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
		Tuesday, 22nd October 2002

LORD JUSTICE WARD:

1. Our unhappy and embarrassing task today is to declare the order made by this Court on 24th May 2002 to be a nullity.
2. What has led to this fiasco is this. The appellant, Mr Azad Gardi, was one of nine Iraqi nationals, ethnically Kurds, who fled from the northern part of Iraq within the Kurdish Autonomous Region, an area which borders on Iran, Turkey and, to a limited extent, Syria. Each claimed asylum. Various adjudicators granted those applications because, although (certainly in Mr Gardi's case) they had not established a well-founded fear of persecution within the Kurdish Autonomous Zone, nevertheless those persons could not be returned directly to their home area in the north, but only via Baghdad, where Mr Saddam Hussain was hardly likely to greet them with open arms and where, in that part of Iraq, they would probably have a well-founded fear of persecution.
3. The Secretary of State appealed and the nine cases were then heard together by the Immigration Appeal Tribunal. Those appeals were successful and the asylum-seekers sought permission to appeal further. All of the appeals raised the same interesting and novel point about the meaning of "refugee" within the Convention definition. Mr Gardi's case was chosen as the lead case to test the law, upon the answer to which many other cases depended, and many others were stacking up in the system. The Immigration Appeal Tribunal granted that permission.
4. On 24th May 2002 we dismissed Mr Gardi's appeal on that point. The erudite judgment of my Lord, Lord Justice Keene, has now been reported at [2002] 1 WLR 2755; so the law reporters will need to publish some note of this further decision of the Court.
5. Now I come to the embarrassing twist in the tail. In the eminently sensible attempt to collect a group of cases together to identify the common problem, the Immigration Appeal Tribunal and all the legal advisers completely lost sight of the fact that Mr Gardi was appealing from the decision of an adjudicator, Mrs Austin, who sat in Glasgow. Paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 regulates appeals from the Immigration Appeal Tribunal "to the appropriate appeal court". Paragraph 23(3) defines "appropriate appeal court" to mean:

"(a)if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and

(b)in any other case, the Court of Appeal."

6. This case should therefore have gone to the Court of Session and not come to us. Nobody told us about it at the time, but the consequence is clear: we had no jurisdiction to entertain this appeal, and my Lord has wasted his learning on desert air. We have no option but to declare our order a nullity, and we do so.
7. 7.Sir Martin Nourse is not able to be here today, but has authorised me to say that he agrees that that is the inevitable result.

LORD JUSTICE KEENE:

8. I agree that our order of 24th May 2002 should be annulled for the reasons given by my Lord.
9. The jurisdictional problem to which he has referred was not noticed by this Court nor by the Civil Appeals Office, but likewise was not noticed by the Immigration Appeal Tribunal, which granted the permission to appeal to this Court, nor by counsel. Clearly we are all going to have to be more alert in future; but I would put particular emphasis upon the role of counsel in this task.
Order: order made on 24.5.02 declared a nullity.