Naing & Anor, R (on the application of) v Immigration Appeal Tribunal

MR JUSTICE DAVIS: These two claims for judicial review, although entirely unrelated in terms of their background facts, have been listed to come on for hearing at the same time, permission in each case having previously been granted after an oral hearing on 27 September 2002. This is because it was perceived that the two cases may involve one common point as to the procedure said to be required to be adopted by the Immigration Appeal Tribunal, under the procedural regime currently in force, in considering applications for leave to appeal from a determination of an Adjudicator. Shortly put, the point is this: to what extent is the Immigration Appeal Tribunal under a duty, when considering an application for leave to appeal, to have regard to grounds which have not been raised in the application notice (and any attached written grounds) seeking leave to appeal?

At the hearing before me, the claimant, Ko Ko Naing, has been represented by Ms Webber of counsel. The claimant, Misal Eyaz, has been represented by Ms Harrison of counsel. As is usual, the Immigration Appeal Tribunal itself has not appeared or been represented; but Ms Richards of counsel has appeared on behalf of the Secretary of State for the Home Department and has also explained that her submissions as to the relevant legislation have been approved by the Lord Chancellor's Department.

The background facts are these.

The claimant, Ko Ko Naing, is a Burmese national born on 9 April 1971. On 12 August 2000 he arrived in the United Kingdom and immediately claimed asylum. On 23 June 2001, by a refusal letter issued by the Home Office, asylum was refused. The claimant, as was his right, sought to appeal against that refusal. The appeal was heard before an Adjudicator on 17 December 2001. The claimant was represented by a representative from the Immigration Advisory Service ("the IAS") and they had also previously advised him when he had signed his initial statement of evidence form on 24 August 2000. The Home Office was also represented at the hearing before the Adjudicator. The claimant gave oral evidence before the Adjudicator via an interpreter. He was questioned, amongst other things, by reference to the initial statement of evidence form dated 24 August 2000 and the record of his Home Office interview on 21 June 2001, also prepared via an interpreter and signed by the claimant. For reasons that will be explained, there was much questioning as to whether the claimant had almost been arrested on 5 August 2000 in Burma (which prompted him, as he said, to flee the country on that day, going across the border to Thailand, making his way then to Bangkok whence he left for the United Kingdom on 12 August 2000, using for that purpose a forged passport supplied by an agent); or whether the "near arrest" incident had occurred at an earlier date or had not in truth occurred at all.

Amongst other materials before the Adjudicator was a detailed witness statement of the claimant. In summary, what the claimant said in his witness statement was this. He explained that after completing his studies he started to work as a truck driver in the family business. Whilst he had been studying in 1988 he had become a party member of the National League for Democracy and had attended party meetings and demonstrations; he said that he became interested in politics himself. He said that as a member he was involved in activities on behalf of the NLD, sometimes helping out in the local representative's office doing administrative jobs, but mainly doing campaigning work such as distributing leaflets and also attending meetings and rallies. He says that in around October 1988 when he was attending a meeting the police forced themselves in. He said that he was arrested and interrogated for two hours and during that interrogation he was beaten and punched. He said that he was in prison for a month, during which period he was interrogated five times, but he was never charged with anything and never went to any court. He was released in November 1988 on condition that he was to report to the police station every month and that if he travelled outside the region he was to inform the police right away. He was warned not to involve himself any further with anti-government activities. Thereafter he reported to the police station every month and was warned constantly against involvement in politics.

He says that after his release he had been very careful as he realised that the police were watching him. He kept his distance from the NLD for a period of time, but then started to work for them again in secret, distributing leaflets and attending meetings. He says that for 12 years he was involved with the party "unnoticed by the police." He also continued to report to the police station every month until August 2000. He says that the NLD was planning to have an annual demonstration on 8 August 2000 and that he had been distributing leaflets in preparation for that event. On 5 August 2000, whilst he was distributing leaflets, there was a commotion and police officers arrived and started arresting people. He says that he ran away and escaped and hid in an uncle's house. According to him the police had gone to his own house and had found political documents that he had in his possession, although he does not explain how it is that he knows that police found political documents there. He says that he realised then that he had to leave and accordingly took a bus to the border of Thailand. Thereafter he was introduced to an agent to whom he paid £4,000 and the agent supplied him with a false passport and thus it was that he arrived in the United Kingdom on 12 August 2000.

Other documents produced by the claimant before the Adjudicator were a card which purported to be a membership card for the claimant in respect of the NLD party, and further, a significant quantity of background and objective country material including, but by no means limited to, the United States of America State Department Report on Burma for 2000.

The Adjudicator, by a decision typed on 18 December 2001 and promulgated on 24 January 2002, dismissed the appeal. The Adjudicator indicated that he found the claimant's evidence "very contradictory" and that he was not able to conclude that the claimant had a well-founded fear of persecution. The Adjudicator went on to dismiss that claimant's statement of additional grounds incorporating claims under the European Convention of Human Rights, saying: "because I do not accept the appellant's account of what happened to him in August 2000, I do not consider that the United Kingdom would be in breach of any of its obligations under the ECHR if he was returned to Burma."

The determination of the Adjudicator extended to some six sides of paper. After directing himself appropriately as to the burden and standard of proof, the Adjudicator then summarised the basis of the claim. He then summarised the evidence given by the applicant. Part of the evidence that he recorded was that the claimant himself performed his activities in secret and the authorities never arrested him after 1988 because he was not acting openly, and further, that the claimant had said in his evidence that on previous occasions before August 2000 the police had not known that he was involved.

The Adjudicator summarised the submissions made. One submission he recorded as being made by the Home Office was to the effect that either the police were not interested in the claimant at all, or alternatively the alleged incident of 5 August 2000 never took place and that, on the evidence, the claimant had had no problems since 1988. It is necessary for present purposes to read in full the paragraphs of the Adjudicator's determination under the heading "Decision":

The appeal having been dismissed by the Adjudicator, the claimant sought further advice from the IAS. It seems that at that time the particular individual who had been involved on his behalf was away on leave. After about a week the claimant was told that the IAS could not longer act for him and that he would have to draft grounds of appeal himself. The claimant then found, by contacting the Migrant Helpline, new solicitors with offices near where he was living in Eastbourne and who had had no previous involvement in the matter. The claimant says that he had one meeting with those solicitors lasting, with interruptions, some three hours. Communication was difficult since, according to the claimant, he has a limited grasp of English and no interpreter was available. Shortly thereafter an application for leave to appeal with supporting grounds was lodged by the solicitors, although the notice itself is undated. The application which is on its face signed by the claimant, read in the relevant respects as follows:

The attached grounds were indeed annexed as stated, and they are as follows:

By a decision typed on 26 February 2002 and promulgated on 25 March 2002 the Immigration Appeal Tribunal refused leave to appeal. The decision of the Vice President needs to be read in full and reads as follows:

By a claim form for judicial review issued on 9 May 2002, the claimant seeks to quash that refusal of the Immigration Appeal Tribunal of leave to appeal. In addition, although Ms Webber, appearing on behalf of the claimant, makes clear that this is very much an alternative point, a declaration is sought that Rule 18(6) of the Immigration Asylum Appeals (Procedure) Rules 2000 is ultra vires the rule making power conferred by paragraph 3 of Schedule 4 to the Immigration and Asylum Act 1999. In the claim form it is said, in essence, that the grounds of appeal to the Immigration Appeal Tribunal were hastily drafted and incomplete; and that those grounds did not deal with the Adjudicator's alleged failure to make findings as to the claimant's NLD membership or as to his 12-year reporting conditions to the police, or to the risk of arrest and physical ill-treatment for someone who had failed to report to the police as required and who had left the area where he lived and the country clandestinely and had sought residence and asylum in a western democratic state. Complaint is also made that the Immigration Appeal Tribunal in refusing leave to appeal had made no attempt to assess whether the Adjudicator's findings of fact were generally adequate or whether, even if the Adjudicator was justified in saying that the 5 August 2000 incident had not taken place, the Adjudicator was justified in finding that the claimant was not at real risk.

I turn to the case of Misal Eyaz. She is a Turkish national, being born in Ankara on 23 February 1975. According to her, she attended demonstrations in favour of human rights and democracy following arson attacks on Kurds by Turkish Fascists in July 1992. She became a student at Ankara University in 1992, studying Japanese language and literature. In 1996 she says that she attended a demonstration, was arrested and in consequence was severally ill-treated. She was appallingly handled, being sexually abused and threatened with torture. Subsequently she made a suicide attempt. In 1997 she began a Masters degree in Ankara in Japanese, ceasing to be involved in active politics, but sympathising with the TKPML movement, albeit not being a member. In May 1999 there was a student demonstration on the university campus during which she fractured her pelvis while seeking to avoid arrest. She continued translating articles and materials in relation to TKPML. On 20 December 2000, the Turkish government introduced forcible transfer operations in prisons in Turkey. She typed articles on prison operations. On 21 January 2001 she was told by her brother that the police had been looking for her. This and other incidents prompted her to leave Ankara. She left for Istanbul and then made her way to the United Kingdom, arriving on 3 February 2001. She claimed asylum on 23 February 2001. The essence of her claim was by reference to her asserted political activities in support of the banned Turkish Communist Party and her past experience of persecution because of her political associations.

By a refusal letter dated 30 April 2001 the Home Office refused her application. She appealed and the matter came before the Adjudicator on 30 October 2001. At the hearing the claimant was represented by counsel, instructed by solicitors. The Home Office was also represented. Presented to the Adjudicator were various statements of the claimant including a detailed witness statement, medical reports on the claimant, objective reports and written arguments. She gave evidence orally through an interpreter although the Adjudicator formed the view that she had a good understanding of English. In the course of a five-page determination promulgated on 21 December 2001 the Adjudicator, in the course of setting out the evidence in some detail and having summarised the claimant's case, said this at paragraphs 19 to 30 of her determination:

On 9 January 2002, detailed and professionally drawn typed grounds, comprising 10 paragraphs, in support of an application for leave to appeal were lodged by the claimant's former legal advisers on her behalf. On 15 January 2002 the claimant instructed different solicitors who in turn instructed Ms Harrison. Detailed further grounds of appeal dated 10 February 2002 were prepared by Ms Harrison. These were lodged by letter of the new solicitors dated 12 February 2002 requesting that consideration be given to them despite them being lodged out of time. The letter, dated 12 February 2002 from those solicitors, in part says this:

The letter goes on to say that in view of the nature of the case and the torture inflicted on the claimant that the solicitors thought that it was in the interests of justice that the client be afforded an opportunity to present expert medical evidence to the Tribunal. They asked that the matter be dealt with as soon as possible. In the meantime, however, the Vice President of the Immigration Appeal Tribunal had already considered the application for leave to appeal. His decision was typed on 4 February 2002, sent to the Home Office on 13 February 2002 and formally promulgated on 15 February 2002. The decision on leave to appeal reads as follows:

On 21 February 2002 the claimant's solicitors sent a further copy of the further grounds of appeal to the Immigration Appeal Tribunal accompanied by a request for an extension of time under Rule 18(2) of the relevant rules. This was said, among other things, in that particular letter:

On 27 February 2002 the Immigration Appeal Tribunal responded in this way:

The claim form was lodged on 13 May 2002, just before the expiry of three months from the promulgation of the decision of the Immigration Appeal Tribunal. The focus of the emphasis of attack on the decision of the Immigration Appeal Tribunal and of the Adjudicator was by reference to the further grounds of appeal, not the original grounds. A quashing order in respect of that decision of the Immigration Appeal Tribunal is sought. Further, or in the alternative, a declaration in identical terms to that sought in the Naing case as to the vires of Rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000 is made.

Before I turn to the detailed submissions made, it is, I think, convenient here to set out the relevant legislation. By the terms of the 1951 Convention relating to the status of refugees as amended by the protocol, a refugee is defined by Article 1A in the following way:

Article 33 of the Refugee Convention provides in part as follows:

In the context of asylum applications by reference to the 1951 Convention it is stipulated by section 2 of the Asylum and Immigration Appeals Act 1993 that nothing within the Immigration Rules should lay down any practice contrary to the 1951 Refugee Convention. Section 69 of the Immigration and Asylum Act 1999, replacing previous legislation, provides for a right of appeal against refusal of leave to enter or remain, or against removal directions issued, on the ground that removal would be contrary to the 1951 Refugee Convention. In the context of human rights, Article 3 of the Convention on Human Rights provides that no-one should be subjected to torture or to inhuman or degrading treatment or punishment -- this being an absolute and unqualified right. Section 6 of the Human Rights Act 1998, of course, provides to the effect that it is unlawful for a public authority to act in way which is incompatible with a Convention right; public authority being so defined as to extend to a court or tribunal. So far as the provisions of the Immigration and Asylum Act 1999 are concerned, section 65 provides to the effect that a person who alleges that an authority has, in taking a decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an Adjudicator against that decision. Paragraph 3 of Schedule 4 of the Immigration and Asylum Act 1999 empowered the Lord Chancellor to make rules for, among other things, the exercise of rights of appeal and for the practice and procedure to be followed. Paragraph 3 reads as follows:

With effect from 2 October 2000, rules applying to appeals both in immigration and in asylum cases and superseding previous rules, were introduced with regard to appeals from Adjudicators in the form of the Immigration and Asylum Appeals (Procedure) Rules 2000. In the context of appeals to Adjudicators, Rule 6 provided that a notice of appeal should be given not later than 10 days after the notice of decision was received. Rule 7 provides, amongst other things, that a late notice of appeal should be entertained if the relevant person is satisfied that because of special circumstances it is just for the notice to be treated as given in time. In the context of appeals to the Immigration Appeal Tribunal from a determination of an Adjudicator the relevant rule is Rule 18. That reads as follows:

In addition, by Rule 19, provision is made where an application for leave to appeal has been refused for an appellant to apply to the Immigration Appeal Tribunal to review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal. Reference may also be made to Part V of the Rules headed "General Provisions", and in particular to Rule 30 which in the relevant respects says this:

It is appropriate here to set out a number of general principles which counsel were agreed were applicable to these particular two cases. Although the various authorities cited to me as underpinning these principles were culled variously from the refugee context and the human rights context, they can, for present purposes, conveniently be grouped together:

Against that background I turn to the competing submissions. The principal question arising is whether the claimants are entitled to challenge the validity of the Immigration Appeal Tribunal decisions by reference to grounds which were never raised in the grounds lodged with the Tribunal with the application for leave to appeal. I should make clear, however, that Ms Webber and Ms Harrison submit that the decision of the Immigration Appeal Tribunal in each case was flawed even by reference to the grounds that were lodged with the application for leave to appeal. But each concedes that the grounds now sought to be relied upon (in the case of Ms Webber, almost entirely, and in the case of Ms Harrison, in respect of those grounds set out in paragraphs 6 to 9 of her further written grounds sought to be lodged from 12 February 2002) are new and were not raised in the relevant application notice.

The starting point here is Rule 18 and, in particular, Rule 18(6). It is to be noted that Rule 18(6) does not stipulate that the Tribunal is positively required not to consider any grounds other than those included in the application for leave to appeal; rather it stipulates that the Tribunal is not required to consider any grounds other than those included in the application for leave to appeal. It follows, in my judgment, that the Immigration Appeal Tribunal is not under any statutory duty to consider grounds not included in the application for leave to appeal. But by necessary implication the Immigration Appeal Tribunal has the statutory power to do so. One consequence of this rule, which, as introduced, was new, was to curtail what seems to have become, at that time, a prevalent practice (referred to cases such as Mubassir [1998] Imm AR 304) of parties applying for leave to appeal lodging holding grounds and then seeking, even if within the prescribed time period, to lodge further detailed grounds.

The circumstances in which the Immigration Appeal Tribunal may exercise its power to consider further grounds are not specified in Rule 18(6) itself. There is no express requirement as to "special circumstances" such as contained in Rule 18(2), for example. In practice however, given the overriding objective, the Immigration Appeal Tribunal is likely to require a very cogent explanation for the failure to lodge such grounds at the outset with the application for leave, as required by Rule 18(4)(c), before it will even be prepared to entertain such further grounds. Obviously each decision will fall to be made by reference to the circumstances of each particular case. But one consideration always present in all such cases, in my view, will be that of the good administration of justice. That is to say, there is a need, generally, to ensure prompt and expeditious disposals of applications for leave to appeal, both in the interests of the appellant concerned and in the interests of those other appellants waiting in the queue; and there is a need, generally, to ensure compliance with the rules. In deciding whether or not to exercise its power to entertain further grounds, the Tribunal must, of course, act fairly and rationally; but that is not at all incompatible with a robust approach in deciding whether to exercise a power available under Rule 18(6) to consider further grounds. Relevant also in this context is the Practice Direction reported at [2001] INLR 216. That makes clear, amongst other things, that applications for leave to appeal must set out all (emphasis added) grounds relied upon, and that only those grounds will "normally" be considered by the Tribunal when deciding whether to grant leave to appeal.

The question in these cases, however, is the extent to which the Immigration Appeal Tribunal was required to have regard to matters which were not even raised before it in the application for leave to appeal itself. Ms Webber and Ms Harrison, in this context, stress the fundamental importance of Article 33 of the Refugee Convention and of the unqualified right conferred by, for example, Article 3 of the Convention on Human Rights.

Passages in their written grounds in support of these claims for judicial review could be read as submitting that it was incumbent upon the Immigration Appeal Tribunal to ensure that a claimant was not removed from the United Kingdom in breach of the Refugee Convention or Human Rights Convention. Put like that, that is, as Ms Richards on behalf of the Secretary of State submitted, and as I accept, an unsustainable and unworkable proposition. The immigration authorities generally, and the Immigration Appeal Tribunal in particular, are not under a free-standing obligation in the nature of a strict liability positively to guarantee that applicants are not removed in breach of their Convention rights. Rather, their obligations are, by way of acknowledging such Convention rights and of implementing the Conventions and applicable statutory regime, to investigate the claims raised by applicants who have sought to invoke the relevant Convention rights. The obligations arising thus are responsive to claims raised.

It soon emerged, in the event, in the course of oral argument that Ms Webber and Ms Harrison (in my view rightly) in principle accepted this. They accepted that the role of the authorities was not one of open-ended investigation but was by way of evaluation of the claims put forward by an individual applicant. They accepted that there was no "strict liability" on the immigration authorities or the Immigration Appeal Tribunal. They accepted that it was for the asylum seeker to say or do enough to claim asylum in the first place -- although that might not need to be very much -- and thereafter it was for him to put forward to the immigration authorities (and in due course, on any appeal from a refusal decision, to an Adjudicator) the facts and evidence relied upon. They accepted that it was not for an Adjudicator, let alone the Immigration Appeal Tribunal, to scratch around looking for evidence or materials which a claimant had not himself put forward. They accepted, further, that the legislation validly imposes certain restrictions on the right of appeal for certain categories of person in the circumstances specified in the legislation; examples can be found in section 70(7) and section 72(3) and paragraph 9 of Schedule 4 of the 1999 Act. They further accepted that procedural rules and requirements as to the conduct of appeals and of applications for leave to appeal were, in principle, necessary and proportionate. But in the present context their particular point is this. Article 33 of the 1951 Convention and Article 3 of the Human Rights Convention have the status of paramountcy. In this field, anxious scrutiny and rigorous inquiry are required at all levels: see for example the comments of Lord Bridge of Harwich in the case of Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514 at 531. They draw attention to the task of evaluation incumbent on the relevant authorities as exemplified in paragraphs 28, 29 and 205 of the UNHCR Handbook. They go on to submit, in reliance of the decision of the Court of Appeal in the case of Robinson [1998] QB 929; [1997] Imm Ar 568, that where an obvious point is available, having strong prospects of success, then even if it does not appear in the Adjudicator's decision or in the written grounds advanced in support of the application for leave to appeal, the Immigration Appeal Tribunal is nevertheless under a duty to consider it. Further, they submit that that is so even if the point is not obvious even on a cursory inspection, but only reveals itself on a careful examination of the papers: albeit they necessarily accept the Immigration Appeal Tribunal's task is not as onerous as a full-blown merits review.

In the case of Robinson one of the questions arising was as to the scope of the duty, if any, on the Immigration Appeal Tribunal to consider issues which were not apparent on the face of a notice for appeal when the Tribunal decided whether to grant leave to appeal from a decision of an Adjudicator. In the course of his treatment of that point, Brooke LJ, delivering the judgment of the court, said this:

In her closing submissions Ms Webber suggested that the language of Brooke LJ in paragraph 39 suggests that whilst the "obvious point" must be "readily discernible" before the Adjudicator, all that is required before the Immigration Appeal Tribunal is that the point be obvious in the sense that it has a strong prospect of success if argued. It does not, she suggested, at that stage need to be "readily discernible." That submission involves a minute linguistic analysis of paragraph 39 wholly inappropriate to a court judgment and in any event, in my view, is a misunderstanding and misreading of what Brooke LJ was saying. What he plainly was saying was that not only must the point be obvious carrying with it the connotation that it had a strong prospect of success if argued, but also that it is readily discernible: and that is so both before the Adjudicator and "similarly" before the Immigration Appeal Tribunal. Indeed, in my view, it is not realistic to contend that the Immigration Appeal Tribunal, which is there to review not to rehear the decision of the Adjudicator, is under a greater obligation of scrutiny in this regard than the Adjudicator who has conducted the hearing himself.

Although Robinson was dealing with a case of an obvious point of law, there seems no reason in principle why the like approach should not be available in cases of errors of fact (even though such cases are likely to be very rare, not least because they will not often, where the grounds of appeal are silent on the point, be readily discernible): see Kolcak [2001] Imm AR 666, a decision of Stanley Burnton J.

Robinson was, of course, a case decided before the introduction of the Immigration and Asylum Appeals (Procedure) Rules. This perhaps prompted Ouseley J in the case of Nuredini [2002] Imm AP 577; [2002] EWCH 1582 (in which Kolcak seems not to have been cited) to say this at paragraph 37 of his judgment:

Ms Richards did not associate herself with that particular comment and, with respect, I cannot myself agree with it. I can see nothing in Rule 18(6) designed to restrict, or having the effect of restricting, the scope of the obligation identified in Robinson. Indeed in my view the very principles set out in Robinson as justifying the obligation as much hold sway after 2 October 2000 as before that date. Moreover, if a point is obvious, having strong prospects of success and being readily discernible, it can be said in one sense to be inherent in the grounds that have been put forward on the application for leave to appeal. Ms Richards stressed, however, that there was no duty to consider points not raised in the grounds of appeal. I agree that there is no statutory duty to do so -- the wording of Rule 18(6) makes that plain. Nevertheless, the obligation -- and it does not trouble me very much whether one calls it a duty or an obligation or something that the Tribunal is required to do -- as identified in Robinson, remains. The essential reason why such obligation is there is that it reflects (while holding the balance with the need for a workable appeals procedure) the paramountcy of the need to seek to achieve, by reference to the claims advanced by an asylum seeker, respect for Convention rights and compliance with Convention obligations, and to fulfil the requirement for objective, anxious and rigorous scrutiny. The continued application of the Robinson principle does not, in my judgment, devalue or undermine the provisions of Rule 18(6). It remains incumbent on an appellant to formulate all the grounds on which he relies and to put them before the Tribunal. Rule 18(4)(c) and Rule 18(6) together make that explicit. An appellant most certainly cannot wash his hands of the responsibility for putting forward the grounds on which he relies and simply leave it to the Immigration Appeal Tribunal to investigate the whole matter and to attempt to extract from the whole file what is or may be an arguable point. The rules and the Practice Direction make clear what the obligations on an appellant are and what the risks to an appellant are if he fails to specify his grounds in his application notice. The overriding objective and the efficient administration of the Immigration Appeal system in fairness to all those seeking to invoke it require compliance with the rules. Were it otherwise, the system would break down.

Applications for leave to appeal to the Immigration Appeal Tribunal are currently, I am given to understand, running at a rate approaching 3,000 a month. The burden on the Vice Presidents is heavy. The main focus of the Immigration Appeal Tribunal in dealing with applications for leave will be on the Adjudicator's determination and on the grounds lodged: although of course the Immigration Appeal Tribunal will ordinarily have regard to other material in the file to the extent that that is indicated or otherwise prompted by the grounds themselves; and the Immigration Appeal Tribunal can in any event also be expected to bring to bear its own expertise and general background knowledge to any particular case. However, the Immigration Appeal Tribunal is not, as I see it, to be expected or required to dredge through the whole file of papers and materials lodged to see if there are matters which might give rise to arguable grounds, albeit not identified in the grounds that have been put forward; that would be an impossible burden were it not so. It is precisely for those reasons and in order to achieve compliance with the rules, as Brooke LJ explains in Robinson, that if a ground subsequently sought to be relied upon is one not expressly raised before the Immigration Appeal Tribunal, then that must not only have strong prospects of success -- and both Ms Webber and Ms Harrison accepted that the "threshold was set high", in Ms Webber's words -- but also be readily discernible.

In Nuredini Ouseley J went on to say this at paragraphs 39 and 40 of his judgment:

Speaking for myself, I am wary of using the word "irrational", or for that matter "perverse", in this particular context: see for example the comments in R(Daly) v Secretary of State for the Home Department [2001] 2 WLR; [2001] UKHL at p.662 by Lord Steyn in paragraphs 26 and 27 of his speech, and by Lord Cooke of Thorodon in paragraph 32 of his speech. In any case, it is to my mind somewhat odd to use the word "irrational", in a context such as the present, when the alleged error is one of a failure to note a point which has not been expressly raised. Moreover, if for example the obvious point overlooked is one of law it may well suffice in the ordinary way simply to say that the decision of the Immigration Appeal Tribunal was erroneous in law. In any event, if the conventional terminology of judicial review language is apposite, then in a context such as the present the error relied on will usually fall within the ambit of a failure to take into account a relevant consideration. That, in this context, must connote a consideration not only having in itself strong prospects of success but also being readily discernible. After all, if there is nothing to put the Immigration Appeal Tribunal on inquiry it is difficult to see how its decision can thereafter be impeached on public law grounds; but if, on the other hand, a point is readily discernible and is strong then the prima facie basis for a public law challenge is there.

I should add that Ms Harrison at one stage submitted that it did not even matter if the point was not readily discernible before the Immigration Appeal Tribunal -- it sufficed, she submitted, if it was readily discernible at the stage of the application for judicial review. Put like that, I could not possibly agree. The remedy in respect of a determination by an Adjudicator said to be wrong, as provided by Parliament, is one of appeal from the Adjudicator to the Immigration Appeal Tribunal. An application for judicial review is not part of the appeal process as such, but is the review judicially available in respect of a decision of the Immigration Appeal Tribunal alleged to be open to challenge on public law grounds. There must be some proper public law basis put forward for impeaching the decision of the Immigration Appeal Tribunal.

Accordingly, if the point sought to be relied upon is not raised before the Adjudicator or Tribunal, but is raised for the first time in an application for judicial review, then unless the Robinson requirements are satisfied, there ordinarily will be no basis for attack on the validity of the decision of the Tribunal: see Taore 1998] Imm AR 450 at p.453 per Simon Brown LJ.

I should, however, add for completeness that the Robinson criteria are not necessarily the sole basis for a challenge based on grounds not before the Immigration Appeal Tribunal to a decision of the Immigration Appeal Tribunal to refuse leave to appeal. There may be grounds capable of being raised in the Administrative Court or higher courts by reference to breach of the rules of natural justice or to principles of fairness: see for example R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330 at page 345, per Lord Slynn of Hadley. It may be that there have been material omissions or mistakes identified by fresh evidence where wider considerations of justice and fairness require a review of the decision in question. Haile [2002] Imm AR 170, [2001] EWCA Civ 663 can be taken as an illustration of that; albeit such cases are likely to be very rare and wholly exceptional. Circumstances also may arise which might even justify an applicant in making a fresh asylum claim. Nevertheless, in my judgment, the principle remains that if a challenge is to be made by way of application for judicial review to a decision of the Immigration Appeal Tribunal to refuse leave to appeal based on grounds which were never raised before the Immigration Appeal Tribunal, then ordinarily such challenge will fail unless the applicant can bring himself within the Robinson criteria.

I might add that it does not seem that the decision in Robinson has in itself given rise to a flood of claims. I might also add that hopeless attempts to seek to advance fresh grounds on a judicial review application in purported reliance on the Robinson criteria can be expected to be firmly dealt with, including, in appropriate cases, by the making of wasted costs orders.

It also follows from what I have said that there can be no sustainable argument that Rule 18(6) is ultra vires. It plainly is not. It was made pursuant to the statutory powers conferred by paragraph 3 of Schedule 4 of the 1999 Act in the context (for present purposes) of appeals brought pursuant to section 65 and section 69 of that Act. The rules provide an expedient, workable and proportionate regime for the conduct of appeals and applications for leave to appeal, which are consonant with the determination procedures requisite to fulfil the obligations of states under the applicable Conventions and the requirement to consider claims, whether relating to asylum or human rights, which are put forward. (I might add in this context that Ms Richards in fact noted, relying on certain observations made in the Court of Appeal decision in Saad, Diriye and Osorio [2002] INLR 34, [2002] EWCA Civ 2003, that the 1951 Convention did not even require that an appellate system be set up by member states.) For like reasons, no reading down pursuant to section 3 of the Human Rights Act 1998 is necessary or appropriate in this context.

I turn then to the facts. In the case of Naing, Ms Webber submits that there was reason to think that there may have been a misunderstanding over the date of the alleged arrest of the claimant: perhaps involving confusion in the giving of evidence or problems of interpretation. She accepts that at least at the interview the claimant was rather confused as to whether the incident occurred on 5 August 2000 in Burma whereupon the claimant immediately left for Thailand, or at a date a week earlier than his departure from Burma as opposed to Bangkok. In any event, she submits that the Adjudicator erred -- demonstrably erred -- in treating the issue of whether or not the authorities were trying to arrest the claimant on 5 August 2000 as determinative, to the exclusion of all else, of the issue as to whether he had a well-founded fear of persecution on return to Burma. She went on to submit that the claimant's accounts were such as to alert a decision-maker with knowledge of the repressive Burmese regime to a number of serious risks factors giving rise to a real risk of persecution and of infringement of human rights on return. These included, amongst other things: (1) his membership of the NLD party; (2) his membership of the Shan ethnic group and that he was from the Shan State; (3) his monthly reporting requirements to the police and need for permission to move imposed on his release from the previous detention and of all of which he was now in breach; (4) his illegal and clandestine departure from Burma; (5) his soliciting asylum in a western democracy.

She submitted that the careful scrutiny which was incumbent on the Adjudicator would have revealed that the claimant had a well-founded fear of persecution and faced a real risk of breach of his fundamental human rights if returned. She in fact roundly criticised the determination of the Adjudicator as "hopelessly inadequate" and submitted that there had been a failure to look at the evidence in totality or to consider the case in the round. With regard to the Immigration Appeal Tribunal decision to refuse leave, she accepts, as I have said, that her main grounds as now advanced were not raised in the application for leave to appeal before the Immigration Appeal Tribunal, although she does maintain that the Vice President was wrong to dismiss the claimant's explanation as to confusion. Her main complaint, however, is that the Vice President focused solely on the five points as raised in the grounds and did not sufficiently focus on the failure of the Adjudicator to address the evidence in its totality or "step back", in her phrase, from the actual grounds of appeal to see whether there was in any event a strong argument that in the circumstances to remove a claimant to a repressive regime such as Burma was not justified. She says that the defects in the Adjudicator's determination were obvious and that had the Vice President properly considered the matter the claim would have been revealed as a strong one and so satisfied the Robinson criteria.

Having considered all Ms Webber's arguments I am not persuaded that the Robinson criteria are satisfied in this particular case. I do not think that the Adjudicator's alleged errors were readily ascertainable; for instance, Ms Webber took me through an extensive trawl of the objective country material relating to Burma, extracting statements as to the repressiveness of the regime, of instances of persecution NLD members and of ethnic Shans and so on, in order to support her submissions. But it seems to me that such an exercise was just such an exercise as she herself had earlier, and rightly, disclaimed as being incumbent on an Adjudicator where such grounds were not raised in the application for leave to appeal itself: namely, the combing through the file with a view to seeing if arguable points could be located. It is evident that the alleged threatened arrest on 5 August 2000 which prompted the claimant, as he asserted, to leave Burma was, and understandably, perceived as being of central importance to the adjudication. As recorded in the determination of the Adjudicator at paragraphs 22 and 24, the claimant had conceded that the authorities never knew what he was doing before August 2000, as he performed his political activities in secret, and that they did not know he had been in other such incidents. He conceded that he had not been detained in the previous 12 years. The Adjudicator, in such circumstances, was in my view entitled to state that such incident was of importance with regard to credibility. He was entitled to place weight on the fact that in his original SEF submitted on 21 August 2000, prepared with the assistance of the IAS and an interpreter, the claimant made no mention whatsoever of the alleged near arrest incident of 5 August 2000 which would have occurred, if it happened, only a few weeks previously to the making of this SEF. Nor was it mentioned in the annexed signed statement. The claimant expressly answered "no" in answer to the question as to whether there was anything else he might think relevant to his application not recorded elsewhere on the form. Nor did the accompanying and quite detailed letter of the IAS of 24 August 2000 or a subsequent letter from the IAS of 3 April 2001 refer to that point. The first time that the point seems to have emerged, in somewhat confused form, was in the claimant's answers in interview on 21 June 2001. The Adjudicator was, in all the circumstances, in my judgment, entitled to reject the applicant's account of this alleged incident as not reliable or credible. Moreover, the Adjudicator went on, it should be stressed, to have regard to the objective evidence, even though it seems it had not been expressly referred to by either party at the actual hearing. He expressly took account of what he called the "poor record" of the Burmese Government with regard to human rights. He decided in the light of the claimant's "very contradictory" evidence that he could not conclude that the claimant had a well-founded fear of persecution or that the United Kingdom would be in breach of its obligations under the Human Rights Convention if he returned to Burma. In my judgment, those were conclusions open to the Adjudicator.

The Immigration Appeal Tribunal, in my view, given those findings, dealt properly with the grounds raised. The decision rightly focused on those grounds just because, as the drafter of those grounds clearly appreciated, the issue of credibility, by reference in particular to the alleged incident of 5 August 2000, was central. The decision of the Immigration Appeal Tribunal also dealt properly with the other points raised in the grounds; there is no arguable basis for the challenge to those grounds.

To the extent that Ms Webber advanced the additional grounds which I have summarised -- being the grounds identified by her, but not (as she accepts) put before the Immigration Appeal Tribunal -- these were skilfully and persuasively put by Ms Webber. It may be that if such grounds had been raised in the grounds accompanying the application for leave to appeal, then some Vice Presidents, at least, might (perhaps) have formed the view that, taking those grounds in totality, an appeal would have had a real prospect of success. But in my view, having considered all those new grounds advanced by Ms Webber, they do not, whether individually or collectively, give rise to a point or points having a strong prospect of success if argued. It is clear from the decision in Robinson that nothing less will do. Accordingly, for this reason alone, the criteria laid down by Robinson with regard to those new grounds are not satisfied. Further, and in any event, in my view, those points were not readily discernible. Accordingly, I refuse the application in the case of Naing.

I turn then to the case of Eyaz. Ms Harrison accepts that the further grounds submitted on 12 February 2002 -- that is, over one month after the application for leave to appeal accompanied by the original grounds -- were very late in the day. Indeed they were sent after, as it happens, the Immigration Appeal Tribunal's decision had been typed. But Ms Harrison's first submission, nevertheless, is that the Immigration Appeal Tribunal erred in that the request having been made in the letter of 12 February 2002 and repeated in the letter of 21 February 2002, the Immigration Appeal Tribunal simply failed to exercise its discretion as to whether or not to entertain them. I cannot accept that. The letter of 27 February 2002 shows that the Immigration Appeal Tribunal had decided to refuse to entertain those further grounds. Moreover, the Immigration Appeal Tribunal was fully justified in refusing to entertain them. These further grounds connoted a failure on the part of the application for leave to appeal to comply with the provisions of Rule 18(4)(c); and they were submitted some 4 weeks late. The Tribunal was not under a duty to entertain them by reference to Rule 18(6). The reasons proffered in the letters of 12 and 21 February 2002 proffered neither a cogent reason nor special circumstances for their admission. The Immigration Appeal Tribunal was in such circumstances, in my view, fully entitled to promulgate its decision in response to the original grounds alone. Nor was there any basis for invoking Rule 19(1), as the Immigration Appeal Tribunal rightly said.

Ms Harrison then went on to submit that the Immigration Appeal Tribunal was wrong to conclude that the appeal would not have a real prospect of success by reference to the grounds originally lodged. She candidly accepts that paragraphs 1 to 5 and 10 to 15 of the further grounds as drafted by her are, as it were, variations on a theme already advanced in the original grounds. She says, however, that these grounds sufficed for a grant of permission to appeal. Here too I cannot agree. It seems to me that the Adjudicator made findings of fact and drew conclusions properly open to her on the evidence; and the Immigration Appeal Tribunal was justified in concluding that the Adjudicator had properly assessed the matter. The Adjudicator's findings, indeed, were careful and detailed. She expressly accepted in paragraph 20 of the determination that the claimant had been arrested, detained and subjected to dreadful abuse in 1996 resulting in great trauma to the claimant. But the Adjudicator also found that the claimant had thereafter attracted no police interest. She found that the claimant was facing no charges in Turkey and was not a member of the TKPML Party. She, in terms, did not accept that the applicant (who I might observe adduced no evidence from any of her siblings in Turkey although, as is clear from the determination, she was in contact with them) had attracted the adverse interest of the police nearly 5 years later in 2001. The reasons the Adjudicator gave for coming to that view, given in paragraph 22 of the determination, seem to me to be rational and cogent.

The Adjudicator further found that the claimant would not attract the adverse interest of the authorities if returned to Turkey for the reasons given in paragraph 28 of the determination. The Adjudicator expressly had regard to the experiences of the claimant in 1996 and of the medical consequences for her. The Adjudicator expressly had regard to the objective evidence. The Adjudicator's overall anxious scrutiny of the case is exemplified by her acknowledgment that this was a "finely balanced" case. In my view, the ultimate conclusions reached by the Adjudicator, as set out in the closing two paragraphs of her determination, were justified on her findings. It follows, in my view, that the Immigration Appeal Tribunal's refusal of leave to appeal by reference to the grounds originally advanced was justified.

I turn then to the new grounds relied upon; these being identified by Ms Harrison as those set out in paragraph 6 to 9 of the further grounds, and also, I think, finding a degree of replication in paragraphs 12 to 14 and perhaps 15 to 19 of the grounds lodged in support of the claim for judicial review. It is submitted in those further grounds, in summary, that the rejection of the claimant's case that she had attracted the adverse attention of the police nearly 5 years later in 2001, and was wanted by them, was entirely irrational and unreasonable. There was, it is said, no adequate basis for rejecting the claimant's account; that such account was neither incredible nor implausible; that the Adjudicator's apparent reliance on the fact that the material on the complainant's computer was not illegal as showing she was of no interest to the authorities was irrational; and that it was irrational to expect the claimant to explain that she was only a professional translator and so avoid adverse treatment, given that her activity, as it was said, was not solely limited to "professional duties", and given the objective evidence as to the practices of the Turkish police. Criticism is also made of the alleged failure to determine the claim by reference to past events and to treat the claimant's account as unrelated to political activity. Yet further criticism is made of the alleged failure properly to evaluate the objective evidence: although I observe that no particulars are given as to that.

I have had careful regard to the precise way in which all these further grounds are put. In my view, however, these further grounds, both on initial perusal and on more detailed consideration in the light of the arguments that I have heard, do not begin to satisfy the Robinson criteria.

First, they are not readily discernible. The determination of the Adjudicator on the face of it is careful, rational and cogent, and these new grounds simply cannot be readily discerned even from a careful consideration of the matter. Indeed, as in the case of Ms Webber's submissions with regard to Naing, Ms Harrison was in effect compelled to undertake a detailed trawl through the objective and other material to seek to make good a number of her points, and seemed at some stages to be undertaking what appeared to be almost a fresh hearing. Besides, many of the points made in consequence of that detailed trawl remained highly debateable. For example, a number of citations from the country material made clear that the risk to a returner to Turkey all depended on the individual circumstances of each case. By reference to the position of this claimant who, on the primary findings of the Adjudicator, was not a known activist, the matters advanced fell a long way short of establishing or corroborating a well-founded fear of persecution or of infringement of the claimant's human rights were she to be returned. Moreover, the fact that the claimant had been so badly ill-treated in 1996 did not, in itself, prove her claims, albeit it was relevant as the Adjudicator acknowledged. Second, having considered all the new points raised, I consider that they fall a long way short of constituting grounds, whether individually or collectively, having strong prospects of success. Thus neither of the Robinson criteria are satisfied. Indeed, in my view, even if those further grounds had been raised at the outset of the application for leave to appeal, they would not have given rise to an appeal arguably having real prospects of success. They are, in substance, disposed of by the Adjudicator's findings, which findings were properly open to the Adjudicator. Accordingly, I refuse this application in the case of Eyaz also.

I desire to add that I conceive that given my findings that the Robinson criteria have not been satisfied with regard to the new grounds sought to be raised in either of these two cases, I have no further discretion to accede to these claims for judicial review. But in any event, directing myself on the basis that I nevertheless do have a residual discretion by reference to some wider consideration of justice or fairness, I would conclude in the exercise of my discretion, considering the circumstances of each of these two cases, that I would not, in my discretion, grant any relief on either of these two claims.

I conclude by saying this. The message of this case and other cases of a comparable kind (although the position hereafter needs general appraisal as and when the relevant provisions of the Nationality, Immigration and Asylum Act 2002 come into force) is not that the Administrative Court has the power in certain limited circumstances to quash a decision of the Immigration Appeal Tribunal to refuse leave to appeal by reference to grounds not raised before the Immigration Appeal Tribunal. The Administrative Court does, as it happens, have that power. Rather, the message of this case is to confirm how essential it is for appellants and their advisers to ensure that all the grounds on which they propose to rely accompany their application for leave to appeal, which should itself be lodged in time. I acknowledge that some appellants, especially those who choose to be or are in practice required to be unrepresented, may be at some disadvantage. Even so, this is not an onerous task. Sufficient time is given by the rules; and points of complaint (including alleged errors of omission) arising from the adjudication, not least when those points are asserted to be obvious and are asserted to be strong, should be fresh in the mind of all concerned. Nor is the message of this case to be taken as constituting an invitation to overload an application for leave to appeal with every conceivable point; on the contrary, as experience in this field as well as other fields teaches, the overloading of a case with hopeless points simply operates potentially to devalue points which otherwise might be made to appear arguable. It may be that there will be cases where an appellant can claim genuinely to be aggrieved at the failure of his advisers to take the relevant points in the grounds advanced in support of the application for leave to appeal: although I suspect that such cases will be relatively rare. A theoretical claim in negligence is, I accept, in practice useless in such circumstance. But it remains essential that there be compliance with the rules. If on occasion a failure to comply can give rise to a hard result -- and I am here talking generally and not by reference to these two particular cases -- then that, in my view, is more than counterbalanced by the general desirability of ensuring compliance with the rules; of ensuring that all grounds of appeal are duly raised in the application for leave to appeal itself so that they can be expeditiously dealt with; and of ensuring that the Immigration Appeal Service is operated fairly, speedily and efficiently to the benefit of all those who are seeking to resort to it. If this is not acknowledged as so, the system would soon cease to be workable.