Tribunal decisions

The decision

BT (Former solicitors’ alleged misconduct) Nepal [2004] UKIAT 00311

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 14 September 2004
Determination delivered orally at Hearing
Date Determination notified: 25 November 2004

Before:

Mr C M G Ockelton (Deputy President)
Mr G Warr (Vice President)
Ms C Jarvis (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

For the Appellant: Ms S K Tucker of Asghar & Co
For the Respondent: Mr J McGirr, Home Office Presenting Officer

If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response.

DETERMINATION AND REASONS

1. The Appellant, a citizen of Nepal, appeals, with permission, against the determination of an Adjudicator, Mr C C Wright, dismissing her appeal against the decision of the Respondent on 28 February 2003 refusing her leave to enter after refusing asylum. Her appeal to the Adjudicator was on asylum and human rights grounds. Permission to appeal was refused by the Tribunal but granted on Statutory Review, the judge remarking that the Adjudicator’s determination failed to indicate an independent approach to the material before him, but rather appeared to adopt the reasoning of the Secretary of State in refusing the Appellant’s application.

2. Before us, two matters have been mentioned, one relating to the procedure before the Adjudicator and the other, as expected, relating to the Adjudicator’s determination. Ms Tucker, who appears for the Appellant, now represented by a firm of solicitors which is her third, at least, tells us that the Appellant did not appear before the Adjudicator because she was let down by a previous firm of solicitors, Adams Solicitors of 129 Mile End Road, London E1.

3. The history of that firm’s engagement in the appeal appears from the Authority’s file to be as follows. They replaced another firm of solicitors and wrote to the Authority on 18 July 2003 asserting that they had been authorised to represent the Appellant at the hearing of the appeal and were satisfied that all necessary financial and other arrangements had been made to enable them to do so. However, on 11 August 2003, that is to say sixteen days before the hearing before the Adjudicator, they wrote again to inform the Authority that they no longer acted for the Appellant and should be removed from the record as her representative. When the matter was heard by the Adjudicator, there was no appearance by the Appellant and there was no appearance by anybody on her behalf.

4. Ms Tucker asserts that the letter from the solicitors dated 11 August was in response to the Appellant’s refusal to pay their fees. We do not know whether or not that is right and we decline to make any finding against Adams Solicitors in a case in which, although allegations are made implicitly against them, they have been given no opportunity at all to reply to them. If the certificate which they gave in July is true, then the reason for the letter of 11 August may, in truth, be that the Appellant had decided no longer to retain them as her solicitors. We do not know.

5. We wish to make it clear that, in general, we will not make a finding of fact based on an allegation against former representatives unless, first, it is clear that the former representatives have been given an opportunity to respond to the allegation which is being made expressly or implicitly against them, and secondly, we are either shown the response or shown correspondence which indicates that there has been no response.

6. We pass to the issue which concerned the judge. The Adjudicator was faced with a case in which, although he was holding a hearing, neither party appeared before him. In those circumstances, the position under the Rules is quite clear. He is to consider, first of all, whether notice of the time and the place of the hearing has been properly served on the parties. He is then to consider whether there is any satisfactory explanation for the absence of the parties. If there is no satisfactory explanation, he is obliged to proceed in the absence of the party in question. If there is a satisfactory explanation, he retains a discretion as to whether to proceed or not. In the present circumstances, the Adjudicator went through that process in a way which we regard as entirely without fault. In paragraph 2 of his determination, he sets out the process which he went through and that resulted in his decision that he should proceed in the absence of the parties.

7. When an Adjudicator is faced with that situation, he must, of course, do all he can to ensure that the determination fairly reflects the input that both the parties have made to the proceedings so far. In many cases, the absence of the Appellant or any representative before the Adjudicator is quite properly taken as an indication of lack of interest in the appeal. In those circumstances, and particularly where there are no substantive grounds of appeal or no proper challenge to what the Secretary of State has said in the letter of refusal, it may well be right for the Adjudicator to record precisely that. He may say “There has been no substantive challenge to the conclusions or arguments of the Secretary of State in the letter of refusal save in standard form, or save by standard terms, or save as follows - which I do (or do not) accept”. In those circumstances, his determination may read as an acceptance of the Secretary of State’s reasoning. In those circumstances, it would be entirely proper for it to do so.

8. Those circumstances, however, are not this case. The Adjudicator had before him grounds of appeal relating to asylum which ran to some three pages and were carefully set out as a response to the Secretary of State’s letter of refusal with reference to facts which were available to the Secretary of State in reaching his conclusion. (The grounds of appeal relating to human rights are substantially less material.) It appears to us that the Adjudicator here erred, as the judge suspected, in that he failed to take into account all the material that was before him in order to reach his own assessment of whether the Secretary of State’s decision should stand in the light of the specific challenges to it made in the Appellant’s grounds of appeal.

9. For these reasons, although we regard the Adjudicator’s decision to proceed in the Appellant’s absence as entirely correct, we are bound to agree with the judge that his determination failed to engage properly with the issues or show that he had reached his own conclusion on the issues which the Appellant specifically raised. For those reasons, we have decided that this appeal will have to be reheard. We allow this appeal to the Tribunal and direct that the appeal be considered afresh by an Adjudicator other than Mr Wright.

C M G OCKELTON
DEPUTY PRESIDENT