FP (Iran) v Secretary of State for the Home Department

Rules governing asylum appeals must balance fairness with speed and efficiency. A rule which requires an appeal to be determined in a party’s absence, while deeming service at an outdated address and providing no effective opportunity for an unaware party to explain the absence afterwards, exceeds a general rule-making power directed to fair procedure.

In asylum cases, there is no universal principle that an appellant is inevitably fixed with a representative’s procedural default. The loss of a meaningful opportunity to be heard cannot be justified by treating an appeal as necessarily hopeless without hearing the appellant.

Two asylum appellants had been moved from Bury to Manchester. Each said that the change had been notified to his or her solicitors, but the Asylum and Immigration Tribunal was not told. Hearing notices were sent to the old address and neither appellant knew of the rehearing.

The Tribunal determined both rehearings in their absence and dismissed their appeals. The appellants contended that the combined effect of rules 19(1), 55(5) and 56 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 was unlawful because it denied an effective opportunity to be heard where notice had not in fact come to their attention.

The central issue was whether the rules validly required that result where the failure to notify the Tribunal was attributable to the appellants’ representatives.

1. The appeals were allowed unanimously. Sedley LJ held, with Arden and Wall LJJ agreeing in the result, that the rules could not be construed to permit an effective post-decision challenge where an appellant had been unaware of the hearing. Their literal effect was therefore decisive.

2. Section 106 of the Nationality, Immigration and Asylum Act 2002 required rules designed to secure proceedings handled fairly, quickly and efficiently. Rules 19(1), 55(5) and 56 required the Tribunal to hear an appeal in the appellant’s absence after deemed service at the last notified address, even where the appellant did not know of the hearing and consequently could not provide the explanation contemplated by rule 19(1)(b).

3. The scheme allowed the Tribunal to set aside a determination only for its own administrative error. It gave no adequate means of correcting the absence of an appellant who could later provide a satisfactory explanation. Judicial review for a material mistake of fact, or an appeal based on fresh evidence, was not an adequate substitute.

4. The resulting deprivation of a hearing was procedurally unfair and went beyond the power conferred by section 106. The rules sacrificed fairness to speed and left the Tribunal unable to balance those objectives. They were unlawful insofar as they provided no means of challenging a decision made under rule 19(1) against an appellant unaware of the hearing who could subsequently provide a satisfactory explanation.

5. Al Mehdawi v Home Secretary [1990] 1 AC 876 did not establish a universal rule that an asylum appellant must bear every procedural default of a representative. The gravity and character of an asylum claim, and the absence of an effective residual remedy, materially distinguished these appeals. The court admitted the fresh witness evidence and invited submissions on the final consequential order.

• Court of Appeal (Civil Division). Both appeals were allowed on the amended ground that the relevant absence and service rules were unlawful in their operation.
• Asylum and Immigration Tribunal. Each appellant’s rehearing had been determined and dismissed in his or her absence after notice was sent to the former address.
• Earlier tribunal stages. FP’s earlier unsuccessful appeal had been held vitiated by an error of law and ordered to be reheard. MB’s adjudicator decision had been set aside by the Immigration Appeal Tribunal for material error of law and remitted for rehearing.