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

In an asylum appeal, a request to adjourn so that an appellant can obtain legal representation is governed by the tribunal’s duty to secure a just determination. There is no automatic domestic entitlement to representation. Where Article 6 applies, representation is required only if indispensable for effective access to court, including because the case or procedure is complex. A straightforward appeal turning on credibility may proceed without representation. The reviewing court must assess the matter overall and decide whether refusal caused injustice. Failure to repeat earlier reasons for refusing a renewed adjournment is not necessarily an error where the application and refusal are recorded.

HH, an Iranian national, appealed against the dismissal of his asylum claim. Immigration Judge Khan disbelieved his account of persecution and dismissed the appeal after refusing an adjournment to enable him to obtain legal representation.

Crane J ordered reconsideration in the Administrative Court because the Tribunal had arguably failed to address the risk to a failed asylum seeker returning to Iran. Senior Immigration Judge Mather later found no material error of law, including in the refusal to adjourn. The central issue before the Court of Appeal was whether domestic law or Article 6 required an adjournment for representation and whether the refusal caused injustice.

Longmore LJ delivered the judgment, with Arden and Pill LJJ agreeing. The appeal was dismissed.

1. Under Rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, an adjournment application required good reason, and the Tribunal could not adjourn unless the appeal could not otherwise be justly determined. Domestic law did not require an immigration judge to secure legal representation for every appellant. Tribunals could deal with appellants in person where no point of law required determination and the appeal turned on the evidence.
2. The court noted the Strasbourg position, reflected in Agee v UK [1976] 7DR 164, P v UK [2001] 2 FLR 261 and Maaouia v France [2001] 33 EHRR 42, that refugee-status assessments and decisions concerning entry, stay and deportation did not ordinarily involve determination of civil rights under Article 6. It did not need finally to decide whether the Qualification Directive 2004/83/EC had altered that position.
3. Even assuming Article 6 applied, the effective-access approach in Airey v Ireland [1979] 2 EHRR 305 required legal assistance only where it was indispensable. The case involved no complex legal issue. Its central question was whether HH’s account of events in Iran was credible. The risk on return issue had already been addressed by reference to AD (Risk - Illegal Departure) Iran [2003] UKIAT 00107.
4. A court reviewing refusal of an adjournment for representation must look at the matter overall and decide whether actual injustice resulted. No injustice was shown. Proposed medical evidence, family evidence and further submissions could have been raised before the Senior Immigration Judge and were advanced too late in the Court of Appeal.
5. The proceedings recorded the renewed adjournment application and its refusal. There was no need for the immigration judge to repeat reasons already given by the Senior Immigration Judge. The refusal therefore disclosed no material error of law.

• Court of Appeal (Civil Division) — Appeal dismissed: [2008] EWCA Civ 504.
• Administrative Court — Crane J ordered reconsideration on 9 August 2006 because the Tribunal had arguably failed to address the risk to a failed asylum seeker returning to Iran. The order was not based on the lack of legal representation.
• Asylum and Immigration Tribunal — Immigration Judge Khan dismissed the asylum appeal on 4 May 2006. On reconsideration, Senior Immigration Judge Mather decided on 5 April 2007 that the determination disclosed no material error of law.