Benkaddouri v Secretary of State for the Home Department

Rule 33 of the Immigration and Asylum (Procedure) Rules 2000 requires an appellate authority to exercise judgment when deciding whether procedural default justifies disposing of an appeal without considering its merits. The decision-maker must assess the failures, their causes, persistence and gravity, their effect on the overriding objective, and whether justice requires a specified procedural measure. The merits may be considered only to distinguish a claim bound to fail from an arguable or viable claim. Procedural default does not create an entitlement to asylum or non-removal. The power may be appropriate where a fair hearing is impossible, but not where the appeal can proceed without further injustice.

The appellant, an Algerian health technician, claimed asylum in the United Kingdom after being forced by the GIA to steal medicines and treat wounded members. He feared reprisals from the GIA and ill-treatment by Algerian police on return. An adjudicator dismissed his asylum and human-rights claims. The Immigration Appeal Tribunal dismissed his appeal.

The Home Office had repeatedly failed to comply with procedural directions, including identifying the refusal letter on which it relied. The adjudicator nevertheless refused an application under rule 33(2)(a), adjourned the matter, and proceeded to determine the merits. The central issue was whether the procedural failures required the appeal to be allowed without consideration of its merits.

1. Disposition. Sedley LJ refused the renewed application for permission to appeal on the substantive asylum and human-rights issues. The appeal on the rule 33 issue was dismissed. Thorpe LJ and Sir Swinton Thomas agreed.
2. Construction of rule 33. The drafting error in rule 33(1) of the Immigration and Asylum (Procedure) Rules 2000 was corrected so that the appellate authority may act where it is necessary to do so having regard to the overriding objective in rule 30(2). The condition does not mean that it must be necessary merely to have regard to that objective.
3. Nature of the decision. Although the measures in rule 33(2) are expressed as permissive, rule 33 requires an exercise of judgment rather than an unreviewable discretion. The decision-maker must identify the procedural failures and assess their causes, persistence and gravity. The decision-maker must then consider their effect on just, timely and effective disposal, weigh the competing interests, identify the available measures, eliminate those with no useful bearing, and decide whether justice requires the remaining measure.
4. Relevance of merits. Rule 33(2)(a) permits an appeal to be allowed without deciding its merits. The intrinsic merits cannot otherwise influence the procedural decision. It is permissible, however, to distinguish a claim bound to fail from one which is arguable or viable. In the present case the human-rights claim was arguable, although the asylum claim disclosed no Convention ground.
5. Fair hearing and procedural default. The analogy with criminal proceedings was rejected. A failure by the Secretary of State to act fairly does not give an asylum-seeker a default entitlement to asylum or non-removal. Rule 33 provides rough justice only where there is no other sensible way to secure the overriding objective. Nori [2002] UKIAT 01887 was not correct insofar as it imposed an absolute prohibition on allowing an asylum appeal without considering the merits. Razi (2001) 01 TH 01836 was distinguishable because there a fair hearing was impossible without further delay.
6. Application. Once the Home Office identified the refusal letter and the adjudicator was satisfied that the appellant had an adequate opportunity to deal with it, the appeal could be heard without further injustice. The adjudicator’s refusal to allow the appeal summarily was therefore defensible. Adjudicators should not assume that a defaulting party must receive further opportunities to comply after a summary remedy is sought.

1. Court of Appeal (Civil Division) refused the renewed application for permission on the merits and dismissed the appeal on the rule 33 issue.
2. Immigration Appeal Tribunal dismissed the appellant’s appeal against the adjudicator’s decision on both the merits and the procedural application.
3. Adjudicator dismissed the asylum and human-rights claims and refused the application to allow the appeal under rule 33(2)(a).