Trunca, R (on the application of) v Secretary Of State For the Home Department

When an adjournment of an asylum appeal is sought on medical grounds, the evidence should address both the applicant’s fitness to attend and the likely duration of the incapacity. The adjudicator may consider all relevant circumstances, including apparent inconsistencies between claimed incapacity and attendance at other appointments. Parties should seek clarification if they do not understand what further evidence is required and may attend the resumed hearing to make representations. Under the Asylum Appeals Procedure Rules 1996, rule 33 paragraph 2 permits determination in a party’s absence where sufficient notice has been given. The application was refused because the adjudicator had exercised the adjournment discretion properly.

The applicant, a Lithuanian national, sought asylum alleging persecution because of his membership of the Communist Party. The special adjudicator initially adjourned his appeal because of medical evidence, but later proceeded in his absence when no further significant evidence showed that he was unfit to attend. Scott Baker J dismissed judicial review, finding no legal flaw. The applicant renewed his application for permission to appeal, arguing that the medical certificate and hospital appointment slip required a further adjournment. The central issue was whether the adjudicator had improperly exercised his discretion by refusing a further adjournment and determining the appeal in the applicant’s absence.

The Court of Appeal, comprising Lord Justice Keene and Lord Justice Thorpe, refused the renewed application for permission to appeal. There was no real prospect of success.

1. Under rule 33 paragraph 2 of the Asylum Appeals Procedure Rules 1996, an adjudicator may determine an appeal in a party’s absence where satisfied that sufficient notice of the hearing has been given.
2. Where an adjournment is sought on medical grounds, the evidence must address the expected duration of the applicant’s inability to attend. The certificate relied upon stated that the applicant was unfit to attend on 22 May but did not explain how long that incapacity would continue.
3. The adjudicator was entitled to consider the whole evidential position, including the fact that the applicant had attended a medical centre in West London although living in East London. The hospital slip did not state that he was unfit to attend the hearing or identify when the hospital appointment would occur.
4. If the applicant or his representatives were uncertain about the evidence required, they could have sought clarification. They also had the opportunity to attend the resumed hearing and make further representations, but did not do so.
5. The later material did not address the critical question of fitness to attend. The adjudicator had not exercised his discretion improperly, and Scott Baker J was right to dismiss the judicial review claim. Application refused, with a public funding assessment of the applicant’s costs.

• Court of Appeal (Civil Division) ([2001] EWCA Civ 1702): renewed application for permission to appeal refused.
• Queen’s Bench Division (Administrative Court): Scott Baker J dismissed the application for judicial review of the special adjudicator’s decision.
• Special adjudicator: after an adjournment, determined the asylum appeal in the applicant’s absence under rule 33 paragraph 2 of the Asylum Appeals Procedure Rules 1996.