DK (Serbia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Lord Justice Longmore,Lord Justice Moore-Bick |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1747 |
| Docket Number | Case No: C5/2006/1714 & ORS C5/2006/1714(A) C5/2006/1147 C5/2006/1341 C5/2006/1080 C5/2006/1315 C5/2006/1143 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2006 |
[2006] EWCA Civ 1747
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Lord Justice Longmore and
Lord Justice Moore-Bick
Case No: C5/2006/1714 & ORS
C5/2006/1714
C5/2006/1714(A)
C5/2006/1147
C5/2006/1341
C5/2006/1080
C5/2006/1315
C5/2006/1143
Ms Frances Webber (instructed by Messrs Glazer Delmar) for the Applicant DK (Serbia)
Nabila Mallick (instructed by Messrs Chartwell & Sadlers) for the Applicant JN (Uganda)
Joanne Rothwell (instructed by Southall Rights) for the Applicant MS (Somalia)
Ms Frances Webber (instructed by Messrs Ovo) for the Applicant AI (Nigeria)
Manjit Gill QC & Jonathan Adler (instructed by Messrs Ikie) for the Appellant PE (Nigeria)
Joanne Rothwell (instructed by Messrs Oaks) for the Applicant SP (Serbia)
Mr G Clarke & Mr D Pievsky instructed by the Treasury Solicitor for the Respondents
Introduction
We are asked to consider these appeals together on the basis that each of them raises at least one of two issues as to which this court's guidance is thought to be helpful. They are appeals from decisions of the Asylum and Immigration Tribunal ("the Tribunal") , which was created by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("The 2004 Act") . The effect of the 2004 Act was to replace the previous appellate structure consisting of two tiers, that is adjudicator and the Immigration Appeal Tribunal, with a one tier structure. As is now familiar, the consequence is that there is no appeal from the Tribunal, other than to the Court of Appeal; but there is provision for what is called a "reconsideration" of a decision by a Tribunal in the event of that decision arguably being infected by an error of law. This court has been asked to consider, firstly, what the scope of such a reconsideration should be, and secondly, what procedures should be adopted by the Tribunal in dealing with the reconsideration. I propose firstly, but shortly, to deal with the history of the statutory provisions, secondly to set those provisions out, together with the relevant rules and Practice Directions, and then deal with the two issues in general terms. Finally I shall apply these general conclusions to the particular appeals and applications before us.
History
I said that I would deal with this shortly, because it has been set out in extenso together with a valuable analysis of the jurisdiction of the Tribunal's predecessor, the Immigration Appeal Tribunal, in the judgment of this court in R (Iran) –v- SSHD [2005] EWCA Civ 982. This judgment was concerned with the effects of the changes to the powers of the Immigration Appeal Tribunal as a result of the provisions of Section 101(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") which provided that an appeal lay to the Immigration Appeal Tribunal solely on a point of law. The issue in the appeals considered in that case related to the question of the Immigration Appeal Tribunal's power, having determined that there was an error of law, to make determinations of fact on the material before it, including any new material which it chose to admit, when deciding how to exercise its powers of disposal. The court concluded that the Immigration Appeal Tribunal, once it had identified an error of law, was entitled in particular in cases involving the Refugee Convention or rights under the European Convention on Human Rights, to consider the up to date position and, if necessary, to hear evidence in order to be able to decide on the appropriate disposal.
The court came to that conclusion, at least in part, on the basis of the decision of this court in Ravichandran [1996] Imm AAR 97 in which Simon Brown LJ held that in asylum cases the appellate structure created by the Act in force at the time was to be regarded as an extension of the decision making process. The result was described by Laws LJ in CA –v- SSHD [2004] EWCA (Civ) 1165 at paragraph 15 as follows:
"Once a material error in law is shown, I for my part would accept that the Tribunal must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case."
4. There is no doubt that the 2002 Act, which first imposed the restriction on appeals to those in which a point of law arose, was passed in order to control the proliferation of appeals under the previous structure which sought to overturn adverse findings of fact by an adjudicator. The 2004 Act retains that essential filter for the new concept of reconsideration. And the clear objective, whilst ensuring that any decision is lawful, is to streamline the overall appellate process by removing one tier of decision making. Whether that objective has been achieved by the 2004 Act may be a moot point. But nonetheless we should, I think, approach the matter on the basis that Parliament cannot have intended to enlarge the scope for challenging initial determinations by the Tribunal, the equivalent of decisions by adjudicators, unless constrained to do so by clear language.
The 2004 Act effected the changes to which I have referred in paragraph 1 above by way of amendment to the 2002 Act. Section 103A of the 2002 Act, as amended, contains the provisions with which we are principally concerned. This provides:
(1) A party to an appeal under section 82 ….. may apply to the appropriate court, on the grounds that the Tribunal made an error in law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under sub-section (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.
………….
(5) An application under sub-section (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 sub-section (1) shall be final.
……
(8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members.
(9) In this section (the appropriate court) means –
a. In relation to an appeal decided in England or Wales, the High Court,
……."
It was appreciated that the section, operated in accordance with its terms, would impose significant burdens on the High Court; as a result Schedule 2 to the 2004 Act contains provisions modifying the arrangements for applications for reconsideration of appeals. This empowers the Lord Chancellor to make an Order that the function of "the Court" should be exercised by a member of the Tribunal. The Lord Chancellor has made an Order the effect of which is that ever since the commencement of the 2004 Act, applications for reconsideration have been dealt with by Senior Immigration Judges of the Tribunal. Provision is made by paragraph 30 of the Schedule for applicants to renew their applications in writing to the High Court in the event of the senior Immigration Judge declining to order reconsideration.
The Procedure Rules
The procedural rules are contained in the Asylum and Immigration Tribunal (Procedure) Rules (2005) (SI 2005/230) ("the rules") . These provide, in relation to reconsiderations, as follows:
" Deciding Applications for Review
26. (1) A section 103A application shall be decided by an immigration judge authorised by the President to deal with such an application.
(2) The immigration judge shall decide the application without a hearing, and by reference only to the applicant's written submissions and the documents filed with the application notice.
(3) The immigration judge is not required to consider any grounds for ordering the Tribunal to reconsider its decision other than those set out set out in the application notice.
…..
(6) The immigration judge may make an order for reconsideration only if he thinks that –
a. the Tribunal may have made an error in law; and
b. there is a real possibility that the Tribunal would decide the appeal differently on reconsideration.
Form and service of Decision
27. (1) Where an immigration judge decides a section 103A application he must give written notice of his decision, including the reasons which may be in summary form.
(2) Where an immigration judge makes an order for reconsideration –
(a) his notice of decision must state the grounds on which the Tribunal is ordered to reconsider its decision on the appeal; and
(b) he may give directions for the reconsideration of the decision on the appeal which may –
(i) provide for any of the matters set out in rule 45 (4) which he considers appropriate to such reconsideration and:
(ii) specify the number or class of members of the Tribunal to whom the consideration shall be allocated.
…….
Reply
30. (1) When the other party to the appeal is served with an order for reconsideration, he must, if he contends that the Tribunal should uphold the initial determination for reasons different from or additional to those given in the determination, file with the Tribunal and serve on the applicant a reply setting out his case.
(2) The other party to the appeal must file and serve any reply not later than five days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal.
(3) In this rule the "other party to the appeal" means the party...
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