Maqsood v Special Adjudicator & Anor [2001] EWHC Admin 1003 (3rd December, 2001)

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England and Wales High Court (Administrative Court) Decisions

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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1003.html
Cite as: [2001] EWHC Admin 1003

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MAQSOOD v THE SPECIAL ADJUDICATORTHE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2001] EWHC Admin 1003 (3rd December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1003
		Case No: CO/14/2001

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

03/12/01

B e f o r e :

MR JUSTICE STANLEY BURNTON
____________________

SAJID MAQSOOD
Claimant

and –

THE SPECIAL ADJUDICATOR

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendants

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Parveen Mansoor (instructed by Z Ali Dhanji) for the Claimant
Elisabeth Laing (instructed by the Treasury Solicitor) for the Defendant
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

MR JUSTICE STANLEY BURNTON:

In these proceedings, the Claimant seeks judicial review of:

(a) the decision of a Special Adjudicator dated 6 October 2000 to dismiss his asylum appeal and to uphold the certification of his claim by the Secretary of State for the Home Department;

(b) the decision of the Secretary of State to refuse to refer his claim for asylum back to the Special Adjudicator under Section 21 of the Immigration Act 1971, and to set removal directions for the Claimant for India for the 4 January 2001.

The claim arises because on the day fixed for the hearing of his appeal to the Special Adjudicator, 6 October 2000, the Claimant and a representative of his solicitors together with a witness appeared for the hearing of his appeal at Birmingham Court instead of at the Nottingham Hearing Centre where the appeal was due to take place. When the matter came before the Special Adjudicator in Nottingham, there was no explanation for the failure of the Claimant to appear. The Special Adjudicator proceeding with the hearing of the appeal. His decision dismissing the appeal was promulgated on 14 December 2000.

Essentially, the Claimant contends that his failure to attend the hearing at Nottingham on 6 October 2000 occurred without fault on his part or that of his solicitors and that fairness requires that the decision made in his absence should be set aside and his claim reheard.

Miss Mansoor on behalf of the Claimant was unable to pursue the claim for judicial review of the decision of the Secretary of State under section 21 of the 1971 Act, since at the times relevant to this case that section had been repealed. This claim was manifestly unfounded.

The Facts

The Claimant made a clandestine entry into the United Kingdom in April 1999. He surrendered to the police in Leicester on 10 May 1999 and claimed asylum. At all times material to these proceedings, the Claimant was represented by a firm of solicitors, Z Ali Dhanji of Leicester, whose practice includes a substantial amount of immigration work. The Secretary of State rejected the Claimant’s asylum claim by letter dated 10 April 2000. His solicitors served notice of appeal against the decision of the Secretary of State on 5 May 2000. The hearing of his appeal was first fixed for 6 September 2000. On 31 August 2000, the Claimant’s solicitors wrote to the Appellate Authority claiming that documents essential to the Claimant’s case were awaited from Pakistan, and requesting an adjournment for the hearing. Not surprisingly, given the time that had elapsed since the decision of the Secretary of State, the adjournment was refused. By 6 September 2000, the Claimant’s solicitors had not complied with any of the directions given by the Appellate Authority for the hearing of his appeal. On that date, the Claimant did not appear, but a representative of his solicitors did. A sick note was produced stating that the claimant was undergoing urgent medical tests and that he was unlikely to be fit to attend the hearing. As a result the hearing of the appeal was adjourned.

On 22 September 2000 a notice of adjourned hearing was sent out by the Appellate Authority. It identified as addressees the Claimant, his solicitors, and the Home Office Presenting Officers’ Unit, and included the correct addresses of the Claimant and of his solicitors. It gave notice that the hearing on 6 October 2000 had been adjourned, and the appeal would be heard on Friday 6 October 2000, at 10 am, at the Nottingham Hearing Centre. The reference to the original hearing of 6 October 2000 was an obvious and irrelevant error for 6 September 2000. The notice of adjourned hearing was received by the Home Office Presenting Officers’ Unit; a Presenting Officer attended the hearing, and had with him the Presenting Officers’ Unit’s copy of the notice. Both the Claimant and his solicitors deny receiving a copy of the notice.

The Claimant’s case is that he attended at Birmingham Hearing Centre as a result of a telephone call to his solicitors from “Graham” of “Appeals Section, Birmingham Court” informing them that the hearing would take place on that date. That telephone call is evidenced by a brief attendance note. The note does not refer to the venue for the hearing, and the Claimant contends that, since the hearing on 6 September 2000 had been at Birmingham, he and his solicitors were entitled to assume that the adjourned hearing would also take place there. On 4 October 2000, the Claimant’s solicitors sent copies of the appeal bundle to the Home Office Presenting Officer in Birmingham and to the Court Centre in Birmingham.

As mentioned above, on 6 October 2000, the Claimant attended at Birmingham Hearing Centre. He was accompanied by Miss Fauzia Zafar, who was then a relatively inexperienced trainee solicitor. The solicitor dealing with the appeal was Mr Raphael Osili. He was due to represent the Claimant, but he telephoned Miss Zafar, and told her that he would be late. He asked her to find out in which court the matter was listed and to tell the Home Office Presenting Officer he was running late. Miss Zafar went to the court reception where Ms Emma Livingston, an Administrative Officer, checked on the computer and informed her that the hearing was at Nottingham Hearing Centre, and not at Birmingham. Ms Livingston told Miss Zafar that the Office Manager would speak to her. A few minutes later, the Office Manager, Ms Cross, did come to Miss Zafar. Miss Zafar explained the situation. According to Miss Zafar, the Office Manager at Birmingham said that she would telephone Nottingham to inform them that the Claimant and his representative were at the wrong court. Miss Zafar telephoned Mr Osili and told him what had happened. He told her that in the circumstances he would not come to court. According to her statement, Miss Zafar checked the file and found that there was no written notice of the adjourned hearing. She asked the Claimant if he had received any correspondence concerning the change of venue, and he said he had not. According to Miss Zafar, about half an hour later the Office Manager returned and said she had tried calling Nottingham but had been unable to get through. She said that the court had recently set up there and there was no direct line for the Immigration Appellate Authority. She said she would keep on trying.

After over an hour, the Office Manager had not returned, and so Miss Zafar asked Ms Livingston to call the Office Manager again. Miss Zafar was told to continue to wait. Eventually, at around 12.45 pm, the Office Manager returned and said that she had been unable to get through to Nottingham but would keep on trying. According to Miss Zafar, she said that as they had attended the wrong court the matter would be adjourned. The Office Manager told Miss Zafar and the Claimant that they could go, as there was no point in waiting. They say that she had made a note “ and would call us to let us know”.

During 6 October 2000 Miss Zafar made an attendance note which reads as follows:

“Emma reception – wrong court should be Nottingham.

Advise client.

Called Raphael Osili – stay at court – he’s not attending.

Court Manager - will call Nottingham.

Not yet through - Will try again

Called office to let them know

Court Manager returned.

Not get through matter would be adjourned. She will make a note + will get back to us.

Advised client.”

On her return to the office, Miss Zafar handed the file to Mr Osili. She then ceased to have any responsibility for the matter.

When the appeal came up for hearing on 6 October 2000, neither the Special Adjudicator nor the Home Office presenting officer knew that the Claimant had gone to Birmingham Hearing Centre. Paragraphs 7 to 9 of the Special Adjudicator’s determination are as follows:

“7. On the 22 September 2000 further hearing notices were forwarded by the Immigration Appellate Authority in Birmingham to the Appellant, his solicitors and the Home Office informing them that the adjourned hearing would take place on 6 October 2000 and 10 am at the Nottingham Hearing Centre of the Appellate Authority.

8. On the 6 October 2000 I sat as a Special Adjudicator in Nottingham and this case was in my list. However neither the appellant nor anyone representing him attended, only the Home Office presenting officer Ms L Trench. I recounted the history of the matter as set out above and Ms Trench then requested me to determine the appeal ‘on the papers’ and to dismiss the same and also to uphold the Respondents certificate for the reasons set out in the above mentioned refusal letter.

9. I referred to the new Immigration and Asylum Appeals (Procedure) Rules 2000 which came into affect on 2 October 2000 and in particular I duly noted paragraphs 32, 33, 41 and 43. It was clear to me that there was no explanation whatsoever for the absence of the Appellant and his solicitors at the adjourned hearing, nor had they complied with the original directions issued with the first hearing notices referred to above and I accordingly ruled that in such circumstances it was mandatory for me to proceed with the hearing in their absence and to determine the appeal on the basis of the evidence before me i.e. the documentation in the appeal file.”

The written determination records that it was dictated on 6 October 2000. The Special Adjudicator’s signature is dated 28 November 2000, and the determination was promulgated on 14 December 2000.

Although according to Miss Zafar’s note the Court Manager at Birmingham had promised to revert to the Claimant’s solicitors, she did not do so. Neither Mr Osili nor anyone else at Ali Dhanji wrote to the Appellate Authority or to the Home Office in relation to what had occurred.

In early December 2000 Miss Zafar looked at the Claimant’s file. She noticed that there was no correspondence from the Appellate Authority following what she assumed to have been the abortive hearing of 6 October. According to her evidence, she telephoned Birmingham Court Centre and spoke to “Emma”, whom she (correctly) assumed to be the lady to whom she had spoken on 6 October. She made a note of the telephone conversation, dated 7 December 2000. The note reads as follows:

“I explained to her there was an appeal in 6/10/00. It was at Nottingham. All (parties) thought Sheldon as that as what Notice of Hearing said, all turned up at Birmingham. Office Manager said that she would call court and inform Adjudicator that the Appellant turned up at wrong court and it would be adjourned. She said nothing on file and she (would) get manager to call us tomorrow.”

Miss Zafar did not receive a telephone call from the Court Manager, and she did not chase the matter up. Nothing else was done by the Claimant’s solicitors.

On 14 December 2000, as mentioned above, the Special Adjudicator promulgated his determination. It was received by Ali Dhanji on the following day. They immediately sent a letter by fax to the Immigration Appellate Authority. The letter is as follows:

“We have today received the determination and reasons for the above matter whereby the Adjudicator dismissed the appeal. Furthermore the certificate was upheld. The determination and reasons stated that Appellant and the representatives failed to attend at the Hearing.

We along with the Appellant thought the appeal was to be held at Birmingham and all parties attended at court in Birmingham.

We were informed in Birmingham that it was held in Nottingham. The Manager at court made a note saying that all parties had attended the wrong court and tried to call Nottingham several times. She informed us that as the Appellant had attended at the wrong court the case would be adjourned.

We believed the matter was to be held at Sheldon Court and we addressed the venue as Sheldon in our Appeal Bundles. Furthermore as our client was persecuted this certificate should not have been upheld, proof of persecution was in the Appeal Bundles.

In light of the above we would be extremely grateful if the above matter would be released to be heard in front of an Adjudicator.”

The clerk to the Special Adjudicator replied on 19 December 2000:

“Further to your facsimile for 15 December 2000, the Special Adjudicator has stated that your application to re-list the appeal is refused, as there is no power to do so following promulgation of the determination.

Nor does the Immigration Appellate Authority have the power to re-promulgate the determination. No doubt you will give your client such advice that may be appropriate.”

Removal directions were subsequently given for the removal of the Claimant to Pakistan on 4 January 2001. They have not been executed pending the determination of the present proceedings.

The Immigration and Asylum Appeals (Procedures) Rules 2000

The procedural rules applicable to the appeal to the Special Adjudicator were the Immigration and Asylum Appeals (Procedures) Rules 2000 (“the Rules”). Paragraphs (1) and (2) of Rule 30 are as follows:

“(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal.

(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authority may give directions which control the conduct of any appeal.”

Rules 13, 14, 15 and 16, in so far as relevant are as follows:

“13. Notice of the date, time and place fixed for the hearing and any directions given under Rule 30 shall be served on the Appellant or his representative (in he has one) and any other party.

14. (1) except where Rule 43 or 44 applies, a hearing shall be conducted to determine the appeal.

(2)…

15. Written notice of the Adjudicator’s determination shall be sent to every party and the Appellant’s representative (if he has one).

16. (1) Where a party receives written notice of a determination to which there is no right of appeal to the Tribunal, he may apply to the Chief Adjudicator to review that determination on the ground that it was wrongly made as a result of an administrative or procedural error by the Adjudicator.

(2) An application under Paragraph (1) shall –

(a) be made not later than 10 days after written notice of the determination was received by the party;

(b) be in writing;

(c) identify all matters relied on;

(d) be accompanied by copies of all relevant documents.

As a result of the Special Adjudicator’s decision to uphold the Secretary of State’s certificate, the determination was one to which there was no right of appeal to the Immigration Appeal Tribunal, and Rule 16 therefore applied to it.

Rule 48, headed “Calculation of Time”, is as follows:

(1) This rule applies to any notice or other document sent, served or given under these Rules.

(2) … any notice or other document that is sent shall, unless the contrary is proved, be deemed to have been received –

(a) Where the notice or other document is sent by post to a place within the United Kingdom, on the second day after it was sent;

(b) …

(c) …

There is no provision in the Rules equivalent to Part 13 of the Civil Procedure Rules, conferring power specifically to set aside or to vary a determination made in default of the Appellant’s appearance.

Factual disputes

There are two important factual issues: whether the Claimant or his solicitors received the written notice of the adjourned hearing, and whether Miss Zafar was assured by the Birmingham Court Manager on 6 October 2000 that the hearing of the Claimant’s appeal would be adjourned.

The Special Adjudicator found as a fact that written notice of the adjourned hearing at Nottingham had been sent to the Claimant and to his solicitors. The Claimant’s claim form does not in terms take issue with this finding. It asserts only that “the Appellate Authority failed to inform the Appellant or his solicitors by a notice in writing of the change of venue of the hearing …”, which is consistent with a denial of receipt rather than a denial that the notice was sent. Be that as it may, given that the file copy of the notice of the adjourned hearing sets out the correct addresses of the Claimant and his solicitors, that the system of the Appellate Authority is to send a copy to each addressee, and that the copy addressed to the Home Office Presenting Officers’ Unit was received by it on 26 September 2000, as evidenced by the receipt stamp on its copy (as well as the presenting officer’s attendance on 6 October), I find that the Special Adjudicator was entitled to find that the notice had been duly sent by post to the Claimant and to his solicitors. Indeed, having regard to the evidence of Miss Cross, I find as a fact that the notice was so sent by post.

Rule 48(2) places the onus of proof on a claimant and his solicitor to show that a document sent by post by way of service was not received on the second day after it was sent, and a fortiori to show that the document was not received at all. See too section 7 of the Interpretation Act 1978 and A/S Catherineholm v Norequipment Trading Ltd [1972] 2 WLR 1242. The evidence of the Claimant’s solicitors and of the Claimant himself failed to satisfy that onus of proof.

In the case of the Claimant’s solicitors, the only evidence adduced was that of Miss Zafar. She was not responsible for the Claimant’s case at the time, and could only describe the system of receipt of documents in the Ali Dhanji office, and tell me that if received at reception the notice should have been attached to the Claimant’s file and the hearing diarised. She had not spoken to the employee or employees at reception. I had no evidence, written or oral, from Mr Osili, the solicitor in charge of the file. Miss Zafar’s evidence is insufficient to satisfy the onus of proof. My conclusion is fortified when I take into consideration the solicitors’ general lack of care in the conduct of the Claimant’s case shown in this case (for example, the failure to comply with the directions given by the Appellate Authority referred to in paragraph 5 of the Special Adjudicator’s determination, the delay in providing the documents allegedly awaited from Pakistan referred to in the same paragraph, the failure to chase the lack of a written notice of an adjourned hearing for 6 October 2000, the failure to communicate with the Special Adjudicator in writing on and after 6 October until the receipt of his determination, the error as to the date of the attendance note of 7 December 2000, the unexplained and in my view inexplicable factual error in paragraph 3 of the amendments to the grounds of appeal at page 11 of the hearing bundle, the delay in serving further amended grounds for the claim for judicial review by the agreed date of 14 September 2000, the failure to file a bundle for the hearing before me, and their failure to bring the Claimant’s file to Court). I conclude that the notice was received in the office and mislaid. Parenthetically, I note that Ali Dhanji subsequently also denied receipt of the letter of the Treasury Solicitor dated 18 July 2001.

The Claimant was staying with a friend and his friend’s family at his service address. He understood very little English, and would have had to get a letter in English translated. He was clearly relying on his solicitors to tell him where and when to go for the hearing, and there is every possibility that he would not have dealt with the notice when it was received.

I find that the Claimant’s solicitors mislaid the notice of the adjourned hearing. They were alerted to the date of the hearing by the telephone call on 3 October, and assumed that the hearing would be at Birmingham, the venue for the original hearing. Graham was not asked about the absence of any written notice. The Claimant’s solicitors telephoned the Claimant and told him that the hearing of his appeal would be at Birmingham on 6 October.

As to the alleged assurance that the hearing would be adjourned, I have no doubt that the question of adjournment was mentioned on 6 October in a conversation between Miss Zafar and the Court Manager. However, the Court Manager (Ms Cross) had no authority to adjourn the hearing or to get it adjourned (as Miss Zafar would have appreciated had she had more experience), and it is highly improbable that Ms Cross would have given an assurance that it would be adjourned. She may well have said something like she thought it would be adjourned, but that is very different from an assurance. Having heard and seen Miss Zafar, and taken into account her belatedly produced file note, her relative inexperience at the time, her error concerning the date of her note of the December telephone call, and the improbability of any assurance, I reject her evidence that any assurance was given. I also reject the suggestion that either Emma Livingston or the Office Manager undertook to sort the matter out: it is highly improbable that they would have done so, and indeed they had no power to do so. My conclusion is that when Miss Zafar and the Claimant left Birmingham Court Centre the position in relation to the appeal was, as far as they were aware, unresolved.

The regularity of the Special Adjudicator’s determination

It is clear from the reference in paragraph 9 of the Special Adjudicator’s determination that it was “mandatory for me to proceed with the hearing in (the) absence (of the Claimant and his solicitors)” that he applied Rule 41(2) (to which he referred). It appears that Rule 32 (to which he also referred) gave him the alternative of treating the appeal as abandoned; but that Rule would only apply if her were satisfied that the Claimant was not pursuing his appeal. The Special Adjudicator did not have material before him on which to be so satisfied. Given the absence of any explanation for the failure of the Claimant and his solicitor to appear, the Special Adjudicator was clearly right to apply Rule 41.

Miss Mansoor submitted that the Special Adjudicator or the Appellate Authority had notice that the Claimant intended to pursue his appeal by reason of the delivery to the Appellate Authority of his appeal bundle. However, it was sent to the wrong place, and in any event did not provide any explanation for the Claimant’s failure to appear.

In my judgment there was no irregularity in the Special Adjudicator’s proceeding to hear the appeal in the Claimant’s absence. However, as appears below, in my judgment the dismissal of the appeal did not become effective at the conclusion of the hearing on 6 October 2000.

Ali Dhanji could, and clearly should, have communicated in writing with the Appellate Authority on 6 October 2000 or on the following day, stating what had occurred and asking for an adjourned date for the hearing or (once they had learned that the hearing had taken place) a rehearing. Had they done so at any time before the promulgation of the determination, the Special Adjudicator could have reconsidered the matter. His determination was not effective until written notice of it is given under Rule 15. In this connection I refer to the judgment of Harrison J in R v a Special Adjudicator ex parte Bashir (unreported, 6 December 1999) with which I entirely agree. In my judgment, the changes in the applicable statutory provisions since that decision do not affect Harrison J’s conclusion.

It may well be that if the matter had been explained promptly to the Special Adjudicator, he would have ordered a rehearing, as in my judgment he is empowered to do under Rule 30. Even after the telephone conversation of 7 December 2000 it was not too late to write to the Special Adjudicator, and it was obviously important to do so when the Court Manager did not call on the day after that telephone call, as the note of the call stated she had said she would.

It follows that the fundamental fault for the making of a determination without the Claimant’s case being heard was that of his solicitors. They should not have mislaid the written notice of the adjourned hearing. Equally, once they knew that they had attended at the wrong venue, they should have communicated with the Special Adjudicator and the Home Office in writing to explain what had occurred. It was their duty to protect their client’s right of appeal actively, and it was insufficient for them simply to await events.

The response to Ali Dhanji’s letter of 15 December 2000

The Special Adjudicator regarded himself as having no power to rehear the appeal after his determination had been promulgated: I refer to his clerk’s letter of 19 December 2000. He was right: he was functus officio.

Miss Mansoor submitted that Ali Dhanji’s letter of 15 December 2000 was an application for the review of the determination, pursuant to Rule 16. It clearly was not. It was not addressed to the Chief Adjudicator, it did not mention Rule 16, and it was not accompanied by any relevant documents as required by Rule 16(2)(d). It did not ask for a review of the determination, but only for the matter to be relisted. No one who had Rule 16 before him would have written the letter of 15 December 2000 as it was written.

Literally construed, Rule 16 would not have helped the Claimant. The adjudicator had made no administrative or procedural error. However, so construed the Rules have no provision dealing with a case where an appellant genuinely does not receive notice of the hearing of his appeal, or an appellant is unavoidably detained (as many might have been during the recent difficulties with trains). It may be that no such provision is in practice necessary, because there is usually a delay between a hearing and the promulgation of a decision. Subject to that point, I think that the Lord Chancellor and Parliament must have intended there to be a remedy in such cases. I tend to the view that the words “an administrative or procedural error by the adjudicator” should be construed as including a case where the adjudicator mistakenly believes that there is no satisfactory explanation for the absence of an applicant when in fact there is, and even though the adjudicator is not personally at fault in so believing. However, I need not express any concluded view on this point.

If this interpretation of the Rules is correct, the Claimant had a possible alternative remedy under the Rules but his solicitors failed to pursue it. In this connection I do not accept Miss Mansoor’s submission that the clerk to the Special Adjudicator was at fault in stating in the letter of 19 December 2000 that the Immigration Appellate Authority did not have power to re-promulgate the determination. Ali Dhanji’s letter of 15 December had simply asked for the Claimant’s appeal to be relisted, and there was no power simply to relist. As I stated above, the letter of 15 December was clearly not an application under Rule 16, and absent such an application being made and granted, the Claimant’s appeal had been finally determined. In any event, the letter of 19 December assumed that Ali Dhanji could and would give their client appropriate advice.

Should a remedy be given in this case?

Two of the contentions advanced on behalf of the Claimant may be rejected summarily. As I stated above, the contention that the Secretary of State should have referred the case back to the Special Adjudicator under section 21 of the Immigration Act 1971 is hopeless: section 21 was repealed by the 1999 Act with effect from 2 October 2000.

The Claimant’s reliance on Article 6 of the European Convention on Human Rights is equally misplaced. Article 6 does not apply to decisions regarding the stay of aliens, which do not involve civil rights and obligations within the meaning of that Article: see the decision of the European Court of Human Rights in Maaouia v France (Application no. 39652/98, 5 October 2000, unreported), and that of the Immigration Appeal Tribunal in MNM v Secretary of State for the Home Department (1 November 2000).

Quite apart from the question of the actual receipt of notice of the adjourned hearing, reasonably competent solicitors would have noted that they had not received a written notice of the adjourned hearing of 6 October 2000, and ensured that they had the correct date, time and place for the hearing. They certainly would have communicated in writing with the Appellate Authority on or immediately after 6 October. They would also have pursued the matter in writing in early December, following Miss Zafar’s telephone call. Following the promulgation of the determination, they should have applied to the Chief Adjudicator under Rule 16. Those failures are the cause of the determination of the Claimant’s appeal without his case being heard. If it be the case that the fault of the Claimant’s solicitors should debar him from relief, he is not entitled to any remedy in this case.

In Al-Mehdawi v Secretary of State for the Home Department [1989] 3 WLR 1294, the House of Lords held that an immigrant deprived of the opportunity to present his case as a result of the negligence of his solicitors had no ground for complaint in law.

However, in Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663, the Court of Appeal quashed a decision of the Immigration Appeal Tribunal dismissing the Claimant’s appeal against the determination of his asylum application by a Special Adjudicator on the basis of fresh evidence, not available to the Immigration Appeal Tribunal or to the judge at first instance, showing that the Special Adjudicator had misunderstood or misnoted a significant piece of evidence. The decision of the House of Lords in Al-Mehdawi was distinguished, principally on the ground that it concerned student leave rather than asylum.

Haile is authority for the proposition that, at least in an asylum case, in the interests of justice a decision of a tribunal (in that case the Immigration Appeal Tribunal) may be quashed even where it has made no error if, through no fault of the tribunal or the parties, it was unaware of facts relevant to the issue before it, and where the failure to bring the matter to the attention of the tribunal was that of the appellant’s legal representatives. It is understandable that the position in relation to asylum cases should be different, given the potential consequences to an appellant of the mistaken rejection of his claim.

However, the facts of Haile were very different to those of the present case. In that case the appellant had been deprived of a fair hearing because of the failure of the Special Adjudicator to understand or correctly to note an important item of evidence.

In the present case, the Claimant was deprived of the opportunity to present his case to the Special Adjudicator by the negligence of his solicitors. Even if their attendance at the wrong court had occurred without fault on their part (and I have found that it did not) their client’s position could and should have been retrieved by appropriate prompt written communication with the Special Adjudicator. If the Special Adjudicator had known what had happened before his determination was promulgated, he could have arranged a rehearing of the appeal.

The Rules place considerable stress on expedition, compliance with directions, and attendance at hearings, although not at the expense of fairness. The effect of Rule 13 is that it is sufficient to give notice of a hearing to the solicitors acting for an appellant: I refer to the words “the appellant or his representative (if he has one)”. It follows that a failure to serve notice on an appellant in person is irrelevant under the Rules if his solicitor has been served, and that an appellant may be prejudiced if his solicitor fails to respond to a notice served on him, even though the appellant is personally not at fault. It seems to me that to give relief in the present case would be inconsistent with the prescription of procedural order. This is not simply a case of a solicitor’s failure to deal with a written notice of an adjourned hearing: it is a case in which nothing was done to protect the Claimant’s appeal rights for 2 months after the date of the hearing. The Claimant had adequate opportunity to present his case or to seek to do so on 6 October 2000 and during the ensuing 2 months until the Special Adjudicator’s determination was promulgated.

For the reasons set out above, fairness does not require the quashing of the decision of the Special Adjudicator in this case. The claim for judicial review will be dismissed.

I should like to express my appreciation of Miss Laing and the Treasury Solicitor for bringing to my attention the unreported decisions in Haile and Bashir.

- - - - - - - - - -

MR JUSTICE STANLEY BURNTON: My judgment in this case has been circulated in draft and sets out my conclusion. Copies are available for all those who may be interested.

MISS McCAFFERTY: My Lord, I am grateful. There is no application for costs and I believe that deals with the matter.

MR JUSTICE STANLEY BURNTON: Thank you very much indeed.

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Maqsood v Special Adjudicator & Anor [2001] EWHC Admin 1003 (3rd December, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1003.html Cite as: [2001] EWHC Admin 1003

	SAJID MAQSOOD	Claimant
	and –
	THE SPECIAL ADJUDICATOR THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendants