Bosombanguwa, R (on the application of) v Immigration Appeal Tribunal

An appellate tribunal considering permission to appeal must assess arguable disputes about what occurred before the adjudicator by considering the competing possibilities where the dispute cannot yet be resolved. It must read the grounds fairly and recognise allegations of prejudice or an unfair hearing when they are implicit in the grounds as a whole.

An adjournment question is governed by the rules in force when the hearing took place. A tribunal should ask whether the alleged procedural error gives the appeal a real prospect of success on a rehearing, or whether there is another compelling reason to hear it. A rehearing is not automatic. The court must consider subsequent information and whether the claimant has shown actual unfairness or prejudice.

The claimant’s asylum and human rights appeal was dismissed by an adjudicator after his solicitors did not attend the hearing. The adjudicator recorded that he expressed concern but made no application for an adjournment. The claimant later asserted that he had sought an adjournment, had been taken by surprise and had not been given a fair opportunity to present his case.

The Immigration Appeal Tribunal refused permission to appeal, treating the adjournment issue as the claimant’s word against the adjudicator’s and finding no pleaded prejudice. The judicial review concerned whether that approach was lawful and, if so, whether the claimant had shown a real prospect of success or another compelling reason for the appeal to be heard.

1. Judicial review and permission stage. The Tribunal erred in law by treating the alleged request for an adjournment simply as the claimant’s word against the adjudicator’s. Where a dispute may reflect a misunderstanding and cannot be resolved at the permission stage, the Tribunal should consider the alternative versions, subject to the claimant setting out and supporting the alleged facts clearly. The grounds, read as a whole, also raised prejudice and an unfair hearing.
2. Applicable adjournment rules. The question whether the adjudicator erred had to be judged under Rule 31 of the Immigration and Asylum Appeals (Procedure Rules) 2000, which applied at the hearing. The overriding objective in Rule 4 of the 2003 Rules could not be retrospectively introduced into that assessment. Rule 31 required an adjournment only where refusal would prevent the just disposal of the appeal. There was no general duty to initiate an enquiry about readiness or adjournment, but the circumstances arguably required further enquiry into the claimant’s reasonable expectation that his solicitors would attend and into material they might bring.
3. Trigger for a rehearing. The relevant question was whether the facts and matters relied on showed that a reheard appeal had a real prospect of success, or that there was some other compelling reason for the Tribunal to hear it. It was not enough that an adjudicator might properly have granted an adjournment.
4. Prejudice and fairness. The claimant had not identified material that his former solicitors possessed, or should have produced, which would probably assist his appeal. He had ample opportunities to give details of his alleged ill-treatment and prison conditions. The alleged shortcomings in the conduct of the hearing therefore did not establish unfairness or prejudice.
5. The application for judicial review was dismissed.

High Court (Administrative Court): Judicial review of the Immigration Appeal Tribunal’s refusal on 18 June 2003 to grant permission to appeal was dismissed.