England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday, 25th April 2001

Wednesday, 25th April 2001

1. LORD JUSTICE TUCKEY: This case is listed as a renewed application for permission to appeal a decision of the Immigration Appeal Tribunal who, on Zemedkun Anteneh's appeal from a decision of a special adjudicator, remitted his asylum appeal for rehearing by another special adjudicator.
2. The grounds of appeal to this court are that Rule 23 of the Asylum Appeals Procedures Rules 2000 required the IAT in the circumstances of this case, to decide the matter themselves. The tribunal had given leave because they felt that there was some inconsistency between the special adjudicator's acceptance of the applicant's evidence that he feared persecution and his finding that this fear was not well-founded. The complaint is that the IAT proceeded on the assumption that evaluation of the background material required oral evidence when in fact and in practice such evaluations are based upon the specialist tribunal's own experience of country conditions and reports which show what those conditions are.
3. In refusing permission to appeal in this case I said that "the decision as to whether to decide or remit is very much one for the specialist tribunal (IAT) to make and I can see no real prospect of this court being persuaded to interfere with the decision in this case."
4. Today Mr Bazini, counsel for the applicant, faces the court with a dilemma because he says there is doubt whether this court has jurisdiction to hear an appeal from a decision by the IAT to remit. This depends upon whether such a decision is "a final determination of an appeal" for the purposes of paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999. Under identical provisions in the 1993 Act this court decided on similar facts that a decision to remit was not such a final determination in Kara v Secretary of State [1995] Imm AR 584. That decision has recently been followed by Scott Baker J in Secretary of State v Immigration Appeal Tribunal (9th April 2001). Although Scott Baker J has given permission to appeal his decision it seems to me that Kara is binding on this court and therefore on me, and I should therefore decide today that this court has no jurisdiction to hear this appeal. For that reason it should be dismissed. This, of course, pre-empts the appeal from Scott Baker J's decision, but this does not concern me because I am confident that if there was jurisdiction to hear this appeal it has no real prospect of success. I am not persuaded by Mr Bazini that the view I took about this on paper was wrong, ably though he struggled to persuade me to the contrary. So, if this court did have jurisdiction, I should not have given permission to appeal.
5. I should add that in view of my decision that this court does not have jurisdiction it is open to the applicant to apply for judicial review of the IAT's decision. Although such an application is not before me I would refuse permission to apply for judicial review for the same reasons as I gave for refusing permission to appeal. If, despite what I have said, an application for judicial review is made a transcript of this judgment should be put before the judge to whom any such application is made.
6. This applicant arrived in this country in February 1999. It is high time his asylum appeal was heard and determined. Effectively the IAT's decision (made now nearly five months ago) paved the way for that to happen. I think it should be allowed to do so.
(Application dismissed; Community Legal Services assessment).