Simeer, R (On the Application Of) v Immigration Appeal Tribunal

An appellate tribunal must engage with credible evidence that a party did not receive notice of a hearing. It must assess that evidence together with relevant surrounding circumstances, including an unexplained absence of an interpreter. A tribunal may nevertheless refuse permission to appeal where the appeal has no real prospect of success and there is no other compelling reason to grant permission. Procedural unfairness will not normally justify relief where the court is satisfied that the outcome of a further hearing was inevitable.

The claimant, a Sri Lankan national, challenged the Immigration Appeal Tribunal’s refusal of leave to appeal against an adjudicator’s determination dismissing his asylum and human rights appeal. The adjudicator had determined the appeal on the papers under rule 43 of the Immigration and Asylum Appeals (Procedure) Rules 2000 after finding that notice had been properly served.

Before the Tribunal and the Administrative Court, the claimant asserted that neither he nor his solicitor had received notice. He also relied on the absence of a Tamil interpreter. The central issues were whether the Tribunal had dealt lawfully with those procedural matters and whether the appeal nevertheless had a real prospect of success.

1. Procedural issue. Rule 14 required a hearing only subject to the express exceptions in rule 43. The adjudicator was entitled to determine the appeal without a hearing after being satisfied that notice had been sent and that the appeal could justly be disposed of on the papers. The deemed-service provision in rule 48(2) had not been rebutted.
2. Tribunal’s error. The Tribunal had before it material unavailable to the adjudicator, including affidavits and grounds asserting non-receipt of notice, the absence of a Tamil interpreter, and the absence of a corresponding notice in the Home Office file. It was Wednesbury unreasonable to dismiss the non-receipt assertion without properly evaluating that material. The absence of an interpreter was, unless refuted, a relevant indication of a possible breakdown in communication.
3. The court approved the precaution identified in R (Mehmet Karagoz) v IAT & SSHD [2003] EWCH 1228 Admin: where there is a total absence from a hearing, it is wise for an adjudicator to seek information from obvious sources, including the solicitor. The omission did not itself invalidate the adjudicator’s decision here.
4. Permission and relief. Under rule 18(4)(c), the grounds had to identify errors capable of making a material difference. The Tribunal was entitled to conclude, in substance, that the appeal had no real prospect of success and that there was no other compelling reason to grant leave. The procedural error did not require relief because the claimant’s case could not succeed on the evidence.
5. Merits. The authorities concerning the safety of returning Tamils to Sri Lanka required each case to be considered on its facts. At the material time, only an exceptional case was likely to succeed. The claimant’s grounds did not identify evidence capable of placing him in that category. The application for judicial review therefore failed.

1. Adjudicator: dismissed the claimant’s asylum and human rights appeal after determining it on the papers under rule 43 of the Immigration and Asylum Appeals (Procedure) Rules 2000.
2. Immigration Appeal Tribunal: refused leave to appeal, finding that notice had been served, that the determination was fair, and that the appeal had no reasonable prospect of success.
3. High Court (Administrative Court): held that the Tribunal had erred in its treatment of the non-receipt evidence, but dismissed the judicial review application because the appeal could not have succeeded and no relief was justified.