought counsel's advice whether there were proper grounds for judicial review. In the light of the advice which they received, on 15th June 2002 they wrote to the IAA (with a copy to the Treasury Solicitor) rehearsing, in summary, the unhappy history of events and the fact that the adjudicator had not been in a position to assess the claimant's case on the full facts. They concluded by asking for a rescheduling of the hearing, and said that if they did not have a favourable response within 14 days they would issue proceedings for judicial review of the decision not to reschedule the hearing.

On 26th June 2002 the Treasury Solicitor wrote to the solicitors saying:

On 8th July 2002 the IAA sent to the solicitors a form of application to the Immigration Appeal Tribunal for leave to appeal, suggesting that they should complete and return it to the office as soon as possible.

On 22nd July 2002 the solicitors lodged an application to the Immigration Appeal Tribunal for permission to appeal. The grounds were directed at the perceived shortcomings in the way in which the matter had been dealt with before the adjudicator in the claimant's absence, and did not specifically address the question of subsequent delay. The solicitors did enclose 29 pages of documents. But it is not entirely clear what those documents were, except that they plainly included some, if not all, of the correspondence to which I have referred.

On 14th November 2002 the claimant received what has been described as a pastoral visit from immigration officers, who served on her the decision of the Immigration Appeal Tribunal refusing her application for leave to appeal, and they advised her to consult her solicitor. In the determination the Tribunal referred in summary to the correspondence, in particular between 21st March 2002 and 8th July 2002, and commented as follows:

On the next day the claimant, I am told, went to her solicitors. However, because she does not speak English, an interview had to be arranged when an interpreter could be present. This happened on Wednesday 20th November 2002. Following this meeting with their client, the solicitors wrote on Monday 25th November to the Immigration Appeal Tribunal and to the Treasury Solicitor. In the letter to the Treasury Solicitor, after setting out a history of events, they said:

The claimant and her daughter were arrested on the evening of 27th November 2002. The evidence of the respondent shows that it is normal in such circumstances for 24 hours to elapse between the arrest of the person to be deported and their removal from the jurisdiction; and in this period of time the person concerned can contact their lawyer. Unfortunately, that did not happen in this case. Because her solicitors had no out-of-hours line, the claimant was unable to communicate with her solicitors between being arrested and put on a plane back to Kosovo.

I said at the outset of this judgment that it is a disquieting case. Mistakes were made on the part of her solicitors, but I do not think it would be right to be too severe on them. In any event, the question is not how far they are to be criticised, but whether either the decision of the Immigration Appeal Tribunal refusing the application for leave to appeal or the conduct of the Secretary of State in removing the claimant is judicially reviewable. Those raise quite separate issues. In relation to the former, it is necessary to refer to one other document.

The claimant's solicitors sought a review of the Immigration Appeal Tribunal's refusal of leave to appeal, and that came after the claimant had been returned to Kosovo in a letter dated 19th December 2002, which read as follows:

Is the decision refusing leave to appeal judicially reviewable? Rule 18 of the Immigration and Asylum (Procedure) Rules 2000 includes the following provisions:

There is doubt that under the procedural rules service of notice of the hearing before the adjudicator on the old solicitors was good service. There is also no doubt that the obligation of a party's solicitor under rules 47(3) and 35(6) to notify the appellate authority of the address for service and any change to that address is not fulfilled by notifying some branch of the Home Office: see R v Secretary of State for the Home Department ex parte Hannach [1997] Imm AR 162 and Lapido v Secretary of State for the Home Department [1997] Imm AR 51.

I also have to consider matters of a more fundamental kind. In R v Secretary of State for the Home Department ex parte Asifa Salim [2000] INLR 413, the Court of Appeal laid stress on the fundamental importance that an asylum seeker who is the subject of an adverse decision by the Secretary of State should have access to appellate review. I have in mind, in particular, passages from the judgments of Roch LJ at page 419 and Hale LJ at page 428.

The procedural rules are designed to make sure that such access is available, but also to ensure that the appellate process is properly and fairly controlled. What is to happen if the claimant is denied such an opportunity through error on the part of her lawyers? One cannot say that that must automatically entitle such a claimant to judicial review. Indeed, there is a line of authority that would tend to equate any fault on the part of a claimant's lawyer with the claimant himself or herself: see, for example, the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. However, in the case of R on the application of Tewedros Tadesse Haile v Immigration Appeal Tribunal [2002] INLR 283 at paragraph 26, Simon Brown LJ said that he was not persuaded that that decision precluded the court from having regard to the wider interests of justice in an asylum case, and that aspects of that decision might need to be reconsidered in the light of the House of Lords speeches in R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330.

I approach the matter therefore in this way. A court entertaining an application for judicial review cannot simply disregard the statutory structure governing asylum cases in order to do what it conceives to be broad justice. On the other hand, in exercising its responsibilities in the area of judicial review it must and should remember the high value which is attached to the right of access to justice.

In ex parte Asifa Salim, the particular concern of the court was that the rules in the form which they were then in placed too narrow a straitjacket on the powers of an appellate tribunal to entertain appeals. No such issue arises in this case, because rule 18 gives to the Immigration Appeal Tribunal an ability to entertain an appeal where it considers that there are compelling reasons to do so and, in particular, it may allow the ordinary time limit to be extended.

In this case one could very well understand that the obvious injustice to the claimant of having her case determined against her without the opportunity of being heard could have been met by the Immigration Appeal Tribunal giving permission for her to appeal. But the question which I have to address is a significantly different one: is its decision to refuse leave judicially reviewable?

It is unfortunate that the grounds of appeal to the Immigration Appeal Tribunal did not focus directly on the time which had elapsed after the solicitors were aware of the adjudicator's decision and before they lodged their notice of appeal. As appears from the letter dated 19th December 2002, the application was refused because of the delay after April 2002, for which it was said that no explanation had been given.

While I have sympathy with the Immigration Appeal Tribunal, it does appear to me that the Immigration Appeal Tribunal has not addressed an important question. The important question is whether the circumstances -- to which I have referred, I am afraid at very great length, but which I endeavoured to summarise at the outset of this judgment -- were themselves sufficiently special to merit the giving of leave to appeal. It does not necessarily follow that just because there has been some error on the part of the lawyer automatically there should be leave to appeal. I suggest no such thing. But this is a very striking case. On the material available, as it would seem, in documents which went to the Immigration Appeal Tribunal, it is a case of a claimant who may have a quite serious case to put forward, but which has not been considered on its merits. She is a person who may well be particularly vulnerable from the combination of the physical abuse which she has suffered at the hands of her husband, and the other matters raised in her original application. It was the consequence of that abuse which led to her change of address and change of solicitors, and which led in turn to the chapter of accidents which have occurred.

In my view, consideration does have to be given to whether her circumstances, and the denial of any effective hearing to her, may be regarded as sufficiently special that it is appropriate that she should have permission to appeal.

I cannot disguise the fact that her case for leave to appeal appears to me to be rather strong. I do not stand in the place of the Immigration Appeal Tribunal. But having formed that view on the merits, it does seem to me that this is at the very least a matter which requires careful consideration. I think, with all respect to the Tribunal, that to say that because no explanation was given for the delay after April, therefore her application for permission to appeal must fail, is not to address that issue.

(I add in parenthesis that when one reads the correspondence from April to July, it is in effect a continuation of what had happen before, a combination of muddle, misunderstanding and misfortune.)

But the reason why I conclude that judicial review should be granted is in order that the Immigration Appeal Tribunal should look at the broader question which I have identified, rather than the narrower question of the adequacy of her solicitors' explanation for the time passed since April.

I will therefore quash the decision refusing leave to appeal.

The application for judicial review of the conduct of the Secretary of State in removing the claimant from the jurisdiction in my judgment fails. The combination of events which occurred was singularly unfortunate, but I cannot grant judicial review simply to redress misfortunes. In removing the claimant, the Secretary of State was neither acting in bad faith nor in breach of any form of undertaking. He was not doing anything unlawful and there is nothing which can, in my judgment, be properly judicially reviewed.

However, I would imagine that the Secretary of State would wish to see that when it comes to any further consideration of the claimant's case, she should not be prejudiced by the unfortunate fact that she was removed from the country overnight without opportunity for contacting her legal advisers and in circumstances where, if she had been able to contact them, and in the light of the letter which they had written to the Treasury Solicitor, I have no doubt that an immediate stay would have been put on the removal on an application to a judge.

It is not for me to say what should happen in this regard. There are obvious difficulties when she is in Kosovo and unable to speak English. It does seem to me that justice, rather than any order of this court, mandates that she must have some proper opportunity of being able to put her case through advisers who are able to communicate with her and to see that her case is properly laid before the appropriate tribunal. But those are not matters which in my judgment call for or would entitle me to make any formal order.

MRS WEBBER: My Lord, I am most grateful for that. The only other matter is that of costs. Your Lordship may think that in all the circumstances the appropriate disposal would be no order, save for detailed assessment of the claimant's costs.

MR JUSTICE TOULSON: Miss Giovannetti?

MISS GIOVANNETTI: My Lord, I have got very little to add. I agree with my learned friend.

My Lord, just one matter arising out of the judgment, which you indicated you might tidying it up in due course. I think your Lordship referred to the obligation on solicitors to notify the IAA of their acting as stemming from Rule 47 of the rules. That is just the change of address provision. The obligation on the representative to notify when he begins acting is 35(6), just if that helps.

MR JUSTICE TOULSON: Thank you very much indeed.

MISS GIOVANNETTI: My Lord, also I just would not want to tie my hands in any position. I have a very scrawled note of your Lordship's judgment. Would your Lordship mind directing that any application for leave to the appeal that the Secretary of State might want to make could be made in writing on receipt of the tidied up transcript of the judgment. Just to avoid any possibility of having to trouble your Lordship further.

MR JUSTICE TOULSON: Yes, if necessary. This is my last week of my brief sojourn in this court. Then I am not going to be sitting for the next few weeks. I am going to all sorts of places. I shall be abroad at different times. So probably it is not going to be very easy to get me.

MISS GIOVANNETTI: If any application was made. Obviously a copy would be served on my learned friend and her solicitors. I think once it was made, I am not sure there is an obligation on your Lordship to determine it within any specific period of time. It may very well not arise at all.

MR JUSTICE TOULSON: Do you want to make your application now, here and done, while everybody remembers what it is all about?

MISS GIOVANNETTI: It would be sensible.

My Lord, I formally apply for leave to appeal.

MR JUSTICE TOULSON: Yes.

MISS GIOVANNETTI: I do not propose to go into my reasons, unless your Lordship particularly wants me to. I am really doing it just to protect the position.

MR JUSTICE TOULSON: Without arguing the case again, what would be the points that you would get to the Court of Appeal?

MISS GIOVANNETTI: My Lord, the question of whether the IAT was essentially entitled to have regard to the fact that there was no proper explanation put forward for the April onwards delay, and to simply refuse an extension of time on that basis.

MR JUSTICE TOULSON: Yes.

MISS GIOVANNETTI: The appellant authority, I do not know, may have views about -- they will know what proportion of applications are made out of time because a representative is at fault. I do not think I can say any more than that. I ask for it pretty as much as a formality, but the application is made.

MR JUSTICE TOULSON: Yes. It is not a discretionary matter. I have not decided as -- I can see there is a point of law there.

MRS WEBBER: My Lord, there may well be -- the way your Lordship dealt with it was very much on its facts on the basis that the Tribunal's determination, and particularly as explained by the letter of 19th December, appeared to be saying that in the light of the fact that there was no adequate explanation that that was an end to the matter. Therefore, with respect, your judgment was not that the Tribunal as a matter of law could not have regard to that -- clearly they could have regard to it -- your judgment was very much on the facts of this particular case and on the basis that it appeared that the Tribunal had no regard to anything else, effectively. It is my submission, first of all, that the case does turn on its very particular facts, and that really it is a matter for the Court of Appeal, if my friend can show that a point of law is properly and legitimately engaged by your Lordship's judgment, that would really be a matter for the Court of Appeal to decide whether to grant leave or not.

But I say that really the point that my friend seeks to argue was not engaged on the facts of this case. Your Lordship certainly was not saying that in every case where there are special circumstances that the Tribunal is obliged to grant leave. Simply, that there are circumstances which appear not to have been given anxious consideration by the Tribunal.

MR JUSTICE TOULSON: I think I am actually going to give you leave. I think there is an arguable point as to whether it is open to me to say that they have failed to give proper account of something which really was not flagged up in sharp terms before them. If the Court of Appeal's view on the merits is anything like mine, they will want to uphold your decision and your people may well decide they would rather leave this as a one-off decision at first instance rather than let the Court of Appeal look at it. But that is an entirely improper consideration, and a matter for your consideration only. The question of where, how far a lawyer error, oversight, misunderstanding can be taken into account at all in the modern jurisprudence is, I suspect, something which is going to go a little bit further. I do not somehow think that what Simon Brown LJ has said is the last word on the subject. I rather suspect it was not intended to be either.

MISS GIOVANNETTI: The question is: will it be in this case or one with rather starker facts?

MR JUSTICE TOULSON: Less sympathetic facts from the claimant's viewpoint. The Government is a bit like the insurer -- in the area with which I am rather more familiar -- if you are a wise insurer and you want to dispute some point of law, you pick the case where you have got an unsympathetic insured rather than a sympathetic insured.

MRS WEBBER: My Lord, thank you very much. I am grateful for your Lordship for sitting late to deal with this case.

MR JUSTICE TOULSON: Thank you very much indeed.