Adjournments: Fairness is the Supreme Criterion

http://www.bailii.org/uk/cases/UKUT/IAC/2014/%5B2014%5D_UKUT_418_iac.htmlNwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC)

As explained in the Best Practice Guide to Asylum and Human Rights Appeals, it is difficult to get adjournments in immigration cases. Most paper applications are refused. That is exactly what happened in this case which concerned a Tier 1 (General) migrant – N – whose application was refused on the basis of his inability to demonstrate that he had been in possession of at least £900 of available funds during a consecutive 90-day period. The First-tier Tribunal (FtT) dismissed the appeal in the absence of both parties. The judge noted that N claimed illness. His solicitors asked for an adjournment – on the ground that they had been unable to obtain instructions and gather evidence of his illness to enable them to prepare properly for the hearing – which was refused on the basis of insufficient information and failure to show good reason why an adjournment was necessary within the meaning of rule 21 (adjournment of appeals) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

The FtT dismissed N’s appeal because he failed to provide any evidence in support of his case despite standard directions. N’s solicitors said that the appeal should be considered on the papers if it was not adjourned. The judge dismissed the appeal because N had not complied with the Immigration Rules. He also thought that owing to section 85A of the Nationality, Immigration and Asylum Act 2002 the FtT could only consider the evidence when the decision on N’s application was made.

Permission to appeal to the Upper Tribunal (UT) was granted on the ground that the FtT erred by not granting an adjournment despite it being clear that N went into hyperglycaemia because he was diabetic and took medication. At the hearing, only the Home Office attended. It informed the UT that N had made yet another Tier 1 application (which had been voided) when his appeal to the FtT was pending.

Outlining the interplay between rule 4 (overriding objective), rule 19 (hearing appeal in absence of a party) and rule 21 (adjournment of appeals), in his very welcome decision Mr Justice McCloskey (President) emphasised at para 5 that “rule 21(2) is a provision of critical importance” because it obliges the tribunal to examine whether the appeal can be “justly determined” in the absence of the moving party. In refusing the application the tribunal must satisfy itself that it is possible to determine the appeal justly in the absence of the party applying to adjourn. In other words, it is possible to grant an adjournment where an applicant was unable to show good reason for doing so. Whilst sound case management required “good reason” for adjourning, the emphasis on efficiency and expedition in contemporary litigation needed to be balanced against the larger fundamental common law right of every litigant to a fair hearing (which was “the dominant consideration”). For McCloskey J, the 2005 Rules “do not modify or dilute” the common law right. Rather, rule 21(2) preserves “the common law right of every party to a fair hearing”: paras 5 – 6.

On the one hand, the 2005 Rules – especially rule 21(1)(b) and rule 21(2) – require the tribunal to conduct a balancing exercise the performance of which obliges the judiciary to be alive to an abuse of process and spurious, frivolous grounds or vexatious adjournment applications. On the other hand, a lack of merit alone is not “determinative of the question of whether refusing an adjournment request would compromise the right to a fair hearing of the party concerned”: para 6.

Moreover, McCloskey J explained that:

6. … In some cases, adjournment applications based on particularly trivial or unmeritorious grounds may give rise to an assessment that the process of the Tribunal is being misused and will result in a refusal. Tribunals should be very slow to conclude that the party concerned has waived its right to a fair hearing or any discrete aspect thereof.  Where any suggestion of this kind arises, it will be preferable to evaluate the conduct of the party concerned through the lens of abuse of process and it will always be necessary to give effect to both parties’ right to a fair hearing.

In principle, the decision to refuse an adjournment was capable of being erroneous in law in respect of (a) failing to take into account all material considerations (b) denial of a fair hearing (c) failing to apply the correct test and (d) acting irrationally. The UT emphasised that “[i]n a nutshell, fairness is the supreme criterion” and that in most cases the key question is whether the refusal deprived the affected party of his right to a fair hearing? In cases where an adjournment refusal is challenged grounds embedded in fairness, the test for the UT to apply is not whether the FtT acted reasonably but whether the affected party was deprived of his or her right to a fair hearing? Therefore, using “reasonableness” as a standard to review the FtT’s decision did not do justice to the aggrieved party becau espoused se fairness remained the supreme criterion.

The above accords with the approach adopted by the Court of Appeal (Moses, Patten & Ward LJJ) in SH (Afghanistan) v SSHD [2011] EWCA Civ 1284, where the court unanimously held at para 13 that the test was not irrationality, Wednesbury unreasonableness or perversity but that the sole criterion to be applied was whether it was unfair to refuse an adjournment.

In the instant case, McCloskey J stressed that judicial error needs to be prevented by the application of the fairness test and he remarked that “[i]n the present era, the spotlight on the judiciary is more acute than ever before.” He reasoned that, despite their crushing workload, judges should not sidestep fairness as the overriding criterion. They must not succumb to “sensations of frustration and inconvenience, no matter how legitimate” when last minute requests for adjournments are made and judges must therefore resist the temptation to refuse adjournments where fairness – the overarching criterion enshrined in the overriding objective – is compromised.

The President was alive to the impending replacement of the 2005 Rules by the Asylum and Immigration Tribunal (Procedure) Rules 2014 which simplify the provisions regarding adjournments and the tribunal’s case management powers under which the FtT “may …  adjourn or postpone a hearing”. This, in the UT’s view, “reinforces the necessity of giving full effect, in every case, to the common law right and principles”: para 9. So the FtT was wrong to refuse N’s adjournment application because it was preoccupied with the “good reason” limb of rule 21 and neglected in considering and applying the “justly determined” specification in line with fairness (and thus misdirected itself in law).

However, as regards materiality, the UT took the view that the FtT’s error of law – which focused on previous earnings rather than maintenance funds – was not significant because the only question it answered related to assessing the documentary evidence. Thus, the FtT’s decision was “not vitiated by any material error of law” and it was clear that “the refusal to adjourn the hearing was not unfair, since the Appellant could not on any showing have succeeded”: para 12, citing MM Sudan [2014] UKUT 105 (IAC).

To McCloskey J’s mind, who was conscious of N’s non-attendance and the absence of any legal representation, it was pointless to adjourn and relist the hearing because the “appeal was doomed to fail” – under rule 38 (hearings in a party’s absence) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it was in the interests of justice to dismiss the appeal in N’s absence: para 13. The President was clear that appellants with pending appeals who made fresh applications and no longer wished to pursue their appeals may well be misusing the legal process. Therefore, where an appeal comes into doubt, litigants and their representatives owe “a pressing duty” to immediately inform the UT and all other parties accordingly and “a failure to do so without reasonable excuse will be considered a misdemeanour of some moment and may be regarded as a misuse of process”: para 14.

Dismissing N’s appeal and affirming the FtT’s decision, McCloskey J summarised the following guidance in the headnote:

If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally.  In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing.  Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably.  Rather, the test to be applied is that of fairness:  was there any deprivation of the affected party’s right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Judges, Tier 1, Tribunals and tagged , , . Bookmark the permalink.

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