R (Wani) v Secretary of State for the Home Department and Asylum and Immigration tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 2005 |
| Neutral Citation | [2005] EWHC 2815 (Admin) |
| Date | 08 December 2005 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court
Collins J
Representation
Mr Upali Cooray instructed by Thompson & Co, for the Claimant;
Mr Robin Tam instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
Miftari v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 481
R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 26; [2004] 2 AC 323; [2004] Imm AR 419; [2004] INLR 381
R v Rochford JJ ex parte Buck (1978) 68 CAR 114
R v Secretary of State for the Home Department ex parte Nader [1998] Imm AR 33
R v Secretary of State for the Home Department ex parte Robinson [1997] Imm AR 568; [1997] INLR 182
Legislation judicially considered:
Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005 (SI 2005/565), Article 5(2)
Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230), Rule 62(7)
Practice Directions dated 4 April 2005 issued by the President of the Asylum and Immigration Tribunal, paragraph 14, [2005] Imm AR 1
Judicial process reconsiderations transitional cases grounds limited to those upon which the Immigration Appeal Tribunal granted permission to appeal obvious points of Convention law test in Robinson applied paragraph 14 of the Asylum and Immigration Tribunal Practice Directions transferred proceedings under paragraph 14.4 reasons for finding that the original Tribunal made a material error of law when reasons can be reargued at transferred proceedings judicial review of reasons interlocutory decision abuse of process
The Claimant, a citizen of Pakistan, applied for asylum in November 2003. His application was refused by the Secretary of State for the Home Department. An Adjudicator allowed his appeal on asylum grounds and under Article 9 of the ECHR (freedom of religion). The Secretary of State was granted permission to appeal by the Immigration Appeal Tribunal (the IAT) on 18 June 2004.
With the establishment of the Asylum and Immigration Tribunal (the AIT) on 4 April 2005, s 5(2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005 required the AIT to deal with any pending appeals where permission had been granted by the IAT as if they were reconsiderations under s 103A of the Nationality, Immigration and Asylum Act 2002 (Transitional Cases). Paragraph 14 of the Practice Directions dated 4 April 2005 issued by the President of the AIT ([2005] Imm AR 1) (the Practice Directions) required the AIT initially to determine whether the original Tribunal had made a material error of law. If so, the AIT had to adjourn the appeal to the same panel or transfer the hearing to a different panel or a single Immigration Judge if it was unable to substitute a fresh decision because findings of fact were needed which the AIT was not in a position to make. Where a transfer was made, paragraph 14.4 of the Practice Directions required the AIT to produce written reasons for its finding that the original Tribunal had made a material error of law (Written Reasons) which had to be attached to, and would form part of, the determination of the AIT which would substitute a fresh decision to allow or dismiss the appeal following the second hearing.
The AIT made a decision dated 29 April 2005 that there were errors of law in the Adjudicator's determination. The Claimant sought permission to apply for judicial review, asserting that there were no errors of law and accordingly that the Adjudicator's determination should stand.
Held, dismissing the application:
(1) under Rule 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the Procedure Rules) reconsiderations in Transitional Cases were limited to grounds upon which the IAT had granted permission to appeal; there was no such restriction on the grounds of appeal in cases dealt with wholly under the new procedure imposed by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004; there was no detectable good reason for the restriction in Transitional Cases; it could potentially lead the Tribunal to contravene s 6 of the Human Rights Act; however, Rule 62(7) had to be applied in all cases except where an obvious point of Convention law which favoured the claimant had been missed (the test in R v Secretary of State for the Home Department ex parte RobinsonELR [1998] QB 929 applied) (paras 1416);
(2) judges or panels hearing transferred proceedings should not normally permit points to be reargued as to whether or not the original Tribunal made a material error of law; in very exceptional cases, however, it would be wrong to shut out the possibility of a party arguing for an error of law on a different ground or that an error found to exist was no error at all; the parties should be required to identify fresh points in advance (paras 18 and 19);
(3) Written Reasons had to be sufficient to stand on their own without the need for amplification or amendment after the second hearing (subject to the exceptional cases where further argument had been ruled permissible) (paras 20 and 23);
(4) Written Reasons, not currently disclosed to the parties, should be seen by the parties prior to the second hearing as it was important that they knew what issues they had to address (paras 21, 22 and 24);
(5) it would normally be an abuse of process to pursue an application for judicial review of the Written Reasons because: first, the court would not in general entertain challenges to interlocutory decisions on the ground that the challenge was premature; secondly, it would create delays which were manifestly contrary to the intention of Parliament as appeared from Rule 31(1) of the Procedure Rules; thirdly, the parties should see the reasons and at the second hearing be able to argue against them in certain circumstances; and fourthly, there was no prejudice to the aggrieved party since, if the alleged error persisted in the final determination, there was a right of appeal to the Court of Appeal; it was difficult to conceive of circumstances in which such a claim would be proper (paras 24 and 25).
Judgment
Mr Justice Collins
[1] This claim seeks to challenge the decision of the Asylum and Immigration Tribunal (A.I.T.) dated 29 April 2005 whereby it decided that there were errors of law in the determination of an adjudicator, who had heard the claimant's appeal, dated the 12 March 2004. It is said that there were no errors of law and that accordingly the adjudicator's decision, which had allowed the claimant's appeal against the refusal by the first defendant to grant him asylum or to permit him to remain in the United Kingdom on the ground that to remove him would breach his human rights, should stand. This claim is most important for the A.I.T. since it involves consideration of its practice in dealing with cases which have to be reconsidered in accordance with s 103A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
[2] The claimant is a national of Pakistan. He is an Ahmadi. Ahmadis are discriminated against in Pakistan and are frequently subjected to violent attacks by Muslim fundamentalists. They are regarded as non-Muslims and the Pakistan Code forbids them to refer to themselves as Muslims and, in particular, prohibits them from proselytising. This...
To continue reading
Request your trial
-
NM (IRAQ) v Secretary of State for the Home Department
...necessary findings of fact will be made and the appeal will be determined. 12 Following the judgment of Collins J in R (Wani) v Secretary of State for the Home Department [2005] EWHC 2815 (Admin) and the decision of the AIT in JA (Practice on Reconsideration—Wani Applied) Ecuador [2006] UKA......
-
R (on the application of the Secretary of State for the Home Department) v First-Tier Tribunal (IAC) (Litigation privilege; First-Tier Tribunal)
...from R (AM (Cameroon)) v Asylum and Immigration Tribunal [2007] EWCA Civ 131 at [104] – [105], relying on R (Wani) v SSHD [2005] EWHC 2815 (Admin), although it must be borne in mind that the procedure for appeals from the First-tier Tribunal is now different. While we accept the observati......
-
DK (Serbia) v Secretary of State for the Home Department
...the parties to be able to understand how the Tribunal's conclusion will impact upon the scope of the second stage of the reconsideration (see Wani) . It may be sensible for the Tribunal when giving its reasons, to consider what directions, if any, it considers appropriate under Rule 31(4) o......
-
AA (Somalia) v Secretary of State for the Home Department; AH (Iran) v Same
...to identify the errors of law which had been made by Mr Aitken. Mr Kovats accepts that it should have done so (see Wani v. SSHD [2005] EWHC 2815 (Admin)). However, Mr Scannell can point to no prejudice to the appellant's case caused by this failure and, in these circumstances as now concede......