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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 (23 January 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/13.html Cite as: [2007] EWCA Civ 13 |
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C5/2005/2036 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEALS FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
NO.AS/05728/2004
NO.HX/54826/2003
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ARDEN
and
LORD JUSTICE WALL
____________________
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Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT MB(LIBYA) - and - |
Respondent Appellant |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
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Ms S Chan (instructed by The Treasury Solicitor) for the Respondent
Mr R Drabble QC & Mr G Denholm (instructed by Tyndallwoods Solicitors) for the Appellant
Ms S Chan (instructed by The Treasury Solicitor) for the Respondent
____________________
Crown Copyright ©
Lord Justice Sedley :
The issue
The facts: P's case
6. There was no appearance by the Appellant. I am satisfied that she was correctly served with notice of hearing at her last known address. Furthermore, prior to the hearing, the court received a letter from the Appellant's representatives Punatar and Company Solicitors stating that they had closed their immigration department. They had written to the Appellant at her last known address and the letter had been returned to them. They had no further instructions and asked that their firm's name be removed from the court record as acting. A check was made with the solicitors that the address which the court had was the same one as that held by the solicitors. The notice of hearing had also been returned.
7. Paragraph 56 of the Asylum and Immigration Tribunal Procedure Rules 2005 states that every party must notify the Tribunal in writing of a postal address at which documents may be served on him and of any changes to that address. Until a party notifies the Tribunal of a change of address any documents served on him at the most recent address which he has notified to the Tribunal shall be deemed to have been properly served on him.
8. Under paragraph 19 (1) of the same Rules the Tribunal must hear an appeal in the absence of a party or his representative if satisfied that the party has been given notice of the time date and place of the hearing and has given no satisfactory explanation for his absence.
The appellant has put forward no explanation for the discrepancy in her written evidence and was not present in court today to answer the points made by [the HOPO].
Later she reminded herself (§19) that the burden of proof, albeit modest, lay upon the appellant, and continued:
She has chosen not to keep in touch with her legal representative nor to have informed the court of any change of address. These are not the actions of a person who is genuinely interested in pursuing her appeal.
As these well-drafted grounds accept, the application is out of time and there is no discretion on the part of the Tribunal to extend time.
Had the application been in time I would have granted permission to appeal. There is an arguable case that the applicant's former representatives negligently misrepresented her address details. Furthermore, the SIJ's observations at para 19 seem to indicate that attendance by the applicant may have resulted in a different approach being taken to the issue of credibility. Whilst the SIJ cannot be criticised for assuming the applicant had been notified, there may arguably have been an error of process in this case amounting to a material error of law.
The facts: B's case
8. The Appellant failed to attend today despite the Respondents having challenged his credibility and the obvious and numerous discrepancies between his two accounts. I find that this failure to attend serves to underline the fact that this Appellant's credibility is so fundamentally flawed that the discrepancies and quantity of unmitigated lies which he has told cannot be resolved no matter what amount of further evidence could have been supplied.
The Rules
s.106: Rules
(1) The Lord Chancellor may make rules:
(a) regulating the exercise of the right of appeal under section 82[[, 83 or 83A] or by virtue of section 109];
(b) prescribing procedure to be followed in connection with proceedings under section 82[[, 83 or 83A] or by virtue of section 109]
(1A) In making rules under subsection (1) the Lord Chancellor shall aim to ensure:
(a) that the rules are designed to ensure that proceedings before a Tribunal are handled as fairly, quickly and efficiently as possible, and
(b) that the rules where appropriate confer on members of the Tribunal responsibility for ensuring that proceedings before the Tribunal are handed as fairly, quickly and efficiently as possible.
(2) In particular, rules under subsection (1):
(a) must entitle an appellant to be legally represented at any hearing of his appeal;
(b) may enable or require an appeal to be determined without a hearing;
……
(e) may enable or require… the Tribunal to determine an appeal in the absence of parties in specified circumstances:
……
(n) may make provision (which may include presumptions) about service;
Overriding objective
4. The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.
Hearing appeal in the absence of a party
19(1) The Tribunal must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative -
(a) has been given notice of the date, time and place of the hearing, and
(b) has given no satisfactory explanation for his absence.
(2) Where paragraph (1) does not apply, the Tribunal may hear an appeal in the absence of a party if satisfied that:
(a) a representative of the party is present at the hearing;
(b) the party is outside the United Kingdom;
(c) the party is suffering from a communicable disease or there is a risk of him behaving in a violent or disorderly manner;
(d) the party is unable to attend the hearing because of illness, accident or some other good reason;
(e) the party is unrepresented and it is impracticable to give him notice of the hearing; or
(f) the party has notified the Tribunal that he does not wish to attend the hearing.
Determining the application
36(3) Where the Tribunal intends to grant permission to appeal it may, if it thinks that the Tribunal has made an administrative error in relation to the proceedings, instead set aside the Tribunal's determination and direct that the proceedings be reheard by the Tribunal.
Filing and service of documents
55(5) Subject to paragraph (6), any document that is served on a person in accordance with this rule shall, unless the contrary is proved, be deemed to be served:
(a) where the document is sent by post or document exchange from or to a place within the United Kingdom, on the second day after it was sent;
(b) where the document is sent by post or document exchange from or to a place outside the United Kingdom, on the twenty-eighth day after it was sent; and
(c) in any other case, on the day on which the document was sent or delivered to, or left with, that person.
Address for service
56(1) Every party, and any person representing a party, must notify the Tribunal in writing of a postal address at which documents may be served on him and of any changes to that address.
(2) Until a party or representative notifies the Tribunal of a change of address, any document served on him at the most recent address which he has notified to the Tribunal shall be deemed to have been properly served on him.
Submissions
Discussion
Absence with good reason
Informal notice
Tribunal's knowledge
Judicial recourse
Are the Rules fair?
The surrogacy principle (1)
What do the Rules mean?
The surrogacy principle (2)
It has traditionally been thought that a Tribunal which denies natural justice to one of the parties before it deprives itself of jurisdiction. Whether this view is correct or not, a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae. But there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of prosecution and claims which are not made within a fixed time limit which the Tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor's neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. Again, take the case of a county court action where a litigant fails to appear at the hearing because his solicitor has neglected to inform him of the date and consequently judgment is given against him. He can at best invite the court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice, he ought in principle to be able to apply for certiorari to quash the judgment which, if he is personally blameless, should be granted as a matter of course.
These considerations lead me to the conclusions that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been a victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle that can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.
25. ….It is of course most unfortunate that this mistake was not uncovered until it was when and plainly it could and should have been. Were the old Ladd v Marshall principles to be strictly applied, then surely the appellant would fall at this first hurdle. The fact is however that these principles never did apply strictly in public law and judicial review. As Sir John Donaldson MR said in R v Secretary of State for the Home Department ex parte Ali [1984] 1 WLR 663, 673:
"… the decision in Ladd v Marshall [1954] 1 WLR 1489 has no such place in that context,"
although he then added:
(a) " However, I think that the principles that underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require."
26. Nor am I persuaded that the House of Lords' decision in Al-Mehdawi precludes this court having regard to the wider interests of justice here, not least given that this is an asylum case rather than a student leave case as was Al-Mehdawi. Aspects of that decision may in any event now need to be reconsidered in the light of the House of Lords' speeches in R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330.
We never let a party suffer because his solicitors have made a mistake and are a day or two late in giving notice of appeal….All the more so … where [the appellant] would have no remedy against her solicitor for any negligence. If she is out of time for appeal, she will be removed from this country, and it would be of no consolation to her to say that she has a remedy against her solicitor.
This decision was followed in R (Tofik) v IAT [2003] EWCA Civ 1138 (an asylum case) where, at §24-5, with the agreement of the other members of the court, I said:
The law has historically regarded client and solicitor as one, at least to the extent that the latter acts as agent for the former. But … a client is not necessarily fixed with her or his solicitors' errors in seeking to oppose removal from the United Kingdom, at least when the client has been in no way responsible for them.
The law on delegated legislation
19. It follows that infringement of such a right must be either expressly authorised by a provision in an Act of Parliament or arise by necessary implication. Even where it can be said that the making of a rule under powers to make rules by subordinate legislation arise by necessary implication, it will still be in question whether the rule formulated is reasonable. Even where the need for such a rule does not arise by necessary implication either because the purpose of Parliament cannot be achieved without it or the function Parliament has laid in a person or body cannot be discharged without it, the rule will be ultra vires the rule-making power if the rule as framed is unreasonable: if it is wider than necessary; if it infringes the fundamental right to a greater extent than is required.
26. The conclusion I have reached is that rule 42(1)(a) is not expressly authorised by the 1971 Act. The rule goes beyond regulating rights of appeal to the Tribunal in that it can deny a party her chance to appeal where the party has, through no fault of her own, failed to comply with the five day rule. A rule of such severity is not reasonable because it is not necessary to achieve the objective of timely and effective disposal of appeals and may well deny an asylum seeker "the just disposal" of her appeal which is another objective identified in rule 23. The rule, in the circumstances which have arisen in this case, goes beyond regulating the right of appeal and is destructive of that right. I would declare the rule invalid insofar as it purports to determine conclusively the moment at which an asylum seeker receives notice of the special adjudicator's determination for the purpose of starting the five day period for applying leave to appeal. I would express no view on the validity of the rule for determining the date on which other notices have been received by parties to asylum appeals. The operation of the rule in respect of other notices has not been the subject of evidence or argument before us.
Hale LJ at §53 set out the classic guidance given by Lord Russell of Killowen CJ in Kruse v Johnson [1898] 2 QB 91, 99-100:
I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn bye-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can be properly be regarded. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges think ought to be there.
Having noted that the European Court of Human Rights had not, or not yet, included asylum appeals in the civil rights directly protected by article 6, she said at §55:
…There are now a large number of Tribunals operating in a large number of specialists fields. Their subject matter is often just as important to the citizen as that determined in the ordinary courts. Their determinations are no less binding than those of the ordinary courts: the only difference is that Tribunals have no direct powers of enforcement and, in the rare cases where this is needed, their decisions are enforced in the ordinary courts. In certain types of disputes between private persons, Tribunals are established because of their perceived advantages in procedure and personnel. In disputes between citizen and state they are established because of the perceived need for independent adjudication of the merits and to reduce resort to judicial review. This was undoubtedly the motivation for grafting asylum cases onto the immigration appeals system in 1993. In this day and age a right of access to a Tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the courts.
56. I also accept that the more fundamental the right interfered with, and the more drastic the interference, the more difficult it is to read a general rule or regulation-making power as authorising that interference. Whether that is approached along the route of "necessary implication" adopted in Leech or along the route of "reasonable contemplation of Parliament" derived from Kruse v Johnson may not matter; the result will be the same.
Conclusions
What is to be done?
Postscript
Lady Justice Arden:
Introduction
"in making rules under subsection (1), the Lord Chancellor shall aim to secure (a) that the rules are designed to ensure the proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible…".
Section 106(2) provides that:
"In particular, rules under subsection (1) ... (e) may enable or require... the Tribunal to determine an appeal in the absence of parties in specified circumstances…."
"1. This Act does not adversely affect-
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor's existing constitutional role in relation to that principle."
"to secure that the proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible".
It goes on to provide that:
"where appropriate, … members of the Tribunal have responsibility for ensuring this in the interests of the parties to the proceedings and in the wider public interest."
"(1) The Tribunal must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative –
(a) has been given notice of the date, time and place of the hearing, and
(b) has given no satisfactory explanation for his absence.
(2) Where paragraph (1) does not apply, the Tribunal may hear an appeal in the absence of a party if satisfied that –
(a) A representative of the party is present at the hearing;
(b) The party is outside the United Kingdom;
(c) The party is suffering from a communicable disease or there is a risk of him behaving in a violent or disorderly manner;
(d) The party is unable to attend the hearing because of illness, accident or some other good reason;
(e) The party is unrepresented and it is impracticable to give him notice of the hearing; or
(f) The party has notified the Tribunal that he does not wish to attend the hearing."
"Failure to attend the trial
(1) The court may proceed with a trial in the absence of a party but –
(a) If no party attends the trial, it may strike out the whole of the proceedings;
(b) If the claimant does not attend, it may strike out his claim and any defence to counterclaim; and
(c) If a defendant does not attend, it may strike out his defence or counterclaim (or both).
2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial."
"Every court having jurisdiction for the purposes of the Parts in this Group may review, rescind or vary any order made by it in the exercise of that jurisdiction."
"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the factual evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning." (para. 66)
"If a party or his representative does not attend the hearing, the Tribunal must determine the appeal in the absence of that party, unless there is a satisfactory explanation of his absence." (Appeal bundle, page 101.11)
If Mr B had received that communication, he would have been given an opportunity to provide an explanation for his absence. If he did not get the notice of hearing, however, he will not have been given that opportunity.
"a party to a dispute who has lost the opportunity to have his case heard through the fault of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been a victim of procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument." (per Lord Bridge, with whom the other members of the House agreed, at 898)
Disposition
Lord Justice Wall:
Note 1 In E and R, the allocation of errors of material fact to fairness (a procedural matter) rather than to jurisdiction (a substantive matter) is in my respectful view both novel and problematical. It may not necessarily follow from the decision in R v CICB ex parte A[1999] 2 AC 330, and it has practical as well as doctrinal implications which may have to be addressed in a future case. [Back]