R (Sajid Maqsood) v Special adjudicator and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 03 December 2001 |
| Neutral Citation | [2001] EWHC 1003 (Admin) |
| Docket Number | Case No: CO/14/2001 |
| Date | 03 December 2001 |
| Court | Queen's Bench Division (Administrative Court) |
[2001] EWHC 1003 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
Mr Justice Stanley Burnton
Case No: CO/14/2001
Parveen Mansoor (instructed by Z Ali Dhanji) for the Claimant
Elisabeth Laing (instructed by the Treasury Solicitor) for the Defendant
In these proceedings, the Claimant seeks judicial review of:
(a) the decision of a Special Adjudicator dated 6 October 2000 to dismiss his asylum appeal and to uphold the certification of his claim by the Secretary of State for the Home Department;
(b) the decision of the Secretary of State to refuse to refer his claim for asylum back to the Special Adjudicator under Section 21 of the Immigration Act 1971, and to set removal directions for the Claimant for India for the 4 January 2001.
The claim arises because on the day fixed for the hearing of his appeal to the Special Adjudicator, 6 October 2000, the Claimant and a representative of his solicitors together with a witness appeared for the hearing of his appeal at Birmingham Court instead of at the Nottingham Hearing Centre where the appeal was due to take place. When the matter came before the Special Adjudicator in Nottingham, there was no explanation for the failure of the Claimant to appear. The Special Adjudicator proceeding with the hearing of the appeal. His decision dismissing the appeal was promulgated on 14 December 2000.
Essentially, the Claimant contends that his failure to attend the hearing at Nottingham on 6 October 2000 occurred without fault on his part or that of his solicitors and that fairness requires that the decision made in his absence should be set aside and his claim reheard.
Miss Mansoor on behalf of the Claimant was unable to pursue the claim for judicial review of the decision of the Secretary of State under section 21 of the 1971 Act, since at the times relevant to this case that section had been repealed. This claim was manifestly unfounded.
The Facts
The Claimant made a clandestine entry into the United Kingdom in April 1999. He surrendered to the police in Leicester on 10 May 1999 and claimed asylum. At all times material to these proceedings, the Claimant was represented by a firm of solicitors, Z Ali Dhanji of Leicester, whose practice includes a substantial amount of immigration work. The Secretary of State rejected the Claimant's asylum claim by letter dated 10 April 2000. His solicitors served notice of appeal against the decision of the Secretary of State on 5 May 2000. The hearing of his appeal was first fixed for 6 September 2000. On 31 August 2000, the Claimant's solicitors wrote to the Appellate Authority claiming that documents essential to the Claimant's case were awaited from Pakistan, and requesting an adjournment for the hearing. Not surprisingly, given the time that had elapsed since the decision of the Secretary of State, the adjournment was refused. By 6 September 2000, the Claimant's solicitors had not complied with any of the directions given by the Appellate Authority for the hearing of his appeal. On that date, the Claimant did not appear, but a representative of his solicitors did. A sick note was produced stating that the claimant was undergoing urgent medical tests and that he was unlikely to be fit to attend the hearing. As a result the hearing of the appeal was adjourned.
On 22 September 2000 a notice of adjourned hearing was sent out by the Appellate Authority. It identified as addressees the Claimant, his solicitors, and the Home Office Presenting Officers' Unit, and included the correct addresses of the Claimant and of his solicitors. It gave notice that the hearing on 6 October 2000 had been adjourned, and the appeal would be heard on Friday 6 October 2000, at 10 am, at the Nottingham Hearing Centre. The reference to the original hearing of 6 October 2000 was an obvious and irrelevant error for 6 September 2000. The notice of adjourned hearing was received by the Home Office Presenting Officers' Unit; a Presenting Officer attended the hearing, and had with him the Presenting Officers' Unit's copy of the notice. Both the Claimant and his solicitors deny receiving a copy of the notice.
The Claimant's case is that he attended at Birmingham Hearing Centre as a result of a telephone call to his solicitors from "Graham" of "Appeals Section, Birmingham Court" informing them that the hearing would take place on that date. That telephone call is evidenced by a brief attendance note. The note does not refer to the venue for the hearing, and the Claimant contends that, since the hearing on 6 September 2000 had been at Birmingham, he and his solicitors were entitled to assume that the adjourned hearing would also take place there. On 4 October 2000, the Claimant's solicitors sent copies of the appeal bundle to the Home Office Presenting Officer in Birmingham and to the Court Centre in Birmingham.
As mentioned above, on 6 October 2000, the Claimant attended at Birmingham Hearing Centre. He was accompanied by Miss Fauzia Zafar, who was then a relatively inexperienced trainee solicitor. The solicitor dealing with the appeal was Mr Raphael Osili. He was due to represent the Claimant, but he telephoned Miss Zafar, and told her that he would be late. He asked her to find out in which court the matter was listed and to tell the Home Office Presenting Officer he was running late. Miss Zafar went to the court reception where Ms Emma Livingston, an Administrative Officer, checked on the computer and informed her that the hearing was at Nottingham Hearing Centre, and not at Birmingham. Ms Livingston told Miss Zafar that the Office Manager would speak to her. A few minutes later, the Office Manager, Ms Cross, did come to Miss Zafar. Miss Zafar explained the situation. According to Miss Zafar, the Office Manager at Birmingham said that she would telephone Nottingham to inform them that the Claimant and his representative were at the wrong court. Miss Zafar telephoned Mr Osili and told him what had happened. He told her that in the circumstances he would not come to court. According to her statement, Miss Zafar checked the file and found that there was no written notice of the adjourned hearing. She asked the Claimant if he had received any correspondence concerning the change of venue, and he said he had not. According to Miss Zafar, about half an hour later the Office Manager returned and said she had tried calling Nottingham but had been unable to get through. She said that the court had recently set up there and there was no direct line for the Immigration Appellate Authority. She said she would keep on trying.
After over an hour, the Office Manager had not returned, and so Miss Zafar asked Ms Livingston to call the Office Manager again. Miss Zafar was told to continue to wait. Eventually, at around 12.45 pm, the Office Manager returned and said that she had been unable to get through to Nottingham but would keep on trying. According to Miss Zafar, she said that as they had attended the wrong court the matter would be adjourned. The Office Manager told Miss Zafar and the Claimant that they could go, as there was no point in waiting. They say that she had made a note "and would call us to let us know".
During 6 October 2000 Miss Zafar made an attendance note which reads as follows:
"Emma reception – wrong court should be Nottingham.
Advise client.
Called Raphael Osili – stay at court – he's not attending.
Court Manager —will call Nottingham.
Not yet through —Will try again
Called office to let them know
Court Manager returned.
Not get through matter would be adjourned. She will make a note + will get back to us.
Advised client."
On her return to the office, Miss Zafar handed the file to Mr Osili. She then ceased to have any responsibility for the matter.
When the appeal came up for hearing on 6 October 2000, neither the Special Adjudicator nor the Home Office presenting officer knew that the Claimant had gone to Birmingham Hearing Centre. Paragraphs 7 to 9 of the Special Adjudicator's determination are as follows:
"7. On the 22 September 2000 further hearing notices were forwarded by the Immigration Appellate Authority in Birmingham to the Appellant, his solicitors and the Home Office informing them that the adjourned hearing would take place on 6 October 2000 and 10 am at the Nottingham Hearing Centre of the Appellate Authority.
8. On the 6 October 2000 I sat as a Special Adjudicator in Nottingham and this case was in my list. However neither the appellant nor anyone representing him attended, only the Home Office presenting officer Ms L Trench. I recounted the history of the matter as set out above and Ms Trench then requested me to determine the appeal 'on the papers' and to dismiss the same and also to uphold the Respondents certificate for the reasons set out in the above mentioned refusal letter.
9. I referred to the new Immigration and Asylum Appeals (Procedure) Rules 2000 which came into affect on 2 October 2000 and in particular I duly noted paragraphs 32, 33, 41 and 43. It was clear to me that there was no explanation whatsoever for the absence of the Appellant and his solicitors at the adjourned hearing, nor had they complied with the original directions issued with the first hearing notices referred to above and I accordingly ruled that in such circumstances it was mandatory for me to proceed with the hearing in their absence and to determine the appeal on the basis of the evidence before me i.e. the documentation in the...
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