ASYLUM AND IMMIGRATION TRIBUNAL

AH (Scope of s103A reconsideration) Sudan [2006] UKAIT 00038

THE IMMIGRATION ACTS

Heard at: Field House	Date of Hearing:	11 October 2005
					& 5 January 2006 
		
		Promulgated On: 19 April 2006

Before:

Mr C M G Ockelton (Deputy President)
Mr D K Allen (Senior Immigration Judge)
Mr P R Lane (Senior Immigration Judge)

Between

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
11 October 2005:
For the Appellant:		Dr Chirico, instructed by Wilson & Co Solicitors
For the Respondent:		Mr C Avery, Home Office Presenting Officer
5 January 2006:
For the Appellant:		Mr J Walsh, instructed by Wilson & Co Solicitors
For the Respondent:		Mr L Parker, Home Office Presenting Officer

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.

DETERMINATION AND REASONS

Introduction

1.	The Appellant is a citizen of Sudan.  He appealed against the decision of the Respondent on 25 May 2004 refusing his entry clearance with a view to settlement as the husband of the sponsor.  His appeal was heard by an Adjudicator, Mrs P Milligan-Baldwin, and dismissed.  He served an application for permission to appeal to the Immigration Appeal Tribunal.  That application was pending before the Immigration Appeal Tribunal on 4 April 2005, when both Adjudicators and the Tribunal were replaced by the Asylum and Immigration Tribunal.  Under Article 6(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 (SI 2005/565) the application fell to be treated as an application for an order that the AIT reconsider the Adjudicator’s decision on the appeal.

2.	The grounds accompanying the application raised two principal issues.  The first was procedural unfairness in relation to a concession apparently made by the Respondent and concerning the validity of the marriage between the Appellant and the sponsor.  The second was that the Adjudicator had erred in her treatment of Article 8.

3.	The Senior Immigration Judge who considered the application on 23 June 2005 ordered reconsideration.  He gave reasons for his decision including assertions that the grounds relating to procedural unfairness and the concession raised arguable errors of law by the Adjudicator.  He specifically refused to make an order on the ground relating to Article 8 on the basis that arguments based on that Article had in principle no application to this appeal.

Material error of law

4.	We convened on 11 October 2005 to begin the reconsideration so ordered.  We were required by rule 31 of the 2005 Rules (which we set out below) to determine whether there was a material error of law in the Adjudicator’s determination.  We had little difficulty in concluding that there was.

5.	The Respondent took no issue on the validity of the marriage in the Notice of Refusal or the Explanatory Statement.  At the hearing before the Adjudicator, the Presenting Officer, representing the Respondent, was invited to confirm and did confirm that there was no issue as to subparagraph (i) of paragraph 281 of HC 395:  he accepted, he said, that the Appellant and the sponsor were formally married.  The Adjudicator gave no indication at the hearing that she intended to differ from this agreed position, nor did she question the validity of the marriage.  As a result, no arguments were addressed to her on that issue, and no evidence was called specifically relating to it.

6.	In her determination, the Adjudicator noted that the sponsor had been previously married and that the validity of her marriage to the Appellant therefore depended on there having been a valid prior divorce from her first husband.  She considered the documents available to her and conducted what she describes as a “review of case law” (otherwise unspecified), leading her to the conclusion that “where a divorce was obtained before or after 1988 [sic], section 44 of the 1986 Family Law Act applies”.  She concluded, without further investigation, that the divorce was invalid because “obtained” in the British Islands and not granted apparently by a court of civil jurisdiction, and therefore that the Appellant and the sponsor were not validly married.

7.	It is, we think, fair to say that it is not now asserted that the marriage is valid.  What is said in the grounds is that the Respondent was treating the marriage as valid and was entitled to do so.  That may or may not be right.  It is clear that by not raising the question at the hearing the Adjudicator entirely deprived the parties of any opportunity to make submissions on it.  If she was troubled by an issue that had been conceded at the hearing, she should have arranged for the parties to have an opportunity to address her on it.  She did not do so.  As a result, there is no doubt at all that there was a considerable measure of procedural unfairness.  She decided an issue against the Appellant without hearing him on it.

8.	It cannot be said that the arguments on this issue proposed in the ground were bound to fail.  As a result, and particularly bearing in mind the sensitivity to fairness of the proceedings that is axiomatic when an appellant appeals from abroad, we conclude that by the procedure she adopted the Adjudicator materially erred in law.

The ambit of reconsideration

9.	We accordingly passed from the first of our tasks under rule 31 to the second.  At this point, Dr Chirico indicated that he proposed to take no further issue on the validity of the marriage or the concession relating to it.  He no longer depended on an argument that the marriage was formally valid.  Instead, he proposed to raise arguments based on human rights grounds, the very grounds in fact which had been specifically rejected by the Senior Immigration Judge who ordered reconsideration.  We accordingly needed to consider whether he could do so and, if so, whether he could do so as of right or whether he needed our permission.  That is the same as the question whether the order for reconsideration limits (finally or provisionally) the scope of the reconsideration, or whether its only function is to allow the reconsideration to take place at all.

10.	Dr Chirico’s submission was based on what he submitted was an ambiguity in rule 27 of the 2005 Rules, which require an Immigration Judge making an order for reconsideration to state “the grounds on which the Tribunal is ordered to reconsider its decision on the appeal”.  The submission was that that rule could be read as requiring a statement of the grounds of review to which the reconsideration would be devoted;  or it could be taken as requiring merely a statement of the reasons why reconsideration was ordered.  In a lengthy and powerful submission, Dr Chirico sought to demonstrate that the latter reading must be correct and indeed that intractable difficulty would arise from adopting the former reading.  Mr Avery simply submitted that the former reading was preferable in the interests of the economy of Tribunal hearings.

The law

11.	Rule 27(2) cannot be read out of context.  It is one of a number of procedure rules dealing with reconsideration, made under the provisions of the 2002 Act (as amended), the amendments to which also introduced the system of reconsideration in place of appeals to the Immigration Appeal Tribunal effective from 4 April 2005.

12.	The relevant provisions of the 2002 Act are the following:

“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.]
(4)	But-
(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.]

13.	As a result of the “transitional provision” in paragraph 30 of Schedule 2 to the 2004 Act, the decisions are in fact made for the most part not by any member of those courts but by the Tribunal.  The provision is the following:

“(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).
…”

14.	The 2004 Act also amended the rule-making power in s106 of the 2002 Act, enabling rules to be made “about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard)”.  The rules in question are in the 2005 Rules, which contain provisions for the procedure generally on appeals to the AIT, the procedure on applications for review, the procedure on reconsiderations, and other matters including transitional provisions.  We begin with the principal provisions of rules 26 and 27, which are as follows:

“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.
…”

15.	Earlier in the Rules are the provisions for instituting an appeal to the Tribunal and for its decision by the Tribunal, including issues relating to withdrawal, abandonment, adjournment and so on.  There is a time limit for giving notice of appeal against an immigration decision;  the time limit may be extended.  The notice of appeal must “set out the grounds for the appeal;  and give reasons in support of those grounds” (Rule 8).  Rule 14 is as follows:

“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.”

16.	Rule 29 applies a number of the rules we have just mentioned to the reconsideration of an appeal.  It does so in the following terms:

“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.”

17.	It will be noted that rule 14 is not included amongst the rules which apply on reconsideration as they do on the initial appeal.  The principal provisions for the procedure on reconsideration are the following.

“Reply
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.”

18.	Part 5 of the Rules contains general provisions.  It includes rule 45 on directions, to which reference is made in rule 27(2).  We do not need to set out that rule, save to note that it permits the Tribunal to give directions to the parties relating to “the conduct” of any appeal or application and indicates a number of matters on which directions may be given, including the manner in which proceedings are to be conducted.  There is a power to limit number of documents, time, length of oral submissions and “the issues which are to be addressed at a hearing” (our emphasis):  but we do not read the rule as giving any specific power to limit the issues before the Tribunal.

19.	We must refer finally to rule 62, which contains transitional provisions.  The effect of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 is that on the commencement date, 4 April 2005, pending applications for permission to appeal to the Immigration Appeal Tribunal became applications under s103A, and appeals pending before the Immigration Appeal Tribunal became reconsiderations.  Rule 62 applies the rules on applications and reconsiderations to those pending matters with some modifications, including the following:

“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).
(7)	Where-
(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

20.	As is well known, before the coming into force of the appeals provisions of the 2004 Act, an appeal from an Adjudicator lay, on a point of law only, with permission, to the Immigration Appeal Tribunal.  The Tribunal’s function was thus to hear appeals against Adjudicators’ decisions.  An application for permission had to be accompanied by grounds of appeal.  A grant or refusal of permission had to be accompanied by reasons, and when the Tribunal granted permission to appeal it had to indicate “the grounds upon which permission to appeal is granted” (Immigration and Asylum Appeals (Procedure) Rules 2005 (SI 2003/652), r18.)

21.	The Tribunal’s decision on the application was subject to a process called Statutory Review, which enabled a party dissatisfied with the decision to have it reviewed by the appropriate court.  This remedy could be sought by a party who had been refused permission altogether;  a party who had been granted permission only on limited grounds, and who argued that other grounds in his application should also have been the subject of a grant of permission;  and by a party against whom permission to appeal had been granted, if he considered that permission ought not to have been granted.  It was important for parties to establish the grounds of appeal upon which they had permission (whether by grant from the Tribunal or by order on Statutory Review), because of the following provision in the 2003 Procedure Rules, applying only to appeals to the Immigration Appeal Tribunal:

“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.”

Discussion

22.	The major change made on 4 April 2005 by the coming into force of the appeals provisions of the 2004 Act was the abolition of second appeals within the statutory appellate system.  Whereas previously a party could appeal against an Adjudicator’s determination, there is now only the possibility of a reconsideration of the Tribunal’s decision on the appeal.  The process of reconsideration requires the Tribunal to leave the original decision on the appeal unchanged unless it is found to be affected by a material error of law;  if and only if there is such an error, the Tribunal is required to substitute a decision allowing or dismissing the appeal.  It does so, as we read the language of the statute and Rules, not by dealing any further with the Tribunal’s original decision but by replacing it;  and doing so not by way of appeal against it but by way of reconsideration of the (original) appeal to the Tribunal.

23.	In this context it is worthy of note that, once a material error of law has been detected, the Tribunal is not permitted simply to affirm the earlier Tribunal decision even if, having reconsidered the appeal, it reaches the same decision as the earlier Tribunal.  It is required in those circumstances to “substitute” a new decision that is to the same effect as the old.  Further, even if the first decision is in favour of the claimant, so that it is the Respondent at whose instance the reconsideration is undertaken, it is the claimant who is, throughout the reconsideration, regarded for all purposes as the appellant.

24.	There could, we suspect, be no clearer indications that what is before the Tribunal on reconsideration is not an appeal against the earlier Tribunal decision but the appeal that was made by the claimant to the Tribunal in the first place.  If that is right (and we see no particular reason to doubt it) it is not at all surprising if it is found that the grounds of appeal to be treated on a reconsideration are the same grounds of appeal as were originally considered by the Tribunal.  And it appears that that is precisely what is intended.  The Rules require grounds of appeal to be advanced in the notice of appeal against the government decision;  rule 14 allows those grounds to be varied with the permission of the Tribunal;  but rule 29 excludes rule 14 from any application to reconsiderations.  It does not necessarily follow from that alone that on a reconsideration the claimant is entitled to all the grounds that he relied upon earlier;  but it does appear that he can have no more.

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.  A Tribunal substituting a decision on the (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 limit submissions or evidence (particularly new evidence) on reconsideration and to impose limits on the judicial time spent on a reconsideration:  for example, the matters to be the subject of examination or cross-examination of witnesses, 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, and 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 a 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 be bound by – those directions.  Directions under rule 45 cannot, however, altogether exclude any issue.

28.	If there is power to restrict the grounds available on reconsideration it must therefore be found in the words of rule 27(2)(a) requiring the decision on the application for a reconsideration order to “state the grounds on which the Tribunal is ordered to reconsider its decision on the appeal”.  We have set out the two possible readings of that phrase in paragraph 10 above.  We are confident that the words do have and must have the meaning for which Dr Chirico contends.  Our reasons are, firstly, that that reading is consonant with the general approach to reconsideration which we derive from the statute and the Rules and which we have set out above, and secondly that the other reading leads to a difficulty so acute that it must be regarded as unintended.

29.	We need say little more about the first of those reasons.  It is sufficient to point out that, in the light of everything we have already set out about the process of reconsideration, one would expect that, if a reconsideration is to take place at all, it would be unlikely to benefit by a restriction on the grounds of appeal made at what is essentially the permission stage, without notice and without any argument.  A restriction on the grounds at that stage would essentially prevent the “appeal to the Tribunal” being reconsidered.  It would be something else – a lesser appeal, or an appeal on fewer grounds, that was being reconsidered.

30.	The second reason requires a little more by way of expansion, but the difficulty is well illustrated by this appeal.  It is contained in the transitional provision of the 2004 Act and s103A(6) of the 2002 Act.  When an application for reconsideration is considered by a member of the Tribunal under the transitional provision, he may make an order for reconsideration or decide not to make an order.  It is only if he decides not to make an order that the application can, in essence, be renewed to the High Court, whose decision is final.  If he has made an order for reconsideration, however partial or defective the order may be considered to be, the application cannot be renewed. 

31.	In the present case, as we have seen, the application was made on two bases.  The member of the Tribunal considering it ordered reconsideration specifically on the first and refused it specifically on the second.  Reconsideration having been ordered, there was no possibility of inviting the High Court to amend the order to include the second issue as well.  If the second issue had stood alone and had been the subject of a refusal, the High Court could have reversed the refusal.  As it stands as part of an application which was successful, the refusal, if effective, would appear to be irremediable.

32.	We do not think that result can possibly have been intended.  There is indeed some reason in the Rules themselves for considering that it was not.  We have already briefly made reference to the position as it was before 4 April 2005.  An appeal to the Immigration Appeal Tribunal required permission from the Tribunal.  Applications were made to and determined by the Tribunal.  Following the determination on the application, either party could apply for review of the determination by the High Court.  Thus, a party against whom permission had been granted might have the grant set aside;  a party who had been refused might have the refusal reversed;  and a party who had been only partly successful in his application might succeed in persuading the High Court that grounds rejected in the Tribunal’s permission determination should be open to be considered on the appeal.  The parties thus had ample opportunity to ensure, within a few days of the Tribunal application, that the grounds of the appeal to the Tribunal were properly settled.  In addition, the procedure rules relating to appeals to the Tribunal contained in the provisions in rule 20 that we set out above.  The Tribunal had power to amend the grounds on which permission had been granted and even, for good reason, to allow a ground to be argued that had been rejected at the permission stage.  (We should point out that there is no suggestion in those Rules that any such application should be left until the hearing:  there can be no doubt that any such application ought to have been made as soon as possible.)

33.	It is no doubt in the context of that entirely different regime that the 2005 Procedure Rules make a clear distinction between those reconsiderations which might be regarded as “pure” reconsiderations, that is to say where the entire process of ordering and undertaking reconsideration post-dates 4 April 2005, and “transitional” reconsiderations, where the Asylum and Immigration Tribunal has taken over appeals pending before the Immigration Appeal Tribunal on that date.  In the latter case, the grounds contained in the application are truly grounds of appeal rather than grounds for reconsideration, and the parties have already had a full opportunity to ensure that they are complete.  As a result, rule 62(7) provides that the reconsideration shall, in such cases, be limited to the grounds (which must here mean grounds of appeal against the Adjduicator’s determination) upon which the Immigration Appeal Tribunal granted permission to appeal.  There is no equivalent limiting provision relating to “pure” reconsiderations.  The reason is no doubt that there is under the new regime no provision at all for the variation of grounds in the course of a reconsideration.  If our view is right, there does not need to be:  because, subject to any variation at the (original) appeal, the grounds of appeal to the Asylum and Immigration Tribunal remain the same throughout.  In “transitional” cases, this Tribunal is performing a rather different function, because of its inheritance of cases from the Immigration Appeal Tribunal.  Nobody can claim to be entitled to raise new grounds now when, under the process by which a further hearing of the appeal was ordered, they had chosen not to do so earlier.

34.	We are aware of four possible objections to our reading of rule 27(2).  The first is that it essentially prevents any limitation being put on the scope of the reconsideration.  That, as we have indicated, we do not regard as truly an objection.  It is the scheme of the Act.  Limitations can be put on the way the reconsideration proceeds – so much is clear from rules 31(4) and 32 as well as the reference to rule 45;  and limitations should be put in order to avoid needless re-litigation.  But a true reconsideration must have the whole of the original appeal as its ambit.  

35.	The second objection is that if “the grounds on which the Tribunal is ordered to reconsider its decision” in rule 27(2) means merely the Tribunal member’s grounds for making the reconsideration order, there is a possible duplication of rule 27(1), which requires the notice of decision to include “reasons which may be in summary form”.  This does not appear to us to be a very serious problem.  Rule 27(1) relates to all decisions on applications under s103A.  There are evidently four possible decisions under that section:  to extend time, to refuse to extend time, to make an order for reconsideration and to decline to make an order for reconsideration.  Whichever decision is made, reasons are required by rule 27(1).  They may be in summary form, although experience suggests that where there is a refusal the reasons need to be set out in some detail.  If reconsideration is ordered, the reason will no doubt be simply that the member of the Tribunal dealing with the application considers that it is arguable that there has been a material error of law.

36.	Only in that latter case does rule 27(2) go on to require him to state the grounds for his having reached that conclusion.  It may be that in the system as we envisage it there is no very great formal distinction between reasons and grounds, but the latter word is perhaps of more weight and rule 27(2) does not give the opportunity of a summary form.  If a reason for the difference is required, it is no doubt to be found in the fact that in this one alone of the four possibilities a member of the Tribunal is raising the possibility that a decision by his colleague is wrong.  Nothing could be more natural that, in those circumstances, he should say with some precision why he has reached that conclusion.

37.	The third objection is similar.  It is that if the 2005 Rules are to be read as we suggest, phrases identical to those in the 2003 Rules are to be given an entirely different meaning.  This, however, is only likely to be considered a problem if it is not appreciated that the abolition of appeals within the Tribunal system is a major change and that the procedures of the 2003 Rules cannot be expected to be those of 2005.  At the time of the 2003 Rules the IAT existed to hear appeals against Adjudicators’ determinations and it is in the nature of an appellate process that it is regulated differently from the original procedure, and firmly.  It should not be assumed that the novel procedure of reconsideration is to be treated as though it were an appeal against the Tribunal’s earlier decision:  it is not.

38.	Besides, the phrase in rule 27(2) that we have to interpret is to all intents and purposes identical to that in rule 26(3), where it can only mean the reasons for considering that the previous determination is at fault.  A similar phrase in the same set of rules is of more persuasive force in interpretation than a similar phrase in a different set of rules.

39.	The fourth difficulty is a little more troublesome.  We have so far been looking at the reconsideration as a whole and have reached the conclusion that it ought to be on all the grounds that were before the Tribunal when it made its original decision.  Rule 31, however, divides the reconsideration into two stages.  At the first stage, the Tribunal is confined to considering whether the original Tribunal made a material error of law.  We need to consider what, if any, are the restrictions on the issues it may consider in order to reach a conclusion on that question.  Evidently the starting point must be the order for reconsideration, which gives the “grounds on which the Tribunal is ordered to reconsider its decision”, and which may incorporate all or parts of the grounds set out in the application for that order.  If we had adopted the narrower construction of rule 27(2), that would be the end of the matter:  it would be those grounds only that could be the subject of the reconsideration.  But we have not adopted that reading.  The grounds of the reconsideration are wider.  Does it follow from that that the Tribunal is entitled or bound to look outside the grounds referred to in rule 27(2) in order to determine whether there is a material error of law in the Tribunal’s original decision?  Can it consider grounds contained in the application but specifically rejected?  Can it consider grounds never previously mentioned by either of the parties?  Can it consider grounds of its own motion?

40.	One possible answer to that series of questions might be based on an apprehension of a limit to the Tribunal’s jurisdiction on a reconsideration.  Here again, we can perhaps benefit by looking back to the Tribunal’s predecessors.  Before the coming into force of the 2002 Act, the Immigration Appeal Tribunal had jurisdiction to entertain appeals on both fact and law.  By s101(1) of the 2002 Act the Tribunal’s jurisdiction was limited to hearing an appeal “against the adjudicator’s determination on a point of law”.  It followed, as the Court of Appeal held in Miftari v SSHD [2005] EWCA Civ 481 and reiterated with some reservations in R (Iran) and others v SSHD [2005] EWCA Civ 982  that the Tribunal’s jurisdiction was only engaged by the identification of an error of law in an application for permission to appeal to it and the grant of permission to appeal on that basis:  the Immigration Appeal Tribunal was otherwise apparently without jurisdiction.  Those decisions were, however, made in respect of a system where there were two separate Immigration Appeal bodies, one of which (the Immigration Appeal Tribunal) heard appeals against decisions of the other.  Questions of jurisdiction between those two bodies were no doubt crucial.  The position is now rather different, because of the integration of the two functions and the replacement of appeals by reconsiderations.  The appeal under reconsideration is an appeal that the Tribunal reconsidering it has had within its jurisdiction from the beginning.  It may be that, on a reconsideration, there are limits to what can be reconsidered:  but we should not expect to find them in legislation or decisions dealing with the former system.

41.	The process for reconsideration begins with an application which has to be supported by grounds arguing that the (original) Tribunal made a material error of law (s103A(1)).  The order for reconsideration is to be made only if the appropriate court or the member of the Tribunal dealing with the application “thinks that the Tribunal may have made an error of law” (s103A(2)).  The member of the Tribunal making the order for reconsideration gives the grounds on which the order is made, which in view of what we have said earlier must mean the reason why he thinks that the original Tribunal made a material error of law.  The rules contain no indication that the appropriate appeal court (or a member of the Tribunal) is not entitled to “think that the Tribunal may have made an error of law” for reasons other than those mentioned in the grounds.  On the contrary, rule 26(3) provides that the Tribunal is not required to consider any grounds other than those in the application, but, in contrast to rule 26(2), imposes no restriction on what the Tribunal may do.

42.	We can discover no restriction elsewhere.  The jurisdiction to reconsider comes from a reconsideration order made because, after an application but not necessarily only because of what is said in the application, a person qualified to make an order for reconsideration does so.  Once the order for reconsideration is made, the Tribunal is bound by rule 31 to conduct it in a particular way.  Rule 31 requires the Tribunal to decide whether the original Tribunal made a material error of law.  There is no suggestion there that in considering that question it is confined to matters mentioned in the application for reconsideration, in the reconsideration order or elsewhere.  We conclude that there are no formal or jurisdictional limits on the issues that the Tribunal may take into account when deciding whether the original Tribunal made a material error of law.

43.	We would emphasise that that does not mean that proceedings on reconsideration cannot be the subject of any proper limitation.  The following factors apply.  First, the party seeking the reconsideration can be expected to include in his application every reason upon which he relies for considering that the Tribunal made a material error of law.  A party who seeks to raise new issues at a late stage is likely to find that he is the subject of directions restricting the time spent in considering such issues and the Tribunal may well consider that issues that have any merit are highly likely to have been raised in the proper place and at the proper time, that is, in the application.

44.	Secondly, provision is made in rule 30 for a reply by the party who is not the party seeking the reconsideration.  Any new issues of law relied upon by that party should be contained in a timely reply, otherwise they are likely to be treated in the way we have just indicated.

45.	Thirdly, both parties should be aware that the reasoning on whether the (original) Tribunal made a material error of law is not inherent in the claimant’s grounds of appeal to the Tribunal:  it is a new issue.  If there is to be a substituted determination, all the grounds of appeal are before the Tribunal.  That does not mean that those grounds are themselves of any relevance in determining whether there should be a substituted determination.  The claim that the original Tribunal erred in law needs to be put and evaluated separately.

46.	Fourthly, there can be no restriction on the Tribunal’s identification of grounds of its own motion whether at the stage of an order for reconsideration or at the reconsideration itself.  It is not dealing with the criticism of another judicial body’s decision:  it is reconsidering its own.  In those circumstances, it cannot sensibly be required to decide that its original decision contained no material error of law if it thinks that there was a material error of law.  It must, however, give an opportunity to the parties to deal with any matter that takes them by surprise.

Application to this appeal

46.	So far as the present appeal is concerned, the effect of our decision on the ambit of reconsideration is that the Appellant is not prevented from raising arguments based on Article 8, even though those arguments were rejected by the Senior Immigration Judge who ordered reconsideration.  We saw no reason not to allow the Appellant’s representative to address us on them and to call or adduce any appropriate further evidence.

The substituted decision

47.	At the resumed hearing, Mr Walsh argued, in considering breaches of Article 8, that post-decision evidence such as two visits to Egypt and the impending birth of a child could properly be taken into account as clarification of the circumstances appertaining at the time of the decision to refuse.  Evidence concerning intervening devotion was admissible within the terms set out by the Tribunal in DR (Morocco)* [2005] UKIAT 00038, reiterating well-established principles.  It was a question of weight ultimately rather than admissibility.  The post-decision evidence could be used to support the argument that when the decision about entry clearance was made there was an intention to live together and there was family life.

48.	Thereafter Mr Walsh put in a statement made by the sponsor on 21 December 2005.

49.	The sponsor Mansura Hussein of 312 Southcote Lane, Reading RG30 3BL gave evidence.  She was from Darfur and would not feel able to go back to live there as she would feel in danger.  Khartoum was not safe either because of the Government and she had left the country because of the Government.  She had been suffering from depression.  She had been recognised as a refugee in the United Kingdom in 2002 and had been twice to Egypt most recently in April/May 2005.  She produced her passport.

50.	It could be seen from the passport that she had gone to Cairo on 17 April 2005 and left on 17 June as she was later able to clarify.  As regards her visit to Egypt in 2004, she had obtained a visa from the Egyptian Embassy in London.  On the occasion of the 2005 visit she had obtained the visa at the airport in Cairo.  They had put in a stamp allowing her to stay for one to two months.  She had paid for a stay of two months.  If you wanted to stay longer then you would have to go to the office to get another stamp and it would cost a lot of money.  She could not live in Egypt permanently.  Her husband had only got a month’s permit and was not allowed to work.

51.	With regard to her husband’s interview, she had initially met him in high school in about 1986.  With regard to his answer to question 48 she was sure that it was 1986.  Her child born in the United Kingdom had been born in June 2003.  She had married the Appellant on 1 December 2002.

52.	When cross-examined by Mr Parker the sponsor said that she had been allowed to stay for exactly two months in Egypt when she went in 2005.  She did not know why that requirement had not been put in her passport.  She was referred to her statement in the bundle where she had said that she met her husband in 1986 and told him about the problems with her first husband and how she been forced to marry him.  She was asked why at interview he did not know when she was previously married.  She said that they had not lived in the same village and her first marriage was when she was thirteen and he had not asked her when she married.  As to why he had said she had only one child there was confusion in that he had thought that what was meant was children with her.  As regards the answers to questions 44 to 47 she thought there were problems with translation.  Her daughter had been born on 17 January 1987 and it could be that she was mistaken in what she had said in her statement.

53.	She was asked why the job offer that had been made to her husband had not been mentioned to the Entry Clearance Officer and she said that no one had asked her husband about it.  It was pointed out to her that he had been asked about this at interview and she was asked whether it was the case that the job offer did not exist at that time and she said it did not.  As regards his answer to question 31 at interview, where he said he did not know when she was divorced, she had not discussed it with him.  She had told him she was divorced but he did not know when.  He had not asked her about this and it was not necessary.

54.	On re-examination she said that her daughter lived with her mother in Darfur and had always lived there.

55.	In response to questions from the Tribunal the witness said that her husband came from Darfur and now lived in Port Sudan.  He was in business and was very hard-working.  She was asked why she could not go and live with him and said that even for him the Government treated him differently and he had to pay more tax and they said he supported the rebels in Darfur and he was not really comfortable.

56.	In his submissions Mr Parker argued that the marriage was not subsisting.  The interview showed that the Appellant knew very little about the sponsor as could be seen for example from his answer to question 22 and also the answer to question 26 which both contradicted what was said by the sponsor in her statement.  There was confusion as to how he had introduced himself to her.  It was odd that he did not know when she divorced her first husband as it was the precursor to the telephone marriage.  There was no substance to the relationship.  The Adjudicator’s comments at the end of paragraph 26 of the determination should also be noted.  As regards Article 8, the claim failed under the Immigration Rules so there could not be a breach of Article 8.  They could live in Egypt.  There was nothing in her passport to show restrictions at the time of the second visit and if she were allowed to stay for only two months then it was highly surprising that there would not be a stamp in the passport indicating the existence of any conditions.  There was no relationship when the application was made and as to whether there was a relationship now it had not been shown to be the case.  There had been two visits to Egypt and the child was the child of the couple if the sponsor was believed.

57.	In his submissions Mr Walsh argued with reference to the answers at interview that it was necessary to be cautious.  For example, in answer to question 43 the Appellant had been put in a false position by what was said at question 41 where it was implied in effect that the child had been conceived after the telephone marriage.  There was no inconsistency in the answers to questions 22 and 30 as the sponsor said she had told the Appellant about the marriage but did not say that she had told him the date, and the inference that Mr Parker sought to be drawn should not be drawn.   There had clearly been confusion about dates.

58.	As regards the post-decision evidence it was clear that they were both in Egypt at the same time and this was in order to be together;  and the child had been conceived.  Mr Walsh could not say positively that they were married under the laws of any country.  The later evidence however threw light on any doubts about the answers given at interview by the Appellant and showed a genuine relationship akin to marriage.  On a balance of probabilities it should be accepted that the child was the Appellant’s and that they had a genuine relationship.  At the date of decision there was a genuine relationship with an intention to live together as husband and wife.

59.	An issue arose as to when the sponsor became naturalised.  On instructions Mr Walsh told us that she had said she applied in January 2003 and was told later that year that the decision had been made in a letter sent out but she had not received it so they had sent a further copy of the letter and a certificate of naturalisation and she had received it and then applied for her passport and she had received the passport after some two weeks.

60.	As recently as 2002, she had been found to have a well-founded fear of persecution in Sudan and the problems there were ongoing, so she could not realistically carry on family life there with the Appellant.  As regards Egypt, on the evidence she had required permission to enter and her stay had been limited to one or two months.  She was not a national of Egypt and there was no evidence that the Appellant was a national of Egypt.  It was a question of lack of respect for rather than interference with family life.

61.	As regards proportionality there had been a wrongful assumption that they were married and it was a genuine mistake and not a ruse designed to circumvent the Immigration Rules.  It could have been argued earlier that the application could succeed under the fiancé rules and the Tribunal should be satisfied that the Appellant and the sponsor were in a position to come within the Rules at a future date, including today, assuming that a divorce was obtained.  They should not be required to make a fresh application given the cost and delay and the fact that they had already been through the procedure and the child was about to be born:  this justified the appeal succeeding under Article 8 rather than them being required to make a fresh application after the obtaining of a divorce in the United Kingdom.

Decision

62.	It was essentially conceded at the earlier hearing that the appeal could not succeed under the Immigration Rules and accordingly, in the light of our ruling above permitting human rights to be argued, the appeal falls to be decided under Article 8 only.

63.	In this regard we are satisfied from the evidence both documentary and oral that the sponsor did stay in Cairo with the Appellant for two months, in 2004 and 2005, and that the child due to be born soon to the sponsor is the child of their union.  We accept Mr Walsh’s submission that those two visits and the impending birth of the child can properly be taken into account in the light of the clarification of the meaning of s85(5)(b) of the Nationality, Immigration and Asylum Act 2002 in the IAT’s decision in DR (Morocco)*.  Those later events clarify the question of the parties’ intentions towards each other and the genuineness of their relationship as at the date of decision.  It has however, as we have noted above, been conceded that the appeal cannot succeed under the Immigration Rules and clearly in the light of authorities such as Huang this makes it very much more difficult for the appeal to succeed under Article 8.

64.	We accept, as will be clear from what we have said above, that there is family life in this case between the Appellant and the sponsor.  We agree with Mr Walsh that the genuineness of the relationship is not materially shown to be diminished by answers of the Appellant at interview in particular in response to question 22 and question 31 since the evidence of the sponsor was not as to when she told him that she was married to her first husband and when they ceased to be married but simply the fact of that taking place.  That having been said however, we do have concerns about the fact that the Appellant would, on the evidence, appear to have been unclear as to whether or not the sponsor was divorced at the time when he entered into the telephone marriage with her, given that he did not know when the divorce took place.  That having been said however, we consider, bearing in mind that it is a matter of a balance of probabilities only, that the evidence shows that he knew that they were divorced even if he did not know when, and hence we accept that they both believed that they were entering into a genuine marriage on 1 December 2002.

65.	The stumbling block for the Appellant however is the question of proportionality.  The only reasons Mr Walsh could give for justifying a successful appeal under Article 8 as opposed to the Appellant being required to make an entry clearance application to come to the United Kingdom in due course were the fact that they would have to go through the inconvenience of a fresh application with the inevitable cost and delay and the fact that they had already been through the procedure and had made the earlier application on the basis of a genuine mistake and the fact of the impending birth of the child.  An aspect of that delay must be that the sponsor would have to obtain a civil divorce from her first husband in the United Kingdom in order to enable a fresh application to be made by the Appellant, and it may be that he would experience difficulties in seeking to enter into a fresh marriage under Sudanese law since under Sudanese law he is already married to the sponsor, and might therefore need to make application as a fiancé to come to the United Kingdom and then marry under United Kingdom law when here. These matters to our mind are very far from making it disproportionate to the normal requirement that where a case does not fall within the Immigration Rules something entirely exceptional must be shown in order for it to succeed and for the respect due to the Appellant’s private life to be able to outweigh the demands of a fair and properly applied immigration policy. 

66.	We are clear that the Article 8 claim does not succeed.  The refusal of entry clearance in no sense precludes the Appellant from making an application in the circumstances we envisage above, subsequent to a divorce having been obtained by the sponsor in the United Kingdom and a fresh application being made by the Appellant as a fiancé.  There is no good reason why such an application should not be required in this case.  Such interference as there would be with the family life of the Appellant is in no sense disproportionate.  Clearly there would be an element of inconvenience and perhaps a somewhat longer period of delay than might ordinarily be the case since there are issues to be resolved in this country before an application can be made.  But those arrangements ought in any event to have been made before the Appellant’s application, and we do not think that he has any proper cause for complaint if they have to be made now.

Conclusion

67.	For the reasons given in paragraphs 4 to 8, we find that the Adjudicator made a material error of law.  For those given in paragraphs 63-67, we substitute a determination dismissing the appeal.

C M G OCKELTON
DEPUTY PRESIDENT

          Date: