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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> C v Secretary of State for the Home Department (Yugoslavia) [2003] UKIAT 00007 (05 June 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00007.html Cite as: [2003] UKIAT 7, [2003] UKIAT 00007 |
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Appeal No: [2003] UKIAT 00007 C (Yugoslavia)
Date of Hearing: 26th February 2003
Determination delivered orally at Hearing
Date
Determination notified: 05.06.2003
Between:
APPELLANT
RESPONDENT
"10. I therefore reached the conclusion that the Respondent in this case had failed to comply with a direction given under the Immigration and Asylum Appeals (Procedure) Rules 23000 and I was satisfied that in all the circumstances, including the extent of the failure and the reasons for it, that it was necessary to have regard to the overriding objective in Rule 30(2) and to allow this appeal without considering the merits (Rule 33(1) and (2)).
11. Accordingly, I allowed the appeal and gave that decision orally in the hearing. In those circumstances I found it unnecessary to make a decision on the certificate.
Appeal Allowed."
It is against the Adjudicator's decision to allow the appeal without considering the merits that the Secretary of State now appeals.
"33. Failure to comply with these Rules
(1) Where a party has failed -
(a) to comply with a direction given under these Rules; or
(b) to comply with a provision of these Rules;
and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that it is necessary to have regard to the overriding objective in rule 30(2), the appellate authority may dispose of the appeal in accordance with paragraph (2).
(2) The appellate authority may –
(a) in the case of a failure by the appellant, dismiss the appeal or, in the case of a failure by the respondent, allow the appeal, without considering its merits;
(b) determine the appeal without a hearing in accordance with rule 43;
or
(c) in the case of a failure by a party to send any document, evidence or statement of any witness, prohibit that party from relying on that document, evidence or statement at the hearing."
It is apparent that the form of words in paragraph 1 of the Rule is infelicitous and it has since been amended.
"10. As the Secretary of State's grounds point out, the Tribunal has already indicated in Rasheed Argosh Nori that asylum is a status which should not be granted to punish the Secretary of State for failing to do what he ought to have done. It should be considered on its merits. We would endorse that comment. The applicability of Rule 33 is of course entirely general, but that does not mean that it will always be just to apply it in individual circumstances. There are may cases including immigration cases, and perhaps also human rights cases, where the effect of an Adjudicator allowing an appeal against the Respondent without considering the merits merely puts the parties back in the situation in which they were before the Respondent made an adverse decision against the Claimant. Similarly, if there is an appeal by either party to the Tribunal it may be that allowing the appeal or dismissing the appeal without considering the merits will put the parties back in the situation in which they were before litigation began. But where the appeal is on the limited ground set out in s 69, the effect of allowing an appeal by the Claimant before the Adjudicator will always be to grant the Claimant asylum status. We do not think that it would ever by right to do that without considering the merits."
The position here is that the Adjudicator allowed the appeal without considering the merits, with the effect of granting the Claimant asylum. As we have said, we do not think that that was an appropriate application of Rule 33. Mr Bazini asked us to say that the application of the Rule by the Adjudicator was not unlawful or an obviously inappropriate exercise of his discretion. We disagree. The use of Rule 33 in order to grant asylum to an individual who has never established on the merits that he is or may be entitled to asylum would, in our view, always be an abuse of Rule 33.
C M G OCKELTON
DEPUTY PRESIDENT