R SERGEY MIRONENKO v IMMIGRATION APPEAL TRIBUNAL Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 05 March 2003 |
| Neutral Citation | [2003] EWHC 845 (Admin) |
| Docket Number | CO/5153/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2003 |
[2003] EWHC 845 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Silber
CO/5153/2002
Claimant Appeared In Person
Miss K Stern (instructed By Treasury Solicitor) Appeared On Behalf Of The Interested Party
Sergey Mironenko, the claimant, seeks to challenge a decision of the Immigration Appeal Tribunal dated 19 August 2002 which refused him permission to appeal against a decision of the Special Adjudicator. That decision of the Special Adjudicator dismissed the claimant's appeal against the decision of the Secretary of State for the Home Department to give removal directions in his case consequent upon his refusal of a claim for asylum. Crane J refused permission on a paper application and so this is a renewed application for permission.
The claimant has appeared in person, but he has been assisted by an interpreter, although I should add that Mr Mironenko's English is very good and he has been able to address me fluently, forcefully and impressively in English.
Before dealing with the facts I must deal with two important matters. The first is one serious complaint, which the claimant has made which is that the Special Adjudicator may have been corrupt. No evidence whatsoever has been put forward in support of that and I totally reject that complaint as misconceived. The second is to explain the basis of the Adjudicator's decision. In paragraph 24 of his determination, the Special Adjudicator found the claimant's claim for asylum was "totally frivolous, incredible and fabricated … riddled with implausibilities". I now turn to the facts.
The claimant was born on 18 January 1952. In 1997 he came to the United Kingdom on a visitor's visa, but he returned to Moscow. On 6 September 1999 he came to the United Kingdom from the United States of America on a visitor's visa, having arrived in the United Kingdom on 23 July 1999 before visiting the United States on 5 August 1999. On 25 February 2000 he applied for a student's visa, but that was refused on 5 April 2000. On 2 May 2000 the claimant applied for asylum. That application was refused and on 8 July 2002 the Adjudicator dismissed the claimant's appeal against that refusal. On 19 August 2002 the Immigration Appeal Tribunal refused leave to appeal and it is that decision which is the subject matter of the present application. The claimant then issued the present judicial review proceedings, but on 23 January 2003, Crane J refused permission on paper.
The claimant has made a number of complaints about the way in which his appeal has been conducted both in front of the Special Adjudicator and of the Immigration Appeal Tribunal. He first contends that the Immigration Appeal Tribunal did not consider both his handwritten grounds of appeal and the grounds of appeal, which were drafted by the claimant's solicitors. The Immigration Appeal Tribunal have confirmed that they did not receive the grounds of appeal drafted by the claimant's solicitors until 10 September 2002; therefore they did not consider those grounds when they refused leave to appeal on 19 August 2002. What I have to consider is what the Immigration Appeal Tribunal was obliged to consider when determining whether the claimant should have received leave to appeal the Special Adjudicator's decision.
Order 18, Rule 6 of the Immigration Asylum Appeals (Procedure) Rules 2000 provides that:
"The Tribunal shall not be required to consider any grounds other than those included in that application."
It is said by Miss Stern on behalf of the Secretary of State that the Rule is quite clear and that it precludes the claimant complaining about the Immigration Appeal Tribunal's failure to consider his solicitors grounds of appeal, even if they had been received by the Immigration Appeal Tribunal before it determined his appeal in August 2002.
The effect of Rule 18(6) was considered and explained by Ouseley J in R(on the application of Nuredini) v Immigration Appeal Tribunal [2002] EWHC 1582 where he said that:
"37. Rule 18(6) is to my mind intended to relieve the IAT of the obligation to consider grounds not raised in the notice of appeal and to restrict the scope of the obligation identified in Robinson v Secretary of State for the Home Department [1998] QB 99.
"38. Rule 18(6) does not prevent the Immigration Appeal Tribunal from identifying and giving effect to some points of appeal omitted by an appellant. It is necessary that such a power should exist in the interests of justice in that particular jurisdiction. However, language used in Rule 18(6) prevents objection being taken to an absence of consideration of grounds, or to refusal to consider grounds, rather than enabling objection to be raised to an absence of such consideration.
"39. Where a power has not been exercised, whether because the decision not to consider the grounds not raised, or because of an omission to consider whether to exercise such a power, that decision or omission does not and cannot of itself constitute an error of law. To hold otherwise would be inconsistent with the restrictions set out in Rule 18(6)."
I respectfully agree with that analysis, from which it follows that the Immigration Appeal Tribunal cannot be faulted for only considering the grounds included in the claimant's application.
The second complaint that is made is that the Immigration Appeal Tribunal failed or refused to review its decision to refuse leave to appeal. By Rule 19(1) of the Immigration Asylum Appeals (Procedure) Rules 2000, it is provided that —
"Where the Tribunal has refused an application for leave to appeal, the appellant may apply to the Tribunal to review its procedure on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal."
It is important to bear in mind the circumstances in which such an application can be made because Rule 19(2) provides that:
"An application under paragraph 1 shall —
(a) be made no later than 10 days after written notice of the decision refusing leave to appeal was received by the appellant;
(b) be in writing;
(c) identify all matters relied on; and
(d) be accompanied by copies of all relevant documents."
Thus there is a mandatory requirement that the application has to be made no later than 10 days after receipt by a claimant of written notice of the decision refusing leave to appeal. In this case, that period started to run on 19 August 2002, but it was only on 9 September 2002 that the application for a review was made. There are provisions in the Rules which state when the written notice is deemed to have been served, but however one construes those, this application was made outside the time period. For that reason, the Immigration Appeal Tribunal was not permitted, and certainly not obliged, to consider the claimant's application.
The third complaint made by the claimant is that the Special Adjudicator did not allow the hearing before him to be tape recorded. It is clear that the Adjudicator possesses a wide discretion as to how proceedings are to be conducted. Rule 31 of the Immigration and Asylum Appeals (Procedure) Rules 2000 provides that:
"The...
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