JM (Rule 62(7))
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 06 February 2006 |
| Neutral Citation | [2006] UKAIT 9 |
| Court | Asylum and Immigration Tribunal |
| Date | 06 February 2006 |
[2006] UKAIT 9
ASYLUM AND IMMIGRATION TRIBUNAL
*STARRED*
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Miss E Arfon-Jones (Deputy President)
Professor A Grubb (Senior Immigration Judge)
For the Appellant: Mr R Symonds of Refugee Legal Centre
For the Respondent: Ms R Brown, Home Office Presenting Officer
JM (Rule 62(7); human rights unarguable) Liberia *
1. Rule 62(7) has effect in restricting the grounds which may be argued in a reconsideration to which Rule 62 applies. 2. If the appellant's human rights claim depends on the consequences of removal, his human rights grounds cannot avail him in an appeal against a decision that does not entail removal.
The Appellant is a citizen of Liberia. He arrived in the United Kingdom on 3 July 2003 and was given six months leave to enter as a visitor. On 29 August 2003, he applied for refugee status. On 9 February 2004, the Respondent gave notice of his refusal to vary the Appellant's leave. The Appellant appealed under section 82 of the 2002 Act on asylum and human rights grounds. His appeal was heard by an Adjudicator, Mr J R Devittie, who dismissed it on both grounds in a determination sent out on 21 May 2004. The Appellant applied for permission to appeal to the Immigration Appeal Tribunal on ten numbered grounds. He was granted permission on two of them. They are set out in the Vice President's reasons for her decision as follows:
“It is asserted in the grounds of application that:
(a) the Adjudicator failed to deal with the submission made on the Claimant's behalf that, as no removal directions had been set, the human rights claim could not be determined as removal could not be said to be imminent.
…
(b) that the Adjudicator's determination does not record the fact that the Claimant's daughter gave oral evidence and that, accordingly, her evidence has not been taken into account when the Adjudicator considered the Article 8 claim. This is arguable.
Permission to appeal is granted to raise the above two points only. Permission is otherwise refused.”
That decision is dated 29 September 2004. Following the commencement of the appeals provisions of the 2004 Act, the grant of permission operates as an order that this Tribunal reconsider the Appellant's appeal.
On 10 June 2005, the Appellant was notified that the hearing of the reconsideration would be on 16 August and he thereupon, through his representatives, sought to amend the grounds for reconsideration. The proposed amended grounds assert that the Adjudicator erred in law in his assessment of the personal and the country evidence; that he erred in law in failing to consider the activities of non-state agents; that he erred in law in failing to give reasons for his conclusions, and that his dismissal of the Appellant's human rights appeal was unsustainable on the evidence. As Mr Symonds of the Refugee Legal Centre (who appeared for the Appellant) recognised, it was far from clear whether the Tribunal had power to allow him to amend his grounds in this way. We are very grateful to him for the full skeleton argument that he produced, as well as for his submissions.
As we have said, this matter comes before the Tribunal on reconsideration, following the commencement of the appeals provisions of the 2004 Act. Those provisions came into effect on 4 April 2005. By then, the Immigration Appellate Authority and the Immigration Appeal Tribunal were both abolished and replaced by a single Asylum and Immigration Tribunal. The right of appeal from an Adjudicator to the Immigration Appeal Tribunal was abolished and replaced by a process under which, in appropriate cases, appeals are reconsidered. These changes are affected by the amendment of the 2002 Act. That Act, also as amended by the 2004 Act, contains power to make rules for the conduct of appeals in this Tribunal, and the 2004 Act itself contains power to make transitional provisions.
The relevant transitional provisions are in the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 ( SI 2005/656). Articles 4 and 5 are, so far as relevant, in the following terms:
4. Subject to article 3 [which simply postpones the effect of the following transition in cases where, at commencement, an appeal had been heard but the determination had not yet been sent out] –
…
(b) any appeal to the Immigration Appeal Tribunal which is pending immediately before commencement shall continue after commencement as an appeal to the Asylum and Immigration Tribunal.
5.- (1) This article applies, subject to article 3, in relation to any appeal which immediately before commencement is –
…
(b) pending before an adjudicator.
(2) The Asylum and Immigration Tribunal shall, after commencement, subject to rules under section 106 of the 2002 Act deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision.
We do not need to set out the whole of the rule-making power. We hope that we do Mr Symonds submissions no injustice if we confine ourselves to the following:
106. Rules
(1) The Lord Chancellor may make rules –
(a) regulating the exercise of the right of appeal under section 82, or 83 or by virtue of section 109
(b) prescribing procedure to be followed in connection with proceedings under section 82, or 83 or by virtue of section 109
(1A) In making rules under subsection (1) the Lord Chancellor shall aim to ensure –
(a) that the rules are designed to ensure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible, and
(b) that the rules where appropriate confer on members of the Tribunal responsibility for ensuring that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible.
(2) In particular, rules under subsection (1) –
…
(v) may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);
….
The Rules are the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Contrary to Mr Symonds' submissions, we must start with Rule 62(6) and (7), which clearly apply to this appeal and are in the following terms:
(6) Where, pursuant to a transitional provisions order, the Tribunal reconsiders an appeal which was originally determined by an adjudicator, Section 2 of Part 3 shall apply to the reconsideration, subject to paragraph (7).
(7) Where –
(a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator's determination before 4 April 2005, but the appeal has not been determined by that date; and
(b) by virtue of a transitional provisions order the grant of permission to appeal is treated as an order for the Tribunal to reconsider the adjudicator's determination, the reconsideration should be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal.
In his efforts to show that that Rule means something other than what it says, Mr Symonds made reference to a number of other provisions of the 2005 Rules.
Rule 4 is headed “ Overriding Objective”:
4. The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and the wider public interest.
Rule 14 provides that an Appellant may vary his grounds of appeal only with the permission of the Tribunal; but Rule 29 makes it clear that Rule 14 does not apply to reconsiderations.
Rules 26 and 27 relate to the procedure to be adopted on applications for review and orders for reconsideration made after commencement. Rule 26 provides, amongst other things, that the Immigration Judge (in fact a Senior Immigration Judge) deciding an application for review is to do so by reference only to the applicant's written submissions and the documents filed with the application notice and is not required to consider any grounds for ordering the Tribunal to reconsider its decision other than those set out in the application notice. Rule 27 requires the decision to be in writing and to include reasons. Rule 27(2) is as follows:
27(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 reconsideration shall be allocated.
Rule 31 is headed “ Procedure for reconsideration of appeal” and is as follows:
- (1) Where an order for reconsideration has been made, the Tribunal must reconsider an appeal as soon as reasonably practicable after that order has been served on both parties to the appeal. (2) Where the reconsideration is pursuant to an order under section 103A – (a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and (b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand. (3) Subject to paragraph (2), the Tribunal must substitute a fresh decision to allow...
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