UK - Court of Appeal, 23 January 2003, FP (Iran) & MB (Libya) v Secretary of state for the Home Department, [2007] EWCA Civ 13
UK - Court of Appeal, 23 January 2003, FP (Iran) & MB (Libya) v Secretary of state for the Home Department, [2007] EWCA Civ 13
| Country of Decision: | United Kingdom |
| Country of applicant: | Iran Libya , |
| Court name: | Court of Appeal |
| Date of decision: | 23-01-2003 |
| Citation: | [2007] EWCA Civ 13 |
Keywords:
| Keywords |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
Headnote:
Fairness requires that an applicant in a protection claim is not bound by the procedural error of his legal representative. Procedural rules should not result in unfairness to asylum seekers.
Facts:
The two applicants had both failed to attend re-hearings of their appeals against the refusal of asylum as a result of failures on the part of their respective representatives. Their appeals were heard in their absence and dismissed.
They were both granted permission to appeal to the Court of Appeal. The question of law was whether the material rule could be construed so as not to promote or sanction unfairness. If it could not, then was the rule ultra vires.
They were both granted permission to appeal to the Court of Appeal. The question of law was whether the material rule could be construed so as not to promote or sanction unfairness. If it could not, then was the rule ultra vires.
Decision & reasoning:
The decision required close reading of the Asylum and Immigration Tribunal (Procedure Rules) 2005 (SI 2005/230).The Lord Chancellor was empowered by primary legislation in parliament to issue and amend such rules as a Statutory Instrument. The Rules included a statement of the overriding objective which in the words of Lady Arden “reflects the tension in asylum proceedings between the public interest and the interest of fairness to applicants.”
The Court then went on to consider the Rules as they were framed in 2005. The common law tests for the legality of delegated legislation were considered and the conclusion reached that the Rules led to unfairness or “irremediable procedural unfairness” .
The effect of the relevant rules was that an applicant who had personally done nothing wrong may have found that she had lost an appeal of which she knew nothing about and might have won, had she been present.
The Secretary of State for the Home Department submitted that where the applicant’s absence was beyond her control but equally not the result of an administrative error on the part of the Tribunal, the applicant could seek judicial review or apply for permission to appeal on the basis of new facts. The Court rejected these submissions. The important question was what would happen to an applicant whose representative had been responsible for the error.
The Secretary of State submitted that application of the House of Lords decsion in R v Home Secretary ex parte Al Medhawi meant that the applicants had no legal remedy. The relevant paragaph was cited in the judgements:
‘A party to a dispute who has lost the opportunity to have his case heard through the fault of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been a victim of 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 partes? I cannot discover any such principle and none has been suggested in the course of argument." (per Lord Bridge, with whom the other members of the House agreed, at 898. )
The Court of Appeal held that Al Medhawi could be distinguished on the basis of more recent relevant decsions and not least because of the difference between an immigration case and a case involving asylum and Art 2 and 3 of the European Convention on Human Rights (ECHR) as opposed to private law. There was no general principle of law which fixed the applicant with the procedural errors of her representative.
The Court then went on to consider the Rules as they were framed in 2005. The common law tests for the legality of delegated legislation were considered and the conclusion reached that the Rules led to unfairness or “irremediable procedural unfairness” .
Outcome:
Both appeals were allowed.
Observations/comments:
Although the procedure rules for England and Wales have been changed since 2005, the finding that the applicant and representative should not be treated as a single unit and the emphasis on the signficance of the common law concepts of fairness in parallel with Art 6 of the ECHR (which did not apply to UK immigration decisions) make this one of the most important cases on procedural fairness and access to justice in UK protection jurisprudence.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Asshingdane v United Kingdom (Application no. 8225/78) |
| UK - Al-Mehdawi v Secretary of State for the Home Department, [1990] 1 AC 876 |
| UK - E & R v Secretary of State for the Home Department. [2004] EWCA Civ 49 |
| UK - Estate acquisition and Development Ltd v Wiltshire [2006] All ER (D) 50 |
| UK - Kruse v Johnson (1898) 2 Q.B. |
| UK - Ladd and Marshall [1954] 1 WLR 1489 |
| UK - Marks and Spencer Plc v Customs and Excise [2003] QB 866 |
| UK - R v Criminal Injuries Compensation Board ex parte [1999] 2 AC 330 |
| UK - R v Immigration Appeal Tribunal, ex p Haile [2001] EWCA Civ 663; [2002] Imm AR 170 |
| UK - R v Immigration Appeal Tribunal ex parte Mehta [1976] imm AR 38 |
| UK - Saleem v Secretary of State for the Home Department [2000] Imm AR 529 |
| UK - Secretary of State for the Home Department v Thirukumar [1989] Imm AR 402 |
| UK - Tofik, R (on the application of) v Immigration Appeal Tribunal [2003] EWCA Civ 1138 |
| UK - Training in Compliance Ltd T/A Matthew Read v T/A Data Research Company [2001] CP Rep 46 |
Other sources:
AV Dicey, The Study of Law and the Constitution.
Prof. Lon Fuller, The Morality of Law.
Prof. Lon Fuller, The Morality of Law.