SV (Alleging misconduct and suppressing evidence)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 17 November 2005 |
| Neutral Citation | [2005] UKAIT 160 |
| Court | Asylum and Immigration Tribunal |
| Date | 17 November 2005 |
[2005] UKAIT 160
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr G Warr, Senior Immigration Judge
Mr J Perkins, Senior Immigration Judge
For the appellant: Mr G Patel Miles of Hutchinson & Lithgow Solicitors.
For the respondent: Mrs R Pettersen, Home Office Presenting Officer.
SV (Alleging misconduct and suppressing evidence) Iran
This case is reported to deal with the question of the approach where representatives ascribe blame to those previously instructed.
The appellant is a citizen of Iran. He was born on 12 June 1977 and so is now twenty eight years old. He appeals the decision of an Adjudicator, Mr John R Aitken, who in a determination promulgated on 6 January 2005 decided that the appellant's notice of appeal to an adjudicator against the decision of the respondent that he was not a refugee and that removing him from the United Kingdom was contrary to his protected human rights, was served out of time and that there were no special circumstances making it unjust not to extend time.
We begin by considering the material before the Adjudicator. There was the usual appeal bundle prepared by the respondent. This shows that the appellant arrived in the United Kingdom on 10 July 2004 and claimed asylum on 11 July 2004. According to the respondent the notice of decision refusing the application for asylum was sent by recorded delivery to the appellant's address on 12 August 2004. The notice of appeal was not received until 3 December 2004. The respondent decided not to use his powers to treat it as if it were received in time.
We note from the reasons for refusal letter dated 10 August 2004 that the application was refused under paragraphs 336 and 340 of HC 395 because, in the opinion of the respondent, the appellant had failed without reasonable explanation to make a prompt and full disclosure of the facts of the claim. There is a bundle from the appellant's present solicitors under a covering letter dated 2 December 2004 to the Home Office at Croydon. This includes a copy of the respondent's “Determination of Asylum Claim”, a notice of appeal, a statement of additional grounds and form SEF and a copy letter from XYZ & Co to the respondent dated 23 July 2004 and marked “By Fax”. According to the form SEF, 23 July 2004 was the last day on which the form SEF could have been received in time. The papers do not include any evidence that the form was ever sent.
The “Determination of Asylum Claim” is, as was to be expected, a purely formal document confirming that the application had been refused. The “Additional Grounds” assert that in the event of removal to Iran the appellant risks serious ill treatment because of his membership of the IKRP and asserts, in general terms, that removal will interfere with his protected private and family life. Although the Additional Grounds make serious claims our task is to decide if the Adjudicator erred in law in refusing to extend time for service.
The first four Grounds of Appeal to the Adjudicator are in general terms and do not require particular consideration. Grounds 5, 6 and 7 are set out below:
“5. The appellant's application for asylum has been refused on non-compliance grounds. The appellant contends that his previous solicitors Messrs XYZ & Co lodged the appellant's SEF and statement of additional grounds by fax on 23 July 2004 a copy of XYZ & Co's letter and the SEF and statement of additional grounds are annexed hereto.
6 The appellant hereby applies for leave to appeal out of time.
7 The appellant contends that he instructed his previous solicitors to lodge an appeal but contends that for some reason they did not do so. He had travelled from Gateshead to London to see them in September upon receipt of his refusal papers. He sets out that they said that they would firstly write to the Home Office because the reasons for refusal letter did not give any real reasons for refusal of the application on his behalf. He signed appeal papers and they said that they would deal with the matter on his behalf and lodge the appeal. The appellant then received a letter from the NASS Section of the Home Office dated 15 October 2004 advising him that all appeal rights had been exhausted and that he no longer qualified for NASS support. He spoke to his solicitor on the phone who advised him that he could do nothing further for him and that he should see another solicitor. He then sought advice from Miles Hutchinson & Lithgow about this and was seen by them on 26 October 2004. Miles Hutchinson & Lithgow applied for XYZ & Co's file of papers by way of a letter dated 29 October. A reminder was sent on 12 November and a further reminder was sent on 26 November 2004 and the file of papers was actually received on that date. The person having conduct of the file was out of the office until 1 December 2004 and this has been the earliest date upon which the appellant could lodge any appeal.”
The form SEF sets out the alleged merits of the appellant's claim.
At all material times the conduct of this appeal was subject to the Immigration and Asylum Appeals (Procedure) Rules 2003. Rule 10(1) provides that where the notice of appeal is given outside the applicable time limit the appellant must (a) state in the notice of appeal his reasons for failing to give the notice within that period; and (b) attach to the notice of appeal any written evidence upon which he relies in support of those reasons. This Adjudicator then had to consider that material before making his decision.
In his determination the Adjudicator noted that it was not disputed that the notice of decision was served by first class recorded delivery post sent on 12 August 2004 and the appeal was not received until 3 December 2004. He then considered the explanation for lateness. He said:
“It is that the appellant was represented by XYZ & Co. and they failed to file his appeal as he had instructed them to do. The present solicitors, Miles Hutchinson & Lithgow awaited the file on being instructed and had some difficulty in obtaining it hence further delay. There is however no evidence of the failure alleged from XYZ & Co. save the appellant's instructions to his new solicitors …If the appellant had been misled by his former solicitors into thinking they were dealing with his appeal or failed to notify him of the refusal then they would be obliged to admit this to assist him, there is no such admission and I cannot accept that the appellant has established that his problem arises from the misconduct of his former advisers without an explanation from the firm in question. This is the effect of the case of MM*[2004] 00182 at paragraph 36, where it was said that there should always be an attempt to put the failing of a previous firm of solicitors to them for comment. The file from that firm is now in the possession of the appellant's new solicitors but nothing is put forward as evidence of the appellant's account.”
As the Adjudicator indicated his reasoning set out above is based very closely on paragraph 36 of the Decision of the Tribunal in MM*. For convenience we set out below that paragraph in its entirety.
“We add there has been no attempt to put to the previous solicitors the failings said to be attributable to them; that should always be done where there is an allegation that another firm of solicitors was at fault. This is all too easy an allegation to make and failure to raise the issue with those who might rebut it does not assist the credibility of the allegations.”
We remind ourselves that we have no basis for interfering with the Adjudicator's decision unless it can be shown to be wrong in law. The decision is criticised in the grounds of appeal to the IAT. Ground 1 claims that the appellant is a Kurdish Iranian who risks persecution because of his political activity and this claim has not been considered on its merits, if any. We are very aware of the significance of this decision for the appellant, as no doubt was the Adjudicator. We also reminded ourselves that, unlike the narrower grounds applicable to cases decided under the Asylum and Immigration Appeals (Procedure) Rules 2005, the Adjudicator had to decide if “satisfied that by reason of special circumstances it would be unjust” not to extend time. This would appear to permit consideration of the merits of the appeal, if any. However the fact that the appellant is an asylum seeker is not a trump card entitling him to overrule the requirements of the procedure rules. Almost every asylum claim includes an assertion that a person risks very serious ill treatment if returned to his or her country of nationality. The merits of the case and the need to give anxious scrutiny in asylum appeals are not decisive features of applications of this kind. If Parliament had intended that to be the law the...
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...and client, and possible waiver can arise in such cases. We consider that in line with MM [2004] UKIAT 00182 and SV (Iran) [2005] UKAIT 00160 there will be a need to direct the new representatives of appellants, in such contested claims, to confirm in writing five days before the preliminar......
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Upper Tribunal (Immigration and asylum chamber), 2007-02-23, [2007] UKAIT 22 (AP (Withdrawals, nullity assessment))
...and client, and possible waiver can arise in such cases. We consider that in line with MM[2004] UKIAT 00182 and SV(Iran)[2005] UKAIT 00160 there will be a need to direct the new representatives of appellants, in such contested claims, to confirm in writing five days before the preliminary h......
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Upper Tribunal (Immigration and asylum chamber), 2017-06-21, HU/09918/2015
...permits the Judge to adjourn or postpone a hearing. In view of the guidance in SV (Alleging misconduct and suppressing evidence) Iran [2005] UKAIT 00160 and BT (Former solicitors� alleged misconduct) Nepal [2004] UKIAT 00311, in which it was found that if an appeal is based in whole or in p......
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Upper Tribunal (Immigration and asylum chamber), 2018-05-30, HU/10803/2016
...to do so. The judge noted that the appellant had not complied with the guidance in SV (Alleging misconduct and suppressed evidence) Iran [2005] UKAIT 160 and BT (Former solicitor’s alleged misconduct) Nepal [2004] UKIAT 311 and gave that explanation little weight [16]. She commented that th......