FP (Iran) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Arden,Lord Justice Wall |
| Judgment Date | 23 January 2007 |
| Neutral Citation | [2007] EWCA Civ 13 |
| Docket Number | Case Nos: C5/2005/2634 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2007 |
[2007] EWCA Civ 13
Lord Justice Sedley
Lady Justice Arden and
Lord Justice Wall
Case Nos: C5/2005/2634
C5/2005/2036
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEALS FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
NO.AS/05728/2004
NO.HX/54826/2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R Drabble QC & Mr P Richmond (instructed by Clore & Co Solicitors) for the Appellant
Ms S Chan (instructed by The Treasury Solicitor) for the Respondent
Mr R Drabble QC & Mr G Denholm (instructed by Tyndallwoods Solicitors) for the Appellant
Ms S Chan (instructed by The Treasury Solicitor) for the Respondent
The issue
These two appeals raise the same question: what, if anything, can be done where an appellant's lawyers have failed to notify the Asylum and Immigration Tribunal of a change of his or her address, with the result that the appellant knows nothing of the hearing and the appeal is determined against him or her?
The facts: P's case
P, an Iranian asylum-seeker, was represented by Punatar and Co solicitors. Her initial, unsuccessful, appeal against the Home Office's rejection of her claim was held by the AIT to have been vitiated by an error of law. On 29 April 2005 they therefore adjourned the appeal to a senior immigration judge, Ms Deborah Taylor, for a full rehearing. It was scheduled for 3 October 2005.
Notice of the rehearing was sent out by the AIT to the last known address which they had on record for P, which was in Bury. She had, however, been moved by NASS (the National Asylum Support Service) in March 2004 to an address in Manchester. She had informed her solicitors of this. They had in turn informed the Home Office, but by an oversight they had not informed the AIT.
The notice of hearing never reached P. In her absence, the immigration judge said this:
6. There was no appearance by the Appellant. I am satisfied that she was correctly served with notice of hearing at her last known address. Furthermore, prior to the hearing, the court received a letter from the Appellant's representatives Punatar and Company Solicitors stating that they had closed their immigration department. They had written to the Appellant at her last known address and the letter had been returned to them. They had no further instructions and asked that their firm's name be removed from the court record as acting. A check was made with the solicitors that the address which the court had was the same one as that held by the solicitors. The notice of hearing had also been returned.
7. Paragraph 56 of the Asylum and Immigration Tribunal Procedure Rules 2005 states that every party must notify the Tribunal in writing of a postal address at which documents may be served on him and of any changes to that address. Until a party notifies the Tribunal of a change of address any documents served on him at the most recent address which he has notified to the Tribunal shall be deemed to have been properly served on him.
8. Under paragraph 19 (1) of the same Rules the Tribunal must hear an appeal in the absence of a party or his representative if satisfied that the party has been given notice of the time date and place of the hearing and has given no satisfactory explanation for his absence.
Although the Home Office had the Manchester address on file, it is an unfortunate fact that its presenting officer did not bring it to the immigration judge's attention and that she in turn did not ask him what current address the Home Office had on file. There is no reason to attribute these omissions to anything other than inadvertence, but they show how slender the margin of error was.
It is also material to note how the error came to be made by Punatar and Co. P's case was part of the workload of a trainee solicitor, Elizabeth Norman. When she left them, on 27 May 2005, to continue her traineeship at Clore and Co (where she again represents P), she was responsible for 392 asylum and immigration cases. As she now candidly and apologetically admits in a witness statement, the failure to notify the AIT, along with the Home Office, of P's change of address was an oversight on her part. Punatar and Co closed their immigration department four days after Ms Norman left them, leaving no firm on the record for P.
With the increasing pressure exerted by legal aid cuts on high street solicitors' firms, situations like this are not unusual today. It is inevitable that errors of the kind with which we are concerned will be made from time to time, even by competent and conscientious trainee solicitors such as I have no doubt Ms Norman is.
The immigration judge proceeded accordingly to rehear the appeal. Among her reasons for dismissing it was an apparent inconsistency in P's written testimony, as to which the immigration judge said (§13):
The appellant has put forward no explanation for the discrepancy in her written evidence and was not present in court today to answer the points made by [the HOPO].
Later she reminded herself (§19) that the burden of proof, albeit modest, lay upon the appellant, and continued:
She has chosen not to keep in touch with her legal representative nor to have informed the court of any change of address. These are not the actions of a person who is genuinely interested in pursuing her appeal.
It is in the nature of the kind of error with which we are concerned that the appellant will not learn about it until it is too late: either, as happened here, when the adverse decision reaches the appellant by a roundabout route (it was returned from Bury to the Home Office, who redirected it to the Manchester address), or when immigration officers arrive to remove her from the United Kingdom. It is without doubt for this reason that the senior immigration judge, Dr Hugo Storey, before whom the eventual application for permission to appeal to this court came, wrote:
As these well-drafted grounds accept, the application is out of time and there is no discretion on the part of the Tribunal to extend time.
Had the application been in time I would have granted permission to appeal. There is an arguable case that the applicant's former representatives negligently misrepresented her address details. Furthermore, the SIJ's observations at para 19 seem to indicate that attendance by the applicant may have resulted in a different approach being taken to the issue of credibility. Whilst the SIJ cannot be criticised for assuming the applicant had been notified, there may arguably have been an error of process in this case amounting to a material error of law.
An appellant's notice was eventually able to be filed by new solicitors on 22 November 2005. Moses LJ's grant of permission to appeal on sight of the papers carried an implicit enlargement of time. Subsequently, as the facts crystallised, permission was given to amend the grounds.
The facts: B's case
B is a Libyan whose appeal against the Home Office's rejection of his asylum claim was initially dismissed by an adjudicator, Mrs A.K. Simpson, in December 2003, both on refugee grounds and, more marginally, on human rights grounds. Her decision was, however, set aside by the IAT in November 2004 because of a material error of law, and was remitted for rehearing by a different Tribunal. It accordingly came before an immigration judge, Mr P.R. de Haney, on 15 July 2005.
B was represented by Noden and Co from 2 October 2003 until they were closed by a Law Society intervention in February 2006. He has since been represented by Tyndallwoods. Like P, he had been first accommodated by NASS in Bury, but in March 2004 had been moved, like her, to Manchester. He asserts that he told Noden and Co of the move. If he did, they failed to inform either the AIT or the Home Office, and themselves continued to write to B at the Bury address, as of course did the AIT. Assuming these to have been the facts, it is fair to assume that B would have attended the rehearing of his appeal had he known about it, and would have taken steps to secure continued representation.
Noden and Co were sent notice of the hearing but asserted later that they had not received it. At the allotted time, the immigration judge, as he recorded in his determination, had Noden and Co contacted by telephone. Only an answering machine seems to have responded, and the message left on it produced no return call or appearance. The hearing therefore proceeded in the absence of B and his representatives.
In finding against B, the immigration judge said:
8. The Appellant failed to attend today despite the Respondents having challenged his credibility and the obvious and numerous discrepancies between his two accounts. I find that this failure to attend serves to underline the fact that this Appellant's credibility is so fundamentally flawed that the discrepancies and quantity of unmitigated lies which he has told cannot be resolved no matter what amount of further evidence could have been supplied.
Dr Storey on behalf of the AIT refused permission to appeal in terms less sympathetic than those he used in P's case – understandably so, given the performance of Noden and Co. An appellant's notice having been lodged on 12 September 2005, however, Keene LJ granted permission to appeal on sight of the papers. In this case, as in P's, permission was given to amend the grounds as the facts became clearer.
The Rules
The material empowering provision under which the Lord...
To continue reading
Request your trial
-
Mansur (Immigration adviser's failings: Article 8) Bangladesh
...advisers 24 I turn to the actions of the appellant's immigration advisers, IWP. Mr Turner sought to rely upon FP (Iran) & Another v Secretary of State for the Home Department [2007] EWCA Civ 13. But that case is far removed from the circumstances of the present one. FP (Iran) concerned two......
-
R Petrovics v The Judicial Authority of Hungary
...v District Court of Legunica, Poland [2012] 1 WLR 1604 at [37]; and; secondly, a decision of the Court of Appeal, FP (Iran) v the Secretary of State for the Home Department [2007] EWCA Civ 13. 11 In my view, neither of those authorities require this matter to be reconsidered, certainly at t......
-
SL (Vietnam) v Secretary of State for the Home Department
...now been clarified, the appellant should not have been fixed with responsibility for the failure of his lawyers: see FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 at paragraph 46. Therefore, the application for leave to appeal out of time was refused on an incorr......
-
Moronokeji Dolapo Komolafe v Secretary of State for the Home Department
...on 25 August 2015. It is submitted that it appears that the applicant received bad advice and, applying the case of FP (Iran) v SSHD [2007] EWCA Civ 13, they should not be found against her. 3 As I observed during the course of Mr Turner's oral submissions, there was no evidence whatsoever ......