R v The Immigration Appeal Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 09 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0209-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/2544/97 |
| Date | 09 February 1998 |
[1998] EWCA Civ J0209-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
CO/2544/97
MR P DUFFY QC, MR R de MELLO and MR S TAGHAVI (instructed by Gill & Co., London WC1 8PF) appeared on behalf of the Applicant.
MR P ELIAS QC and MR R TAM (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondents.
Monday, 9th February 1998
I shall call the Applicant in this matter 'S' in view of the need to preserve his anonymity.
The history of his claim for asylum is not a happy one. He claimed asylum on his arrival from Kenya on 13th January 1994, having flown via Uganda, Abu Dhabi and Muscat. He had a pro forma interview on 14th January, followed by a fuller asylum interview on 16th January. On 6th March 1995 the Secretary of State refused his application for asylum. The Applicant claimed to be a member of the Islamic Party of Kenya ("IPK") and to have been arrested, detained and beaten as a result of a policy of persecution towards IPK supporters.
The Secretary of State concluded that there was no evidence that mere membership of the IPK would result in unfair treatment, did not accept that the alleged arrests, detention and beatings were the result of a policy of persecution of the IPK, and considered that the Kenyan authorities had no real interest in the Applicant and his family.
The Applicant appealed to the Special Adjudicator; his appeal was dismissed in July 1996. He appealed to the Immigration Appeal Tribunal, who, in October 1996, allowed his appeal and remitted the matter de novo to another Special Adjudicator. The matter first came before the second Adjudicator, Mr Chalkley, on 23rd December 1996. The Applicant appeared in person, but said he had received notice of the hearing only a couple of days earlier, so the Special Adjudicator adjourned the hearing until 7th February 1997. He also made directions under Rule 23 of the Asylum Appeals (Procedure) Rules 1996 ("the Rules"). The directions dealt with the filing of witness statements, the preparation of bundles, the filing of any further documents, a chronology, and (unless the Applicant was to be unrepresented) a skeleton argument. According to the Special Adjudicator's account of the history of the matter in his determination, which was dispatched on 17th June 1997, he dated the directions 23rd December. The interpreter confirmed that she and the Applicant understood each other and the Special Adjudicator handed a copy of the directions to the Applicant. I take the remainder of the procedural history verbatim from the Special Adjudicator's determination:
"On the 5 February 1997 the Appellant's solicitors wrote to the Immigration Appellate Authority enclosing a medical certificate requesting an adjournment because of the Appellant's ill-health.
A Special Adjudicator considered the application for an adjournment but refused it noting that directions had been given. That the directions has not been complied with and that the attendance of representatives was required to show why the appeal should not be treated as abandoned or determined without a hearing under Rule 24 of the Procedure Rules. The Appellant's solicitors were notified accordingly.
On the 7 February 1997 the matter came for hearing before me again. The Appellant was represented by Mr D Gordon of Counsel who handed to me a medical certificate signed by the Appellant's medical "practitioner. He asked me to grant an adjournment. In the circumstances I considered that an adjournment was necessary for just disposal of the appeal. I asked that the appeal be transferred to the Gravesend Hearing Centre for listing for the first available date after three weeks.
I pointed out to Mr Gordon that directions had been made at the earlier hearing and appeared not to have been complied with. He confirmed that he had a copy of the directions. I re-issued the directions and asked that a copy be handed by the usher to Mr Gordon before he left Court.
I noted from the file that on the 18 February 1997 the Appellant's solicitors were sent a notice of adjourned hearing with the directions attached.
By letter dated the 3 February the Appellant's solicitors enclosed a selection of documents (to which I refer below) in support of the appeal.
The matter came for hearing before me again at Gravesend on the 29 May 1997 when the Appellant was present and was represented by Mr Preston of Counsel. Mr J Baker Smith, a Home Office Presenting Officer appeared on behalf of the Respondent.
I pointed out to Mr Preston that it appeared that the directions I had earlier made had been ignored. I told him that it was not the first time that directions appeared to have been ignored by his instructing solicitors and reminded him that I had issued directions first on the 23 December 1996 and given a copy of them to the Appellant personally. I reminded him that I re-issued those directions on the 7 February and handed a copy to the Appellant's then Counsel, Mr D Gordon. I also reminded him that a further copy of the directions had been sent to his instructing solicitors with the notice of the hearing. I asked him why the directions appeared to have been ignored. He told me he did not know but surmised that it may have been because of lack of funds. Mr Preston agreed that in the circumstances I would be entirely justified in determining the appeal without a hearing under Rule 35 of the Procedure Rules, in accordance with Rule 24(1)(c) of the Procedure Rules.
In the absence of any satisfactory explanation as to why the Appellant had not complied with the "directions, I advised Mr Preston that I was proposing to determine the appeal without a hearing under Rule 35 in accordance with Rule 24(1)(c) of the Procedure Rules."
The Adjudicator then proceeded to his determination. He summarised the evidential material on the papers and reached certain findings of fact. On a number of points he did not accept criticisms of the Applicant that were contained in the Secretary of State's refusal letter, and he reached conclusions which were favourable to the Applicant. But when he came to deal with the Applicant's account of his arrest, he said this:
"The Appellant claims that he was arrested on five occasions. I do not believe him."
He then went on to explain why and which aspects of the account he did not find credible. Under the sub-heading "Credibility" he said:
"I did not find the Appellant to be credible. I do not believe he was ever arrested and detained as he had claimed."
So in this, as in so many other asylum appeals, the determination turned on the credibility of the Applicant. Because of his ruling, the Special Adjudicator did not hear the Applicant, even though he was present, waiting to give evidence and had a witness with him, who he wished to call. His counsel, instructed the previous day, did not know why the directions had not been complied with. His recollection, to which he deposed in an affidavit, is that he tried to make submissions that the hearing should proceed, notwithstanding the failure to comply with the directions, but that it soon became clear that the Special Adjudicator did not agree, and was determined to proceed without a hearing. He (counsel) felt that in the circumstances he was not in a position to oppose that course.
There is no affidavit from the Special Adjudicator, but the Respondent has put in his Record of the Proceedings. That is brief in the extreme, and simply says:
"Directions have been ignored. Doesn't know why, may be lack of funds. I advise that 2 lots of Directions appear to have been ignored and in the circumstances I decide to deal with the appeal on the papers under R.24(1)(c)."
That is consistent with counsel's recollection, and it will be observed that the Special Adjudicator did not seek the views of the Home Office presenting officer as to whether he would have been prejudiced by the failure to comply with any of the directions if the case proceeded to a hearing on that day.
In his affidavit the Applicant explains how it came about that the directions were not complied with. On 23rd December he says that the interpreter did not explain the directions to him (the Special Adjudicator's determination does not suggest that such explanation was given by the interpreter), but simply told him in Swahili to hand them to his solicitor who would know what to do with them. He did so and, in summary, he thought that the directions were being attended to by his (then) solicitors.
In March 1997, as a result of a discussion with a friend, he realised that the directions required him to lodge a statement, and he further realised that that had not been done. He went to the solicitor's offices and asked them to take statements from him and his potential witness, a Mr Wahid, the leader of the IPK in London. The solicitors took the necessary notes and thereafter he was assured by them that "everything was in order".
He attended the hearing on 29th May 1997 with Mr Wahid, both of them ready to give evidence. He subsequently changed his solicitors and attempted, without success, to recover the file containing the interview notes for his statement. The Applicant's new solicitors have obtained information as to the evidence which Mr Wahid could have given had the matter proceeded to a hearing. In a nutshell, Mr Wahid would have said that he had been arrested on numerous occasions because of his political activities with the IPK and on one such occasion he shared the same cell as the...
To continue reading
Request your trial