COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE MOORE-BICK
|- and -
|Secretary of State for the Home Department
Nabila Mallick (instructed by Messrs Chartwell & Sadlers) for the Applicant JN (Uganda)
Joanne Rothwell (instructed by Southall Rights) for the Applicant MS (Somalia)
Ms Frances Webber (instructed by Messrs Ovo) for the Applicant AI (Nigeria)
Manjit Gill QC & Jonathan Adler (instructed by Messrs Ikie) for the Appellant PE (Nigeria)
Joanne Rothwell (instructed by Messrs Oaks) for the Applicant SP (Serbia)
Mr G Clarke & Mr D Pievsky instructed by the Treasury Solicitor for the Respondents
Hearing dates : 14th November 2006
Crown Copyright ©
Lord Justice Latham :
"Once a material error in law is shown, I for my part would accept that the Tribunal must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case."
The 2004 Act
(1) A party to an appeal under section 82 .. may apply to the appropriate court, on the grounds that the Tribunal made an error in law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under sub-section (1)
(a) only if it thinks that the Tribunal may have made an error of law, and
(b) only once in relation to an appeal.
(5) An application under sub-section (1) shall be determined by reference only to
(a) written submissions of the applicant, and
(b) where rules of Court permit, other written submissions.
(6) A decision of the appropriate court on an application under sub-section (1) shall be final.
(8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members.
(9) In this section (the appropriate court) means
a. In relation to an appeal decided in England or Wales, the High Court,
The Procedure Rules
"Deciding Applications for Review
26. (1) A section 103A application shall be decided by an immigration judge authorised by the President to deal with such an application.
(2) The immigration judge shall decide the application without a hearing, and by reference only to the applicant's written submissions and the documents filed with the application notice.
(3) The immigration judge is not required to consider any grounds for ordering the Tribunal to reconsider its decision other than those set out set out in the application notice.
(6) The immigration judge may make an order for reconsideration only if he thinks that
a. the Tribunal may have made an error in law; and
b. there is a real possibility that the Tribunal would decide the appeal differently on reconsideration.
Form and service of Decision
27. (1) Where an immigration judge decides a section 103A application he must give written notice of his decision, including the reasons which may be in summary form.
(2) Where an immigration judge makes an order for reconsideration
(a) his notice of decision must state the grounds on which the Tribunal is ordered to reconsider its decision on the appeal; and
(b) he may give directions for the reconsideration of the decision on the appeal which may
(i) provide for any of the matters set out in rule 45 (4) which he considers appropriate to such reconsideration and:
(ii) specify the number or class of members of the Tribunal to whom the consideration shall be allocated.
30. (1) When the other party to the appeal is served with an order for reconsideration, he must, if he contends that the Tribunal should uphold the initial determination for reasons different from or additional to those given in the determination, file with the Tribunal and serve on the applicant a reply setting out his case.
(2) The other party to the appeal must file and serve any reply not later than five days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal.
(3) In this rule the "other party to the appeal" means the party other than the party on whose application the order for reconsideration was made.
Procedure for reconsideration of appeal
31. (1) Where an order for reconsideration has been made, the Tribunal must reconsider an appeal as soon as reasonably practicable after that order has been served on both parties to the appeal.
(2) Where the reconsideration is pursuant to an order under section 103A-
(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and
(b) if it decides that the Tribunal did not make an error of law, the Tribunal must order that the original determination of the appeal shall stand.
(3) Subject to paragraph (2) the Tribunal must substitute a fresh decision to allow or dismiss the appeal.
(4) In carrying out the reconsideration, the Tribunal
(a) may limit submissions or evidence to one or more specified issues; and
(b) must have regard to any directions given by the Immigration Judge or Court which ordered the reconsideration.
(5) In this rule, a "material error of law" means an error of law which affected the Tribunal's decision upon the appeal.
Evidence on reconsideration of appeal
32. (1) The tribunal may consider as evidence a note or record made by the Tribunal at any previous hearing at which the appeal was considered.
(2) If a party wishes to ask the tribunal to consider evidence which was not submitted on any previous occasion when the appeal was considered, he must file with the Tribunal and serve on the other party written notice to that effect which must
(a) indicate the nature of the evidence: and
(b) explain why it was not submitted on any previous occasion.
(3) A notice under (2) must be filed and served as soon as practicable after the parties have been served with the order for reconsideration.
(4) If the tribunal decides to admit additional evidence, it may give directions as to
(a) the manner in which: and
(b) the time by which,
the evidence is to be given or filed.
The Practice Directions
"14.1 Subject to paragraph 14.12, where an appeal has been ordered under section 103(A) to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the Tribunal made a material error of law (see rule 31(2)) and, if so, whether on the basis of the original Tribunal's findings of facts, the appeal should be allowed or dismissed.
14.2 Where the Tribunal decides that the original Tribunal made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed that the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.
14.3 Where the tribunal acting under paragraph 14.2 adjourns the hearing, its determination, produced after the adjourned hearing has taken place, will contain the Tribunal's reasons for finding that the original Tribunal made a material error of law.
14.4 Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made the material error of law and those written reasons shall be attached to and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal.
14.6 By article 5 of the Commencement Order any appeal that was pending before the IAT immediately before 4 April 2005 shall on and after that date be dealt with in the same manner as if the Tribunal had originally decided the appeal and was reconsidering its decision.
14.7 Rule 62(7) provides that in the case of an appeal described in para 14.6 the reconsideration shall be limited to the grounds upon which the IAT granted permission to appeal. In most cases those grounds will require the Tribunal to decide whether the Adjudicator made a material error of law.
14.8 Subject to paragraph 14.12, on or after 14th April 2005 and in the absence of any direction to the contrary, the parties to any appeal that falls to be dealt with as described in paragraph 14.6 should assume that the issue to be considered at the hearing is whether the Adjudicator made a material error of law and, if so, whether on the basis of that adjudicators findings of fact, the appeal should be allowed or dismissed.
14.9 Where the Tribunal decides the adjudicator made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.
"14.1. Subject to paragraph 14.12, where an appeal has been ordered under section 103A to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and if so, whether the appeal should be allowed or dismissed, by reference to the original Tribunal's findings of fact and any new documentary evidence admitted under rule 32 which it is reasonably practicable to adduce for consideration at that hearing.
14.2 (as before).
14.3 Where the Tribunal acting under paragraph 14.2 adjourns the hearing or transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be sent to the parties before the next reconsideration hearing.
14.4 The written reasons for finding that the original Tribunal made a material error of law shall be incorporated in full, in, and form part of, the determination of the Tribunal which completes the reconsideration of the appeal. Only in very exceptional circumstances can the decision contained in those written reasons be departed from or varied by the Tribunal which completes the re-consideration (see R(Wani) v- SSHD and AIT  EWHC 2815 Admin: JA (Practice on Reconsideration: (Wani applied Ecuador  UK AIT 00013.)
14.8 Subject to paragraph 14.12 on or after 4 April 2005, and in the absence of any direction to the contrary, the parties to any appeal that falls to be dealt with described in paragraph 14.6 should assume that the issues to be considered at the hearing will be whether the adjudicator made a material error of law, and if so, whether the appeal should be allowed or dismissed by reference to the adjudicator's findings of fact and any new documentary evidence admitted under rule 32 which it is reasonably practicable to adduce for consideration at that hearing.
14.9 (as before)
14A. Evidence on reconsideration.
14.A.1 In general, the parties to an appeal should be aware that the Tribunal at the initial reconsideration hearing will expect to proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal in the event that the Tribunal finds that the original Tribunal made a material error of law where this can be done without having to hear oral evidence or consider new documentary evidence admitted under rule 32 that could not reasonably practicably be adduced for consideration at that hearing.
14.A.2 Rule 32(2) must be complied with in every case where reconsideration is ordered and a party wishes the Tribunal to hear evidence which was not submitted on any previous occasion when the appeal was considered. Notice under rule 32(2) indicating the nature of the evidence and explaining why it was not previously submitted, must be filed with the Tribunal and served on the other party as soon as practicable after the order for reconsideration is served.
14.A.3 A party that wishes the Tribunal on consideration to consider the evidence that was not before the original Tribunal must indicate in the notice under rule 32(2) whether the evidence is sought to be adduced:
(c) (sic) In connection with the issue of whether the original Tribunal made a material error of law; or
(d) (sic) In connection with the substitution of a fresh decision to allow or dismiss the appeal under rule 31(3) in the event of the original Tribunal being found to have made an error of law.
14.A.4. The Notice must clearly indicate whether the party concerned wishes the evidence to be considered at the initial reconsideration hearing and state whether the evidence is in oral or documentary form.
14.A.5 Where a party wishes, in the circumstances described in paragraph 14.A.3(b) (sic) to adduce only documentary evidence, the Tribunal, if it decides to admit the additional evidence, can be expected to direct under rule 32(4) that that evidence shall be so filed as to enable the Tribunal at the initial reconsideration hearing to proceed under rule 31(3), in the event that it finds the original Tribunal made a material error of law, unless it is satisfied that in the circumstances, it is not reasonably practicable for that evidence to be adduced for consideration at that hearing.
14.A.6 Where a party wishes, in the circumstances described in paragraph 14.A.3 (b) (sic) to adduce oral evidence at the initial reconsideration hearing, the notice under rule 32(2) must explain why it is considered desirable to proceed in such a manner.
14A.7 Where the Tribunal acts under para 14 to adjourn or transfer the reconsideration hearing it shall consider the notice given under rule 32(2) and give any directions under rule 32(4), if and to the extent that it has not already been done .."
The Effects of the 2004 Act
"In a reconsideration of an appeal following an order for reconsideration made by the AIT (as distinct from a grant of permission to appeal to the IAT):
(1) the reconsideration is of the appeal as a whole; therefore
(2) it is not limited to the grounds of review or the grounds upon which reconsideration is ordered, but
(3) it is limited to the grounds of appeal to the Tribunal (including any variation allowed under Rule 14 by the original decision maker)
(4) no directions can limit the issues before the Tribunal on a reconsideration.
(5) The way those issues are dealt with can be limited by directions. In particular
(6) the tribunal has the earlier determination before it and can and properly should adopt any parts of it that are not vitiated by error of law.
(7) In deciding whether there is a material error of law within the meaning of Rule 31(2) and (5) the Tribunal is similarly not restricted to matters raised in the grounds for review and any reply, but
(8) At the first stage of the reconsideration it is unwilling to allow parties to raise matters that despite having had an opportunity to do so they have not raised previously or have been specifically rejected as arguable in the order for reconsideration or for direction, and
(9) if it wishes to raise issues of its own motion it will need to ensure that the parties are given an adequate opportunity to deal with them."
"25. Is there, then, any scope for restricting, or power to restrict the reconsideration by excluding any of the grounds of appeal that were previously before the Tribunal? Again it would not be surprising to find that there is no such power. The Tribunal substituting the decision on its (original) appeal, in its reconsideration might well be expected to have to bear in mind all the grounds of appeal, because otherwise the new decision would run the risk of being worse than the old.
26. What we do find, in Rules 31(Procedure for Reconsideration) 32 (Evidence on Reconsideration), and 45 (Directions) are powers to restrict submissions or evidence (particularly new evidence) on reconsideration and to impose limits on judicial time spent on reconsideration: for example the matters to be the subject of examination or cross examination of witness, or the issues to be addressed at a hearing can be restricted. Decisions under Rules 31 and 32 and Directions under Rule 45 are matters of good housekeeping. If (despite some material error of law) an issue or matter has been properly and satisfactorily dealt with in the first decision, there is no reason why further time should be spent on it in the reconsideration. Although the tribunal reconsidering the appeal has all the grounds of appeal before it, it also has indeed it has just been considering the previous decision, then it must be at liberty to adopt those parts which it considers are sound. The principle perhaps goes further than that. Because the process is reconsideration, we would incline to the view that in general the Tribunal should always adopt those parts of a previous decision which are not shown to be unsound.
27. It follows from what we have just said that the reference in Rule 27(2) to directions given under Rule 45 is not itself a reference which enables the Tribunal, on making an order for reconsideration, to restrict the issues or grounds which are before the Tribunal. It may give directions about the way those issues are to be dealt with and Rule 31(4)(b) requires the Tribunal to have regard to not to be bound by - those direction. Directions under Rule 45 cannot, however, altogether exclude any issue."
"43. I would add this on the procedural aspect of the case. Had the Tribunal been right in its critique of the determination in relation to Rule 31(7), it should have included in its order a direction that the immigration judge who was to continue the reconsideration should do so on the basis that the facts found by Mr Ince were to stand save in so far as the issue to be reconsidered required their significance to be re-evaluated.
44. The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something that was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by a limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination."
"30. The appellant gave his evidence in a truthful and consistent way and I accept that he only left Nigeria, unable to take any of his children, because he feared for his life. His account is consistent with the objective evidence and I accept that he was targeted by the Ijaws and that his house was burnt and his brother killed because of the seizure of his boat and its use in attacks on the Ijaws.
31. I also find that the police did not offer the appellant any effective protection. I find that the appellant has a genuine subjective fear of persecutions.
32. The respondent contended that the appellant's failure to claim asylum in the Netherlands undermined his claim. I bear in mind the judgment of Simon Brown LJ in R v- Uxbridge Magistrates (Ex parte Adimi) CO/1167/99 that there is some element of choice as to where asylum may be claimed and "any merely short term stopover" en-route to such intended sanctuary cannot forfeit the protection of the Article. Simon Brown LJ quoted from the UNHCR's Handbook which "also covers a person who transits an intermediate country for a short period of time without having applied for or received, asylum there. No strict time limit can be applied to the concept "coming directly" and each case must be judged on its merits.
33. The appellant spent three years in the Lebanon and a year in the Netherlands. I cannot describe this four year period as "short" nor conclude that he came "directly" to the UK notwithstanding any difficulties the appellant may have faced in both countries. I find that the delay has undermined his claim and that for this reason he has failed to establish a well founded fear of persecution. I dismiss the asylum claim."
"The Tribunal found the adjudicator's contradictory findings in paragraph 30 and 33 of her determination vitiated her findings of fact. That a failure to claim asylum in a safe third country such as the Netherlands goes to the credit of an appellant's claim has recently been underlined by the recent enactment of section 8 of the Asylum and Immigration (treatment of Claimants etc) Act 2004. In the circumstances, the appellant is not entitled to have the reconsideration proceed on the basis that his account is credible; nor for that matter is the respondent. Instead, as the Tribunal indicated to the parties on the 23rd January, the appellants case must be reconsidered afresh, so findings on all issues (including credibility and the viability if relevant, of internal relocation) can be made."
"Although Mr Lewis (Counsel for the appellant) was not arguing for a stage two reconsideration he asked us not to rule it out."
"We then went on to consider whether we could deal with the second stage of the reconsideration ourselves without an adjournment. Notwithstanding Mr Henderson's submission we consider that new evidence is not required for that stage of the proceedings. If it was necessary for new evidence to be adduced the appellant's solicitors should have had that evidence available by the time of the hearing before us."
"Accordingly, having found that there are material errors of law in the Adjudicators determination, we invited submissions as to whether we should proceed to the second stage of the reconsideration process or whether Mr Fouladuand on behalf of the appellant contended that the second stage should be adjourned to a future occasion. Mr Fouladuand indicated that his client wished to stand upon the evidence already adduced, and that he wished to proceed with the second stage of the redetermination process forthwith.
When Mr Fouladuand then addressed us upon the merits of his client's Article 8 appeal, he began by seeking to reopen the several adverse findings of fact which the adjudicator had made against his client in respect of her asylum appeals. We indicated to Mr Fouladuand that that was not open to him and that we had to proceed on the basis on those findings of fact, there having been no appeal against them."
Lord Justice Longmore: I agree.
Lord Justice Moore-Bick: I also agree.