JM (Rule 62(7) (Human Rights Unarguable) Liberia*
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 2006 |
| Neutral Citation | [2006] UKIAT 9 |
| Date | 06 February 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton, Deputy President, Miss E Arfon-Jones, Deputy President and Professor A Grubb, Senior Immigration Judge
Representation
Mr R Symonds of the Refugee Legal Centre, for the Claimant;
Ms Ros Brown, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
R v Secretary of State for the Home Department and Immigration Appeal Tribunal ex parte RobinsonWLR [1997] 3 WLR 1162; [1997] Imm AR 568; [1997] INLR 182
SS (JurisdictionRule 62(7); Refugee's family; Policy) Somalia [2005] UKAIT 00167
Legislation judicially considered:
The Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230, Rule 62(7)
Jurisdiction Asylum and Immigration Tribunal transitional provisions power to amend grounds of appeal at time of reconsideration procedure and process grounds of appeal human rights claim no removal directions set
The Claimant, a citizen of Liberia, applied for asylum after entering the United Kingdom as a visitor. The Secretary of State for the Home Department refused the application. The Claimant appealed to an Adjudicator, who dismissed his appeal on asylum and human rights grounds. He was granted permission to appeal to the Immigration Appeal Tribunal on the grounds that, first, the Adjudicator failed to deal with his submission that his human rights claim could not be determined as no removal directions had been set; secondly, the Adjudicator failed to take all the evidence into account in determining the appeal under Article 8 of the ECHR. The grant of permission took effect as an order for reconsideration by the Asylum and Immigration Tribunal. On receiving notification of the date of the hearing the Claimant sought to amend the grounds for reconsideration. Rule 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provided that where a grant of permission to appeal took effect as an order for reconsideration, the reconsideration should be limited to the grounds on which permission to appeal was granted; the Claimant submitted that cases falling under that provision should be treated in the same way as cases falling entirely under the new appeals provisions in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act), which contained a power to amend the grounds for review at the time of reconsideration.
Held, substituting a fresh determination dismissing the Claimant's appeal against the decision by the Secretary of State:
(1) there were good reasons for treating cases under the new appeals provisions in the 2004 Act differently from transitional cases as the new provisions were intended to create a new appellate system; in transitional cases Rule 62(7) operated so as to limit both stages of reconsideration to the grounds on which permission to appeal was granted; it was not unfair to have required claimants seeking to amend their grounds to do so before the appellate procedure ceased to exist (paras 16, 20, 22, 25 and 26);
(2) there were three reservations to this rule: first, an order made on Statutory Review was to be treated as though it was incorporated into the grant of permission to appeal; secondly, Rule 62(7) could not prevent a challenge to jurisdiction (SS (JurisdictionRule 62(7); Refugee's family; Policy) Somalia [2005] UKAIT 00167 applied); thirdly, allowance had to be made for obvious points of Convention law (R v Secretary of State for the Home Department ex parte Robinson [1997] Imm AR 568 applied) (para 27);
(3) where there were human rights issues to be raised, they should be raised at the moment when removal was threatened rather than at the moment when it became theoretically possible; where the Secretary of State refused to vary leave to enter or remain, removal was not imminent in any legal sense because of the need for a further removal decision (para 33).
Determination and Reasons
C M G Ockelton, Deputy President:
[1] 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.
[2] 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.
[3] 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.
[4] 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...
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