AH (Scope of s103A reconsideration) Sudan  UKAIT 00038
Date of hearing: 11 October 2005 & 5 January 2006
Date Determination notified: 19 April 2006
|Secretary of State for the Home Department||RESPONDENT|
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 for 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 judicial decision-maker). (4) No directions can limit the issues before the Tribunal on a reconsideration, but (5) the way in which those issues are dealt with can be limited by directions. In particular (6) the Tribunal has the earlier determination before it and can and probably 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 that have been specifically rejected as arguable in the order for reconsideration or by 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.
Material error of law
The ambit of reconsideration
"103A Review of Tribunal's decision
(1) A party to an appeal [to the Asylum and Immigration Tribunal] may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under subsection (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.
[(3) sets out the time limits.]
(a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and
(b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.
(5) An application under subsection (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 subsection (1) shall be final.
[The appropriate court is defined as the High Court, the High Court in Northern Ireland or the Court of Session as appropriate to the place where the appeal to the AIT was decided.]
"(1)This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b)-
[during a period which began on 4 April 2005 and continues].
(2) An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (inserted by Schedule 1 above)).
(3) For the purposes of sub-paragraph (2)-
(a) references in section 103A to the appropriate court shall be taken as references to the member of the Tribunal who is considering the application or who is to consider the application,
(b) rules of court made for the purpose of section 103A(4)(a) in relation to the court to which the application is made shall have effect in relation to the application despite the fact that it is considered outside the appropriate court, and
(c) section 103A(6) shall be subject to sub-paragraph (5) below.
(4) Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph-
(a) he may make an order under section 103A(1) or grant permission under section 103(4)(b ), and
(b) if he does not propose to make an order or grant permission, he shall notify the appropriate court and the applicant.
(5) Where notice is given under sub-paragraph (4)(b)-
(a) the applicant may notify the appropriate court that he wishes the court to consider this application under section 103A(1) or 103A(4)(b),
(b) the notification must be given within the period of 5 days beginning with the date on which the applicant is treated, in accordance with rules under section 105 of the Nationality, Immigration and Asylum Act 2002, as receiving the notice under sub-paragraph (4)(b) above, and
(c) the appropriate court shall consider the application under section 103A(1) or 103A(4)(b) if-
(i) the applicant has given notice in accordance with paragraphs (a) and (b) above, or
(ii) the applicant has given notice under paragraph (a) above outside the period specified in paragraph (b) above, but the appropriate court concludes that the application should be considered on the grounds that the notice could not reasonably practicably have been given within that period.
(6) Rules of court may specify days to be disregarded in applying sub-paragraph (5)(b).
"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 applications.
(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 in the application notice.
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 his 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 reconsideration shall be allocated.
"Variation of grounds of appeal
14. Subject to section 85(2) of the 2002 Act [which has no bearing on this appeal or on the general question we have to decide], the appellant may vary his grounds of appeal only with the permission of the Tribunal."
"Rules applicable on reconsideration of appeal
29. Rules 15 to 23, except for rule 23(2) and (3), and Part 5 of these Rules apply to the reconsideration of an appeal as they do to the initial determination of an appeal, and references in those rules to an appeal shall be interpreted as including proceedings for the reconsideration of an appeal."
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 5 days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal.
(3) In this rule, '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 original Tribunal did not make a material 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 any note or record made by the Tribunal of 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 paragraph (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."
"62(6) Where, pursuant to a transitional provisions order, the Tribunal reconsiders an appeal which was original determined by an adjudicator, Section 2 of Part 3 [which comprises rules 27 to 33] shall apply to the reconsideration, subject to paragraph (7).
(a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator's determination before 4th April 2005, but the appeal has not been determined by that date; and
(b) by virtue of a transitional provisions order the grant of permission to appeal is treated as an order for the Tribunal to reconsider the adjudicator's determination,
the reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal."
The position before 4 April 2005
"Variation of grounds of appeal
20(1) A party may vary his grounds of appeal only with the permission of the Tribunal.
(2) Where the Tribunal has refused permission to appeal on any ground, it must not grant permission to vary the grounds of appeal to include that ground unless it is satisfied that, because of special circumstances, it would be unjust not to allow the variation."
Application to this appeal
The substituted decision
C M G OCKELTON