Sarkisian, R v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY |
| Judgment Date | 28 June 2001 |
| Neutral Citation | [2001] EWHC 486 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3392/2000 |
| Date | 28 June 2001 |
[2001] EWHC 486 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
QUEEN'S BENCH DIVISION
Mr Justice Munby
CO/3392/2000
Ms Frances Webber appeared on behalf of the claimant
Mr Michael Fordham appeared on behalf of the Secretary of State
Alina Sarkisian is an Armenian. She arrived in the United Kingdom on 10 October 1995 and made an application for leave to enter as her husband's dependant. On 11 October 1995 she made a voluntary departure to Germany. On 7 April 1997 she returned to the United Kingdom and made, on her arrival, an application for asylum in her own right. For reasons contained in a letter dated 25 March 1998 the Secretary of State refused her asylum and certified her claim as one to which paragraph 5(4)(a) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) applied and paragraph 5(5) did not apply. On 13 May 1999 her appeal was allowed by the Special Adjudicator (Mr J G MacDonald). The Secretary of State applied for leave to appeal to the Immigration Appeal Tribunal. On 18 June 1999 the Tribunal (Professor D C Jackson) granted the Secretary of State leave to appeal. On 25 April 2000 the Tribunal (Chairman: Mr J R Disley) allowed the Secretary of State's appeal to the extent of directing that it be remitted to an adjudicator other than Mr MacDonald for hearing de novo. On 22 November 2000 Harrison J granted the applicant permission to apply for judicial review to quash that decision. The application came on for hearing before me on 19 June 2001.
In the light of the recent judgment of Scott Baker J in R (Secretary of State for the Home Department) v Immigration Appeal Tribunal [2001] EWHC Admin 261 (2001) Times June 12, Ms Frances Webber on behalf of the applicant does not dispute the power of the Tribunal to make the order it did. She challenges the manner in which, in this case, the Tribunal chose to exercise its powers.
The Tribunal's powers in this respect were at the relevant date governed by r 17(2) of The Asylum Appeals (Procedure) Rules 1996. Those rules, made by the Lord Chancellor pursuant to the powers vested in him by section 22 of the Immigration Act 1971, came into force on 1 September 1996. Rule 17(2), which has since been replaced by the materially identical r 23 of The Immigration and Asylum Appeals (Procedure) Rules 2000, provided as follows:
"Unless it considers –
(a) that it is necessary in the interests of justice, and
(b) that it would save time and avoid expense
(b) that it would save time and avoid expense
to remit the case to the same or another special adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself."
Ms Webber contrasts that language with the language which was previously to be found in r 21(1) of the Immigration Appeals (Procedure) Rules 1984 and r 17(3) of the Asylum Appeals (Procedure) Rules 1993, where the Tribunal's power to remit was expressed as arising if the Tribunal considered it "appropriate" to do so. She submits, and this must be right, that the test in r 17(2) is more stringent.
On this point Ms Webber has referred me to the judgment of Maurice Kay J in R v Immigration Appeal Tribunal ex p Lou Bogou [2000] Imm AR 494. In that case an unrepresented appellant sought an adjournment from the special adjudicator. The special adjudicator refused, concluding that it was not necessary for the just disposal of the appeal and that he therefore had no discretion to grant it. In those circumstances the judge had to consider the contrast between r 10(1) of the 1993 Rules (which conferred on a special adjudicator power to adjourn "upon being satisfied that there is good cause for the adjournment") and r 10 of the 1996 Rules (which provided that a special adjudicator "shall not adjourn a hearing unless he is satisfied that an adjournment is necessary for the just disposal of the appeal" and further required the special adjudicator to have "particular regard to the need to secure the just, timely and effective conduct of the proceedings"). The judge commented at p 496 (para 4) that the later rule was "undoubtedly more stringent" than the earlier one.
At pp 494–495 (paras 5–6) Maurice Kay J said this:
"In the present case the special adjudicator was clearly aware of this change. He stated:
"The words 'shall not adjourn' in sub-rule (1) are mandatory. Adjournment is prohibited unless I am satisfied of its necessity for the just disposal of the appeal. I have no discretion as to whether to grant an adjournment unless its necessity for that purpose is established. The use of the word 'necessary' indicates that the test is more stringent than if the word 'desirable' or 'appropriate' had been used. Even bearing in mind the potential gravity in an asylum appeal, if a wrong decision is made, (and it is inconceivable that the potential consequences were not in the draftsman's mind), 'necessary' cannot be equated with 'desirable' or 'appropriate'. 'Necessary' must be given its ordinary and natural meaning. I had in mind the general desirability that any asylum appellant should be represented, if that is his wish, but as I have indicated, 'desirable' is not the test. The question is whether it is, necessary for the just disposal of the appeal that Mrs Bogou should be represented."
In the course of his submissions Mr Fripp described that analysis by the special adjudicator as "over academic and legally erroneous". I do not agree with his submission. In my judgment the analysis by the special adjudicator was rigorous and correct."
Another part of the judgment is equally important. The judge recorded at p 498 (para 9) the submission of counsel that the authorities in the Tribunal pointed to a general presumption in favour of representation and of the granting of adjournments to facilitate it and counsel's further submission that the approach of the special adjudicator had been flawed by his failure to refer to those authorities. Having referred himself to those authorities Maurice Kay J continued at p 499 (para 14):
"In my judgment there are curious features about this series of Tribunal decisions. One is that Ajeh has continued to permeate them, no reference being made to the fact that it was decided under the 1993 Rules and not the more stringent 1996 Rules. Secondly, in none of the decisions is reference expressly made to rule 10, either in its 1993 form or in its 1996 form. Nowhere is rule 10 subjected to the kind of analysis to which the special adjudicator subjected it in the present case. As I have said, I consider his analysis to have been entirely correct. In these circumstances, I do not accept that representation is a matter of presumption, nor is it axiomatic. There will be cases where it will be necessary to adjourn an appeal because the just disposal of the case requires representation. There will be other cases where it does not. What is most important is that special adjudicators have regard to the provisions of rule 10 of the 1996 Rules and that they do not simply regard the situation as one of discretion or presumption."
If I may I should like to express my vigorous support for Maurice Kay J's approach. The task of the Tribunal in a case such as this is to have regard to and apply the provisions of r 17(2) or, as it now is, r 23. Whatever the blandishments of advocates the Tribunal should resist the temptation to depart from the statutory language. The search for some seemingly appropriate synonym, for example, a synonym for the statutory word "necessary", merely encourages ultimately sterile semantic debate and exposes litigants to the risk that the matter is being decided not by reference to the statutory criteria but by reference to some other and impermissible test. Likewise, for the reasons so cogently expressed by Maurice Kay J, the temptation to have recourse to presumptions, assumptions, starting points, or other similar expressions, call them what one will, is in my judgment to be resisted. All I would add is that the reference in r 17(2) to the "interests of justice" must be to the interests of justice as seen not merely from the no doubt differing perspectives of the individual asylum seeker and the Secretary of State but also in the wider context of the public's interest in the proper administration not only of justice in the abstract but also and particularly of justice in this discrete area of the law. Likewise the reference in r 17(2) to "time and expense" is a reference not merely to the time and expense of the parties but also to the "time" of the special adjudicators and the Tribunal and the "expense" to the public of funding the asylum appeal system.
Ms Webber submits that r 17(2) creates what she calls a presumption against remitter, a presumption that the Tribunal will hear the appeal itself. With all respect to her argument I do not think that is quite the correct way of putting it. The rule provides in mandatory terms ("the Tribunal shall determine the appeal itself") that there is to be no remitter "unless it considers" that certain conditions are satisfied (emphasis added). It follows that the first thing the Tribunal has to do is to decide whether or not it
"considers —(a) that it is necessary in the interests of justice and (b) that it would save time and avoid expense to remit the case …"
If it does not so consider, then that is the end of the matter; the Tribunal will have no power to remit and will be required to determine the appeal itself. If, on the other hand, it...
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