BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bogou, R (on the application of) v Secretary Of State For Home Department & Anor [2000] EWHC Admin 292 (15 February 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/292.html
Cite as: [2000] EWHC Admin 292

[New search] [Printable RTF version] [Help]

R AND SECRETARY OF STATE FOR HOME DEPARTMENT and IMMIGRATION APPEAL TRIBUNAL v. EX PARTE LOU BAHAMAN BOGOU [2000] EWHC Admin 292 (15th February, 2000)


Case No: CO/2972/99

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 15 February 2000

B e f o r e :
THE HON MR JUSTICE MAURICE KAY

REGINA

AND

(1) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) IMMIGRATION APPEAL TRIBUNAL
v.
EX PARTE LOU BAHAMAN BOGOU


Application for Permission to Move for Judicial Review


(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)

Respondents
Applicant

Eleonor Gray (instructed by The Secretary of State for the Respondent)
Eric Fripp (instructed by Roelens & Co. for the Applicant)

- - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©


MR JUSTICE MAURICE KAY:
This is a renewed application for permission to apply for Judicial Review, permission having been refused on the papers by Scott Baker J. The Applicant is a citizen of the Ivory Coast. She arrived in the United Kingdom with three children on 14 July 1995, having travelled from the Ivory Coast via France using a false passport. On 24 July 1995 she claimed asylum. On 5 March 1997 she was interviewed. She claimed that she and her husband had suffered persecution in the Ivory Coast by reason of their involvement with an opposition party known as the FPI. She described a number of incidents. On 29 December 1991 there had been an incident in which a car had been driven at the Applicant, her husband and their youngest daughter, on which occasion the daughter was injured. On 18 February 1992 a demonstration was violently attacked by the police and the Applicant suffered a broken jaw. As a result, she escaped detention because she was hospitalised. The injuries had left permanent scars. On another occasion the Applicant was stoned and driven from her father's village when seeking to campaign for the FPI. As time went by she received several summonses and constantly changed addresses. Her house was ransacked frequently by the police. In February 1995 her husband left the Ivory Coast in the belief that his family would be safer following his departure. However, the Applicant continued to be harassed by the authorities who were seeking details of her husbands whereabouts. She continued to move around. Eventually she heard that an arrest warrant had been issued and this caused her to flee.
By letter dated 13 January 1998 the Applicant was informed that the Secretary of State had refused her claim for asylum. She gave notice of appeal to a Special Adjudicator and nominated Messrs Chanas, solicitors, as her authorised representatives. The Notice of Appeal is dated 12 February 1998. In his Determination the Special Adjudicator described the period between the Notice of Appeal and the actual hearing as follows:
"On 4 March 1998, notice of the time and place of the hearing fixed for 30 June 1999 was sent to Chanas.......On 25 August 1998 the Immigration Appellate Authority sent a fresh Notice of Hearing to Chanas stating that the appeal would be heard on 23 September 1998 at Gravesend. A copy was also sent to Mrs Bogou on the same day. On 18 September 1998, Chanas requested an adjournment on the grounds that they had submitted an application for legal aid on 9 September. They further indicated that if legal aid should be refused they would be transferring her case to a charitable body which would require time to prepare the case for representation. On 21 September 1998, the Ivorian Relief Action Group wrote requesting an adjournment on the basis that Mrs Bogou had no funds to pay for representation and that the Refugee Legal Centre was unable, in the time available, to represent her, having more work than it could manage."
It is surprising that application was being made for legal aid as it is common knowledge that legal aid is not available for a hearing before a Special Adjudicator.
Among the exhibited documents is a notice from the Refugee Legal Centre dated 4 September 1998 informing the Applicant that the Centre was "not able to accept you case due to lack of capacity. We are not able to represent you at your appeal."
On 23 September 1998 the appeal was listed before Mr C J Bennett, a Special Adjudicator. The Applicant was unrepresented. She appeared in person and sought an adjournment. It was refused. The Special Adjudicator went on to determine the appeal against the Applicant. He was not satisfied that if she were now to return to the Ivory Coast the authorities would have any interest in either her or her husband. He accepted that she feared persecution upon return but was not satisfied that her fear was well founded. Accordingly, he dismissed the appeal. The Applicant sought leave to appeal to the Immigration Appeal Tribunal. The Grounds advanced on her behalf went to the merits of the decision and did not refer to the refusal of an adjournment. On 18 December 1998 the Immigration Appeal Tribunal gave notice that the application for leave had been refused. In the Determination no reference was made to the refusal of an adjournment by the Special Adjudicator.
The present application was received in the Crown Office on 22 July 1999. I shall return to the question of delay later. The Grounds attached to the form 86A were settled by Mr. Fripp who has also appeared on this renewed application. He places at the centre of the application the refusal of the Special Adjudicator to grant an adjournment. In his Determination, the Special Adjudicator went into considerable detail on the matter of the application for an adjournment. He began by setting out the provisions of rule 10 of the Asylum Appeals (Procedure) Rules 1996. Rule 10 is in the following terms:
"(1) Subject to Rule 9(1) or (2), a Special Adjudicator shall not adjourn a hearing unless he is satisfied that an adjournment is necessary for the just disposal of the appeal.
(2) When considering whether an adjournment is necessary, a Special Adjudicator shall have particular regard to the need to secure the just, timely and effective conduct of the proceedings." (Emphasis added by the Special Adjudicator).

These provisions came into force on 1 September 1996. They are undoubtedly more stringent than the previous provision in the 1993 rules, Rule 10(1) of which provided that, generally, a Special Adjudicator
"may grant an application for an adjournment of a hearing upon being satisfied that there is good cause for the adjournment."
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.
The Special Adjudicator then went on to consider the facts of the present case in the light of that analysis. He stated:
"The case is not one of any real difficulty. Mrs. Bogou has already given her account of what occurred to the Immigration Officer at interview. It therefore seemed to me that she would have no difficulty in giving me her account of what had occurred. It is not the normal practice for the Secretary of State to call any witnesses in rebuttal of an appellant's evidence. This was not therefore a case in which cross examination of Home Office witnesses would be required. It therefore seemed to me that Mrs Bogou would suffer no prejudice if the matter proceeded and I heard her evidence that day. I had in mind that if at any time it should appear that the matter was more difficult than it had seemed to me at the outset I could review my decision and adjourn if the necessity for an adjournment should become apparent. Nothing emerged in the course of the hearing to indicate that an adjournment was necessary. I indicated however that I would delay the final preparation of my Determination until Wednesday 7 October 1998 so that Mrs Bogou and either her solicitors or the RLC could submit any documentary evidence as to the circumstances currently obtaining in the Ivory Coast or which would otherwise evidence a current risk of persecution. In those circumstances I was not satisfied that the grant of an adjournment was necessary for the just disposal of the appeal. I was precluded by the mandatory provisions of rule 10 from adjourning the hearing. I therefore refused Mrs. Bogou request. "
In my judgment that is a very careful consideration of whether or not in all the circumstances, it was necessary to adjourn the hearing for the just disposal of the appeal. I do not consider that it discloses any error of law. I should add that the Special Adjudicator went on to consider the application for an adjournment on the alternative basis that, contrary to his primary finding, he had a discretion to exercise. He decided that, on that basis, he did not consider it appropriate to grant the adjournment. Again, this conclusion was reached after a careful consideration of the relevant factors. If the Special Adjudicator and I were both wrong about the proper construction of rule 10 of the 1996 Rules, I do not consider that his alternative consideration on the basis of discretion is susceptible to challenge.
In the course of his submission Mr. Fripp suggested that the authorities point to a general presumption in favour of representation and of the granting of adjournments to facilitate it. He suggested that the approach of the Special Adjudicator was flawed by the failure to refer to these authorities. Ironically, some of the authorities were appeals from this same Special Adjudicator so it is more than likely that he was aware of them. The first in time was Ajeh (Immigration Appeal Tribunal 30 August 1996). It will be of observed that this decision was made before the 1996 Rules came into force. The Tribunal stated (transcript page 4):
"Whether or not a appellant is articulate the need for representation if (it) is wanted appears almost axiomatic given the obligation to give the most anxious scrutiny to cases of this kind."
The next case, Diazayisua (Immigration Appeal Tribunal, 16 October 1997) takes the matter no further because the outcome was on agreed terms. In Osho (Immigration Appeal Tribunal 16 September 1998) the Tribunal was chaired by the same Chairman as had presided in Ajeh. This time the Tribunal stated:
"In the Tribunal's view the Grounds of the Appeal have substance. It was unfortunate that in this case neither party was represented. If an Adjudicator is to proceed with an appeal in those circumstances or where the appellant is not represented there must be clear reasons for so doing stated in the Determination. It would be rare that an asylum claim would not be better put by a competent representative than by a case emerging through questions by an Adjudicator and his statement that he was considering all the documentary evidence. There would no doubt have been a structured presentation of the appellant's case and suggestions given to the adjudicator as to the assessment of documentary evidence."
Again it seems that the Secretary of State did not oppose a remittal. The same Chairman also presided in Juma (Immigration Appeal Tribunal, 17 July 1998). On this occasion the Tribunal stated:
"While the Tribunal sympathises with adjudicators faced with numerous applications for adjournment, it is in our view important that such an application be considered in the context of the importance of an asylum claimant claimed to the appellant, this is particularly so where, as here, the adjudicator finds the evidence before her is inconsistent. We appreciate that the appellant declined to give oral evidence before the adjudicator but in our view there is a considerable risk that the lack of representation would effect the focus and relevance of the evidence given"
Once more, the Secretary of State did not oppose a remittal. In Cabrera (Immigration Appeal Tribunal, 21 May 1998) the Tribunal again presided over by the same Chairman, stated:
"We sympathise with the adjudicator in facing the issue of an adjournment in a long standing case. However, we agree with the view expressed in Ajeh ......there is considerable risk in assessing an appellant as able to conduct his own case, particularly when the central issue is that of asylum. While, no doubt, the adjudicator did all he could to ensure fairness to the appellant that, with respect, is not to be equated with being represented. Although the adjudicator's approach was understandable, we take a different view of the circumstances as a whole and the matter will therefore be remitted for a hearing."
Finally, in Kyeyune (Immigration Appeal Tribunal 25 November 1998) the Tribunal (this time with a different chairman) again gave effect to agreed terms remitting the matter for a rehearing following the refusal of adjournment by a Special Adjudicator. Reference was again made to Ajeh.
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.
There is another matter to which I should refer in relation to the primary ground of challenge being based on the refusal of an adjournment. As I stated earlier, this ground was not advanced when leave to appeal was sought from the Immigration Appeal Tribunal. The present application is in form a challenge to the decision of the Immigration Appeal Tribunal in refusing leave to appeal. Miss Gray submitted that it is entirely inappropriate to seek to challenge the decision of the Immigration Appeal Tribunal by reference to a point which was never raised as a ground of appeal before that Tribunal. The application for leave to appeal to the Immigration Appeal Tribunal in this case appears to have been settled by a lawyer. I observe that when leave was refused the notification was sent to a firm of solicitors who must have been on the record. The grounds of appeal fell under two headings, namely credibility and internal flight. In the three page document, there was no reference to the refusal of an adjournment. There are circumstances in which the appellate authorities should apply their minds to points which were not expressly taken in the material before them. In Regina v. Secretary of State for the Home Department ex parte Robinson 1997 4 All ER 210 Lord Woolf MR stated (at pages 222 - 223):
"Because the Rules place an onus on the asylum seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should, of course, focus primarily on materials adduced before them, whether these are found in the oral argument before the Special Adjudicator or, as far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of convention law which favours the applicant although he has not taken it, then the Special Adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely `arguable' as opposed to `obvious'. Similarly, if when the tribunal reads the Special Adjudicator's decision there is an obvious point of convention law favourable to the asylum seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the Tribunal has a strong prospect of success if leave to appeal were to be granted."
The point in issue in the present case, namely the refusal of an adjournment, can hardly be classified as "an obvious point of convention law which favours the applicant". Here the Immigration Appeal Tribunal was faced with a closely argued document setting out substantive grounds of appeal. Is it arguable that, when scrutinising the determination of the Special Adjudicator in the light of the stated grounds of appeal, the Immigration Appeal Tribunal ought, of its own motion, to have felt such concern about the refusal of an adjournment that they should have granted leave to appeal by reference to that point. In my judgment that is not at all arguable. It would amount to a requirement "to engage in a search for new points". Immigration Appeal Tribunals work under considerable time constraints. Save in the important respects referred to by the Master of the Rolls in Robinson, it would be quite wrong to place them under any kind of duty to seek out points to which their attention has not been directed. I have already indicated that, in my judgment, the refusal of an adjournment in the present case was proper. Even if I had doubts about that, I would not have considered it appropriate to grant permission to apply for judicial review of the refusal of leave by the Tribunal by reference a ground such as this which made its first appearance in the form 86A.
Although almost all the hearing before me was taken up by the adjournment point, Mr. Fripp also sought to pursue his application by reference to perceived substantive deficiencies in the determination of the Special Adjudicator and in the refusal of leave by the Immigration Appeal Tribunal in relation to them. He frankly conceded that they were points which were linked to the issue of the adjournment refusal because he was submitting that, if an adjournment had been granted, a trained lawyer would have made submissions which would have necessitated consideration or more consideration of these points by the Special Adjudicator. To the extent that the points are dependant upon linkage with the adjournment refusal, they automatically fail in the light of my decision about that. As free standing points they also fail because they were either properly considered and rejected by the Immigration Appeal Tribunal or, if they were not raised in the grounds, they were properly ignored in the circumstances of this case.
It follows from all I have said that, in my judgment, this is a case in which the applicant has failed to produce arguable grounds of challenge in his application for permission to seek judicial review. There is, however, a further matter to which I should refer. When Scott Baker J refused permission of the papers he said:
"Your application is long out of time and there are no grounds to suggest that if I grant leave any application would be successful."
As has been seen, the application has not been successful upon a full consideration of the grounds of challenge. Miss Gray submitted that the application should also be refused on grounds of delay. The decision of the Immigration Appeal Tribunal was notified to the applicant's solicitor by a letter dated 18 December 1998. The present application was received in the Crown Office on 22 July 1999. By Order 53 Rule 4(1):
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made."
Also, section 31 (6) of the Supreme Court Act 1981 provides that where the High Court considers that there has been undue delay in making an application for judicial review the court may refuse to grant leave for the making of the application. The primary duty of an applicant is to "apply promptly". Can it be said that the applicant applied promptly in the present case? An affidavit by the trainee solicitor in the firm which lodged the application gives an unsatisfactory account of the delay in the present case. It accepts that from the moment the notice of determination arrived from the Immigration Appeal Tribunal, "there was thereafter delay for which this firm was responsible". There follows a description of logistical difficulties in the firm following the departure of an employee and the delay in finding a replacement. Nevertheless, the firm appears to have increased its workload during that period. The affidavit states that:
"Ironically, because there was an approaching deadline for submissionsof a judicial review application, it was not in Mrs Bogou's case considered appropriate to ask her to transfer to another firm of solicitors."
Apparently the Applicant signed a legal aid application form on 1 February 1999 and the firm were put in funds to seek counsel's advice as to the merits of an application. However, counsel was not instructed until 1 March 1999. Again, the reason was "pressure of casework during and after the casework vacancy and the imposition of extra work in the course of preparation for the firm's franchise preliminary audit scheduled for 26 March 1999". Counsel's positive advice was received on 11 March 1999. Delays for the same reasons to which I have already referred resulted in further correspondence with the legal aid authorities not taking place until 22 March 1999. Between that date and 1 July 1999 the delay appears to have been caused by problems in obtaining a legal aid certificate involving an appeal to an Area Committee and administrative delays of a familiar kind. Counsel was instructed again on 9 July 1999 and on 20 July 1999 he provided the necessary documentation for the application to be lodged. It was lodged the next day. In my judgment, it cannot be said that the present application was lodged promptly. By the time the legal aid application was submitted on 22 March 1999 the deadline for the "in any event" period of three months had already passed. In my judgment this was a case of "undue delay" and a singular lack of promptness. If it had raised grounds of challenge which were plainly arguable I would probably have seen fit to extend time. However, it did not and, quite apart from the lack of merit in this application, I would refuse it also on grounds of delay. I should add that the firm of solicitors who were involved in the preparation of this application are not the same firm who were advising the Applicant prior to the hearing before the Special Adjudicator.
For all the reasons I have given this application for permission is refused.


© 2000 Crown Copyright

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/292.html