An (only loser can appeal) Afghanistan
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 05 May 2005 |
| Neutral Citation | [2005] UKIAT 97 |
| Court | Immigration Appeals Tribunal |
| Date | 05 May 2005 |
[2005] UKIAT 97
IMMIGRATION APPEAL TRIBUNAL
Mr C M G Ockelton (Deputy President)
His Honour Judge N Ainley (Vice President)
Ms C Jarvis (Vice President)
For the Appellant: Mr T Grieg, Home Office Presenting Officer
For the Respondent: No appearance
AN (Only loser can appeal) Afghanistan
Under the 2002 Act and the 2003 Rules, an appeal to the Tribunal only lies if the party appealing seeks the reversal of the Adjudicator's decision to allow or dismiss the appeal.
The Appellant is the Secretary of State for the Home Department. He has been granted permission to appeal against the determination of an Adjudicator, Mr R D Crawford, dismissing the appeal of the Respondent (whom we shall call the Claimant), a citizen of Afghanistan, against his decision on 21 September 2003 to give directions for his removal as an illegal entrant after refusing asylum.
In reaching his determination, the Adjudicator said this, at paragraph 35:
“I address my first attention to the Appellant's age. He says he is sixteen. The Home Office dispute this. No medical evidence has been submitted. I do not have sufficient information to reject the Appellant's assertion that he is sixteen. I therefore must approach this case on the basis that he is sixteen and still a minor.”
He then went on, as we have indicated, to dismiss the appeal. The Secretary of State sought permission to appeal against the Adjudicator's determination on the ground that the Adjudicator erred in law in his approach to the Claimant's age: he had reversed the burden of proof.
The Vice President who gave permission to appeal wrote this:
“It is no more than arguable that in section 101.1 of the 2002 Act ‘… appeal to the Tribunal against the adjudicator's determination …’ includes a right of appeal against decisions on incidental points such as age, irrespective of the result.”
The Claimant himself did not appeal against the Adjudicator's determination and has made no contribution to these proceedings. Mr D O'Callaghan, counsel who happened to be in court on another matter, gave us valuable assistance in resolving the issues arising from the grant of permission. Before resolving that issue, we should record our firm opinion that the Adjudicator did err as alleged in the grounds of appeal. It is for the Claimant to establish any fact upon which he relies. In this appeal, the Claimant claimed that because of his minority he should not be removed from the United Kingdom: it was his task to establish his minority. The Adjudicator clearly approached the issue of the Claimant's age on the basis that once the Claimant had made an assertion, it was for the Secretary of State to adduce sufficient evidence to reject the assertion. That cannot be right. No doubt a matter can be proved simply on the basis of an assertion, but it is for the Adjudicator to decide, on all the evidence, whether the assertion is to be trusted.
As we say, we are confident that the Adjudicator erred in law in his approach to deciding the Claimant's age. What is much less clear is whether the Adjudicator did make any decision on the issue. It is more than arguable that the Adjudicator reached no firm conclusion, but merely structured the rest of his determination around what the position would be if the Claimant were aged sixteen.
Whether or not the Adjudicator's determination is to be read as including a firm decision on the Claimant's age, the crucial question in this appeal is whether, given that the Claimant failed in his appeal to the Adjudicator, the Secretary of State has any right of appeal to the Tribunal. To put that question more concisely, can the winner appeal? A court's first reaction to that question might be that a winner has no need to appeal: but the issue in this jurisdiction is not so clear. That is demonstrated by the decision of the Court of Appeal in R v SSHD ex parte Danaie [1998] INLR 124. In that case, the Court of Appeal held that if the Secretary of State proposed to ignore a finding of fact made by an Adjudicator, or to proceed on a different basis, he should explain why; it also restricted the circumstances in which he could do so to cases where the Adjudicator's decision either was demonstrably flawed or made without reference all the relevant evidence now available. Even though the Adjudicator's treatment of the issue of age was, as we have indicated, demonstrably flawed in this case, one can see that the Secretary of State would want to take advantage of the appellate process for setting aside any incidental determination of fact by an Adjudicator that was adverse to the Government, whatever the outcome of the appeal. It is, however, very far from clear that the decision of the Court of Appeal in Danaie has the force which it had. At the time Danaie was decided, there was an unrestricted right of appeal to the Tribunal, subject only to obtaining leave to appeal. An appeal could be brought by either party, and the grounds of appeal were not restricted to errors of law. Thus the Secretary of State could challenge any incidental findings of fact by appeal to the Tribunal. One can well understand the unwillingness of the courts to allow the Secretary of State to ignore such findings of fact, when he had had a proper opportunity to challenge them by appeal.
That is not the position now. The provision in both the 1971 and 1999 Acts allowing “ any party dissatisfied with the determination of an Adjudicator” to appeal to the Tribunal was replaced by different wording in the 2002 Act: and that Act also restricts the jurisdiction of the Tribunal to cases where the Adjudicator's determination disclosed a material error of law.
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