MO (Libya, jurisdiction) Libya [2005] UKIAT 00017 (24 January 2005) [2005] UKIAT 00017
[1]MO (Libya – jurisdiction) Libya [2005] UKIAT 00017 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 11 October 2004 Date Determination notified: 24 January 2005 Before Mr D K Allen (Vice President) Mrs M L Roe Mr M S W Hoyle Between Secretary of State for the Home Department APPELLANT and MO RESPONDENT DETERMINATION AND REASONS The Secretary of State appeals to the Tribunal with permission against the determination of an Adjudicator, Mr P F Hague, in which he allowed the appeal of the respondent (hereafter referred to as the claimant) against the Secretary of State's decision of 15 January 2002 refusing asylum.[2]The hearing before us took place on 11 October 2004. Mr Hollings-Tennant appeared on behalf of the Secretary of State and Mr A Rosemarine for Noden & Co Solicitors appeared on behalf of the claimant.[3]At the outset, Mr Rosemarine argued four preliminary points concerning jurisdiction, and a further point concerning an application to adduce evidence.[4]The first point was that permission to appeal could not be granted in respect of an application which did not contain a declaration of truth. He pointed to the fact that the application was signed by someone on behalf of a Victoria Jones, who was believed to be a Presenting Officer. He contended that a Declaration of Truth was required and it was common to both sides to believe that it was required as there was to be found above the signature and quotation marks the statement "I believe the facts stated in this application are true". The Home Office were seeking to say that another person could purport to sign this declaration on behalf of someone else who drew up the grounds and that would totally deny the whole purpose of it being a statement of truth.[5]Mr Rosemarine considered that it did not have to be a person who had been at the hearing but while the claim was that the Adjudicator had failed to consider an issue, the person who had written the application was not present and the force of the application was diminished to a degree. The person who formulated the application had not stated it to be true and did not say he had her authority and there was no certificate either. The person signing it had to believe that what they signed was true and there was no evidence that the Presenting Officer had indicated to him that he could sign. The declaration was similar to an oath.[6]Mr Hollings-Tennant regarded the point as a novel one. He confirmed that Miss Jones was a Presenting Officer. Rule 17 of the Procedure Rules did not state that it was not possible to sign on behalf of someone else.[7]Mr Rosemarine's second point was that the Vice President who had granted permission had expressly done so in respect of a determination of Mr D M Brunnen. There was no indication that Mr Hague's determination had been considered. There was nothing in the Grant of Permission to indicate that Mr Hague's determination had been considered at all. It was accepted that a copy of that determination was attached to the application for permission, but that could be purely administrative. The lack of reasons also meant that there was nothing to link the Grant of Permission to Mr Hague's determination and nothing to show that the Vice President had considered Mr Hague's determination and indeed there was reason to suggest that he had not.[8]In relation to this point Mr Hollings-Tennant stated that he had not seen this as an issue but pointed out that the correct respondent's name had been employed and also the correct nationality was identified. He referred us to Rule 18. The determination of Mr Hague was attached to the challenge to that determination.[9]Mr Rosemarine's third point was that it was necessary for there to be reasons when permission for appeal was granted and all that was stated in the Grant of Permission was that the Grounds of Appeal were arguable and the Vice President gave permission to appeal. The reasons were necessary in order to enable the disappointed party to know why permission had been granted and whether or not there was an error of law. The grant went contrary to Rule 18 (vii) of the Procedure Rules which required the determination of a Grant of Permission to indicate the grounds upon which permission to appeal was granted.[10]The next point raised by Mr Rosemarine was that on the surface the only ground challenged by the Secretary of State was patently false. The grounds were entirely based on the point beginning at paragraph 4 of the application concerning the contention that the Adjudicator had failed to consider background evidence from the Libya bulletin of 25 March 2003. He also made the point that these matters were not meant to be submissions but rather matters which were believed to be true. In fact the point argued was false, and the Tribunal was referred to paragraph 18 of the Adjudicator's determination where he clearly referred to the matters set out at paragraph 4 on the grounds. The Procedure Rules required that the grounds showed that the appeal would succeed and ground 4 was patently false and so there was no way in which the appeal could succeed and hence the Vice President did not have jurisdiction to grant permission.[11]Mr Hollings-Tennant argued that the author of the grounds was looking at the Adjudicator's failure to consider the objective evidence concerning failed asylum seekers and he had not fully considered the point as he had found the claimant not to be credible and this was the point in the grounds at paragraph 5. There was a lack of clear findings of fact with regard to risk to asylum seekers per se and why the claimant did not face a real risk.[12]Mr Rosemarine contended that the Home Office was now raising a new issue about risk to failed asylum seekers and that was only mentioned at paragraph 5 of the grounds in connection with the piece of evidence which it was said the Adjudicator had failed to consider. The Home Office was seeking to suggest that credibility had been refuted but in fact some of the claim had been accepted with regard to wholesale persecution of members of the claimant's family, and the brother's evidence had been accepted. There was no suggestion that the findings of fact were unsustainable.[13]The final point raised by Mr Rosemarine concerned an application for a further witness who was here today. Mr Hollings-Tennant had said he had not been told of this and he had given Mr Hollings-Tennant a witness statement. As to why the evidence was so late this was because the Solicitor in charge of the case had left and someone else had taken over the file. This was no fault of the claimant and there had been an oversight as to why the witness was not called before the original hearing and the matter had not been raised at all as it was thought that the evidence at the original hearing was enough and funding was now enormously restricted so it had not been possible to call all the witnesses that one might wish.[14]In this regard, Mr Hollings-Tennant made the point that the witness statement had not been served in accordance with directions. They were different dates on different versions of the statement. In any event, it was on the basis that the claimant was credible which went contrary to the Adjudicator's views, and there was no respondent's notice.[15]We adjourned to give consideration to the various points raised and then informed the parties of our conclusions on them. It will be convenient if we take them in the same order as they were raised by Mr Rosemarine.[16]The first point concerned the fact that the grounds of appeal were signed on behalf of Victoria Jones who is a Presenting Officer who it may be taken was the person who drafted the grounds of appeal. Paragraph 17 of the Procedure Rules deals with issues concerning the form and contents of an application notice for the Tribunal. It is convenient if we set out the terms of Rule 17 in full. 17(1) An application notice for permission to appeal must be in the appropriate prescribed form and must:- a) State the appellant's name and address; and, b) State whether the appellant has authorised a representative to act for him in the appeal and, if so, give the representative's name and address.(2) The application notice must state all the grounds of appeal and give reasons in support of those grounds.(3) The grounds of appeal must:- c) identify the alleged errors of law in the Adjudicator's determination; and, d) explain why such errors made a material difference to the decision.(4) The application notice must be signed by the respondant or his representative, and dated.(5) If an application notice is signed by the appellant's representative, the representative must certify in the application notice that he has completed the application notice in accordance with the appellant's instructions.(6) There must be attached to the application notice a clear and complete copy of the Adjudicator's determination together with a copy of any other material relied on.[17]Rule 18 of the Procedure Rules states as follows:- 18(1) An application for permission to appeal to the Tribunal must be decided by a legally qualified member of the Tribunal without a hearing.(2) The Tribunal is not required to consider any grounds of appeal other than those included in the application.(3) The Tribunal may grant or refuse permission to appeal.(4) The Tribunal may grant permission to appeal only if it is satisfied that:- a) The appeal would have a real prospect of success; or, b) There is some other compelling reason why the appeal should be heard.(5) Where the Tribunal grants permission to appeal, it may limit the permission to one or more of the grounds of appeal specified in the application.(6) The Tribunal's determination must include its reasons, which may be in summary form.(7) Where the Tribunal grants permission to appeal:- a) Its determination must indicate the grounds upon which permission to appeal is granted; and, b) The appellate authority must serve on the respondent, together with the determination, a copy of the application notice and the documents which were attached to it.[18]It can be seen from Rule 17 and in particular from Rule 17(iv)[19]One can imagine the number of possibilities in which this kind of requirement if it were one, would prove entirely unworkable. For example, Miss Jones might have been taken ill and unable to sign the form at the time when it had to be submitted, and bearing in mind the very tight time limits that exist in this jurisdiction, it would be absurd if someone else was not able to sign on her behalf. Another possibility might, in the case of a claimant, who was appealing to the Tribunal, be that Counsel who drafted the grounds of appeal but was for whatever practical reason, unable to sign them. It would be absurd if the form could not then be signed on Counsel's behalf by a member of the firm of Solicitors instructing him or her. We can see no merit to this challenge to the form in which permission was sought in this case and do not consider that it any sense invalidates the Tribunal's jurisdiction to hear the appeal.[20]The second point concerns the error by the Vice President in granting permission in naming the wrong Adjudicator. As Mr Hollings-Tennant pointed out, the Vice President named the correct claimant and also his nationality and clearly cited the proper appeal number at the top right hand part of the Grant of Permission form. It is also the case, as Mr Rosemarine acknowledged, that the copy of the Adjudicator's determination was attached to the grounds of appeal in relation to which permission was granted. It seems to us entirely clear in the circumstances that the error of name of the Adjudicator was the only matter that could give cause for any doubt, and all the other matters to which we have referred above make it sufficiently clear that the Vice President was considering the determination of Mr Hague. We again see no merit in this point.[21]Mr Rosemarine in his third point raises the brief terms in which[22]With regard to this point we make the following comments.[23]The next point concerns the claim that the matter in relation[24]We were therefore not with Mr Rosemarine on any of the[25]As regards the request for an adjournment, it is clearly the[26]Thereafter, Mr Hollings-Tennant produced two determinations[27]When we re-convened, Mr Rosemarine contended that the "He may have been questioned in the past but was not detained; he has not been tortured."[28]It occurred to us, however, that there might be a difficulty[29]Mr Rosemarine sought to persuade us that we could dismiss[30]Despite Mr Rosemarine's submissions on this matter, we do not D K ALLEN VICE PRESIDENT