The decision

Appeal No:

FC (Appeals Procedure - Directions) Yugoslavia [2003] UKIAT 00007

Date of Hearing: 26th February 2003
Determination delivered orally at Hearing
Date Determination notified:


Mr C M G Ockelton (Deputy President)
HH Judge G Risius CB
Mr M Shrimpton






1. The Appellant is the Secretary of State for the Home Department. He appeals, with leave, against the determination of an Adjudicator, Mr Kenneth Gillance, allowing, without considering the merits, the appeal of the Respondent, a citizen of the Federal Republic of Yugoslavia, against his decision on 16th August 2000 to give directions for removal from the United Kingdom having refused asylum. Before the Adjudicator this appeal was certified under the 1993 Act. We need say no more about that feature of it, although we do emphasise that this is an appeal under the 1993 Act. The Claimant’s appeal before the Adjudicator was on asylum grounds only and as Mr Blundell, who appears for the Secretary of State before us today, has acknowledged, the undertaking given in Pardeepan applies to this appeal should the Claimant in due course wish to raise issues relating to human rights. Before us the Claimant has been represented by Mr Bazini, instructed by Howells.

2. There is no doubt that the Secretary of State’s conduct in relation to the Claimant’s claim merits criticism. The first letter refusing the Claimant asylum was, it is acknowledged, riddled with error. The letter appears to veer between treating the Claimant as from Kosovo and treating him as from the part of Southern Serbia which outside Kosovo. Subsequently, there have been a number of further documents issued by the Home Office in relation to this Claimant. They have all, we think, now been withdrawn and for good reason. It appears that not one of them was wholly correct. As a result, at one stage, the Tribunal appears to have had some doubts as to whether this appeal was properly before it at all, and there is no doubt that the documents which were before the Adjudicator when he attempted to consider this appeal were not merely incomplete: they were frankly confusing.

3. In the circumstances, as Mr Bazini has emphasised to us, the Claimant was bound to be in the situation that he was not aware of precisely what case against him he needed to meet. That situation is not readily excusable. Whatever may be the underlying merits of the Claimant’s case, he was entitled to have his claim considered properly and if refused, refused accurately in the form of documents which indicated clearly that his claim had been considered properly. In the later history of this appeal, the Claimant was entitled to the sort of consideration which he might have felt that he had had if only the Secretary of State had complied with the various directions which were made by various Adjudicators, but yet again, the Secretary of State, in our view, lamentably, failed to do.

4. Be that as it may, the short history of this appeal is that it was listed for hearing before an Adjudicator on 18th September 2000. By 12th January 2001, it was ready for full hearing, but at that stage there was an application for an adjournment because of the inaccuracies in the refusal letter. It was further suggested that at that stage the Secretary of State wanted to reconsider the decision to refuse the Claimant’s claim. Either then or later the Secretary of State took the view that it might be appropriate to reconsider the claim, not on the basis on which it had been made but on the separate basis that at that time the Secretary of State was not returning Claimant’s to Southern Serbia, the part of the world from which this Claimant claims to come.

5. An adjournment was granted relating to the hearing on 12th January 2001 and there were further adjournments granted at the request of the Home Office on 12th March 2001 and 15th May 2001. It is right to say that we have some concerns about that history. Of course, the applications were made by the Home Office and on each case, so far as we understand it, the Claimant consented to the adjournments; but nothing that we have seen relating to the applications, and nothing that Mr Bazini has shown us, suggests in our view that there was at that stage any real reason for an adjournment to be granted. The appeal was and is on asylum grounds only. If the refusal letter was inaccurate, that was a matter which could be dealt with simply by notice to the Claimant. There was little excuse for putting the hearing off simply on the basis that the Home Office wanted to consider different matters which would not have been relevant to the determination of the asylum claim which the Claimant had made.

6. In any event, in due course there were directions given by the Adjudicator on 10th July and there was a short hearing on 7th August followed by the full hearing on 24th August, as we have said. At that hearing, the Adjudicator found that the Secretary of State had failed to comply with directions. Having set out the failures, and having set out in short form, indeed it is right to say very short and partly incorrect form, the question which was in issue in the appeal. He wrote as follows:

“10. I therefore reached the conclusion that the Respondent in this case had failed to comply with a direction given under the Immigration and Asylum Appeals (Procedure) Rules 23000 and I was satisfied that in all the circumstances, including the extent of the failure and the reasons for it, that it was necessary to have regard to the overriding objective in Rule 30(2) and to allow this appeal without considering the merits (Rule 33(1) and (2)).

11. Accordingly, I allowed the appeal and gave that decision orally in the hearing. In those circumstances I found it unnecessary to make a decision on the certificate.

Appeal Allowed.”

It is against the Adjudicator’s decision to allow the appeal without considering the merits that the Secretary of State now appeals.

7. We should say first that although it forms no part of the reasoning in our decision, we have considerable doubts about whether the Adjudicator was entitled to give the directions that he did give, in particular relating to the preparation of a new reasons for refusal letter. Although it is right to say that the Claimant is normally entitled to know what is the case against him, it is not within the jurisdiction of an Adjudicator to require the Secretary of State to prepare his reasons for refusal in a specific or new form. That proposition we derive from the decision of the Court of Appeal in Mwanza. Mr Bazini has referred us to Vahid Razi (01/TH/01836) where, in the particular circumstances of that case, the Tribunal decided that Mwanza could properly be distinguished. In our view, and for the reasons which we shall shortly give in relation to the outcome of appeals where there has been non-compliance by the Secretary of State with directions, we think that the decision in Razi should not be followed.

8. In any event, taking the directions at their best, the Adjudicator concluded that as they had not been followed, he had the option of determining the appeal without considering its merits. As he correctly indicated, the source for the determination of an appeal without considering the merits is Rule 33 of the 2000 Rules, (which because of the date of the hearing applied to this appeal, although the appeal itself was under the previous legislation). We will set out the Rule in full, in the form in which it applied as at the time the Adjudicator determined the appeal.

“33. Failure to comply with these Rules
(1) Where a party has failed -
(a) to comply with a direction given under these Rules; or
(b) to comply with a provision of these Rules;
and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that it is necessary to have regard to the overriding objective in rule 30(2), the appellate authority may dispose of the appeal in accordance with paragraph (2).
(2) The appellate authority may –
(a) in the case of a failure by the appellant, dismiss the appeal or, in the case of a failure by the respondent, allow the appeal, without considering its merits;
(b) determine the appeal without a hearing in accordance with rule 43;
(c) in the case of a failure by a party to send any document, evidence or statement of any witness, prohibit that party from relying on that document, evidence or statement at the hearing.”

It is apparent that the form of words in paragraph 1 of the Rule is infelicitous and it has since been amended.

9. What is clear is that the Adjudicator, and indeed the Tribunal, in determining whether Rule 33 should be applied, is required to consider all the circumstances. In an asylum appeal, the major consequence of allowing the appeal is that, because of the limited grounds of appeal, whether under s 69 of the 2000 Act or s 8 of the 1993 Act, the Claimant is found to be a person whose removal as threatened would contravene the Refugee Convention. It is necessarily implicit in such a decision that the Claimant is a refugee: because only a refugee can be a person whose removal would contravene the Convention. So any case in which an Adjudicator allows an asylum appeal has the consequence that the Claimant is found to be a refugee. That is a matter which sets asylum appeals apart from other immigration appeals and indeed from human rights appeals, because a successful asylum appeal which gives the Claimant a status which is, to an extent, good not only in the United Kingdom but throughout the world. The consequence of allowing an asylum appeal is we think the first, and in some ways the most important, factor which an Adjudicator ought to take into account in the course of determining whether to apply Rule 33 in a case where there has been non-compliance with directions or any of the other matters which are set out in Rule 33(1).

10. Mr Blundell today has referred us to the determinations of the Tribunal in Rasheed Argosh Nori [2002] UKIAT 01887 and Ercan Aldogan [2002] UKIAT 05120. In the latter case, we said this:

“10. As the Secretary of State’s grounds point out, the Tribunal has already indicated in Rasheed Argosh Nori that asylum is a status which should not be granted to punish the Secretary of State for failing to do what he ought to have done. It should be considered on its merits. We would endorse that comment. The applicability of Rule 33 is of course entirely general, but that does not mean that it will always be just to apply it in individual circumstances. There are may cases including immigration cases, and perhaps also human rights cases, where the effect of an Adjudicator allowing an appeal against the Respondent without considering the merits merely puts the parties back in the situation in which they were before the Respondent made an adverse decision against the Claimant. Similarly, if there is an appeal by either party to the Tribunal it may be that allowing the appeal or dismissing the appeal without considering the merits will put the parties back in the situation in which they were before litigation began. But where the appeal is on the limited ground set out in s 69, the effect of allowing an appeal by the Claimant before the Adjudicator will always be to grant the Claimant asylum status. We do not think that it would ever by right to do that without considering the merits.”

The position here is that the Adjudicator allowed the appeal without considering the merits, with the effect of granting the Claimant asylum. As we have said, we do not think that that was an appropriate application of Rule 33. Mr Bazini asked us to say that the application of the Rule by the Adjudicator was not unlawful or an obviously inappropriate exercise of his discretion. We disagree. The use of Rule 33 in order to grant asylum to an individual who has never established on the merits that he is or may be entitled to asylum would, in our view, always be an abuse of Rule 33.

11. What then should the Adjudicator have done? We sympathise entirely with the matters which were in his mind when he came to the view that the Home Office had simply failed to comply with the directions which were being given and were, to put it broadly, making a mess of the Claimant’s case. He had papers before him: indeed, he had copious papers before him. It was open to him to determine the appeal on the merits taking, as he might well have done, a rather cursory view of the Secretary of State’s case, which the Secretary of State was having such difficulty in presenting in an intelligible fashion. If the Adjudicator had, after considering the material that was before him, reached a view adverse to the Secretary of State on the material that was there, we think that his decision could not properly have been challenged. The defect here is not that he allowed the appeal, but that he allowed it (and so granted status) without considering the merits.

12. For all these reasons, we have reached the conclusion that the Adjudicator’s determination cannot stand. The appropriate remedy is that the appeal be reheard by a different Adjudicator. In view of the confusion that has arisen relating to the removal directions, Mr Blundell has conceded today that if the Claimant is eventually removed, his removal will be to Belgrade. The Adjudicator before whom this appeal now comes will, as we have said, be concerned only with matters relating to the Refugee Convention, unless the Secretary of State decides to withdraw the first of the three removal direction notices, that is to say, the one issued on 16th August 2000, and replace it with a new one which will carry human rights (as well as refugee rights) of appeal. But, insofar as this appeal is concerned, it is limited to asylum matters and we direct that the Claimant’s appeal be considered afresh by an Adjudicator other than Mr Gillance, Mr Cruthers, Mrs Roberts or Mr Shrimpton, who sits on this panel.