C4/2004/0825 
Neutral Citation Number: [2004] EWCA Civ 1165
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL  

Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 20th July 2004
 
B E F O R E:

LORD JUSTICE MUMMERY 
 
LORD JUSTICE LAWS 
 
SIR MARTIN NOURSE

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CA 
Appellant
-v-
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent 
 - - - - - - -
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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- - - - - - - 
MR A NICOL QC AND MR M HENDERSON (instructed by Bartram & Co) appeared on behalf of the Appellant
MS J ANDERSON (instructed by the Treasury Solicitor)  appeared on behalf of the Respondent
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J U D G M E N T
Tuesday, 20th July 2004. 
1.	LORD JUSTICE LAWS:  This is an appeal against the decision of the Immigration Appeal Tribunal ("the IAT") notified on 9th February 2004 when they allowed the Secretary of State's appeal against the determination of the Adjudicator which had been promulgated on 24th June 2003.  The Adjudicator had allowed the appellant's appeal on grounds arising under Article 3 of the European Convention on Human Rights against the decision of the Secretary of State to refuse asylum and to make removal directions on 12th February 2003.  The case is to say the least an unusual one, as the conclusion of the Adjudicator at paragraph 53 shows:
"In conclusion then, the appellant does not succeed in her appeal before me on the Article 3 claim under her own right because I have held that the necessary treatment is available to her in Ghana and whether she can pay for it or not is an irrelevant consideration.  However, she does succeed in the Article 3 claim before me on the basis of the dangers apparent to her unborn child.  Had it not been for her pregnancy and for the imminent birth, she would not have succeeded in this appeal under Article 3 at all.  I therefore hold that this is an exceptional case and it is not to be taken as setting any form of precedent."
2.	Permission to appeal to this court was granted by Pill LJ on consideration of the papers on 26th May 2004.
3.	The appellant is a national of Ghana.  She arrived in the United Kingdom on 4th November 1999 and claimed asylum on 12th November 1999.  Her claim to asylum arose because her family had for generations been the custodians of a particular shrine and her mother had been what was called "priestess of the fetish" until her death on 1st October 1999.  It was the appellant's case that as her mother's eldest daughter, she would be expected to succeed her as priestess on pain of what was referred to as a "mysterious" death if she refused.  The appellant strongly objected to her prospective place as priestess because of her Christian beliefs.  
4.	Her asylum claim was in due course dismissed by the Adjudicator as it had been by the Secretary of State, and I need say no more about it.  The issues in the appeal concern the case made by the appellant under Article 3 of the Human Rights Convention.  On the facts as found by the Adjudicator, the appellant had become infected with the HIV virus before leaving Ghana.  After her arrival here she fell pregnant.  She was diagnosed HIV positive during a routine antenatal screening test in April 2000.  She was delivered of a son, K, born in the United Kingdom on 18th October 2000.  He was born and to date remains free of HIV.  The appellant's condition has been managed on antiretroviral therapy under the care of Dr Larbalestier.  
5.	Following the Secretary of State's refusal of her asylum claim, the Adjudicator heard her appeal on asylum and human rights grounds on 5th June 2003, and as I have said his decision was promulgated on 24th June 2003.  By the date of the hearing the appellant was pregnant for the second time.  Indeed, she was close to term.  She had an appointment at St Thomas' Hospital for a delivery by caesarean section on 23rd June 2003.  Delivery by this means together with associated precautions greatly reduces the risk of transmission of HIV from an infected mother to the newborn child.  
6.	The Adjudicator rejected the appellant's case under Article 3 so far as it was based on the risks to her own health which would or might be posed by her returning to Ghana.  He allowed the appeal only in virtue of the risks to her unborn child which would eventuate if she were returned.  I shall first set out one paragraph in which the Adjudicator recounted part of the appellant's evidence.
"12.  If she were to be returned to Accra, she said that she will be with two young children (as she was currently pregnant due to have a planned caesarean later on in June).  She will not be able to look after them.  She would have no money to accommodate herself or the children.  She could not disclose that she had the disease to anyone at all.  Rather than going back to Ghana, she would prefer to kill herself and the children.  She will not be able to get milk or medicine in Ghana.  It was therefore better to kill themselves in that respect.  The appellant said that in Ghana, if you have a baby, you are given nothing.  You breastfeed and the children die.  Here in the United Kingdom, the children were given milk without being breastfed." 
7.	There is next the Adjudicator's summary of the medical evidence.  It is necessary only to set out paragraphs 47 to 50.   
"47.  I note that the appellant's son, K, does not have the symptoms of HIV.  Therefore, the medical services in the United Kingdom have been successful in ensuring that he does not contract this virus.  However, the appellant is once again pregnant.  Her confinement date was sometime in July 2003, however, the health care professionals have decided to give her an elective caesarean section which is booked for 23 June 2003.  This is to ensure that there is no risk of infection to the child by means of a vaginal birth.  I have to decide this case as of the date of the hearing.  Although I can take into account the practicality of the situation that the respondent will not remove the appellant until after she has given birth on 23 June 2003, nevertheless this is not a case where the appellant is to give a simple birth to a child.  This is a case where there are complications in view of the appellant's HIV/AIDS and the allied difficulties and complications for her expected child.  I note that from the report from Jeanette Meadway, that after the birth, the baby should receive antiretroviral treatment for a month and monitoring for eighteen months as the interpretation of tests to determine HIV status in a baby are complex and difficult.  Furthermore, the recommendation in the strongest term is that the baby ought to be fed formula feeding.  This is only available in powdered form in Ghana and therefore the appellant would have to mix it with water.  There are considerable risks of contamination of water both in towns and villages during rainy seasons.  This will lead to a risk of water borne diseases such as Cholera and Typhoid as well as gastroenteritis.  This poses considerable risk to small babies whose feeds are made up with available water.
"48.  In these circumstances, in my judgment, if the appellant were to be removed with a small baby, the necessary care in relation to that baby would be interrupted.  That care was necessary for her other child K and ensured that he remained risk free.  The expected baby would be deprived of that care and to expose the baby through either breast feeding or through a mixture of breast feeding and formula feeding, this would increase the risk to the baby of contracting HIV/AIDS from the appellant.  There will be obvious health risks to this baby in view of using contaminated water to mix the powder form of formula feeding in Ghana.
"49.  Although a foetus has no right to life, it is really for the position of the unborn child as of the date of the hearing and the necessary care for this unborn child upon birth, that I hold that the removal of the appellant as of the date of the hearing would breach Article 3 since there will be substantial risk of exposing the child to HIV/AIDS and this would amount to exposing the appellant to inhumane or degrading treatment.  To see a new born child develop HIV is capable of being inhumane and degrading treatment particularly where it could have been prevented with adequate [care] as in the case of her son, K.
"50.  Had it not been for the position of the unborn child, I would have dismissed the appellant's claim under Article 3 for the reasons I have outlined above.  This is because the necessary treatment is available in Ghana.  Although it is said that the appellant cannot pay for the treatment, I have my reservations about this because I do not accept her evidence that her father is such a poor man as she claims.  Although her father may shun her for developing AIDS, he may provide her with the necessary finances to resettle in Accra upon return to Ghana."
8.	That then was the basis of the Adjudicator's conclusions.  These conclusions were translated into practical consequences by what is said at paragraph 51:
"As the appellant has succeeded in her Article 3 claim before me, the respondent then has to grant her some form of leave.  That is a matter entirely for the respondent but my recommendation is that she be granted discretionary leave to remain for a period of two years.  This should be enough to ensure that her unborn child is present in the United Kingdom in order to receive the necessary antiretroviral treatment and the monitoring for the test to determine whether the baby has contracted HIV/AIDS.  At the end of that period, if the new child is as healthy as K is now, then the appellant should be removed at the end of that period."
9.	The Secretary of State obtained leave to appeal to the IAT.  His first and third grounds of appeal stated:
"1.  It is submitted that the Adjudicator has made an error of law in allowing this appeal on the basis of the risk to the unborn child.  Although he has accepted that 'a foetus has no right to life' (see paragraph 49) and that 'I have to decide this case as of the date of the hearing' (see paragraph 47), he has then disregarded this by considering 'the necessary care for this unborn child upon birth' (also paragraph 49).
... 
"3.  As the Adjudicator indicates (see paragraph 53) this appeal would not succeed but for the risk to the unborn child.  It is submitted that this results in a perverse decision."
10.	At this stage, it is important to notice the nature of the IAT's statutory appellate jurisdiction.  This is at the centre of the principal issues arising on the appeal to this court.  As I have said the Adjudicator's determination was promulgated on 24th June 2003.  By force of the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) (Amendment) (No 2) Order 2003, any adjudicator's determination promulgated after 9th June 2003 may be appealed to the IAT only pursuant to Section 101(1) of the Nationality, Immigration and Asylum Act 2002.  Section 101(1) provides:
"(1) A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
11.	It is also necessary to have in mind the terms of Section 102:
"(1) On an appeal under section 101 the Immigration Appeal Tribunal may - 
"(a) affirm the adjudicator's decision; 
"(b) make any decision which the adjudicator could have made; 
"(c) remit the appeal to an adjudicator; 
"(d) affirm a direction given by the adjudicator under section 87; 
"(e) vary a direction given by the adjudicator under that section; 
"(f) give any direction which the Adjudicator could have given under that section.
"(2)  In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the Adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision."
I may break off there.  
12.	The IAT heard the Secretary of State's appeal on 9th December 2003.  By then, of course, the appellant had given birth.  Her daughter, E, had been born on 23rd June 2003 under the planned caesarean procedure at St Thomas' Hospital.  Happily the child was free of the HIV virus.  
13.	In the event the IAT concluded that the Adjudicator's decision was flawed by an error of law because, putting it very shortly, they upheld or seem to have upheld ground 3 of the Secretary of State's grounds.  It is necessary to cite the following passages:
"19.  Of greater significance in our view, however, is the point at paragraph 3 of the grounds of appeal that it results in a perverse decision to conclude as the Adjudicator did that the appeal would not succeed but for the risk to the unborn child.  We can see a connection between this point and the point we put to Mr Henderson that it is surely somewhat paradoxical to accept that a woman suffering from HIV can be returned to Ghana and yet her child who is not suffering from HIV on his argument cannot.
...
"22.  Our view that ground 3 of the grounds of appeal indicates an error of law by the Adjudicator clearly also in our view opens up the question of the evidence as at today.  We have to say that even if we were in some way restricted to considering the situation at the date of the Adjudicator's hearing we would have significant doubts as to whether his determination and its conclusion were not perverse as is contended in ground 3.  We note the remarks of Dr Meadway in her letter of 4 June 2003 at page 19 of the first bundle and the final paragraph regarding water supply in Ghana.  This is a matter which was considered by the Adjudicator also in his determination.  It is not clear what Dr Meadway's basis is for expertise on the water situation in Ghana, but we note from that paragraph that milk for formula feeding available in powdered form is available in large towns in shops and that water supplies in most towns in Ghana are intermittent and water is frequently stored by families.  We note the Adjudicator's view that the claimant can be safely returned to Accra and the fact that her father had paid for her journey as indicative of the fact that he was not a poor man as contended by the claimant.
"23.  We do not consider that the evidence shows that the water supply in Ghana is such that had the baby been born in Ghana there would not have been fresh uncontaminated water available to make up bottle milk for her to drink.  It is clear from Ravichandran that it is proper for us to consider the evidence as it is before us rather than being constrained by the situation as it was before the Adjudicator.  The baby is now nearly six months old.  We have already referred to the medical evidence concerning her condition as of now and the situation she faces.  If she is to be returned to Ghana today the risk of her contracting the HIV/AIDS virus is minimal in the extreme in our view as is also the risk of her drinking contaminated water.  We accept that in an ideal world it might be appropriate to wait until the eighteen months period was up in order to be absolutely sure that the HIV anti-body has cleared in the baby.  However, Dr du Mont's letter of 11 August 2003 satisfies us as at the date of that letter the chances of the baby, E, being infected by HIV/AIDS were very low and there is no indication that that situation has changed in any way.  In our view it would be wholly artificial for us to ignore the situation as it is today but rather to take artificially the situation with the greater uncertainties that existed at the time of the hearing before the Adjudicator.
"24.  As we have stated above, we consider that ground 3 of the grounds of appeal does demonstrate illegality in the form of perversity in the Adjudicator's determination and that from our view both at the date of hearing but more particularly as of now the evidence is such as to show that there is no real risk that the claimant's daughter, E, is infected by HIV/AIDS and nor that on return to Ghana is there any real risk that she will become so infected or ill in any other way or suffer illnesses of the kind referred to through drinking contaminated water.  As a consequence, we conclude that the Adjudicator's determination, admirable though in many ways it is, nevertheless contains a clear error of law and we conclude that in this case the Secretary of State's appeal must accordingly be allowed." 
14.	There is a good deal of discussion in the skeleton arguments in this case of the question whether under sections 101 and 102 the IAT is to look at the case in light of the facts as they are at the date of the hearing before it, or as they were at the date of the hearing before the Adjudicator.  Much reference is made to the well known decision of this court in Ravichandran (1996) IAR 97 to which I must return.  There is also the decision of the IAT itself in DD (Croatia) [2004] UK IAT 32.  Both of these cases however concern the earlier jurisdiction of the IAT confirmed by paragraph 2 of schedule 4 to the Immigration and Asylum Act 1999.  The recent decision of this court in Subesh v SSHD [2004] EWCA Civ 56 was also concerned with the earlier jurisdiction.  Under that earlier jurisdiction, whose precise statutory formulation I need not set out, the IAT's function was beyond doubt to entertain appeals from the Adjudicator on fact as well as law.  Now, under section 101, this function is in my judgment plainly confined to appeals on law only.  Accordingly, and this is I apprehend no more than elementary, an appeal cannot be allowed unless the IAT distinctly hold that the Adjudicator has perpetrated a mistake of law.  No doubt it must be a material error of law.  If it could truly be shown that the result before the Adjudicator must have been the same even if there had been no legal error, there would be scope for the IAT to dismiss the appeal despite the error.  
15.	That aside, once a material error of law is shown, I for my part would accept that the IAT 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 appellant's skeleton argument prepared for the permission application accepts as much.  The judicial review court, and this court on appeal in cases where our jurisdiction goes to legal error only, proceeds in precisely the same manner.  In this particular jurisdiction, this position is effected by section 102 which I have read.
16.	This overall scheme of things is challenged, root and branch, by Miss Anderson for the Secretary of State.  She suggested that the IAT may look at the up-to-date merits of the case provided only that they have granted permission to appeal on a point of law.  With respect to her, I think it quite impossible to find any such proposition in the words of section 101.  I repeat: the jurisdiction is confined to law only.  Miss Anderson submitted that even in the present statutory context, in which the IAT decision falls to be made under section 101 of the 2002 Act, still the IAT is in every case to look at the facts as at the time they are hearing the matter, at least if the facts have changed or there are new material facts.  She placed heavy reliance on what was said in this court in Ravichandran to which I have already referred.  At page 111 of Ravichandran this appears in the judgment of Simon Brown LJ, referring as it happens to a decision of mine granting leave in that case:
"Laws J in refusing Rajendrakumar leave to move at first instance said this: 
' ... there are cases in the books in which courts have held, not least in the context of the immigration rules related to primary purpose and marriage cases, that the task of the appellate authorities is to look at the situation at the time of the Secretary of State's decision.  Whatever may be the position in relation to primary purpose cases, I simply cannot believe that in these acutely important asylum cases the adjudicator is solemnly to ask himself a question not about the present but about the past; that he is to conduct a judicial exercise which is historic only.  The whole purpose of the grant of special rights of appeal under the Asylum and Immigration Appeals Act 1993, to persons whose asylum applications have been turned down, is to secure protection for those who might in truth turn out to be true refugees.  I cannot believe that the appellate authorities should do anything but ascertain, when a case comes before them, whether the appellant with whom they are dealing is then and there a person with a well-founded fear of persecution.'"
17.	Then at page 112 Simon Brown LJ continued:
"With regard to immigration appeals generally (which, of course, are by no means restricted to primary purpose cases) there is no doubt whatever that appeals have to be dealt with on the basis of the factual situation existing at the time of the original decision against which the appeal is brought.  That was established in 1982 in R v Immigration Appeal Tribunal ex parte Weerasuriya 1983 1 All ER 195 and R v Immigration Appeal Tribunal ex parte Kotecha [1983] 2 All ER 289, and the rule has been applied in innumerable cases since.  Does the reasoning in those cases apply equally, as Mr Macdonald submits, to asylum appeals?  
"Although I confess to finding this a difficult issue, I have concluded that the position is indeed different in asylum appeals.  It is true that to a substantial extent the reasoning in Weerasuriya and Kotecha relies as a matter of construction on the use of the past tense in section 19(1)(a)(i) and (ii) (and indeed in section 19(2)), but the court relied also upon other considerations which they found reinforced their construction of section 19, principally the nature of the appellate structure in immigration cases.  As Webster J said in Weerasuriya in a passage then approved by the Court of Appeal in Kotecha: 
'... it is, as it seems to me, necessary to look at that appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original administrative decision-making function or whether it is to be regarded as simply a process for enabling that decision to be reviewed.  It seems to me it falls into the latter category rather than into the former category.'
"I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded rather as an extension of the decision-making process.  I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal.  Section 8, after all, could but does not, identify the ground of appeal as being that the appellant's removal 'would have been' (rather than 'would be') contrary to the United Kingdom's Convention obligations.  Moreover section 8(1) refers to a particular class of appeals and section 19 to appeals in general.  It would be a strong thing to say that the general was to override the particular.  
"When it comes to the policy considerations, moreover, there are clearly good reasons for adopting a different approach in asylum cases.  Whereas all ordinary immigration cases are entirely specific to the individual applicant and ask simply whether he or she qualifies under the rules, asylum cases are necessarily concerned at least in part with the situation prevailing in a particular foreign country.  Not only the Secretary of State but also the special adjudicators build up a body of knowledge about that situation and it would be unfortunate indeed if they are bound to ignore all that they know to have happened after a given historical date, the date of the Secretary of State's refusal of asylum.  The situation might have changed for the better or it might have changed for the worse.  In either event, if the appellate authorities were bound to ignore such changes, it would render their decisions substantially less valuable.  If the situation had improved but, because the appellate authorities had to ignore such improvement, the appeal succeeded, the Secretary of State might nevertheless, in reliance upon article 1C(5) of the 1951 Convention refuse the appellant refugee status."
I may break off there.
18.	It seems to me that Miss Anderson's submission is frankly inconsistent with the scheme of the present legislation.  The legislation as it stands now produces the result that there is only one appeal to the Adjudicator on the facts of the case.  The court in Ravichandran was dealing with a statutory scheme in which there were successive merits appeals to the Adjudicator and to the IAT.  Miss Anderson went so far as to submit that section 101 did not undermine the application of Ravichandran to the statutory appeal structure.  "Undermine" I think is the wrong word.  There is no question of Ravichandran having been reversed.  The position simply is that a different statutory appeal structure has been put in place, and the reasoning in Ravichandran cannot in my respectful judgment be read across to apply to that scheme.  
19.	The same is true of the decision of the IAT in the case of DD.  We have been shown passages from the judgment given by the President, Ouseley J, which, with deference, perhaps I need not read out.  I was at one stage a little concerned that the President in that case appeared to be giving guidance for the future at a time when the statutory scheme was about to be changed, and section 101 was about to come on stream.  The decision was in fact notified on 26th February 2004.  However as appears from the first paragraph the Adjudicator's determination of the case had been prepared on 3rd December 2002 and promulgated on 7th January 2003.  
20.	It is clear from paragraph 36 of Ouseley J's judgment that the appeal provisions relevant to the case were those set out in paragraph 22 of schedule 4 to the Immigration and Asylum Act 1999.  As I have already said, those provisions conferred general rights of appeal at both stages.
21.	It may be that the reason why the President found it useful to give guidance cast in somewhat general terms is that advanced by Mr Nicol QC in reply.  It is the case that there remain a number of adjudicators' determinations promulgated before 9th June 2003 with which the Tribunal have yet to deal or with which this court on appeal from the Tribunal has yet to consider.  There is no particular mystery either about the fact that the President in DD refers to the procedure rules which have been made in connection with the new regime.  As Mr Nicol has shown us, there were transitional provisions which account for their relevance in that case.  At all events, the plain fact is that Ouseley J was not dealing with the regime arising under section 101.
22.	For all these reasons, then, I have concluded, as I have already stated, that section 101 unequivocally confers a jurisdiction to entertain appeals on points of law only.
23.	That, however, is by no means the end of the case.  The next question is: did the IAT find that the Adjudicator had perpetrated errors of law here, and if so, was it entitled to do so?  Mr Nicol QC in fact submitted that paragraphs 19, 22 and 24 of the IAT's determination showed that the Tribunal did not even distinctly hold that there was any arguable error of law.  His point is that the language there is cast in terms apt for describing a judgment about the facts rather than categorising the determination of the Adjudicator as perverse.  I will not reread any of those paragraphs.  I have some sympathy with Mr Nicol's position on this point given the words used by the IAT, but it seems to me right to proceed on the basis that the IAT intended to hold and did hold that the Secretary of State's ground 3, which I have set out, was well-founded.  Accordingly, their decision was that the Adjudicator had erred in law by arriving at a perverse determination.
24.	The next question then is: was the IAT right to find such an error of law?  There are, I think, two strands to the IAT's reasoning: two candidates, as it were, for an error of law.  The first is the bare proposition that if the risk to the mother's health cannot take the case into Article 3, nor can the risk to her unborn child or new baby.  The other is that on the facts, it was perverse of the Adjudicator to conclude that there would be so substantial a risk to the health of the new baby if it were returned with the appellant to Ghana.
25.	I would reject out of hand the first of these two approaches.  The Adjudicator's reasoning did not seek to accord some kind of right unrecognised by the law to the foetus.  The Adjudicator was concerned and only concerned with the appellant's Article 3 rights.  I repeat for convenience paragraph 49 of the Adjudicator's decision.
"49.  Although a foetus has no right to life, it is really for the position of the unborn child as of the date of the hearing and the necessary care for this unborn child upon birth, that I hold that the removal of the appellant as of the date of the hearing would breach Article 3 since there will be substantial risk of exposing the child to HIV/AIDS and this would amount to exposing the appellant to inhumane or degrading treatment.  To see a new born child develop HIV is capable of being inhumane and degrading treatment particularly where it could have been prevented with adequate [care] as in the case of her son, K."
26.	It seems to me obvious simply as a matter of humanity that for a mother to witness the collapse of her newborn child's health and perhaps its death may be a kind of suffering far greater than might arise by the mother's confronting the self-same fate herself.  There is no perversity in the approach taken by the Adjudicator.  
27.	I would also reject the second approach I have identified as an interpretation of the IAT's decision.  The case made is one of perversity under the Wednesbury principle.  Perversity means what it says.  Here the Adjudicator was, in my judgment, perfectly entitled to rely on the evidence of Dr Meadway (see paragraph 30 of his determination) in concluding that there would be a substantial risk in exposing the child to HIV/AIDS.  We have been taken to some of the primary materials which I need not read out.  
28.	I consider the IAT's reasoning upon this aspect of the case to be flawed.  They relied on material not before the Adjudicator.  That is not legitimate in a case where the issue is perversity.  Their criticisms of Dr Meadway's evidence are insubstantial.  At least, they do not begin to make a perversity case.  I should add that I do not consider that this position is altered by Miss Anderson's submission made this morning that the Adjudicator rejected the appellant's evidence of a want of money or economic resources.
29.	For all these reasons, I would allow the appeal.  
30.	I add this.  It may be that it is perfectly possible to conclude that the Adjudicator was wrong on the merits.  Such a conclusion might have justified overturning his decision under the earlier wider appellate jurisdiction (see this court's judgment in Subesh).  But the jurisdiction under section 101 forbids in effect the IAT deciding the merits itself unless at least it first concludes that the Adjudicator's decision cannot stand because it is marred by error of law.  
31.	Miss Anderson has submitted that the Adjudicator's decision was not open to him given this court's decision in N [2004] 1 WLR 1182, [2003] EWCA Civ 1369.  In that case, I said at page 1201 paragraph 40:
"I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised state.  This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area.  I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one's sympathy on pressing grounds."
32.	I am unable to hold in the present case that the Adjudicator's decision, which was arrived at (as it happens) before the judgments in N were given, was legally flawed by reference to that reasoning.  As I said there, there are no sharp legal tests in this area.  I certainly accept however, and would wish to emphasise, that the Adjudicator's decision constitutes no precedent for future cases.  It was arrived at on the case's own facts.
33.	For all the reasons I have given, I will allow the appeal. 
34.	SIR MARTIN NOURSE:  I agree and cannot usefully add anything of my own.
35.	LORD JUSTICE MUMMERY:  I agree, and would emphasise just three points which arise on this appeal.  
36.	First, this is, as the Adjudicator said in paragraph 53 of his determination, an exceptional case, for the detailed reasons given by him.  
37.	Secondly, the Immigration Appeal Tribunal was not entitled under sections 101 and 102 of the Nationality Immigration and Asylum Act 2002 to allow the Secretary of State's appeal from the Adjudicator, as there was no error of law in the determination of the Adjudicator.  
38.	I agree with Laws LJ that it is impossible to characterise the Adjudicator's decision as perverse in the way that the Immigration Appeal Tribunal did in paragraphs 22 and 24 of its determination.  
39.	Thirdly, I wish to say specifically that I do not agree with the submission made by Miss Anderson in paragraph 5 of her skeleton argument where she said this:
"In simple terms, the grant of permission, that is permission to appeal to the Immigration Appeal Tribunal, is the gateway to the Tribunal giving an appeal for consideration on the basis of the up-to-date evidence as to the background conditions in the relevant home country and any developments in an appellant's personal circumstances that are relevant to their claim."
40.	In my judgment, the grant of permission to appeal to the Immigration Appeal Tribunal is only a gateway to that Tribunal considering at a full hearing whether or not there was an error of law in the determination of the Adjudicator.  
41.	We therefore allow the appeal.  We set aside the order of the Immigration Appeal Tribunal, and the decision of the Adjudicator is restored.
Orders: 
Appeal allowed.
Order of IAT set aside; Adjudicator's decision restored.
Anonymity order made under section 11.
Permission to appeal refused.