RJ (Jamaica) v Secretary of State for the Home Department

Under the Asylum and Immigration (Procedure) Rules 2005, a tribunal has a discretion whether to hear an appeal in a party’s absence; it is not obliged to proceed merely because the rule permits it. Appellate courts should respect case-management decisions made on the information then available. Fresh evidence may nevertheless justify setting aside a determination where representatives wrongly advised an appellant not to attend, thereby depriving the tribunal of relevant information and creating procedural unfairness. An appellant claiming serious risk on return must provide sufficiently detailed evidence addressing the present risk and the adequacy of protection. Generalised police opinions will not ordinarily discharge that burden.

The appellant challenged a deportation decision after convictions including supplying a Class A controlled drug. He relied on evidence that he had assisted a murder investigation and would face serious risk if returned to Jamaica. An earlier Asylum and Immigration Tribunal determination dismissed his appeals, but reconsideration was ordered after an error concerning evidence that persons connected with the crime were in Jamaica.

At the reconsideration hearing, the appellant was absent after his representatives told him not to attend and sought an adjournment. Immigration Judge Axtell refused the adjournment, considered the risk issue, and dismissed the appeal. The central issues were whether he had misunderstood his powers, whether the refusal to adjourn was justified, whether fresh evidence established unfairness requiring a rehearing, and whether the substantive conclusion was sustainable.

1. Disposition. The appeal was allowed and Immigration Judge Axtell’s final determination was set aside. Sir Paul Kennedy gave the leading judgment; Mrs Justice Black and Lord Justice Wall agreed.
2. Power to proceed in the appellant’s absence. Rule 19 of the Asylum and Immigration (Procedure) Rules 2005, as amended, gave the tribunal a discretion to hear an appeal in the absence of a party or representative where notice had been given and there was no good reason for the absence. Read with the overriding objective in Rule 4, it did not require the tribunal to proceed. Axtell’s reference to the history of the appeal, non-compliance with directions and the conduct of the representatives showed that he understood the discretion. His refusal to adjourn was not faultable on the information available to him, and appellate courts should be slow to interfere with such case-management decisions.
3. Fresh evidence and unfairness. The Court accepted the appellant’s evidence that his representatives had advised him not to attend. Had he been present, he could have explained that his case had not been prepared because of the representatives’ failures and could have drawn the tribunal’s attention to his lack of proper representation. It was possible, and indeed probable, that the tribunal would then have granted an adjournment. The resulting loss of an opportunity to provide relevant information caused an injustice, notwithstanding that the original case-management decision was reasonable when made.
4. Substantive evidence. The police letters did not provide sufficient detail about present conditions in Jamaica, the current risk to the appellant, or the sufficiency of state protection. They therefore did not enable a favourable finding on the risk issue or discharge the appellant’s burden of proof. That did not prevent relief for the separate procedural unfairness. The matter was left to be dealt with afresh by the tribunal, without any indication of the eventual outcome. The Court also endorsed caution against abuse of the adjournment process and indicated that culpable representatives might properly face costs sanctions.

• Court of Appeal (Civil Division): [2008] EWCA Civ 93. Allowed the appeal and set aside the Immigration Judge’s determination.
• Asylum and Immigration Tribunal: Immigration Judge Axtell refused an adjournment at the reconsideration hearing on 17 May 2007, determined the narrow risk issue against the appellant, and ordered the original dismissal to stand.
• Earlier tribunal proceedings: An original determination promulgated on 12 October 2005 dismissed the appeals. Reconsideration was ordered on 26 October 2005 after an error concerning the evidence about the location of persons connected with the relevant criminal case.