As (Sudan) (R) v Secretary of State for the Home Department

Lord Justice Sullivan:

1. These two applications for permission to appeal have been listed for hearing together because they both raise the same preliminary issue: whether the Court of Appeal has jurisdiction to hear the appellants' appeals under Section 103B of the Nationality, Immigration and Asylum Act 2002 (“The Act”).

2. This hearing is confined to that preliminary issue. We are not at this stage considering whether permission to appeal should be granted if we consider that the Court of Appeal does have jurisdiction to hear the appeals. In both cases the Asylum and Immigration Tribunal (“the AIT”) considered an appeal by the appellant. In AS's case her appeal was dismissed, and in RA's case his appeal was allowed. In both cases reconsideration was ordered: in the case of AS by Charles J on 25 July 2008, and in the case of RA by Senior Immigration Judge Allen on 6 April 2009. In the case of AS the reconsideration hearing was held by Senior Immigration Judge Roberts on 29 August 2008. In a determination promulgated on 12 September 2008 he issued a notice under Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Rules”) in which he concluded that there had been no immigration decision which carried a right of appeal so that:

“The Tribunal (rather belatedly) declines to accept the notice of appeal. No further action will be taken on it.”

3. In the case of RA the consideration hearing was held by Senior Immigration Judge Warr on 15 June 2009. In a determination promulgated on 18 June 2009 he concluded that RA had had no in country right of appeal and:

“For these reasons, the immigration judge had no jurisdiction to deal with the appeal and the Secretary of State's challenge succeeds.

Accordingly I substitute a fresh decision:

The purported appeal is dismissed for want of jurisdiction.”

4. At this stage we are not concerned with whether the Senior Immigration Judges' determinations were or were not correct. The only question is whether the Court of Appeal has jurisdiction to consider the appellants' contentions that they were not correct. It might have been thought that this question had been answered by the decision of this court in JH (Zimbabwe) v SSHD[2009] EWCA Civ 78. In that case the appellant JH's appeal had been allowed by an immigration judge. The Secretary of State appealed, reconsideration was ordered and a fresh decision dismissing the appeal was substituted. On an appeal under Section 103B the Court of Appeal set aside that decision and remitted the case, by consent, to a differently constituted tribunal. On that reconsideration Senior Immigration Judge Spencer concluded that the Asylum and Immigration Tribunal had no jurisdiction to entertain JH's appeal. He said that he was obliged by Rule 9(2)(6) of the rules to take no further action and his decision, expressed as a decision that JH had no right of appeal, was promulgated on 19 September 2007.

5. The Secretary of State contended that there was no right of appeal against that decision. The relevant statutory provisions are set out in paragraphs 5 and 6 of the judgment of Richards LJ, with whom Laws and Wall LJJ agreed:

“Rule 9 of the Procedure Rules provides:

‘9(1) Where (a) a person has given notice of appeal to the Tribunal; and (b) there is no relevant decision, the Tribunal shall not accept the notice of appeal.

(2) Where the Tribunal does not accept a notice of appeal, it must (a) notify the person giving the notice of appeal and the respondent; and (b) take no further action.’

6. The tribunal's power to reconsider one of its decisions and the right to bring a further appeal to the Court of Appeal following a reconsideration by the tribunal are governed respectively by ss.103A and 103B of the 2002 Act, which provide in material part:

103A.Review of Tribunal's decision

(1) A party to an appeal under section 82 or 83 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.

…

(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to –

(a) a procedural, ancillary or preliminary decision, or

(b) a decision following the remittal under Section 103B…

103B.Appeal from the Tribunal following reconsideration

(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to –

(a) an order under section 103A(1), or

(b) remittal to the Tribunal under this section …

(4) On an appeal under subsection (1) the appropriate appellate court may –

…

(c) remit the case to the Tribunal…”

6. Having set out those statutory provisions, Richards LJ continued in paragraphs 7 and 8 of his judgment:

“7. For the Secretary of State, Mr Beer submits that the SIJ's decision was not a decision taken after reconsideration of the appeal, so as to engage a right of appeal under s.103B(1), but was taken pursuant to rule 9 of the Procedure Rules and was a procedural or preliminary decision within the meaning of s.103A(7). Although the case had been remitted by the Court of Appeal for a fresh reconsideration, what happened thereafter was that the SIJ expressly declined to reconsider the case, on the ground that the tribunal lacked jurisdiction to accept the appeal in the first place. Mr Beer seems to reinforce his case by policy arguments, containing that Parliament must have intended that tribunal decisions on procedural or preliminary points would be final and could not be subject to appeal (though judicial review might still lie).

8. I have no hesitation in rejecting those submissions. In this case the tribunal had moved far beyond the rule 9 stage. The notice of appeal had been accepted by the tribunal and the appeal had already been determined and reconsidered once. The case had then gone to the Court of Appeal and had been remitted for a fresh reconsideration. That was how it came before the SIJ. I think it plain that his decision was reached on...