Immigration

Refusal of asylum - applicant absent from appeal hearing - grounds for reference back by Secretary of StateR v Secretary of State for the Home Department, ex p.

Yousaf; Same v Same, ex p.

Jamil: CA (Aldous, Clarke and Sedley LJJ): 21 June 2000

In the first of two appeals by asylum seekers the applicant, acting on legal advice, presented his appeal to the special adjudicator on the basis of written submissions and supporting papers and without personal appearance or representation.In the second appeal the applicant was not informed by his advisers of the date of his appeal hearing and no representation was made on his behalf.Both applicants, having consulted new advisers, asked the Secretary of State to refer their cases to the adjudicator for reconsideration under s.21 of the Immigration Act 1971.

The Secretary of State refused.

The applicants sought judicial review.

The judge refused the applications.

The applicants appealed.Robert Jay QC and Arthur Blake (instructed by Maliks, Manchester and by Malik Adams, Manchester) for the applicants.

Lisa Giovannetti (instructed by the Treasury Solicitor) for the Secretary of State.Held, dismissing the first appeal but allowing the second, that the underlying purpose of s.21 was to ensure that well-founded claims were not overlooked or defeated by merely technical errors; that in exercising his discretion the Secretary of State was bound to take account of the fact that the applicant had been deprived of the opportunity of adequately presenting his case, for example because he had not been informed of a hearing; but that s.21 was not simply a safety net into which all such cases must fall, nor was it a secondary form of appeal; and that, whereas the first applicant had stayed away from the appeal hearing by advice and conscious choice, the second bore no blame for his absence.