MA (Pakistan) and Others v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Hughes,The President of the Family Division
Judgment Date25 January 2007
Neutral Citation[2007] EWCA Civ 16
Date25 January 2007
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2005/2781

[2007] EWCA Civ 16

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION

APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

The President of the Family Division

Lord Justice Maurice Kay and

Lord Justice Hughes

Case No: C5/2005/2781

Between
AM (Serbia); MA (Pakistan); MA (Sudan)
Appellants
and
Secretary of State for the Home Department
Respondent

Kathryn Cronin (instructed by Messrs Wilson & Co) for the Appellant – AM (Serbia) (1)

Upali Cooray (instructed by Messrs Thompson & Co) for the Appellant – MA (Pakistan) (2)

Raza Husain (instructed by Refugee Legal Centre) for the Appellant – MA (Sudan) (3)

James Eadie (instructed by the Treasury Solicitor) for the Respondent (1)

Philip Coppel (instructed by the Treasury Solicitor) for the Respondent (2)

James Eadie (instructed by the Treasury Solicitor) for the Respondent (3)

Lord Justice Maurice Kay
1

Frequent statutory changes to legal structures and procedures necessitate transitional provisions. Sometimes the pace of change and the complexity of the provisions produce anomalies and possibly unintended consequences. Parliament turned its attention to the immigration and asylum adjudication system in 1999 and, for present purposes, more radically in 2002 and 2004. Until 2002, the system for many years had taken the form of a right to appeal against a decision of the Secretary of State to an adjudicator, with a further right of appeal with leave to the Immigration Appeal Tribunal (“IAT”). The jurisdiction of the IAT was not limited to points of law. An applicant who was refused leave could challenge the refusal by resort to judicial review. A party dissatisfied with a substantive decision of the IAT could appeal to the Court of Appeal. This was a cumbersome system and it resulted in protracted litigation with an obvious potential for delay and abuse. By the Nationality, Immigration and Asylum Act 2002, two significant amendments were introduced. Appeals from an adjudicator to the IAT were restricted to appeals on points of law (section 101(1)) and conventional judicial review of a refusal of leave to appeal to the IAT was replaced by statutory review of the leave decision (section 101(2)). Statutory review was confined to a decision on the papers by a judge of the Administrative Court. His jurisdiction is limited to errors of law and his decision is final (section 101(3)).

2

The reform of the system by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was far more radical. It abolished the two tier appellate structure of adjudicator and IAT and replaced it with a single tier, now called the Asylum and Immigration Tribunal (“AIT”). The AIT started and the IAT ceased to exist on 4 April 2005. In place of the two tier appeal, provision is now made for “reconsideration” within, but at different levels of, the single tier.

3

The three cases before the Court are not cases which fall to be dealt with by the AIT entirely under the 2004 Act. They are a category of transitional case. In short, they are cases in which an adjudicator had made a decision and the IAT had given leave to appeal before 5 April 2005, but the IAT had not heard the substantive appeal before it ceased to exist. For such cases, the following transitional provisions were enacted.

The transitional provisions

4

By section 48(3)(a) of the 2004 Act, the Lord Chancellor was empowered to bring the relevant provisions of the Act into force by way of commencement orders. In particular, section 48(4)(a) provided that a commencement order “may make transitional or incidental provision” and, by section 48(5), transitional provision included making provision for proceedings which

“immediately before commencement …

(b) are awaiting determination by the Immigration Appeal Tribunal.”

5

The relevant commencement order was the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No.5 and Transitional Provisions) Order 2005 (the Commencement Order). Article 4 of the Commencement Order provides:

“(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.”

6

Article 5(2) then provides:

“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.”

7

The rule-making power under section 106(1) of the 2002 Act (as amended by the 2004 Act) confers upon the Lord Chancellor the power to make rules

“(a) regulating the exercise of the right of appeal …

(b) prescribing procedure to be followed …”

8

Of central importance in the present cases is section 106(1A), which provides that, 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.”

9

In the exercise of this rule-making power, the Lord Chancellor promulgated the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Procedure Rules”). Transitional provisions are contained in Rule 62. The present cases are concerned with Rule 62(7) which provides:

“Where –

(a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator's determination before 4 th 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 shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal.” (emphasis added)

10

The literal meaning of the words I have emphasised is plainly that the AIT has no power to permit an applicant to amend his grounds of appeal, either by renewing grounds for which permission was expressly refused by the IAT or by the addition of new grounds. What the appellants in these three appeals are seeking to do is to circumvent the literal meaning of Rule 62(7). In each case, the AIT considered itself bound to hold the appellant to the grounds upon which the IAT had granted permission to appeal.

11

After the IAT granted permission in these cases and until 4 April 2005, it would have been possible for each appellant to apply to vary his grounds of appeal pursuant to Rule 20 of the Immigration and Asylum (Procedure) Rules 2003. The IAT could permit variations. It could even do so in relation to grounds for which it had earlier refused permission if it was satisfied that “because of special circumstances, it would be unjust not to allow the variation”. Alternatively, in relation to grounds for which permission had been refused at the time when permission for others had been granted, (or when permission had been refused on all grounds), a disappointed applicant could seek statutory review, provided he could show an error of law. None of the present appellants took that course. Anecdotally, it was common but not invariable for disappointed applicants to rely on Rule 20 rather than statutory review.

The problem

12

In a nutshell the problem is this: if a transitional applicant to the AIT has an arguable and potentially meritorious point of law for which the IAT, when granting permission on other grounds, either refused or was not asked to grant permission, is he now prevented by Rule 62(7) from raising or resurrecting it before the AIT? This is an important issue of principle. I shall approach it on the assumption that the point is arguable and potentially meritorious. It goes without saying that statutory review, although a possibility at the time in relation to rejected, but not wholly new, grounds of appeal, had ceased to be an available remedy in these cases long before 4 April 2005 because of the tight time limits within which it operates.

The answer of the AIT

13

The authoritative decision of the AIT on Rule 62(7) is the starred decision JM (Rule 62(7); (human rights unarguable) Liberia [2006] UKAIT 00009. Mr C M G Ockleton, Vice-President, said (at paras 26–27):

“We hold that, with three reservations, Rule 62(7) means what it says. We are not persuaded that there is any reason it should not mean what it says; and in our judgment it is not unfair to have required those, who sought to take advantage of the existence of an appellate process to enlarge their grounds, to do so before the appellate process ceased to exist … there is in any event nothing in the Rules or the 2002 Act which would enable us to give a meaning to Rule 62(7) other than that which it appears on its face to bear in restricting the ambit of a reconsideration in cases to which transitional provisions apply.

The three reservations are as follows. First, in our view Rule 62(7) is to be read in the light of any order made on statutory review; such order is to be treated as though it were incorporated in the IAT's grant of permission to appeal. Secondly, Rule 62(7) cannot prevent a challenge to jurisdiction and so enlarge the jurisdiction of the Tribunal: see SS (Somalia) [2005] UKAIT 00167. Thirdly, there is also a need to make allowance for obvious points of Refugee Convention law in the Robinson [1998] QB 929 sense.”

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