Hassan v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	8 June 1994
Citation / Document Symbol	[1994] Imm AR 482
Cite as	Hassan v. Secretary of State for the Home Department, [1994] Imm AR 482, United Kingdom: Court of Appeal (England and Wales), 8 June 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b66d20.html [accessed 27 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

HASSAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 482

Hearing Date: 8 June 1994

8 June 1994

Index Terms:

Political asylum -- refusal by Secretary of State -- notice of appeal lodged -- former address of applicant given in notice -- notice of hearing sent to that address and to representative -- notice of hearing asserted not to have been received by applicant -- no appearance before adjudicator by applicant or representative -- appeal determined in absence -- no appeal to Tribunal lodged in time -- whether proper notice served -- whether when no one appeared before the adjudicator the immigration authorities had a duty to check that the notice had been sent to the latest address known to the immigration authorities -- whether applicant had redress for alleged negligence of his representative. Immigration Appeals (Procedure) Rules 1984 rr 34(2), 44(1)(e).

Held:

Renewed application for leave to move for judicial review following refusal by Morison J. The applicant was a citizen of Sierra Leone whose application for asylum had been refused by the Secretary of State. The applicant nominated a representative and a notice of appeal to a special adjudicator was lodged. The applicant's address on that form was an old address at which, on the date of lodging of the appeal, he was no longer residing.

In due course the notice of hearing was sent to the applicant at the address on the notice of appeal and to his representative. The applicant subsequently stated that he did not receive that notice. Neither the applicant nor his representative appeared before the adjudicator. The appeal was determined and dismissed in the applicant's absence. No appeal was lodged with the Tribunal in time.

In seeking judicial review counsel argued that the applicant had been denied natural justice and the fault lay with his then representative.

Held

1. Following Al-Mehdawi the applicant could not seek redress by way of judicial review where it was the default of his nominated representative that had led to his appeal being determined in his absence.

2. The notice of hearing was sent in accordance with the rules to the address put forward in the notice of appeal.

3. When no one appeared before the adjudicator there was no duty on the immigration authorities to check that the notice of hearing had been sent to the latest address known to the immigration authorities.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Shahib Al-Mehdawi [1990] 1 AC 876: [1990] Imm AR 140.

Counsel:

L Daniel for the applicant; I Burnett for the respondent

PANEL: Dillon, Steyn, Waite LJJ

Judgment One:

DILLON LJ: This is a renewed application for leave to move for judicial review in an immigration case. An earlier application was refused in the Queen's Bench Division by Morison J. The present application is made by Mr Daniel on behalf of Mr Mohammed Hassan. He is a citizen of Sierra Leone. He arrived at Heathrow on 13 January 1994 seeking entry to this country as a business visitor. His flight had brought him via France and he had spent some three hours on the ground in France pending transit on. He was without any entry clearance or visa to permit his entry, but advance entry clearance was not mandatory. However, in the circumstances of his case, he was refused leave to enter as a business visitor. He would have been entitled to challenge that, but only after leaving this country.

His removal to Sierra Leone was consequently scheduled to take place on 15 January, but two hours before the scheduled time of removal he claimed political asylum here, owing to conditions in Sierra Leone. There followed the usual interviews and substantive consideration of his claims.

The upshot of those was a letter from the Immigration Department, which is dated 28 January 1994, in which reasons are given for the conclusion of the Secretary of State that he did not qualify for political asylum. They included not merely that he had not made any claim to asylum while staying for three hours in France or on his initial arrival in the United Kingdom, but also that he had been able to leave Sierra Leone using a properly issued Sierra Leonean passport in his own name, issued only last summer. The letter considered that the circumstances did not suggest that people in Sierra Leone were likely to persecute him, or were looking for him, or that the risks in Sierra Leone, where there had recently been a general amnesty, were such as to pose any danger to him.

It seems likely that that letter would have been handed to the applicant on 4 February 1994 at Heathrow. That is conjecture from certain of the documents that we have.

It appears that, while his application for asylum was being considered, the applicant found accommodation in a flat at number 36 Mornington Crescent London NW1. He also found an adviser, a Mr Timbo, of 86d Camberwell Road, London, SE5.

The accommodation in Mornington Crescent seems, however, to have been regarded as only temporary accommodation, and he also made arrangements to take a flat in a property at 59 Elswick Road, London, 5E13. That was to be with effect from 4 February 1994.

On 4 February he was supplied with the Form IS96, signed by an immigration officer, which set out, first of all, that he was a person who was liable to be detained. But his further temporary admission to the United Kingdom was authorised subject to restrictions, one of which was that he must reside at 59 Elswick Road, and a second was that he should report to Heathrow Terminal 2 Immigration Office at 5.20 in the morning on 23 February, 1994. It was made clear in the usual form that he had not been given leave to enter the United Kingdom within the meaning of the Immigration Act. Since he was thus refused leave to enter for political asylum he had, under the 1993 rules, a very limited time to appeal to a special adjudicator.

A form of appeal was launched. This sets out the particulars of the applicant. It bears what purports to be his signature against the date 5 February 1994. It gives Mr Timbo as the person who will help prepare or present the appeal, and Mr Timbo's address, and telephone and fax numbers. It gives very brief grounds of appeal. The signature may in fact have been signed by Mr Timbo for Mr Hassan.

What the notice of appeal also does is to give as his address the flat in Mornington Crescent which, by 5 February, had ceased to be his address. That form of notice of appeal to a special adjudicator was served on the Chief Immigration Officer at Heathrow, who had countersigned it on 9 February 1994.

Following that, the files were transmitted to the special adjudicator by the immigration authorities on 8 March 1994. On 11 March 1994 notices appointing 6 April as the date for the hearing of the appeal were sent by the immigration service to Mr Timbo at his address in Clerkenwell Road by recorded delivery and, likewise by recorded delivery, to the applicant himself at the address which had been given in the form in Mornington Crescent. That notice did not reach the applicant, although it was not returned to the immigration service who had sent it out.

Moreover, on the date appointed for the hearing, 6 April 1994, Mr Timbo did not turn up for the hearing although he had had notice. Nor did he give any explanation why he would not be there. In those circumstances the special adjudicator decided to exercise his power under paragraph 34(2) of the 1984 Immigration Appeals (Procedure) Rules which were made applicable by the 1993 rules, to proceed with the hearing of the appeal in the absence of the appellant being satisfied that notice of the time and place of the hearing had been given as required by the rules.

The decision of the special adjudicator duly sets out, at the beginning, that the letters had been sent by recorded delivery and had not been returned. The special adjudicator's conclusion was that the appellant had failed to discharge the burden of proof and, for the reasons given by the Secretary of State, the adjudicator found that the appellant did not qualify for asylum under the provisions of the Geneva Convention. The appeal was therefore dismissed.

A copy of the special adjudicator's written determination was sent out on 20 April 1994 to Mr Timbo at Camberwell Road. In due course that reached Mr Hassan, the applicant. The notice enclosing the decision indicated the procedure to apply for leave to appeal to the Immigration Appeal Tribunal, but no application was launched within time. In fact, having learned that his appeal had been heard in his absence, and in the absence of Mr Timbo, the applicant not surprisingly dispensed with the services of Mr Timbo. Another representative was briefly instructed, but took no further action before the solicitors now acting came on the scene.

There is no power to extend the time limit for applying to the Immigration Appeal Tribunal for leave to appeal under the 1993 rules.

There are, however, two slightly strange matters which occurred in the time when the appeal to the special adjudicator was pending. The first is that there is a further form IS96, which is produced by the applicant, dated 25 February 1994, authorising his further temporary admission to the United Kingdom subject to a condition not only as to reporting to an immigration officer at Heathrow at a date and time to be notified, but as to residing at the flat in Mornington Crescent, the number of the house in Mornington Crescent being omitted. There is then a further form IS96, dated 1 March 1994, which reverts to authorising further temporary admission subject to the condition as to residing at 59 Elswick Road London SE13 7SP where Mr Hassan was actually residing. How those two came to be issued and how they came to the applicant's hands is a matter for speculation.

Mr Burnett has drawn our attention to the provisions as to notices in the 1984 rules, which are incorporated in the 1993 rules, which provide that any notice or other document required or authorised by those rules to be sent or given to any person may be sent in a registered letter or by the recorded delivery service or delivered:

"(e) in the case of a document directed to any person other than the Tribunal or an adjudicator or the Secretary of State or other officer to his address for service specified in any notice given under these Rules or to his last known or usual place of abode. A notice if sent or given to a person representing a party to an appeal in accordance with Rule 26 shall be deemed to have been sent or given to that party."

Mr Burnett submits that the sending of the notice of the hearing date to the address which the applicant had himself given in his notice of appeal was thus a valid service of the notice giving the hearing date. As I see it, it is established by the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, that insofar as the applicant had been deprived of the opportunity of having his appeal before the special adjudicator heard in the presence of himself and his adviser because of the default of his own adviser to whom he had entrusted the conduct of his case, he has no ground of complaint in law that he has been the victim of procedural impropriety, or that natural justice has been denied him.

Equally, in my judgment, he cannot complain because he himself, or if he did not sign it personally, his representative on his behalf, erroneously represented in the notice of appeal of 5 February that his address was the Mornington Crescent address. It seems that there has been an unfortunate bit of carelessness in the filling up of the form in that when he moved to the Elswick Road property he failed to see that that address was put on the notice of appeal. It may be it was simply that the move overtook a form of notice of appeal which had been correctly drawn in the first place, but the facts had changed by the time it was issued.

I cannot see that the failure to have given the correct address has led to any matter of which he is entitled to complain.

Mr Daniel, in his very clear presentation of the applicant's case, has urged that there was a duty on the immigration authorities to check, when no one else turned up at the hearing before the special adjudicator, that service had indeed been to the latest address known to the immigration authorities, namely 59 Elswick Road.

I cannot think that there was any such obligation in the face of the provisions of rule 44. Undoubtedly if anyone had spotted that the notice had been sent to a wrong address steps could have been taken to ensure that there was an adjournment or a new appointment. I do not accept that the applicant has any right to a new appointment. The special adjudicator acted properly in the circumstances. There was no fault on his part or, in my view, on the part of the immigration authorities.

Whether or not asylum should be granted to the applicant is a matter which the Secretary of State and his advisers are reconsidering. I do not need to say any more about that. It is not the immediate ground on which this application is made, which is the difficulty about the address and the fact that the applicant had no actual notice of the hearing before the special adjudicator which his then adviser failed to attend.

I see no basis for granting leave to move for judicial review on the grounds which have been put before us today.

Judgment Two:

STEYN LJ: I agree.

Judgment Three:

WAITE LJ: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Procaccini & Co, London, SW9; Treasury Solicitor