AM (Cameroon), R (on the application of) v Asylum and Immigration Tribunal [2007] EWCA Civ 131

"8. I understand however that the telephone conference facility was available at the County Court. The County Court is located in the same building as the AIT and it is. on the same floor. I therefore made enquires with the AIT regarding the use of the County Court facility but my request was hindered. I wrote to the county court but I did not receive a reply. I telephoned Field house. I was told that installing telephone conference facility was an accommodation issue and was asked to write to the ECO for advice but I did not get a reply. 9. Because I did not get satisfactory replies from the AIT and the County Court I made an application to the Legal Service Commission (LSC) to fund the installation and connection of the telephone conference facility. Funding was granted in full"

"7. At paragraph 3 of IJ Sacks statement, he states that he did not consider it appropriate to allow such evidence to be admitted in this form. He said that it was not practical to hear evidence from a telephone link. He failed to give reasons and in my view did not consider the possibility with an open mind. 8. I believed that it was not appropriate to challenge J Sacks decision by Judicial Review following the CMRH until I had ascertained whether the telephone link could in any event be made possible. So I embarked on making enquiries with both the AIT and seeking co-operation from the British High Commissioner (BHC) in Cameroon. (Ex 3). 9. Unfortunately I was confronted with negative responses from the AIT and the British High Commissioner. They were unhelpful (Exs 3 & 7). I did not obtain a response from AIT in Field House from my enquiries (Ex 13). 10. I approached the Legal Service Commission (Ex 4) and I was granted funding to make the telephone link possible. 11. With the LSC funding and my firm the connection and the equipment was purchased to enable the evidence to be heard in court. With this I sincerely believed that the Immigration Judge would not have objected to our request if the funding, equipment and technology was made available."

"3. With regard to my refusal to consider hearing evidence from a witness in the Cameroon, I am aware that under the Procedure Rules I have discretion as to how and in what form evidence can be admitted. The Appellant was seeking leave for telephone evidence to be admitted, and for her witness in Cameroon to attend at the British Embassy, and to have his credentials verified at the Embassy, and for him then to give evidence over a telephone link at the hearing. I did not consider it appropriate to allow such evidence to be admitted in this form. ... 4. The Appellant's representative, following my decision on 28l July 2005 to refuse to admit evidence by telephone, sought to overturn my decision by approaching the management staff at the North Shields centre. I understand that quite rightly they refused to consider the approaches that were being made by the Appellant's representatives, bearing in mind that I had already made a judicial decision. I understand that the representatives were very persistent in their approaches to the Office Manager at North Shields on this particular point."

"13. The Case Management Review took place on 28th July 2005. At that hearing the Appellant made an application that the court grant permission for a telephone link to enable a witness in Cameroon to give evidence. This witness was a Barrister who had represented the Appellant's husband in the past. Paragraph 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 gives me power should I so wish to exercise it, to make provision for a hearing to be conducted or evidence given or representations made by video link or by other electronic means. Having considered the Appellant's request I did not consider it appropriate to make such an order. I consider that there was more than adequate time for affidavit evidence from that witness to be lodged and considered by the court. I directed that the matter proceed to a full hearing on 11th August 2005. 14. The Appellant's solicitors sought to challenge my refusal to receive evidence via the telephone conference, and by their letter of 9 August 2005 indicated that they would want the matter re-considered at the hearing on 11 August 2005, and in their letter confirmed that the LSC had agreed to fund any telephone conference. They identified the basis of their arguments for seeking such a facility, and identified the witness that they would be calling, and the evidence that he would be giving."

"We respectfully give notice of our request for permission to adduce evidence via telephone conference at the above name appeal hearing as preliminary issue at the appellant's hearing tomorrow. We initially made the request before Mr Sacks at the CMR hearing recently and it was refused on the basis that the facility is not available at North Shields hearing centre. We confirm that we can now have the facility made available. We made extensive enquiries with the AIT with a view of obtaining the telephone conference facility on loan from the County Court but our efforts were hindered. We have consulted with LSC and applied for funding. They have today agreed to fund the installation and telephone connection between the court and the witnesses in Cameroon. In view of the available funding, we ask the court to give directions for the evidence to be given by telephone conference. We ask the court to consider the following:- 1. According to the law the burden of proof is on the appellant. The appellant is seeking to adduce evidence that support her claim and corroborate what she has said. In the interest of justice the appellant should be allowed to prove her case. 2. There is no legal basis to prevent the appellant from adducing evidence via telephone conference. 3. There is no practice direction to prevent or prohibit the installation of such equipment and for evidence to be obtained in this way. According to practice direction telephone evidence is allowed in bail applications and there is no distinction of such to prevent such a method of or to discriminate against an appellant in obtaining evidence in an asylum appeal hearing. 4. We would remind the court that procedural rule 53, 2005, (Burden of proof) states that if facts are asserted, it is for the appellant to prove that the fact asserted is true. 5. Rule 51 states that the Tribunal may allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal... even if the evidence would be inadmissible in a court of law. 6. Rule 45, the Tribunal may give directions for a hearing to be conducted or evidence given or representations made by video link or by other electronic means ... With regard to the evidence, the appellant stated that she was arrested, tortured and imprisoned in October 2001. The Home Office rejected her evidence. The witness we intend to call is a Supreme Court Barrister at law who states that AM was amongst those detained in October 2001 and that he was asked by a Human Rights group to get her and others bail. There are other issues which the witness can give evidence in relation to prison condition, arrest, fair trial, detention, escape prisoners, prosecution, law and procedure and what will happen to the appellant on returning to Cameroon. We are of the opinion that the witness evidence is vital and support the appellant's claim entirely. We also intend to call a Human Rights Activist in Cameroon. We confirm that we will provide the Home Office the details of our witnesses and we would invite the Home Office to allow the witnesses to attend the Commissioner's office where identity of the witnesses and their qualification can be checked by the Commissioner's legal team and where they can give their evidence by telephone. According to BT (BT legal line) the installation of the device and connection of the facility can be completed within 30 minutes. A device is plugged into an ordinary telephone socket. There should not be any grave concern of disruption to the court during installation, if any, it would be very small. The installation of the connection can be done on very short notice. We respectfully ask for our request to be considered as a preliminary issue at the start of the hearing oh the 11th August. We are guided by the court. If the court is minded to hear evidence via telephone conference we would be grateful if the court would adjourn the matter to accommodate the installation of the device and connection and at a time and date when suitable to all. Please do not hesitate to contact this office if we can be of further assistance."

"I first became aware of the case on 10 August 2005, when a letter was received from Browell Smith & Co asking that telephone conference- facilities be made available for the substantive hearing on 11th August 2005 to enable a witness from Cameroon to give evidence. The request was referred to me and, since it was a matter of court procedure, I referred it to the Resident Senior Immigration Judge, Mr Conway. I understand that the letter was taken to Mr Conway by Patsy Porter, a Court Clerk at the centre, and that he rejected the request. I understand that Mrs Porter telephoned Mr Bell and informed him of the decision of Mr Conway, that he was transferred to Mrs Judith Davies, the Court Clerk Manager and that because of the manner in which he was speaking to her, Mrs Davis requested that I speak to Mr Bell. Mr Bell was transferred through to me and he explained that he wanted telephone conferencing equipment available at the hearing and that he did not understand why Mrs Porter had spoken to Mr Conway about this as it did not involve him. I explained that Mr Conway is our Resident Senior Immigration Judge and a request like this would have to be looked at by a member of the Judiciary not the administrative staff. I explained to Mr Bell that I would look at the file and would call him back, although I did explain that we did not have such facilities available at the AIT. I spoke to both Mrs Davis and Mrs Porter to ascertain what they had both said to Mr Bell and what exactly Mr Conway had said. On looking through the file I noticed that at the Case Management Review (CMR) hearing which was held on 28th July 2005 this had been requested by the representatives and had been refused by Mr Sacks. I then went to see Mr Conway myself and he showed me the memorandum that was sent by Mr Justice Hodge. I then telephoned Mr Bell to inform him that I had spoken to Mr Conway again and that the information he had been given by Mrs Porter was indeed correct. I also explained that as he had already requested this at CMR and it had been refused by the Immigration Judge, we could do no more. Mr Bell became very irate again and insisted that this be looked at again. I was keen to do everything possible to assist and I informed Mr Bell that Mr Sacks was in the centre tomorrow so I would ask him to look at it and inform Mr Bell of his comments. The next day I took the file to Mr Sacks and asked him to look at it. Mr Sacks informed me that his decision remained the same and that was to refuse the application, and that if Mr Bell was not happy with this decision he would have to appeal it. I telephoned Mr Bell again and informed him of this decision. He again became very irate with me and we had a very long conversation . which did not progress matters. I informed Mr Bell that I could not help him any further and that I would have to terminate the conversation because of his manner and lack of progress. Mr Bell then wrote to the County Court office and asked if he would be able to use their equipment. This request was shown to me by a member of County Court staff who was unsure what to do with it as County Court staff have no jurisdiction within AIT. I again telephoned Mr Bell and informed him of the procedures to follow if he was not happy with the Judge's decision at the CMR and that the County Court could not overrule an Immigration Judge's decision. Over the next few weeks phone calls came almost daily, with Mr Bell requesting that telephone conferencing facilities be available and with me informing Mr Bell of the previous conversations and the action he would need to take. I had put this in writing to Mr Bell to clarify the situation but the telephone calls still persisted. I found Mr Bell's behaviour and tone completely unacceptable and, due to the length of time that he persisted with telephone calls and letters, it became intolerable. The telephone calls ceased at the time of the first substantive hearing which was held on. 11 August 2005."

"Mr Sacks informed me that his decision remained the same and that was to refuse the application, and that if Mr Bell was not happy with this decision he would Have to appeal it."

"The request was made because I believed that evidence by telephone link from a barrister in Cameroon could corroborate our client's claim which had been rejected by the Home Office as untrue some three and a half years after it was made. I am aware that such delay can hamper a witness's recollection and given that a doctor had reported that our client has brain lesions which may impair her memory I was anxious to provide the best evidence available. A draft affidavit, a fax copy affidavit or a scan copy affidavit by e mail would only carry very limited weight, if any as evidence, especially when it could be subject to change and correction, given the susceptibility to such evidence to accusations from the Home Office of being 'self-serving' and the problems of obtaining a finding from the court that such evidence is 'reliable'. It would be wrong and irresponsible to submit evidence of which is not certain of its content. Also, the postal service from Cameroon is not reliable. The sense of urgency in Cameroon is not similar to our sense of urgency in the United Kingdom and despite diligence from my end documents sometimes do not arrive in time for the hearing (as in this case). To hear live evidence would have been more beneficial and efficient and would have given the Home Office an opportunity to put to the Cameroonian barrister and human rights activist any matters which caused concern."

"1. I was instructed to represent the Appellant (AM) in a hearing today at North Shields and to apply for an adjournment on the basis that a telephone link was required to be put in place for the final hearing in order for evidence to be adduced by telephone conference from two witnesses in Cameroon. The witnesses (a Cameroonian lawyer and an officer of recognized human rights NGO) were able to give evidence corroborative of AM's evidence that she had been unlawfully detained in Cameroon. 2. I had received and considered recent medical evidence dated 9th August 2005 regarding the Appellant's life-threatening condition and I was accordingly concerned that the Appellant should not be put at risk at the hearing. 3. The Immigration judge, Mr. Sacks, opened proceedings by stating that he did not wish to hear any submissions from me with regard to any adjournment application in order to enable telephone evidence to be adduced as he had seen the letter dated the 9th August 2005 from my I. S. He said that the reason for refusal was clear. The IJ asked if the HOPO, Brian Craven, wished to say anything and he did not, save to say that an application had already been made in this matter and was refused. 4. The Immigration Judge made it clear that the decision . that he had made at the case management review hearing (CMRH) was based not only on the economics and practicality of the situation but also "on the case as a whole"

"3. I was present in court on the 11th August 2005 with the appellant and counsel, Ms. McVay. 4. I have had the opportunity of perusing Ms. McVay's attendance note and the appellant's statement regarding Mr. Sacks conduct on the 11* August 2005. I wish to echo what has been said by Ms. McVay and by the appellant as I witnessed the same incident. 5. I cannot explain why Mr. Sacks acted irrationally in the way that he did. 6. When I saw AM at the Accident & Emergency department she informed me that she was afraid of Mr. Sacks. AM said that she would be afraid of returning to court to face Mr. Sacks. She did not believe that she would get a fair hearing from Mr. Sacks. 11. When Ms. McVay made the adjournment application Mr. Sacks reacted very angrily and refused to entertain the idea of a renewed application and said that he had made his decision and that it was final. He said that he had received my letter and noted the content and he was not prepared to change his mind. In court he said that we should Judicially Review his decision, When counsel tried to explain why we were making the application Mr. Sacks appears to be behaving even more irrationally. 12. I saw Mr. Sacks pound his desk with his fist. He was not willing to listen to counsel. 13. When counsel realised that Mr. Sacks would not listen to further representations, in light of Dr. Wohlrab's letter counsel requested a short break to check with client regarding her fitness to give evidence. Initially Mr. Sacks was reluctant to agree to this. Mr. Sacks said that the medical report was mere supposition. 14. We were eventually given a short break but Mr. Sacks said that he will remain in court and that we should return in five minutes. 15. I noticed that AM did not appear to look well as she could not stand without being assisted. I held her arm and walked with her to the waiting area. I took her to the toilet. She later returned to the waiting area. She sat down but could not sit herself up straight. She was slanting to one side. AM complained that she was not well. 16. Counsel and I returned to the court to inform Mr. Sacks of AM's condition. Mr. Sacks did not accept our account and asked that AM to appear before him. He went on to say "

"12. On the 11 August 2005, as we had funding from the LSC I instructed Bridget McVay to renew our application for telephone link evidence with the benefit of the further information now available. IJ Sacks refused to listen to her further representations and was somewhat intemperate in his response. At paragraph 5 of IJ Sacks' statement he said he saw no reason to alter this decision despite the fact that we had funding and equipment. No explanation was given for his refusal either in the statement or in court. He appeared to view our wish to put the additional matters before him as an attack on his authority. Unfortunately his attitude and manner was witnessed by the appellant and had a severe effect on her. She was escorted from the room and was obviously very unwell and beginning to lose consciousness. 13. During a short adjournment the appellant became really ill and she collapsed in the Tribunal building and was taken to Accident and Emergency by ambulance. The Immigration Judge was aware that the Appellant had a rare and serious blood pressure problem that could rise to a dangerous level cause by stress. Medical evidence had been produced to show this to which he acted dismissively and described it as 'supposition'. Despite the attempts by Counsel to explain her nonavailability and the practical problems involved in relisting the matter for only seven days' time, the Immigration Judge refused to adjourn for any longer and reserved the matter to himself. On return to the office (having first visited the Appellant at A&E) I resolved to do the best I could to evidence the case and obtain medical evidence as to whether the Appellant was sufficiently well to give evidence."

"5. The application was renewed at the hearing of 11th August 2005. I had already, for the reasons that I had given to .the Appellant's representatives on 28* July 2005, made a decision on this particular point and saw no reasons to alter this decision. The Appellant's solicitors, at the hearing of 11th August then sought to have the matter adjourned so the affidavits could be lodged from Ambo Daniel Amombi, who was the witness they wished to call, he being a Barrister at Law. I considered that they had had more than sufficient time to lodge affidavits and refused an adjournment request on this particular point. Attendance Notes of Bridget McVav, Barrister 10. 10. I confirm that I have read Ms McVay's attendance note. At the case management hearing I did hear from Ms McVay on her application to have evidence adduced via a telephone link. I am aware that there had been a previous application made in this matter which had already been refused. After hearing Ms McVay's arguments I saw no reason to alter the decision, and again, refused this application. I was aware that I had a discretion as to whether such evidence should be introduced, and consider that I properly exercised my discretion in this matter by refusing to have evidence adduced via a telephone link. 11. 11. Ms McVay was reluctant to accept my decision in this matter, and despite my decision on the question of a telephone link, kept trying to re-open her arguments. I maintained my position. I do not accept that I showed anger towards Ms McVay. I would have been firm in my approach to her, bearing in mind her persistence and reluctance to accept the judicial decision that I had made. 12. As to the suggestion that on 11th August I refused to hear a repeat submission by Ms McVay to adjourn to enable telephone evidence to be adduced, Ms McVay's attendance note clearly indicates she was heard on the matter. I maintained my decision to refuse the adjournment, and it was her continued challenge to the decision that I sought to bring to a conclusion and proceed with the hearing. 13. I do not accept Ms McVay's suggestion that I showed anger. If I banged my first on the table, which I do not recall, it would have been merely to emphasise the point and was not a display of anger, as suggested. Witness Statement of Alexanda Chapman Bell 14. I have considered Mr Bell's statement and do not accept his contention that I acted in anything other than a professional and judicial way in dealing with this appeal. I am aware that Mr Bell had been in contact with the Court Manager and court staff on a number of occasions prior to the hearing of this matter, and that his attitude towards the court staff had caused some concern. I do not accept that I acted irrationally in any way. I do not accept what he says in paragraph 11 of this statement, namely, that I "reacted very angrily" when Ms McVay made an adjournment application. 15. As previously stated, neither Ms McVay or Mr Bell would accept any of the judicial decisions that I made, and were constantly trying to re-open applications and challenge what I considered to be final judicial decisions. I do not accept, as Mr Bell states at paragraph 12, that I "pounded [the] desk with [my] fist", I was always willing to listen to Counsel, but as previously stated, felt that I had to take control of the proceedings and refused to entertain repeat applications and repeat arguments over judicial decisions that had already been made. Having made what I considered to be the right and proper judicial decision, I wished to proceed to deal with the issues before me, and had to adopt a firm approach to both the Appellant's Counsel and her solicitor to achieve this end. 16. I take issue with the picture Mr Bell seeks to paint as to my conduct at all the hearings. At all times I allowed the Appellant's representatives to present their arguments. They, however, refused to accept my decisions and sought to challenge my decision by continued aggressive arguments both in court and to staff in the centre. This was not acceptable, as I pointed out to them. I take issue with the suggestion I displayed anger and acted irrationally, I acted in what I considered to be in a polite, firm judicial manner, and it was indeed those that represented the Appellant who, by their unprofessional attitude and approach to this case, created the situation they now seek to complain of. Statement of Appellant 18. I have read the statement of the Appellant and note what she says. I do not accept what the Appellant has said about my refusal to listen to arguments that were put forward. I have already dealt with the allegation that I pounded the table. I repeat that it was the Appellant's representatives that I considered to have acted unreasonably and unprofessionally in their approach to this matter in that whatever decision I made in court, which was not to their liking, they chose to challenge immediately and attempted to re-open and reargue "at the time. I was not prepared, having made the decision, to hear further arguments, and any firmness that I showed was to enable me to process this appeal. and hear it to a conclusion. 19. At no point did the Appellant give any indication that she was fearful of me, or was fearful that she would not get a fair hearing. There was no indication at the hearing on 11th August 2005 that the Appellant felt unwell, and she walked into the court and walked out of the court without any difficulty. When I granted the five minute adjournment, after refusing to adjourn the matter in full, I thought that this was merely so that the Appellant's representatives could take further instructions from her, and at no time was there any indication to me that she was feeling ill and likely to collapse. So far as the Appellant's condition is concerned, I did not immediately adjourn the case generally on 11th August, considering that I should allow time for the Appellant's condition to resolve and then to assess for myself whether I considered that she was fit and able to proceed. It was only when I learned that she had been taken to hospital that I considered it appropriate to adjourn the case generally on 11 August 2005."

"15. At the hearing on 11th August Mr Craven represented the Respondent. He was not prepared to consent to an adjournment request. Ms McVay, on behalf of the Appellant, relied upon the reasons set out in her letter of 9th August 2005. The application was considered afresh by me and refused. The Appellant then lodged a second application to adjourn, namely, for time to lodge affidavits by the witness in Cameroon who they intended to call to give evidence by the telephone link. I considered that the Appellant had had more than adequate time to lodge such affidavits, and again, refused an adjourn for this purpose. The witness that they intended to call was a lawyer, and would have been well versed in preparing affidavits which could have been prepared by him and sent by fax. At this point the Appellant's solicitors sought a ten minute adjournment to allow them to take instructions from their client with regard to a medical report that had been received and was dated 9th August 2005, the report being from Dr C Wohlrab. Before the court could reconvene, I was advised that the Appellant felt unwell, her condition deteriorated to the extent that an ambulance was called to the centre, and the Appellant was taken to hospital for a check up. I considered at this point that having regard to the Appellant's sudden onset of illness, I had no alternative but to adjourn, and for this reason only, adjourned the hearing until 18* August 2005."

"Thank you very much for keeping me updated about AM. I was sorry to hear she collapsed in court. As you know she was taken to North Tyneside General Hospital. A& E of North Tyneside General Hospital faxed me a report of 10 pages (not including the cover page). On arrival at A&E her blood pressure was 199/134. As you know from my previous report, such a high blood pressure is dangerous. It can cause headaches, heart attacks and strokes. In the A&E notes it read 'hypertension induced headache secondary to the stress of the day's events'. It also read: 'severe headache triggered by hypertension caused by stress of court admission'. Without further medication (further to her regular medication), apart from analgesia, the blood pressure settled gradually in A&E to a normal reading of 126/84. Since this event AM has chest' pain, it is worse in exertion. The pain is perceived behind the sternum, right inside the chest. This definitely sounds cardiac. Because of her insufficient blood pressure control I am sending her to Professor Wilkinson of the Renal Department Sunderland Royal Hospital for further advice before her planned appointment with him in September. This is only done because her blood pressure proves so difficult to control. Usually blood pressure is handled within primary care (i.e. by the GP). AM is physically unfit to attend any further court hearings for now. I am afraid for her health and life. She had this collapse in court once. We do not want this to be repeated with a possibly fatal outcome next time. I did experience a man in a stressful discussion collapse and after a few days in intensive care he died."

"The application by the Appellant for the adjournment of the hearing of this appeal from 18 August 2005 is refused for the following reason(s): 1. This application does not comply with Practice Direction 9.1 Application must be made on the day."

"14. On the 17 August 2005 I wrote to Home Office Presenting Unit advising them on our progress in obtaining the signed affidavit from Cameroon (Ex 14). 15. I was concerned that the matter had remained before IJ Sacks on the 18 August 2005 after the earlier incident when the Appellant had collapsed in the Tribunal building. I thought he would have removed himself from the proceedings as he had expressed his doubts over the seriousness of her medical condition prior to the Appellant's illness becoming apparent when she was taken to Accident and Emergency. Please note Brian Craven's statement at paragraph 8, referring to the medical report "

"We have taken witness statements from Mr Amombi and Mr Churchill but it is still in the draft form. We have sent the document back for each witness to read and check for mistakes. As soon as the statements are signed we will forward copies to you and the to the court. We can however, inform you that both of the witnesses will confirm that they are aware of AM's imprisonment and that Mr Amombi was instructed to obtain bail."

"1. I attended AM's hearing on 18 August 2005 as Counsel who originally had conduct of the case, nor any alternative Counsel was available at such short notice. My colleague Alex Chapman Bell a caseworker at this firm who has full conduct and knowledge of this case was unable to represent the Claimant in court due to the fact that he is yet to be accredited. 2. I have had no involvement or preparation in this case. I had acquired only limited knowledge of this case and was briefed only in respect of the adjournment request. 3. In light of the refusal to Adjourn by the Immigration Judge I did not feel that it was in the interest of justice or fair disposal of the case that this matter proceed without the Appellant's oral evidence."

"3. I have had the opportunity to read the statements made by Immigration Judge Lawrence David Sacks, Brian Craven, Loma Bavage, Kelly Swan and Patsy Porter. 4. I would like to point out that I have very limited knowledge of this case, Alex Bell has had full conduct of this case until proceedings commenced in the Higher Courts. We are an extremely busy department and are responsible for our own individual large caseload. Alex Bell requested at very short notice that I represent the Appellant on the 18th of August 2006 to request adjournment as he was not accredited to do so himself and Counsel Bridget McVay with previous conduct of the case was not available at such short notice. I understand that he was only informed that his written application for an adjournment had been refused late on the afternoon of 17 August. I was due to attend court on 18 August on a CMRH hearing for one of my own cases. Alex Bell attended with me on the day and had indicated to me that he felt that in view of the Appellant's temporary incapacity, that an adjournment should be granted. He provided me with a letter from the appellant's doctor indicating that further specialist treatment was to be arranged. 5. My request for an adjournment was refused for the reasons stated by Mr Sacks in his statement and that the case was to proceed to a full hearing. Mr Sacks said that if I disagreed with his decision then I should judicially review the issue. Thereafter I asked for an adjournment to lodge my Judicial Review and he refused. At this point I stated that I refused to participate in the hearing as it was not in the interest of Justice and fair disposal of the case that the matter proceeded in the Appellants' absence. I was also profoundly concerned that I knew so little about the case that it would simply be against my rules of professional conduct to hold myself out as being competent to conduct the appeal. Asylum appeals raise matters of the utmost importance and demand careful and thorough preparation. This was a very difficult decision for me to take but in good conscience I simply did not feel that it was appropriate for me to step in and try and improvise. Mr Sacks then asked whether I was withdrawing the appeal at which point I said no but reiterated my very difficult position. I disagree with the last sentence in paragraph 17 of Mr Sack's statement. I sought permission to leave the Court to deal with my other CMRH hearing but this was refused by Mr Sacks despite the fact that Alex Bell would remain to take notes. Please refer to Ms Bavage's hand written notes of the proceedings on the day. 6. At the end of the hearing following Ms Bavage's closing submissions, Mr Sacks again gave me the opportunity to make submissions on behalf of the Appellant to which I again re-iterated my position and added that the Appellant as a result of her absence has not been given the opportunity to address the credibility issues raised by the Home Office in their submissions. I have to admit to being somewhat flabbergasted by the approach taken by the judge in the face of what I had felt were carefully explained and conscientious reasons for being unable to conduct the appeal. I cannot understand how the learned Immigration Judge felt it was just or desirable for someone who was attending on an emergency basis to deal with an adjournment application only and who therefore had little knowledge of the case, to make submissions on it. I confirm that I have at all times acted mindful of my professional obligations to the court and the firm's client."

"18. In relation to the hearing on the 18 August 2005, my colleague Rehana Haque, an accredited immigration solicitor (who was attending another matter), was instructed to attend the Tribunal to make a further application for an adjournment because the Appellant could not attend because of ill health. I had faxed a letter to the Tribunal on the 17 August 2005 (Ex 5). My request was refused (Ex 11). 19. Rehana Haque had no knowledge of the matter in detail and she would not have been able to represent the Appellant adequately, especially when the Appellant was not there. I was not in a position to represent the Appellant because I was not accredited at that time. I had just returned to work after a very serious illness. I was exempted from the accreditation examination briefly with the permission of the L.S.C. However, I was able to gain my accreditation from the 13 October 2005(Exs9&10). 20. On the 18 August IJ Sacks said that if we disagreed with him we should Judicially Review his decision. After making this comment Rehana Haque made a request for an adjournment to lodge a Judicial Review application but again this was refused. Rehana Haque submitted that this was not a fair hearing. 21. I believe our client should have been allowed to give evidence at her appeal hearing. Our client expressed to us her very strong wish to give evidence as soon as she was fit to do so. In view of what has happened at the tribunal previously I had hoped and believed that the Immigration Judge would be allowing a reasonable period of adjournment to enable the Appellant to recover from her illness and for her medication to take effect and control her blood pressure. Rehana Haque and I were very surprised when our application was refused."

"50.... c) I am satisfied that the medical evidence that has been produced to me from Dr Wohlrab gives an accurate assessment of the Appellant's medical condition. I am further satisfied that the Appellant has been suffering her present problems for the last two years, and that there appears to be no resolution to the problems, and that the future prognosis is uncertain. The medical evidence confirms that until further examination of the client has taken place, and possible further treatment, it would be unwise for her to give evidence in any hearing. This of itself satisfies me that the decision to proceed in the absence of the Appellant was a right and proper decision to make, there being no realistic prospect of a future date being identified when the Appellant would be available to give evidence in this case. To adjourn a case indefinitely for this reason is highly unsatisfactory and is the basis of the reasoning behind my refusal to allow an indefinite adjournment for the purposes of the Appellant to give evidence. s) This is an unusual case in that because of my refusal to grant the Appellant an adjournment on 18th August 2005 to enable her to give evidence, the Appellant's representatives, whilst not withdrawing from representing the Appellant, declined to take any active part in the proceedings before me on 18th August. They did not raise any challenges or make any submissions on their client's behalf. The issue that they take is that the Appellant has been denied the opportunity to give evidence. I am satisfied however, having considered in great detail the papers that were before me, that there was more than sufficient information contained within those papers to enable me to fairly and justly deal with the Appellant's evidence. The Appellant's representatives did not indicate to me what issues they . considered clarification was required on. I do not consider that I have in any way been prejudiced by the fact that I have not heard directly from the Appellant. There is more than adequate evidence contained within the file to, as I have previously stated, enable me to deal with this case equitably and justly. I do not consider that this Appellant has in any way been prejudiced. In any event, I could not have permitted a situation to exist whereby I would be granting an adjournment without being aware of when or if indeed this case could have hoped to have been heard. The Appellant has been suffering from her existing condition for the past two years without improvement, there is no suggestion of what treatment she is likely to receive, whether that treatment will be successful, and whether that treatment would have enabled her to be fit enough to give evidence. The risks of the Appellant giving evidence have been clearly identified in the medical report. It is having regard to these risks that I have come to the conclusion that the best way forward for this matter would be to deal with the appeal on the evidence that is contained in the file. It is unfortunate that the Appellant's solicitors did not agree with this course of action and assist me by presenting arguments on her behalf and making the appropriate submissions. This was their choice, however, with which I cannot argue."

"15. I was concerned that the matter had remained before IJ Sacks on the 18 August 2005 after the earlier incident when the Appellant had collapsed in the Tribunal building. I thought he would have removed himself from the proceedings as he had expressed his doubts over the seriousness of her medical condition prior to the Appellant's illness becoming apparent when she was taken to Accident and Emergency. Please note Brian Craven's statement at paragraph 8, referring to the medical report "

"6. The witnesses in Cameroon were asked to prepare their affidavits for the hearing on the 11 August 2005. I cannot be sure when the draft affidavits arrived by e-mail. However, I have a letter of which I wrote to Home Office Presenting Officer 17 August informing them of the contents of the affidavit. I believe the draft only came to this office on the 17 August 2005 for checking. On the 19 August 2005 I believe I received an e-mail with an attached scanned copy of the signed affidavits of which I immediately forwarded to the Tribunal for consideration (Ex 12)."

"19. There was no application made at the hearing for me to receive late evidence. Despite this, a fax was received from Broweil Smith and Co on 22"

"I, Ambo Daniel Amombi, adult male Cameroonian Barrister, Solicitor and Notary Public of the Supreme Courts of Nigeria and Cameroon, and Partner in the Ngenko Law Firm with headquarters along the Commonwealth Avenue Kumba, PO Box 459 Kumba, do make oath and state as follows: 1. That I am holder of a Bachelor's Degree (LLB Hons) in Law from the University of Yaonde, Cameroon (1992) and also a Law graduate from the Nigerian Law School Aduja (BL Hons.), and was sworn into the Abuja Branch of the Nigerian Bar Association in September 1999. 2. That I was sworn into the Cameroon Bar Association on April 14, 2000, and hold membership No. 805 on the roll of Practicing Advocates in Cameroon for the 2004 Judicial year. 3. That I am also the Board Chairman of the Youths for Peace Initiative Cameroon, YPIC, (a national NGO on Peace building through human rights and democracy) with headquarters in Kumba YPIC is registered number G39/D14/5/1006 of November 1,2004. 4. That I have worked as Legal Adviser for the Human Rights Defence Group - Southwest Office (HRDG/SWP) in Kumba from 2000 to 2004, and continue to offer my assistance to the group. HRDG is registered as an NGO No. E29/1111 /Vol6/400/APP and has its head quarters in Bamenda in the Northwest Province of Cameroon. 5. That my responsibilities to the HRDG were to offer free legal counselling to the organization and victims of rights violations. I intervened in many cases to seek the release of some unlawfully detained persons from the prison, police and gendarmerie cells in Kumba. 6. That I have, at the instance of the HRDG/SWP, intervened on many cases to address the detention of SCNC Militants. 7. That most detained SCNC militant are hardly ever charged with an offence and are kept in prolonged pretrial detention on administrative orders of District Officers, Senior Divisional Officers and Governors. 8. That sometime in October 2001, I was contacted by the. HRDG/SWP Coordinator Mr Samba Churchill about the arrest and detention of some SCNC militants. We visited the Kumba Prisons where they were detained and discovered that some of them, including AM were arrested in the place of their relations, who are SCNC activists. I did not meet AM personally and had no particular interest in her individual case. 9. That I contacted the Senior State Counsel of Meme Judicial Division, Mrs Vera Ngassa, to demand the reason for the arrest of all the 'SCNC militants', and ask for their release on bail. She told me that she was not aware of their arrest and detention and could not order for their release. 10. That I contacted the Prison Superintendent and they informed me that the militants were brought to the prison on the orders of the SDO for Meme Division, I then contacted the SDO especially about the plight of four persons, including AM, arrested in the place of their relations. The SDO said the militants were being held for 'hostilities against the fatherland', meaning Cameroon, and that AM and the three others could only be released if the targeted relations showed up. 11. That I reported this to Mr Samba Churchill and he wrote a petition to the SDO to unconditionally release all the detained persons, or charge them with an offence. The SDO insisted that he had the right to arrest and detain persons for 15 days renewable, citing Section two of Law No 90/054 of December 19 1990 on the maintenance of law and order that empowered him to 'take measures to detain persons for a renewable period of 15 days'. 12. That Mr Samba reminded the SDO of article 45 of the Cameroon Constitution to the effect that all duly ratified international treaties shall following their publication override national laws, and inferred from the International Covenant on Civil and Political Rights (ICCPR) that all arrested and detained person ought to be charged with a penal offence and that due process of law ought to be respected at all times. 13. That Mr Samba later informed me that all his pleas fell on deaf ears. 14. That I am not particularly aware of how AM escaped from the prison and only heard about the escape of some of the detained person from Mr Samba Churchill. I also learnt of the release of the others from him. 15. That I swear to the aforementioned facts to be true to the best of my knowledge and information."

"1. The application was made outside the period specified in section 103A of the Nationality, Immigration and Asylum Act 2002. The determination is marked "served in person by Sarah Brown at North Shields Reporting Centre" and bears the date stamp "07 SEP 2005"

"Served in Person at North Shields Reporting Centre"

"1. I note from the file that AM was served in person at North Shields Reporting Centre. I have identified this by the handwritten note but this only gives the date the determination was promulgated. There is no evidence as to the specific date AM was served. 2. None of our clients have ever been served a Notice of Determination in person in the last four years. It is not simply a matter of it being an unusual step to take for it to be served personally by the Home Office, it is simply unique in terms of the determinations received at this office. 3. I have asked a colleague of mine to call other solicitors firms in the region. To date no other solicitors firm is aware of asylum determinations being hand delivered. We have contacted Brar & Company (based in Newcastle), David Gray Solicitors (based in Newcastle, and Donnelly Adamson Solicitors (based in Middlesbrough), none of these firms have any clients whose determinations were delivered in person. 4. We normally receive the determinations by post. We received a copy of this determination by post and therefore assumed that it was being served in this normal way. We have not been given any satisfactory reasons to date why this particular client was served by this most unusual method."

"When this application reached me I enquired of the Asylum and Immigration Tribunal if the determination of the Immigration Judge who heard this case on 18th August 2005 had been promulgated. I was told it had been and that the appeal had been dismissed. I have not seen the determination of the Immigration Judge. There is therefore nothing to stay as asked for in the application for urgent consideration. I was also told by the Asylum and Immigration Tribunal that there appeared to be no application for a reconsideration filed. It may well be arguable that the Immigration Judge was wrong in law in the way he dealt with this case. A decision will have to await the acknowledgment of service. But the case may also raise the issue of whether the appropriate way to challenge decisions such as were made in this case by the Immigration Judge is by judicial review or by following the more obvious route of applying for a reconsideration."

"1. Ms McVay's note of the proceedings on 11 August state that the Immigration Judge states that if there was dissatisfaction with the case management decisions they should have been judicially reviewed (paragraphs 8 and 10). Neither this nor what is said about the Judge's behaviour is contradicted in the defendant's summary grounds of defence. The Judge's statement about how challenges should be made would appear to make this case materially different from the case of M and G. The defendant's summary grounds of resistance do not address the question of why, notwithstanding this distinction, lodging an application for judicial review on 8 September constituted an abuse of process. 2. There is no application before me of the decision of the Senior Immigration Judge not to reconsider the Tribunal decision. If there is one pending it would be appropriate for it to be considered at the same time as the application to move for judicial review."

"1. I do not consider that the Immigration Judge committed what counsel for the Applicant sees fit to describe a "flagrant breach of natural justice involving judicial conduct prejudicial to the interest of justice"

"May there have been an error of law made by the Immigration Judge at the pre-hearing stage or in his conclusions on the merits?"

"... we are naturally concerned to learn that the matter was not linked with our client's outstanding JR application which is now listed for hearing on the 19 December 2005. My office has specifically informed the court the wishes of Honourable Mr Beatson to have the matter before him. I am also attaching our letter dated 11th October 2005 for your information."

"1. MR JUSTICE STANLEY BURNTON: This is an application for permission to bring judicial review proceedings in respect of interlocutory decisions made by an immigration judge, Mr L D Sacks, in the course of his consideration of the claim for asylum by the present claimant, AM, a citizen of Cameroon. It is unnecessary for the purposes of my decision to consider the substance of the complaints made in respect of Mr Sacks' decisions. Ultimately, he rejected the claim. 2. The claimant sought reconsideration under section 103A which was rejected by the senior immigration judge and reconsideration was sought again by the High Court. On 10th November 2005 Bean J made an order on the papers, necessarily, rejecting the application for reconsideration of Mr Sacks' decision under the present statutory regime. 3. It is clear that there were genuine complaints about Mr Sacks' procedure and these proceedings were begun before he had made his final decision, so at that date only his interlocutory decisions and determinations had been made and therefore the judicial review proceedings could apply to them. It follows, however, that if he had made decisions which were unfair and which were unfairly prejudicial to the claim for asylum, his substantive decision would be liable to be set aside by the judicial review proceedings or under section 103 A, because his procedural errors would constitute errors of law. 4. As appears from what I have already said, there have been two sets of proceedings commenced by AM to challenge, in practice, the decision of Mr Sacks; namely judicial review proceedings and proceedings under section 103 A. The Tribunal has appeared today by Miss Broadfoot to challenge the judicial review proceedings on the basis that they constitute an abuse of the process of the court, or are otherwise inappropriate in a case such as the present. She relies on the decisions of the Court of Appeal in M and G [2004] EWCA Civ 1731, and the more recent decision of Andrew Collins J in Y [2005] EWHC 2845. 5. The procedure laid down under section 103A of the Nationality, Immigration and Asylum Act 2002 clearly is intended to be the normal procedure available to any applicant who is disappointed by a decision of the Asylum and Immigration Tribunal. It restricts the challenge to errors of law and restricts the number of occasions in which an order may be made for reconsideration; that is to say, in relation to any appeal an order can only be made once (see section 103A(2)). The Act imposes very stringent time limits for the making of an application for reconsideration. Manifestly, section 103A was introduced by Parliament with a view to expediting consideration of asylum claims to the appeals system. It is, I think, accepted by Miss Weston on behalf of the claimant that in the normal course it would be inappropriate, and possibly an abuse of the court, to seek to challenge a decision of the Tribunal which is open to the section 103A procedure by means of judicial review. Judicial review is,' in general, but particularly in this context, an exceptional remedy. 6. The question for me is whether, in the circumstances of this case, that exception has been established so as to justify judicial review proceedings. 7. As I have already stated, material procedural errors which may have affected a determination of the Tribunal will be now regarded as errors of law which should lead to an order for the reconsideration of the immigration judge's decision. Miss Weston contends that in a case such as the present evidence would be required in order to establish whether or not there were material procedural errors or defects in procedure before the immigration judge: demonstration of bias, unfairness, exclusion of admissible evidence and the like. However, if seems to me that where such allegations are made, it is open to an appellant ~ that is to say someone seeking reconsideration ~ to put before the senior immigration judge and the Court of Appeal the evidence on which he or she relies in order to establish those procedural errors, as indeed occurred in the present case. I do not see that the procedure under section 103 A is inappropriate to deal with complaints such as those made in the present case. 8. Furthermore, I am considerably troubled by the fact that if I were to give permission in this case the matter would come before a High Court judge who would, in effect, be asked to rule that Bean J, who refused reconsideration and gave substantial reasons for doing so, was in error. It can be only in the most extreme circumstances, if ever, that one High Court judge dealing with the same, case and the same complaints as another could be invited to come to a different conclusion. If I were to give permission in this case, it seems to me that if I were to hear the substantive claim I should be sitting as a Court of Appeal from the decision of Bean J. Bean J had before him the complaints of breach of natural justice and unfairness. He examined them to see whether they were arguable and ruled that they were not. Complaints may be made about the conclusion that he reached, but it is inappropriate for such a complaint to be made to another High Court judge and Parliament has stipulated that his decision is, in any event, final. 9. It seems to me that this case is not distinguishable from the general rule as stated by the Court of Appeal in G. It is unnecessary for me to find that these proceedings are an abuse of the process. It is sufficient for me to say that in the circumstances of a case such as the present, it is inappropriate for permission to challenge the decision of the immigration judge by way of judicial review to be granted. 10. I would add that although these judicial review proceedings concerned interlocutory decisions, in due course one would have expected the substantive decision also to be challenged. Generally it is inappropriate to challenge interlocutory decisions. A party complaining of those decisions is normally required to await the substantive decision. I have not considered the merits of the procedural complaints made in this case. I appreciate that those complaints are complaints which are strongly held but, having regard to the statutory regime and the authorities' which it seems to me have considered the position, for material purposes, I refuse permission. 11. MISS WESTON: My Lord, I simply remind the court that the immigration judge did invite the claimant to seek interlocutory judicial review. When one considers whether it is an abuse of process one has to consider that. 12. MR JUSTICE STANLEY BURNTON: Perhaps I should add something. I am reminded that the immigration judge himself suggested judicial review of the interlocutory decisions we have made. It seems to me that he erred in that respect, but it does mean, that those representing the claimant are not to be faulted in the same way for having sought to do so. I have no doubt also that they brought proceedings rapidly because they were concerned that there has been an injustice."

"I have not considered the merits of the procedural complaints made in this case."

"I approach the question... on the basis that... the resolution of any issue of fact and the exercise of discretion in relation to an application for asylum... He exclusively within the jurisdiction of the Secretary of State subject only to the court's powers of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under review is said to be one which may put the applicant's life at risk, the basis of the decision must call for the most anxious scrutiny."

"Asylum decisions are of such moment that only the highest standards of fairness will suffice"

"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal."

"(1) A party to an appeal under section 82 ... may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal. (2) The appropriate court may make an order under subsection (1)- (a) only if it thinks that the Tribunal may have made an error of law, and (b) only once in relation to an appeal. (3) ... (4) ... (5) An application under subsection (1) shall be determined by reference only to (a) written submissions of the applicant, and (b) where rules of court permit, other written submissions. (6) A decision of the appropriate court on an application under subsection (1) shall be final. (7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to- (a) a procedural, ancillary or preliminary decision, or (b) …. (8) ... (9) In this section "the appropriate court" means- a) in relation to an appeal decided in England or Wales, the High Court, b) ... c) ... (10) ..."

"(1) Where a party applies for an adjournment of a hearing of an appeal, he must- (a) if practicable, notify all other parties of the application; (b) show good reason why an adjournment is necessary; and (c) produce evidence of any fact or matter relied upon in support of the application. (2) The Tribunal must not adjourn a hearing of an appeal on the application of a party unless satisfied that the appeal cannot otherwise be justly determined."

"24. Mr Tarn's main submission was that since the reconsideration was, as he put it, a single exercise, judicial review of what was an interlocutory decision should not be entertained. The court undoubtedly has jurisdiction to consider claims such as this, but will not in general entertain challenges to interlocutory decisions on the ground that the challenge is premature: cf: R (on the application of Nader) v Secretary of State for the Home Department [1998] Imm AR 33 and R (on the application of Buck) v Rochford JJ (1978) 68 Cr App Rep 114, [1978] Crim LR 492. The proceedings should be allowed to take their course and, if the Tribunal was wrong to find errors of law where none existed, the remedy lies in an appeal to the Court of Appeal. While that approach may sometimes be modified in relation to a decision to adjourn proceedings, it will normally apply to a decision such as is in issue in this case which amounts to a preliminary ruling. If, as I believe, the parties must see the reasons and are able in the circumstances which I have set out in this judgment to argue against them, there is all the more reason to refuse to entertain proceedings for judicial review. I am satisfied that the court should not permit claims such as these. They are premature and can only create delays which are manifestly contrary to the intention of Parliament as appears from r 31(1) of the Procedure Rules. There is no prejudice to the aggrieved party since, if the alleged error persists in the final determination, there is a right of appeal to the Court of Appeal. And it is always possible that he will succeed in the appeal. 25. Accordingly, I am satisfied that it would normally be an abuse of the process of the Court to seek to pursue claims such as this. I have learnt that it is dangerous to say 'never' in this jurisdiction, but I find it difficult to conceive of circumstances in which such a claim would be proper."

"24. In Sivasubramaniam [ [2002] EWCA Civ 1738; [2003] 1 WLR 475 ] this court referred to the pressure on the IAT and the serious consequences of error on their part. The court commented on the need for anxious scrutiny of individual cases and the desirability of a review by a High Court judge as part of that process. Section 101 provides for such a review, but on paper only. Is this adequate? 25. How likely is it that the judge conducting the statutory review will overlook an arguable point of law that may affect the outcome in circumstances where he would not do so on an oral hearing or where his error would be identified by the Court of Appeal? The possibility cannot be discounted, but it is not great, as experience shows. The judges conducting the statutory review are judges of the Administrative Court with great experience in this area of the law. Their task is not to decide the answer to any arguable point of law, but simply whether an arguable point of law exists. If they so decide, their order will be more advantageous to the applicant than a successful application for judicial review, since it will require the IAT without more to hear the appeal. Judges will be aware of the importance of their decision and can be expected to give the most anxious scrutiny to the documents and written submissions placed before them. The comments made by Laws LJ in Sengupta were general; in the particular situation with which we are concerned we do. not consider that oral submissions are likely to add significantly to what can be set out on paper by a lawyer who remembers that precision is more important than verbosity. 26. For these reasons, and subject to the question of discrimination to which we are about to turn, we have concluded, in agreement with Collins J, that the statutory regime, including statutory review of a refusal of permission to appeal, provides adequate and proportionate protection of the asylum seeker's rights. It is accordingly a proper exercise of the Court's discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review. 27. We would add two observations. First, the applicability of the well-established principle that judicial review is a remedy of last resort is tested objectively by the court. Thus our conclusion has had regard to the legislative purpose and effect of s. 101 but not to any wider policy - if there is one - of excluding recourse to the courts. Secondly, our decision concerns only cases, such as the two before us, in which the application for judicial review is coextensive with the available statutory review. Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review."

"importantly, the Court framed its decision as a lawful exercise of the Court's discretion in declining to consider an application for judicial review and did not include decisions which did not attract such remedy as, in the instant case, interlocutory decisions. Further, in the decision by Collins J at first instance, the learned judge had identified situations such as '... evidence of fraud or bias or similar matters' as potentially providing an exception to the general rule."

"1. The Claimant...claims: (i) by a decision dated 28 July 2005 refusing to admit and/or facilitate oral evidence by telephone; (ii) by decisions dated 11 August 2005 and 18 August 2005 refusing to grant an adjournment in order for such evidence to be facilitated without cost or inconvenience to the AIT; and (iii) by a decision dated 17 and 18 August 2005 refusing to grant an adjournment in order for the Claimant...to give evidence having been temporarily incapacitated by illness (hypertensive crisis see doctor's reports atppl-20) the AIT acted unreasonably and unfairly and that proceedings consequentially before it are and were procedurally unfair."

"[The fair-minded and informed observer] would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it."