R, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 520 (Admin)

Case No CO/914/2004-CO/915/2004[2005] EWHC 520 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14th March 2005
Strand
London WC2
B E F O R E:
MR JUSTICE HUGHES
Between
THE QUEEN ON THE APPLICATION OF RClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D O'CALLAGHAN (instructed by CHARLES ANNON & CO) appeared for CLAIMANTSMR P PATEL (instructed by TREASURY SOLICITORS) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE HUGHES: This is an application for judicial review. The claimants are seekers after asylum. Their challenge is to the decision of the Home Secretary on 20th February supplemented on 30th March 2004, by which he refuses to treat as a fresh claim an application which they made after their initial claim had been dismissed by the adjudicator for want of appearance.[2]The claimants are sisters from Uganda, twins it would seem. Their case is that they were born on 9th September 1985, so that that they were 17 at the time of their original claims, early in 2003, although I should say that their age has always been disputed by the defendant and they are now in any event on their own case about nineteen-and-a-half.[3]They arrived in the United Kingdom on 8th January 2003 and claimed asylum on 31st of that month. Their applications were refused by the defendant, by letter dated 5th March 2003.[4]Their case, as advanced in their interviews and statement of evidence forms was this in summary. Their father had been a soldier in the Uganda People's Defence Force (UPDF) or the government Army. He had, however, deserted to a rebel group, known as the Alliance of Democratic Forces (ADF). He had taken the girls' brother with him as a soldier to the ADF. At some time in 2002 the father was killed. In September 2002 the brother came home, it was said, and told the claimants that he was going to abandon the rebel ADF, and claim the benefit of an amnesty then in force. But, it was said, although the brother had surrendered and been allowed home afterwards, almost immediately (and it seems that same day) the house was raided by the UPDF, and then, on top of that, either the same day or very shortly afterwards by the ADF. The UPDF had come, it was said, to recover a uniform and a weapon which the brother had not handed in and although it was said that earlier that day he had been allowed home safely, he was now taken away by the UPDF and never seen again. There had then followed, it was said, a raid by the ADF, who were also searching for the brother. This second group took away, it was suggested, the first claimant, M, and also her mother, though not the second claimant, J, who was not there at the time. M remained in captivity for some time, she said. Her mother was said to have been shot dead in front of her and she herself claimed that she had been repeatedly raped. The camp where she was held was then, on her account, overrun by the UPDF. That, on her account, was little better, because instead of being liberated as an ex- prisoner of the ADF, she was treated by the liberating UPDF as herself a rebel, transferred to their captivity and again raped, several times, by her new captors. Eventually M said she was able to escape with the help of a UPDF officer who had known her father. Disguised as a male soldier, she said she walked to the camp gates and got onto a lorry which was leaving.[5]In the meantime, J had, on her case, narrowly avoided capture by the ADF on a later occasion when they came, still it was said, looking for the brother. J said that she had hidden in a bedroom and that the soldiers, who were in the house for about an hour-and-a-half, never thought to look there. Thus she avoided capture, though they did, she said, both stab and sexually assault her maid.[6]At all events, after M escaped their account was that the two sisters were reunited and so came to England.[7]The Home Secretary refused these applications. Broadly he did that on three grounds. First, he suggested that the accounts were in various ways not credible. Secondly, he said that, on any view, there was no reason to suppose that either sister would now be at risk of persecution, if they were to return, since neither had ever had any political or military activity and they had suffered, if they had suffered at all, only through interest in their male relatives. Thirdly, he suggested that there was an amnesty still in force, and that the Ugandan government had sufficiently signed up to the observance of Human Rights to be relied upon to take proper steps to ensure that abuses did not place, or investigate any that allegedly did.[8]At the time of that refusal the sisters were represented by solicitors. Notices of appeal to the adjudicator were lodged in proper form. The Appeals Office sent out notices of the first or directions hearing for 19th June. Those notices were sent separately to the hostel where the claimants were living and also to their solicitors.[9]A first or directions hearing is customarily very brief. Indeed, if the directions form previously sent out is satisfactorily completed and returned, no appearance at the first directions hearing is necessary. The hearing, however, serves as a practical test of whether the appeal is being pursued or not, amongst no doubt a very large number of cases, some active and some not. The directions form sent out in advance makes it clear that, if it is not returned and no appearance is made, then the appeal is likely to be dismissed without substantive hearing.[10]On 19th June there was no form returned and no appearance by either clients or solicitors. There was, however, a letter specifically written by the solicitors to the Appeal Authority. It was dated the previous day, 18th June. It said that the solicitors were out of touch with the claimants, without instructions, and accordingly, no longer to be regarded as acting for them. In that situation the adjudicator dismissed the appeals without substantive hearing, as she was entitled to do under rule 45(1)(c) and 45(2) of the 2003 Immigration and Asylum Procedure Rules. That decision, made on 19th June, was promulgated a fortnight later, on 3rd July. By that day, the 3rd July and probably on that day, 3rd July, the claimants instructed a second set of solicitors, who put themselves on the record that day. On 11th July, in time, the second solicitors lodged grounds of appeal to the Immigration Appeal Tribunal. That appeal was one to which the then quite new provisions of the 2002 Act applied; thus there could be an appeal only on a point of law.[11]The grounds advanced were these. First, a bare assertion that the appellant maintained a well-founded fear of persecution. Secondly, the recital that the representative was newly substituted. Thirdly, the contention of the present claimants that they had kept in contact with their solicitors but had received neither the letter from the adjudicator's officer or any letter from the solicitors, and, moreover, that they had subsequently been told that the letter written to the Appeal Authority had been a deliberate falsehood written by the solicitors "to cover their back". The nearest that the grounds got to asserting an error of law was the proposition that the adjudicator erred in relying on the letter written by the first solicitors without giving the claimants an opportunity to give their own explanation and that she had also erred in determining the two asylum claims together rather than as separate and independent cases.[12]Faced with those grounds the tribunal, in due course, refused permission to appeal. It reached that decision on 13th September, and sent it out and promulgated it on 29th September. In giving reasons for his decisions the Vice-President, said:
"The grounds put forward do not explain why the applicants failed to attend the hearings and/or failed to give instructions to the former representatives... There appears to be no error of law."
[13]After that, the second solicitors made an application to the Legal Services Commission for legal aid for application for statutory review. That was refused. The grounds suggested by the second solicitors would not have been persuasive. The first was purely formulaic and totally unspecific, simply asserting Wednesbury error. The second repeated the suggestion that the tribunal had erred in law, in failing to give the claimants notice of the point which was being taken against them, namely failure to attend the adjudicator. That could not possibly be sustainable because whatever the claimants knew, they knew perfectly well what it was that was being said. It was for them to demonstrate that there was a good reason for non attendance. That, accordingly, brought to an end the procedural history of the first claim.[14]In the meantime, the first claimant, M, had alleged that she had been burned with a stick from a campfire at the time of one of the acts of rape. She had been referred by the first solicitors, quite early on, to the Medical Foundation for the care of victims of torture. She had attended for examination, twice, on 5th April and 24th June. The second appointment, it should be noticed, came after the ineffective directions hearing before the adjudicator on 19th June. In due course an undated report from Dr Hinshelwood of the Foundation came into existence. It confirmed the presence of a scar, consistent with a burn, on the inner right thigh. Next, it reported that there was evidence that there had been penetration and that M was tense at the time of examination. Her tenseness was described by the doctor as "highly suggestive of forced intrusion". Dr Hinshelwood further gave it as her opinion that the scaring on the thigh suggested that sexual intercourse had been inflicted on M. Lastly, the doctor reported that M had feelings of deep shame and fear of men and of the dark and a sense of worthlessness as if life was not worth living. The doctor added to that this brief phrase: "in other words she has suicidal ideation".[15]The chronology as to the preparation of that medical report is significant. The first thing to observe that it was not available and could not have been available at the time of the directions hearing on 19th June. There was still a further examination due to take place on the 24th. I have been told, without issue being taken -- very properly -- and I accept that what the Medical Foundation provides is not simply a brief physical examination. It is a charity which interests itself in the welfare of its subjects generally. That is the reason why more than one session with the doctor is common, and why reports take rather longer than do reports limited to physical examination.[16]There was, in any event, no reason why the report should be ready for the directions hearing. If the appeal were being pursued, it would not be needed at the directions hearing, rather it would be needed for the final hearing, which could be expected to follow about six or eight weeks later. In this case it would have taken place on 31st July.[17]Subsequent correspondence from the Medication Foundation shows that by 23rd July the report was either ready or virtually ready. It may have needed one or two formal amendments before it was actually signed off. But it was otherwise ready. It follows that clearly it could have been put before any appropriate body, within a few days after 23rd July. Certainly it could have been available by the end of July. That report was never bespoken by the second solicitors. They had, as I have said, by late July, already put into the IAT the grounds of appeal, dated 11th July, to which I have already referred. Those grounds, it should be observed, make no reference to any possibility of medical evidence. What the second solicitors did not do was to obtain the report and submit it to the IAT, post grounds, as additional material sought to be relied upon. It is plain and agreed that they could have done this. The appeal to the Tribunal lay only on a point of law. However, the presence of reliable fresh evidence such as can establish a mistake of existing fact at the time of the hearing in the court below, is capable of founding an appeal on a point of law in restricted circumstances (see E & R v the Secretary of State for the Home Department [2004] QB 1004, at paragraph 66.) The evidence must be uncontentious and objectively verifiable. It must go to correct a mistake of fact made by the court below, which played a material part in the decision and the appellant or his advisers must not have been responsible for the mistake or the absence of the evidence below. It does follow therefore that this medical report could and should have been obtained by the end of July, and could and should have been presented as late material to the IAT. Whether the explanation for its previous absence would have been accepted or not, would have been for the tribunal. There was plenty of time. The tribunal did not consider the application for permission to appeal until 13th September.[18]For the claimants, Mr O'Callaghan took, with becoming diffidence, the point that the medical report still was not in existence in August and early September. It is true that it may well not in the end be printed off until some time in 2004. That, however, I am satisfied cannot avail the claimants. The report was available. It was there to be called for and printed off and it should have been.[19]It is also true that the medical report could have been submitted with the application for statutory review. Thus, it could have gone to the Legal Services Commission on application for funding for that purpose. At that stage, I doubt that it could have been effective. By that time the test in E & R v the Home Secretary clearly could not be satisfied because the report had been available before and, moreover, because its unavailability beforehand was attributed to either the claimants or their advisers. If I am wrong in holding that the report should and could have been obtained in time for the tribunal, I am clear that it could and should have been obtained in time for statutory review, after the final determination of the tribunal on 29th September, even though of course the window for application for statutory review is only 14 days.[20]Sometime after funding for statutory review was refused, plainly correctly on the grounds submitted, the claimants found their way to a third set of solicitors. On 18th February 2004 the new solicitors wrote to the home secretary setting out the history over two or three pages and asking for the letter to be treated as a fresh claim. It may be that in some respects the letter is a little discursive rather than tightly drawn, but it is not a pleading, and it makes clear these things: 1. That the claimants were complaining that they had been let down by two successive sets of solicitors. 2. That the medical report was contended to be fresh evidence, which had not previously been available. 3. That the Secretary of State was asked to reconsider, as fresh claims, both claims to asylum and a Human Rights claim for M, based on a suggested risk that she might be suicidal if returned. The Secretary of State rejected this application by letter of 20th February subsequently supplemented by a further letter of 30th March. The former, written, it may be noted, only two days after the application letter, can, with hindsight, be said to have been capable of clearer expression, rather like the letter making the application for the fresh claim. Hence, no doubt the supplemental letter of 30th March.[21]However, the defendant sufficiently says, in those letters, albeit not in these terms, these things: 1. That he does not accept that the medical report was not available and at the right time earlier. 2. That any failure of the claimants' solicitors is a matter between the claimants and their solicitors, but did not, in this case, constitute grounds for treating the application as a fresh claim. 3. That the asylum claim had in substance been considered in full by the Secretary of State in March 2003, on the first application, albeit without the medical evidence and the medical evidence did not make the claim sufficiently different to justify treating it as a fresh claim. 4. That the medical evidence did not go nearly far enough to support a suggestion of risk of suicide in the event of return. I interpose of that last point to say that Mr O'Callaghan has inevitably, and very properly, told me today, that he could not contend that this is a Razgar case.[22]Paragraph 346 of HC395 sets out the circumstances in which the Secretary of State will treat an application as a fresh claim. Its terms are well-known:
"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advances in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 344 will be satisfied. [I interpose to say that is to say that there is a realistic prospect that the claim for asylum will succeed.] In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which: i) is not significant; or. ii) is not credible; or. iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
In that form, paragraph 346 derives directly from the decision of the Court of Appeal in R v the Secretary of State for the Home Department Ex parte Onibiyo [1996] QB 768. In that case the Court of Appeal made it clear that fresh material to justify treatment as a fresh claim had to satisfy the well-known Ladd v Marshall criteria. In particular, it made clear that material which a claimant could reasonably have been expected to rely upon in the earlier claim fell to be excluded from consideration (see page 384A).[23]That same decision in Onibiyo also establishes that, whilst the Home Secretary's decision under paragraph 346 is, of course, amenable to judicial review, it is reviewable only upon Wednesbury grounds. It is not for this Court to substitute its own opinion as to whether the claim should be treated as a fresh one. I must be careful not to do so.[24]For the claimants, Mr O'Callaghan submits that this decision under paragraph 346 was Wednesbury unreasonable and on two grounds. First, he submits that the Secretary of State was not entitled to say that the medical evidence was available to the claimants at the time when their previous applications were refused or any appeal determined. Secondly, failing that, he says that it was Wednesbury unreasonable for the Secretary of State in this case not to say that overall there were exceptional circumstances justifying, in the interests of justice, a decision that the claim should be treated as a fresh one. The critical factor, says Mr O' Callaghan, was that the claimants had been let down by two successive sets of legal representative in the way that I have sought to set out.[25]As to the first of those submissions, it follows from what I have previously said that the medical report was available to these claimants, through their solicitors, at the time when their previous appeal was determined, not when it was determined by the adjudicator on 19th June, but when it was determined by the Appeal Tribunal on 29th September. It follows that the Secretary of State's decision that it was available was not only not Wednesbury unreasonable but was, on my findings, correct.[26]As to the second submission, I have been very helpfully taken to the authorities on the relevance or otherwise of errors by legal representatives of immigration claimants. I do not propose to rehearse the text of them. Al-Mehdawi v The Secretary of State for the Home Department [1990] 1 AC 876 in the House of Lords establishes that, if a claimant fails to attend hearings and suffers dismissal of the claim in consequence, and the failure to attend was attributable to the error of his legal representatives, he cannot be said to have suffered a breach of natural justice at the hands of the adjudicator or tribunal as the case may be. Accordingly, he cannot seek judicial review.[27]As was forcibly pointed out in the course of argument in that case, if the error of legal representatives were to be a ground or judicial review, it would be open to every disappointed applicant to seek to re-argue his case, complaining that the advocacy in the court below had been insufficiently skilful.[28]In E & R v The Secretary of State for the Home Department (already referred to) establishes in the Court of Appeal that when it comes to an application to correct a mistake of fact by adducing fresh evidence, whether in the course of an appeal which lies on a point of law only, or on an application for judicial review, the evidence must have been unavailable at first instance and any omission to adduce at first instance must not be the responsibility of the appellant or his representatives.[29]I am satisfied that, for the reasons given in E & R, the earlier case of the R v (Haile) V The Immigration Appeal Tribunal [2002] INLR 283, does not establish any contrary principle.[30]In Maqsood v the Special Adjudicator and the Secretary of State [2001] EWHC Admin 1003, Stanley Burnton J held that relief by way of judicial review should not be granted to a claimant who had failed to attend the hearing before the adjudicator through negligence on the part of his solicitors. The judge pointed to the fact that the rules specifically make service of notice of hearing on the solicitor sufficient, though in fact they are generally served also on the appellant, personally, as happened in the instant case. The judge drew from that that it was plain that the possibility of an applicant being hoist with the consequences of his solicitor's actions was specifically provided for. He held that it would be inconsistent with the prescription of procedural order (his words) to grant relief.[31]Those authorities are helpful in demonstrating the general principle that an applicant and his legal representatives are to be considered as a single unit. I am, however, in this case, not concerned with an appeal brought on a point of law, and whilst I am concerned with an application for judicial review, the relevant decision is not a decision made on application for judicial review but made by the Secretary of State under paragraph 346. I am prepared to assume in the claimants' favour that when the Secretary of State is considering an application to make a fresh claim under paragraph 346, he is not precluded from considering the negligence of legal representatives. It may be that if a case were to arise of compelling or even conclusive fresh material, which plainly proves incontrovertibly the merits of an asylum claim, but which material was not put before the immigration decision makers on a previous application through sheer negligence of legal representatives, for which the claimant himself bore no responsibility, the Secretary of State might wish to treat an application based on that fresh compelling or conclusive material as a fresh claim. I am not required to decide whether paragraph 346 prevents him from doing that, as was, at one stage, tentatively suggested by Mr Patel. I make it plain that I am a long way from so holding. This, however, is nowhere near such a case. Assuming, for the moment that the responsibility for what happened was throughout entirely that of successive solicitors, the fresh material, although of course it came from an unimpeachable source, was no more than some limited corroboration for the account of one of the claimants. It did not establish that M had been raped, still less that she had been raped in the circumstances she said, and less than that that she had a well-founded fear of persecution if returned.[32]As Mr O'Callaghan has very properly accepted, the real question in this case, if it were to be treated as a fresh claim and then by way of appeal returned to an adjudicator, would almost certainly be whether there is now a risk of persecution in the event of return. In particular, it would be likely to be whether such a risk would exist in parts of Uganda, other than the claimants' home village where the previous history of her family might be known. On that real question the medical evidence is of very marginal relevance. It could go over only to the reasonableness of expecting M to relocate, in other words, to what is known as internal flight.[33]Whether or not the Secretary of State is entitled to take into account the claimed history of solicitor's negligence, it is, I am satisfied, impossible, in the face of the words of paragraph 346 and of the authorities which I have mentioned, to hold that he acted unreasonably in this case in saying that these claimants must, in effect, accept responsibility for the actions of their legal representatives. To put it another way, it is impossible to say that he acted unreasonably in concluding that there existed no such compelling exceptional circumstances as to justify a departure from the terms of the concluding words of paragraph 346. I am satisfied that that, sufficiently, is what he has said in his two letters of 20th February and 30th March.[34]It follows that, for those reasons, the challenge which is made to the Secretary of State's decision in those two letters must fail.[35]I should I think I add this, although it is not necessary to that decision. That conclusion is more clearly inevitable when, as here, although it may well be that there have been errors by at least the second set of solicitor (and perhaps the first) the indications that the claimants personally were guilty of no contributory error are painfully slight. It is very difficult to see why the first solicitors should have written positively to the Appeal Authority to say that they were without instructions unless they were. After all, all they had to do was to send in the directions form. In a witness statement made some time later, M, the first claimant, asserted two things. First, she said that not only had her personal notice (and, I suppose, her sister's notice) of hearing from the immigration appellate authority gone astray, but so also had a letter from her solicitors. Secondly, and more fundamentally, she asserted that on the day of the abortive directions hearing, she had received a telephone call from the first solicitors, asking why she had not been to court. It is perhaps difficult to see how or why the solicitors could have made such a telephone call having the day before written to say that they were without instructions. She also asserted that the representative of the solicitors had suggested that there had been some confusion whether the case was about the sisters or another set of twins. At all events those are no more than supporting considerations.[36]For the reasons previously given this application, persuasively argued as it has been, is one which must be dismissed.[37]MR O'CALLAGHAN: I rise to make two observations. One or two matter towards the end. Towards the very end it is difficult to ascertain why the first solicitors wrote to -- you mentioned the tribunal, it would be Immigration Appeal Authority.

MR JUSTICE HUGHES: You are quite right.

[39]MR O'CALLAGHAN: My Lord, also, in the light of although you have refused, in the light of the contents of the cases, I was going to request that the matter have some degree of anonymity, whether it be G for Marie or R be appropriate in this matter. I do not know.

MR JUSTICE HUGHES: Is there any objection to that, Mr Patel?

[41]MR PATEL: I cannot my Lord, no.[42]MR JUSTICE HUGHES: I see no reason why it should not. I see it might be wise, I say no more than "might be", Mr O'Callaghan. Any reporting of this case is to be in the name of Maria and Judith R.[43]MR O'CALLAGHAN: My Lord I ask for legal aid.

MR JUSTICE HUGHES: Detailed assessment of the claimants' costs under the Legal Aid Act.

[45]MR PATEL: I have two observations. I think slight corrections. In the very first sentence of your judgment you talk about it being 20th February and 30th March of this year, it was in fact 2004.

MR JUSTICE HUGHES: Thank you.

[47]MR PATEL: Secondly, when you talked about funding was refused for statutory review, it claims the solicitors now acting wrote a letter, it was in fact a different set of solicitors, a set of solicitors called SJ.[48]MR JUSTICE HUGHES: That had escaped me. The fresh claim letter.[49]MR PATEL: SJ Solicitors.[50]MR O'CALLAGHAN: We are on to our fourth solicitors.[51]MR JUSTICE HUGHES: Sometimes these things happen, Mr O'Callaghan, but let me make a note, in case, at any stage, I need to correct a transcript.

Cited in 3 later judgments