Zaier, R (on the application of) v Immigration Appeal Tribunal & Anor [2003] EWCA Civ 937

Case No C1/2002/2170

[2003] EWCA Civ 937

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

His Hon. Judge Bartlett QC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 9 th July 2003

Before

LORD JUSTICE AULD

LORD JUSTICE CLARKE

LORD JUSTICE JONATHAN PARKER

Between

THE QUEEN ON THE APPLICATION OF ZAIERAppellant

1. IMMIGRATION APPEAL TRIBUNALRespondents

2. SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr Richard Drabble QC & Mr Ranjiv Khubber (instructed by Irving & Co) for Appellant

Mr Angus McCullough (instructed by Treasury Solicitor for 2 nd Respondent) for the Respondent

Hearing Hearing dates : 12 th May 2003

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

[1]This is an appeal by Tariq Zaier against the decision of Mr. George Bartlett, QC, sitting as a Deputy High Court Judge in the Administrative Court on 7th October 2002, upholding a decision of the Immigration Appeal Tribunal that a special adjudicator had no power to allow, without consideration of the merits of his claim to asylum, his appeal against the Secretary of State’s decision to remove him as an illegal entrant after refusal of his claim for asylum.

[2]The Secretary of State refused Mr. Zaier’s asylum claim without consideration of its merits under Immigration Rule 340, which gave him power to refuse an asylum claim where a claimant had failed to comply with a request to attend for an interview (a “non-compliance refusal”). The special adjudicator, Mr. Curzon Lewis, purporting to exercise power given to him by Rules 30 and 33 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (the 2000 Rules”), allowed Mr. Zaier’s appeal, also without consideration of the asylum merits, because of the Secretary of State’s failure to comply with a number of directions by other special adjudicators that his officials should interview him. The Tribunal held that the adjudicators had no power to give those directions and that, in consequence, Mr. Curzon Lewis’s allowance of Mr. Zaier’s appeal against the Secretary of State’s refusal of his application for asylum was unlawful. It remitted the matter to Mr. Curzon Lewis, directing him to hear and dismiss or allow the appeal on its merits.

[3]Mr. Zaier applied to the Tribunal for permission to appeal to the Court of Appeal, which the Tribunal refused on the ground that its remission of the matter to the special adjudicator for his determination of it on the merits was not a final determination of the appeal to it, the Tribunal, and so it had no jurisdiction to give such permission. Mr. Zaier, with the permission of Sullivan J, claimed judicial review of: 1) the Tribunal’s refusal of permission to appeal to the Court of Appeal (“the jurisdiction issue”); and 2) the Tribunal’s decision that the special adjudicator’s allowance of Mr. Zaier’s appeal against the refusal of asylum was ultra vires (“the substantive issue”).

[4]Mr. Zaier only pursued the substantive issue before the Deputy Judge, reserving his position on the jurisdiction issue for possible argument before this Court. The Deputy Judge, accordingly, dismissed his claim to quash the Tribunal’s decision refusing him permission to appeal to this Court. He also dismissed his claim to quash the Tribunal’s ruling on the substantive issue, holding that the various directions of the special adjudicators were unlawful and that, therefore, Mr. Curzon Lewis’s allowance of Mr. Zaier’s appeal against the Secretary of state’s refusal of asylum was unlawful. He ruled, following the Court of Appeal’s decision in Mwanza v. Secretary of State [2001] Imm AR 557, that the directions were unlawful because in substance they purported to direct the Secretary of State to make a fresh decision rather than give procedural directions for the conduct of the adjudication appeal.

[5]There are two issues on this appeal. The first is whether the directions of the special adjudicators were directions to regulate the procedure of the appeal before them; if they were, they were lawful and Mr. Curzon Lewis had power under Rule 33(2)(a) of the 2000 Rules to allow Mr. Zaier’s appeal without consideration of the merits of his asylum claim. If the directions were not in substance procedural directions for the conduct of the appeal, the second issue is whether, having regard to the overriding objective of Rule 30 of the 2000 Rules “to secure the just, timely and effective disposal of appeals”, the directions would nevertheless have caused the Secretary of State to consider and particularise his case on the asylum claim on its merits, thus bringing them within that overriding objective and therefore, lawful, thereby empowering Mr. Curzon Lewis to allow Mr.

The facts

(a) The facts

[6]Following Mr. Zaier’s claim for asylum, he was requested to attend the Home Office Interviewing Centre, Lunar House, Croydon, on 29th May 1998 to be interviewed concerning his claim. He failed to attend. As a result, on 22nd June 1998, the Secretary of State, pursuant to the power given to him by Rule 340 of the Immigration Rules, refused his claim without consideration of the merits because of his failure to comply with the request to attend for interview, and gave directions for his removal. Rule 340 provides: “A failure, without reasonable explanation, to make a prompt and full disclosure of material facts, either orally or in writing, or otherwise to assist the Secretary of State in establishing the facts of the case may lead to refusal of an asylum application. This includes failure to comply with a notice issued by the Secretary of State or an Immigration Officer requiring the applicant to report to a designated place to be fingerprinted, or failure to complete an asylum questionnaire, or failure to comply with a request to attend an interview concerning the application, or failure to comply with a requirement to report to an Immigration Officer for examination.” [my emphasis] It is important to note that the Secretary of State has no duty to interview a claimant for asylum. He has a duty to inform himself sufficiently of the nature of his claim and the facts underlying it to enable him properly to consider it on its merits. If he reasonably considers that he can do that without an interview, he can dispense with it and rely, for example, on the claimant’s response to a questionnaire or written statement and/or other relevant information. See Immigration Rules 228 and 331. But if he does consider an interview necessary for the purpose of assisting him to establish the facts of the case, Rule 340 comes into play.

[7]Mr. Zaier appealed to a special adjudicator under section 8(4) of the Asylum and Immigration Appeals Act 1993 against the removal directions, an appeal which, as section 8(4) makes plain, gave the adjudicator responsibility of determining the merits of his asylum claim. It provides:

“Where directions are given … for a person’s removal from the United Kingdom, the person may appeal to a special adjudicator against the direction on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom’s obligation under the Convention.”

[8]In fact, the Secretary of State’s non-compliance refusal was on a mistaken basis. Mr. Zaier had not been notified of the request to attend for an interview. Some 18 months later, on 12th January 2000, when the immigration authorities found him, he provided them with a typed statement explaining why he had not attended for interview and providing full details of his asylum claim.

[9]On 26th January 2000 the appeal came before a special adjudicator, Mr. Such. He accepted that the appellant had a good explanation for not having attended for his interview for 29th May 1998, as he had not been notified of it. Mr. Such, therefore, adjourned the appeal in order to give the immigration authorities an opportunity to interview him, giving the following “direction”:

“Direction. Matter referred back to Lunar House for appointment. Notice to be sent to [the applicant’s representatives]. Home Office Presenting Officer] to notify Lunar House Croydon.”

[10]Mr. Zaier’s appeal was subsequently listed before a special adjudicator on a number of occasions. On the first, 13th March 2000, the Home Office presenting officer told the adjudicator that the matter was being reconsidered but that no interview had yet been arranged. On the second occasion, on 15th June 2000, the adjudicator before whom it was listed noted that the Home Office presenting officer had agreed that the appeal should be allowed to the extent that the matter was to be remitted to the Home Office for interview and reconsideration by the Secretary of State. Some months later the Secretary of State’s representatives took the point that a special adjudicator cannot both allow an appeal and remit it to the Secretary of State for reconsideration. On 23rd February 2001, when the matter came before another special adjudicator, the presenting officer informed him that the Home Office had lost the file, that there had still been no interview and that one would take place as soon as possible. The adjudicator directed that there should be an interview of Mr. Zaier within a month and that the matter should be listed for mention in six weeks time, on 15th March 2001. This was followed by a written direction on 15th March:

“Home Office to interview appellant within one month of 23 March 2001.”

All these directions continued to have no effect on those responsible for this matter in the Home Office. On 9th April 2001 the matter was listed for mention before another special adjudicator, who directed the Home Office to interview Mr. Zaier before 24th April 2001. On 14th May 2001 yet another special adjudicator gave a similar direction and listed the appeal for hearing on 18th June 2001.

[11]On 18th June 2001 the appeal came on for hearing before Mr. Curzon Lewis. The Home Office presenting officer informed him that there had still been no interview, but that, as he had Mr. Zaier’s written statement, he was ready to proceed with the substantive hearing of the appeal. Mr. Curzon Lewis declined to consider the matter on its merits and proceeded to allow Mr. Zaier’s appeal under Rule 33(2)(a) of the 2000 Rules on the ground that the Secretary of State had failed to comply with the various directions. This was his ruling, as contained in his Determination and Reasons given on 6th August 2001: “10. The issue under paragraph 340 was effectively determined by Mr. Such on 26 January 2000, when he accepted that the appellant had not attended for interview on 29 May 1998 because he had never received any notification to do so. …. 11. I acknowledge that on 12 January 2000 the appellant signed a typed statement setting out his answer to the refusal under paragraph 340, and providing full details of his asylum claim. It was no doubt on the strength of that statement that [the presenting officer] had prepared for a substantive hearing on 18 June 2001, and was ready to proceed. 12 There has been a manifest failure on the part of the respondent to organise any interview for the appellant, notwithstanding an order by Mr. Such on 26 January 2000. and specific directions therefor and subsequent listings. Rule 30(2) states that the overriding objective shall be to secure the just, timely and effective disposal of appeals, in which context the IAA may give directions to control the conduct of any appeal. Rule 33(2) specifically permits the court [sic] to allow an appeal where there has been a failure by the respondent to comply with a direction given under the Rules. Rule 33(2) is not mandatory. The court must weigh the factors on each side before applying the Rule. On the particular facts of this case I am satisfied that the appellant’s application under Rule 33(2)(a) is well founded. Nothing was done at the Home Office to organise an interview appointment after the listings during the first half of 2000, and it was the court that brought this case back into the list on 17 January 2001. Even then, despite successive directions, nothing was done to organise an interview for the appellant. In all the circumstances I am satisfied that it is proper and just to allow the appeal under Rule 33(2)”.

[12]On 2nd November 2001 the Tribunal allowed the Secretary of State’s appeal, holding that the special adjudicators had no power, with or without his consent, to direct his officials to interview Mr. Zaier and that, in consequence, Mr. Curzon Lewis had no power to allow the appeal, as he had done, under Rule 33(2). At paragraph 13 of its Determination, the Tribunal stated:

“Whatever the ultimate intention behind a given direction may be, and notwithstanding that had it been drawn in different terms it might have achieved a procedural result dealing with the conduct of this appeal, the powers of the Immigration Appellate Authority are circumscribed by the statutes and statutory instruments under which those powers are derived. However one approaches the direction in this case, it cannot realistically be said to be in relation to the conduct of the appeal. It relates to an action outside the conduct of the appeal, which potentially goes to the substance of the subject matter of the appeal, and presumably, whether the Secretary of State might take a different view of the substantive issue as a result of the action enjoined upon him. … [The presenting officer’s] acquiescence in the constant reproduction of the direction cannot, however, change what is clearly a direction as to substance outside the power of the Adjudicator to order to one that was within that power. …”

The Tribunal, therefore, remitted the matter to Mr. Curzon Lewis for him to hear and determine the substantive appeal to him on its merits. Subsequently, on 4th January 2002, the Tribunal refused Mr. Zaier permission to appeal that decision to the Court of Appeal.

[13]On Mr. Zaier’s claim for judicial review on the substantive issue, the Deputy Judge held, following, as I have said, this Court’s ruling in Mwanza, that the directions of the special adjudicators to the Secretary of State were unlawful and that, therefore, Mr. Curzon Lewis’s allowance of Mr. Zaier’s appeal for want of the Secretary of State’s compliance with them was also unlawful. This is how he put it, at paragraphs 22, 24 and 25 of his judgment:

“22. The question in this case is whether the directions on which the adjudicator’s decision to allow the claimant’s appeal was based were lawful directions under Rule 30. Both the general provisions in paragraph (2) enabling the adjudicator to give directions which controlled the conduct of the appeal, and the specific provision in paragraph (4)(c)(iii) providing for the furnishing of any particulars which appear to be requisite for the determination of the appeal, permit the adjudicator to seek a wide range of information from the Secretary of State. The effect of Mwanza however is that the Rule does not enable the adjudicator to require that the Secretary of State should consider afresh his decision and come to a further conclusion. …” “24 Thus the decision to allow the appeal under Rule 33(2) was based on the failure to comply with the original direction of 26th January 2000 and subsequent directions. …. Mr. Curzon Lewis evidently regarded later directions to carry out the interview within a stated time by a certain date as being to the same effect as the original direction. He was, in my view, entitled to regard them in this way. It was clearly implicit that the interview was to be for the usual purpose of such interviews of asylum seekers to enable the Secretary of State to come to a view on the merits of the application.” “25. The adjudicators were confronted with a case in which no interview had been held and no examination on the merits had been carried out by the Secretary of State. It was to make good that deficiency that the successive directions were made. The adjudicators were seeking a decision of the Secretary of State after an interview and on the merits which could inform the appeal or equally, if favourable to the appellant, lead to its withdrawal. Whatever the value of such a course, and there are clearly arguments to be advanced in favour of its pursuit. The fact is that the directions were in substance directions that the Secretary of State should come to a fresh decision, rather than given for the purpose of the conduct of the appeal. As such, on the basis of Mwanza, they were unlawful.”

The statutory scheme for asylum appeals to special adjudicators

[14]The matter is governed by the Asylum and Immigration Appeals Act 1993, the Immigration and Asylum Act 1999 and, as I have said, the 2000 Rules, in particular Rules 30 and 33, which, in their reference to “the appellate authority”, apply both to special adjudicators and the Tribunal, notwithstanding the different nature of their respective roles. Appeals to adjudicators are by way of a hearing of the claim for asylum on its merits – see 1999 Act, Sch 4, para 21; appeals from adjudicators to the Tribunal are by way of review, albeit subject to any material change in the facts at the time of the review – see 1999 Act, Sch 4, para 22. Rules 30 and 33 provide, so far as material, as follows:

“30 Conduct of Appeals “ (1) The appellant authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal. (2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the Appellant Authority may give directions which control the conduct of any appeals. … (4) Directions given under this rule may, in particular, - (a) relate to any matter concerning the preparation for a hearing and may specify the length of time allowed for anything to be done; (b) specify the place at which the appeal should be heard; (c) provide for – (i) a particular matter to be dealt with as a preliminary issue; (ii) a pre-hearing review to be held; (iii) the furnishing of any particulars which appear to be requisite for the determination of the appeal; (iv) whether there should be a hearing of the appeal; (v) the witnesses if any to be heard; (vi) the manner in which any evidence is given; (vii) in the case of the Tribunal, times to be prescribed within which leave must be sought to submit any evidence or call any witnesses; (d) require any party to file – (i) statements of the evidence which will be called at the hearing specifying in what respect the services of an interpreter will be required; (ii) a paginated and indexed bundle of all the documents which will be relied on at the hearing; (iii) a skeleton argument which summarises succinctly the submissions which will be made at the hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied on; (iv) an estimate of the time which will be needed for the hearing the appeal; (v) a list of the witnesses whom any party wishes to call to give evidence; and (vi) a chronology of events; (e) limit – (i) the number or length of documents produced by, for example, requiring a party to specify to another party the passage or part of any document on which he will rely, especially if the document has to be translated into English for the hearing; (ii) the length of oral submissions; (iii) the time allowed for the examination and cross examination of witnesses by, for example, allowing a witness statement to stand as evidence in chief, and (iv) the issues which will be addressed at the hearing; (f) facilitate the holding of combined hearings under rule 42. ….” “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.” “ (1) The appellant authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal. (2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the Appellant Authority may give directions which control the conduct of any appeals. … (4) Directions given under this rule may, in particular, - (a) relate to any matter concerning the preparation for a hearing and may specify the length of time allowed for anything to be done; (b) specify the place at which the appeal should be heard; (c) provide for – (i) a particular matter to be dealt with as a preliminary issue; (ii) a pre-hearing review to be held; (iii) the furnishing of any particulars which appear to be requisite for the determination of the appeal; (iv) whether there should be a hearing of the appeal; (v) the witnesses if any to be heard; (vi) the manner in which any evidence is given; (vii) in the case of the Tribunal, times to be prescribed within which leave must be sought to submit any evidence or call any witnesses; (d) require any party to file – (i) statements of the evidence which will be called at the hearing specifying in what respect the services of an interpreter will be required; (ii) a paginated and indexed bundle of all the documents which will be relied on at the hearing; (iii) a skeleton argument which summarises succinctly the submissions which will be made at the hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied on; (iv) an estimate of the time which will be needed for the hearing the appeal; (v) a list of the witnesses whom any party wishes to call to give evidence; and (vi) a chronology of events; (e) limit – (i) the number or length of documents produced by, for example, requiring a party to specify to another party the passage or part of any document on which he will rely, especially if the document has to be translated into English for the hearing; (ii) the length of oral submissions; (iii) the time allowed for the examination and cross examination of witnesses by, for example, allowing a witness statement to stand as evidence in chief, and (iv) the issues which will be addressed at the hearing; (f) facilitate the holding of combined hearings under rule 42. ….” (iii) the furnishing of any particulars which appear to be requisite for the determination of the appeal; (iv) whether there should be a hearing of the appeal; (v) the witnesses if any to be heard; (vii) in the case of the Tribunal, times to be prescribed within which leave must be sought to submit any evidence or call any witnesses; (i) statements of the evidence which will be called at the hearing specifying in what respect the services of an interpreter will be required; (ii) a paginated and indexed bundle of all the documents which will be relied on at the hearing; (iii) a skeleton argument which summarises succinctly the submissions which will be made at the hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied on; (iv) an estimate of the time which will be needed for the hearing the appeal; (v) a list of the witnesses whom any party wishes to call to give evidence; and (vi) a chronology of events; (i) the number or length of documents produced by, for example, requiring a party to specify to another party the passage or part of any document on which he will rely, especially if the document has to be translated into English for the hearing; (ii) the length of oral submissions; (iii) the time allowed for the examination and cross examination of witnesses by, for example, allowing a witness statement to stand as evidence in chief, and (iv) the issues which will be addressed at the hearing; “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.”

[15]There are also powers to give directions for the purpose of implementing the allowance of an appeal, as provided in the 1999 Act, Sch. 4, para. 21(5)(a).

[16]Rule 30, true to its cross-heading, “Conduct of appeals”, thus gives a non-exhaustive list of directions for that purpose to which it applies, and Rule 33, also true to its cross-heading, “Failure to comply with these Rules”, indicates the possible consequences of such failure. In the event of non-compliance by the claimant, a special adjudicator may dismiss his appeal, and in the event of non-compliance by the Secretary of State, he may allow the appeal, in either case, “without considering the merits” - the provision on which Mr. Curzon Lewis relied in allowing Mr. Zaier’s appeal.

[17]The important question then is whether the directions with which the Secretary of State failed to comply in this case were procedural within the meaning of Rule 30. Mr. Angus McCullough, for the Secretary of State, submitted that this Court, like the Deputy Judge, should follow its earlier decision in Mwanza and hold that they were not procedural. In that case, which concerned the then equivalents of Rules 30 and 33 of the 2000 Rules, the appellant had been refused asylum on the merits by the Secretary of State. He appealed to a special adjudicator. Because of the fluid state of affairs in the country from which he had fled, the Secretary of State sought and obtained from the adjudicator a number of adjournments. Eventually the adjudicator purported to issue a direction that, unless the Secretary of State completed his reconsideration of the case within 56 days, the letter of refusal would be treated as withdrawn and a fresh letter of refusal would have to be issued. The direction was in the following terms:

“The appeal listed for hearing 24/11/98 has been adjourned. The Home Office have 56 days within which to reconsider this matter, and if they fail to complete the consideration within that period and wish to maintain their refusal, a fresh refusal letter must be lodged within 56 days. Failing which, their original refusal will be treated as withdrawn.”

As Mr. Richard Drabble, QC, for Zaier, observed, there were two difficulties about that direction: first, it required the Secretary of State to take a fresh decision on the merits; and second, it was anticipatory in that it indicated that if he failed to do so within 56 days, his original decision was to be treated as withdrawn.

[18]The Secretary of State failed to abide by the direction and the adjudicator made his threatened order in allowing the claimant’s appeal. The Tribunal allowed the Secretary of State’s appeal on the ground that the purported direction had been ultra vires. This Court upheld the Tribunal’s decision, holding that the adjudicator’s purported direction could not be regarded as a direction in relation to an immigration appeal, and that the rules were procedural only and gave no power to a special adjudicator to direct the Secretary of State to issue a fresh refusal letter. Sir Swinton Thomas, with whom Tuckey LJ agreed, said at paragraph 31 of his judgment:

“In my judgment it is clear that the rules with which we are concerned in this appeal are procedural rules and do not deal with substantive matters. Rule 24 [i.e. today’s Rule 30] is concerned with a failure to comply with directions. It seems to me to be absolutely clear that the rules do not, contrary to Mr. Supperstone’s submissions, give power to the special adjudicator to direct the Secretary of State to issue a fresh refusal letter which is, as the Tribunal found, a matter of substance and can only be done after proper consideration by the Secretary of Sate or those acting on his behalf. The appropriate way, in my view, in which to bring a prolonged matter such as this to a conclusion is for the Tribunal itself to fix the hearing date and not, save in extreme circumstances, to grant any further adjournment; that is the proper way of bring these matters to a conclusion. In my judgment it was clearly ultra vires for the special adjudicator to order the Secretary of State to issue a fresh refusal letter.”

[19]To similar effect was the ruling of Silber J in R (on the application of Emlik) v. IAT

[2002] EWHC 1279 (Admin)

, in which the Secretary of State had refused the asylum claim, not on the merits, but on his mistaken belief that the claimant had failed to comply with paragraph 340 of the Immigration Rules. Silber J held that a special adjudicator’s direction to the Secretary of State “to consider the claimant’s substantive asylum claim” was substantive, not procedural within Rule 30 and, therefore, ultra vires. He was of the view that there was no material difference between the wording of that direction and the direction in Mwanza, stating, at paragraph 23 of his judgment:

“… they are similar in significant and relevant respects because first, neither related to the procedure to be followed at the hearing and second, both gave the claimant an additional right, namely the right to a new decision with a new opportunity for success on his asylum claim. …”

. In the result, he held, as this Court, in Mwanza, had done, that a special adjudicator does not have the power to issue a “reconsideration” direction which would require the Secretary of State to take back the matter and reach a fresh decision: “Significantly, the Adjudicator does not have the power to issue a reconsideration decision which require the Secretary of State to take back the matter and reach a fresh decision on whether an individual is first, a refugee and second, a person whose return would breach the Convention. The simple reason for that is the Adjudicator once seized of the matter has the function of considering the evidence and then of making a decision. He has no power to remit the case to the Secretary of State. Put in another way, the function of the Special Adjudicator is to proceed to decide the appeal whether by dismissing or allowing it. … “

[20]However, the Tribunal, in its decision in N’Da v. The Secretary of State (01/TH/1769) (2001) IAT, expressed concern about the reasoning in and effect of Mwanza, a concern that prompted Sedley LJ to grant permission to Mr. Zaier to pursue this appeal. The special adjudicator’s direction in question in that case was that the Secretary of State should make a complete, expeditious review of the case because the claimant had just reached the age of majority. The Tribunal’s concern had its root in the “overriding objective” set out in Rule 30(2) of the regulation of procedure for appeals for which Rule 30 as whole provides, that is, “to secure the just, timely and effective disposal of appeals”.

[21]The thrust of the Tribunal’s concern, as helpfully summarised by Mr. McCullough, was that in a context of uncertainty on the all important question whether removal was in fact going to take place, it was “obviously sensible and desirable … that a conclusion should be reached on the merits”, so that a direction requiring review of the case, as in N’da, or that the Home Office should reconsider the matter, as in Mwanza, would “secure the just, timely and effective disposal of the appeal”. This is how Collins J, in paragraphs 13-14 of the Tribunal’s Decision, expressed his concern:

“13. Since the jurisdiction of the Appellate Authority depends in the main upon there being a removal or an impending removal of the individual whose appeal is being considered it is obviously highly material to the consideration of his appeal whether such a removal is going to take place, Thus if it is not for how long it is not going to take place and if the situation in a particular country becomes such that the Secretary of State decides that he cannot for the time being remove to that country, the Appellate Authority is going to be concerned as to whether adjournments should be granted as indeed in this case the Home Office requested, or whether the matter should be brought to a head and decided. That, as it seems to us, Mwanza relates to the conduct of the appeal. In the Mwanza case the direction to issue a refusal letter was itself only to ensure that the Secretary of State did not sit back and simply do nothing and it was only if he could not reach a conclusion within the 56 days that the requirement to issue the fresh refusal letter [arose]. It is difficult in those circumstances in our view to conclude other than that that was in the context a matter which related to the conduct of the appeal and so was procedural. Similarly here the Adjudicator’s direction was designed to ensure that there could be a just, timely and effective disposal of the appeal, because unless and until it was known whether or not the Secretary of State was going to remove, the matter could not properly be decided. In the light of the history of the case and the Secretary of State’s failure to deal with the matter properly and to appreciate that an SEF had indeed been lodged, it was obviously sensible and desirable that the matter should be dealt with as soon as possible and that a conclusion should be reached on the merits. Therefore the direction …. would appear to be one which was to secure the just, timely and effective disposal of the appeal and thus fell within Rule 30 Paragraph 2. 14. Unfortunately we are bound by the reasoning of the Court in Mwanza and although we are unhappy with that reasoning we do not feel that we can properly decide to go against it. Accordingly and because we are so bound we take the view that we have to decide that the direction given by the Adjudicator in this case was ultra vires and that her conclusion that the matter should be dealt with as she dealt with it was wrong. ...”

The submissions

[22]Mr. Drabble submitted that the effect of the directions in question was procedural in that they would or should have prompted the Secretary of State to consider the matter on its merits in the light of further information provided by Mr. Zaier and to so inform the special adjudicator conducting the appeal. He said that there was an important practical difficulty about the scope of an adjudicator’s power to issue directions under Rule 30 where, as here, the Secretary of State had not considered the merits of an asylum claim because he has dismissed it under Rule 340 of the Immigration Rules for an actual or apparent failure by the claimant to assist him to establish the facts. A direction under Rule 30 of the 2000 Rules requiring the Secretary of State to particularise his case on appeal would, in practice, serve a useful purpose in requiring him to consider the merits of the claim. He drew attention in the same context to the overriding objective in paragraph (2) of Rule 30 for the giving of procedural directions, namely “to secure the just, timely and effective disposal of appeals”, and submitted that the directions in this case should be regarded as directions controlling the conduct of the appeal so as to meet that objective.

[23]Mr. Drabble added that, insofar as such directions presuppose that the Secretary of State will take steps, by means of an interview, to acquaint himself with the nature of the asylum claim and in substance to reconsider his decision, that would flow from the overriding objective in Rule 30(2), not from the directions. That is particularly appropriate, he said, where, as here, the Secretary of State had made no decision on the merits but only on a mistaken basis under Rule 340. He suggested that if the directions had required the Secretary of State to provide particulars of his case on the appeal under Rule 30(4)(c)(iii), a possibility perhaps contemplated by the Tribunal in paragraph 13 of its Determination (see paragraph 12 above), it would have required him effectively to consider the merits of the case for the first time.

[24]However, Mr. Drabble acknowledged that the main obstacle to that line of reasoning is the decision of this Court in Mwanza – unless it could be distinguished. He sought to do that by narrowing its ratio to the proposition that procedural directions under Rule 30 cannot require the Secretary of State to take a fresh “administrative action”, such as substantive consideration of and decision on the asylum merits. The position was different, he submitted, if, as here, a direction fell short of that in that it merely required him to consider the merits and communicate his conclusions to the adjudicator and the claimant. However, he did not confine his submission based on that distinction to Rule 340 cases. He said that the distinction between a direction to the Secretary of State to particularise a case he has not yet thought about and one as to what he thinks about a case on which he had reached a conclusion on the merits in order to provide particulars of it is artificial. Such a direction would merely impose a timetable on what he has to do in any event for the purpose of the appeal, namely to consider the merits of the claim, so there is no conflict with Mwanza; and it meets the overriding objective in Article 30(2).

[25]Mr. Drabble sought support for his interpretation of Mwanza and its implications for the practical working of Rule 30 in the Tribunal’s decision in N’da. He relied on the Tribunal’s expressed concern in that case that the Rule should be usable to prompt the Secretary of State to consider or reconsider, as the case may be, his decision on the merits, the directions serving effectively to impose on him a time-table for doing so, and thus for all practical purposes “procedural”.

[26]Mr. Drabble submitted in the alternative that Mwanza was wrongly decided, but acknowledged that he could not succeed on that challenge before this Court.

[27]Mr. McCullough submitted that whether or not, in Collins J’s words in N’da, it would be “sensible” or “desirable”, to allow an adjudicator to remit the asylum merits to the Secretary of State where a special adjudicator considers that something has gone wrong, or where circumstances have changed, the fact is that there is no provision in the Rules or elsewhere for special adjudicators to make such remissions. It is for him to decide the asylum merits himself, as the Tribunal itself has recognised in general terms in Ali Haddad v. Secretary of State [2000] INLR 117, at paras 7 – 9. He also observed that the Tribunal’s expressed concern in N’da about delays in decisions as to removal directions may be unfounded, given the observations of the Court of Appeal in the linked cases of “Afghan No. 19”, R (Secretary of State v. IAT

[2001] EWHC Admin 1067

, [2002] INLR 116, and Saad v. Secretary of State

[2001] EWCA Civ 2008

, at para. 57 that, as an asylum appeal involves consideration of a hypothetical removal at that time, it was wrong to adjourn an appeal because it was not yet known whether the Secretary of State was going to remove.

[28]Mr. McCullough disagreed with the narrow ratio of Mwanza for which Mr. Drabble contended, namely that a Rule 30 direction cannot require the Secretary of State to take a fresh “administrative” action, such as taking a fresh decision. He submitted that since Rule 30 is, on its terms, plainly limited to procedural case-management directions, matters falling outside it would be matters of substantive nature, for example, consideration or further consideration of the matter in one form or another on its merits. That is so, he submitted, whether or not the direction requires the results of that consideration to be embodied in a decision letter or formally communicated to the Tribunal or the claimant. He questioned the equation of a substantive matter with an “administrative” action whatever that meant and of a matter of procedure with a non-administrative action. He submitted that the true ratio of Mwanza was that a direction requiring the Secretary of State to re-evaluate the merits of an asylum claim is outside Rule 30 and, therefore, ultra vires, relying on the following words of Sir Swinton Thomas, at para. 31 (which I have already set out as part of a longer passage in para. 18 above): “… it is clear that the rules with which we are concerned in this appeal are procedural rules and do not deal with substantive matters … to direct the Secretary of State to issue a refusal letter … is, as the Tribunal found, a matter of substance and can only be done after proper consideration by the Secretary of State or those acting on his behalf.”. [my emphasis] He also noted also that the Tribunal in N’da itself recognised, in paragraph 10 of its Determination, that Mwanza had turned on a requirement on the Secretary of State to re-evaluate the asylum merits, albeit in the form of a direction to issue a fresh decision letter, similar to that in the direction in N’da, which was “to make a complete expeditious review of the case”: “… the direction given by the Adjudicator in that case, although not of course identical to that given in this case, has very close similarities. The Direction to issue a fresh refusal was merely to ensure that the matter was not left without any consideration at all and that there was a positive step which had to be taken by the Home Office”.

[29]In summary, Mr. McCullough submitted: 1) that the Deputy Judge properly applied the Mwanza distinction between a procedural direction for the conduct of the appeal before the special adjudicator under Rule 30 and a direction to the Secretary of State to review or reconsider his decision on the merits; 2) he correctly considered that the series of directions should be looked at as a whole; 3) he correctly decided that they were not procedural directions for the conduct of the appeal, but of a substantive nature requiring the Secretary of State to interview Mr. Zaier for the purpose of reconsidering his claim for asylum on the merits; 4) the directions were, therefore, unlawful because the special adjudicators had no power to give them; and 5) Mr. Curzon Lewis, therefore, had no power to allow Mr. Zaier’s appeal on the ground that the Secretary of State had failed to comply with them.

Conclusions

[30]In my view, Mr. McCullough’s submissions are to be preferred. As is plain from the legislative provisions, rules and authorities to which I have referred, an adjudicator, unlike the Tribunal to which Rules 30 and 33 also apply, has no power to remit the matter, in his case, to the Secretary of State for re-determination. His function is to determine the matter on the merits on the appeal before him; so he does not need the power to remit; which must be why the legislation does not provide it. That follows from the terms of the section 8(4) of the 1993 Act, which I have set out in paragraph 7 above, specifying as the only ground of appeal “that his removal in pursuance of the [removal] directions would be contrary to the United Kingdom’s obligations under the Convention”. Accordingly, it is an appeal by way of a hearing on the merits as to whether the claimant is a refugee and, if so, whether his return would breach the Convention; see Emlik, per Silber J, at para. 30; and in exercising that jurisdiction, whether by determining it or adjourning it with a view to future determination, a special adjudicator has no power to remit the matter to Secretary of State for him to consider or to reconsider his decision on the merits. And there is no other legislative provision enabling such remission. In contrast, the Tribunal, in keeping with its different role as an appellate body of review, had and has a power of remission of matters for reconsideration on their merits, a power to remit the appeal before it to an adjudicator “for determination by him in accordance with any directions given to him by the Tribunal” – see Immigration Appeals (Procedure) Rules 1984, Rule 21, and the 2000 Rules, Rule 23.

[31]The function of a special adjudicator hearing an asylum appeal is well described by the Collins J in Ali Haddadv Secretary of State [2000] INLR 117 at paras. 6 and 7, albeit in the context of a failure by a claimant to comply with a procedural direction, but equally applicable in a case where there has been no such failure and/or a failure by the Secretary of Sate to comply with any procedural direction under Rule 30:

“Even if the Secretary of State has purported to rely on para. 340 alone, there is a decision refusing the asylum claim which is appealable under section 8 of the 1993 Act. When the appeal comes before the special adjudicator, the appellant will usually seek to give an explanation for his failure to comply and proffer himself to give evidence and perhaps produce some documentary material, including any explanations for the failure to comply since that will inevitably bear on the appellant’s credibility, and decide whether to remove the appellant would be contrary to the Convention. This task the special adjudicator performs in every asylum appeal. The only difference in the failure to comply cases is that the material available to the Secretary of State when he makes his decision may be sparse in the extreme or even non-existent. But there is no difference in principle and in many asylum appeals fresh evidence is presented and explanations are given for action which were relied on by the Secretary of State to impugn credibility.”

[32]In the circumstances of a case like this where the Secretary of State has not complied with a “direction” of an adjudicator to take one of the steps open to him under Rule 340, including interview of a claimant for asylum, there are two reasons why the adjudicator is not entitled to allow, on the ground of that failure, an asylum claimant’s appeal from a refusal by the Secretary of State. The first, as I have said, is that the Secretary of State was not obliged to interview Mr. Zaier if he could inform himself sufficiently about the facts of his asylum claim in another way, and Rule 30 contained no provision entitling the adjudicators to direct him to do so. The second is that any such purported direction is not, in any event, concerned with procedural matters for prosecution of the appeal, as distinct, say, from a direct or indirect way of remitting the subject matter of it to the Secretary of State for consideration or re-consideration; so it is not within Rule 30 or, therefore, within Rule 33(2)(a) in reliance on which Mr. Curzon Lewis allowed Mr. Zaier’s appeal.

[33]The sole purpose of Rule 30 is not to facilitate a remission, either for an adjudicator or the Tribunal, but to enable them to give procedural directions for the appeal, in the adjudicator’s case by way of a hearing, and in the case of the Tribunal, by way of review. The “overriding objective” referred to in Rule 30 (2) is “to secure the just, timely and effective disposal of” – that stage of the asylum process – “appeals”. To construe the Rule so as to enable an adjudicator to send the subject matter of an appeal back to the Secretary of State without determining the appeal would not achieve that objective. In many cases, it could delay rather than expedite the process as a whole, for example, if on a re-determination the Secretary of State adheres to his original view, that decision itself could then, contrary to the overriding objective in Rule 30(2), generate a further appeal to an adjudicator, long after he could have determined the matter on the merits himself on the original appeal.

[34]There could, of course, be cases where, if it were possible, remission to the Secretary of State for consideration or re-consideration of the asylum claim on the merits might save time in the process overall, or where a direction differently expressed, say as a requirement under Rule 30(4)(c) to particularise his case for the purpose of the appeal, could achieve the same end in practice (see e.g. Secretary of State v. Razi 01/TH01836) 2001, IAT, paras. 12 and 13). But it is not permissible to bend the plain provisions of the legislative and regulatory scheme that I have described in the manner suggested by Mr. Drabble to achieve it. The only possible route open to Mr. Zaier on appeal to this Court, as Mr. Drabble acknowledged, would be for the Court to distinguish Mwanza.

[35]I should say that even if we were not bound by this Court’s ruling in Mwanza, I would follow and adopt it. For the reasons given by the Deputy Judge and advanced by Mr. McCullough, I consider that its ratio is wider than that for which Mr. Drabble contended. The Deputy Judge said, at paragraphs 22 and 23 of his judgment:

“22. …The effect of Mwanza … is that the Rule does not enable the adjudicator to require that the Secretary of State should consider afresh his decision and come to a further conclusion. … 23. …The reference in Sir Swinton Thomas’s judgment to the issuing of the fresh refusal letter was given in the context of the particular direction that was under consideration in that case. But the principle underlying it, in my judgment, is that the adjudicator cannot require the Secretary of State to retake his substantive decision. The adjudicator has no power to remit and I respectfully agree with Silber J on what he says about this in paragraph 30 of his judgment in Emlik.”

[36]On my reading of Sir Swinton’s reasoning at paragraph 31 of his judgment (see para. 19 above), any substantive matter, that is one going to the merits of the asylum claim, as distinct from procedural matters relevant to the conduct of the appeal, could not be the subject of a Rule 30 direction. The fact that in Mwanza the direction was that the Secretary of State should make a fresh decision within a set period or his original decision on the merits would cease to have effect does not mean that the ratio of the case is limited to such an extreme instance of a non-procedural and substantive direction requiring him to consider or reconsider an asylum claim on its merits. It follows that I respectfully agree with the Deputy Judge’s conclusion in paragraphs 22 and 23 of his judgment.

[37]Although the legislative scheme is that the Secretary of State is the primary decision-maker on the merits, it also recognises in its provision for an appeal by way of a hearing at the first stage of appeal, that the adjudicator, when the matter comes to him, has the same function. And that is so, not only where the Secretary of State has made an initial decision on the merits, but also where he has not done so in a non-compliance refusal as in Mwanza and this case, albeit in the sense identified by Collins J in Ali Haddad, at paras. 5 - 9, under Rule 340 when read with Rules 334 and 336. It follows that it is immaterial that, in this case, the Secretary of State dismissed Mr. Zaier’s claim for asylum under paragraph 340 of the Immigration Rules and thus without consideration of the merits in the sense that the claimant had not furnished him with sufficient information to support his claim.

[38]I should add that, even if the Mwanza ratio were as narrow as Mr. Drabble has suggested, I can see nothing in it to prevent this Court from adopting the wider approach for which Mr. McCullough contended.

[39]Accordingly, I would dismiss the appeal.

[40]I agree that this appeal should be dismissed for the reasons given by Auld LJ and add a short judgment of my own limited to the distinction between orders made by special adjudicators which are permissible and those which are impermissible for want of jurisdiction.

[41]In paragraph 14 of his judgment Auld LJ has set out rules 30 and 33 of the 2000 Rules. Under Rule 30 the special adjudicator, like the Tribunal, has wide powers to make procedural orders in relation to the conduct of an appeal (rule 30(1)) in order to secure its just, timely and effective disposal (rule 30(2)). Rule 30(4) sets out particular examples of such directions. They include directions which provide for the furnishing of any particulars which appear to be requisite for the determination of the appeal (rule 30(4)(c)(iii)) and a skeleton argument (rule 30(4)(d)(iii)).

[42]Auld LJ has set out the facts, which I do not therefore repeat. It appears from them that the Secretary of State originally decided to interview the appellant on 29th May 1998, no doubt in order to give appropriate consideration to his claim for asylum. The first special adjudicator, Mr. Such, was satisfied that the appellant was not given notice to that effect. On 26 January 2000 he adjourned the appeal with a direction that the Secretary of State interview the appellant. A similar order was made on 15 June 2000, when it appears that the presenting officer concurred, and on 23 February 2001 (by which time the Home Office had lost the file) the adjudicator gave directions that the Secretary of State interview the appellant within one month. Auld LJ has set out the details of what then happened in paragraph 10. Various special adjudicators gave direction on 15 March, 9 April and 14 May 2001 that the Secretary of State interview the appellant within one month.

[43]Auld LJ set out in paragraph 11 what happened before Mr. Curzon Lewis on 18 June 2001 when he allowed the appellant’s appeal without considering the merits under rule 33(1)(a) and 33 (2)(a), on the ground that the Secretary of State had failed to comply with directions given by several special adjudicators to the Secretary of State to interview the appellant.

[44]I entirely agree with Auld LJ that Mr. Curzon Lewis was not entitled to dismiss the appeal without a hearing because those directions were not procedural directions permitted by rule 30 but were directions which the special adjudicators had no jurisdiction to make. For the reasons given by Auld LJ, a special adjudicator has no power to order the Secretary of State to interview an applicant for asylum and, indeed, no power to order the Secretary of State to make a fresh decision or to remit an appeal to the Secretary of State for that purpose.

[45]It does not, however, follow that the powers of a special adjudicator under rule 30 are not extensive. In this case the Secretary of State initially wanted to interview the appellant and it seems not unlikely that there will be cases in which the Secretary of State will wish to interview an appellant at a later stage of the process, perhaps in order to reconsider his initial approach to the case. He may wish to do so in connection with the appeal. This can perhaps be illustrated by the facts of this case.

[46]The Secretary of State might have wanted to interview the appellant after Mr. Such had accepted the appellant’s case that he was unaware of the position. Indeed it may be that that is what Mr. Such thought he would want to do. Although Mr. Such had no power to make the order he in fact made, he could as I see it have approached the matter differently. For example, the Secretary of State’s representative could have been asked whether the Secretary of State wished to interview the appellant before the hearing of the appeal. If he had said no, the special adjudicator had no power to order him to do so. On the other hand, if he said yes, the special adjudicator could have laid down a time before which any interview was to take place and given a direction that the Secretary of State give particulars of his case in order to facilitate the appeal. Such directions would as I see it have been permissible as procedural directions within rule 30. If the Secretary of State’s representative had said that he needed time to consider or to take instruction as to whether the Secretary of State wished to interview the appellant, again the special adjudicator could have given appropriate directions as to an appropriate timetable, in order, in the words of rule 30(2), to secure the just, timely and effective disposal of the appeal.

[47]I have added these comments because it is, I think, worth stressing that, while the special adjudicator has no power to direct the Secretary of State to conduct an interview or to reconsider the merits and produce a fresh decision, he does have ample powers to ensure that the Secretary of State (and indeed the appellant) take timeous steps with a view to the disposal of the appeal as soon as reasonably practicable. However, as already stated, I agree that the appeal should be dismissed for the reasons given by Auld LJ.

[48]I also agree. _________________