The decision

Heard at Field House

HI(Transfer Order - Adjournment - Interests of Justice) Somalia [2004] UKIAT 00062
On 16 March 2004


Date Determination notified:

06 April 2004


Mr P R Moulden (Chairman)
Mr A L McGeachy


The Secretary of State for the Home Department





1. The appellant is the Secretary of State. The respondent is a citizen of Somalia. The appellant has been given permission to appeal the determination of an Adjudicator, Ms E Dubicka, allowing on both Refugee Convention and human rights grounds the respondent’s appeal against the appellant’s decision to refuse to grant her asylum. The respondent was granted limited leave to remain in the United Kingdom until 30 August 2003.

2. The hearing was conducted by video link with the Tribunal sitting in London and the representatives appearing in Birmingham. Mr A Lawther, a Home Office Presenting Officer, represented the appellant. Mr A Mahmood of counsel instructed by Hassan Solicitors, appeared for the respondent.

3. The respondent claimed to have arrived in the United Kingdom in June 2002 accompanied by her three children. She claimed asylum by post on 16 July 2002. The notice containing the decision against which she appeals is dated 2 September 2002. The Adjudicator heard the appeal on 22 April and 21 May 2003. Permission to appeal was granted on 4 August 2003.

4. The respondent claimed to fear persecution from majority clans in Somalia because of her membership of a minority clan, the Ashraf, Hassam sub-clan and Sharif Ali sub-sub-clan.

5. The main question which arises in this appeal is whether, at the hearing on 21 May 2003, events occurred as a result of which the Adjudicator should have stopped the hearing and sought an order transferring the proceedings for hearing afresh before a different Adjudicator. The power to do so arises under Rule 52 of the Immigration and Asylum Appeals (Procedure) Rules 2003.

6. The events of 21 May 2003 need to be viewed in the light of what happened on the first day of the hearing, 22 April 2003. The Adjudicator sets out these matters in paragraphs 3 to 8 of her determination in the following terms,

“3. The hearing finally commenced at four in the afternoon, on 22 April 2003. This had been delayed by about half an hour as the appellant entered with all her children. I did not consider that she could have a fair hearing with three children to attend to. I asked Mr Malik whether any thought had been given to making suitable arrangements, given he had been waiting until three in the afternoon. He had not. Fortunately the appellant quite readily managed to arrange for a friend to attend court. There was no explanation why the obvious childcare needs had not been addressed earlier in the day.

4. The Respondent served a CIPU October 2002 and the Danish Report [see above], and from the appellant’s representative came a signed and typed letter from a ‘Yusuf’ stating that he corroborates the appellant’s clan and her presence in Kismayo. The respondent and I were shown a Home Office letter dated 17 March 2001 on a recognised refugee but not in the witness’ name! I asked whether the witness was to be called and was told he was not as he was in London. No adjournment was sought. This was surprising, in view of the witness’ importance, but clearly that was a matter fro Mr Malik. There was an appellant bundle but Mr Malik could not explain to me why it was necessary to serve a duplicate of the Home Office bundle with a two page statement. Moreover on hearing the appellant and notwithstanding her signature at page 7, it sounded nothing like her. It was in legalistic language and sounded more like an argument than normal language. It repeatedly refers to the Secretary of State having ‘erred in relation to successive paragraphs and failing to consider matters which had been said.

5. The appellant was asked to ‘adopt’ her interview and the statement at page 7 of the appellant’s bundle. She was asked whether it was right she had never seen UN troops in Kismayo to which she replied ‘no, they used to stay, they were in Kismayo’. This was in 1995 and she though they left in June 19945. She was asked what she has said in interview. Her reply was that she was not asked whether there were Kismayo at that time you were there till recently’. [This was incomprehensible to me, though the appellant sounded articulate]. She confirmed that her family in Kismayo were her husband, the three children, another child who was killed, two sisters and a brother. She lived in Alanley, one of four areas, and the others were called Farjano, Fanola and Shqalaha. She was asked whether there was a railway station, to which she said no.

6. The Respondent at this stage objected that it seemed the case was not fully prepared and Miss Morgan felt prejudiced. Her objection was a valid one in my view as I could not yet deduce where Mr Malik was heading. I asked him how he expected me to judge whether the appellant’s geography of Kismayo was accurate and how the Respondent was to address that. His reply was the he would serve a map. Asked why he had not done so with the other documents, he said he had yet to find one on the internet. That response did cause me concern over the use of court time in this manner. I asked why the statement, which I indicated seemed to sound nothing like his client, did not set out the appellant’s evidence in chief, as recommended by the practice direction. He said ‘it was the caseworker’. All that had passed so far indicated to me scant regard for the court and the preparation of this appeal. Mr Malik, I regret, seemed to me to be ‘ad-libbing’ in calling evidence in chief. The hearing was adjourned to 21 May 2003, with directions which are on the IAA file. [By the resumed hearing, the witness statement was filed only a day late and I was assured had been served on the Respondent at the same time].

7. The day of the resumed hearing, the 21st May 2003, was not a good day for the IAA. Apart from this part-heard appeal, there was another listed that day, but both before different adjudicators, and other than myself. [The other also was allocated the incorrect interpreter]. That necessitated changes to the list in my court to accommodate the part heard appeals. In fact only this appeal proved to be effective. But the presenting officer tor this appeal, Miss Thandi, was in the court where the appeal had been erroneously listed. [The Respondent was in no way responsible for the incorrect listing]. I asked the Presenting Officer in my court, Miss Burroughs, to inquire about the Home Office position in respect of the two appeals, given the errors in listing, and to inform me. That was at half past eleven. At two o’clock in the afternoon, when I inquired whether Miss Burroughs was in court, I was advised she had left the building. There was no message, to the court usher’s knowledge. Mr Malik wished to proceed because the witness had travelled from London. In the light of no response from the Respondent I did so. However, after the appellant had given evidence for thirty five minutes, a more senior IAA member of staff advised me that a message had been left that Miss Thandi, who was still presenting another case, was to represent in this appeal. [There was no explanation why the message did not reach me sooner]. inquiries were made about the position in the other court and at about three o’clock Miss Thandi made an application to adjourn this appeal. She was still cross-examining in the other court. She had told the usher allocated to my court in the morning that she intended to represent.

8. I advised her that further evidence had been heard in her absence. Rule 40 of the Immigration and Asylum Appeals (Procedure) Rules 2003 required I must not adjourn unless satisfied that the appeal or application cannot otherwise be justly determined. I took into account the importance of the witnesses being cross-examined, in particular. But also I was concerned to secure an effective disposal of the appeal and avoid unnecessary attendance of witness. That is why the more appropriate application and solution, it seemed to me, was for a transfer order. I envisaged that such an application was likely to follow if I adjourned any way, given the evidence called in the Respondent’s absence. I could not see how to remedy that so as to ensure a fair hearing other than by starting afresh. Above all, I wished to avoid that happening with a witness attending a second time given he is material to a core issue. I therefore invited Miss Thandi to make a transfer order application on this occasion. She sought a short adjournment to take instructions. I referred her also to considerations of the witness’ travel costs. Mr Malik indicated his objection to an adjournment. Nor did he wish to agree to a transfer order being considered by a Senior Adjudicator as provided under Rule 52. However, Miss Thandi was instructed to ask me to mark the file with the adjournment request. She did not wish to seek a transfer order, as those were her instructions and could not assist me further with the logic of such a course. Nor did she wish me to put the appeal back until later in the afternoon. Therefore I heard the appeal, and from this point in accordance with the Surendran guidelines for Adjudicators.”

8. Having reached the conclusion that she should proceed with the hearing the Adjudicator did so, in the absence of a Presenting Officer. In a clear and careful determination she found the respondent and her witness to be credible. She concluded that the respondent was a Somali citizen who belonged to her claimed clan, sub-clan and sub-sub-clan. She found that the respondent would be at risk of persecution for a Convention reason and infringement of her Article 3 human rights.

9. The grounds of appeal are in the following terms,

“1) The Adjudicator has allowed this appeal under the 1951 Convention and Article 3 of the ECHR.

2) The Secretary of State would argue that the Adjudicator (Ms Dubicka) erred in deciding to hear this appeal, given the issues that arose on the day of the hearing.

3) The Secretary of State was ready to proceed with the substantive hearing on 21 May 2003. The Presenting Officer who had originally presented the appeal part-heard on 22 April 2003 (Miss Morgan) was not continuing to run the case, however, a different Presenting Officer (Miss Thandi), had prepared the case and was to represent the Secretary of State for the remainder of the appeal hearing.

4) It appears that on the day of the hearing the IAA had made a number of errors in regard to the listings. The Adjudicator’s determination covers this at paragraphs 6 and 7. The Presenting Officer, Miss Thandi, had been put into a different court from Adjudicator Ms Dubicka, whom the case was before as a part-heard. The Adjudicator does note at paragraph 7 of the determination that the Home Office were in no way responsible for the incorrect listing.

5) Miss Thandi was told of the error at 10 am, and informed the usher that she wished to present the case and to move the case at such short notice was unacceptable. It certainly appears from reading the Adjudicator’s determination at paragraphs 6 and 7 and Mrs Thandi’s minute of events, that there was a breakdown in communications. The Secretary of State would argue that this is not surprising, given messages were being relayed between courts by third parties.

6) The Secretary of State would argue that the matter should have been adjourned given the complications which arose through no fault of the Home Office. Whilst it is important for the appeal to be dealt with expeditiously, the overriding concern should be the just disposal of the appeal. The Secretary of State would argue he was disadvantaged in this matter, and that by proceeding to hear the appeal in the absence of the Presenting Officer was not in the interests of justice.

7) It is submitted that for the above reasons the Adjudicator’s decision to allow this appeal under the 1951 Convention and the ECHR is flawed, and that the Secretary of State’s appeal should be allowed.”

10. Permission to appeal was granted in the following terms

“The grounds virtually speak for themselves. The appeal had been adjourned part-heard on 22 April 2003 because the respondent’s representative seemed to be hopelessly unready. It might have been wise for there to have been an order for transfer at that time.

The Adjudicator gave directions and proceeded with the hearing on 21 May 2003 apparently under the belief that the directions had been served. In fact the Appellate Authority had sent out a notice reading “No further directions”. Upon the adjourned date this appeal together with another had been set down for hearing in the wrong court before the wrong Adjudicator. It was a court before which the Presenting Officer now concerned had an appeal. This one was removed from that court and the Presenting Officer made it known to the court staff that she would be presenting as soon as her first case was concluded. This message was not passed on to the Adjudicator. In ignorance of this the Adjudicator eventually commenced the hearing, heard evidence and then was addressed by the Presenting Officer seeking an adjournment. The Adjudicator herself though that she ought to abandon the proceedings at that stage to enable an order for transfer to be made but since that was not requested by either side continued with the hearing in the absence of the Presenting Officer because the then appellant had a witness from London whom she thought ought to be heard.

The Adjudicator took the view that justice could be done without an adjournment. That seems, with respect, to have been in conflict with the view she also held that there ought to have been an order for transfer.

The truth of the matter is that the Adjudicator was placed in an impossible situation as a result of the failure of the Appellate Authority to arrange the court list properly and as a result there was a breach of natural justice and the Secretary of State was not heard. Arguably there is only one possibility and that is that the appeal must be heard afresh by a different Adjudicator.

Opportunity must at least be given to that proposition to be considered and permission to the appeal is therefore granted.”

11. The Vice President who granted permission to appeal also directed that notice be given to the parties and their representatives in Form T12. It was given and the operative part of the letter stated,

“The Chairman is of the view that this is a case which is suitable for a remittal for a fresh hearing by another Adjudicator. The Chairman would be grateful if you would consider this proposal and, if you do not agree, inform the Tribunal of your objections within 14 days of receipt of this letter. If we do not hear from you within 14 days, the Chairman will assume that you are in agreement, and a determination will be issued accordingly. If there is an objection to the Chairman’s proposal, the matter will be listed.”

12. Normally, there is no reply to such letters and the appeal is remitted. Occasionally, there is a letter of support for the proposal, with the same outcome. Only rarely does one of the parties or their representatives object. In this case the respondent’s representatives objected in their letter of 2 September 2003. It is as a result that this appeal came before us for an oral hearing.

13. We find no merit in Mr Mahmood’s submission that there is any significance in the fact that the appellant fielded a different Presenting Officer on the first and second hearings (Miss Morgan on the first and Mrs Thandi on the second). The important question is whether the party, be that party the claimant or the Secretary of State, was represented by somebody. A party does not have the right to the same representative on an adjourned hearing. It is perfectly possible and desirable that if one representative cannot attend a replacement should familiarise himself or herself with the papers before the hearing and, if possible, be briefed by the previous representative. In fairness to Mr Mahmood he did not suggest that the same representative was essential, only that this was desirable. We agree. However, it is not a requirement.

14. Mr Mahmood submitted and Mr Lawther agreed that Mrs Thandi should have accepted the Adjudicator’s suggestion that the hearing be aborted and a transfer order obtained. We accept the explanation, that Mrs Thandi was an inexperienced Presenting Officer who took instructions before appearing before the Adjudicator and then stuck to her instructions in circumstances where, had she been more experienced, she would have recognised the merit of what was being suggested by the Adjudicator and, at the least, asked for time to seek further instructions. We do not accept that the Adjudicator was constrained by what Mrs Thandi was seeking, for reasons to which we will return. Mrs Thandi should have realised that an adjournment would not assist anyone. It would only postpone a pre-existing problem which had to be resolved.

15. Mr Mahmood accepted that by the time Mrs Thandi appeared before the Adjudicator the Adjudicator had heard approximately 35 minutes of further evidence. Mr Mahmood submits that the situation could at that point have been remedied had the Adjudicator either summarised the evidence to the Presenting Officer or provided the Presenting Officer with a copy of her record of proceedings. There is another possible course of action. The witness could have been asked to repeat the evidence. None of these alternatives would have been desirable. All of them could, arguably, disadvantage one party or the other.

16. Mr Mahmood submits that, having decided to proceed with the hearing in the absence of a Presenting Officer, the Adjudicator reached proper conclusions clearly open to her on the evidence. We agree with the latter part of this submission, not contested by Mr Lawther, but it begs the question whether, having discovered the problems, the Adjudicator should have proceeded any further. We find that she should not have done so.

17. We asked the representatives to assist us in relation to the question of whether, under Rule 52, an Adjudicator can seek a transfer order from a senior Adjudicator if an application for a transfer order is not made by either or both of the parties. Both accepted and we find that an application for a transfer order is not required before one can be made. An Adjudicator has power to ask a senior Adjudicator to make a transfer order of his or her own motion, although it may be prudent to inform the representatives of this intention and to hear their submissions before reaching a conclusion.

18. Rule 40 of the Immigration and Asylum Appeals (Procedure) Rules 2003 which deals with adjournment provides,

“40-1) Subject to any provision of these Rules or of any other enactment, an Adjudicator or the Tribunal may adjourn the hearing of any appeal or application.

40-2) An Adjudicator or the Tribunal must not adjourn a hearing on the application of a party, unless satisfied that the appeal or application cannot otherwise be justly determined.”

19. The provisions of Rule 40(2) do not apply to a transfer order under Rule 52 but, by analogy, some assistance can be gained by considering whether the appeal can be justly determined in the circumstances in which a transfer order is being considered.

20. There is a significant passage in paragraph 8 of the Adjudicator’s determination where she says.,

“That is why the more appropriate application and solution, it seemed to me, was for a transfer order. I envisaged that such an application was likely to follow if I adjourned anyway, given the evidence called in the respondent’s absence. I could not see how to remedy that so far as to ensure a fair hearing other than by starting afresh.”

This was a correct and appropriate assessment. The Adjudicator should have followed her judgment and sought a transfer order from a senior Adjudicator, notwithstanding Mrs Thandi’s objections, which are now conceded to have been misconceived. It is not clear whether the Adjudicator thought that she could seek a transfer order if this was contested. We find that she could have done. The reason given by the Adjudicator for continuing with the hearing, to avoid a witness having to travel to another hearing, is material but does not outweigh the importance of the fact that the appeal procedure was at that stage fatally flawed, incapable of proper remedy, and should have been resolved by a transfer order.

21. We allow the Secretary of State’s appeal and remit for hearing afresh before an Adjudicator other than Ms E Dubicka.

P R Moulden
Vice President