R (on the application of M) v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 19 December 2003 |
| Neutral Citation | [2003] EWHC 3174 (Admin) |
| Docket Number | CO/1422/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2003 |
[2003] EWHC 3174 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Andrew Nicol QC sitting as a Deputy Judge of the High Court
CO/1422/2003
Louise Hooper (instructed by James and Co) for the Claimant
Jonathan Auburn (instructed by Treasury Solicitor) for the Interested party
Mahmud Mamedov seeks judicial review of a decision of the Immigration Appeal Tribunal of 13 th December 2002 to refuse him leave to appeal from the determination of an adjudicator who had dismissed his asylum and human rights appeals. Mr. Mamedov had not been present at the hearing of the appeal by the adjudicator because, he says, he was unaware of when the appeal was due to take place. The issue in this case is whether the Tribunal's refusal of leave ought to be quashed.
Mr. Mamedov and his family arrived in the UK on 25 th March 2002 and he claimed asylum three days later. In very brief terms, he is an Azerbaijani national. His wife is Armenian. He alleges that he and his wife would suffer persecution in Azerbaijan because of her national origins. In April he instructed a firm of solicitors, who are not those who act for him in these proceedings and whom I shall refer to as D and Co, to assist him. His application was refused by the Secretary of State for the Home Department on 16 th May 200Mr. Mamedov had a right of appeal to an adjudicator on the ground that his removal would allegedly be contrary to the UK's obligations under the Refugee Convention (Immigration and Asylum Act 1999 s.69(5)). Shortly after he received the Secretary of State's refusal he submitted a notice of appeal. His grounds of appeal also alleged that that his removal would be a violation of his rights under Article 3 of the European Convention on Human Rights. Section 74 of the 1999 Act therefore required the adjudicator to consider this matter as well.
At the time that the notice of appeal was drafted, Mr Mamedov was living at Pembury Hotel, 328 Seven Sisters Road, Finsbury Park London N42AP and this was the address which was given on that form. However, Mr Mamedov told D and Co that he was due to be dispersed by the National Asylum Support Service to Bradford. At that stage he did not know the precise address. He was sent to Bradford by NASS on 23 rd May 2002 and on 24 th May 2002, his housing provider faxed D and Co with the details of his new address in Bradford. On the same day the solicitors passed on the details of his new address to the Change of Address Team at the Immigration and Nationality Directorate, the Appeals Support Section of the Home Office and the Immigration Service. They did not write to the Immigration Appellate Authority (‘IAA’). It is reasonable to suppose that this was because the Immigration and Asylum Appeals (Procedure) Rules SI 2000 No. 2333 (‘the Procedure Rules’) require the notice of appeal to be sent to the immigration authorities (i.e. the respondent to the appeal) rather than the IAA (see r.8(1)). The 2000 Rules have now been replaced by the Immigration and Asylum Appeals (Procedure) Rules 2003, but the 2000 Rules are the ones material to this case. Until the respondent forwards the appeal bundle to the IAA there is no administrative system for noting changes of address. This phenomenon has been referred to by other solicitors acting for asylum appellants (see for instance R (on the application of Hasa) v Secretary of State for the Home Department [2003] EWHC 396 Admin at paragraphs 13–14).
Mr Mamedov telephoned his solicitors about once a month during the summer but they had nothing to report.
On14th August 2002 the IAA sent a notice of hearing to D. and Co. This was copied to Mr. Mamedov at the Pembury Hotel. The letter to Mr. Mamedov was later returned to the IAA by the Post Office. Nonetheless, there is no doubt that the service of the notice of hearing was sufficient to comply with the Procedure Rules. There are two reasons for this. In the first place r.13 provides:
‘Notice of the date, time and place fixed for the hearing … shall be served on the appellant or his representative (if he has one)’.
Thus service on D and Co, as Mr Mamedov's representative, was a sufficient alternative to service on him. Secondly, r.47(2) provides:
‘Until a party gives notice to the appellate authority that his address for service has changed, any document served on him at the most recent address he has given to the authority shall be deemed to have been properly served on him.’
The ‘most recent address’ which the IAA had for Mr. Mamedov was the Pembury Hotel.
There is no dispute that D and Co received notice of the hearing. On 16 th August 2002 they returned the standard form reply. They confirmed that the appeal was ready to proceed. They said that they expected to call two witnesses (including the appellant) and they requested an Azerbaijani interpreter. They also gave Mr. Mamedov's Bradford address.
Mysteriously, by a letter of the same date, D and Co also wrote to the IAA to say that ‘following the arrival of our client's dependants he has been offered new temporary accommodation’ and then gave the address of the Pembury Hotel in Finsbury Park. This is mysterious because the Claimant had arrived in the UK with his family in March 2002, the Claimant had not moved from his Bradford address and there is no reference in any of the papers to the Claimant having told D and Co that he had been offered accommodation once more in the Pembury Hotel.
The Claimant's evidence before this Court is that his solicitors did not tell him of the hearing on 14 th October 2002 until he happened to speak to them on that day and by then it was presumably too late for him to travel from Bradford to the hearing centre in Feltham. In due course the Claimant complained to the Office of the Immigration Service Commissioner about the solicitors’ failure to notify him of the time and place of the appeal hearing. That Office referred the matter to the Office for the Supervision of Solicitors (‘OSS’). D and Co told the OSS that they had given him notice of the hearing date: in a telephone call on 15 th August and by a letter dated 19 th August. They produced to the OSS two documents which on their face supported their account. The first is a telephone attendance note of 15 th August 2002 which says:
‘We told client that he will not need to attend the first hearing if he can instruct us to reply to the notice. Client asked when the hearing was. We told him that the first hearing was on 5/09 and the full hearing was on 14/10/02 and we promised to send him the full details as soon as we have sent the reply. Client said that it is OK for us to proceed and represent.’
The second document is a copy letter from D and Co to the Claimant of 19 th August 2002. This said:
‘Further to our telephone conversation of 15 th August 2002, we are writing to confirm that we have received the notice of your first hearing and full hearing scheduled for Thursday 5 th September 2002 and 14 th October 2002 respectively. Please note that you do not have to attend the first hearing. However, you must attend the full hearing listed for Monday 14th October 2002 at York House, 2/3 Dukes Green, Feltham, Middlesex TW14… [emphasis in the original]’.
It is the Claimant's case that he did not have the telephone conversation recorded in the attendance note and never received the letter of 19 th August. He believes that both have been fabricated. I shall return to this matter in due course.
The first hearing to which reference has been made is only effective if no reply is sent to the IAA in response to the notice of hearing. Since a reply was submitted, the first hearing date was of no consequence.
D and Co had instructed counsel to attend the hearing of 14 th October 2002 on Mr Mamedov's behalf. She arrived at court at 9.00am in order to confer with the Claimant before the hearing. When he had not arrived she telephoned the solicitors who told her that they had been unable to contact him by telephone, but confirmed to her that they had sent him a letter informing him of the date and venue. She says ‘Those instructing could not assist as to why the Appellant had failed to attend as he had not informed them of any such reason and they were unable to contact him on the day of the hearing.’ An application to adjourn in these circumstances would have been hopeless. The Adjudicator said that as she did not have any instructions as to why the Claimant had failed to attend, he would proceed in his absence, but he agreed to hear her submissions rather than decide the appeal purely on the papers.
In response to the OSS's investigation, D and Co also produced a letter dated 17 th October 2002 to the IAA. In summary this said that the Claimant's non-attendance was out of character, that the notice of hearing had been sent to the appellant's old address (although the Home Office and IAA had been informed of his new address) and that it had not been possible to contact the Claimant by telephone. The solicitors asked for the matter to be remitted for a fresh hearing so that the Claimant's oral evidence could be heard. Inquiries on behalf of the Secretary of State established, however, that there is no record of a letter dated 17 th October 2002 having been received by the IAA either at or shortly after that date or at all. In these circumstances, the Claimant cannot make good the complaint that the letter was not put before the adjudicator in advance of him finalising his...
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