R v. Secretary of State for the Home Department, Ex parte Mubiru

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	20 June 1994
Citation / Document Symbol	[1994] Imm AR 516
Cite as	R v. Secretary of State for the Home Department, Ex parte Mubiru, [1994] Imm AR 516, United Kingdom: High Court (England and Wales), 20 June 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63118.html [accessed 4 November 2019]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MUBIRU

Queen's Bench Division

[1994] Imm AR 516

Hearing Date: 20 June 1994

20 June 1994

Index Terms:

Political asylum -- appeal -- notice of hearing properly served -- no appearance by appellant -- no reason for absence given to adjudicator -- representative's application for adjournment refused -- whether adjudicator entitled to proceed in absence of appellant -- application for leave to appeal to the Tribunal inter alia on ground that adjudicator should have granted an adjournment -- no reason for appellant's absence put forward in grounds of appeal leave to appeal refused -- whether Tribunal's approach could be faulted. Immigration Appeals (Procedure) Rules 1984 r 34.

Held:

The applicant for leave to move for judicial review was a citizen of Uganda. He had appealed to a special adjudicator against the refusal of the Secretary of State to grant him asylum. On the day of the hearing he did not appear: there was no explanation for his absence.

The adjudicator refused an application by his representative for an adjournment. She determined the appeal in the appellant's absence and dismissed the appeal.

Application was made for leave to appeal to the Tribunal. One ground was the failure of the adjudicator to grant an adjournment. No reason for the absence of the appellant at the hearing before the adjudicator was then put forward. On that basis leave to appeal was refused.

Held

1. The adjudicator acted within her powers in proceeding as she did to hear the appeal in the absence of the appellant.

2. The Tribunal was entitled to deal with the application on the papers and if the grounds before it did not on the face of it give rise to arguable points, was entitled to refuse the application on the papers and with no redress.

3. Albeit the procedure might appear draconian, the time-limits imposed by Parliament on asylum appeals procedures had to be borne in mind.

Counsel:

Y Serugo-Lugo for the applicant; R Jay for the respondent

PANEL: Brooke J

Judgment One:

BROOKE J: In this matter Asuman Mubiru applies for leave to apply for judicial review in relation to a decision made first by a special adjudicator and then by the Immigration Appeal Tribunal, in relation to the handling of his asylum appeal. He came to this country in June 1993. He was then nearly 27 years old. He is a single man, a Ugandan, and he applied for asylum. His asylum application was turned down on 30 November 1993 in a considered letter.

He appealed against the refusal of asylum and under the new procedures, by which a special adjudicator hears such appeals, the matter came before Mrs Drew, a special adjudicator at Hatton Cross on 24 April 1994. She records:

"At the hearing the appellant was represented by" [counsel instructed by solicitors.] [Counsel] "indicated that he did now know why the appellant had not attended the hearing and that he had been instructed only the day before the hearing and was proposing to take instructions from the appellant at court. He asked that the hearing should be adjourned. I refused the application to adjourn and counsel withdrew his representation.

I am satisfied that due notice of the time and the place of the hearing was given to the appellant and there was no explanation for his non-appearance".

She therefore heard the appeal in the absence of the appellant under the provisions of rule 34 of the Immigration Appeals (Procedure) Rules 1984, as amended by rule 25 of the Asylum Appeals (Procedure) Rules 1993.

Mr Robert Jay, for the respondent, has drawn my attention to those rules, and it appears clear that it was well within Mrs Drew's powers under those rules to act as she did after she was satisfied of the matters to which she referred. She proceeded to consider the issues in the absence of the appellant and dismissed the appeal.

Under this procedure leave to appeal to the Tribunal has to be made within five days of an adverse decision. Short grounds were submitted in support of the application, and the first of them was that the learned adjudicator erred in law by proceeding to consider the appeal in the absence of the appellant, even though an adjournment was requested. There were three other matters on which nothing turns today, and the Vice-President of the Tribunal in a written determination of 25 May said this:

"No explanation was offered to the adjudicator for the applicant's non-appearance and there is none before the Tribunal. There is therefore no ground for challenging the adjudicator's decision not to adjourn."

He considered that there was nothing arguable in the rest of the decision.

Mr Mubiru, in an affidavit sworn on 16 June, avers in paragraph 7:

"That the Office of Deputy Inspector of Government referred to para 6 of the letter of refusal was neutralised when the holder of the office, Waswa Lule, was instantly dismissed for criticising the Government over human rights abuses in the North of Uganda. I went to see my barrister and he advised that proof of this dismissal was vital for the success of my appeal. That is why I thought the case was being adjourned to get this evidence. Instead the case was heard in my absence. I tried to get to the court but by the time I got there the case had been heard already. I appealed but leave was refused".

Mr Serugo-Lugo first applied to this court for an adjournment on the grounds that he had only been instructed late on Friday afternoon. He wanted to have the opportunity to perfect the grounds of application and he wanted to have the opportunity to consult legal authorities. I refused that application on the basis that this appeared to me to be a fairly short point on the proper construction of the regulations, and that with experienced counsel in front of me, there would be no injustice if I proceeded to hear argument on this fairly short point straight away.

I have great sympathy for Mr Serugo-Lugo's client if the matters set out in paragraph 7 of his affidavit are correct. On the other hand, I must remind myself that this court has only a supervisory jurisdiction, that Parliament has created this new procedure for dealing with asylum appeals with very short time-limits, and has approved a procedure, unlike the procedure which obtains in this court, that matters can be dealt with on paper by those in the Immigration Appeal Tribunal, and that if what appear on paper as the grounds of the application do not appear on the face of it to give rise to arguable points, the Tribunal is entitled to refuse the application on paper with no redress.

In those circumstances, it appears to me, though I am anxious about the position, that Mr Robert Jay is correct when he submits that this court has no jurisdiction to interfere. The procedure before the special adjudicator, which gives her the power to proceed in the absence of the appellant, is clearly set out in the rules under statutory authority, and the procedure for appeals to the Immigration Appeal Tribunal is clearly set out in the rules. On the face of it, it appears to be a draconian arrangement by which a point like this, which has not been adequately explained before the matter is disposed of on paper, cannot be argued or alluded to thereafter, but it appears to me, unfortunate though the result is, that that is the law, and in these circumstances I can see that there is nothing properly arguable in this application, and I therefore refuse leave.

DISPOSITION:

Application refused

SOLICITORS:

Kibedi & Co, London SE13; Treasury Solicitor