The decision

Heard at Field House

AG (Late Service of Respondent’s Notice) Eritrea [2004] UKIAT 00134
On: 6 May 2004


Date Determination notified:

03 June 2004


Mr J Perkins
(Vice President)
Mr A Smith






1. Before us the appellant was represented by Mr R.M. Ramdas-Harsia of counsel, instructed by White Ryland Solicitors, and the respondent was represented by Mr D. Saville, a Senior Home Office Presenting Officer.
2. The appellant is a citizen of Eritrea. He was born on 13 March 1972 and so is now thirty-two years old. He appeals the decision of an Adjudicator, Mr P.J. Mulvenna, who in a determination promulgated on 2 September 2003 dismissed the appellant’s appeal against the decision of the Secretary of State that returning him to Eritrea was not contrary to his rights under the European Convention on Human Rights or the Refugee Convention.
3. In extreme summary form the Adjudicator accepted that the appellant was a Jehovah’s Witness from Eritrea but not that he risked persecution or other serious ill treatment in the event of his return to Eritrea. On the face of it this is a surprising decision. Jehovah’s Witnesses in Eritrea are often thought to risk persecution.
4. Before us Mr Saville accepted that it would be difficult for him to defend the Adjudicator’s conclusion unless the Secretary of State could attack the Adjudicator’s decision that the appellant is a Jehovah’s Witness but no Respondent’s Notice had been served. Mr Saville had come to the hearing room prepared to deal with that point. He had prepared a respondent’s notice which included the following:
‘At paragraph 22 of the determination, the Adjudicator baldly accepts that “the appellant is a Jehovah's Witness”. He gives no reasons for his finding and, in particular, no reasons for rejecting the Secretary of State’s challenge to this aspect of the claimant.’
5. Mr Ramdas-Harsia equally honestly and helpfully accepted that, if the respondent was allowed to take this point, he could not realistically argue against the appeal being allowed to the extent that it be remitted to be decided again.
6. Mr Saville applied to serve his Respondent’s Notice. He referred us to paragraph 19 of the Immigration and Asylum Appeals (Procedure) Rules 2003. Paragraph 9(2) is in the following terms:
‘A respondent’s notice must be filed –
(a) within such period as the Tribunal may direct; or
(b) where the Tribunal makes no such direction, within ten days after the respondent is served with notice that the appellant has been granted permission to appeal.’
7. It was Mr Saville’s case that the respondent’s notice can be served as of right within ten days of receipt of notice that the appellant has been granted permission to appeal and at any other time in accordance with a direction of the Tribunal.
8. It should be noted that the Procedural Rules do not require a person to have permission to serve a Respondent’s Notice. Once it is served it can be argued. This contrasts with the case of a person seeking permission to appeal to the Tribunal. Such a person must serve grounds of appeal and if the Tribunal gives permission to appeal the Vice President giving permission ‘must indicate the grounds upon which permission to appeal is granted’. An application for permission to appeal must be served in accordance with strict time limits (usually ten days after service with the Adjudicator’s determination) but under paragraph 16(2) the Tribunal may extend the time limits if it is ‘satisfied that by reason of special circumstances it would be unjust not to do so.’ It would be surprising if the rules were intended to provide for service of an application for permission to appeal at any stage but gave no power to permit a Respondent’s Notice at any stage. More importantly it is not easy to see why any respondent would want a direction permitting service of a Respondent’s Notice before the period of 10 days had elapsed.
9. Perhaps it should perhaps be noted that although most appellants to the Immigration Appeal Tribunal are claimants, there are many occasions when the appellant is the Secretary of State and in some circumstances the claimant may wish to serve a Respondent’s Notice.
10. We were satisfied after considering the rules that they do not prescribe a time limit for the service of a Respondent’s Notice. It is open to the Tribunal to give a direction concerning the filing of the respondent’s notice at any time before a determination is finally promulgated. Of course this power must be used in a way that is fair to both parties. It may very well be unfair to give a direction permitting a Respondent’s Notice where the appellant would genuinely need an adjournment to consider the points made and nothing in this determination should be seen to encourage late applications for a direction to serve a Respondent’s Notice.
11. We appreciated that it would be very irritating for the appellant if we gave permission to serve a Respondent’s Notice. If we did not he would be very likely to win his appeal. However, we are not engaged in a game. The overriding purpose of the rules is to ‘secure the just, timely and effective disposal of appeals’ and we could see no injustice to the appellant in allowing the respondent, albeit at a very late stage, to complain that the determination was unsound because it gave no reasoned decision on a fundamental matter of dispute.
12. Mr Ramdas-Harsia could not point to any injustice and it is to his credit that he did not waste our time with worthless submissions.
13. We directed that the respondent serve a Respondent’s Notice immediately at the hearing before us. Mr Saville did as directed.
14. Once we had done that Mr Ramdas-Harsia accepted that the only realistic course was for us to remit the appeal. The Adjudicator’s determination was unsound because it did not explain his decision that the appellant is a Jehovah's Witness. The whole appeal must be heard again.
15. In the circumstances we allow the appeal to the extent that it we direct it to be heard again by an Adjudicator other than Mr P.J. Mulvenna.

Jonathan Perkins
Vice President
26 May 2004