IS (Concession made by reprepresentative) Sierra Leone [2005] UKIAT 00009 (18 January 2005) [2005] UKIAT 00009

UKIAT

IS (Concession made by reprepresentative) Sierra Leone [2005] UKIAT 00009 (18 January 2005)

[2005] UKIAT 00009 · 2005-01-18

[1]IS (Concession made by reprepresentative) Sierra Leone

[2005] UKIAT 00009

IMMIGRATION APPEAL TRIBUNAL Date of hearing: 17 November 2004 Date Determination notified: 18 January 2005 Before Richard Chalkley, Vice President Mr R Baines JP Ms E Singer Between IS APPELLANT and Secretary of State for the Home Department RESPONDENT Mr E Fripp, of Counsel, instructed by Remar & Co., appeared on behalf of the appellant; Ms L Saunders, a Senior, Home Office Presenting Officer, appeared on behalf of the respondent DETERMINATION AND REASONS The appellant is a citizen of Sierra Leone who was born on 8 August 1958. She arrived in the United Kingdom on 15 August 1988 and was given six months leave to enter as a visitor. She was given leave to enter until 31 October 1991 and again, in January 1993, for twelve months on the basis of marriage. On 10 January 1994, she applied for leave to remain on the basis of her marriage to a British citizen, but this was refused on 2 April 1997.

[2]The appellant appeals, with leave of the Tribunal, against the decision of an Adjudicator, Mr B. Andonian, who in a determination promulgated on 27 February 2004, following a hearing at Taylor House on 13 February 2004, dismissed her appeal against the decision of the respondent, taken on 6 November 2002, to make a deportation order by virtue of Section 5(3), Immigration Act, 1971.

[3]At the hearing before the Adjudicator the appellant was represented by a "Mr Mayne". The Adjudicator has described him as ' Counsel appearing on behalf of the appellant '. However, for reasons which become clear, it is not known whether Mr Mayne was in fact counsel. However, the Adjudicator clearly believed that Mr Mayne was counsel. As Mr. Andonian records in paragraph 3 of his determination, Mr Mayne conceded the appeal on behalf of the appellant and then asked the Adjudicator ' to deal with the matter on the paper '. He reminded the Adjudicator that the appellant had been in this country for over fourteen years but made no further submissions on behalf of the appellant. Mr. Andonian did not treat counsel's comments as meaning that the appellant was withdrawing her appeal. He went on to consider the appeal and dismissed it.

[4]The appellant subsequently changed representatives and new representatives and submitted the following grounds:

'I am appealing against the decision of the Adjudicator to dismiss my appeal on the following grounds: The Adjudicator erred in law. The Adjudicator continued with the appeal, despite the obvious lack of proper representation as is manifest from the remarks made by the Adjudicator in respect of the person purporting to be counsel instructed by Afrifa. In fact the representative was not instructed by Afrifa but he is a legal advisor registered by the OISC. It is submitted that the Adjudicator should have adjourned the hearing as the appellant had no effective representation, submitted to the Adjudicator on her behalf as is shown in paragraph 7 where he stated that: "It is a great pity but I received no representations whatsoever on this appellant's behalf by her counsel", and in paragraph 8 where he further stated that "I know very little about this appellant's personal circumstances and her connections with the UK and it is a great pity that the appellant's counsel made no representations before me". It is further submitted that due to the fact that the appellant was not properly represented, certain factors supporting the length of her connections in the UK, were not considered, such as her husband who is a resident in the UK. Paragraph 364 states that all relevant factors such as those mentioned by the Adjudicator should be taken into consideration before a decision to deport is reached. It is however, submitted that these factors were not taken fully into account as the Adjudicator had very little or no knowledge of the applicant's circumstances as shown in paragraph 12 where the Adjudicator stated that she has '

No particular connections with UK except her residency of some fourteen years'. It is submitted that there was no evidence to support the contention of the Adjudicator that the appellant is of bad character. She has no criminal record and it is regrettable, that the appellant's representative failed to point this out to the Adjudicator. It is submitted that the Adjudicator failed to follow the guidelines in MNM . In the refusal letter, the appellant's credibility was raised, it is submitted that the Adjudicator failed to direct the appellant's representative to deal with those questions raised but instead formed the opinion that the appellant was of bad character. It is finally submitted that if given leave to appeal, there is a good prospect of success, thus the appeal should be allowed.'

[5]In granting leave, the Vice President said:

'It is with deep regret that I feel constrained to grant permission to appeal to the Tribunal. The claimant was plainly represented by someone who was hopelessly inadequate to the task of representing her. Virtually no representations were made to the Adjudicator that were of any assistance to him and he complained of that fact himself. In the circumstances it is possible that there are certain matters, which may very well be uncontroversial, that should have been placed before the Adjudicator but were not or should have been elicited from the complainant but did not. I am not criticising him for failing to do this because it is always a very difficult and delicate task to deal with a case where a person, particularly in a position of the claimant here, is manifestly being inadequately represented. I do not consider that remittal is necessary, it may very well be that the Tribunal can deal with the relevant facts and issues of law that may arise in this case. permission is granted on all grounds.'

[6]Mr Fripp handed to us a skeleton argument. We have carefully read it. It notes that leave was granted on the single point that the Adjudicator had himself criticised the apparent level of professional competence of the individual who purported to represent the appellant before him and the appellant had gone on to complain with foundation to the Tribunal, that she had, in essence, been denied justice, because of poor representation. The skeleton argument points out that the appellant was represented by a 'Mr Mayne of counsel', but no-one of that name appears in Havers Directory for 2003-2004. The skeleton argument also asserts that no 'Mr Mayne' appears to the General Council of the Bar to have been practising during 2002. However we have received no evidence on that point. The skeleton argument then suggests that the appeal should be allowed under Article 8, since the appellant has been resident in the United Kingdom for some sixteen years and has developed a private life.

[7]We pointed out to Mr Fripp that we have some difficulty in understanding where it was alleged that the Adjudicator had made a material error of law. He referred us to both CA

[2004] EWCA Civ 1165

and to E; R

[2004] EWCA Civ 69

and told us that he did not have copies for us. He suggested that the appellant was not properly represented before the Adjudicator as such and was therefore denied a fair hearing. Mr. Andonian should not have adjourned the hearing, but, suggested Mr. Fripp, he should have carried out enquiries of the representative, given his misgivings. The unfairness comes about from the failure of the appellant to be accorded the right to put her case properly. Mr. Andonian, he submitted, ought to have had regard to the obvious difficulties. Mr Fripp relied on his skeleton argument. He did not refer us to any particular parts of the two cases he quoted.

[8]Responding on behalf of the Secretary of State, Miss Saunders suggested that the grounds disclosed no error of law on the part of the Adjudicator. the appellant instructed her representative at the hearing and the Adjudicator was fully entitled to proceed as he did to consider the claim fully and dismiss it. She invited us to dismiss the appeal.

[9]Mr Fripp advised us that he had no further submissions to make and he asked us for a copy of the form completed by 'Mr Mayne' under Section 84 of the Immigration and Asylum Act, 1999. We advised Mr Fripp that we did not believe that he was entitled to that document. It is a document submitted by advocates for the purposes of the Immigration Appellate Authority. It is not a public document. In any event, we advised him that unfortunately the form ('the Section 84 form') did not appear on the file. We reserved our determination.

[10]The whole thrust of the application for leave to appeal asserts that the appellant was not properly represented before the Adjudicator. Certainly, as is, sadly, often the case, the Adjudicator was not assisted by the advocate who appeared on behalf of the appellant, and he makes that clear. In paragraph 3 of the determination the Adjudicator said :

'Before me counsel for the appellant conceded the appeal on behalf of the appellant. The appellant was present in court with her counsel. I was asked to deal with the matters on the papers and was reminded that the appellant had been in this country for over fourteen years. No further submissions were made on the appellant's behalf.'

[11]He went on to say:

'4. Insofar as the decision to make a deportation order, by virtue of Section 4(5) of the Immigration Act 1971 is concerned, I have considered all the papers before me and I consider that counsel for the appellant had not properly understood the Immigration Rules because on the one hand he said that he conceded the appeal against deportation, and yet on the other he had asked for the matter to be dealt with on the papers and also reminded me that the appellant had been here for fourteen years and further asked me to deal with the matter on a compassionate basis and allow her leave to remain. 5. Insofar as deportation is concerned, paragraph 364 of HC 395 of the Immigration Rules states that in considering whether deportation is the right course of action on the merits, the public interest would be balanced against any compassionate circumstances of the case. On the basis therefore that the appellant's counsel had confused the issue and did not know before conceding the appeal on his client's behalf objective evidence would have to take into account other interests and balance that against the compassionate circumstances, which if he had known about he would not have conceded the appeal. It is incumbent on me to consider paragraph 364 and also all other considerations in this case to conclude whether it would be right in those circumstances for the Secretary of State to deport this appellant.'

[12]He went on to comment that he felt it was a great pity that he had received no representations on the appellant's behalf from her counsel.

[13]It is clear from the determination that Mr. Andonian believed that the appellant was represented by counsel. In his written submissions to us, Mr Fripp has sought to give evidence that there is no 'Mr Mayne of counsel', according to telephone enquiries made to the General Council of the Bar and no 'Mr Mayne' appears to the General Council of the Bar to have held a practising certificate during 2002. With great respect, it may well be that the usher who recorded the appellant's advocate's name on the record of proceedings may well have misspelled it. Indeed, the usher may well have taken it upon himself to describe 'Mr Mayne' as counsel. He may simply have assumed that Mr Mayne (if that indeed was how he spelled his name) was counsel. It does appear from the file, that the Section 84 form has become lost. It is not in the Tribunal's file, although we have no doubt that Mr Andonian would have seen a Section 84 form for, without having seen it, 'Mr Mayne' would not have been permitted to address the Adjudicator.

[14]Unfortunately the standard of preparation and advocacy of those appearing on behalf of the appellants before Adjudicators (and occasionally the Tribunal) is not uniformly high. It is, however, an appellant's right to have the advocate of their choice appearing for them.

[15]It has not been suggested on behalf of the appellant that 'Mr Mayne' acted in any way contrary to his instructions. The appellant was present at the hearing before the Adjudicator and if her advocate did act contrary to her instructions, we would have expected to have been told.

[16]Mr. Andonian quite properly decided not to treat the appeal as having been withdrawn, but instead decided it on the basis of the evidence that he had before him. No criticism has been made in the grounds of application for permission to appeal of the way in which he dealt with the evidence before him.

[17]We take the view that this experienced Adjudicator was perfectly entitled to do as he did. He quite rightly considered the matter on the basis of the evidence before him. He was entitled to assume that the advocate appearing before him was fully instructed by the appellant and that he was acting in accordance with instructions he had received from the appellant.

[18]The fact that an appellant is poorly represented, or that their case has been poorly prepared cannot, in our view, be a reason to require an Adjudicator to adjourn the hearing, or as Mr Fripp suggested, to make enquiries as to whether or not the advocate was properly acting in accordance with instructions. Sadly a small, but significant, proportion of appellants appearing before Adjudicators are poorly represented and, on occasions, by members of both sides of the legal profession.

[19]We do not accept the suggestion that this Adjudicator should have done anything other than he did. The appellant was perfectly entitled to instruct whomsoever she wanted on her behalf. The fact that she had not instructed a practice of solicitors was not a matter of concern for the Adjudicator.

[20]As the Court of Appeal have clarified in CA , unless a material error of law can be detected in an Adjudicator's determination, the Tribunal cannot interfere with it. That is the case here. This appeal therefore falls to be dismissed. 21. Appeal dismissed . Richard Chalkley Vice President