ASYLUM AND IMMIGRATION TRIBUNAL	
	
SV (Alleging misconduct and suppressing evidence) Iran [2005] UKAIT 00160	

THE IMMIGRATION ACTS

Heard at:  Field House
On  18 October 2005
	Determination Promulgated 
17 November 2005
………………………………………	
Before	

Mr G Warr, Senior Immigration Judge
Mr J Perkins, Senior Immigration Judge 
	
Between	

Appellant	
and	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
		Respondent 	

Representation:

For the appellant:	Mr G Patel Miles of Hutchinson & Lithgow Solicitors.	 
For the respondent:	Mrs R Pettersen, Home Office Presenting Officer.  

This case is reported to deal with the question of the approach where representatives ascribe blame to those previously instructed.

DETERMINATION AND REASONS
1.	The appellant is a citizen of Iran.  He was born on 12 June 1977 and so is now twenty eight years old.  He appeals the decision of an Adjudicator, Mr John R Aitken, who in a determination promulgated on 6 January 2005 decided that the appellant’s notice of appeal to an adjudicator against the decision of the respondent that he was not a refugee and that removing him from the United Kingdom was contrary to his protected human rights, was served out of time and that there were no special circumstances making it unjust not to extend time.
2.	We begin by considering the material before the Adjudicator.  There was the usual appeal bundle prepared by the respondent.  This shows that the appellant arrived in the United Kingdom on 10 July 2004 and claimed asylum on 11 July 2004.  According to the respondent the notice of decision refusing the application for asylum was sent by recorded delivery to the appellant’s address on 12 August 2004.  The notice of appeal was not received until 3 December 2004.  The respondent decided not to use his powers to treat it as if it were received in time.
3.	We note from the reasons for refusal letter dated 10 August 2004 that the application was refused under paragraphs 336 and 340 of HC 395 because, in the opinion of the respondent, the appellant had failed without reasonable explanation to make a prompt and full disclosure of the facts of the claim.  There is a bundle from the appellant’s present solicitors under a covering letter dated 2 December 2004 to the Home Office at Croydon.  This includes a copy of the respondent’s “Determination of Asylum Claim”, a notice of appeal, a statement of additional grounds and form SEF and a copy letter from XYZ & Co to the respondent dated 23 July 2004 and marked “By Fax”.  According to the form SEF, 23 July 2004 was the last day on which the form SEF could have been received in time. The papers do not include any evidence that the form was ever sent.
4.	The “Determination of Asylum Claim” is, as was to be expected, a purely formal document confirming that the application had been refused.  The “Additional Grounds” assert that in the event of removal to Iran the appellant risks serious ill treatment because of his membership of the IKRP and asserts, in general terms, that removal will interfere with his protected private and family life.  Although the Additional Grounds make serious claims our task is to decide if the Adjudicator erred in law in refusing to extend time for service.
5.	The first four Grounds of Appeal to the Adjudicator are in general terms and do not require particular consideration.  Grounds 5, 6 and 7 are set out below:
“5.	The appellant’s application for asylum has been refused on non-compliance grounds.  The appellant contends that his previous solicitors Messrs XYZ & Co lodged the appellant’s SEF and statement of additional grounds by fax on 23 July 2004 a copy of XYZ & Co’s letter and the SEF and statement of additional grounds are annexed hereto.
6	The appellant hereby applies for leave to appeal out of time.
7	The appellant contends that he instructed his previous solicitors to lodge an appeal but contends that for some reason they did not do so.  He had travelled from Gateshead to London to see them in September upon receipt of his refusal papers.  He sets out that they said that they would firstly write to the Home Office because the reasons for refusal letter did not give any real reasons for refusal of the application on his behalf.  He signed appeal papers and they said that they would deal with the matter on his behalf and lodge the appeal.  The appellant then received a letter from the NASS Section of the Home Office dated 15 October 2004 advising him that all appeal rights had been exhausted and that he no longer qualified for NASS support.  He spoke to his solicitor on the phone who advised him that he could do nothing further for him and that he should see another solicitor.  He then sought advice from Miles Hutchinson & Lithgow about this and was seen by them on 26 October 2004.  Miles Hutchinson & Lithgow applied for XYZ & Co’s file of papers by way of a letter dated 29 October.  A reminder was sent on 12 November and a further reminder was sent on 26 November 2004 and the file of papers was actually received on that date.  The person having conduct of the file was out of the office until 1 December 2004 and this has been the earliest date upon which the appellant could lodge any appeal.”
6.	The form SEF sets out the alleged merits of the appellant’s claim.
7.	At all material times the conduct of this appeal was subject to the Immigration and Asylum Appeals (Procedure) Rules 2003.  Rule 10(1) provides that where the notice of appeal is given outside the applicable time limit the appellant must (a) state in the notice of appeal his reasons for failing to give the notice within that period; and (b) attach to the notice of appeal any written evidence upon which he relies in support of those reasons.  This Adjudicator then had to consider that material before making his decision.
8.	In his determination the Adjudicator noted that it was not disputed that the notice of decision was served by first class recorded delivery post sent on 12 August 2004 and the appeal was not received until 3 December 2004.  He then considered the explanation for lateness.  He said:
“It is that the appellant was represented by XYZ & Co. and they failed to file his appeal as he had instructed them to do.  The present solicitors, Miles Hutchinson & Lithgow awaited the file on being instructed and had some difficulty in obtaining it hence further delay.  There is however no evidence of the failure alleged from XYZ & Co. save the appellant’s instructions to his new solicitors …If the appellant had been misled by his former solicitors into thinking they were dealing with his appeal or failed to notify him of the refusal then they would be obliged to admit this to assist him, there is no such admission and I cannot accept that the appellant has established that his problem arises from the misconduct of his former advisers without an explanation from the firm in question.  This is the effect of the case of MM* [2004] 00182 at paragraph 36, where it was said that there should always be an attempt to put the failing of a previous firm of solicitors to them for comment.  The file from that firm is now in the possession of the appellant’s new solicitors but nothing is put forward as evidence of the appellant’s account.”
9.	As the Adjudicator indicated his reasoning set out above is based very closely on paragraph 36 of the Decision of the Tribunal in MM*.  For convenience we set out below that paragraph in its entirety.
“We add there has been no attempt to put to the previous solicitors the failings said to be attributable to them; that should always be done where there is an allegation that another firm of solicitors was at fault.  This is all too easy an allegation to make and failure to raise the issue with those who might rebut it does not assist the credibility of the allegations.”
10.	We remind ourselves that we have no basis for interfering with the Adjudicator’s decision unless it can be shown to be wrong in law.  The decision is criticised in the grounds of appeal to the IAT.  Ground 1 claims that the appellant is a Kurdish Iranian who risks persecution because of his political activity and this claim has not been considered on its merits, if any.  We are very aware of the significance of this decision for the appellant, as no doubt was the Adjudicator.  We also reminded ourselves that, unlike the narrower grounds applicable to cases decided under the Asylum and Immigration Appeals (Procedure) Rules 2005, the Adjudicator had to decide if “satisfied that by reason of special circumstances it would be unjust” not to extend time.  This would appear to permit consideration of the merits of the appeal, if any.  However the fact that the appellant is an asylum seeker is not a trump card entitling him to overrule the requirements of the procedure rules.  Almost every asylum claim includes an assertion that a person risks very serious ill treatment if returned to his or her country of nationality.  The merits of the case and the need to give anxious scrutiny in asylum appeals are not decisive features of applications of this kind.  If Parliament had intended that to be the law the rules would have been different. 
11.	Ground 2 asserts that the Home Office made mistakes in its assertions about the service of the Notice of Decision.  According to the grounds the notice was not served on 12 August 2004 as the respondent alleges.  It could not have been served then because the decision to remove the appellant was made on 19 August 2004 and the tracking document shows that the document was delivered on 31 August 2004.  The grounds say it is the appellant’s case that he received notice of the refusal on 8 September 2004 but concede that the notice of appeal to the Adjudicator was served out of time.  We have not investigated the precise date of service of the notice of refusal because there is no reason to think that that date was in any way influential on the Adjudicator’s decision.  It is clear that even if the notice of decision was served later than the Respondent says the notice of appeal to the Adjudicator was served very late.
12.	Ground 3 asserts that the service of the notice of appeal of the Adjudicator’s decision to the Immigration Appeal Tribunal was delayed by reason of Counsel giving incorrect advice.  That ground is irrelevant to anything that we have to consider.  We are not concerned with the appellant’s reasons for being late in his appeal to the Immigration Appeal Tribunal but to the Adjudicator.
13.	The thrust of the case is set out in ground 4 which we set out below: “It is the appellant’s case on this appeal that the Adjudicator has erred as follows:
(i)	in omitting properly to consider whether there were special circumstances making it unjust not to extend time in this case;
(ii)	in requiring an admission of professional negligence from the appellant’s former solicitors as proof of their misconduct concerning the appeal.  The Adjudicator has erred in treating the guidance in MM as prescriptive and binding in all cases, (it is guidance and does not replace the Rules) and as requiring not just that failings be put to the previous solicitors as per MM, but that such solicitors would be bound to admit the said failings and misconduct.  The Adjudicator’s reasons for declining to extend time are premised on the lack of the admission, not simply the failure to put allegations to the previously solicitor.
(iii)	The Adjudicator’s reliance on a solicitor’s admission arguably does injustice in cases such as this where an appellant has not only been poorly served by solicitor’s negligence but also solicitor disloyalty and dishonesty.
(iv)	in omitting to consider whether the Home Office refusal on non-compliance grounds was itself erroneous as, contrary to the refusal letter, there was evidence before the Adjudicator from XYZ & Co. that the SEF had been served in time.  Such omission is significant as the evidence appears to discredit the very Home Office decision under appeal.
(v)	in omitting to consider that Home Office calculation of the appeal line was manifestly erroneous as the removal decision was dated 19 August 2004, that is after the refusal letter of the 10 August 2004 and after the 12 August 2004 asserted date of service.
(vi)	in omitting to consider, as relevant to whether it was just to extend time, the merits of this case and that the appellant had not had any substantive consideration given to his appeal and was seeking the same.”
14.	The point taken at 4(i) above is a “catch all” and requires no specific consideration.  The point taken at 4(iv) is another way of complaining that the Adjudicator did not consider the merits of the appeal but attempts to take the point a step further by claiming that the respondent was wrong to refuse the application for non-compliance under paragraph 340 of HC 395..  Certainly it is the appellant’s case that the application should not have been refused under paragraph 340 of HC 395 but we have not been able to find any evidence on the papers before us or before the Adjudicator that the form SEF was in fact returned on 23 July 2004 as alleged.  There is a form SEF dated 23 July 2005 and a copy letter from XYZ & Co of the same date marked “by fax” but no evidence that it was ever sent.  The “Chronology of appeal procedures” prepared by the appellant’s present solicitors suggest that the “SEF and statement” were submitted to the Home Office on 15 July 2004 (the statement is dated 15 July 2004) but there is no evidence that the SEF and statement were served on that date.
15.	If follows that the appellant has not established that the Adjudicator should have found the refusal under paragraph 340 to be wrong in law but even if the refusal of the application were wrong for that reason it would not necessarily amount to a special circumstance making it unjust not to extend time.  Such an interpretation of “special circumstance” would circumvent the procedure rules.  There is nothing before us that persuades us that the Adjudicator should, as a matter of law, have found that any wrongful refusal under paragraph 340 should have led him to find that there were special circumstances here.
16.	It follows that even if the Adjudicator did err in not giving thought to the claim that the respondent had wrongly dismissed the application without considering its merits he did not err in law in deciding that there were no special circumstances that made it unjust not to extend time.  If there was an error it was not material in this case.
17.	The point taken at (v) is irrelevant.  The Adjudicator was not concerned with about the date of service of the notice of decision but about the lateness of the notice of appeal.  Point (vi) is plainly misconceived.  A person is not necessarily always entitled to consideration of an asylum application on its merits if that person does not comply with its obligations under the procedure rules.
18.	Points (ii) and (iii) clearly require more detailed consideration.  Point (ii) complains that the Adjudicator premised his decision “on the lack of the admission, not simply the failure to put allegations to the previous solicitor” and the point (iii) complains that the “Adjudicator’s reliance on a solicitor’s admission arguably does injustice in cases such as this where an appellant has not only been poorly served by solicitor negligence but also solicitor disloyalty and dishonesty”.  The problem with these grounds is that they misrepresent the Adjudicator’s reasoning.  It is right that the Adjudicator said “I cannot accept that the appellant has established that his problem arises from the misconduct of his former solicitors without an explanation from the firm in question” but this comment must be understood in the context of a case where there was no suggestion that the appellant’s former advisers had been asked to comment.  If the Adjudicator had said, based on MM*, that he could not under any circumstances extend time where former solicitors were being blamed but had offered no explanation he may well have been criticised but this is not what the Adjudicator said.  Faced with a case where there were allegations of error by a former solicitor but no reason to suppose that any explanation from that solicitor had been sought, still less refused, the Adjudicator was entitled to say that the effect of MM* was that he could not accept the criticisms that were being made.  The point of MM* was that Adjudicator’s should not accept criticisms made of earlier advisers without knowing that the criticisms had been put to the advisers for their comments.  The Adjudicator had no reason to think that such enquiries had been made here.
19.	In short the Adjudicator was faced with an application that was agreed to have been made out of time.  The only explanation for lateness before the Adjudicator was an assertion that the appellant had been let down by his previous solicitors but there was no suggestion that that allegation had been put to the solicitors involved and the Adjudicator disbelieved it.  We can see no basis at all for concluding that the Adjudicator was not entitled to reach the decision which he did on the material that was before him.  We pressed Ms Patel several times about this point but she could not show any error in the Adjudicator’s approach.
20.	This may well have been in the mind of the Senior Immigration Judge who ordered reconsideration because he said “The grounds are arguable but the appellant will need to satisfy the Tribunal that the fresh evidence (i.e. that with the application), can properly be admitted, and that it points to an error of law on the part of the Adjudicator”.
21.	The grounds supporting the application are very critical of the conduct of XYZ & Co.  They refer to a letter from XYZ & Co. dated 1 December 2004 in which XYZ & Co claim that the appellant attended their offices on 9 September 2004 and then withdrew his instructions and said he wished to change solicitors.  This letter is supported by an attendance note.  At paragraph 7 of the grounds supporting the application Counsel, who settled the grounds (not Ms Patel), said “the appellant’s solicitors believed on reasonable grounds that the said solicitor’s letter and “attendance note” was (sic) false.  The “attendance note” was inconsistent with the rest of the file which showed limited work expended on the appellant’s case”.  It then goes on to develop the suggestion that “the appellant believed the previous solicitors to have fabricated a file note (a serious professional charge) the said documentation created ethical and professional problems for the appellant’s solicitor.”  Point 8 makes the very serious allegation that the appellant’s present solicitors did put to the former solicitors the allegation of a failure to follow their client's instructions but “The previous solicitor appears to have falsely protected their own reputation at the appellant’s expense.  It follows that the Adjudicator inadvertently erred in assuming that the allegations were not put to the previous solicitors.  His assumption concerning solicitors’ professional rectitude was misplaced in this instance.  The appellant has lost an appeal right because of those erroneous assumptions.”
22.	In short the appellant’s present solicitors now choose to tell the Appellate Authority that a matter was put to the previous solicitors but it produced an answer that was not in accordance with the appellant’s instructions and this information was not relayed to the Appellate Authority.
23.	We remind ourselves of the terms of Ground 7 of the grounds of appeal to the Adjudicator.  This begins, “The appellant contends that he instructed his previous solicitors to lodge an appeal…”.  It seems that the appellant’s present solicitors, having put an allegation of poor practice to the previous solicitors, found the answer unhelpful to their client and chose not to draw it to the attention of the Appellate Authority.  Indeed, the appellant’s present solicitors are quite open about this because paragraph 7 of the grounds of appeal to the Immigration Appeal Tribunal says in terms “For the professional and ethical reasons, the appellant’s solicitors did not include his correspondence in the application to extend time to appeal.  The said letter and attendance note conflicted with the appellant’s instructions and discredited the appellant’s application.”  In short the appellant’s solicitors made the tactical decision to exclude from the attention of the Tribunal evidence upon which the appellant now seeks to rely.
24.	We accept, of course, that there are circumstances in which we can look at fresh evidence because it helps us decide if there has been an error of law.  We have in mind particularly the case of AG (Turkey – CA – Fresh Evidence) [2005] UKIAT 00014 and particularly paragraph 14 where the Tribunal summarised the Ladd v Marshall principles “As summarised in paragraph 23(ii) of E v SSHD [2004] EWCA Civ 49.”  One of these is that “the fresh evidence could not have been obtained with reasonable diligence for use at the trial”.  The circumstances here could not be more different.  The fresh evidence was available but deliberately suppressed.  We find it wholly inappropriate that the appellant should now seek to change his tactics in the hope that a different approach will produce a different result.  Indeed it seems to us that these are exactly the kind of circumstances where a person should not be entitled to produce fresh evidence but rather should be bound by the decision that he has made.
25.	We also remind ourselves that the same paragraph of E said “as a general rule, the fact that the failure to adduce the evidence was that of the parties’ legal advisers provides no excuse.”  There is in our view much to be said for a “cards on the table” approach in cases of this sort.  An applicant seeking the exercise of discretion in his favour should put forward all available material.
26.	It is abundantly clear to us that there is no error of law in the Immigration Judge’s approach.  He cannot be criticised for reaching the decision that he did on the material that was before him.  The attempt made by the appellant’s present solicitors to re-argue the issue with the benefit of evidence that was available but not given to the Immigration Judge must fail.
27.	As indicated above we are very aware that we are dealing with an application by an asylum seeker and we must think long and hard before invoking procedural mechanisms to prevent a decision being made on the merits of his case.  For the reasons given we find that is the appropriate response on the facts of this case.
28.	We have reported this case because of what we say about the effect of MM and of AG.  The decision in MM does not mean that the Tribunal will not accept that an appellant has been the victim of professional incompetence unless the advisor concerned accepts the criticism but it does mean that the Tribunal will be very reluctant to accept that a criticism is well founded unless it has been put to the advisor concerned and the comments noted.
29.	Following AG the Tribunal will be very slow to admit on appeal evidence that was available at an earlier hearing but knowingly excluded by the appellant or his advisors.

DECISION
The original Tribunal did not make a material error of law and the original determination of the appeal shall stand

Jonathan Perkins
Senior Immigration Judge