AH (Scope of s103A reconsideration)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 19 April 2006 |
| Neutral Citation | [2006] UKAIT 38 |
| Court | Asylum and Immigration Tribunal |
| Date | 19 April 2006 |
[2006] UKAIT 38
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr D K Allen (Senior Immigration Judge)
Mr P R Lane (Senior Immigration Judge)
11 October 2005:
For the Appellant: Dr Chirico, instructed by Wilson & Co Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer
5 January 2006:
For the Appellant: Mr J Walsh, instructed by Wilson & Co Solicitors
For the Respondent: Mr L Parker, Home Office Presenting Officer
AH (Scope of s103A reconsideration) Sudan
In a reconsideration of an appeal following an order for reconsideration made by the AIT (as distinct from a grant of permission to appeal to the IAT): (1) The reconsideration is of the appeal as a whole; therefore (2) it is not limited to the grounds for review or the grounds upon which reconsideration is ordered, but (3) it is limited to the grounds of appeal to the Tribunal (including any variation allowed under rule 14 by the original judicial decision-maker). (4) No directions can limit the issues before the Tribunal on a reconsideration, but (5) the way in which those issues are dealt with can be limited by directions. In particular (6) the Tribunal has the earlier determination before it and can and probably should adopt any parts of it that are not vitiated by error of law. (7) In deciding whether there is a material error of law within the meaning of rule 31(2) and (5) the Tribunal is similarly not restricted to matters raised in the grounds for review and any reply, but (8) at the first stage of the reconsideration it is unwilling to allow parties to raise matters that – despite having had an opportunity to do so – they have not raised previously, or that have been specifically rejected as arguable in the order for reconsideration or by direction, and (9) if it wishes to raise issues of its own motion it will need to ensure that the parties are given an adequate opportunity to deal with them.
The Appellant is a citizen of Sudan. He appealed against the decision of the Respondent on 25 May 2004 refusing his entry clearance with a view to settlement as the husband of the sponsor. His appeal was heard by an Adjudicator, Mrs P Milligan-Baldwin, and dismissed. He served an application for permission to appeal to the Immigration Appeal Tribunal. That application was pending before the Immigration Appeal Tribunal on 4 April 2005, when both Adjudicators and the Tribunal were replaced by the Asylum and Immigration Tribunal. Under Article 6(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 ( SI 2005/565) the application fell to be treated as an application for an order that the AIT reconsider the Adjudicator's decision on the appeal.
The grounds accompanying the application raised two principal issues. The first was procedural unfairness in relation to a concession apparently made by the Respondent and concerning the validity of the marriage between the Appellant and the sponsor. The second was that the Adjudicator had erred in her treatment of Article 8.
The Senior Immigration Judge who considered the application on 23 June 2005 ordered reconsideration. He gave reasons for his decision including assertions that the grounds relating to procedural unfairness and the concession raised arguable errors of law by the Adjudicator. He specifically refused to make an order on the ground relating to Article 8 on the basis that arguments based on that Article had in principle no application to this appeal.
We convened on 11 October 2005 to begin the reconsideration so ordered. We were required by rule 31 of the 2005 Rules (which we set out below) to determine whether there was a material error of law in the Adjudicator's determination. We had little difficulty in concluding that there was.
The Respondent took no issue on the validity of the marriage in the Notice of Refusal or the Explanatory Statement. At the hearing before the Adjudicator, the Presenting Officer, representing the Respondent, was invited to confirm and did confirm that there was no issue as to subparagraph (i) of paragraph 281 of HC 395: he accepted, he said, that the Appellant and the sponsor were formally married. The Adjudicator gave no indication at the hearing that she intended to differ from this agreed position, nor did she question the validity of the marriage. As a result, no arguments were addressed to her on that issue, and no evidence was called specifically relating to it.
In her determination, the Adjudicator noted that the sponsor had been previously married and that the validity of her marriage to the Appellant therefore depended on there having been a valid prior divorce from her first husband. She considered the documents available to her and conducted what she describes as a “ review of case law” (otherwise unspecified), leading her to the conclusion that “ where a divorce was obtained before or after 1988 [sic], section 44 of the 1986 Family Law Act applies”. She concluded, without further investigation, that the divorce was invalid because “ obtained” in the British Islands and not granted apparently by a court of civil jurisdiction, and therefore that the Appellant and the sponsor were not validly married.
It is, we think, fair to say that it is not now asserted that the marriage is valid. What is said in the grounds is that the Respondent was treating the marriage as valid and was entitled to do so. That may or may not be right. It is clear that by not raising the question at the hearing the Adjudicator entirely deprived the parties of any opportunity to make submissions on it. If she was troubled by an issue that had been conceded at the hearing, she should have arranged for the parties to have an opportunity to address her on it. She did not do so. As a result, there is no doubt at all that there was a considerable measure of procedural unfairness. She decided an issue against the Appellant without hearing him on it.
It cannot be said that the arguments on this issue proposed in the ground were bound to fail. As a result, and particularly bearing in mind the sensitivity to fairness of the proceedings that is axiomatic when an appellant appeals from abroad, we conclude that by the procedure she adopted the Adjudicator materially erred in law.
We accordingly passed from the first of our tasks under rule 31 to the second. At this point, Dr Chirico indicated that he proposed to take no further issue on the validity of the marriage or the concession relating to it. He no longer depended on an argument that the marriage was formally valid. Instead, he proposed to raise arguments based on human rights grounds, the very grounds in fact which had been specifically rejected by the Senior Immigration Judge who ordered reconsideration. We accordingly needed to consider whether he could do so and, if so, whether he could do so as of right or whether he needed our permission. That is the same as the question whether the order for reconsideration limits (finally or provisionally) the scope of the reconsideration, or whether its only function is to allow the reconsideration to take place at all.
Dr Chirico's submission was based on what he submitted was an ambiguity in rule 27 of the 2005 Rules, which require an Immigration Judge making an order for reconsideration to state “ the grounds on which the Tribunal is ordered to reconsider its decision on the appeal”. The submission was that that rule could be read as requiring a statement of the grounds of review to which the reconsideration would be devoted; or it could be taken as requiring merely a statement of the reasons why reconsideration was ordered. In a lengthy and powerful submission, Dr Chirico sought to demonstrate that the latter reading must be correct and indeed that intractable difficulty would arise from adopting the former reading. Mr Avery simply submitted that the former reading was preferable in the interests of the economy of Tribunal hearings.
Rule 27(2) cannot be read out of context. It is one of a number of procedure rules dealing with reconsideration, made under the provisions of the 2002 Act (as amended), the amendments to which also introduced the system of reconsideration in place of appeals to the Immigration Appeal Tribunal effective from 4 April 2005.
The relevant provisions of the 2002 Act are the following:
“103A Review of Tribunal's decision
(1) A party to an appeal [to the Asylum and Immigration Tribunal] may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under subsection (1)—
(a) only if it thinks that the Tribunal may have made an error of law, and
(b) only once in relation to an appeal.
[(3) sets out the time limits.]
(4) But—
(a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and
(b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.
(5) An application under subsection (1) shall be determined by reference only to—
(a) written submissions of the applicant, and
(b) where rules of court permit, other written submissions.
(6) A decision of the appropriate court on an application under subsection (1) shall be final.
…”
[The appropriate court is defined as the High Court, the High Court in Northern Ireland or the Court of Session as appropriate to...
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