Idrissi v Secretary of State for the Home Department

Where an appellate tribunal decides whether to proceed in an appellant’s absence, it must act on an accurate understanding of the appellant’s representation and the service of hearing notice. A material mistake about those matters is sufficient to vitiate the decision, particularly where the true facts would probably have led to an adjournment. The court may quash and remit the decision without construing rule 33 of the Asylum Appeals (Procedure) Rules 1996 where the appeal is resolved by the factual error.

The appellant, a Moroccan national, appealed against an Immigration Appeal Tribunal determination dismissing his appeal from a special adjudicator’s dismissal of his challenge to the refusal of asylum.

The Tribunal proceeded in the appellant’s absence under rule 33 of the Asylum Appeals (Procedure) Rules 1996. It had sent notice of the substantive hearing to Raja & Partners, although Irving & Co were the solicitors actually representing the appellant. The Tribunal therefore believed that the former firm had represented him until shortly before the hearing. The central issue was whether the determination should be quashed because it had been made on a mistaken factual basis concerning representation and notice.

The appeal was allowed unanimously. Laws LJ gave the first judgment, with Chadwick LJ and Aldous LJ agreeing.

1. The Court of Appeal set out rule 33 of the Asylum Appeals (Procedure) Rules 1996, which permits an appellate authority, in appropriate circumstances and subject to notice requirements, to hear an appeal in the absence of a party. The court held that the case was not materially concerned with construction of that rule.
2. The Tribunal had correctly corresponded with Irving & Co about an earlier mention hearing, but sent notice of the substantive hearing to Raja & Partners. Raja & Partners then stated that they no longer represented the appellant. The Tribunal nevertheless proceeded on the mistaken assumption that Raja & Partners had acted for him until that date and had no knowledge of Irving & Co’s continuing role.
3. This was a clear and material error of fact. Had the Tribunal known the true position, it would probably have adjourned the hearing. There was also credible material suggesting that the appellant himself might not have received the notice sent to him personally. The decision to proceed was therefore made on an undoubtedly mistaken factual basis.
4. Given the anxious scrutiny required in asylum cases, the error justified allowing the appeal. The Tribunal’s decision was quashed and the matter remitted for a new substantive hearing. The appellant was awarded costs, subject to legal aid assessment.

• Court of Appeal (Civil Division) — In [2001] EWCA Civ 235, the appeal was allowed, the Immigration Appeal Tribunal’s decision was quashed, and the case was remitted.
• Immigration Appeal Tribunal — On 21 February 2000, the Tribunal dismissed the appeal in the appellant’s absence. Permission to appeal was later granted after the Tribunal recognised that notice of the substantive hearing had not been served on the appellant’s actual solicitors.
• Special adjudicator — On 21 September 1998, the appeal against the refusal of asylum was dismissed.
• Secretary of State for the Home Department — The appellant’s asylum claim was refused on 28 August 1996.