Secretary of State for the Home Department v RK (Algeria)

JurisdictionEngland & Wales
Judgment Date27 June 2007
Neutral Citation[2007] EWCA Civ 868
Date27 June 2007
CourtCourt of Appeal (Civil Division)
Docket NumberC5/2006/2338

[2007] EWCA Civ 868





AIT NO CC/06172/2002

Royal Courts of Justice


London, WC2


The President of the Family Division

(Sir Mark Potter)

Lord Justice Sedley

Lord Justice Wilson


Secretary of State for the Home Department
RK (Algeria)

Miss Susan Chan (instructed by Treasury Solicitor) appeared on behalf of the Appellant

Ms Amanda Weston (instructed by Paragon Law) appeared on behalf of the Respondent



With the permission of the Asylum and Immigration Tribunal, the Secretary of State for the Home Department appeals against the determination of the Tribunal's predecessor, namely the Immigration Appeal Tribunal (“the Tribunal”), promulgated on 24 August 2006.


The Tribunal had on 3 March 2004 heard an appeal by the Secretary of State and a cross-appeal by RK, the respondent, against determinations by an adjudicator that the respondent's appeal against the Secretary of State's refusal to grant him asylum should be upheld and that his appeal against the rejection of his claims under the European Convention on Human Rights 1950 should be dismissed.


The Secretary of State's main ground for appeal to this court is founded upon a lamentable, and I trust unique, state of affairs, namely that, as is already apparent, the Tribunal's determination was promulgated 29 months after the hearing.


As I will explain, the determination seems to have been written and signed on about 11 September 2004, in itself amounting to a delay of about six months, but thereafter it was not promulgated for almost a further two years. The Tribunal's determination was that, although the adjudicator had been wrong to hold that the respondent, who is of Algerian nationality and who had served in the Algerian army prior to his decision to seek to remain in this country and to desert from that army, was entitled to asylum, he had been equally wrong to reject his claim to be allowed to remain in the UK by virtue of Article 3 of the European Convention.


The respondent is now aged 45. In 1983, when aged 21, he joined the Algerian army, in which he became a junior officer. During the following 13 years he made various lawful visits to this country, in the course of which he developed a relationship with a female British citizen who, in 1991, bore him a son. In December 1996 he came again to the UK with entry clearance which afforded him leave to remain here for six months. His leave of absence from the Algerian army, however, was only until 29 January 1997.


On 22 January 1997, in England, the respondent married the mother of his son and decided not to return to Algeria but, rather, to claim leave to remain in the UK as a spouse of a British national.


On any view, therefore, the respondent deserted from the Algerian army by failing to return for service on or before 29 January 1997.


In June 1997 the respondent claimed asylum. But on 13 March 2000 the Secretary of State refused his claim and later that month made a deportation order against him. Following further representations on his part and a refusal on the part of the Secretary of State to revoke the deportation order, the respondent launched his appeal to the adjudicator. The result of the appeal, promulgated on 2 April 2002, was, as I have indicated, to uphold his claim for asylum, on grounds which are now irrelevant, but to reject his claim on human rights grounds.


It will be noted that the hearing before the Tribunal on 3 March 2004 took place almost two years after the promulgation of the adjudicator's decision. That delay was partly attributable to the Tribunal's wish to receive further, updated objective evidence about the likely treatment of the respondent in the event of his return to Algeria.


Then, however, there was no promulgation of the Tribunal's decision. The solicitors for the respondent wrote to the Tribunal, marked “For the attention of the President”, on 17 September 2004, 21 January 2005, 29 March 2005 and 2 June 2005, pressing for promulgation of the decision. They received one bare acknowledgment and the other three letters were, so we have been told, ignored. It is unclear whether the Secretary of State also pressed for promulgation; Miss Chan, on his behalf, is unable to confirm that he did so. In the end, on 9 May 2006, the respondent issued proceedings for judicial review of the Tribunal's conduct of the appeals with a view to securing a mandatory order for promulgation of its decision. That precipitated its promulgation on 24 August 2006. Senior Immigration Judge Moulden endorsed on the issued copies of the determination that His Honour Judge Risius, the Vice President of the IAT who had presided over the hearing on 3 March 2004, had signed the original of it on or about 11 September 2004; that the original had been misplaced; and that he, Judge Moulden, was signing a duplicate copy of it on 27 July 2006.


In giving permission to appeal to this court, Senior Immigration Judge Batiste wrote that:

“The long delay between the hearing and the promulgation of the determination without further consideration of the changed objective evidence render the grounds properly arguable.”

Underneath his signature was an endorsement by the Deputy President of the AIT, Mr Ockelton, dated 11 October 2006. He wrote:

“This is a case in which, had I still the power to do so, I should have consulted the parties with a view to setting aside the determination under appeal and ordering a rehearing.”


The Deputy President seems there to have been referring to the lack of power of the President at that particular time to set aside, of his own motion, a determination of the Tribunal following consultation with all parties. As it happens, the power has now been restored to him: see Rule 15 of the Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2006, SI2006 No. 2788. Whether it would have been proper for the President or the Deputy President to have exercised that power in this case, had he had it at the relevant time, seems to me to be an issue identical with the issue raised before us today.


It is important to note what is no longer, and indeed what never has been, the Secretary of State's argument in support of the appeal.


First, notwithstanding that such was a faint subsidiary ground of appeal, Miss Chan does not deny that it was open to the Tribunal, on the evidence before it on 3 March 2004, to have held that...

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