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Cite as: [2000] EWHC Admin 289

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Case No: CO/1357/99

Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 11 February 2000

B e f o r e :


- v -

ex parte

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Matthew Feldman (instructed by Messrs Christmas & Sheehan for the Applicant)
Lisa Giovannetti (instructed by the Treasury Solicitor for the Respondent)

As Approved by the Court
Crown Copyright ©

Friday, 11 February 2000


MR JUSTICE MAURICE KAY: This Applicant has permission to apply for judicial review of a decision by a Special Adjudicator, Mr. G Denson, made on 13 January 1999 to adjourn the Applicant's appeal hearing and to transfer it to another Adjudicator. The Applicant is an asylum seeker from Turkey. He is an Alevi Kurd. He is 29 years of age. I do not know all the details of his claim for asylum but it is based upon the involvement of his family and of himself in Kurdish politics. It is said that two of his relatives have been shot for their political activities, one in 1969, the other in 1979. A third relative received a sentence of 24 years imprisonment arising out of his political activities but he was released in 1991. By 1990 the Applicant had begun to sympathise with the PKK and he started to participate in activities on their behalf in Istanbul. His participation was in relation to the publication and distribution of literature. He was arrested and detained by the police three times. On 15 July 1990 he was taken to a police station and forced to confess to things that he had not done, tortured and later released. On 12 April 1991 he was approached by the police in the street, kicked, beaten, blindfolded and taken to a police station where he was detained for a number of hours and beaten on his shoulders, back and legs with a truncheon. On 16 May 1991 he was wrongly accused by the police of being a terrorist and of having burnt a boat in the harbour, killing women and children. He was taken to a police station where he was beaten with truncheons, punched and kicked. Between May and November 1992 he worked at a hotel in Istanbul, this employment having been procured via the PKK. On 1 November 1992 the hotel was raided by the police who were searching for the applicant but he managed to escape out of the back. A week later he arrived in the United Kingdom and immediately claimed asylum. A cousin had previously come to this country in 1989 as an asylum seeker. That cousin's wife Dondu Akdogan, also fled to this country in August 1991 and sought asylum. She has been granted successive permissions to remain. That, in brief, is the Applicant's account of the factual background to his claim. In July 1997 the Applicant's claim for asylum was refused by the Secretary of State. He appealed to a Special Adjudicator. It is the way in which that Special Adjudicator dealt with the appeal which is the subject of the present application for judicial review. The circumstances are highly unusual.
The appeal was first heard before the Special Adjudicator, Mr Denson, on 18 March 1998. The applicant and Dondu Akdogan gave evidence. In the course of her evidence Dondu Akdogan stated that in her own asylum interview in 1991 she had referred to the Applicant. The Special Adjudicator adjourned the case part heard until 20 May 1998, suggesting that Dondu Akdogan's Home Office reference number be disclosed to the Immigration Authorities so that they could obtain a copy of her 1991 interview record.
The hearing was resumed on 20 May 1998 but neither the Applicant's representatives nor the Home Office had been able to obtain the interview record. The Applicant sought an adjournment so that the matter could be further pursued. This was granted and the Special Adjudicator reserved the matter to himself. He also indicated that if what Dondu Akdogan had stated in evidence was consistent with what she had said in her interview in 1991, the Applicant was likely to be considered favourably. He directed that the Home Office Presenting Officer should obtain and submit the interview record. The Home Office Presenting Officer marked her file to the effect that the evidence would be restarted on the next occasion, adding "case not part heard. To be started again." The next hearing was on 9 September 1998. There was a different Home Office Presenting Officer. She informed the Special Adjudicator that the interview record had not been obtained. She applied for a further adjournment which was not opposed. The case was adjourned to the next open date, reserved to the same Special Adjudicator, with the following directions:
"1. The case will proceed on the next occasion even if the Home Office is not ready.
2. The Adjudicator will find the Appellant credible if the Home Office does not produce the interview notes to challenge or otherwise the evidence of the Appellant's cousin which confirms his arrests in Turkey."
When the matter was next listed on 21 October 1998, the Special Adjudicator was not sitting because he was unwell. The case was put before another Special Adjudicator, Mr. Gillance, and the Home Office Presenting Officer again applied for an adjournment. The interview record had still not been obtained. Indeed, the file had apparently been destroyed. It seemed that the only surviving copy of the interview record might be with Dondu Akdogan's former solicitors. The Special Adjudicator gave the following directions:
"1. Case adjourned to the first available date when Mr. Denson can continue hearing the appeal.
2 In the light of the correspondence from solicitors Wilson and Co. who represent Dondu Akdogan, the Appellant's solicitors, if they wish to rely upon her interview notes, to take all reasonable steps to obtain them from Wilson and Co, and if obtained to be filed at Taylor House for the attention of Mr. Denson and the Home Office Presenting Unit.....not later than close of business on 6 November 1998. To this direction I add this condition: the direction is intended to assist the obtaining of these interview notes for the benefit of the Appellant and the Special Adjudicator, bearing in mind that they are in the hands of a third party. The direction is to be without prejudice to those already given to Mr Denson and is no way to be seen as usurping the findings, indications and directions Mr. Denson has already given.
3. Both representatives are content with this direction. "
The case finally returned to Mr. Denson on 13 January 1999. The interview record had still not been procured. When the Special Adjudicator sat at 10.a.m. he referred to the Applicant's appeal before turning to another case listed that day. He indicated that he would be making a positive finding of credibility in favour of the Applicant and referred to the directions that he had given on 9 September 1998. The Home Office Presenting Officer sought to persuade him that he should adjourn the appeal and transfer it to another Special Adjudicator because of the delay since the evidence had first been heard in the previous March. The Special Adjudicator refused this application and started another case. At some time around the luncheon adjournment the parties returned to the Special Adjudicator. At that point, and without seeking or hearing further representations from either side, the Special Adjudicator indicated that he was reversing the decision that he had made earlier in the day and that he would forthwith grant the adjournment and transfer the case to another Special Adjudicator. He did not give the Applicant's representative the opportunity to make representations prior to announcing this decision. That account of the events of 13 January 1999 is the Applicant's account but it is not significantly disputed. The Home Office Presenting Officer has made a witness statement which adds to that account. His contemporaneous notes record that the Special Adjudicator remarked that he believed the Applicant's oral evidence about his arrests in Turkey. This entry relates to the events at about 10.a.m. . The Home Office Presenting Officer's statement also makes clear that when the Special Adjudicator announced his adjournment and transfer decision he also stated that he had consulted a colleague and now accepted that if he proceeded to hear the appeal the Immigration Appeal Tribunal would probably allow an appeal from him and would probably remit the matter for a de novo hearing.
As I have said, it is the final decision to adjourn and transfer that is the subject of the challenge in the present application. The Applicant is understandably aggrieved by the fact that the Special Adjudicator had reached the point of accepting his evidence as credible and deciding to proceed with the case before changing his mind, adjourning the case and transferring it to another Special Adjudicator who would have to start it all over again, with no guarantee as to the outcome.
Before I turn to the grounds of challenge, I ought first to refer to an established practice of Special Adjudicators and the Immigration Appeal Tribunal in relation to long delays between the hearing of evidence and the determination of issues of credibility. In Busante (Immigration Appeal Tribunal, 15 August 1995) The Tribunal stated:
"As the Tribunal has said in many cases, a lapse of months between the hearing of appeal and the signing of the determination will normally render that determination flawed where credibility is at the heart of the appeal and there is no contemporaneous indication of the Adjudicator's view of the witnesses."
In Waiganjo (Immigration Appeal Tribunal, 17 October 1997) reference was made to a memorandum that had recently been distributed to all Tribunal Chairmen to the effect that, subject to the particular circumstances of a case, any period in excess of three months between the date of hearing and the date of promulgation would be unacceptable. The Tribunal added:
"In the view of this Tribunal, where the issue of credibility is raised, a delay of more than three months from the date of the hearing of the appeal to the date when the Special Adjudicator's determination is prepared and sent for typing, then such delay is unacceptable and the determination is unsafe. If of course there are acceptable indications to show that the Special Adjudicator made contemporaneous findings of credibility i.e. in the record of proceedings, then that is a different matter and will rely on the circumstances of a particular case."
This approach has recently been approved in the Court of Appeal in Sambasivam v. Secretary of State for the Home Department (15 October 1999). Lord Justice Potter stated (transcript page 11):
"In the absence of special or particular circumstances, that is plainly a useful and proper rule of thumb which, in the experience of the Tribunal, it is broadly just to apply, for the twin reasons that substantial delay between hearing and preparation of the determination renders the assessment of credibility issues unsafe, and that such a delay tends to undermine the loser's confidence in the correctness of the decision once delivered."
And, (transcript page 12):
"Bearing in mind the almost infinite variety of circumstances which may be operative in any given case or claim for asylum, it is unlikely that resort to close comparisons between different applications and their outcomes will be useful when seeking to persuade the Tribunal or this court that the Tribunal has failed to apply its procedure in a consistent manner. In cases of delay of this kind, the matter is best approached from the starting point that, where important issues of credibility arise, a delay of over three months between hearing and determination will merit remittance for rehearing unless, by reason of particular circumstances, it is clear that the eventual outcome of the application, whether by the same or a different route, must be the same."
As almost ten months elapsed between the commencement of the hearing in March 1998 and the adjournment and transfer of 13 January 1999, any attempt to preserve the stated but subsequently recanted finding of credibility in the present case would have to be justified by reference to particular circumstances.
On behalf of the Applicant, Mr. Feldman first submitted that the final decision to adjourn and transfer was procedurally unfair in the context of the particular circumstances of this case or that, alternatively, it was Wednesbury unreasonable. His analysis of the circumstances was that, by inference, the Special Adjudicator had made his assessment of credibility on 18 March 1998 and that this is substantiated by the indication which he gave on 20 May; indeed, it then gathered further strength on 9 September and 13 January. In other words the case falls into the category foreseen in Busante of "a contemporaneous indication of the Adjudicator's view of the witnesses". The difficulty with this analysis is that there was no contemporaneous indication whatsoever on 18 March and, when something indicative was said on 20 May, it was (1) conditional, (2) said in the context (as I find) of an intention to hear the evidence de novo and (3) said without the benefit of submissions, the Home Office Presenting Officer not having had the opportunity to address the Special Adjudicator on the issue of credibility (a matter to which I shall return). In my judgment, Miss Giovenetti is correct in her submission that there was no contemporaneous indication or, at the very least, no valid contemporaneous indication. Moreover, by 9 September, the three month rule of thumb had been significantly exceeded. In these circumstances I do not think that it is possible to construct an argument of Wednesbury unreasonableness by reference to any contemporaneous indication.
Secondly, Mr. Feldman submitted that such unreasonableness could be established by an application of the famous words of Lord Hewart C.J. in R. V. Sussex Justices ex parte McCarthy [1924] 1 KB 256,259:
" is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done"
"Justice", of course, connotes justice to both sides. I do not consider that one side, in this case the Applicant, can avail himself of Lord Hewart's hallowed principle in circumstances where there was no contemporaneous indication, there was in May a stated intention to hear the evidence de novo and subsequent proceedings were characterised by a descent into error being compounded by further error. Again, this is something to which I shall have to return.
Thirdly, it was suggested that, either as an aspect of Wednesbury unreasonableness or as a discrete issue, the Applicant had a legitimate expectation that there would be a credibility finding in his favour. If by this is meant the sort of legitimate expectation that is predicated upon a clear and unambiguous representation as illustrated by Regina v. Secretary of State for the Home Department, ex parte Khan [1984] 1 WLR 1337, then the submission runs into immediate and insuperable difficulty because what was said on 20 May does not pass the "clear and unambiguous" test. Moreover, the subsequent hearings are not amenable to that test because (1) they took place when it was too late by reference to the passage of time and the absence of a contemporaneous indication or (2) they were themselves tainted as being unfair to the Secretary of State (see infra ). In any event , if it be the case that it was beyond the power of the Special Adjudicator to say anything that gave rise to an expectation of a finding of credibility, he was in no position to give rise to a legitimate expectation. In Regina v. MAFF, ex parte Hamble Fisheries [1995] 2 All ER 714, 730-731, Sedley J. approved a passage in an article by Mr. Rabinder Singh ("Making Legitimate Use of Legitimate Expectation", (1994) 144 NLJ 1215) which stated.
"Legitimate expectation cannot be used to defeat a duty which public law imposes on a body nor to extend the power of a public body beyond what legislation has prescribed...."
If, on the other hand, reliance is being placed not on a clear and unambiguous representation but on a general expectation of procedural fairness, then, as Simon Brown LJ observed in Regina v. Devon County Council, ex parte Baker, [1995] 1 All ER 73, 89, the use of the term is "superfluous and unhelpful". For all these reasons I consider that the attempt to rely on legitimate expectation fails in the circumstances of this case. Whilst the applicant undoubtedly is entitled to expect that his appeal will be dealt with in a manner that is procedurally fair, that, as Miss Giovannetti observes, is what he can expect to happen when it is heard de novo by a different Special Adjudicator.
Fourthly, the decision to adjourn and transfer on 13 January 1999 is criticised on the ground that it was simply announced, as a change of mind, and without the Applicant's representatives being afforded the opportunity to make further representations. Unfortunately, by that time the Special Adjudicator had dug himself into a hole and, for reasons that I shall continue to address, his previous decision, made earlier that day, would have been unsustainable on appeal. In these circumstances, further representations would either have made no difference to the decision to adjourn and transfer or, if they had made a difference, the difference would almost certainly have been unravelled on appeal to the Immigration Appeal Tribunal.
Finally, I shall return to a consideration of matters which Miss Giovannetti submitted tainted the procedure as a whole and made a rehearing before a different Special Adjudicator the only fair and proper way to process the appeal. Having relied on the arguments to which I have already referred to defeat the application in relation to the events of March and May 1998, she submitted that what occurred on 9 September was wholly inappropriate and tainted all that followed. It amounted to a contingent finding of credibility at a time when no finding ought to have been made without rehearing the evidence and at a point when the Special Adjudicator had not yet heard submissions on credibility. In short, it was an inappropriate fettering of discretion, or more properly of a judgment, which was to be exercised at a later date. When the Special Adjudicator came to make his first ruling on 13 January, it was conditioned by that very defect. After I had heard the oral submissions in this case, I received written submissions from both sides, dealing with this issue, with particular reference to the lack of opportunity for the Home Office Presenting Officer to make submissions about credibility.
Mr. Feldman submitted that the nature and degree of procedural requirements will vary depending on the context, the subject-matter and the rights of those affected and that, in the particular circumstances of this case, it was not unfair, inappropriate or otherwise unlawful to make a finding of credibility without hearing submissions. He sought to distinguish Regina v. Special Adjudicator, ex parte Arthur [1994] Imm. AR 246, an authority relied upon by Miss Giovannetti. There the cause of the complaint was that after the evidence had been heard but before submissions the Special Adjudicator caused prison officers to be alerted so as to be present at the end of the hearing. Harrison J. refused leave to move for judicial review, partly because, although the procedure adopted was "unfortunate", there was nothing to suggest that the Special Adjudicator had predetermined the case. I agree that those facts are readily distinguishable from the present case. Mr. Feldman then relied on Regina v. Secretary of State for the Home Department, ex parte Kikaka [1996] Imm AR 340. There, on the first day of the hearing, the applicant was offered the opportunity to consult the Refugee Legal Centre but she elected to proceed on her own. The case was adjourned, part-heard. Before the resumed hearing, solicitors on behalf of the applicant wrote to the Special Adjudicator indicating that they were now instructed and had obtained the services of counsel but, as he was unavailable on the date fixed for the adjourned hearing, requesting a de novo hearing at a later date. The Regional Adjudicator refused that request and the hearing proceeded to a conclusion with the applicant representing herself on the adjourned date. She later sought leave to apply for judicial review, arguing that those facts amounted to a breach of natural justice. It seems from the judgement of Tuckey J. that on the day of the adjourned hearing, the applicant herself did not ask for a further adjournment. Moreover, the request that had previously been made had been for an adjournment for a de novo hearing, not simply an adjournment for counsel to make submissions. In refusing leave, Tuckey J based his decision on the fact (as he found) that there was not:
"any real risk of prejudice in the outcome of the proceedings by not considering and granting a further adjournment to allow counsel to make representations for the simple reason that the outcome of this appeal depended upon the applicant's credibility. The adjudicator had the opportunity of seeing her over two days and his findings about her credibility are very clear. However skilfully counsel might have been able to deal with the evidence which had already been given...I do not think this would have affected its outcome or that the applicant was in the event prejudiced by not having counsel." (p.343).
Miss Giovannetti submitted that, in Kikaka, there is no reason to suppose that the applicant was not given the opportunity to address the Special Adjudicator before he made his determination on credibility and that, accordingly, the case is not authority for the proposition that it is legitimate for a Special Adjudicator to reach a conclusion on credibility without allowing the parties an opportunity to make submissions. I agree with that submission, as far as it goes. It seems to me that Kikaka held that, on the facts of that particular case, there was no breach of natural justice and that, in any event, no prejudice was occasioned by the absence of counsel.
In my judgment, it is helpful to go back to first principles. In the procedure which operates before a Special Adjudicator the duty to hear both sides will generally include the duty not to make factual findings adverse to a party without affording him the opportunity to make representations after the evidence has been heard. The same will apply whether the party in question is an appellant or the Secretary of State. Of course, it may well be permissible and, indeed, helpful to the parties, if a provisional view is expressed in appropriate circumstances but, as long as there is an issue in relation to the evidence or a particular aspect of it, the announcement of a finding of fact without having invited submissions is not procedurally correct and it may provide a ground of challenge at the suit of the party to whom the finding is adverse. I say "may" because there will no doubt be cases in which the evidence leads so inexorably to the finding that the procedural incorrectness could have made no difference to the outcome of the particular case. In the present case I know very little of the evidence that was given on 18 March 1998. It was not suggested by Mr. Feldman that it was not susceptible to submissions on behalf of the Secretary of State, but nor did Miss Giovanetti indicate with any particularity what specific matters may have been ripe for sustainable submissions on behalf of the Secretary of State as regards credibility.
I have come to the conclusion that, in a case that was already bedevilled by the passage of time and a previous indication or decision that the evidence would have to be reheard, it was quite wrong for the Special Adjudicator to commit himself on 9 September to a contingent finding of credibility and to act on that commitment when he first addressed the matter on 13 January. Such a finding ought not to have been made without affording the opportunity for representations to be made on behalf of the Secretary of State. To that extent the procedure adopted by the Special Adjudicator was unfair and it would be unjust if the Applicant were now able to have the injustice compounded by, in effect, securing that the case proceeds on the basis of a finding which ought not to have been made in the way that it was. It is to this facet of the case that I was referring when I earlier referred to the proceedings before the Special Adjudicator being tainted.
What is important in this case is that the Applicant's asylum appeal is fairly determined by a proper procedure. In my judgment that will only happen if the decision to adjourn and transfer is upheld. I have to say that, like Richards J. who granted permission, I feel considerable sympathy with the Applicant who has seen his appeal move in one direction and then the other as a result of a procedural mess of which he was not the architect. However, I agree with Miss Giovanetti when she says that he is entitled to a fair hearing, neither more nor less, and this he should now receive.
I refuse this application for judicial review. I add two observations. The first is that although I have referred throughout to the Special Adjudicator "transferring" the case to another Special Adjudicator, strictly speaking any such transfer should be made by the Chief Adjudicator pursuant to rule 40(1)(b) of the Asylum Appeals (Procedure) Rules 1996 but the parties wisely decided not to take that point in this application. Secondly, there is a real point in this case as to whether in circumstances such as these an applicant should seek permission to apply for judicial review rather than simply proceed to a determination by a Special Adjudicator and, in the event of a unsuccessful outcome, seek leave to appeal to the Immigration Appeal Tribunal. The question whether resort ought to have been had to the alternative remedial route was raised before me but, as it did not figure prominently in submissions, I have decided the application without reference to it. However, it does seem to me to be at least preferable, in general, if matters are pursued through the immigration appeal system to the fullest extent possible before any application is made for permission to apply for judicial review. I note that the failure to pursue an appeal to the Immigration Appeal Tribunal was an additional reason for the refusal of leave to apply for judicial review in ex parte Arthur (supra).

© 2000 Crown Copyright

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