The decision

MG (Hearing _ Discretion) Turkey, South Africa & Colombia [2004] UKIAT 00028


Date of Hearing: 13th January 2004
Determination delivered orally at Hearing
Date Determination notified:
18 February 2004


Mr C M G Ockelton (Deputy President)
Mr A Jordan
Mr J Perkins














1. The Appellant in all these three appeals is the Entry Clearance Officer. The Claimants are as follows. The first Claimant is a citizen of Turkey. She appealed to an Adjudicator against the decision of the Respondent Entry Clearance Officer, Istanbul, refusing her entry clearance as an au pair. The date of the decision was 23rd May 2000. The second Claimant is a citizen of South Africa. She appeals against the decision of the Entry Clearance Officer, Pretoria, refusing her entry clearance as a working holidaymaker. The date of that decision was 5th November 2001. The third Claimant is a citizen of Colombia. She appeals against the decision of the Entry Clearance Officer, Bogota, refusing her entry clearance as a student. The date of that decision was 17th January 2001.

2. In each case, after the appeal to the Adjudicator was registered, it was noted that the Claimant was outside the United Kingdom, as indeed in each case the Claimant had to be in order to maintain an appeal of this nature, and had not nominated a representative within the United Kingdom. The Appellate Authority thereupon sent a notice in form ADJ 11 to the Claimant and to the Entry Clearance Officer’s representative, the Home Office Presenting Officer’s Unit, in the following form:

“To the Appellant
No representative in the United Kingdom has been nominated.
The appeal may be determined by an Adjudicator on the basis of these documents, together with any further written submissions that you may wish to make.
Any written submissions must be received in this office by [a date which is specified, which is 12 weeks after the date of the notice].
Any written submissions or further documents in a language other than English must be accompanied by a certified full translation.
A copy of the Adjudicator’s written determination will be sent to you in due course.”

In each of these three cases there was no response to that notice.

3. The three appeals then came before the same Adjudicator, Mr D R M Harmston, at Newport on 9th January 2003. His determination indicates that it followed a hearing of the appeal but we apprehend that that is an error and that all these three appeals were determined without a hearing. He allowed all the appeals.

4. The grounds of appeal in each case are the same. They are as follows:

“1. The Adjudicator has erred in hearing the appeal on 9th January 2003 in the absence of a Presenting Officer.

2. The Appellate Authority had failed to comply with the Immigration Appeals (Procedure) Rules 2000 in that (a) it did not give the Secretary of State for the Home Department the opportunity to indicate whether or not a hearing was requested (Rule 43); and/or (b) it did not notify the Secretary of State for the Home Department of the date, time and place of the hearing (Rule 13).”

5. Before us today there has again been no representative for the Claimants. Mr Blundell has appeared for the Entry Clearance Officers. As we indicated to Mr Blundell at the beginning of the hearing before us, the position in these appeals is that by a long-standing procedure dating back, in our knowledge, to Rule 12(1)(c) of the Immigration Appeals (Procedure) Rules 1984, where an Appellant is outside the United Kingdom and no person is authorised to represent him at a hearing, a notice in the form currently represented by ADJ 11 is sent to both parties in order to give the Claimant or Appellant an opportunity to present any further material before the appeal is determined, probably on the papers, by an Adjudicator.

6. Rule 43, which is the successor of Rule 12, provides a number of opportunities for an appeal to be determined without a hearing. One of them is:

“(a) The Appellate Authority has decided, after giving every other party an opportunity of replying to any representations submitted in writing by or on behalf of the Appellant, to allow the appeal.”

That is the Rule which the Tribunal has used for a very long time what are sometimes called ‘paper remittals’. The grounds of appeal are submitted to the other party and if there is no further response to them the appeal is allowed by way of remittal. Another is:

“(b) The Appellate Authority is satisfied that the Appellant, except where the Appellant is the Secretary of State or an officer, is outside the United Kingdom or that it is impractical to give notice of the hearing and in either case that no person is authorised to represent him at a hearing.”

A further possibility which we mention for the sake of completeness is:

“(e) No party has requested a hearing.”

7. In each of these circumstances, and in others set out in Rule 43, the provision is that an appeal may be determined without a hearing. It is clear that nothing is to be treated as routine. An Adjudicator has power to determine an appeal without a hearing if these circumstances apply. There is no obligation: and in deciding whether to determine an appeal without a hearing he must exercise his judicial discretion.

8. It thus follows that, for example, if further submissions were made by the Claimants in response to the notice ADJ 11, it would be very unusual for an Adjudicator to consider it proper to proceed to determine the appeal forthwith without a hearing without giving the other party, the Entry Clearance Officer in most cases, an opportunity to respond to those further submissions. There may be many other reasons why an appeal should be or should not be determined without a hearing where the provisions of the Rule apply. The determinations before us are undoubtedly defective in that they fail to indicate that the Adjudicator was aware that he had a discretion, or that he had decided to exercise the discretion in the sense of proceeding to determine the appeals without a hearing.

9. We have, however, considered the substance of these appeals and we note that, as we have already indicated, there were no responses to the notices ADJ 11 in these cases; and that, although the Entry Clearance Officer had copies of those notices, he did not request a hearing in any of the cases. We therefore take the view that the defect of the determinations which we have identified was not vicious. We should, however, like to make it clear that an Adjudicator who has a discretion to exercise should always indicate that he is aware that he has a discretion. He will usually do this by indicating clearly both his decision on the matter in question and the reasons for exercising his discretion in that way.

10. Mr Blundell’s submission was broadly to the effect that the Entry Clearance Officer had, in these cases, been prejudiced by the Adjudicator determining and indeed allowing the appeals without further input from the Entry Clearance Officer. In our view, those submissions are without substance. In the procedure which we have indicated, the Entry Clearance Officer had at every appropriate juncture in these cases the opportunity to make whatever submissions he chose. Also, as we have indicated, if there had been further material coming from any of the Claimants, it would have been right for the Adjudicator to think very hard before proceeding to determine the appeals without a hearing and without giving the Entry Clearance Officer an opportunity to see the material which might cause a decision to be made against him.

11. These appeals, as we have indicated, were determined at a time when the 2000 Procedure Rules were in force. Rule 43 is no more. Its replacement is in Rule 45 of the Immigration and Asylum Appeals (Procedure) Rules 2003. That Rule is in the following terms:

“45 (1) An Adjudicator or the Tribunal may, subject to paragraphs (2) and (3) of this rule, determine an appeal without a hearing if –
(a) all the parties to the appeal consent;
(b) the party appealing against a relevant decision is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented;
(c) a party has failed to comply with a provision of these rules or a direction of the Appellate Authority, and the Adjudicator or Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or
(d) the Adjudicator or Tribunal is satisfied, having regard to the material before him or it and the nature of the issues raised, that the appeal can be justly determined without a hearing.
(2) Where paragraph (1)(c) applies and the Appellant is the party in default, the Adjudicator or Tribunal may dismiss the appeal without substantive consideration, if satisfied that it is appropriate to do so.
(3) Where paragraph (1)(d) applies, the Adjudicator or Tribunal must not determine the appeal without a hearing without first giving the parties notice of his or its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.”

12. The express successors to the parts of Rule 43 of the 2000 Rules which we cited above are sub-rules 1(a) and (b) of Rule 45. We note that the decision to determine an appeal without a hearing remains a discretionary decision for the Adjudicator. It is no doubt to be taken that if there is an indication that an appeal is to be determined without a hearing and there is no expression by either party to the contrary, an Adjudicator may find that all the parties to the appeal consent to determination without a hearing. The provision for determination without a hearing if the Claimant is abroad remains in the new Rule. But, in any event, it continues to be the case that an Adjudicator needs to decide in each individual case whether it is appropriate to determine the appeal without a hearing and (under the new Rule as under the old) he should indicate that he has made that decision within his discretion and give his reasons for doing so.

13. For the reasons we have given, the procedure adopted by the Appellate Authority in the present cases was within the Procedure Rules. Although the Adjudicator failed to indicate the way in which he was exercising his discretion and the reasons for it, we have also found that his procedure was sufficient to meet the circumstances of the present cases. For those reasons, these appeals are dismissed and the Adjudicator’s determination in all three cases must stand.