R (AM) (Cameroon) v Asylum and Immigration Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller |
| Judgment Date | 20 February 2008 |
| Neutral Citation | [2008] EWCA Civ 100 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2008 |
| Docket Number | Case No: C4/2006/0031 |
[2008] EWCA Civ 100
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of The Court of Appeal, Civil Division
Lord Justice Rix and
Lord Justice Hooper
Case No: C4/2006/0031
Mr Rabinder Singh QC and Amanda Weston (instructed by Messrs Luqmani Thompson) for the Claimant
Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the Defendant
Mr Clive Lewis QC (instructed by the Treasury Solicitor) for the Interested Party
Approved Judgment
Hearing date : 4 th December 2007
This is the judgment of the court.
By judgments dated 21 st February 2007 we granted AM permission to apply for judicial review of certain interlocutory decisions and indeed the final decision of Immigration Judge Sacks relating to her appeal under section 82 of the National Immigration and Asylum Act 2002 (the Act). We thought it arguable that certain interlocutory decisions which had resulted in AM not being able to put in the evidence of two witnesses, and which had refused her an adjournment on the grounds of ill health so that she could not give evidence herself, had prevented a fair hearing. We thought it was arguable that his final decision, to dismiss her appeal on the ground that her version of events was not credible, had been reached in breach of natural justice.
One problem with which we had to wrestle and with which we still must wrestle is that, in addition to applying for permission to move for judicial review, AM had made an application under section 103A and Bean J had made a decision under that section dismissing the application, a decision which under that section was “final”. We thought it arguable that AM should be entitled to be placed back in the position before that decision of Bean J was made because of an error by the court in failing to list the Judicial Review proceedings for an oral hearing prior to any decision under section 103A.We adjourned the substantive application to a further hearing before the same constitution. That hearing took place on 4 th December 2007.
The facts and circumstances are fully spelt out in the judgment of ( Hooper LJ [2007] EWCA Civ 131) and the problems that the case raises and its context appear from all three judgments. Much of the relevant authority is cited in those judgments and we accordingly take those judgments as read.
At the substantive hearing two matters remained open for argument; first whether the court should entertain the complaints advanced where there existed the decision of Bean J under section 103A which, in substance, had rejected those complaints and whose decision under section 103A was by virtue of 103A (6) “final”. Second, if so, whether on the facts of the case judicial review should be granted, this question containing two elements – was judicial review appropriate where a form of judicial review on paper under section 103A existed, and if it was appropriate whether there had been a breach of natural justice in this case such that the decision or decisions of the immigration judge should be set aside.
As we made clear in our previous judgments this is a very troublesome case. It is troublesome because it was clearly Parliament's intention that section 103A would introduce a speedy form of judicial review of appeals in immigration cases. Furthermore decisions of the court, including the Court of Appeal, have sought to give effect to that intention. The section provides for an application to have a decision reconsidered to be made on paper without an oral hearing to a High Court Judge; the opportunity to have that review is “only once in relation to an appeal” and the decision of the High Court judge is “final”. The Court of Appeal in R (G) v AIT, R (M v AIT) [2005] 1 WLR 1445 has held that the paper procedure “provides adequate and proportionate protection of the asylum seeker's rights” and that accordingly it was proper for a court “to decline to entertain an application for judicial review of issues which have been or could have been the subject of statutory review.” The exception contemplated by that decision was that “Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review.” [See quotation in paragraph 106 of Hooper LJ's judgment]. To contemplate that exception, covering more than the rarest of cases, would be contrary to Parliament's intentions and the key question is whether this case falls within that exception.
It is important to add and emphasise that the courts have also been firm in resisting challenges to interlocutory decisions since, if the alleged error persists in the final determination, that decision can be challenged under section 103A and, if exceptions to that approach are common, again the delays which Parliament was intending to curtail will be reintroduced.
On the other hand, if circumstances reveal a denial of justice in the reaching of a decision, to allow that decision to stand is difficult to contemplate. Furthermore, if a mistake by the court may have led to a “final” decision being reached under section 103A, there must arise a question as to whether the claimant should be disadvantaged by such a ruling.
In considering this case on this occasion we plan to consider the matter in stages. Obviously the fact that there has been a section 103A decision and that decision is final is an important factor and if that decision is not to have effect as a final decision it has in some way to be set aside or declared of no effect. If it cannot be set aside or in some way ignored that must be the end of the matter. The first question thus has to be whether that decision can be set aside or said to have no effect.
The main argument of Mr Rabinder Singh QC for AM for being able to ignore the section 103A decision was originally on the following lines. By reference to such authorities as Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 he argued that a decision reached contrary to natural justice is a nullity. If the decision or decisions of the immigration judge were reached in breach of natural justice, those decisions were a nullity. Thus (he argued) since Bean J reached a decision under section 103A by reference to a decision that was a nullity, the decision of Bean J itself must be a nullity, or a decision which can simply be ignored once the underlying decision has been declared a nullity.
We are not persuaded that this line of argument is valid. We can understand the argument that a decision which would otherwise be final may itself be a nullity or not a decision to which the section applies, because that decision itself has been reached in breach of natural justice, but that is not the suggestion in this case. Indeed since Bean J's decision was a judicial decision the concept of it being a “nullity” may not be apposite at all. That concept is applicable to decisions of administrative tribunals not to decisions of a High Court Judge (see in Re Racal Communications Ltd [1980] 3 WLR 181 and the speech of Lord Diplock at 188C). If Bean J's decision was itself reached in breach of natural justice, other processes for reopening the decision or holding the decision was not a decision within the section, might be available, but since breach of natural justice vis à vis Bean J is not alleged the allegation of breach of natural justice cannot itself provide a route for setting aside or being able to ignore his decision.
If Bean J's decision is to be set aside or ignored it has to be done by a virtue of something which affects that decision itself or the way it was reached. There cannot be any doubt that under section 103A Bean J had the jurisdiction to examine the question whether the immigration judge “may have made an error of law” (section 103A(2)(a)). Undoubtedly that would include the question whether arguably there had been a breach of natural justice in relation to the process by which the immigration judge's decision was reached. As Mr Chamberlain forcefully points out, and as indeed Waller LJ commented in his previous judgment, the very allegations made in the application for judicial review were allegations repeated in the section 103A paper application. If, therefore, Bean J has decided that the immigration judge has not made an error of law in a way which is finally binding, no fellow High Court Judge or Court of Appeal could interfere with it.
The question is whether there were circumstances affecting the way in which Bean J reached his decision which could lead to the court, i.e. a fellow High Court Judge (remembering we are dealing with an appeal from Stanley Burnton J), being entitled to set aside his decision or ignore his decision. One can see from our previous judgments that there were certain things which concerned us about the way the matter came before Bean J and indeed our judgments would indicate an instinctive feeling that this substantive application should be considered as at a time when there was no decision of Bean J. The question is whether there is a juridical basis for giving effect to our instincts.
The application for judicial review was issued before any decision was promulgated by the immigration judge. The claim form requested an order “staying the hearing and determination of the appeal until she had been given a reasonable opportunity to stabilize her medical condition and...
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