TARIQ MAHMOOD FOR JUDICIAL REVIEW v. THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 52 |
| P1339/02 | OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the petition of TARIQ MAHMOOD for Judicial Review Petitioner against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ________________ |
Petitioner: Bovey QC, P J D Simpson; Drummond Miller, WS
Respondent: Maguire QC, Lindsay; H Macdiarmid
15 April 2005
INTRODUCTION
[1]The petitioner is a national of Pakistan. He was born on 9 March 1972. He entered the United Kingdom in May 1998 at Manchester Airport under a visitor's visa valid for six months. He subsequently claimed asylum under the false name of Mohammed Ali. When his deceit was discovered, at the stage of an appeal from the determination of an adjudicator to the Immigration Appeal Tribunal ("IAT") in January 2002, he withdrew his appeal. He then made the present application for asylum by letter dated 4 February 2002. He was interviewed by an immigration officer on 5 February 2002 and the Immigration Advisory Service ("IAS"), then acting on his behalf, made written submissions in a letter dated 6 February 2002. That application was refused by the Secretary of State for the Home Department, who is the respondent in the present proceedings, by letter dated 8 February 2002. The petitioner appealed against that refusal to an adjudicator, who determined the appeal on the papers without an oral hearing and by his determination dated 25 April 2002 refused the appeal. On 13 May 2002 the petitioner lodged grounds of appeal, which had been drafted by counsel, with the IAT and sought from it leave to appeal. On 21 May 2002 the IAT refused leave to appeal and this decision was notified to the petitioner on 14 June 2002.
[2]The petitioner thereafter raised the present petition, in which a first order was granted on 1 November 2002. A first hearing was set down for 13 and 14 March 2003 but was discharged on 11 March 2003 on the ground that the petitioner's application for full legal aid had not been determined. A new first hearing was subsequently assigned for 12 and 13 June 2003. On 3 June 2003 the cause was sisted pending the decision of the Inner House in the petition of Salemah Mfuwu for Judicial Review. A fresh first hearing was thereafter set down for 25 and 26 November 2004. The petition called before me for a first hearing on 25 November 2004, when I recalled the sist and, on the motion of Mr Simpson, counsel for the petitioner, who had just been instructed following the withdrawal the previous day of junior counsel previously instructed on behalf of the petitioner, continued the first hearing until the following day, 26 November 2004. Submissions in the first hearing began on 26 November 2004 but it became apparent in the course of these submissions that disputed issues of fact arose which could be properly resolved only at a second hearing. I therefore allowed a second hearing, which was fixed for 10 and 11 February 2005. On 10 February 2005 the second hearing could not proceed due to the illness of an essential witness for the petitioner, and a fresh second hearing was fixed for 28 February, and 1, 2 and 3 March 2005. In the event the second hearing, at which the petitioner was represented by Mr Bovey QC and Mr Simpson, and the respondent by Miss Maguire QC and Mr Lindsay, took place over six days, from 28 February to 4 March and on 18 March 2005.
THE HISTORY OF THE APPLICATION
(i)The interview of 5 February 2002
[3]In his interview of 5 February 2002 the petitioner claimed that he left Pakistan because he feared persecution based on his ethnic origin, religion and political opinions. He stated that he entered the United Kingdom at Manchester Airport in May 1998 on a six months visa. He admitted that he had previously applied for asylum under the false name of Mohammed Ali before making the present application. He claimed that he was the subject of persecution in Pakistan as a result of his membership since May 1994 of the Sipah-i-Sahaba-i-Pakistan (SSP). This is a militant organisation which champions the cause of Sunni Muslims, who make up 80% of the population of Pakistan. It was registered as a political party in 1993. The petitioner said that he helped organise a demonstration in June 1997 and that when everyone gathered the police opened fire in the air and then released gas. The police filed a case against the party and because of the case he went into hiding. At one point in his interview (answer 9) he said that he had to attend court, was sentenced to three months imprisonment and was released. Later in the interview (answer 31) he said he "went inside for six months". When asked to explain the discrepancy in his statements about the length of his sentence, he failed to do so (answer 32). He claimed to have been arrested a total of 25 to 26 times. The question of what would be likely to happen to him if he returned to Pakistan was dealt with in questions and answers 42, 43 and 44 as follows:
"42 Q. What do you think will happen to you if you return to Pakistan?
A. They will kill me and they will re-open the old cases against me, first they will arrest me and beat me up because now it is a military government.
43 Q. Why will they re-open old cases if you served your time?
A.But they classify me as an absconder because some cases are ongoing and adjournments are given.
44Q.Why would you be classed as an absconder?
A.Because I have not been attending the cases, after that I came over here. If you don't appear on one or two court appearances then they classify you as an absconder like they have classified Benazir Bhutto."
(ii)The letter of 6 February 2002
[4]This letter did not specify the period of imprisonment to which the petitioner was sentenced in 1997 following upon his involvement in the organisation of the demonstration. Paragraph 7 on page 2 of the letter is in the following terms:
"After his release in November 1997 Mr Mahmood remained in Pakistan to see if he could be safe in the country. He was in hiding from November 1997 to May 1998 and stayed in the houses of friends in various places including Gujranwala, Lahore, Sialkot and Karachi. When Mr Mahmood realised he was not safe in Pakistan, he decided to leave the country on the advice of his party and departed for the UK."
[5]Paragraph 9 on page 3 is in the following terms:
"Mr Mahmood fears further persecution if he is returned to Pakistan. He is aware that since leaving Pakistan the military government has imposed further restrictions upon his party, and that his involvement with the SSP could result in his detention and physical abuse. Mr Mahmood also states that there are some outstanding cases against him, and, as he has not attended the hearings, he will be classed as having absconded and could face further detention."
(iii)The Secretary of State's letter of 8 February 2002
[6]In refusing the application for asylum, the respondent stated that if the petitioner's fear of persecution by the Pakistan authorities was genuine, he would have left Pakistan at the earliest opportunity and not have remained there for a further six months after his release: such a delay was particularly relevant because the petitioner was aware of the deaths of two high level members of the SSP and therefore considered the risk against himself to be high. Further, the respondent noted from the answer given by the petitioner to question 43 at his interview that the petitioner understood there to be outstanding cases against him in Pakistan and the respondent was of the opinion that the petitioner would not have remained in Pakistan if there had been outstanding charges against him. As the petitioner did remain, the respondent was of the opinion that the petitioner's claims to fear arrest were false and that the outstanding cases had been fabricated in order to embellish the asylum application. The respondent also concluded that the petitioner had, by previously making an application for asylum in a false name, intentionally deceived the United Kingdom authorities so that he personally and his claim lacked credibility. These factors suggested that he had applied for asylum solely to extend his stay in the United Kingdom.
(iv)The adjudicator's determination of 25 April 2002
[7]The appeal called before the adjudicator (Mr F Pieri) on 10 April 2002 for a pre-hearing review held under Rule 30(4)(c) (ii) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000 No 2333), to which I shall refer hereafter as "the procedure rules". The adjudicator proceeded to determine the appeal on the papers without a hearing under procedure rule 43(1)(e). He set out his reasons for doing so in paragraph 2 of his determination, which is in the following terms:
"When the case called at the pre-hearing review the appellant was not present and was not represented. Mr Rhodes of the IAS indicated that although he had at one stage been acting he no longer did. He stated that he believed that Mr Plancey might act for the appellant. Be that as it may, due notice of the time and place of the hearing had been sent to the appellant. This included directions. These directions had not been complied with. In particular the reply form in which an appellant states whether he wishes a hearing of his appeal had not been returned. If the appellant had instructed Mr Plancey, it was of course of the appellant to keep in touch with Mr Plancey and to advise him of any notices he received. Ms Salmond, appearing at the pre-hearing review for the respondent, indicated that the respondent had no strong desire for a hearing of the appeal. In the circumstances, as there had been no reply to directions, no appearance by or on behalf of the appellant, and more to the point as neither party had requested a hearing of the appeal, I considered it appropriate to determine the appeal on the papers without a hearing in terms of procedural rule 43(1)(e)."
It should be explained that Mr Plancey, to whom the adjudicator referred, was at the material time a registered immigration consultant practising in Glasgow under the name of Plancey & Company. On the merits of the appeal the adjudicator essentially agreed with what the respondent had said in his letter of refusal dated 8 February 2002. He concluded that no credence could be attached to the appellant's account of the events which he said led to his leaving Pakistan. At paragraphs 12 and 13 of his determination he stated as follows:
"12.I would have expected the appellant, were he telling the truth, to be fairly consistent when describing the length of his last period of detention in Pakistan. This last period of detention occurred just before he went into hiding. He has not been. At question 9 he was asked what was the most recent event that made him decide to leave Pakistan. He describes the demonstration. He states that following the violence he was charged and sentenced to three months imprisonment at court. He says that he was released after serving that three months sentence. Contrast this with his reply at question 31. There he says that he was sentenced to six months imprisonment by the judge. He was asked to explain this discrepancy at question 32. He appears to me to avoid the question in his reply. He instead speaks of general arrests around the Islamic month of Muharram. In any event his reply to my mind fails to provide an adequate explanation for this discrepancy.
13.The appellant's position at interview is that he was released following his last period of detention in November 1997 and that he went into hiding. He says he left Pakistan in May 1998. At questions 42 and 43 he states that if he returns to Pakistan old on-going cases which were against him would be re-opened. He gives the impression of there having been a number of ongoing cases against him. If there were a number of ongoing cases against him it seems to me that he was very lucky to succeed in evading the authorities for a period of six months before leaving Pakistan in May. Not only that, I would not expect a person who is in hiding and has a number of ongoing cases against him to obtain a visitor's visa to come to the United Kingdom. In leaving Pakistan with a valid visitor's visa and therefore, it is safe to assume, valid travel documents in his own identity when the authorities were looking for him, such a person would be taking a risk of being identified at his point of departure which a man in his position would be unlikely to take."
(v)The grounds of appeal
[8]The grounds of appeal lodged with the IAT on behalf of the petitioner consisted of challenges to the adjudicator's reasoning in paragraphs 12 and 13 of his determination. There was no ground of appeal based upon an alleged error by the adjudicator in determining the appeal on the papers without an oral hearing under procedure rule 43(1)(e).
(vi)The determination of the IAT dated 21 May 2002
[9]The grounds of appeal were considered by Mr H J E Latter, Vice President of the IAT. He concluded that the grounds of appeal did not satisfy him that an appeal had any real prospect of success and accordingly refused leave to appeal. Although no point was taken in the grounds of appeal about the adjudicator having proceeded to determine the appeal to him on the papers without a hearing, Mr Latter stated as follows at paragraph 3 of his determination:
"At the first hearing the adjudicator decided that it was appropriate to determine the appeal on the papers without a hearing, in accordance with the provisions of rule 43(1)(e) of the Procedure Rules 2000. This was a course properly open to the adjudicator in the light of the applicant's failure to file a reply and the fact that his previous representatives were no longer acting for him, and no request had been made for an oral hearing."
(vii)The grounds of challenge in the present petition
[10]The petitioner seeks reduction of the determinations of both the adjudicator and the IAT. The grounds of challenge may be summarised as follows. First, the decision of the adjudicator to determine the appeal without a hearing under procedure rule 43(1)(e) was made under error fact in that the reply form referred to by the adjudicator in para 2 of his determination had in fact been returned by Mr Plancey. Secondly, the decision of the adjudicator to determine the appeal without a hearing under procedure rule 43(1)(e) was both unreasonable and unlawful. Thirdly, if the petitioner has failed to exhaust the statutory remedies open to him following upon the decision of the adjudicator to decide the appeal without a hearing, he is nevertheless entitled to invoke the supervisory jurisdiction of the Court of Session by way of the present petition, either because he is entitled to relief under rule of court 2.1 or because exceptional circumstances exist which justify the court in exercising the supervisory jurisdiction. Fourthly, the reasoning of the adjudicator when considering the merits of the application at paras 12 and 13 of his determination was so flawed as to be unreasonable.
THE PROCEDURE RULES
[11]Before considering the grounds of challenge in the petition, it is necessary to set out the terms of some of the procedure rules which are relevant to the present application. These rules were applicable at the material time but have since been superseded by a fresh set of rules. The relevant rules are as follows:
"PART II
APPEALS TO ADJUDICATORS
Notification of hearing
13.Notice of the date, time and place fixed for the hearing and any directions given under rule 30 shall be served on the appellant or his representative (if he has one) and any other party.
Determining an appeal
14.-(1) Except where rule 43 or 44 applies, a hearing shall be conducted to determine an appeal.
PART III
APPEALS TO TRIBUNAL FROM ADJUDICATOR
Application of Part III
17.-(1) This Part applies to -
(a) applications to the Tribunal for leave to appeal to the Tribunal; and
(b) appeals to the Tribunal from the determination of an adjudicator.
(2)In this Part, 'appellant' means a party appealing against an adjudicator's determination and includes an application for leave to appeal under rule 18 and an application for a review under rule 19.
Leave to appeal
18.-(1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal.
....
(4)An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form, which shall -
(a) be signed by the appellant or his representative (if he has one);
(b) be accompanied by the adjudicator's determination;
(c) identify the alleged errors of fact or law in the adjudicator's
determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal; and
(d) state whether a hearing of the appeal is desired.
(5)When an application for leave to appeal has been made, the Tribunal shall notify the other parties.
(6)The Tribunal shall not be required to consider any grounds other than those included in that application.
(7)Leave to appeal shall be granted only where -
(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.
(8)An application for leave to appeal shall be decided by a legally qualified member without a hearing.
(9)When an application for leave to appeal has been decided, written notice of the Tribunal's decision on the application shall be sent to the parties and, if granted, the grounds upon which the appellant may appeal.
(10)Where the application for leave to appeal is refused, the notice referred to in paragraph (9) shall include, in summary form, the reasons for the refusal.
(11)Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator.
Evidence
22.-(2) Subject to paragraph (3), the Tribunal may, of its own motion or on the application of any party, consider evidence further to that which was submitted to the adjudicator.
Appeals remitted by Tribunal to adjudicator
23.Unless it considers -
(a) that it is necessary in the interests of justice, and
(b) that it would save time and avoid expense
to remit the case to the same or another adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself.
Determining an appeal
24.-(1) Except where rule 43 or 44 applies, a hearing shall be conducted to determine an appeal.
PART V
GENERAL PROVISIONS
Application of Part V
28.This Part applies to -
(a) proceedings to which Part II applies (appeals to adjudicator);
(b) proceedings to which Part III applies (appeals to the Tribunal from
adjudicator);
Conduct of appeals
30.-(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal.
(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authority may give directions which control the conduct of any appeal.
(3) The appellate authority may give directions under this rule orally or in writing and notice of any written directions given shall be served on the appellant or his representative (if he has one) and any other party.
(4) Directions given under this rule may, in particular -
(c) provide for -
(ii)a pre-hearing review to be held;
....
(iv)whether there should be a hearing of the appeal;
Failure to comply with these Rules
33.-(1) Where the party has failed -
(a) to comply with a direction given under these Rules;
(b) to comply with a provision of these Rules;
and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that it is necessary to have regard of the overriding objective in rule 30(2), the appellate authority may dispose of the appeal in accordance with paragraph (2).
(2) The appellate authority may -
(a) in the case of a failure by the appellant, dismiss the appeal or, in
the case of a failure by the respondent, allow the appeal, without considering its merits;
(b) determine the appeal without a hearing in accordance with rule 43; or
(c) in the case of a failure by a party to send any document, evidence or statement of any witness, prohibit that party from relying on that document, evidence or statement at the hearing.
Representation
35.-(1) In any proceedings in an appeal, a party may act in person or be represented -
(a) in the case of a person appealing against an immigration decision, by any person not prohibited by section 84;
(2) A person representing a party may do anything relating to the proceedings that the person whom he represents is by these Rules required or authorised to do.
(3) Each party shall have a duty to maintain contact with his representative (if he has one) until the appeal is finally determined and notify the representative of any change of address.
(4) Where a representative referred to in paragraph (1)(a) ('the first representative') ceases to act, he and the party he was representing, shall forthwith notify the appellate authority and any other party of that fact and of the name and address of any new representative (if known).
(5) Until the appellate authority is notified that the first representative has ceased to act by either the first representative or the party he was representing, any document served on the first representative shall be deemed to be properly served on the party he was representing.
(6) Where a representative begins acting for a party to which these Rules apply, he shall forthwith notify the appellate authority of that fact.
Hearing of appeal in absence of a party
41.-(1) The appellate authority may, where in the circumstances of the case it appears just so to do, hear an appeal in the absence of a party if satisfied that -
(a) he is not in the United Kingdom;
(b) he is suffering from a communicable disease or from a mental disorder;
(c) by reason of illness or accident he cannot attend the hearing;
(d) it is impracticable to give him notice of the hearing and that no person is authorised to represent him at the hearing; or
(e) he has notified the appellate authority that he does not wish to attend the hearing.
(2) Without prejudice to paragraph (1) but subject to paragraph (3), the appellate authority may proceed with the hearing of an appeal in the absence of a party if satisfied that, in the case of that party, notice of that date, time and place of the hearing, or of the adjourned hearing, has been given in accordance with these Rules.
(3) Where the absent party has not furnished the appellate authority with a satisfactory explanation of his absence, it shall proceed with the hearing in pursuance of paragraph (2).
(4) Where in pursuance of this rule the appellate authority hears an appeal or proceeds with a hearing in the absence of a party, it shall determine the appeal on the evidence which has been received.
(5) Any reference to a party in paragraphs (2) and (4) includes a reference to his representative.
Determination without hearing
43.-(1) An appeal may be determined without a hearing under this rule if -
.....
(e) no party has requested a hearing;"
THE TWO ISSUES OF FACT
[12]Although myriad issues arise from the grounds of challenge set out in the petition, two issues of fact lie at the heart of this application for judicial review. The first is whether the reply form referred to in para 2 of the adjudicator's determination had been returned to the Immigration Appellate Authority ("IAA") by Mr Plancey before the pre-review hearing on 10 April 2002. The second issue of fact is why the point about the adjudicator having determined the petitioner's application without a hearing was not included in the grounds of appeal within the application for leave to appeal to the IAT. It is appropriate that, before considering the legal issues which arise in this application, I should determine these two issues of fact.
(i)Was the reply from sent?
[13]On 19 March 2002 the IAA sent certain documents to the petitioner and the IAS, whom they believed at that time to be acting for the petitioner, and to the respondent. The first document (ADJ01) was a Notice of First Hearing advising the appellant and respondent that the appeal would be heard on Wednesday 10 April 2002 at 10 am at 4th Floor, Eagle Building, 215 Bothwell Street, Glasgow, G2 7EZ. On the same document, following upon the notice of the first hearing, the following passage appeared:
"DIRECTION
The appellant and the respondent (or their representatives) are required to comply with the Direction set out in Form 5A served with this notice.
The Reply must be returned to the Immigration Appellate Authority at the correspondent's address given below before Wednesday, 3 April 2002.
Please read the document 'Notes for Appellants' which accompanies this notice of hearing. It contains important information about how to complete the Reply and what the appellant should do next.
If the appellant or his representative does not attend the first hearing the adjudicator may determine the appeal in the absence of the appellant unless there is a satisfactory explanation of his absence. The adjudicator will accept the return of a reply in which boxes A and D are fully completed as a satisfactory explanation for not attending the first hearing."
The second document (ADJ02) was the reply form. This consisted of four boxes, A, B, C and D on the left side of the page which the appellant was required to tick as appropriate. Alongside Box C were the words "I am currently not ready to proceed". There were then two dotted lines for the reason to be stated. At the foot of the document there were dotted lines for the name and address of the representative to be entered and for the form to be signed and dated. The third document, known as ADJ05(A), was headed "DIRECTIONS" and stated as follows in the first paragraph:
"The appellant is required to complete the attached form, headed Reply and to return it to the Immigration Appellate Authority at the correspondent's address given below, 7 days before the date of the first hearing."
The fourth document was headed "NOTES FOR APPELLANTS" and contained the following instructions:
"Please read these notes carefully. You have been sent a Notice of Hearing for your immigration or asylum appeal and you are required to fill in and return the document headed 'Reply'. You must return the Reply, fully completed, to the correspondent's address by the date shown on the notice of first hearing.
You are advised to seek legal advice and representation before returning the Reply.
.....
If you have completed Box C, you or your representative are strongly advised to attend the hearing. The adjudicator will consider your explanation as to why you are not ready to proceed. If the adjudicator is satisfied with your explanation he will give such further directions as may be necessary. If you do not attend the hearing the adjudicator may determine the appeal in your absence."
[14]In statement 10 of the Petition it is averred that Mr Plancey sent the reply form to the IAA at Loughborough on or about 1 or 2 April 2002. In answer 10 that averment is not known or not admitted by the respondent, under explanation that the reply form was never received by the IAA and that no completed reply form was before the adjudicator. I therefore now turn to consider the evidence bearing upon this issue but, before I do so, I think it important to record certain facts which I do not understand to be the subject of dispute. First, the petitioner did not appear and was not represented before the adjudicator at the pre-hearing review on 10 April 2002. Secondly, the reply form was not before the adjudicator at that pre-hearing review.
[15]The oral evidence at the second hearing on the question of whether the reply form was sent to the IAA came from Mr Plancey and Mrs Rona Turner, the court clerk manager of the IAA at Eagle Buildings, Bothwell Street, Glasgow. As Mrs Turner spoke to the system in operation at the material time for dealing with incoming mail within the IAA I shall deal first with her evidence. She was familiar with the system operated within the IAA for logging incoming mail. She explained that every appeal to an adjudicator had both a computer file and a paper file. Mail was opened in the mailroom, logged onto the computer file and then filed in the paper file. Every document relating to an appeal to an adjudicator had an appeal number listed on it: in this case it was HX 14930/2002. Both the computer and paper files were identified in the first instance by the appeal number but, before an incoming document was linked to a particular case, the clerk checked not only the appeal number but also the name and date of birth of the appellant and the hearing date. An appeal file always began life at the IAA offices in Loughborough but it was transmitted to the Glasgow office about a week before a hearing was due to take place before the adjudicator in Glasgow. The Glasgow office was a hearing centre and had files only for the purpose of appeal hearings. If a document was received in Loughborough after an appeal file had been sent to Glasgow, the receipt of the document in Loughborough would immediately be entered on the computer file, a phone call would be made to the Glasgow office advising of its receipt and the document would immediately be faxed and then posted to the Glasgow office. All files were checked before they were presented to an adjudicator for an appeal hearing. A bail file was completely separate from an asylum appeal file (having an entirely different reference number and this was known to representatives working in the immigration field). A clerk within the IAA would know not to link a reply form for an appeal hearing to a bail file. The onus was on an appellant to tell the IAA when he had changed representative. She had been asked to examine the computer and paper files in the present case, and, having done so, she found no record at all of the reply form ADJ02 having been returned to the IAA. She was almost certain that the IAA had not received the reply form in this case.
[16]The evidence of Mr Plancey, who is not legally qualified and has been an immigration consultant for 15 years, on this issue is contained both in an affidavit of 25 November 2004 prepared for the purpose of the first hearing in the present petition and in his oral evidence given at the second hearing. Paras. 2, 3 and 4 of his affidavit are in the following terms:
"2.I confirm in the course of my duties as an immigration consultant I was instructed to act on behalf of Mr Tariq Mahmood on or about 1 March 2002. At that time he was detained at Dungavel Detention Centre. I submitted an application for bail on his behalf and bail was granted by the adjudicator at Glasgow on 5 March 2002. It was a condition of bail that the appellant appeared before the adjudicator again on 16 April 2002.
3.At that time Mr Mahmood had an outstanding asylum appeal. He received a notice dated 19 March 2002 advising that the first hearing in connection with the asylum appeal would take place on 10 April 2002. Accompanied with the notice was a Reply to Directions form. In accordance with the notice dated 19 March 2002 the Reply to Directions form required to be returned to the Immigration Appellate Authority before 3 April 2002.
4.I completed the Reply to Directions form. I do not recollect the exact date. I believe it would have been shortly before 3 April 2002, probably the 1 or 2 April 2002. I advised the Court (sic) that we were currently not ready to proceed. I signed the form but did not date it. I produce herewith a photocopy of the form which I had in my file. It is my normal practice in situations like this not to send the form back with an accompanying letter and not to send it recorded delivery. If the form was sent back 10 days or more before the date of the first hearing then it is my normal practice to send it to Loughborough. If there are less than 10 days before the first hearing then it is my normal practice to send it to Glasgow. In this instance I sent it to Loughborough. Although I do not keep a recorded delivery slip or a file copy letter I do nonetheless operate a post book within my office. This records the details of postages (sic) sent out. Regretfully, the post book for April 2002 has been mislaid within the office. My firm recollection is that I posted the completed Reply to Directions form to Loughborough."
[17]The oral evidence of Mr Plancey was that he was instructed by the petitioner when the latter was still detained in Dungavel. He obtained bail for the petitioner through the IAA in Glasgow in March 2002. The notice of first hearing fixed for 10 April 2002 and associated documents were sent by the IAA to the petitioner personally and to the IAS, his former representatives, on 19 March 2002. The sending of copies of these documents to the petitioner's former representatives was described by Mr Plancey as "a mistake by the IAA in Loughborough". The petitioner brought the notice and other documents to him at his office. He accepted that the Notes for Appellants, which he did not read as he was familiar with them, stated that if the appellant or his representative did not attend the first hearing the appeal might be determined in absence, that the completion of Boxes A and D would amount to a satisfactory explanation for absence, but if Box C was completed, the appellant was strongly advised to attend the hearing and that, if he did not, the adjudicator might determine the appeal in his absence. He completed Box C on the reply form, indicating that the petitioner was currently not ready to proceed and wrote on the dotted lines alongside it in manuscript as the reason "I am awaiting Paperwork from Pakistan". In the copy reply form lodged in process (6/6) the name and address of Mr Plancey and his firm have been rubber-stamped on the dotted lines provided for the name and address of the representative, and the form has been signed by Mr Plancey, but no date is written on the dotted line provided for the date. Mr Plancey initially said that a copy of this form was sent by him to the IAS in Oakington, but that was clearly an error on his part, and he then corrected himself to say that he was unsure whether he sent the form to Loughborough or to Bothwell Street in Glasgow. He usually returned the form to Bothwell Street if the hearing was due to take place within a week. In returning the completed form he was requesting an adjournment as he was awaiting paperwork, following the receipt of which he would be ready to proceed. Having sent in the form, he did not attend the first hearing before the adjudicator. Nor did he advise the petitioner to attend the first hearing as normally the client does not attend it. If the IAA said that they had not received the form, then, according to him, they were lying. It was his practice, if more than seven days remained before the hearing, to fax and send the reply form to Loughborough, and, if less than seven days remained before the hearing, to have it couriered to Bothwell Street. The reply form in this case was sent, but he could not say how or where.
[18]I accept entirely the evidence of Mrs Turner about the system in operation at the material time for the receipt of mail within the IAA. It is clear from her evidence that there was in existence a rigorous and effective system for ensuring that documents received in connection with appeals, whether they were received in Loughbrorough or in Glasgow, were placed in the correct file by reference to the appeal number, name and date of birth of the appellant and date of the hearing before the adjudicator. Having accepted her evidence, I conclude that the reply form in this case was not received by the IAA either in Loughborough or in Glasgow.
[19]I now consider the evidence of Mr Plancey in order to determine whether the reply form, which I have held was not received by the IAA, was sent by him to them. I have to say that I formed a generally poor impression of Mr Plancey as a witness. He was very uncomfortable when giving evidence. In my view he had a careless, possibly even reckless, approach to his work and was too ready to blame others for his own shortcomings. For example, he thought that the IAA should have known to send the Notice of First Hearing to him as he had acted for the appellant in the bail application. Yet, as is clear from the evidence of Mrs Turner, he, as an experienced practitioner in this field, should have known that within the IAA a bail file was completely separate from an asylum appeal file. He should also have known that procedure rule 35(6) required him, as a new representative, to notify the IAA that he was acting for the petitioner. I would not quibble with the statement by Mr Bovey in the course of submissions that there was "an element of the cavalier" about Mr Plancey.
[20]I found the evidence of Mr Plancey on this particular issue most unsatisfactory. As Miss Maguire correctly pointed out, he was unable to say in his oral evidence when, how or where the reply form was sent. That contrasts with the evidence in his affidavit that he sent the form to Loughborough on probably 1 or 2 April 2002. There are aspects of the documentary evidence which in my view cast a shadow upon the oral evidence of Mr Plancey. Although Mr Plancey's file was recovered under commission and diligence, the documents contained in the file lodged in court (7/10 of process) are all photocopies. I was provided with no explanation for the original file of Mr Plancey not having been produced. For all I know, the principal reply form with his handwriting on it, which I would expect to have been the actual document sent to the IAA, is still within his file. There is no entry of any kind in the copy file produced to indicate that the reply form was sent to the IAA. I note that page 84 of 7/10 of Process is a copy of the blank reply form and that page 86 is a copy of the reply form with Mr Plancey's handwriting and firm's rubber stamp on it, as described above. My examination and assessment of the entire evidence of Mr Plancey leads me to the conclusion that the petitioner has failed to prove that the reply form was returned by Mr Plancey to the IAA. I am not in a position on the basis of the evidence to make any finding about when, where and how (that is, by mail, fax or courier) the reply form was sent. As I am satisfied that the reply form was not received by the IAA and that it has not been proved that it has been sent to the IAA by Mr Plancey, I conclude that he did not send it to the IAA.
[21]It should not be thought that my conclusion that the reply form was not sent by Mr Plancey entails a finding that he was lying in his evidence, both on affidavit and at the second hearing, when he said that he did send it. Although I have made adverse comments about his evidence, I have intentionally not described him as being dishonest as I did not get the impression that he was deliberately trying to mislead me. His evidence on this point, in view of his careless attitude to his work, I would describe as unreliable, and for that reason I am not prepared to accept it. It may well be, as Miss Maguire suggested, that Mr Plancey believes that the form was sent as it would not make sense for him not to have turned up at the hearing if he had known that he had not returned the reply form.
(ii)Why was the point about the adjudicator determining the appeal without
a hearing not taken in the grounds of appeal to the IAT?
[22]The evidence on this issue came from Mr Plancey and Mr Andrew Devlin, Advocate, who drafted the grounds of appeal to the IAT. In his affidavit of 25 November 2004 Mr Plancey dealt with this issue at paras 5 and 6 as follows:
"5.Thereafter I duly received the Determination from the adjudicator, Mr Pieri, dated 25 April 2002. I received this about 29 April 2002. On that date I instructed Mr David Brown, Solicitor, of Messrs Drummond Miller, Edinburgh to instruct Andrew Devlin, Advocate on behalf of Mr Mahmood to appeal against the adjudicator's determination. The last date for lodging that appeal was 13 May 2002.
6.On the Notice of First Hearing dated 19 March 2002 it states that 'If the appellant or his representative does not attend the first hearing the adjudicator may determine the appeal in the absence of the appellant unless there is a satisfactory explanation of his absence. The adjudicator will accept the return of a reply in which Boxes A and D are fully complete as a satisfactory explanation for not attending the first hearing.' From recollection I believe I discussed this with counsel. He was of the view that, given it was Box C which I had ticked, and the fact that the form may have been returned to the Court (sic) did not mean that the adjudicator could not proceed to hear the appeal in the absence of the appellant or his representative. I believe it was on that basis that the application for leave to appeal to the Tribunal did not include the averment that the Reply to Directions form had been returned to the adjudicator. This is also what I was referring to on page 3, paragraph 3 of the letter of 29 April 2002 to Drummond Miller."
[23]The letter from Mr Plancey of 29 April 2002 (7/10 of process, pages 64 to 67) began by stating that he enclosed "herewith a synopsis of the client's problem or should I say my problem together with the relevant paperwork". Page 3 of that letter, beginning from the top of the page, so far as relevant, reads as follows:
"Notwithstanding the Court Service knowing of Plancey & Company's involvement, the Court Service sent out a Notice of First Hearing to the client and also to IAS in Oakington. The client passed the papers into ourselves to do the necessary and we filled in the directions under 'C' currently awaiting paperwork from Pakistan and not ready to proceed.
This document was then sent as per instructions to Loughborough.
It has to be admitted that we should have by hindsight appeared at the first hearing since on the notes for the appellant it says that if you have completed Box C you or your representatives are strongly advised to attend the hearing.
When the hearing on 10 April 2002 took place Mr Pieri made a determination without a hearing under Rule 43, 1(E) and a copy of this determination and reasons are already enclosed.
I propose to go through the determination and reasoning's pointed out faults therewith (sic):-
1. ...
2.Number 2 of the determination is correct. The client did supply the paperwork, we did respond but unfortunately we did not attend."
[24]The oral evidence of Mr Plancey at the second hearing was that when he received the adjudicator's determination of 25 April 2002 he contacted his Edinburgh agents, Messrs Drummond Miller WS. He sent them the four page letter dated 29 April 2002, the relevant portions of which I have quoted above. He accepted that the sentence in his numbered paragraph 2 on page 3 which reads "Number 2 of the determination is correct" was not correct as Number 2 of the determination had said the reply form had not been returned when, according to him, it had been returned. On 3 May 2002 Drummond Miller wrote to Mr Plancey stating: "We can confirm that we forwarded the papers to Andrew Devlin with a stiff indication that we require the grounds of appeal by the deadline". On 3 May 2002 Drummond Miller instructed Mr Devlin to draft grounds of appeal by sending him a letter of instruction and what they described as "full papers". On 13 May 2002 an application for leave to appeal containing grounds of appeal which made no reference to the determination by the adjudicator having been made without a hearing was faxed by Faculty Services Limited on behalf of Mr Devlin to the IAA. Mr Plancey said that he would have had a further discussion with Mr Devlin after he wrote the letter of 29 April 2002, but he had no file entry about any such discussion, and he would not have seen the grounds of appeal before they were lodged. On 16 May 2002 Drummond Miller sent a copy of the grounds of appeal to Mr Plancey. Mr Plancey read the grounds of appeal and noted that they wrongly referred to the adjudicator as "she". On 20 May 2002 he wrote to Drummond Miller pointing out this mistake. On 23 May 2002 he sent a copy of the grounds of appeal to the petitioner.
[25]In the course of cross-examination Miss Maguire asked Mr Plancey about the discussion with counsel which he mentioned at para 6 of his affidavit. His response was that he did not "recall offhand" having been given the advice there mentioned. He said he honestly could not recollect what Mr Devlin said to him or what he said to Mr Devlin in 2002. He then went on to say "I presume Mr Devlin told me after the appeal papers were lodged. I am not clear that such a conversation took place. I have a recollection but can't be confident". He accepted that para. 6 of his affidavit was an accurate recording by the notary of his evidence. Although there was a reference in his letter to Drummond Miller dated 20 May 2002 to "Andrew's Opinion in this case", that was an inaccurate reference to the grounds of appeal drafted by Mr Devlin.
[26]On 17 July 2002 Drummond Miller wrote to Mr Devlin asking that he revert to them "as a matter of urgency with your petition for judicial review or Opinion confirming that a judicial review is not possible". On 25 July 2002 Mr Plancey sent a fax to Mr Devlin stating: "As per telephone conversation the papers are attached. In the determination Nos. 2 and 14 are completely wrong. If we can assist further please do not hesitate to call us." The reference to "Nos. 2 and 14" was to paras 2 and 14 of the adjudicator's determination. The present petition was subsequently drafted by Mr Devlin and lodged in court on 29 October 2002.
[27]Mr Devlin provided an affidavit dated 26 November 2004, which was drafted by him under great pressure of time, for the purpose of the first hearing in this judicial review. In it he pointed out that his recollection of the circumstances surrounding the drafting of the application for leave to appeal the IAT and the petition for judicial review was somewhat vague. He had had no involvement with the matter since around Spring 2003 and had had no opportunity properly to review the relevant papers since that time, but the agents had allowed him access to the papers in order to enable him to draft the affidavit. He referred to the letter from Plancey & Company dated 29 April 2002, and in particular to Mr Plancey's numbered para 2 on page 3 thereof, and stated that it appeared to him from reading para 2 that Mr Plancey's position was that he had not actually sent the notice (reply form) since he said that para 2 of the adjudicator's determination was correct. He went on to refer to the content of para 6 of Mr Plancey's affidavit referring to a discussion with counsel and stated that he had no recollection of any such conversation. His clerk had confirmed to him that there was no record of a fee for a consultation at the material time. He accepted that it was possible that Mr Plancey was referring to a telephone conversation as opposed to a formal consultation, but, if that were the case, he was surprised that Mr Plancey had not supplied a telephone note. He thought that Mr Plancey's account of their conversation made little sense. He found the reasoning attributed to him very difficult to understand as it ran completely counter to what was stated in the petition. He suspected that the point about the return of the reply form had simply not been raised with him at the time of drafting the application for leave to appeal to the IAT. It was his view that an error of fact by the adjudicator as to the sending of the reply form, being a material consideration, would have been sufficient to cause the determination to fall. He was therefore satisfied, although he could not fully recollect, that it was highly unlikely that he would have advised Mr Plancey as Mr Plancey said he did.
[28]In his oral evidence at the second hearing Mr Devlin said he did not know why the point about the adjudicator determining the application without a hearing was not included in the grounds of appeal to the IAT. Initially it was his position that he had no clear recollection of having received Mr Plancey's letter of 29 April 2002, although it was perfectly possible that he did. He found it difficult to accept that the point would have been missed by him. In answer to a question from myself he stated that it was a mystery to him why the point was not taken in the grounds of appeal to the IAT. He thought one possibility was that he did not have Mr Plancey's letter of 29 April 2002 before him when he drafted the grounds of appeal. He accepted that the point was clearly raised at the top of page 3 of that letter, but when he had drafted his affidavit at speed he had overlooked those paragraphs. Mr Devlin was later recalled to give further evidence after the late lodging of Drummond Miller's letter of instruction of 3 May 2002 (7/12) "enclosing full letter of instruction from Mr Plancey". Mr Devlin's position then was that he had no recollection of these events but, in light of the terms of the concluding paragraph of the letter of instruction of 3 May 2002 from Drummond Miller, he had to assume that Mr Plancey's letter of 29 April 2002 was enclosed. He still could not explain how the point appeared to have been overlooked. He reiterated that it did not seem likely to him that he would have given the advice referred to at para 6 of Mr Plancey's affidavit as it did not tally with his understanding of the law.
[29]Having considered the above evidence, I have reached the conclusion that the only rational explanation which has been provided for this point not having been taken in the grounds of appeal to the IAT is (despite my earlier adverse comments on Mr Plancey as a witness) that set out in para 6 of Mr Plancey's affidavit. I am satisfied that, when he drafted the application for leave to appeal to the IAT, Mr Devlin had before him Mr Plancey's letter of 29 April 2002. I am also satisfied that this letter contained sufficient information to enable Mr Devlin to draft a ground of appeal challenging the decision of the adjudicator to determine the appeal to him without a hearing. Contrary to the submission of Mr Bovey, I think that it is unlikely that Mr Devlin would simply have failed to focus on the point and so omitted to raise it in the grounds of appeal. My impression of Mr Devlin was that, as a counsel with considerable experience in asylum cases, he would have been most unlikely to overlook a possible ground of appeal based on the fact that the adjudicator had made a determination without a hearing. It is obvious to me that any counsel experienced in this area of the law would have been immediately alert to seize upon any possible ground of appeal based on the fact that the appellant had not received a hearing. The fact that there had been no hearing is a matter of such fundamental importance that the attention of any experienced counsel would be likely to have been drawn to it and I would have expected that Mr Devlin would, at the very least, have raised a question about the fact that there had been no hearing before the adjudicator. While the explanation at para 6 of Mr Plancey's affidavit for the point not having been taken appears at first sight difficult to understand, it is clear on further examination that it makes good sense. The advice which, according to Mr Plancey, was given by Mr Devlin was that, as Box C on the form had been ticked, the fact that the form had been returned did not mean that the adjudicator could not proceed without a hearing. Such advice is consistent with what is stated on the direction contained in the Notice of First Hearing and with the Notes for Appellants, both of which I have quoted above. It is clear to me from the evidence that Mr Plancey and Mr Devlin were in the habit of speaking to each other on the telephone about cases with which they were dealing and that no formal record of these telephone conversations was usually kept. I think that it is a reasonable inference from all the relevant evidence that the advice to which Mr Plancey speaks in his affidavit was given to him by Mr Devlin in the course of such a telephone conversation. A finding that such advice was given by Mr Devlin to Mr Plancey does not in any way reflect adversely on the credibility of Mr Devlin. Indeed, it is consistent with his vague recollection of events and on his insistence that he would not have missed the point. It is also consistent with the absence of any comment or complaint about this point by Mr Plancey after he received a copy of the application for leave to appeal. If Mr Plancey had expected a ground of appeal based on the fact that the adjudicator had reached his determination without a hearing to be included in the application for leave to appeal to the IAT, then I would have thought that he would have raised the issue of the absence of such a ground of appeal with either Drummond Miller or Mr Devlin once he had received a copy of the application for leave to appeal.
[30]If a ground of appeal based on the adjudicator's determination without a hearing was, as I have just found, intentionally not included in the application for leave to appeal to the IAT, then the question must be asked: how did it come to be included in the petition for judicial review, which was also drafted by Mr Devlin? In my view the likelihood is that this came about because Mr Plancey insisted on it being included. Here again, I think that informal, unrecorded telephone conversations took place between Mr Plancey and Mr Devlin. That this is so is plain from the fax of 25 July 2002 from Mr Plancey to Mr Devlin, the terms of which I have quoted above at para 26. On 6 August 2002 Plancey & Company wrote to Drummond Miller: "Thank you for the opinion which was obtained after our Mr Jack Plancey gave counsel 'his Opinion' on Friday morning." The "opinion" for which Mr Plancey thanked Drummond Miller in that letter was not an Opinion of Counsel, but a draft of the petition for judicial review. Mr Plancey's use of legal terminology was, as Mr Bovey described it, "rough", and he seemed to think that anything drafted by counsel was described as an Opinion. Mr Devlin had no recollection of any telephone conversations with Mr Plancey at that time, but I am satisfied that they must have taken place. I think it can reasonably be inferred that Mr Plancey pushed the point about the absence of a hearing before the adjudicator with Mr Devlin and eventually persuaded Mr Devlin to include it in the petition for judicial review.
[31]I have therefore reached the conclusion that the reason why the appropriate ground of appeal on this point was not included in the application for leave to appeal to the IAT drafted by Mr Devlin is because Mr Devlin advised that it should not be included, as set out by Mr Plancey at para 6 of his affidavit. If that is not so, then the position simply must be that no reason for the appropriate ground of appeal not having been included has been established by the evidence. In either event the petitioner has failed to prove that the failure to include appropriate ground of appeal was due to what he describes in the petition as a misunderstanding and a breakdown in communications between his immigration and legal representatives or by reason of any failure on their part. As Miss Maguire correctly pointed out, neither Mr Plancey nor Mr Devlin spoke in evidence to any misunderstanding or breakdown in communication between them.
SUMMARY OF FINDINGS IN FACT
[32]I summarise my findings on the above two issues of fact as follows: (1) the reply form was not sent by Mr Devlin to the IAA; (2) a ground of appeal based on the adjudicator having reached a determination without a hearing was not included in the application for leave to appeal to the IAT because Mr Devlin advised that it should not be. If that is not so, no reason for the appropriate ground of appeal not having been included has been proved.
ISSUES OF LAW
[33]In light of my findings in fact the only issue of law which arises on a practical basis is the challenge to the adjudicator's determination of the merits of the application raised in both the grounds of appeal to the IAT and in Statement 15 of the petition. The other issues of law arise only if I am wrong in my findings in fact. I shall deal first with the challenge to the adjudicator's determination of the merits, and thereafter with the other issues of law upon which submissions were made.
(i)The challenge to the adjudicator's determination of the merits of the application
[34]The challenge to the adjudicator's determination of the merits of the application is set out in statement 15 of the petition and relates to the reasoning of the adjudicator at paras 12 and 13 of his determination, which I have cited above at para 7. The broad proposition was that the determination of the adjudicator was unreasonable in that he drew conclusions adverse to the petitioner's credibility which could not reasonably be drawn. The first criticism averred in statement 15 relates to the adjudicator's treatment of the credibility of the petitioner arising from the discrepancy in the evidence of the petitioner at interview about the length of his last period of detention. It was averred that no conclusion adverse to credibility could reasonably be drawn from this discrepancy, but Mr Bovey departed from this ground of criticism in the course of his submissions. The second ground of criticism related to the adjudicator's apparent view as set out in para 13 of his determination that, after the petitioner's release from detention in November 1997, the petitioner was considered by the authorities in Pakistan to be an absconder in connection with old cases still outstanding against him. This view appeared to be based on questions and answers 42 to 44 in the petitioner's interview and Mr Bovey submitted that that evidence constituted a very loose foundation for holding that the petitioner was an absconder before he left Pakistan. The evidence before the adjudicator was, he submitted, not such as to give rise to the idea that the petitioner was "a wanted man". In response to this ground of criticism, Miss Maguire drew attention to what was stated on behalf of the petitioner in the letter of 6 February 2002 written on his behalf by the IAS. I have quoted para. 7 of that letter above at para 4. Miss Maguire pointed out that the adjudicator had this letter before him when he made his determination and in itself the letter negated Mr Bovey's submission that there was no basis for the adjudicator's finding that the appellant was in hiding before he left Pakistan. The third ground of criticism advanced was that there was nothing in the documentary evidence before the adjudicator to indicate that the authorities in Pakistan had been looking for him in connection with old cases before he left Pakistan. In response to this Miss Maguire drew attention to what was stated at the conclusion of para 9 of the letter of 6 February 2002. Although what was stated there did not indicate at what point the petitioner had not attended, it was entirely consistent with the view that he had not attended court hearings before he left Pakistan.
[35]In my view there is no substance in the two criticisms of the adjudicator's determination advanced by Mr Bovey. Founding upon the decision of the Inner House in Asif v Secretary of State for the Home Department 2002 SC 182, pages 188-189, para. 16, he emphasised that
"credibility is an issue to be handled with great care and sensitivity, and that lack of credibility, on peripheral issues or even on material issues, is not to be made an easy excuse for dismissing a claim by an applicant who comes from a State or situation in which persecution is an established fact of life."
While I accept without question that in asylum cases the question of credibility must, of course, be handled with great care and sensitivity, I do not find any basis for faulting the approach of the adjudicator in this case to the question of the credibility of the petitioner, and in particular, to the question whether the petitioner, before he left Pakistan, was an absconder because there were outstanding cases against him. I agree with the statement by the IAT in refusing leave to appeal that it was for the adjudicator to decide whether or not there were outstanding charges against the petitioner. In my view there was a sufficient basis in the evidence to entitle him to reach the conclusions which he did reach and they cannot be described as unreasonable.
(ii)Failure to exhaust statutory remedy: exceptional circumstances or Rule
of Court 2.1(1)?
[36]Had I found that the reply form had been returned by Mr Plancey it would have been necessary for me to decide whether to allow this point to be raised in the present proceedings, it not having been raised in the grounds of appeal to the IAT. The respondent avers that the present application, insofar as it purports to criticise the decision of the Tribunal or the adjudicator on the basis of matters not canvassed in the grounds before the Tribunal, is incompetent et separatim irrelevant, under reference to procedure rule 18(6). He goes on to aver that failure to mention in the application for leave to appeal to the IAT a matter now complained of represents a failure to exhaust the statutory appeal process in respect of the petitioner's complaints and that the supervisory jurisdiction of the court may be invoked only in exceptional circumstances where an available statutory appeal process has not been exhausted. As the application for leave to appeal bore to have been faxed from Faculty Services, the respondent believes and avers that it was drafted by counsel. In response to these averments the petitioner makes the following averments. The competency of judicial review in the context of failure to exhaust statutory remedies is now governed by rule of court 58.3. In the present case the available remedy of seeking leave to appeal to the IAT was exhausted. Although the grounds upon which leave was sought did not include the decision to decide the case on the merits (without a hearing), the IAT considered this matter in para 3 of its determination. The same material as was or should have been before the adjudicator was or should have been before the IAT when it focused ex proprio motu on the decision of the adjudicator to decide the appeal without a hearing. These were that the directions had been sent to the wrong representative and that the petitioner was expected to appear in person on 16 (sic) April. The decision of the IAT is flawed in the same manner as that of the adjudicator. If the petitioner has failed to exhaust his statutory remedies in relation to the adjudicator's decision to determine the appeal without a hearing (which is denied), this arose by reason of mistake, oversight or other excusable cause and the petitioner invokes rule of court 2.1(1). The failure to raise in the grounds of appeal the issue about the return of the form and the adjudicator's error in determining the appeal without an oral hearing was due to a misunderstanding and breakdown in communications between the petitioner's immigration and legal representatives. If it remains the case that only in exceptional circumstances may the supervisory jurisdiction of the court be invoked where a statutory appeal has not been exhausted (which is denied) exceptional circumstances do exist in which the court should nonetheless not refuse to exercise its supervisory jurisdiction. These exceptional circumstances were (a) that the failure to include the necessary ground of appeal arose by reason of a failure on the part of those representing the petitioner; (b) the nature of the fault is not so clear that the petitioner would have any clear remedy against his previous adviser, financial compensation would not be an adequate remedy and in practical terms it would be impossible for the petitioner to pursue such a remedy from abroad; (c) the merits of the substance of the case are strong and of the first importance to the petitioner; (d) the decision complained of proceeded upon the administrative and other errors condescended upon; (e) the IAT in fact considered the issue in question, and, insofar as they did not consider it, they were at fault in not considering the IAA file which would have disclosed the errors; and (f) by reason of the fault of others the petitioner has been denied an oral hearing at which he could explain matters that were concerning the adjudicator about his asylum claim.
[37]It has long been established that, save in exceptional circumstances, the supervisory jurisdiction of the court cannot be invoked in a case when another remedy was available. Lord Kames (Historical Law Tracts, (5th Ed), Book 2, Ch 3, page 341), stated that, "it is the province, one should imagine, of the sovereign, and Supreme Court, to redress wrongs of every kind, when a peculiar remedy is not provided". The matter is put thus in Clyde & Edwards on Judicial Review (2000) at page 409, para 12.01:
"As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant. .... One may not neglect the statutory remedy and jump direct to the Court of Session".
Rule of Court 58.3, so far as relevant, provides as follows:
"58.3-(1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court... shall be made by petition for judicial review.
(2) An application may not be made under paragraph (1) if that application is made, or could be made by appeal or review under or by virtue of any enactment."
Clyde & Edwards comment on this rule at page 410, para 12.02 as follows:
"It is thought that this rule does not constitute any separate obstacle to recourse to judicial review where an alternative remedy exists, but only provides that alternative statutory remedies should be pursued under their own procedure rather than by procedure for judicial review. It should not exclude the established exceptions to the general rule."
In West v Secretary of State for Scotland 1992 SC 385, Lord President Hope, delivering the Opinion of the Court, said, with reference to the then rule of court 260B, the predecessor of rule of court 58, at page 404:
"The following characteristics of rule of court 260B may therefore be noted at this stage. First, since it was introduced by Act of Sederunt without any further enabling power having been conferred on the court by general legislation, it was a procedural amendment only which did not and could not alter in any respect the substantive law. Thus neither the nature or scope of the supervisory jurisdiction nor the grounds on which it may be exercised were affected by the introduction of this new rule. Second, it requires that all applications to the supervisory jurisdiction must be made only by means of the new procedure."
Rule of Court 2.1(1) provides:
"The court may relieve a party from the consequences of a failure to comply with a provision in these rules shown to be due to mistake, oversight or other excusable cause on such conditions, if any, as the court thinks fit."
The power granted to the court by that rule has come to be known in practice as the general dispensing power.
[38]The proposition set out in the petition, and elaborated upon by Mr Bovey in his submissions, was that the long established rule that an application to the supervisory jurisdiction could not be made, save in exceptional circumstances, where another available remedy had not been used had been altered by rule of court 58.3(2), taken along with rule of court 2.1(1), so that the law now was that in judicial review proceedings the court could excuse a failure to pursue an alternative remedy if it arose by reason of mistake, oversight or other excusable cause. As Mr Bovey put it, rule of court 2.1(1) "has repealed the common law". Such a submission was previously advanced by Mr Bovey, and appears to have found favour with Lord Menzies, in Glasgow City Council, Petitioners, 2004 SLT 61. In that case Lord Menzies stated at para 25 that if he had held that proceedings had been wrongly raised under chapter 58 of the rules of court (instead of under chapter 53 or chapter 60) he should have had little difficulty in allowing the petitioners' motion for relief under rule of court 2.1(1) as the raising of proceedings under chapter 58 would in his view clearly have amounted to a mistake or other excusable cause in these circumstances. He went on to say at para 26 that he would not have been prepared to accede to the petitioners' proposition to the effect that exceptional circumstances existed which would have justified the court in exercising the power to intervene even where the appeal structure had not been used as there were no pleadings in the petition in that case to justify an argument for exceptional circumstances and no notice had been given to the respondent that such an argument was going to be advanced.
[39]In developing his submission based on rule of court 2.1(1), Mr Bovey referred to several recent authorities. In McDonald v Kwok 1999 SLT 593 Lord Macfadyen stated at page 595J: "It seems to me that the trend of recent authorities has been towards the view that it is always competent to invoke the dispensing power." Lord Macfadyen's use of rule of court 2.1(1) in that case to grant relief for a failure to lodge a summons for calling prior to the falling of the instance was overruled by the Inner House in the later case of Brogan v O'Rourke Limited 2005 SLT 29. In Colley v Celtic Pacific Ship Management (Overseas) Limited 2001 SLT 320 Lord Macfadyen had to decide whether rule of court 2.1(1) provided the court with power to relieve a party from the consequences of failure to serve a citation along with a summons. The question which arose was whether the failure was to comply with a requirement imposed by statute or one imposed by the rules of court. Lord Macfadyen held that as the failure in question was a failure to comply with the rules of court, and not with a requirement of statute, the dispensing power under rule of court 2.1(1) was available (see paras 12 and 18). In Brogan v O'Rourke Limited 2005 SLT 29 the Inner House held, overruling the decision of Lord Macfadyen in McDonald v Kwok, that rule of court 2.1(1) could not be used to relieve a pursuer from his failure to lodge the summons for calling prior to the falling of the instance. At page 36, para 28 Lord Reed stated as follows:
"In addition to the foregoing considerations, the background to the introduction of rule 2.1 appears to us to point away from interpreting it in the manner which was favoured in McDonald v Kwok. As we have mentioned, a dispensing power had been contained in the rules of court since 1934, but it could not apply to the rule providing for the instance to fall in the event that the summons did not call within the year following the expiry of the induciae, since that rule was contained in the Act of Sederunt of 1831. It was only in 1994 that the latter rule and the dispensing power were both made part of the same Act of Sederunt; and it was, therefore, only at that point that it became possible to argue that the power to relieve a party from the consequences of a failure to comply with 'a provision in these rules' was apt to apply to the falling of the instance. To interpret rule 2.1 as having effected such an important alteration to a settled rule of law would however conflict with the presumption of statutory interpretation, equally applicable in principle to subordinate legislation, stated in Maxwell on the Interpretation of Statutes (12th Ed.) at page 116: 'It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question'."
Undaunted by what Lord Reed had said in the above passage, Mr Bovey went on to submit that rule of court 2.1(1) did effect a substantial change in the procedure for judicial review and that it was quite clear that it could be used to excuse a failure to exhaust alternative remedies.
[40]Miss Maguire submitted that rule of court 58.3 simply restated the common law. The rules of court applied only to procedure in the Court of Session. The procedure rules of the IAT were not incorporated into the Rules of the Court of Session as, for example, the Sheriff Court Rules about marking appeals to the Court of Session had been, thus enabling the Court of Session in Graham v John Tullis & Son (Plastics) Limited (No. 1) 1992 SLT 507 to use the general dispensing power to grant an appellant relief to mark an appeal from the Sheriff Court out of time. That decision fell to be contrasted with the decision in the earlier case of GAS Construction Co Ltd v Schrader 1992 SLT 505, in which counsel had accepted that the relief being sought under the general dispensing power was from failure to comply with the relevant Sheriff Court Rule and did not argue that that rule had been incorporated into the Rules of the Court of Session. An interpretation of rule of court 2.1 diluting the requirement for exceptional circumstances to be demonstrated before the supervisory jurisdiction of the court could be invoked where an alternative remedy had not been used would in effect mean that the rules of court were altering the substantive law: Brogan v O'Rourke Limited at paras 25, 26 and 28. In Glasgow City Council, Petitioners, Lord Menzies had not considered the full implications of what he said about rule of court 2.1 and what he did say at paras 26 and 27 did not constitute a logical line of reasoning.
[41]Mr Bovey responded to Miss Maguire's submissions by submitting that rule of court 58.3 is not a rule of substantive law. The case of Graham was not a useful parallel with what had happened in the present case. Rule of Court 58.3 incorporated all remedies which had to be exhausted before the supervisory jurisdiction could be exercised. The question which arose was not one of a breach of a procedure rule of the IAT, but of a rule of the Court of Session. The problem arose only at the Court of Session stage.
[42]In my judgment the submission by Mr Bovey based upon rule of court 2.1(1) is misconceived. The requirement that alternative remedies be exhausted before resort is made to the supervisory jurisdiction of the court is part of the general law of civil remedies: it relates to what Lord President Hope in West described at page 404 as "the scope of the supervisory jurisdiction". The Rules of the Court of Session consist of the Act of Sederunt (Rules of the Court of Session) 1994 (SI 1994 No 1443) as amended, made under section 5 of the Court of Session Act 1988 and the various statutory provisions which are set out in Schedule 1 to the Act of Sederunt itself. The principal purpose of the rules is to regulate and prescribe the procedure and practice in various categories of causes in the court (section 5(a) of the 1988 Act). As Lord Reed pointed out in Brogan, the presumption of statutory interpretation that the legislature does not intend to make any change in the existing law beyond what is expressly stated in, or follows by necessary implication from, the language of a statute applies equally to statutory instruments. Yet Mr Bovey's submission involves treating rule of court 2.1(1) as having effected an important alteration in the general law requiring the exhaustion of alternative remedies before resort can be made to the supervisory jurisdiction: the rule that only in exceptional circumstances can resort be made to the supervisory jurisdiction where alternative remedies have not been exhausted has, according to him, been replaced by a rule that failure to exhaust alternative remedies can be excused if it is shown to be due to mistake, oversight or other excusable cause. In my opinion, rule of court 2.1(1) made no such alteration in the law. It was not competent for it to do so. There is no express reference in rule of court 2.1(1) to such an alteration in the law and it cannot be inferred by necessary implication. If it had the effect for which Mr Bovey contended, then the result would have been that it altered the scope of the supervisory jurisdiction, but, as Lord President Hope pointed out in delivering the Opinion of the Court in West, that was something which it did not and could not do. Moreover, it would also have enabled the court to grant a party relief from failing to pursue the statutory appeal provided by section 58(2) of, and para 22(1) of Schedule 4 to, the Immigration and Asylum Act 1999, and to comply with the requirements of the procedure rules. That also was something which it did not and could not do. I also consider it significant that there is no suggestion in Clyde & Edwards on Judicial Review, the leading modern Scottish textbook on judicial review, that rule of court 2.1(1) can be used in the manner contended for by Mr Bovey.
[43]I am therefore of the view that the law remains as it always has been, namely, that, where alternative remedies have not been exhausted, resort to the supervisory jurisdiction can be made only in exceptional circumstances. It follows that I do not share the view of Lord Menzies in Glasgow City Council, Petitioners about the application of rule of court 2.1(1) in the context of judicial review.
(iii)Were there exceptional circumstances?
[44]I now deal with the question whether, had it been necessary for me to consider the matter, I would have held that exceptional circumstances had been established in this case. I have narrated above at para 36 the factors upon which the petitioner relies in order to demonstrate exceptional circumstances. I now deal with each of these in turn.
[45]The first factor is said to be that the failure to raise the issue as to the return of the form and the adjudicator's error in determining the case without a hearing was due to a misunderstanding and breakdown in communications between the petitioner's immigration and legal representatives. I have already held, for the reasons set out above, that this has not been established.
[46]The second factor relied upon as constituting exceptional circumstances was that the nature of the fault of the petitioner's representatives is not so clear that the petitioner would have any clear remedy against a previous adviser, and financial compensation would be an inadequate remedy which in practical terms it would be impossible for him to pursue from abroad. On this point reference was made to several cases, which I now turn to consider.
[47]In J & C Black (Haulage) Ltd v Alltransport International Group Limited 1980 SLT 154 Lord Allanbridge allowed a proof before answer where decree by default had been taken against the pursuers through the negligence of their former solicitors and an action for professional negligence against the latter was not considered to be a satisfactory alternative remedy to reduction, it being averred that the pursuers had a substantial defence and counterclaim. In Bain v McConnell 1991 SLT 691 reduction of a decree was granted in a case where the defenders' agents had taken advantage of a fault by the pursuers' agents and it was accepted that the sheriff had acted ultra vires in pronouncing the interlocutor. Alagon v Secretary of State for the Home Department 1995 SLT 381 was an immigration case in which the petitioner's representative, a member of the United Kingdom Immigration Advisory Service, failed to advise her of her right of appeal against an adjudicator's refusal of her application, and Lord Prosser granted reduction, but there were other factors present in that case, not least that it was accepted that the adjudicator had done something which no reasonable adjudicator could have done. At page 388 Lord Prosser stated:
"It was not disputed that, generally speaking, a party would be responsible for his agent's failures, and could not invoke the fact that the failure was committed by an agent as a basis for avoiding its consequences. But that was indeed only the general position ... Provided that there were exceptional circumstances, and that reduction was necessary to produce substantial justice, it was clear.... that review and reduction could be permitted notwithstanding that there had been a failure to pursue other remedies, through a failure by either an agent or the party himself."
His Lordship went on to hold at page 389 that exceptional circumstances had been demonstrated on an overall basis, which included the fault of the representative. In Sangha v Secretary of State for the Home Department 1997 SLT 545 another asylum case, Lord Marnoch doubted the view of Lord Prosser in Alagon that the merits of the case could be considered before deciding whether exceptional circumstances existed sufficient to excuse a failure to pursue an alternative remedy. At page 550 he stated:
".... my own view is that, while it may be correct that there is no rigid or inflexible rule that a party is disabled from relying on the fault of his or her agent, the great weight of authority is antipathetic to their doing so."
Lord Marnoch went on to refer to "the general principle that a party and his or her agent should be treated as one". In Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876 the facts were that the applicant's solicitors sent a letter advising him of the date of his appeal to an adjudicator to his old address and he never received it. When the adjudicator sat to hear the appeal on the due date there was no appearance by either the applicant or his solicitor with a consequence that the adjudicator decided the appeal on the papers and dismissed it. The House of Lords, reversing the Court of Appeal, held that the loss of an opportunity to have an immigration case heard due to the fault of an adviser did not amount to either procedural impropriety or a denial of natural justice. At page 898E-G Lord Bridge of Harwich stated:
"These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter parties? I cannot discover any such principle and none has been suggested in the course of argument."
In Haile v IAT [2002] Imm AR 170 the Court of Appeal granted an application for judicial review of a decision of the IAT to refuse leave to appeal against the determination made by an adjudicator on the ground that fresh evidence had been produced to them which appeared to undermine the credibility finding and some other findings of the adjudicator. At page 176, para 26, Simon Brown LJ sought to distinguish the case from Al-Mehdawi on the ground that it was an asylum case and not a student leave case, as in Al-Mehdawi. He added that he thought aspects of Al-Mehdawi may in any event now require to be reconsidered in light of the speeches in the House of Lords in R v Criminal Injuries Compensation Board ex parte A [1990] 2 AC 330. In R ex parte M v IAT [2004] EWCA Civ 1731 the applicant sought a judicial review following upon the refusal by a single judge of his statutory review on the papers under section 101 of the Nationality, Immigration and Asylum Act 2002. Collins J held that it was an abuse of process for a claim for judicial review to be pursued after a statutory review had failed on grounds which were or could have been relied upon in the statutory review claim. His decision was upheld by the Court of Appeal, which held that the statutory regime, including statutory review of a refusal of permission to appeal, provided adequate and proportionate protection of the asylum seeker's rights but that judicial review remained open in principle in cases of justiciable errors not susceptible of statutory review.
[48]Having considered the cases referred to above, I am of the opinion, that in general, what has come to be known as representative error, or, in other words, the fault of an agent, is not a reason for invoking the supervisory jurisdiction. In my view the law was correctly set out by Lord Marnoch in Sangha when he said that the general principle was that a party and his or her agent should be treated as one and that, while it may be correct that there is no rigid or inflexible rule that a party is disabled from relying on the fault of his or her agent, the great weight of authority is nonetheless antipathetic to their doing so. Contrary to the submission of Mr Bovey, I see no reason why the principle of the decision of the House of Lords in Al-Mehdawi should not be applied in Scotland, and, contrary to the view of the Court of Appeal in Haile, I see no reason why the principle in that case should not apply to asylum cases. Mr Bovey emphasised that in Al-Mehdawi the fault of an adviser was founded on as amounting to either procedural impropriety or a denial of natural justice, and thus as the substantive ground of an application for judicial review, whereas in this case what was being said was that any remedy against the adviser would be inadequate, and exceptional circumstances therefore existed for invoking the supervisory jurisdiction. I think that the distinction which is sought to be made by Mr Bovey is a formal rather than a substantive one, and is for present purposes irrelevant. In both cases what the applicant for judicial review is seeking to do is to found upon the fault of his adviser in order to obtain judicial review of the decision in question. I do not think that it matters how he categorises that fault, and, in particular, whether he founds upon it as a substantive ground for judicial review or as a factor to be considered as constituting exceptional circumstances so as to permit the supervisory jurisdiction to be exercised where a statutory appeal has not been taken through the fault of his advisor.
[49]Mr Bovey also submitted that Al-Mehdawi had now to be considered in light of the later decision of the House of Lords in R v Criminal Injuries Compensation Board ex parte A. That was a case where a woman applied to the Criminal Injuries Compensation Board for compensation on the ground that she had been subjected to sexual assaults by two men who called at her house pretending to be CID officers. The Board considered, and refused, her claim in ignorance of the existence of a police doctor's report, the findings in which were consistent with one of the alleged sexual assaults and neither confirmed nor excluded the other. Moreover, a police officer who gave oral evidence before the Board misdescribed the doctor's findings. The House of Lords held that, in the absence of the police doctor's report, and as a result of the police officer's evidence, the Board had in a crucial respect been led to proceed on wrong evidence and had not had the true facts before it. Lord Slynn of Hadley accepted that there was ground to quash on the basis of material error of fact, but preferred to decide the matter on the alternative basis argued, namely, that what happened in the proceedings was a breach of the rules of natural justice and constituted unfairness. The other judges agreed, but Lord Hobhouse of Woodborough reserved his opinion on material error of fact being a ground for judicial review. Although the case of Al-Mehdawi was referred to in argument, it was not referred to in the speeches of any of their Lordships. In my view it is important to note that the case of A did not involve any failure on the part of an adviser or agent. Such fault as there was rested with an independent agency, namely, the police, who were in possession of the police doctor's report, and whose duty it was to furnish the Board with all relevant evidence. As Lord Slynn of Hadley remarked at page 345C "... the police do have a special position in these cases". The decision of the House of Lords in that case rested upon an error in the unusual procedure for evidence being disclosed to the Criminal Injuries Compensation Board which resulted in a breach of the rules of natural justice and constituted unfairness. Lord Slynn of Hadley stated at page 346A "it was not sufficient for the police officer simply to give her oral statement without further enquiry when it was obvious that the doctor was likely to have made notes and probably a written report." He went on to state at p.347B that
"on the special facts of this case and in the light of the importance of the role of the police in co-operating with the Board in the obtaining of evidence... there was unfairness in the failure to put the doctor's evidence before the Board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done".
Lord Nolan at p 348A-B thought that the features of the case to which Lord Slynn referred were "sufficiently disturbing to justify the exceptional course which he proposes". Accordingly, the House of Lords recognised that their decision in that case, which may in some respects be thought to be difficult to reconcile with the established law in this sphere, involved taking an exceptional course on the basis of its special facts. I think it is also important to note that the House of Lords was made aware of the content of the missing evidence and were able to consider whether it could have played a material part in the determination of the application. In the present case neither the nature nor the content of the "paperwork" which the petitioner was said to have been awaiting from Pakistan has ever been revealed, so it would not be possible to reach any view on whether it could have played a material part in the determination of the application. In my opinion the decision in A is not one which can be validly prayed in aid by the present petitioner.
[50]The decision in A was recently applied by the Court of Appeal in the immigration context in E v Secretary of State for the Home Department [2004] QB 1044, a case which involved new evidence becoming available after an appeal hearing had taken place before the IAT but before the IAT had promulgated its determination. Carnwath LJ, delivering the judgment of the court, stated at p.1071, para.66:
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
I emphasise the third requirement set out there by the Court of Appeal, namely, that the appellant (or his advisers) must not have been responsible for the mistake. At p.1076, para 83 Carnwath LJ described the decision in the case of Haile as involving "a straightforward case of unfairness caused by a mistake of fact, on a point which was uncontroversial and material to the decision" and that the court did not see it as supporting any departure, even in asylum cases, from the effect of the decision in Al-Mehdawi. It seems to me to be plain from the decision of the Court of Appeal in E that it accepted and applied the decisions of the House of Lords in both Al-Mehdawi and A and did not regard the earlier Court of Appeal decision in Haile as in any way departing from the authority of those decisions.
[51]In my opinion the effect of the decision in Al-Mehdawi is correctly and succinctly summarised in Macdonald's Immigration Law and Practice (5th Ed, 2001) in the following sentence:
"If an appeal was lost through fault of the legal representative and not the appellate authority or the Secretary of State, no judicial review will lie to challenge the determination of the appeal."
I do not think the principle there enunciated is restricted to a legal, as opposed to any other type of, representative and the word "legal" could easily be replaced by the word "applicant's", so that the term covers an immigration consultant acting on behalf of an applicant.
[52]In light of the view which I take of the effect of all the above decisions which I have sought briefly to analyse, I would not have held the second factor relied upon by the petitioner as constituting exceptional circumstances.
[53]The third factor relied upon by the petitioner in order to establish exceptional circumstances was that the merits of the substantive case are strong and of the first importance to the petitioner. I have held above that there are no merits in the substantive case.
[54]The fourth factor relied upon in order to establish exceptional circumstances is that the decision complained of proceeded upon the administrative and other errors condescended upon. This in effect amounts to a challenge to the content of para 2 of the adjudicator's determination. As I share the view of Lord Marnoch in Sangha (as opposed to that of Lord Prosser in Alagan) about the appropriateness of considering the merits of a case before first deciding as a separate matter whether exceptional circumstances exist sufficient to excuse the failure to pursue the alternative remedy, it is my view that Mr Bovey is not entitled to found upon this factor with a view to establishing exceptional circumstances, but, lest I be wrong about that, I now deal with the submission which he presented. He submitted that para 2 of the adjudicator's determination contained four cumulative failures of decision making - (1) his interpretation of procedure rule 43(1)(e); (2) his unawareness that the directions had been intimated to a previous, and not the current, representative of the petitioner; (3) his unawareness that the petitioner's absence was in compliance with the advice he had received from Mr Plancey; and (4) his unawareness that the reply form had in fact been returned. As I have already made a finding that the form was not returned, I shall say no more about the fourth alleged failure and proceed to deal with the other three.
[55]So far as concerns procedure rule 43(1)(e), Mr Bovey submitted that in proceeding under this particular rule the adjudicator had proceeded unfairly. His submission was that the adjudicator should have proceeded under procedure rules 33(2)(b) and 43(1)(f), noting that procedure rule 33(2) was "constrained" by procedure rule 33(1). Put shortly, if the adjudicator had proceeded under these other procedure rules he would have required to have considered the fairness of deciding the matter under procedure rule 43. It was apparent from what he said that he had not done that, as, according to Mr Bovey, he was required to do under procedure rule 33(1). He had not mentioned procedure rule 33 or dealt with the issues which he had required to address. He had proceeded on a misuse of rule 43(1)(e), which dealt with the situation where both parties had waived their right to a hearing, for example, where box B had been ticked in the reply form. On the material before him the adjudicator was not entitled to proceed under the procedure rule 43(1)(e), which had what Mr Bovey described as "no fairness filter", such as was contained in procedure rule 43(1)(f). Founding upon the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Anufrijeva [2004] 1 AC 604, Mr Bovey invited me to take a restrictive approach to the interpretation of procedure rule 43 so as to secure fundamental rights for the individual. In this case the application by the adjudicator of procedure rule 43(1)(e) deprived the petitioner of a hearing without the question of the fairness of doing so having been considered by the adjudicator and so deprived the petitioner of a fundamental right. Miss Maguire submitted that procedure rule 43(1)(e) laid down no requirement that both parties had to have waived a hearing before an adjudicator was entitled to proceed in terms of it. The system could not operate on the basis of waiver. Procedure rule 43(1)(e) proceeded upon the directions set out in the form which was sent to the petitioner. That form requested an appellant to state if he wished an oral hearing and he was informed that if he did not say that he wished an oral hearing there was a risk that he would not receive a hearing. A system based on waiver was totally impractical. Procedure rule 30(2) set out the overriding objective of the conduct of appeals, namely, to secure the just timely and effective disposal of appeals. In many cases an appellant did not wish an oral hearing as it would not be to his advantage. Nothing said by Mr Bovey detracted from the power and appropriateness of the adjudicator in this case having proceeded under procedure rule 43(1)(e). Procedure rule 33 dealt with a failure to comply with the rules, and, if the adjudicator had proceeded in terms of that rule, he could have dismissed the appeal without considering its merits by virtue of procedure rule 33(2)(a). The adjudicator was perfectly entitled to proceed to deal with the appeal on the basis of the information that he had. He could have dealt with the appeal without a hearing even if the reply form had been received by him as there was no indication on that reply form what the "paperwork" was which the appellant was waiting from Pakistan and to which issue in the appeal it related. Mr Plancey, if he had wished to do so, could have turned up at the pre-review hearing in order to provide specification of what the paperwork was. It could not be more clear that procedure rule 43(1)(e) applied in this case.
[56]In my opinion these submissions by Miss Maguire are correct. Procedure rule 43(1)(e) provides that an appeal may be determined without a hearing if no party has requested a hearing. On the information before the adjudicator at the pre-review hearing neither party had requested a hearing. Procedure rule 43(1)(e) does not require either express or implied waiver by the parties to the appeal being disposed of without a hearing. I can find nothing in the procedure rules which prevented the adjudicator from determining this appeal under procedure rule 43(1)(e).
[57]The fact that the adjudicator proceeded to determine the appeal without hearing under procedure rule 43(1)(e) is also, as I have mentioned earlier, founded upon as a substantive ground of challenge in this application for judicial review. The relevant averments are set out in statement 11 of the petition. It is there averred that the decision of the adjudicator to determine the appeal without a hearing in accordance with procedure rule 43(1)(e) was unreasonable. In answer the respondent avers that no complaint was made about this in the application for leave to appeal to the IAT and that the averments about it in the petition are incompetent and irrelevant. It is correct to state that the point now taken by the petitioner about the interpretation and application of procedure rule 43(1)(e) was not raised in the application for leave to appeal to the IAT. There are no averments in the petition setting out what would amount to exceptional circumstances so as to allow the point now to be taken in this application for judicial review, and nor are there any averments setting out why it would be appropriate to exercise the general dispensing power under rule of court 2.1(1). I agree that the petitioner's averments in statement 11 are therefore irrelevant. In any event, for the reasons given above, the substance of the point relating to procedure rule 43(1)(e) is unsound.
[58]The second alleged failure of the adjudicator at para 2 of his determination was that he was unaware that the hearing had been intimated to a previous, and not the current, representative of the appellant. Like Miss Maguire, I find this submission by Mr Bovey difficult to understand and I do not know what he intends should be made of it. As Miss Maguire correctly pointed out, the crucial fact was that the appellant had received the relevant forms. The point of the system was to ensure that either the party or his representative received the direction forms. The adjudicator was correct when he stated at para 2 that due notice of the time and place of the hearing had been sent to the appellant, including directions. I would also point out that Mr Plancey failed to comply with procedure rule 35(6) in that, when he began acting for the petitioner, he did not forthwith notify the appellate authority of that fact. The fact that he was acting for the appellant in the bail application, which constituted quite separate proceedings, was nothing to the point. Moreover, this submission ignores procedure rule 35(5), which provides that until the appellate authority is notified that the first representative has ceased to act by either the first representative or the party he was representing, any document served on the first representative shall be deemed to be properly served on the party he was representing. Accordingly, in this case the documents served on the IAS, who were the first representatives, are deemed to have been properly served on the petitioner.
[59]The third failure by the adjudicator at para 2 of his determination was said to be that he was unaware that the petitioner's absence was in compliance with advice from Mr Plancey. This, as I understand it, was correct and I do not see that anything can made of it on behalf of the petitioner.
[60]I am therefore of the view that there is no substance in the fourth factor alleged to constitute exceptional circumstances.
[61]The fifth factor founded upon as constituting exceptional circumstances was that the tribunal had in fact considered the issue in question, and, insofar as they had not considered it, they were at fault in not considering the IAA file, which would have disclosed the said errors. I fail to see how the IAA file would have disclosed the said errors: it would not have disclosed either that the reply form had been sent or that Mr Plancey was acting. The submission that the tribunal in fact considered the issue in question was based upon what was stated in para 3 of the IAT's determination of the application for leave to appeal. Miss Maguire submitted that para 3 was merely a narrative by the IAT of how the adjudicator had proceeded to make his decision: it was not a determination of the issue. The IAT was not considering any point about whether the reply form had been returned, whether intimation had been made to the wrong representatives or whether the adjudicator had erred in determining the appeal to him without a hearing under procedure rule 43(1)(e). Procedure rule 18(6) provided that the tribunal shall not be required to consider any grounds other than those included in the application for leave to appeal, but that rule was subject to the qualification set out in R v Secretary of State for the Home Department ex parte Robinson [1997] QB 929 that where there was an obvious point with strong prospects of success leave to appeal should be granted. Miss Maguire emphasised that the point had to be an obvious one and that the IAT were not obliged to scrutinize an adjudicator's determination in order to see if they could find some point in favour of an appellant.
[62]In my opinion it is not correct to say that the IAT considered the issue in question. I agree with Miss Maguire's description of para 3 of the IAT determination as mere narrative of the procedure which had been followed by the adjudicator. The IAT were not aware, and could not have been aware, that there was any issue about who was acting for the petitioner or whether the reply form had been returned. So far as procedure rule 43(1)(e) was concerned, I do not consider that it can be said that an obvious point with a strong prospect of success in an appeal was raised by the fact that the adjudicator had determined the appeal to him without a hearing under procedure rule 43(1)(e). I am therefore of the view that there is no merit on the fifth factor relied upon as constituting exceptional circumstances.
[63]The sixth factor relied upon as constituting exceptional circumstances is that by reason of the fault of others the petitioner has been denied an oral hearing at which he could explain matters that were concerning the adjudicator in relation to his asylum claim. This factor amounts to repetition of the first and second factors relied upon, and for the reasons which I have given in relation to those factors, I consider that there is no merit in it.
[64]Accordingly, having considered all the factors relied upon as constituting exceptional circumstances, both individually and cumulatively, I have reached the conclusion that, had it been necessary for me to decide the issue, I would have held that exceptional circumstances do not exist such as would entitle the petitioner to invoke the supervisory jurisdiction in relation to grounds of appeal not taken in the application for leave to appeal to the IAT. Further, if it be the case, contrary to what I have held above, that rule of court 2.1(1) applies, I would not have been prepared to grant the petitioner relief under that rule, essentially for the same reasons as I have held that exceptional circumstances do not exist.
(iv)Remedy
[65]Had the petitioner been for any reason successful in his application for judicial review, it would have been necessary for me to decide what remedy should be afforded to him. As full submissions were made on this point, it is appropriate that I should indicate what order I would have made had the petitioner been successful.
[66]The question which was addressed in submissions was whether the petitioner was entitled to reduction of both the determination of the IAT refusing leave to appeal and also the determination of the adjudicator, or to reduction only of the former. The submissions covered a review of the cases where different judges had expressed their opinions on this question. Mr Bovey invited me to reduce both determinations, whereas Miss Maguire stated that the respondent's position was that the court should grant reduction only insofar as it was necessary to do justice. She submitted that that meant that in the first instance the court should examine the decision of the IAT, and only in the event of a successful challenge to that decision would the court require to ask the question of whether it was necessary to go further than reducing that particular decision.
[67]In Irzekevikius v Secretary of State for the Home Department (14 July 1999, unreported) the petitioner sought reduction of the decision of the Secretary of State refusing his application for asylum, reduction of the determination of the special adjudicator and reduction of the decision of the IAT refusing leave to appeal, as well as declarator that all three decisions were unreasonable and wrong in law. Lord Macfadyen held that in the circumstances of that case the proper approach, if the petitioner were successful, would be to reduce only the decision of the IAT refusing leave to appeal. He set out the general principle which he considered should be applied in such cases at p 4 of his Opinion in the following terms:
"In my opinion this court, when called upon to exercise its supervisory jurisdiction, should interfere in the proceedings of subordinate tribunals only to such extent as is necessary to afford a proper remedy against excess or abuse of jurisdiction where none is otherwise available. In the present case, if it were shown that the Tribunal refused leave to appeal where such leave ought to have been granted, that would be ground for setting aside the refusal of leave. But once reduction of the determination refusing leave was granted, the application for leave would come before the Tribunal for determination de novo in light of the decision of this court. It is to be expected that that would ordinarily result in leave being granted. The procedure would then be restored to the position in which it would have been if the error which justified this court's intervention had not occurred. I am therefore of opinion that the proper and only remedies to which the petitioner may be entitled in this process are declarator of the invalidity of the Tribunal's determination refusing leave to appeal, and reduction of that determination."
I was advised that, although the Inner House reversed the decision of Lord Macfadyen to dismiss the petition, there was no criticism of what he said on this point. I would mention in passing that I see no point whatsoever in seeking declarator that a decision was unreasonable and wrong in law in addition to reduction of the decision in question. In my view such a declarator is futile and ought not to be pronounced: see the observations of Lord Fraser in Brown v Hamilton District Council 1982 SC (HL) 1 at p 46.
[68]In Saha v Secretary of State for the Home Department (13 February 2003, unreported) the petitioner sought reduction of both the determination of the special adjudicator and the determination of the IAT refusing leave to appeal. At para 10 of his Opinion Lord Emslie stated:
"In response, counsel for the respondent began by submitting that, even if the petitioner's submissions were well founded, the only decision that was properly before the court, and thus the only decision that I could properly reduce, was the tribunal's refusal to grant leave to appeal. No authority was cited for this proposition, and I was not immediately attracted to the idea that (on the stated hypotheses) the court had no option but to leave standing a flawed decision on the substantial merits of the petitioner's application for asylum, and concentrate solely on a later decision on the limited issue of leave to appeal. As it seemed to me, any fresh consideration of the latter issue would inevitably be affected by the nature and terms of the substantive decision left standing, and for obvious reasons this might be seriously prejudicial to the petitioner's interests. The petitioner's real complaint was directed against the Special Adjudicator's determination, and it was that determination that he had intended to bring under review after exhausting his statutory remedies by seeking leave to appeal. However, since I was not fully addressed in this issue by either party, I intimated that in the event of my finding in the petitioner's favour I would require to hear further submissions as to the proper scope of the order to be pronounced by the court."
[69]In Elabas v Secretary of State for the Home Department (2 July 2004, unreported) Lord Reed stated as follows at para 20:
"It appears to me to be necessary to distinguish in the first place between those matters which were before the tribunal and those which were not. In relation to the former matters the primary question for the court is whether the tribunal's decision is invalid and should be quashed. In the event that that question were answered in the affirmative, a secondary question might be whether that remedy was sufficient, or whether it was also appropriate to quash the decision of the adjudicator. In relation to matters which were not before the tribunal, on the other hand, one question for the court is whether it should exercise its supervisory jurisdiction, notwithstanding the failure to pursue those matters by means of a statutory appeal. In the event that that question were answered in the affirmative, a second question would be whether the adjudicator's decision was invalid and should be quashed."
[70]In Berk v Secretary of State for the Home Department (9 December 2004, unreported) Lord Brodie stated at p 8 that, when coming to consider whether it should exercise its supervisory jurisdiction in a case such as the present, the court requires to start with a determination of the tribunal and whether its refusal of leave was lawful as any other approach risked confusion as to exactly what the court's jurisdiction comprised. He then recorded a concession by counsel for the petitioner that, should his submissions be upheld, it would be sufficient for the court to give effect to that decision, and consistent with its purely supervisory jurisdiction, simply to reduce the tribunal's determination, thereby leaving it open to the petitioner to make a further application for leave to appeal. He added that there may be cases where, as envisaged by Lord Reed in Elabas, reduction of a refusal of leave might not be a sufficient remedy, but the parties in that case were agreed that it was not such a case.
[71]In the English case of Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173, which was decided by the Court of Appeal on 14 February 2002, Turner J at first instance quashed the determination of the adjudicator and the determination of the IAT refusing leave to appeal. Schiemann LJ, delivering the judgment of the court, mentioned this fact and stated at para 8:
"Normally the only determination which is subject to being quashed in a case such as this is the determination of the tribunal. Sometimes cases occur where all parties agree that the determination of the adjudicator should also be quashed. In the absence of such an agreement it will normally be right to quash the decision of the tribunal and remit the case to it, thus leaving the future conduct of the case in the hands of the tribunal."
[72]Mr Bovey, in elaboration of his general position, submitted that the approach of Lord Macfadyen in Irzekevikius was too rigid. Lord Macfadyen did not say the court did not have jurisdiction to reduce the adjudicator's determination, but only that as a matter of policy it should not do so. The difficulty in practical terms arose if the IAT refused leave to appeal for a second time after the case was remitted to it, in which event there may be a need for a second application for judicial review. If only the decision of the IAT were reduced, the result was that the Supreme Court was left seeking to persuade the IAT of the error of its ways. Where the court thought that both the adjudicator and the IAT had gone wrong, it should reduce both determinations, although it was possible, depending on the circumstances, to reduce only the IAT's determination. There was no real advantage to a petitioner in both determinations being reduced. So far as the present case was concerned, the petitioner had been deprived of his right to a hearing before an adjudicator and the correct approach was to reduce both determinations so as to give him the right to a hearing before an adjudicator.
[73]Miss Maguire developed her submission by pointing out that in the case of Saha Lord Emslie, whose remarks on this point differed from those of the judges in the other cases mentioned, had not been referred to the earlier decisions of Lord Macfadyen in Irzekevikius or of the Court of Appeal in Maheshwaran and that he stated he was not fully addressed on the issue by either party and that in the event of his finding in the petitioner's favour he would require to hear further submissions on the proper scope of the order to be pronounced by the court. Lord Emslie had therefore not expressed any concluded view on the issue. She relied upon the above observations of Lords Macfadyen, Reed and Brodie and drew attention to the very wide powers conferred on the IAT by the procedure rules to correct an error made by an adjudicator. Procedure rule 21 enabled the IAT to grant leave to an appellant to vary his grounds of appeal. Procedure rule 22(2) provided that the IAT may, of its own motion or in the application of any party, consider evidence further to that which was submitted to the adjudicator. Procedure rule 23 enabled the IAT to remit the case to the same or another adjudicator for determination by him in accordance with any directions given to him by the IAT where it considered that it was necessary in the interests of justice and that it would save time and avoid expense: otherwise it had to determine the appeal itself. Accordingly, if the petitioner were to be successful and only the determination of the IAT were to be reduced, the IAT would have very wide powers to deal with the matter.
[74]It is, in my opinion, necessary when considering the question of the remedy to be granted in this type of case, to look at the question in light of the fundamental nature of the supervisory jurisdiction. This was explained by Lord Shaw of Dunfermline in the House of Lords in Moss's Empire v Assessor for Glasgow 1917 SC (HL) 1 at p 11 in the following terms:
"It is within the jurisdiction of the Court of Session to keep inferior judicatories and administrative bodies right, in the sense of compelling them to keep within the limits of their statutory powers or of compelling them to obey those conditions without the fulfilment of which they have no powers whatsoever. It is within the power of the Court of Session to do that, but it is not within the power or function of the Court of Session itself to do work set by the legislature to be performed by those administrative bodies or inferior judicatories themselves."
It seems to me that the observations of Lords Macfadyen, Reed and Brodie in the cases referred to above accord with that statement of principle, whereas the unaided observations of Lord Emslie do not. In other words, while the supervisory jurisdiction of the Court of Session must ensure that the exercise of power by an "inferior judicatory" is kept within the limits of its statutory powers, what it must not do is to take over itself the exercise of those statutory powers, which are conferred by Parliament solely upon the "inferior judicatory". Parliament has conferred upon the IAT an appellate jurisdiction over determinations of adjudicators, and in the exercise of that jurisdiction the IAT has the wide powers referred to above. It is not for the Court of Session, in the purported exercise of the supervisory jurisdiction, to exercise the statutory appellate jurisdiction of the IAT. In my opinion, where there has been a determination by an adjudicator followed by a refusal by the IAT of leave to appeal against that determination, then the court should reduce both determinations only in a case where, if only the refusal by the IAT of leave to appeal were reduced, it would for some reason not be open to the IAT to correct an error in the adjudicator's decision. As at present advised I find it difficult to envisage how such a situation could arise. In the present case Mr Bovey laid great stress on the point that the petitioner had been deprived of an oral hearing by the adjudicator and submitted that it was necessary that the adjudicator's determination should be reduced by the court so that he could obtain an oral hearing before another adjudicator. The answer to that submission, in my opinion, is that, if Mr Bovey is correct, it would be open to the petitioner to obtain the necessary remedy from the IAT in the event of their refusal of leave to appeal being reduced as under procedure rule 23 it could either itself grant the petitioner a hearing or remit to another adjudicator for determination by him in accordance with directions given by it. If appropriate, it could also allow the grounds of appeal to be varied or consider evidence further to that which was submitted by the adjudicator.
[75]Accordingly, as I cannot envisage any situation in which, had I been in favour of the petitioner on any ground of challenge set out in the petition, it would not have been open to the IAT, on its refusal of leave to appeal being reduced by the court, to afford the petitioner an adequate remedy, I would have granted reduction of only the determination of the IAT to refuse leave to appeal.
DECISION
[76]For the reasons given above I am of the opinion that there is no merit in any of the grounds of challenge set out in the petition. I shall therefore sustain the pleas-in-law for the respondent, repel the pleas-in-law for the petitioner and dismiss the petition.