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

Where an asylum appellant unexpectedly loses representation despite reasonable efforts, the tribunal must consider whether the appeal can be justly determined without a fair opportunity to obtain an advocate. The enquiry is governed by fairness as a matter of law, not merely by the rationality of the tribunal’s decision. The appellant’s credibility, the existing evidence and an earlier adjournment are relevant, but they do not make a further adjournment unnecessary where representation could materially assist the case. There is no absolute right to representation. It may be surrendered voluntarily or forfeited by delay or prevarication. A reviewing court must nevertheless assess whether proceeding without representation was fair on the established facts. In this case, the tribunal should have adjourned the hearing, and the appeal was allowed for a rehearing.

An Iranian national who was transsexual sought asylum and humanitarian protection, fearing persecution because he might be perceived as homosexual on return. An immigration judge initially allowed the appeal, but reconsideration was ordered after a concession that the risks to a pre-operative transsexual could not simply be equated with those faced by overt homosexuals. On second-stage reconsideration, the tribunal rejected the claim after the appellant’s representatives withdrew the day before the hearing.

The appellant challenged the refusal to adjourn, arguing that he had either requested an adjournment or that the judge should have granted one on his own initiative. The central issue was whether proceeding without representation caused sufficient unfairness to vitiate the determination.

1. Appeal allowed. The second-stage reconsideration was set aside and a rehearing directed. The appellant’s credibility was to remain established, but any objective evidence placed before the tribunal was to be evaluated afresh.
2. Rule 21(2) of the Asylum and Immigration (Procedure) Rules 2005 was directly relevant to the fairness enquiry. Even where no formal application for an adjournment is made, an immigration judge who knows that an appellant has unexpectedly lost representation, despite reasonable efforts, must consider whether the appeal can be justly determined without a fair opportunity to obtain representation. The test cannot be less stringent merely because the appellant did not expressly apply.
3. The judge’s immediate assessment that an adjournment was unnecessary is not conclusive. Fairness is a matter of law once the facts are established, and appellate review is not confined to rationality. The tribunal should consider whether the appellant could cope with the issues alone, whether representation could materially improve the presentation of the case, and whether the search for representation was genuinely hopeless.
4. There is no inalienable right to representation. The right to be heard belongs to the individual, and representation may be surrendered or forfeited through delay or prevarication. Those considerations did not apply here. The existence of an earlier adjournment, undisputed credibility and an emphasis on objective evidence did not justify proceeding where new representation might have affected the evidential case.
5. The possibility that later evidence might support a fresh claim under Rule 353 of the Immigration Rules could not affect the merits of the present appeal. The tribunal should have adjourned to give the appellant a fair chance to secure representation.

• Court of Appeal (Civil Division): allowed the appeal from the Asylum and Immigration Tribunal and directed a rehearing of the second-stage reconsideration.
• Asylum and Immigration Tribunal: after reconsideration, Immigration Judge Ince dismissed the appellant’s case. The Court of Appeal held that the hearing should have been adjourned because the appellant had been left without representation at the last minute.