[2003] UKIAT 190
- Case title: OS (EU Accession, Appeal rights)
- Appellant name: OS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Lithuania
- Judges: Mr C M G Ockelton, Mr P R Moulden, Mr D J Parkes
- Keywords EU Accession, Appeal rights
The decision
OS (EU Accession - Appeal Rights) Lithuania [2003] UKIAT 00190
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 4th November 2003
Determination delivered orally at Hearing
Date Determination notified:
8.11.2003
Before:
Mr C M G Ockelton (Deputy President)
Mr P R Moulden
Mr D J Parkes
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
and
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
DETERMINATION AND REASONS
1. The first Appellant appeals, with leave, against the determination of an Adjudicator, Miss A M Cheales, deciding that he has no right of appeal against the Secretary of State’s decision to refuse him asylum and to remove him to Lithuania. The second Appellant appeals, with leave, against the determination of an Adjudicator, Mr J Azam, deciding that she has no right of appeal against the Secretary of State’s decision to refuse her asylum and to remove her to the Czech Republic.
2. The difficulty in both cases was the same: and the grounds of appeal are, in essence, the same. The position is this. A person who is to be removed to an accession country has, under s115 of the 2002 Act (or, in the case of more recent appeals, under s94 of the same Act), no right of appeal while he or she remains in the United Kingdom. In each of these cases, the Respondent claimed that the Appellant had no right of appeal because the notice of appeal was served at a time when the Appellant was in the United Kingdom.
3. It is relatively easy to see how that allegation came about. In each case, the Appellant was represented by the Immigration Advisory Service, personified before us today by Mr Warburton. In each case, the Appellant signed and dated a notice of appeal which was retained by his or her representative. The Appellant was then removed and it appears that, after that, the representatives served the notice on the Respondent. The Respondent, picking it up some time later, noted the date on it, which he assumed to be the date of service. The allegation that the right of appeal did not arise comes about through misunderstanding the date on the notice as the date of its service on the Respondent.
4. Mr Buckley, who represented the Respondent today, freely conceded that the allegations in the present cases were made as a result of a mistake by the Secretary of State. It follows that these two appeals need to be allowed and we allow them.
5. There is a wider issue. In a case such as this, where does the burden of proof lie? On all substantive matters the burden of proof in an asylum appeal is on the Claimant. But where there is alleged an individual fact which is primarily within the knowledge of the Secretary of State it is for the Secretary of State to establish that fact by evidence. Where the Secretary of State alleges that the notice was served at a particular time which has the effect of depriving the Claimant of a right of appeal, we think that it is for the Secretary of State to prove that fact. That is not to say that the Secretary of State has, in general, the task of proving that a notice was not served in time. These cases are different. It is that the Secretary of State alleges service on a particular date which deprives the Appellant of a right of appeal. In those circumstances, as it seems to us, it is for the Secretary of State to prove the date.
6. For the reasons we have given, these appeals are allowed and we direct that each of them be considered afresh by an Adjudicator other than the one who had previously determined it.
C M G OCKELTON
DEPUTY PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 4th November 2003
Determination delivered orally at Hearing
Date Determination notified:
8.11.2003
Before:
Mr C M G Ockelton (Deputy President)
Mr P R Moulden
Mr D J Parkes
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
and
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
DETERMINATION AND REASONS
1. The first Appellant appeals, with leave, against the determination of an Adjudicator, Miss A M Cheales, deciding that he has no right of appeal against the Secretary of State’s decision to refuse him asylum and to remove him to Lithuania. The second Appellant appeals, with leave, against the determination of an Adjudicator, Mr J Azam, deciding that she has no right of appeal against the Secretary of State’s decision to refuse her asylum and to remove her to the Czech Republic.
2. The difficulty in both cases was the same: and the grounds of appeal are, in essence, the same. The position is this. A person who is to be removed to an accession country has, under s115 of the 2002 Act (or, in the case of more recent appeals, under s94 of the same Act), no right of appeal while he or she remains in the United Kingdom. In each of these cases, the Respondent claimed that the Appellant had no right of appeal because the notice of appeal was served at a time when the Appellant was in the United Kingdom.
3. It is relatively easy to see how that allegation came about. In each case, the Appellant was represented by the Immigration Advisory Service, personified before us today by Mr Warburton. In each case, the Appellant signed and dated a notice of appeal which was retained by his or her representative. The Appellant was then removed and it appears that, after that, the representatives served the notice on the Respondent. The Respondent, picking it up some time later, noted the date on it, which he assumed to be the date of service. The allegation that the right of appeal did not arise comes about through misunderstanding the date on the notice as the date of its service on the Respondent.
4. Mr Buckley, who represented the Respondent today, freely conceded that the allegations in the present cases were made as a result of a mistake by the Secretary of State. It follows that these two appeals need to be allowed and we allow them.
5. There is a wider issue. In a case such as this, where does the burden of proof lie? On all substantive matters the burden of proof in an asylum appeal is on the Claimant. But where there is alleged an individual fact which is primarily within the knowledge of the Secretary of State it is for the Secretary of State to establish that fact by evidence. Where the Secretary of State alleges that the notice was served at a particular time which has the effect of depriving the Claimant of a right of appeal, we think that it is for the Secretary of State to prove that fact. That is not to say that the Secretary of State has, in general, the task of proving that a notice was not served in time. These cases are different. It is that the Secretary of State alleges service on a particular date which deprives the Appellant of a right of appeal. In those circumstances, as it seems to us, it is for the Secretary of State to prove the date.
6. For the reasons we have given, these appeals are allowed and we direct that each of them be considered afresh by an Adjudicator other than the one who had previously determined it.
C M G OCKELTON
DEPUTY PRESIDENT