An (only loser can appeal) Afghanistan
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 2005 |
| Date | 05 May 2005 |
| Court | Asylum and Immigration Tribunal |
Immigration Appeal Tribunal
Mr C M G Ockelton (Deputy President), His Honour Judge N Ainley (Vice-President), Ms C Jarvis (Vice-President)
Representation:
Mr T Greig, Home Office Presenting Officer, for the Secretary of State for the Home Department.
Cases referred to in the judgment:
R v Secretary of State for the Home Department ex parte Danaie [1998] Imm AR 84; [1998] INLR 124
Legislation judicially considered:
Immigration and Asylum Appeals (Procedure) Rules 2003, Rule 17(3)
Nationality, Immigration and Asylum Act 2002, ss 82, 83, 84, 85, 86, 87, 101, 102 and 106
Appeals meaning of determination and decision whether a party who does not seek to change the outcome can appeal ss 101 and 106 of the Nationality, Immigration and Asylum Act 2002 Rule 17(3) of the Immigration and Asylum Appeals (Procedure) Rules 2003 burden of proof
The Claimant's appeal against the Secretary of State for the Home Department's decision to issue removal directions was dismissed by an Adjudicator. In reaching his decision on the Claimant's appeal, the Adjudicator had addressed the issue of his age, concluding that in the absence of medical evidence, there was insufficient information for him to be able to reject the Claimant's assertion that he was in fact a minor. The Secretary of State appealed to the Immigration Appeal Tribunal on the basis that the Adjudicator had erred in law by reversing the burden of proof in relation to the assessment of the Claimant's age. Permission to appeal was granted on the basis that it was arguable that there was a right of appeal against decisions on incidental points such as age, irrespective of the result. The Claimant did not appeal against the Adjudicator's decision and made no contribution to the proceedings before the Tribunal.
Held, dismissing the appeal:
(1) the Adjudicator had erred in reversing the burden of proof, as alleged in the grounds of appeal; it was for the Claimant to establish any fact on which he relied; thus where he had claimed that he should not be removed because of his minority, it was for him to establish that he was in fact a minor (para 5);
(2) according to Rule 17(3) of the Immigration and Asylum Appeals (Procedure) Rules 2003 (the 2003 Rules), the grounds of appeal had to include an argument that the decision of the Adjudicator had been materially affected by an error of law and should therefore have been a different decision; in this context, the word decision meant the decision whether to dismiss or allow the appeal; the word determination had a broader meaning than the decision whether to allow or dismiss the appeal (paras 18 and 19);
(3) the combination of ss 101 and 106 of the Nationality, Immigration and Asylum Act 2002 Act (the 2002 Act) and Rule 17(3) of the 2003 Rules showed that however broad the concept of a determination was, a party could not appeal to the Tribunal without challenging the eventual decision; the statutory framework prohibited the Tribunal from dealing with an appeal in which the party appealing did not seek to have the Adjudicator's decision reversed (paras 18, 19 and 21).
Determination and Reasons
C M G Ockelton, Deputy President
[1] 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.
[2] 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...
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