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

In this case the Claimant seeks judicial review of an order of the Immigration Appeal Tribunal (the Tribunal) made on 18 June 2003. That decision was a refusal of permission to appeal a decision of an Adjudicator promulgated on 17 April 2003. The hearing before the Adjudicator was on 19 March 2003 and as a result of it she dismissed an appeal by the Claimant against a decision of the Secretary of State contained in a letter dated 11 November 2002 rejecting his asylum claim. The appeal to the Adjudicator was an asylum and human rights appeal.

Permission to pursue these proceedings was granted by Richards J on 20 November 2003.

The Claimant was born in a country now known as the Democratic Republic of the Congo (DRC) in 1962. He is therefore now 42. He arrived in the United Kingdom in September 2002 using false documents and claimed asylum on 16 September 2002.

After the refusal of his claim by the Secretary of State the Claimant instructed solicitors. He asserts that at the hearing before the Adjudicator on 19 March 2003 he was expecting that someone from those solicitors would be present and would represent him. No one from those solicitors attended. An interpreter was present.

In her determination the Adjudicator says this:

“The Proceedings

9.

The matter came before me for hearing on the 19^th March 2003. The Appellant appeared in person. There was a letter on the Appellate Authority’s file indicating that his former Solicitors were no longer acting for him.

10

The Appellant told me that he was not aware that his Solicitors were not acting and told me that he had expected them to be present to represent him and that he had spoken to them quite recently. I noted that the Solicitors were based in London and that their letter to the Appellate Authority was dated 31^st January 2003. The original of the letter was not on the Court file but a copy was faxed to the Court on the morning of the hearing.

11

The Appellant expressed some concern about his lack of legal representation but made no application for the hearing to be adjourned to enable him to seek alternative representation and in the circumstances I decided to continue with the Appeal.

12

The Appellant gave oral evidence with the assistance of a Lingala speaking interpreter and was cross-examined by the Home Office representing officer. I made a full note of the oral evidence together with the submission of the Home Office representing officer – a full note of the evidence is contained in the record of proceedings. In addition I considered the Respondent’s bundle which contained:-

a)

Interview record

b)

SEF form

c)

Appellant’s Statement

d)

Statement of Additional Grounds

e)

Reasons for refusal letter

f)

Notice of Appeal

13

I also considered the CIPU report on DRC which was supplied to me by the Home Office representing officer. At the end of the proceedings I reserved my determination which I now give together with my reasons.”

The solicitors who the claimant asserts he was expecting to represent him had written to the Appellate Authority on 21 January 2003 saying that they would be representing the Claimant. The representatives of the parties were unable to tell me the circumstances in which the letter dated 31 January 2003 from those solicitors stating that they would not be representing the Claimant was faxed on the day of the hearing (19 March 2003) and thus, for example, whether it was faxed as a result of a request following exchanges between the Adjudicator and the Claimant or whether it was sent before any such exchanges took place. The interpreter was someone provided by the appeal service on the basis, as I understand it, that they were notified that he or she would be needed at an earlier stage. Thus the presence of the interpreter does not indicate a recent participation in the preparation for the hearing by the solicitors instructed by the Claimant.

In paragraph 1 of the Claimant’s grounds of appeal to the Tribunal (which were prepared by different solicitors) it is asserted as follows:

“The Adjudicator has erred in failing to give full and proper weight to any voluminous evidence that could have been submitted by the Appellant, had the Appellant been given a fair appeal hearing. Had the Appellant been represented by counsel, it could have been demonstrated further to the Adjudicator that there was objective evidence to support the Appellant’s claim. The Appellant would also have been represented by a legal representative the Appellant states that he was not aware he would not be represented by a legal representative.

Further, contrary to paragraph 11 of the determination and reasons of the Adjudicator, the Appellant states that the appeal hearing had already been adjourned once by the Immigration Appellate Authorities. He was aware that the appeal hearing could have been adjourned. The Appellant states that he did request the adjournment to the Adjudicator. The Appellant was shocked to learn the contents of paragraph 11 after it had been translated by an interpreter, the Adjudicator stating the Appellant “made no application for the hearing to be adjourned to enable him to seek alternative representation”.”

In paragraph 8 of those grounds of appeal, which should be read with paragraph 5 thereof, it is asserted:

“With regard to paragraph 27 and 30 of the determination and reasons, the Appellant states that he was not allowed to elaborate on his ill treatment, as he was simply not given the opportunity to do so. The Appellant states that he was not asked much about how he was tortured. The Appellant is not expected to provide a similar report to that of the CIPU. The Appellant states that he was not given the opportunity to explain in detail his version of events. He was simply asked if he wanted to add anything further in general to his Statement of Evidence Form and statement. The Adjudicator does not know about the ear problems that the Appellant is suffering, as she did not ask any questions about it.”

The remainder of those grounds of appeal to the Tribunal make a series of points on the substantive merits.

Although in the grounds of appeal to the Tribunal the Claimant asserts that he sought an adjournment he does not therein give any particulars of the points he says he made to the Adjudicator when making that application. For example, he does not identify any of the voluminous evidence that it is asserted in the grounds of appeal could (my emphasis) have been submitted. Further the point made in paragraph 8 of those grounds is an assertion of actual prejudice or disadvantage during the hearing and not one that was (or could have been) advanced in support of an application for an adjournment. At that stage only a general assertion as to the possibility of such, or similar, prejudice occurring because of the lack of representation could have been made. Further the assertion that the Claimant sought an adjournment is not supported by evidence directly from him that he did so.

The Claimant’s solicitors havce asked the Tribunal for a record of the proceedings taken by the Adjudicator. The Tribunal replied that it was unable to do so and suggested that if the Claimant wanted the Adjudicator’s notes he contact the Chief Adjudicator. I find this response a little puzzling because such record has an obvious relevance but I was told by counsel that the record is not generally produced without an order being made. So far as I am aware a request was not made of the Chief Adjudicator. During the hearing before me the Defendant helpfully produced the note of the officer who attended on his behalf, but this shed no light on the issues concerning the events at the hearing by which the faxed letter was produced and / or the exchanges and steps taken concerning the non appearance of a solicitor to act for the Claimant. I decided that at that stage I should not call for a record of the proceedings because (a) it seemed to me doubtful that it would provide a clear answer to any of those issues and most unlikely that it would contradict the Adjudicator’s understanding of the position as set out in her Determination, and (b) the Secretary of State had not sought that record in support of his defence to these proceedings.

In contrast to the grounds of appeal to the Tribunal, in the detailed grounds for judicial review annexed to the claim form (which were prepared after a further change of solicitors) the focus is on what it is asserted the Adjudicator should have done to investigate whether there could be a fair hearing in the absence of the representative the Claimant asserted he was expecting. The only reference to the Claimant making an application for an adjournment is at the end of the last paragraph of those grounds (paragraph 6) which I cite later.

Additionally in those grounds points of prejudice are expressly taken in the context of the steps it is asserted the Adjudicator should have taken to determine whether there should have been an adjournment. This change of approach has caused complications in the arguments advanced.

Grounds 1 and 2 of the detailed statement of grounds annexed to the claim form are as follows:

“1.

The adjudicator at the hearing of the appeal on 19^th March 2003 had been informed by the Claimant that he expected his solicitors to be representing him, after recently speaking to them (paragraph 10 of the determination). He was therefore taken by surprise at the non-appearance of his legal representation and had no opportunity to either obtain alternative legal representation or to conduct his own case after preparation. The adjudicator in the interests of justice should have considered whether in fact the Claimant was only aware of his position after arriving at court. There is no finding on this question which was necessary in deciding whether it was just to proceed in the circumstances.

1.i The difficulty of course being, that if the Claimant was taken by surprise he did not have the necessary time to adduce evidence to support his case such as medical evidence as to torture, proving his party did exist in the Congo, providing expert evidence as to whether members of the party would experience persecution in the Congo, whether there was a risk on return for failed Congolese asylum seekers, etc.

1.ii Furthermore on the information before her the adjudicator should have been alerted that the Claimant could have been telling the truth in relation to the fact he was expecting to be legally represented. As such she should have considered, and made a formal finding on the appropriateness of continuing the hearing in these circumstances, particularly as it is recorded that the Claimant expressed “some concern” as to his lack of legal representation (paragraph 11 of the determination).

1.iii In reality it appears that the hearing went straight ahead without the Claimant even being given time to attempt to prepare his own case, which he was unexpectedly conducting.

2

Again in the circumstances and given the situation of the Claimant, the adjudicator should have explained to the Claimant in the interests of a fair hearing the applications and choices he could make in the conduct of the hearing namely:

•

whether he requested an adjournment and the reasons for so doing, or did he want to continue (which would of course prevented any dispute as to whether he was offered an adjournment later).

•

whether he wished to give evidence or simply rely on the papers before the adjudicator

It appears that the adjudicator simply chose to continue without giving the Claimant any legal advice as to the proceedings, or indeed the options he had within those proceedings.”

In some respects these grounds overlap because ground 2 refers back to the circumstances referred to in ground 1. Paragraph 3 of the grounds makes an assertion of unfairness at the hearing which is similar to, but not the same as, that made in paragraph 8 of the grounds of appeal to the Tribunal. Paragraph 4 asserts that in paragraph 33 of the determination the Adjudicator made an error of law because her finding does not accord with a decision of the Tribunal in a different case, [2003] UKIAT 12 B (DR Congo), notified after the hearing before the Adjudicator. Grounds 5 and 6 focus on the decision of the Tribunal to refuse leave and assert that the significance of the points raised increase in the light if what has been discovered relating to the conduct of the solicitors who were originally instructed. Criticisms of that firm are listed in Ground 6 which is in the following terms:

“6

The significance of the points made increases in light of the allegations made in the statement of truth of Margaret Finch the Claimant’s present solicitor, for the Claimant points out his previous solicitors had;

•

failed to obtain a medical report on his behalf

•

failed to inform him that they were withdrawing legal representation, and even inviting him to an interview after the purported withdrawal (paragraph 5).

•

failed to check the accuracy of his statement (which remained unsigned-a fact not commented on by the adjudicator).

•

failed to properly inform him of the decision of the Immigration Appellate Authority (the letter sent predates the determination of the adjudicator!---see paragraph 8)

The Claimant again repeats the allegations that he had requested an adjournment but was refused by the adjudicator, and that he was not cross examined or asked questions about his time in prison.”

On the Claimant’s case the first point in paragraph 1.i of the grounds is inevitably correct because it naturally flows from the unexpected events he asserts took place. But the second point therein is not a natural consequence of the Claimant’s assertion because the necessary preparatory work to produce such evidence would have to have been done prior to the hearing date. On the Claimant’s case this prejudice would only exist if the legal representative he says he was expecting to come to represent him would have come with such evidence. That has not been asserted. Rather the criticisms that have been made of the solicitors who the Claimant says he was expecting to represent him, and who originally acted for him in the preparation of material for the hearing before the Adjudicator, indicate that no such further evidence would have been put before the Adjudicator on 19 March 2003 if a representative of that firm had attended to represent the Claimant in the circumstances that then existed. Whether those solicitors should have prepared such further evidence if they were expecting and intending to attend is a different point.

The Claimant would have known that he had not seen a doctor for a medical for the purposes of the proceedings. A report from a GP practice where the Claimant had registered has now been produced. The only pieces of background material put before this court but not before the Tribunal (and the Adjudicator) is a letter from UNCHR and the decision of the Tribunal in the case referred to in ground 4 of the detailed statement of grounds, namely [2003] UKIAT 12 B (DR Congo) both of which post date the hearing before the Adjudicator.

The report from the GP practice is dated 30 June 2003. The GP who wrote that report diagnosed the Claimant as having significant clinical depression. That diagnosis was made shortly after the Claimant registered with the relevant practice in December 2002. The report shows that there were further consultations which resulted in treatment for depression which the author of the report describes as chronic depression. However the author of the report does not mention any discussions he had had with the Claimant concerning the Claimant’s allegations that he was a victim of torture in DRC. The report, includes the following (with my emphasis):

“On 21.01.03, he consulted my GP colleague alleging that he had been a victim of torture in Congo. At the end of that particular consultation, he was referred to a hearing specialist for further investigation of the symptom of deafness in his right ear. He was seen by an ENT surgeon at Sandwell and West Birmingham Hospital Trust on 21.03.03. An audiogram showed a mixed hearing loss in both ears, as a result of which arrangements were to be made for him to be fitted with a hearing aid. The ENT consultant wrote in his letter to me that “he claims that it was because he was tortured in the prison, and that is why he is deaf. This fact I cannot though confirm.”

Since then, he has consulted me on 10.03.03 and 14.03.03. On both occasions I made a diagnosis of tension headache. In other words, these are headaches caused by stress and depression. His antidepressant dosage needed to be doubled to 100mg daily.

He consulted another of my colleagues on 09.05.03 again complaining of headaches and difficulty in concentration. He was informed that there was nothing more that could be offered in the way of treatment for this condition other than for him to continue the antidepressant medication. He well understands that the medical profession cannot cure psychological and social causes of bodily symptoms.

In conclusion, Mr Bosombanguwa continues to need maintenance and treatment for his chronic depression.”

In my view this, or a similar, report would have provided no real assistance to the Claimant in advancing his appeal before the Adjudicator.

The letter from UNCHR was written in respect of a different person and I was not taken to (and have not identified) anything in it that would have been of any particular assistance to the Claimant by, for example, adding to or contradicting the CIPU report that was before the Adjudicator.

Before me counsel for the Claimant made it clear that he was no longer relying on [2003] UKIAT 12 B (DR Congo). I add that paragraph 5 of the judgment therein records the agreement of the parties that in that case the decision of the Adjudicator in that case was unsustainable and goes on the identify that that Adjudicator failed properly to address the risk on return due (amongst other things) to the activities of the Appellant in that case in this country and that that Adjudicator appeared to have misread the objective material. No equivalent arguments were advanced in respect of the Claimant.

This is contained in the Immigration and Asylum Act 1999 Part IV and Schedule 4 (the 1999 Act). That Act was repealed and replaced by the Nationality Immigration and Asylum Act 2002 in respect of events which took place on or after 1 April 2003. Under the 1999 Act appeals were not limited to points of law and the need for leave to bring an appal before the Tribunal was found in the relevant Rules.

The Immigration and Asylum Appeals (Procedure Rules) 2003 (the 2003 Rules) came into force on 1 April 2003 and thus after the hearing before the Adjudicator. At the date of that hearing the earlier rules (the 2000 Rules) were operative, but the 2003 Rules had come into force before the determination of the Adjudicator was promulgated and the application for permission to appeal to the Tribunal was made.

This timing complicates matters. I add that although the Adjudicator’s determination states that it was prepared on 27 March 2003 it is dated 10 April 2003 and was promulgated on 17 April 2003. In my view it follows from that timetable that Rule 61(5) of the 2003 Rules did nor apply because the Adjudicator’s determination was not made before 1 April 2003. In any event it seems to me that nothing turns on this.

Adjournment of the hearing before an adjudicator is dealt with in Rule 31 of the 2000 Rules and Rule 40 of the 2003 Rules. They are in similar, although not identical, terms and by using the word “must” (as opposed to “shall”) Rule 40 of the 2003 Rules perhaps emphasises the mandatory nature of the provision.

In my view correctly it became common ground before me that Rule 31 was the relevant rule because it was in force at the time of the hearing before the Adjudicator and in her determination the Adjudicator records rather than reconsiders her approach to the grant of an adjournment

It follows that:

The most relevant Rules (with my emphases and comments) are:

The questions are whether this court should quash the decision of the Tribunal and if so whether it should remit the application for permission for reconsideration or direct that the appeal should be heard by the Tribunal.

This court has to consider whether the refusal of permission by the Tribunal is flawed applying public law principles. This involves a consideration of the approach taken by the Tribunal and its reasons for refusing permission by reference to the grounds of appeal put before it and the test it has to apply (see Rule 18(2) and (4) of the 2003 Rules – which mirror Rule 18(6) and (7) of the 2000 Rules). This, in turn, involves a consideration of the determination of the Adjudicator in the light of the test to be applied by the Tribunal in considering whether or not to give permission to appeal.

In my view in determining whether the Adjudicator erred both the Tribunal and this court have to consider the approach of the Adjudicator. To my mind the overriding objective in Rule 4 of the 2003 Rules cannot be introduced into that exercise on the basis that (a) the Adjudicator reconsidered the position on adjournment after the 2003 Rules came into force, or (b) it is in the Rules that the Tribunal had to apply, and which would govern an appeal before the Tribunal id permission was granted.

As to point (a), I accept that the determination indicates that when considering her decision the Adjudicator did not think that there had been any unfairness and thus for example that the Claimant should be given an opportunity to add matters. But in my view, (i) this does not amount to a reconsideration of the position on adjournment by reference to the new 2003 Rules, and (ii) the Adjudicator was under no duty to reconsider the approach she took at the hearing to the question of adjournment unless she identified any reason to do so in preparing her determination.

As to point (b) I accept that in deciding what relief to grant the Tribunal on a substantive the appeal could have regard to the overriding objective, but in my view whether the Adjudicator erred in respect of the grant of an adjournment falls to be judged by reference to the position as it existed before the Adjudicator at the hearing and thus on the 2000 Rules.

Accordingly in my view the reliance placed on the overriding objective in Rule 4 of the 2003 Rules by both parties was to some extent misplaced.

The reasons given by the Tribunal were as follows:

“REASONS FOR DECISION

The Tribunal has considered the grounds of appeal submitted in support of the application for leave to appeal, the Adjudicator’s determination and the documentary evidence.

Re First part of paragraph 1 of the grounds. It is not for the Adjudicator to foresee what voluminous evidence could have been submitted by the claimant. The claimant was not represented at the hearing because, as the Adjudicator said, his previous solicitors, Arden, had faxed a copy of their letter of 31 January stating that they would not be representing him and that they had advised him to represent himself in person.

Re second part of paragraph 1 of the grounds. It is claimed that the claimant requested an adjournment to seek alternative representation. It is his word against the Adjudicator’s. Nevertheless, it has not been said that he was prejudiced as a result of representing himself or that he did not receive a fair trial.

Challenges to paragraphs 20 – 23 of the determination are not well-founded as these paragraphs are citations from the respondent’s refusal letter and not findings of fact by the Adjudicator.

Obviously the Adjudicator could not have asked about the claimant’s ear problem if she did not know about it. Furthermore, in paragraph 30 of the determination, the Adjudicator noted that the claimant did not describe his experience during his second period of detention in a manner which would lead her to conclude that he had been detained in inhuman conditions. She found that his lack of detail as to how he was tortured, his lack of complaint about prison conditions and the unlikely explanation for how he was released caused her to find that the second period of detention did not occur as the claimant had described.

The Adjudicator gave full consideration to the objective evidence that was before her in reaching her conclusions. She also found that were he to be returned to the DRC as a failed asylum seeker he would not face adverse consequences upon his return on account of the objective material.

The Tribunal is of the view that the Adjudicator reached findings that were open to her in the light of the evidence before her. Her conclusions disclose no error of law.

Accordingly, an appeal has no real prospect of success were leave to be granted.”

In his observations when granting permission Richards J said:

“I am troubled about the conflict of evidence about the request for an adjournment; there may at the very least have been scope for a misunderstanding, which should not be held against the claimant. I am also troubled about the IAT observation that it had not been said that the claimant was prejudiced as a result of representing himself or that he did not receive a fair trial. Although the grounds of appeal did not make these points in terms, they were arguably implicit in some of the matters put forward. Taken together with the evidence concerning the very poor standard of advice and assistance given to the claimant by his former representatives, these matters cause me to think that the claim should arguably be looked at again.”

I respectfully agree with the observations of Richards J and it seems to me that they correctly reflect a two stage approach namely: (1) was a correct approach taken to the issue of an adjournment, and (2) did the Claimant suffer any prejudice, or was there not a just disposal of the appeal, because there was no adjournment. I return to the approach to be taken.

As I have already indicated the focus of this has changed between the grounds of appeal to the Tribunal and the grounds for judicial review and this has caused some complications. For example the Secretary of State submitted that on the Claimant’s version of events (namely that he sought an adjournment) the Claimant exercised one of the choices open to him (and which it is asserted should have been explained to him by the Adjudicator) and thus that no explanation or further explanation was necessary.

A problem as to this submission is, of course, that the Adjudicator does not record that the Claimant made an application for an adjournment which, as Richards J pointed out, founds the view that there was, or may have been, a misunderstanding if, as the Claimant asserts, he made, or thought he was making, an application for an adjournment.

On the basis of a misunderstanding the Claimant’s arguments that the Adjudicator ought to have given him an explanation of the choices open to him is triggered. Those arguments are also triggered on the basis of the Adjudicator’s understanding of the position as recorded in the determination.

If, as the Claimant asserts, he made an application for an adjournment his case is that the Adjudicator failed to deal with that application in her determination.

To my mind it is a little surprising that grounds 1 and 2 of the detailed grounds for judicial review do not, specifically, address this point namely that if, as the Claimant asserts, he made an application for an adjournment the Adjudicator erred in law in not dealing with it and thus necessarily by not giving reasons why that application was refused.

However, to my mind, this point is inherent in the grounds contained in the claim form and the point that the Claimant sought an adjournment, which is included in the grounds to the Tribunal. It is also raised in the Claimant’s skeleton argument on this application.

Further complications arise in respect of the impact of the criticisms made by the Claimant as to the conduct of the solicitors he originally instructed. As to that the Secretary of State points to, and relies on, the decision of the House of Lords in SSHD v Shahib Al-Mehdawi [1990] Imm AR 140 and [1990] 1 AC 876 that a person who had lost the opportunity to have his complaint heard through the default of his own advisers could not complain that he had been the victim of procedural impropriety or had been denied natural justice. I return to this point which gives rise to the argument that if the only real prejudice the Claimant could have pointed to was that his advisers had not prepared for the hearing properly that should not have founded an adjournment and should not found relief by way of judicial review.

I note that at the start of the Claimant’s skeleton argument the issue is stated to be whether the Tribunal properly addressed the claim in the grounds of appeal to itself that the Claimant was denied a fair hearing before the Adjudicator.

I agree that the overarching issue can be said to be whether the Claimant was deprived of a fair hearing. But in my view it has to be considered in stages.

In my view the first stage is to consider the following issues in the following order:

As appears later in my judgment issue (3) gives rise to further questions.

In my view looked at generally an important part of the background to the issues is that:

Further in my view the rule as to adjournments in the 2000 Rules is an indication of the public interest in the expeditious and fair disposal of applications for asylum and thus of appeals relating thereto. To my mind this public interest is one that involves the interests of the parties to the proceedings and the wider public interests relating to immigration policy, and it was not created or introduced by the overriding objective in the 2003 Rules. Rather, in my view, that overriding objective recognised, confirmed and expressed this existing public interest.

The Tribunal was considering whether to grant permission and therefore whether there were arguable points that the appeal had a real prospect of success or if there was some other compelling reason why the appeal should be heard (se Rule 18 (4)).

I have sympathy for the Tribunal having regard to the manner in which the grounds of appeal were presented but in my view it erred in law in two respects namely:

As to (a), in my view this is not an appropriate approach to a consideration of whether there is arguably such a dispute of fact particularly when, as Richards J points out, such dispute could be based on a misunderstanding.

Subject to such a dispute of fact being properly raised and supported, generally in my view at the permission stage the correct approach is to consider the alternatives. At that stage it is unlikely that such a dispute could be resolved and this was a further reason why I have not sought a record of the proceedings before the Adjudicator.

I pause however to make the general points that in my view (i) a person seeking permission to appeal based on an assertion of fact as to what happened at a hearing before an Adjudicator which is at odds with what is said in the determination should set out fully and clearly by direct evidence what he or she says happened to the best of his or her recollection, and (ii) when as here this is not done it is arguable that a Tribunal would be justified in refusing permission because of the lack of such evidence.

However here the Tribunal did not base its decision on a lack of evidence and in all the circumstances of this case I have concluded that notwithstanding the lack of evidence from the Claimant the Tribunal erred in not considering the alternatives.

As to point (b), although I can see why the Tribunal took the view it did, I have concluded that when they are read as a whole the grounds of appeal to the Tribunal do assert that the Claimant had been prejudiced as a result of representing himself, or that there had not been a fair trial. In particular the latter is asserted in paragraph 8 of those grounds..

This does not arise.

Judicial review is a discretionary remedy and in my view correctly neither side argued that if I was of the view that the Tribunal erred in its approach I should remit to enable it to reconsider the application for permission. Thus I was effectively invited to treat the application for permission as being before me and to decide it myself by applying the test set by the relevant Rules in the light of the statutory basis for an appeal (which is not limited to errors of law). In my judgment this gives rise to further questions, namely:

In all the circumstances of this case I have considered this question on the alternative bases that the Claimant did make an application for an adjournment and that he did not. Thus I have not rejected the Claimant’s assertion that he sought an adjournment because he has not supported that assertion by evidence. It was not argued that I should do so. This argument might be advanced in the future in similar cases by reference to my earlier general comments as to evidence, or otherwise.

I have therefore proceeded on the basis that the circumstances advanced by the Claimant precluded him from giving notice of any application for an adjournment. As to that I accept that further investigation might show that this was not the case because, for example, his solicitors had informed him that they would not be representing him. But I proceed on the assumption in favour of the Claimant that he was expecting his solicitors to attend and represent him. It seems to me that the Adjudicator would not have been able to decide this issue at the hearing on 19 March 2003 and probably therefore should have made that assumption.

Generally I accept the points made on behalf of the Secretary of State that it is for an Appellant before an Adjudicator to advance his or her case for an adjournment and thus, for example, to raise issues of prejudice to support it. It follows in my judgment that the duty to act fairly does not found a conclusion that generally an Adjudicator has to initiate an enquiry as to whether an Appellant is ready or whether there is a need for an adjournment.

Also I accept that a heavy burden and case load is placed on Adjudicators and their approach needs to be assessed in that light and in the light of the general points made above under the heading “Background to the issues”.

It follows that in my judgment the Determination should be read generously and thus for example when the Adjudicator says that she decided “to continue with the appeal” on the basis that that reflects her view that, in the light of the information before her, there could be a fair hearing.

However on the alternative that the Claimant did seek an adjournment in my judgment it is clearly arguable that in not dealing with that application expressly, and explaining why she rejected it, the Adjudicator erred in her approach. I reject the submission made that even if an application for an adjournment was made there was no need for the Adjudicator to give reasons for refusing it because the normal position under the Rules is that there should not be an adjournment (see for example R (Tofik) v IAT [2003] INLR 623 which was relied on by the Claimant). Further, if there was an application for an adjournment the Adjudicator misstates the position and this founds an argument that she erred in her approach.

Additionally and although I accept that the Adjudicator has no general duty to invite applications for adjournments I have concluded that it is arguable that in the circumstances of this case as presently known to me that the Adjudicator erred by not making further enquiries as to whether the Claimant had reasonably been expecting his solicitors to attend and what material they might be bringing (e.g. the result of any medical the Claimant had had or any reports sought on his behalf). In my view on the information before me whether the letter of 31 January 2003 stating that the solicitors were no longer acting for the Claimant was faxed before any exchanges between the Adjudicator, or as a result of the solicitors being contacted following exchanges before the Adjudicator, it is arguable that this should have prompted further enquiry and consideration of the question whether the hearing should proceed and that the Adjudicator erred in law by not pursuing that issue further.

I accept that further investigation might show that the sequence of events, and the approach taken at the hearing, have the result that the dispute as to whether the Claimant made an application for an adjournment, and the Adjudicator misstated the position because of a misunderstanding, or a failure of the Appellant to make himself clear, has no real weight. This is because those investigations may demonstrate that (i) the steps taken by the Adjudicator satisfied the requirements of fairness in all the circumstances, (ii) why she decided to go ahead and thus the reasons why she was of the view that there could be a fair hearing and (iii) her decision was within the range of discretionary decision open to the Adjudicator.

However further investigation may also show that the Adjudicator erred in her approach.

The answer to question (A) is therefore “yes”.

At this stage I have to consider (i) whether the appeal would have a real prospect of success, or (ii) whether there is some other compelling reason for it to be heard. This involves a consideration of the approach that should be taken by the Tribunal on an appeal.

What the Claimant seeks is a rehearing of his case on the merits.

An approach on the substantive appeal could be that if it is found that the Adjudicator erred in her approach to the grant of an adjournment there should be such a rehearing unless it could be said that no Adjudicator would properly have granted an adjournment in the circumstances of the case. In my judgment at this stage it cannot be said that no Adjudicator could properly have granted an adjournment.

But in my judgment this is not the correct test to determine whether a Tribunal hearing the substantive appeal should either remit for a rehearing by a different Adjudicator, or determine the appeal from the decision of the Secretary of State itself. I am of this view because:

In my judgment the correct approach is to ask whether the facts and matters now relied on by the Claimant show either (i) that an appeal to the Tribunal would have a real prospect of success in the sense that if his appeal against the decision of the Secretary of State is reheard on the merits (by a new Adjudicator or the Tribunal) there is a real prospect that it would succeed, or (ii) that there is some other compelling reason why the Tribunal should hear his appeal. I shall refer to these as the “Trigger Factors”.

The Claimant’s research and allegations as to the behaviour of the solicitors he asserts he was expecting to represent him amount to allegations of negligence and possibly worse of dishonesty.

Firstly this means that the Claimant cannot point to material that those solicitors had available at the time of the hearing that would have helped him. If he could have done this I would accept that it could well found an argument that his appeal would have a real prospect of success or ought to be heard.

Next it means that a major part of his case is that he asserts that he has been prejudiced by the negligence and conduct of those solicitors. In this context and to counter Al-Mehdawi the Claimant again relied on Tofik as an authority to the effect that an appellant is not necessarily fixed with his solicitor’s error (see paragraph 25). He also relied on R v SSHD ex parte Bugdaycay [1987] AC 514 in particular at 531G and R (Haile) v IAT [2002] INLR 283 in particular at paragraph 26 to support the submissions that the court should give anxious scrutiny to his case and that errors by his former solicitors can be taken into account in considering the fairness of the proceedings. The Defendant countered with E v SSHD [2004] EWCA Civ 49 and Maqsood v (1) The Special Adjudicator and (2) SSHD unreported CO/14/2001.

Al-Mehdawi was a case in which the Appellant did not appear at all. I accept that it is strongly arguable that it applies to, and rules out, the Claimant’s arguments based on the failure of the original solicitors to properly prepare his case and to attend to represent him. However, if that argument is right, in my view the Claimant’s arguments based on allegations as to the actual conduct of the hearing before the Adjudicator would survive albeit that in part they could be said to flow from the failure of the solicitors to attend.

In my judgment I do not have to resolve whether the Claimant’s arguments based on the alleged failures, negligence or improper conduct of his original solicitors are governed by Al-Mehdawi, whether that decision is qualified as Simon Brown LJ suggests might be the case in Haile at paragraph 26 or whether Haile does not lay down any general principle in accordance with the view of the Court of Appeal in E at paragraph 83. This is because in my view if Al-Mehdawi does govern those arguments it is well established that the requirements of fairness are governed by the facts of a case (see R v SSHD ex parte Doody [1994] 1 AC 531 at 560D and SSHD v Maheshwaran [2002] EWCA Civ 173 paragraph 6) and in my judgment the Claimant has failed on the facts to establish any unfairness or prejudice flowing from the assertions that his original solicitors failed to prepare and conduct his case properly, to keep him properly informed or to appear to represent him.

As to this conclusion, the Claimant has now had more than ample opportunity (i) to demonstrate that his assertions against his original solicitors resulted in him being deprived of a medical report or other material that would have assisted him before the Adjudicator, or would assist him on a reconsideration of the merits, and thus (ii) to identify all or part of the voluminous evidence that it was asserted in his grounds of appeal to the Tribunal could have been submitted by him. As I have already pointed out he has failed to do so. Thus the Claimant has not identified any unfairness or prejudice on the basis that such material could have been produced if his original solicitor had acted differently and, as he asserts, more efficiently. As I have pointed out it is clear that such solicitors did not have such material at the time of the hearing.

Essentially that leaves the allegations that (i) the original solicitor failed to check the accuracy of the Claimant’s statement, (ii) that he was not allowed to elaborate on his ill treatment (see paragraph 8 of his grounds of appeal to the Tribunal), (iii) that the Adjudicator should have specifically raised with him the lack of detail as to his ill treatment and prison conditions if, as she did, she was going to rely on this in reaching her findings on credibility (see paragraph 3 of the detailed statement of grounds attached to the claim form), and (iv) the linked general point that surprise as to the non-attendance of his solicitors and lack of representation hampered the Claimant in properly advancing his case.

As to the first of those points it is not relied on by the Adjudicator and it was not argued that it caused any specific prejudice or unfairness.

The second and third points are not elaborated on in evidence and the third point is a general one. They have been directed to the Adjudicator’s conclusions on credibility and the Claimant’s ill treatment.

I accept that as the Adjudicator decided to continue with the hearing she should have given every assistance which she properly could to the Claimant (see the last two sentences of paragraph 6 of the Surendran guidelines set out in MNM v SSHD [2000] INLR 576 at 584/6). But in my view the assertions made by the Claimant fall well short of establishing either (i) that the Adjudicator did not do this, or (ii) that he suffered unfairness or prejudice by being unrepresented.

In this context I have considered and applied paragraphs 1 to 6 of the judgment in Maheshwaran and have concluded that in all the circumstances of this case the Claimant had ample opportunity to give details of any ill treatment or torture or prison conditions he alleges he suffered in his interview, his statement and orally when he was cross examined and by amplification of his evidence when, as he accepts, he was asked if he wished to add anything further. In my view such details are the type of information that he would be expected to give and could easily give as an unrepresented person both on his claim for asylum on arrival in this country, and thus during his interview, and in response to the decision of the Secretary of State, and thus on his appeal to the Adjudicator. In my view if as the Claimant alleges the Adjudicator did not raise the lack of such details expressly with him (and it was not put in cross examination) this did not give rise to unfairness.

It follows that in my judgment these allegations do not found a conclusion that the Claimant suffered unfairness or prejudice as a result of the hearing going ahead on 19 March 2003, or any real prospect that his appeal could succeed in the sense set out in the first of the Trigger Grounds.

I have considered the second Trigger Ground separately having regard in particular to the last sentence of the observations of Richards J (cited above). However (and on the basis that the Adjudicator erred in her approach to continuing the hearing and the Tribunal erred in its approach) I have concluded that on consideration of all the circumstances advanced by the Claimant this Trigger Ground is not satisfied because for the reasons I have given in my view the conduct of the original solicitors did not result in unfairness or prejudice to the Claimant before the Adjudicator.

For the reasons I have given this application for judicial review is dismissed.