Ali Ahmed Safi v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Dawson,Lane J |
| Judgment Date | 13 November 2018 |
| Neutral Citation | [2018] UKUT 388 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 November 2018 |
[2018] UKUT 388 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Dawson
For the Appellants (other than Khalil Ullah): Mr D Seddon & Mr P Jorro, instructed by Duncan Lewis & Co, Solicitors (Harrow Office)
For Khalil Ullah: Mr C Jacobs, instructed by Hammersmith & Fulham Law Centre
For the Respondent: Mr A Payne, instructed by the Government Legal Department
Safi and others (permission to appeal decisions)
(1) It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.
(2) It is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document.
On 6 February 2000, the appellants, and a number of others, hijacked a commercial aircraft in Afghanistan and forced the pilots to fly it to the United Kingdom, where the aircraft arrived on 7 February 2000.
The legal proceedings in the United Kingdom that resulted from this event have been both various and protracted. For present purposes, we are concerned with a determination of the First-tier Tribunal, promulgated on 7 July 2015, in which that Tribunal held that the appellants were excluded from the 1951 Refugee Convention and, accordingly, not entitled to the status of “refugee” within the meaning of that Convention, because of the operation of Article 1F(b) thereof.
Article 1F(b) provides that the Convention shall not apply to any person “with respect to whom there are serious reasons for considering that … he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.
Each of the appellants applied for permission to appeal to the Upper Tribunal against the First-tier Tribunal's determination. All of them advanced four grounds of appeal; but Khalil Ullah also advanced an additional ground.
In essence, ground 1 contended that the acquittal of the appellants on criminal charges brought in respect of the hijacking meant that on a “principled approach”, their exclusion by reason of Article 1F(b) was wrong. Ground 2 contended that the First-tier Tribunal had erred in law in relation to the defence of duress. Ground 3 said that the First-tier Tribunal had erred in law in finding that the hijacking of the aircraft was non-political. Ground 4 challenged the lawfulness of the First-tier Tribunal's rejection of the appellants' submissions regarding expiation.
As well as advancing an additional reason why the First-tier Tribunal had erred in relation to ground 4, based on his “complex medical problems”, Khalil Ullah advanced an additional ground, also based on his medical condition, which was that the First-tier Tribunal erred in failing to apply discretion in his case.
The purpose of the hearing in the Upper Tribunal on 12 October 2018 was to determine the scope of the grant of permission to appeal, made by the First-tier Tribunal on 18 January 2018 and, depending on our conclusions on that issue, to determine whether permission to appeal should be granted on any grounds on which the First-tier Tribunal had refused permission.
After the usual headings, the First-tier Tribunal's decision of 18 January 2018 read as follows:-
“ Application by Appellants
Permission to Appeal is Granted
REASONS FOR DECISION (including any decision on extending time)
1. The Appellants, Afghans, were all hijackers of an airline (sic). They were acquitted of criminal charges on appeal to the Court of Appeal on the basis that the jury were misdirected as to what constituted duress.
2. The Appellants above are 9 of the original 27.
3. They had all claimed asylum and the Secretary of State claimed that they were excluded from the Refugee Convention as Article 1F(b) applied to them.
4. The First-tier Tribunal heard the appeals on three separate occasions to determine discrete issues but directed at the conclusion of the third that the date of promulgation of the last, 21 st Decision [sic] 2017 should be taken as the date to trigger applications for permission to appeal. The applications are thus in time.
5. The Appellants seek permission to appeal in relation to only one of the decisions of the First-tier Tribunal, that taken on 7 th July 2015, which found that the Appellants are excluded from the Refugee Convention. The Appellants were successful on the first occasion (October 2013) in relation to A.3 of the ECHR.
6. While I am not persuaded that there is an arguable error of law in the First-tier Tribunal decision in relation to duress or its finding that the “crime” was not a political crime, I do consider it arguable that the Tribunal may have erred in its consideration of whether Article 1F(b) was applicable at all given that the Appellants had all been acquitted after trial.
Signed
Judge of the First-tier Tribunal
Date: 18 th January 2018”
What is the scope of the grant of permission by the First-tier Tribunal? The fact that this question needs to be asked is, in itself, regrettable. It is made worse by the fact that it has caused there to be further delay in the resolution of legal proceedings that have been on-going for the best part of two decades.
The appellants contend that the First-tier Tribunal has granted them permission on all the grounds that they respectively advanced. The respondent submits that permission has been granted only on ground 1.
Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Immigration & Asylum Chamber) Rules 2014 provides as follows:-
“ Tribunal's consideration of an application for permission to appeal to the Upper Tribunal
34.—(1) On receiving an application for permission to appeal the Tribunal must first consider whether to review the decision in accordance with rule 35.
(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.
(3) The Tribunal must send a record of its decision to the parties as soon as practicable.
(4) If the Tribunal refuses permission to appeal it must send with the record of its decision—
(a) a statement of its reasons for such refusal; and
(b) notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the manner in which, such application must be made.
(5) The Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.”
So far as relevant, the Tribunal Procedure (Upper Tribunal) Rules 2008 provide as follows:-
“ Application to the Upper Tribunal for permission to appeal
21.—(1) …
(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if—
(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and
(b) that application has been refused or has not been admitted or has been granted only on limited grounds.
…”
Blake J, the first President of the Immigration and Asylum Chamber of the Upper Tribunal, issued Guidance Note 2011 No. 1: Permission to appeal to UTIAC. Paragraph 25 of the Guidance Note reads as follows:-
“ Limited or restricted grounds
25. Whilst both the FtT when dealing with a “first application” for PTA (FtT Rules, r.25(5)) and the UT when dealing with a “second application” for PTA (UT Rules, r.22(4)) may restrict the grant of permission to specified grounds, the right of the applicant to apply to the UT for permission to appeal on other grounds and its practical consequences lead to the pragmatic suggestion that such a course is frequently more trouble than it is worth. A judicial observation on the merits of other grounds that have not caused permission to be granted may be of value to the judge seised of the appeal, who will be able to direct the parties to those grounds which are considered to have arguable merit. If nevertheless it is decided permission should only be granted or limited [on] restricted grounds, the Judge should state this expressly (and precisely), so that it is clear that he or she contemplates the possibility of the applicant applying to the UT in respect of the other grounds.”
Also, of relevance are the following paragraphs:-
“ The grounds of appeal
29. Where permission to appeal is being refused on competently drafted grounds, it is desirable that the decision and the reasons for it should engage, however briefly with those grounds. The maxim that an appellant is entitled to know why he or she has won or lost also has utility for PTA applications. There is a limit to what is required if grounds are overlengthy, rambling, incoherent and imprecise, but there should be some attempt to respond to the case as presented. What is called for is not description of the grounds, but...
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