Practice and Procedure


PUBLISHED July 30, 2003

Where, in a claim for asylum, the Home Office had failed to comply with procedures and directions, there was no reason to allow an appeal without consideration of its merits under r.33(2)(a) Immigration and Asylum Appeals (Procedure) Rules 2000 SI 2000/2333, given that there had been an adjournment for the claimant to consider the reasons for refusal and the appeal could be heard without causing injustice.Appeal from the decision of the Immigration Appeal Tribunal ('IAT') to dismiss the applicant's appeal from the decision of an adjudicator who refused an application to allow the appeal, without consideration of its merits, under r.33(2)(a) Immigration and Asylum Appeals (Procedure) Rules 2000 SI 2000/2333 and renewed application to appeal from the IAT's dismissal of the applicant's appeal from the decision of the adjudicator to refuse asylum. The applicant ('B') was an Algerian medical practitioner who was approached by the GIA to steal medicines. He refused, fled to the UK and claimed asylum on the basis of his fear of ill-treatment and torture by the GIA and reprisals from the Algerian police if he returned. The Home Office refused asylum on 8 June 2000. There were repeated failures by the Home Office to comply with procedure and directions from the adjudicator and the case was adjourned several times to allow compliance. Eventually directions were issued that all parties attend a hearing on 13 November 2001. No presenting officer attended; there was merely a letter that placed reliance on the reasons for refusal letter but did not state to which reasons letter it referred. B made an application under r.33 on the basis of the overall history of the case. The adjudicator adjourned the case to 28 January 2002 and issued further directions. The Home Office did not comply with the directions but merely turned up on the specified date, identified which refusal letter was relied on and opposed the r.33 application. The adjudicator dismissed the r.33 application and dismissed the claim for asylum. The IAT dismissed the appeal. B appealed on the grounds that, given the repeated failures by the Home Office, the adjudicator should have allowed the application to allow the appeal without considering its merits.HELD: (1) Rule 33(1) gave special powers of disposal if "it was necessary to have regard to the overriding objective in r.30(2)". There was obviously an error in the drafting of r.33(1) as an overriding objective was always relevant and the rule should have read "to do so having regard to the overriding objective". (2) Rule 33 called for an exercise of judgment. Firstly, the procedural failures to which the rules related had to be identified. It then had to be considered to what extent those failures obstructed the overriding objective. There was a potential tension between the overriding objective of the timely disposal of an appeal and the just disposal of an appeal. The ultimate question was whether justice required the steps in r.33(2)(a) to be taken whereby an appeal could be allowed without considering its merits. (3) To allow an appeal without considering its merits would be self-defeating. It could correspond with the overriding objective to allow a viable claim to go through but not if a case was bound to fail. The adjudicator had addressed the rule with care and treated the matter as one of judgment and not discretion. It was possible to recognise the material difference between the situation where repeated failures made a fair hearing impossible, for example in Vahid Razi (IAT) 2001/TH/01836, and where it was still feasible to try the appeal without further injustice. The adjudicator took the latter view and there was no flaw in that decision. Once the reasons letter was identified and the adjudicator was satisfied that B had had an opportunity to consider it there was no reason to allow the appeal without considering its merits.Appeal dismissed and renewed application refused.