Karagoz v Immigration Appeal Tribunal

An appellate authority may dismiss an asylum appeal without considering its merits only where the procedural conditions for that power are satisfied and its exercise advances the overriding objective of a just, timely and effective disposal. A deemed receipt rule for a posted notice creates rebuttable evidence, not an irrebuttable presumption. Where an appellant credibly asserts that the notice was never received, the assertion must be evaluated. If it has a real prospect of being proved, leave to appeal should be granted. If proved, the appeal should be allowed and remitted for determination on its merits. The absence of any relevant history of procedural default is a material circumstance. In an appropriate case, an adjudicator may contact the appellant’s representatives and adjourn briefly to resolve non-attendance.

The Secretary of State refused the claimant’s asylum application. An adjudicator directed the claimant or his solicitors either to return a readiness form or attend a first hearing, warning that failure would lead to dismissal without consideration of the merits. Neither attended, and the adjudicator dismissed the appeal under rule 33 of the Immigration and Asylum Appeals (Procedure) Rules 2000.

The claimant and his solicitors asserted that they had never received the notice. The Immigration Appeal Tribunal refused leave to appeal, relying on the file evidence that the notice had been sent. The central issue was whether the Tribunal had lawfully dealt with the assertion of non-receipt and whether the appeal could lawfully be dismissed without consideration of its merits.

1. The Tribunal’s decision was quashed. The application for leave to appeal was remitted to the Tribunal for fresh consideration.
2. Under rule 33(1) of the Immigration and Asylum Appeals (Procedure) Rules 2000, the adjudicator must consider all the circumstances, including the extent of the failure and any reasons for it, before exercising the discretionary powers in rule 33(2). The rule does not make any particular course mandatory. The adjudicator was entitled to consider only reasons before him, although obtaining an explanation may be wise in an appropriate case.
3. The adjudicator should also have considered the claimant’s procedural history. The absence of any recorded history of missed time limits, sloth or non-cooperation was a relevant circumstance which was not addressed in the determination.
4. An appeal is a statutory right under section 69 of the Immigration and Asylum Act 1999. Although paragraph 4(1)(b) of Schedule 4 permits rules allowing dismissal without consideration of the merits, such dismissal cannot further the overriding objective where the notice was not received and there was consequently no relevant failure to comply.
5. Rule 48(2)(a) creates rebuttable deemed evidence that a posted notice was received two days after posting. The file annotations were evidence that the notices had been sent, while the claimant and his solicitors could nevertheless rebut the deemed evidence of receipt. The Tribunal was required to weigh that assertion rather than ignore or leave it unresolved.
6. If the assertion of non-receipt had a real prospect of being accepted, leave to appeal should have been granted under rule 18(7). If ultimately proved, the appeal should be allowed and remitted to the adjudicator for determination on its merits. A telephone inquiry, a short adjournment or a fresh tight direction may be appropriate practical steps.
7. The interested party was ordered to pay the claimant’s costs of and incidental to the claim, subject to detailed assessment in default of agreement.

• High Court (Administrative Court): The Tribunal’s refusal of leave was quashed. The application for leave was remitted for fresh consideration.
• Immigration Appeal Tribunal: Leave to appeal against the adjudicator’s dismissal was refused.
• Adjudicator: The asylum appeal was dismissed under rule 33(2)(a) without consideration of its merits.