R v Special Adjudicator, ex parte Bashir
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1999 |
| Date | 06 December 1999 |
| Court | Queen's Bench Division |
Queen's Bench Division
Harrison J
R de Mello for the applicant
S Wilken for the respondent
Cases referred to in the judgment:
in re 56 Denton Road, TwickenhamELR [1953] Ch 51.
Jowell v Earl of BradfordICR [1977] ICR 343.
Rootkin v Kent County CouncilUNK [1981] 2 All ER 227.
R v Greater Manchester Valuation Panel ex parte Shell Chemicals UK LtdELR [1982] QB 255.
R v Cripps ex parte MuldoonELR [1984] QB 687.
Lamont v Fry's Metal Ltd [1985] IRCR 470.
Spring Grove Services Group Plc v HickinbottomICR [1990] ICR 111.
R v Immigration Appeal Tribunal ex parte Kardiah [1991] Imm AR 431.
Akenwushola v Immigration Officer, Heathrow [1999] Imm AR 594: [1999] INLR 433.
Adjudicator indicated orally at hearing that appeal would be allowed subsequently written determination dismissed the appeal whether adjudicator functus officio when oral decision pronounced the proper procedure to be followed when adjudicator intends to alter decision in written determination. Immigration Appeals (Procedure) Rules 1996 r. 2(3).
The applicant was a citizen of Pakistan. He was refused asylum by the Secretary of State who certified the case under paragraph 5 of schedule 2 to the 1993 Act (as amended).
When an appeal went before a special adjudicator, he announced at the end of the hearing, that the appeal would be allowed. When he wrote his determination however, he dismissed the appeal.
Before the court it was contended that the special adjudicator was functus officio when he had given his oral decision.
The court considered the proper procedure to be followed in those circumstances.
Held
1. Within the statutory framework, the adjudicator was not functus officio until his written determination had been promulgated.
2. It was imprudent for an adjudicator to make any oral announcement as to the outcome of an appeal unless he were certain of it. If subsequently he changed his mind, he had an obligation to re-convene the hearing and invite further submissions from the parties.
1. Harrison J: This application for judicial review relates to an unusual situation where a special adjudicator announced to the parties at the end of the hearing of an asylum appeal that he was allowing the appeal and overturning the Secretary of State's certificate, but subsequently promulgated a written determination dismissing the appeal and upholding the Secretary of State's certificate.
2. The respondent accepts that the written determination should be quashed and that the appeal should be reheard. The applicant, however, maintains that the oral decision of the special adjudicator is the final decision and should stand. He seeks a declaration to that effect and also a declaration that the applicant is, as a result of that decision, a refugee under the Convention. In the Form 86A, the applicant sought mandamus to compel the correction of the written determination so as to accord with the oral decision announced at the end of the hearing of the appeal, but that was not pursued before me on the basis that the declaration sought would sufficiently safeguard the applicant's position.
3. The applicant is a citizen of Pakistan. He arrived in the United Kingdom on 20 June 1992 when he was granted leave to enter for six months as a visitor. On 30 June 1992 he applied for asylum based on his fear of persecution if returned to Pakistan on account of his Ahmadi religion. By letter dated 2 June 1997 the Secretary of State refused his claim for asylum and, in addition, certified the claim under paragraph 5(2) of schedule 2 of the Asylum and Immigration Appeals Act 1993 (as amended) because the applicant was liable to be sent to Pakistan, which is a country designated by statutory instrument as a country appearing to the Secretary of State as one in which there is, in general, no serious risk of persecution. The Secretary of State also certified that that claim was one to which paragraph 5(5) of schedule 2 did not apply, in other words, he concluded that there was not a reasonable likelihood that the applicant had been tortured in Pakistan. The net result of the Secretary of State's certification of the applicant's asylum claim was that his right of appeal would be subject to the accelerated appeal procedure and, if the certificate was upheld on appeal to the special adjudicator, he would not, under paragraph 5(7) of schedule 2, have a right of appeal to the Immigration Appeal Tribunal.
4. Pursuant to section 8(1) of the 1993 Act, the applicant appealed against the Secretary of State's decision to refuse his asylum claim. That appeal was heard by a special adjudicator, Mr Davey, on 19 June 1998. The applicant was represented at the appeal by Miss Davies, a case worker for the Refugee Legal Centre, and the applicant gave evidence at the appeal. At the conclusion of the hearing, the special adjudicator said: I overturn the certificate and allow the appeal. That is not disputed on behalf of the respondent.
5. However, on 16 September 1998 the special adjudicator promulgated his written determination in which he upheld the Secretary of State's certificate and dismissed the appeal for reasons set out in the written determination. Accompanying the written determination was a letter to the applicant's advisors stating that the special adjudicator had upheld the Secretary of State's certificate and that the applicant therefore had no right of appeal to the Immigration Appeal Tribunal.
6. It follows that the written determination promulgated on 16 September 1998 was the reverse of the decision announced orally on 19 June 1998. The reason for the change is to be found in a letter dated 27 January 1999 written by Mr Latter, Deputy Chief Adjudicator, to the applicant's solicitors in which he states:
Further to your letter of the 27th November 1998 I have now had an opportunity of speaking to the Special Adjudicator, Mr Davey, about this determination. His recollection is that after the submissions had been completed he did say words to the effect that either he was minded to allow the appeal or that he intended to allow the appeal. However, later he reviewed the evidence including the objective/background evidence and came to the conclusion that the Secretary of State's decision should be upheld and the appeal dismissed. His view is that it was not necessary to reopen the hearing as he did not cut short submissions being made nor did he constrain the representatives in any way.
7. Although, in that letter, the special adjudicator is recorded as having said that he was minded, or intended, to allow the appeal, the exact words of the special adjudicator have now been agreed and are not in dispute.
8. Both parties have referred me to the relevant statutory provisions. They are important to the resolution of the issue in this case, so I refer to them at this point before coming to the submissions that were made.
9. Section 19 of the Immigration Act 1971 deals with the determination of appeals by adjudicators. It provides, so far as...
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