R (Iran) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Brooke
Judgment Date27 July 2005
Neutral Citation[2005] EWCA Civ 982
Docket NumberCase Nos: C4/2004/2159, C4/2004/2586, C5/2005/0751,
CourtCourt of Appeal (Civil Division)
Date27 July 2005
Between
R (Iran)
Appellant (2159)
A (Afghanistan)
Appellant (2586)
M (Afghanistan)
Appellant (0682)
T (Afghanistan)
Appellant (0751)
T (Eritrea)
Appellant (0687)
and
Secretary of State for the Home Department
Respondent in All the Appeals

[2005] EWCA Civ 982

Before

Lord Justice Brooke,

Vice-President of the Court of Appeal, Civil Division

Lord Justice Chadwick and

Lord Justice Maurice Kay

Case Nos: C4/2004/2159, C4/2004/2586, C5/2005/0751,

C4/2005/0682 and C5/2005/0867

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

Melanie Plimmer (instructed by Browell Smith & Co) for R A appeared in person

Manjit S Gill QC & Luthfur Rahman (instructed by White Ryland) for T (Afghanistan)

Manjit Gill QC & Benjamin Hawkin (instructed by White Ryland) for M

Tublu K.Mukherjee (instructed by Fisher Meredith) for T (Eritrea)

Jane Collier (instructed by the Treasury Solicitor) for the Respondent in 2159

Lisa Giovannetti (instructed by the Treasury Solicitor) for the Respondent in 2586, 0751 and 0682

Robin Tam (instructed by the Treasury Solicitor) for the Respondent in 0687

INDEX

Paragraph

Part 1

Introductory: the powers of the IAT under the 2002 Act

1

Part 2

Recent authoritative guidance: the power of the IAT to correct errors of fact

6

Part 3

The jurisdiction to correct errors of law: examples of errors of law commonly encountered

9

Part 4

Perversity, the failure to give reasons, and proportionality

11

Part 5

Country Guidance cases

21

Part 6

Error of law: unfairness resulting from a mistake of fact.

28

Part 7

Evidence of a change of circumstances since the original decision

34

Part 8

The willingness of the IAT to admit evidence of changed circumstances

38

Part 9

Examples of the admission of new evidence or changed circumstances in asylum appeals

45

Part 10

The function of the IAT in its restricted appellate role

51

Part 11

Buxton LJ's obiter observations in Miftari

59

Part 12

The application of these principles to the five appeals

76

Part 13

A summary of the main points in this judgment

90

Part 14

Appeals to the Court of Appeal

92

Appendix:

R (Iran)

94

A (Afghanistan)

121

M and T (Afghanistan)

133

T (Eritrea)

159

Lord Justice Brooke

Lord Justice BrookeThis is the judgment of the court.

Part 1 Introductory: the powers of the IAT under the 2002 Act

1

These five appeals were listed before the same division of the court in a single week in order to enable us to address a number of questions that have arisen since the jurisdiction of the former Immigration Appeal Tribunal ("IAT") was restricted to appeals on a point or points of law. Although the IAT has now been abolished and replaced by the single tier Asylum and Immigration Tribunal ("AIT"), much of what we say will be equally relevant to the new statutory regime, in which the power to reconsider an original decision in the AIT will only arise in relation to issues of law. We are setting out the detailed facts of these appeals in the Appendix to this judgment. In this main judgment we will be concerned to explain the relevant principles of law, and then to state briefly how they are to be applied to the individual cases whose details are to be found in the Appendix.

2

The jurisdiction of the adjudicator in all these cases was conferred by s 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") because all the impugned decisions of the Secretary of State postdated 1 st April 2003. Section 84(1)(g) of the 2002 Act provided that an appeal against an immigration decision (a phrase which includes a decision to remove) might be brought on the ground, among others:

"(g) that [the appellant's] removal from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."

3

Section 86(3) provided that the adjudicator must allow the appeal in so far as he thought that:

"(a) a decision against which the appeal is brought was not in accordance with the law (including immigration rules) or

(b) a discretion exercised in making a decision against which the appeal is brought … should have been exercised differently."

4

In each of the present cases the decision of the adjudicator postdated 9 th June 2003, so that appeal to the IAT lay pursuant to s 101(1) of the 2002 Act, which provided that:

"(1) A party to an appeal to an adjudicator under section 82 … may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."

5

Section 102, for its part, provided that:

"(1) On an appeal under section 101 the Immigration Appeal Tribunal may —

(a) affirm the adjudicator's decision;

(b) make any decision which the adjudicator could have made;

(c) remit the appeal to an adjudicator;

(d) affirm a direction given by the adjudicator under section 87;

(e) vary a direction given by the adjudicator under that section;

(f) give any direction which the adjudicator could have given under that section.

(2) In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision.

(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular —

(a) require the adjudicator to determine the appeal in accordance with directions of the tribunal;

(b) require the adjudicator to take additional evidence with a view to the appeal being determined by a Tribunal."

Part 2 Recent authoritative guidance: the power of the IAT to correct errors of fact

6

During the course of the last two years the House of Lords and this court have been resolving issues of substantive law relating to the interface between the Human Rights Act 1998 and the immigration and asylum legislation. This court has also been resolving issues of procedural law and the law of evidence in relation to the appellate jurisdiction of both the IAT and of this court (to whom appeals have always lain from the IAT on a point of law only from the time that such a direct route of appeal was first created). Some of the decisions relating to procedure and evidence, however, were concerned with pre-June 2003 cases in which appeals on both law and fact lay to the IAT. In the course of this judgment we will have to review the relevance of some of these decisions in relation to the period between June 2003 and April 2005 when appeal only lay to the IAT on a point of law.

7

The judgments of this court in Indrakumar v SSHD [2003] EWCA Civ 1677; [2004] Imm AR 76 and Subesh v SSHD [2004] EWCA Civ 56; [2004] Imm AR 112provided general advice to the IAT which related to the days when appeal lay to the IAT against the findings of fact by an adjudicator. So far as findings of fact were concerned, the burden lay on an appellant to persuade the IAT not merely that a different version of the facts was reasonable and possible, but that there were objective grounds upon which the IAT ought to conclude that this different version was the right one.

8

In reviewing the findings of fact made by an adjudicator, Laws LJ made it clear in Subesh that the IAT were to follow these guidelines:

i) It would only very rarely be able to overturn a finding of fact based on oral evidence and the assessment of credibility;

ii) It could more readily overturn a finding of fact based on documentary evidence specific to the individual case (because the IAT was in just as good a position to assess such evidence), but great caution would be required in those cases where there might be an important relationship between the assessment of the person involved and the assessment of those documents;

iii) The IAT would be at least as well placed as the adjudicator to assess findings as to the general conditions, or the backdrop, in the country concerned which would be based on the objective country evidence; the more so if the adjudicator had departed without solid justification from a relevant IAT country guidance decision;

iv) The IAT would be entitled to draw its own inferences as to the application of those general country conditions to the facts of the particular case.

Part 3 The jurisdiction to correct errors of law: examples of errors of law commonly encountered

9

When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:

i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");

ii) Failing to give reasons or any adequate reasons for findings on material matters;

iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv) Giving weight to immaterial matters;

v) Making a material misdirection of law on any material matter;

vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence,...

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