HC (2005 Procedure Rules ultra vires?) Iran [2005] UKAIT NATIONALITY, IMMIGRATION AND ASYLUM ACTS appellant

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1 IN THE ASYLUM AND IMMIGRATION TRIBUNAL Heard: Signed: Sent out: HC (2005 Procedure Rules ultra vires?) Iran [2005] UKAIT NATIONALITY, IMMIGRATION AND ASYLUM ACTS Before: Between: and: John Freeman and Lance Waumsley (senior immigration judges) appellant Secretary of State for the Home Department, respondent Mr R Toal (counsel instructed by Jackson & Canter, Liverpool) for the appellant Mr S Ouseley for the respondent DETERMINATION AND REASONS This decision is reported for what we say at 9-18 on the question of whether the Home Office are obliged to search NASS records for the address of any absent appellant, as well as on the point in the key-word. 1. This is a case where reconsideration was ordered of a decision of an adjudicator (Mr AG O Malley), sitting at Stoke-on-Trent on 11 November 2004, dismissing an asylum and human rights appeal by a citizen of Iran. The senior immigration judge (HH Judge Huskinson) who made the order did so because it is reasonably arguable that the appellant may have sustained a procedural injustice by reason of the case being decided at a hearing at which he was not present the reason for his absence being that he was not aware of the hearing on 11 November Judge Huskinson must have taken the view that the adjudicator might, as required by 103A (2) of the 2002 Act, inserted by the 2004 Act, have made an error of law which resulted in that procedural injustice. However he does not say so in terms, still less specify what the error was. 2. The basis on which the adjudicator decided to proceed in the appellant s absence appears at 6-7 of his decision. The appellant s former solicitors (Gwilym Hughes & Ptnrs, Wrexham) had written on 1 November withdrawing from representing him because of funding difficulties ; but notice of hearing had been

2 sent the appellant on 1 September at his last known address, and there was no explanation for his absence, so r of the 2003 Procedure Rules meant that the adjudicator must hear the appeal there and then. This was all correct, so far as it went; but, as Mr Toal pointed out, the notice of hearing of 1 September was not the one which fixed the hearing on 11 November. 3. The notice of 1 September was, as usual, a combined Notice of First Hearing and Notice of Full Hearing. The first hearing, on 21 September, was adjourned because the solicitors had sent in the reply to directions, saying that they were still waiting for funding. However, they also obtained an adjournment of the full hearing as originally fixed for 19 October. This resulted in a fresh notice of hearing being sent out on 7 October for 11 November. That notice is addressed to the solicitors; but there is a note at the bottom showing that it was also sent to the appellant at the post-code for his address then known to the IAA, which appears in full on a covering letter addressed to him, of which there is a copy on the file. That was 5 Chapel St, Wrexham, as shown on his notice of appeal to the adjudicator, filed by the solicitors. 4. The events which the appellant says caused that notice not to reach him are set out in his notice of appeal, not legally drafted but very clearly set out in English typescript, we were told by the lady with whom he lives. He says he had been moved, by the National Asylum Support Service [NASS], to another address, apparently 9 Victoria Rd, Wrexham, at some time before 29 September. On that day he had a meeting with his solicitors, with the help of a Persian interpreter, Mr Mohsen Papen. According to the appellant, he mentioned his move to Mr Papen; but Mr Papen and the solicitors each blame the other for either failing to pass it on, or to record it. The notice of appeal, quite understandably, does not identify any error of law on the part of the appellate authorities, but simply complains of the appellant not having been able to put his case to them, and refers briefly to the history on which he relied. 5. The leading authority at present on points of this kind is Makke [2005] EWCA Civ 176, where the judgment of the Court of Appeal was given by Pill LJ: we handed down copies at the start of our hearing. Because the adjudicator s decision in that case was given before the coming into effect of the relevant provisions of the 2002 Act, it was not necessary for the appellant to show a material error of law. The appellant s appeal was dismissed in his absence by an adjudicator: permission to appeal was refused, as it happens by the writer of this decision, on the basis that there was no arguable challenge to the adjudicator s decision on the merits. That was quashed on judicial review by Wilson J, who found (as indeed was not in dispute) that the appellant had been let down by his solicitors; but the Court of Appeal allowed a Home Office appeal against that decision. They did so (see 24)on the basis that, at least where an extension of time was required (as indeed it was in the present case too) It is not sufficient to rely on a procedural point, an applicant in the [appellant] s position must condescend to the merits of his challenge to the adjudicator s decision. 6. While there is, as we have said, a brief reference in the grounds of appeal to the merits of the appellant s own case, there is nothing to show any arguable error of law on the merits of the adjudicator s decision; nor did Mr Toal seek to argue any such point. In fact the only point he made on the adjudicator s decision (rather 2

3 than the procedure which had led to it) was his having given the wrong date for the notice of hearing. Mr Toal frankly recognized that this was a highly technical point; but he urged us to take it in the appellant s favour to prevent what he put forward as the obvious injustice of not having his case heard. 7. If the 2005 Procedure Rules are valid and we shall come to Mr Toal s challenge to them in due course, then by r Where the reconsideration is pursuant to an order under section 103A a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand. If we are right in thinking that Makke is to be taken as applying to the new (2004 Act) procedure, in the light of the change in the legislation since the events with which it dealt (first effected in the 2002 Act, as originally enacted) requiring an error of law at first instance to found any further appeal (or now reconsideration), then it follows that the grounds must show some error of that kind affecting the merits of the decision. In this case they did not, so the appeal would fail in limine. 8. However, even if we are wrong about the effect of Makke, the appellant needs to show a material error of law by the adjudicator when he comes before us. The only error by the adjudicator put forward by Mr Toal, as we have seen, is the one about the date of the relevant notice of hearing. In our view, while a mistake about the existence or otherwise of an effective notice of hearing might be significant enough to amount to an error of law within E & R [2003] EWCA Civ 49, the date shown on it cannot do so. Alternatively, if it is an error of law, it is not a material one, because if the adjudicator had referred to the 7 October notice, that was validly served on the solicitors then still acting for the appellant, as well as being sent to him at his last address known to the appellate authorities. That means he had no alternative, on the information before him, but to hear the appeal: see the then (2003) Procedure Rules r An adjudicator must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative a) has been given notice of the date, time and place of the hearing; and b) has given no satisfactory explanation for his absence. 9. This takes us to Mr Toal s next point: this, like the one about the 2005 Procedure Rules was objected to by Mr Ouseley as not raised in the grounds of appeal or by any other form of notice; but we thought it better to hear Mr Toal de bene esse, and deal with the objection if it became material. Mr Toal s case is that there was an explanation there to be given that the appellant had been moved by NASS, so did not get his copy of the notice of hearing. Of course neither the presenting officer before the adjudicator, nor the Presenting Officers Unit as a body knew anything about that at all; but Mr Toal argued that they were nevertheless obliged to tell the adjudicator what NASS, another Home Office body, knew about the appellant s whereabouts. While he could not refer us to any authority requiring disclosure of information of that kind, Mr Toal relied on Cindo [2002] EWHC 246 (Admin). There Maurice Kay J granted judicial review of refusal of leave to appeal from an adjudicator, who had been allowed to rely on Şenköy (16594) as 3

4 recent and authoritative, without being told that, some months before the hearing in Cindo, Şenköy had been granted leave to apply for judicial review of the decision in his case. 10. Maurice Kay J set out the principles involved at 11: 1. there is a duty on the part of the Secretary of State not knowingly to mislead in the material he places before the [appellate authorities]; 2. knowingly embraces that which he ought to have known; 3. a breach of that duty may found judicial review on the basis that either a. the decision was reached on a wrong factual basis ; or b. the proceedings were tainted with unfairness. Judicial review was granted on that ground on the basis (see 14) that there was potentially significant material [filed in Şenköy] which officials knew or ought to have known materially detracted from the material which was still being advanced as recent and authoritative even though ( 15) the judge declared himself anxious not to impose an unfair burden on the Secretary of State or to express myself in a way which might be thought to expose his officials to undue expectations in future cases. 11. Mr Toal argued in effect that, because NASS knew where the appellant was to be found, the Secretary of State, and so the presenting officer before the adjudicator ought to have known it too; so they were guilty of knowingly misleading him by the presenting officer failing to mention something of which it is recognized he must have been completely unaware. This point has of course to be dealt with in the context of the events and arguments in the present case. Mr Toal expressly disclaimed any reliance on the misdeeds of the previous solicitors as founding any material error of law on the part of the adjudicator, though he wished us to know about them as part of the background evidence. This was despite the mention in Şenköy ( 8) of Khan [1987] Imm AR 543, where the appeal failed on other grounds, but Bingham LJ said If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or even perhaps inefficiency, and the result is to deny justice to an applicant, I would be very sorry to hold that the remedy of judicial review was not available. 12. Probably Judge Huskinson was thinking of dicta of this kind when he gave permission to appeal in the terms he did in this case. However Mr Toal was faced with AG [2005] UKIAT 00014, a decision of the Immigration Appeal Tribunal written by Ouseley P, in which Mr Ouseley referred us to 17, where failure to put allegations of professional negligence to previous advisers without clear and sound reasons for not doing so, is likely to lead to adverse inferences being drawn as to the true reason for the failure of such evidence to be produced. The only explanation we had from Mr Toal was that he had been instructed very late, as the present solicitors had had funding problems too. 13. While this is clear enough, we do not consider it sound. We are being asked to proceed against a background of no more than an assertion by the appellant, who dealt with the previous solicitors through an interpreter, that that gentleman never passed on his instructions about his change of address, not only so that the solicitors could pass them in turn to the IAA, but so that they could get in touch with him themselves. This presumably is why it is suggested that not even the 4

5 copy of the final notice of hearing sent to the previous solicitors resulted in his being aware of it. 14. The appellant, to do him justice, made his version of events clear in his grounds of appeal, filed 1 March His present solicitors faxed the Tribunal with notice that they were acting, and a copy of those grounds attached, on 29 June; yet it is said that there was no real possibility of giving the previous solicitors notice of the allegations against them till the hearing before us on 4 October. We do not consider this sound practice, even on a point said to be relied on as a matter of background only. 15. Now we must look at the situation as it was before the adjudicator on 11 November 2004 from the presenting officer s point of view, in trying to decide whether he can be said to have knowingly misled the adjudicator, even in the somewhat recondite sense applied to that expression in Cindo. The appellant had been represented by his previous solicitors since at least 16 August, when they wrote in with grounds of appeal to the adjudicator, until 1 November, when they withdrew. That period included 7 October, when the final notice of hearing was sent both to them and to the appellant himself. Unless there had been some serious professional negligence in the solicitors office, there was no reason to suppose that one or both of those notices would not have resulted in the appellant s becoming aware of the hearing: neither of them had been returned undelivered. 16. If it is to be said that the failure of the presenting officer to make further inquiries of NASS, when the appellant quite unexpectedly did not appear and was not represented on the day of the hearing, resulted in his having knowingly misled the adjudicator, then to avoid such a conclusion against them, presenting officers would have to make such inquiries in each and every case where the appellant did not appear. In our view this would undoubtedly amount to the unfair burden and undue expectations which Maurice Kay J sought to avoid in Cindo. We are not bound by the decision of a single judge at first instance, and it might have been going quite a long way to make a finding that the adjudicator had been knowingly misled on the basis of information not being disclosed which had come from a judicial review application which had got no further than leave being given. On the other hand, we can see the logic of the judge s approach, when applied to a failure to disclose information which affected the strength of a case (Şenköy) the Home Office were themselves putting forward to the adjudicator. 17. That is not the position in this case: the address to which the notice of hearing had been sent had come from the appellant s solicitors in the first place, and there was nothing in the circumstances by the date of the hearing to suggest either to the presenting officer or to the adjudicator that it was no longer right; or that for any reason the appellant would not know about the date. Whatever may be the position where a notice of hearing is returned undelivered, or anything is known against solicitors involved in the case; or, of course, where the appellant is detained by the Home Office or any agency under them, so is no longer a free agent, or where an adjudicator expressly asks for inquiries to be made, or when the Presenting Officers Unit have any actual knowledge of a change of address, we do not think the presenting officer before an adjudicator (now an immigration judge) can or ought to be under any obligation to make inquiries, which may be time-consuming in a process intended by Parliament to be rapid, as to the 5

6 whereabouts of an appellant. That must especially be so where, as here, that appellant was represented by solicitors at the time notice of hearing was sent out. 18. The result is that, even if the criteria for whether, in terms of r. 31 (see 7) the original Tribunal made a material error of law are the same as those for granting judicial review (which we are not deciding), and even if the appellant is entitled to rely on an error of law which did not go to the merits of the decision (which we do not think he was: see 7 again), we do not consider that the presenting officer not making any inquiries of NASS when the appellant failed to appear resulted in the adjudicator s decision being quashable. It follows that, unless Mr Toal could persuade us that the 2005 Procedure Rules are ultra vires, so that our approach to reconsideration must be entirely different from what had been supposed by everyone since the Rules came into force on 4 April, it must be upheld. 19. Mr Toal s argument on the validity of r of the 2005 Procedure Rules was that it is contrary to the principal legislation under which they are made, the 2004 Act. That provides at 103A (1) for a party to apply for reconsideration on the grounds that the Tribunal made an error of law ; but (2) The court may make an order a. only if it thinks that the Tribunal may [our emphasis] have made an error of law What follows such an order is provided for, as we have seen (at 7) by r. 31.2; but Mr Toal argued that this was not the intention of Parliament in enacting 103A at all. His argument is in effect that the possible error of law in 103A (2) was to be the sole foundation for a complete reconsideration in terms of of the 2002 Act, applying originally to first instance appeals before an adjudicator, and left in force by its successor in relation to those before an immigration judge. 20. We cannot think this is right. There is a gap in the scheme under the 2002 Act, as amended in 2004, on what is to happen on reconsideration, once ordered; but the rule-making power at 106, in its current form, expressly provides at (v) that rules may make provision about reconsideration of a decision pursuant to an order under section 103A (1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard). We cannot imagine any clearer statutory power than that to make the provisions set out in r While in the absence of any ambiguity, there would have been no discretion to refer to Hansard, Mr Toal made it clear, when we asked him, that he had no such material to show that Parliament meant otherwise. It would certainly have represented a complete departure from the approach set out in CA [2004] EWCA Civ While Mr Toal did not shrink from that suggestion, and it would of course have been open to Parliament in enacting a new (if piecemeal) statutory scheme, there is nothing whatever to show that was intended. 21. The result is that, seeing no material error of law in the adjudicator s decision, we uphold it. There are however a few more things to be said. First, Mr Toal invited us, in connexion with the point at 6 and 8 (on which we did not need to hear Mr Ouseley) to take it in his favour despite its obvious inadequacies, on the basis that it represented the only way of ensuring justice for this appellant. There are two 6

7 answers to that: first, the judicial oath (not that we have had to take it in our present capacities) requires doing justice according to law. We do not regard the end as separable from the means, and decline to bend our view of the law to what are urged on us as the requirements of an individual case. 22. The other thing worth saying on this subject is that our decision need not mean an end to consideration of the appellant s case on its merits. Mr Ouseley undertook, in view of the new factual material produced, to endorse his file with his view that it deserved consideration afresh by the Home Office. Mr Toal s objection to that was that a renewed refusal would not result in any right of appeal. However we have no reason to suppose that this would tempt the Home Office to make any decision they did not see as right on the merits of the case. 23. Last we come to Mr Ouseley s objections to the last two points ( knowingly misled and ultra vires) being taken without notice. So far as the first of them goes, it does relate to the individual case, the appellant s circumstances, and the Home Office s knowledge of them through NASS. While there was nothing about it in the the appellant s grounds of appeal, or from his present representatives till Mr Toal handed up his skeleton argument on the afternoon of the hearing, there was a letter from the appellant to the IAA dated 15 February 2005, shown as copied to Home Office, IND, which explained that he had been moved on 17 September by NASS. On that basis, we should, if we thought this point capable of succeeding in principle, have allowed (so far as necessary) an amendment of the grounds of appeal to raise it (not being limited by r of the 2005 Procedure Rules on a reconsideration ordered after 4 April), and offered Mr Ouseley an adjournment to deal with it, if he wished. 24. So far as the ultra vires point is concerned, it is a point of law quite unrelated to the individual case, but to our general mode of proceeding. On that basis, we do not think it needed to be raised in the grounds of appeal, though good professional practice would certainly have suggested that notice of it should be given a good deal earlier than the afternoon of the hearing. On the other hand, if it had appeared capable of succeeding, it would have set at odds the entire business of this part of the Tribunal, as conducted since 4 April. If we had thought there were anything in this point, then we should not only have adjourned for Mr Ouseley to consider it, but adjourned the hearing to a Presidential panel, in view of the importance of the question. The original Tribunal did not make a material error of law and the original determination of the ap John Freeman approved for electronic distribution 7