Raja Ghulam UR Rehman v Secretary of State for the Home Department

This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal ("the IAT") promulgated on 22nd December 2004 by which the Tribunal dismissed the applicant's appeal against the determination of the adjudicator of 12th September 2003. Buxton LJ refused permission to appeal on consideration of the papers on 7th April 2005.

The factual background is crisply summarised by the IAT as follows:

"2. The Claimant came to the UK on 14th April 2003 and sought asylum shortly afterwards. He said he was an Ahmadi and an active member of the Ahmadi community in Rabwah. He was attacked by Mullahs but managed to escape. They threatened to kill him and his companions if they returned to a medical camp that they had set up ten miles outside Rabwah. That was in May 2002 and two months later he was beaten up by the police, detained over night and threatened. A bribe was paid to obtain his release. As he realised it was the local mullahs who were causing him the problem he and his family fled to Lahore where they settled.

3. He continued to preach there and in December 2002 he was again threatened by local mullahs because he had converted some locals. His car showroom was vandalised and his employees were assaulted. The police would not help.

4. He then went to live with an uncle. The uncle was threatened by the local mullahs who had discovered the Claimant was there and so the Claimant decided to leave Pakistan.

5. The Determination

The Adjudicator found that although the Claimant might be an Ahmadi he was not a religious leader because the evidence he had given about his faith showed a lack of knowledge of the faith. He found that even if the claimant's case was as he stated the treatment that he had received did not amount to persecution."

It is critical in this case to have in mind that the IAT only has jurisdiction to entertain an appeal from the adjudicator on grounds of law. That is by force of section 101 of the Nationality, Immigration and Asylum Act 2002 and the relevant commencement order which applies section 101 to appeals from decisions of adjudicators promulgated on or after 9th June 2003. As I have said, the adjudicator's decision in this case was promulgated on 12th September 2003.

At the outset of his judgment in the recent case of Miftari [2005] EWCA Civ 481, Buxton LJ cited paragraph 40 of Brooke LJ's judgment in Mlauzi [2005] EWCA Civ 128 as follows:

"It is now well known that Parliament revoked the power of the Immigration Appeal Tribunal to hear appeals on fact in relation to any decision by an Adjudicator which was made after the first week of June 2003. For a long time the effect of this decision appears not to have percolated through to those who practise before the IAT, and the IAT itself made a number of determinations in which it did not clearly identify the point of law which alone gave it jurisdiction to hear the appeal."

In Miftari Buxton LJ later said this:

"21. It will be convenient first to consider the second of Miss Laing's arguments, that even if no point of law was raised by the grounds of appeal to the IAT, the IAT nonetheless had jurisdiction because an error of law had indeed been made by the Adjudicator: because if that argument is correct we do not need to concern ourselves with the meaning or construction of the grounds.

22. I am however unable to accept that argument, which is incorrect both on principle and on authority. Although the point has not, so far as I am aware, been specifically considered in any of the cases that have addressed the new IAT regime, this court has been clear that identification of a point of law is a necessary preliminary to the IAT having jurisdiction to entertain an appeal. That was plainly said in Mlauzi by Latham LJ at paragraph 26 and by Brooke LJ at paragraph 40. It was also clearly assumed by the Master of the Rolls when delivering the judgment of this court in B v Secretary of State [2005] EWCA Civ 61, a case to which I shall have to return.

23. So far as principle is concerned, three points arise. First, the grounds are the basis, and the only basis, on which permission to appeal is granted or refused. The Vice-President who considers that application must determine jurisdiction on the basis of the grounds; subject, if he does discern a point that the parties have not taken, to his being able to invite an amendment of the grounds. But all that must take place within the boundary of the grounds as finally formulated. Second, as the Master of the Rolls said in paragraph 18 of the judgment of the court in B:

'the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal … with the recent limitation of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction'

That means that the IAT can only consider what is legitimately found in the actual or amended grounds. It does not have jurisdiction to consider anything that is not there found. Third, whilst a court will not ordinarily be required, in the absence of the point being raised, to consider whether it has jurisdiction to take a particular case, that is not so of the IAT. It has to consider jurisdiction expressly because it has to pass on the grounds of appeal. It is very difficult to see how a decision as to jurisdiction can be saved by demonstrating that although the basis on which it was taken was unjustified, the Vice-President could have granted permission on a different basis that was not before the court.

24. I conclude, therefore, that the IAT only had jurisdiction to consider the appeal to them if a point of law could be found within the formulated grounds."

It must follow from this reasoning that if the IAT lacks jurisdiction in any particular case because no point of law is to be found within the grounds as formulated, it should not have entertained the appeal from the adjudicator at all, and even though the appellant to this court might be able to point to some error of law perpetrated...