C4/2005/0682 and C5/2005/0867
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE CHADWICK
LORD JUSTICE MAURICE KAY
Appellant (0682) Appellant (0751)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
||Respondent in all the appeals|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
A appeared in person
Manjit S Gill QC & Luthfur Rahman (instructed by White Ryland) for T (Afghanistan)
Manjit Gill QC & Benjamin Hawkin (instructed by White Ryland) for M
Tublu K.Mukherjee (instructed by Fisher Meredith) for T (Eritrea)
Jane Collier (instructed by the Treasury Solicitor) for the Respondent in 2159
Lisa Giovannetti (instructed by the Treasury Solicitor) for the Respondent in 2586, 0751 and 0682
Robin Tam (instructed by the Treasury Solicitor) for the Respondent in 0687
Crown Copyright ©
|Part 1||Introductory: the powers of the IAT under the 2002 Act||1|
|Part 2||Recent authoritative guidance: the power of the IAT to correct errors of fact||6|
|Part 3||The jurisdiction to correct errors of law: examples of errors of law commonly encountered||9|
|Part 4||Perversity, the failure to give reasons, and proportionality||11|
|Part 5||Country Guidance cases||21|
|Part 6||Error of law: unfairness resulting from a mistake of fact||28|
|Part 7||Evidence of a change of circumstances since the original decision||34|
|Part 8||The willingness of the IAT to admit evidence of changed circumstances||38|
|Part 9||Examples of the admission of new evidence or changed circumstances in asylum appeals||45|
|Part 10||The function of the IAT in its restricted appellate role||51|
|Part 11||Buxton LJ's obiter observations in Miftari||59|
|Part 12||The application of these principles to the five appeals||76|
|Part 13||A summary of the main points in this judgment||90|
|Part 14||Appeals to the Court of Appeal||92|
|M and T (Afghanistan)||133|
Lord Justice Brooke: This is the judgment of the court.
Part 1 Introductory: the powers of the IAT under the 2002 Act
"(g) that [the appellant's] removal from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
"(a) a decision against which the appeal is brought was not in accordance with the law (including immigration rules) or
(b) a discretion exercised in making a decision against which the appeal is brought … should have been exercised differently."
"(1) A party to an appeal to an adjudicator under section 82 … may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
"(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.
(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular –
(a) require the adjudicator to determine the appeal in accordance with directions of the tribunal;(b) require the adjudicator to take additional evidence with a view to the appeal being determined by a Tribunal."
Part 2 Recent authoritative guidance: the power of the IAT to correct errors of fact
i) It would only very rarely be able to overturn a finding of fact based on oral evidence and the assessment of credibility;
ii) It could more readily overturn a finding of fact based on documentary evidence specific to the individual case (because the IAT was in just as good a position to assess such evidence), but great caution would be required in those cases where there might be an important relationship between the assessment of the person involved and the assessment of those documents;
iii) The IAT would be at least as well placed as the adjudicator to assess findings as to the general conditions, or the backdrop, in the country concerned which would be based on the objective country evidence; the more so if the adjudicator had departed without solid justification from a relevant IAT country guidance decision;
iv) The IAT would be entitled to draw its own inferences as to the application of those general country conditions to the facts of the particular case.
Part 3 The jurisdiction to correct errors of law: examples of errors of law commonly encountered
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
"(3) The grounds of appeal must –
(a) identify the alleged errors of law in the adjudicator's determination; and
(b) explain why such errors made a material difference to the outcome."
Part 4 Perversity, the failure to give reasons, and proportionality
"[An adjudicator] should give his reasons in sufficient detail to show the [IAT] the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on [an adjudicator], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case. It is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion."
"[I]f the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [adjudicator] reached his decision. This does not mean that every factor which weighed with the [adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [adjudicator]'s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the [adjudicator] to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom (1993) 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.
19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.
20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, para 25, the [IAT] … observed that:
'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.'
In the present case, the Court of Appeal had no doubt … that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
When he turned to Mr Razgar's case, Lord Bingham said in para 24 that when an adjudicator reached Question (5), he might well decide it against Mr Razgar.
"It might be said that the Immigration Rules constitute for all cases the balance to be struck between private right and public interest, and this is conclusive for any judgment in an Article 8 case as to whether removal or deportation is proportionate and so justified under Article 8(2). But the Secretary of State rightly does not so contend. If that were the law, our municipal statute need do no more than confer a right of appeal to allow the immigrant to contend that on the true facts he has a good claim under the Rules. However, whatever else may be said about the relation between s 65(1) and paragraph 21(1) of Schedule 4 to the 1999 Act, it is surely plain that the legislature contemplated appeals on Convention grounds, including Article 8, which might succeed even though the appellant had no good claim under the Rules. The true position in our judgment is that the HRA and s 65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.
In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited:
'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.'"
In Huang the adjudicator was operating under the different regime set out in the Immigration and Asylum Act 1999 ("the 1999 Act"). There is, however, no material difference in the language of the 2002 Act.
Part 5 Country Guidance cases
"18.2 A reported determination of the Tribunal or of the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal or the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
a) relates to the country guidance issue in question; andb) depends upon the same or similar evidence.
18.3 A list of current 'CG' cases will be maintained on the Tribunal website. Both the respondent and any representative of the appellant in an appeal concerning a particular country will be expected to be conversant with the current 'CG' determinations relating to that country.
18.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for review or appeal on a point of law."
"It will be beneficial to the general administration of asylum appeals for Special Adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum-seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum-seeker, are involved."
Brooke LJ added:
"It often occurs in asylum appeals that Special Adjudicators are asked to consider reports about conditions in the different countries to which asylum-seekers may return. Sometimes different Special Adjudicators reach different conclusions on the same, or much the same, evidence. This is an unfortunate fact which has led appeals and applications in such cases to be pursued right up to this court in recent months.
In those circumstances the Tribunal may perform a valuable function if it decides in any given case to review all the reports available to it relating to a particular country over a particular period of time, so as to give helpful guidance to Special Adjudicators as to how they should approach that evidence in a future case."
"28. Refugee claims vis-à-vis any particular State are inevitably made against a political backdrop which over a period of time, however long or short, is, if not constant, at any rate identifiable. Of course the impact of the prevailing political reality may vary as between one claimant and another, and it is always the appellate authorities' duty to examine the facts of individual cases. But there is no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and therefore wasted expenditure of judicial and financial resources upon the same issues and the same evidence."
"SK was intended to and did give authoritative guidance as to the approach to be adopted towards the position of ethnic Serbs returning to Croatia. Giving such guidance is an important part of the Tribunal's function, enabling the parties to know where they stand and assisting the achievement of consistent decision-making throughout the asylum and immigration process."
"139. Decisions of the Tribunal to that end had been made for a number of years. They were to be applied by the Tribunal itself and by Adjudicators unless there was good reason, explicitly stated, for not doing so. Failure to adopt that approach was an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. The inconsistency itself with authoritative cases would be regarded by higher authority than the Tribunal as an error of law. There was a need to formalise that system so that parties knew where they stood, at least as the starting point for consideration of their circumstances, and for the Tribunal itself to bring forward those decisions which it had made, which it thought were representative and useful still, as a guide to country conditions.
140. These decisions are now denoted as 'CG'. They are not starred decisions. Those latter are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons for that view are given; there may be significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged. It is a misunderstanding of their nature, therefore, to see these cases as equivalent to starred cases. The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and the other circumstances which we have set out.
141. The comments of the Court of Appeal in S and Others  INLR 416, while recognising the role of the Tribunal in giving guidance, appear to have thought that the Tribunal guidance on country conditions was binding as a legal precedent in the way in which a starred conclusion on a point of law would be. But S and Others was not starred for that guidance, but for the point of law which arose. We have pointed this out in DK and elsewhere and we hope that it is now widely understood. It led to a standard being proposed for such cases, which may be ideal but cannot always be necessary in order for guidance to be given and for the injustice which inconsistency itself can bring to be avoided. Unlike starred decisions, it is always possible for further evidence to show that the original decision was wrong or to expose other issues which require examination. They are not accurately understood or described as 'factual precedents'.
142. The system enables the parties and the judiciary to know where to look for what the Tribunal sees as the relevant guidance, the parties to know what they have to deal with, and, if they wish to take issue with it, what it is that has to be the target of their evidence or argument. It enables parties to rely on the material which others have had accepted without reproducing or repeating it every time, or if it has been rejected, to know that there is no point in repeating it. Consistency and the justice which that brings can be provided for, even though differing and perhaps reasonable views can be taken of a wide variety of material. It also has the advantage of enabling the understanding of country conditions to be refined as successive decisions may lead to the identification of consequential issues to be grappled with which had hitherto been unrecognised; the Turkey cases are an example. There is recognised scope for improvement and parties can focus their evidence and arguments upon the aspect with which they take issue. The IAA website has made these cases publicly accessible."
Part 6 Error of law: unfairness resulting from a mistake of fact
(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board (para 45);
(ii) There was in fact, contrary to a minister's belief, adequate school accommodation in a local education authority's area for the pupils to be educated (para 54);
(iii) The land in question had in fact once been part of the Green Belt (para 58);
(iv) The proposed building extension would in fact obstruct a particular aspect (para 58);
(v) The restructuring of a building was in fact viable (para 58);
(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt (para 59);
(vii) A critical witness was in fact a member of a totally different political party in Ethiopia to that which he was believed to support (paras 60, 78-79);
(viii) The appellant had in fact been tried and convicted in his absence in his home country and sentenced to ten years' imprisonment, a matter which cast an entirely new light on the risks he faced if he were returned there (paras 60, 87).
(i) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;
(ii) it must be possible to categorise the relevant fact or evidence as "established" in the sense that it was uncontentious and objectively verifiable;
(iii) the appellant (or his advisers) must not have been responsible for the mistake;
(iv) the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.
He made it clear that he was not seeking to lay down a precise code.
(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);
(2) the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);
(3) the new evidence was apparently credible although it need not be incontrovertible.
Part 7 Evidence of a change of circumstances since the original decision
i) Where there has been a change of circumstances after the granting of an interlocutory injunction such that if the new circumstances had been before the judge they would have justified the variation of the injunction (Hadmor Productions Ltd v Hamilton  1 AC 191, 220D);
ii) More generally, where a change of circumstances since the trial has falsified the basis on which discretionary relief was granted (Attorney General v Birmingham, Tame and Rees District Drainage Board  AC 788, 802);
iii) Where the passage of time since a trial has falsified a conclusion of the trial court based on complaints of delay (EMA v ACAS (No 2)  1 WLR 302, 320F);
iv) From time to time, on the basis that the court should not speculate where it knows, damages will be assessed on the facts as they appear at the date of the appeal hearing (Curwen v Jones  1 WLR 748, 753; Lim Poh Choo v Camden and Islington AHA  AC 174, 194E).
"(2) The Court of Appeal shall have power to receive further evidence on questions of fact … but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred since the date of the trial or hearing) shall be admitted except on special grounds. (emphasis added)
(3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require."
Part 8 The willingness of the IAT to admit evidence of changed circumstances
"8. (1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligation under the Convention." (emphasis added)
"20. (1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."
For the effect of this provision, see Borrisov v SSHD  Imm AR 524, per Hirst LJ at p 535.
"…the Tribunal may, in its discretion, receive or decline to receive further evidence of which notice has been given in accordance with paragraph (2)."
"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."
"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. Article 1C(5) provides that the Convention ceases to apply if:
'(5) he (the refugee) can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.'
Equally, had the situation deteriorated but, because this had to be ignored, the appeal failed, the claimant could put a fresh case to the Secretary of State. In either event, the appeal process could well have to start all over again."
"In those circumstances the procedural provisions of section 19 of the Immigration Act 1971, as incorporated by paragraph 4(2) of schedule 2 of the 1993 Act, must yield if and insofar as they would otherwise confine the appellate authorities to the facts that existed at the time of the Secretary of State's decision."
Part 9 Examples of the admission of new evidence or changed circumstances in asylum appeals
"Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal [to the IAT], the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator."
Part 10 The function of the IAT in its restricted appellate role
"14. …Accordingly, and this is I apprehend no more than elementary, an appeal cannot be allowed unless the Tribunal distinctly holds 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 Tribunal 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 Tribunal 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 s 102 of the 2002 Act, which I have read."
"… [T]he jurisdiction under s 101 of the 2002 Act forbids in effect the Tribunal 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."
"The grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal."
i) The Vice-President of the IAT who considers an application for permission to appeal must determine whether the IAT has jurisdiction to entertain the appeal on the basis of the grounds of appeal that are before him (subject to any amendment of the grounds he may invite and allow if he discerns a point the parties have not taken).
ii) At the substantive hearing of the appeal the IAT can only consider what is legitimately found in the actual or amended grounds, and has no jurisdiction to consider anything that is not there.
iii) Unlike a court, the IAT has to consider its jurisdiction expressly because it has to pass on the grounds of appeal. It is very difficult to see how a decision as to jurisdiction can be saved by demonstrating that although the basis on which it was taken was unjustified, the Vice-President could have granted permission on a different basis that was not before the court.
Although a Vice-President of the IAT granted permission to appeal in the Miftari case, Buxton LJ's comments apply equally to any legally qualified chairman who grants permission to appeal.
"enabled, indeed required, the immigration appellate authorities to consider an obvious point of Convention jurisprudence which may avail an appellant, even if it is not pleaded or otherwise advanced on his behalf. The rationale was that, if such a point were ignored on technical grounds, there will be a danger that this country will be in breach of its obligations under the Convention (per Lord Woolf MR, giving the judgment of the Court of Appeal, at p 946C)."
Part 11 Buxton LJ's obiter observations in Miftari
"29. That suffices to dispose of this matter. However, we heard considerable argument as to the extent of the IAT's powers had a point of law been properly identified before it. I will go on to discuss those issues, not only because they are of some importance in themselves, but also because they shed some further, albeit indirect, light on the issues of jurisdiction.
The IAT's powers in an appeal on a point of law
30. It will be recalled that in paragraph 16 of its determination the IAT concluded that, since it had identified an error of law on the part of the Adjudicator, it could therefore look again at the case in the light of the factual evidence as it existed at the time of the IAT hearing. I cannot agree. Since the IAT now has jurisdiction to determine only points of law, it cannot put itself in the position of the lower court and decide the whole of the case as it stood there. Unless the decision on the point of law determines the case on the basis of the facts already found below, the IAT has to remit. That the IAT cannot itself enter upon the facts has already been emphasised in two judgments of this court. In CA Mummery LJ at paragraphs 39-40 rejected in emphatic terms a contention in the opposite sense by the Secretary of State. And in paragraph 20 of B the Master of the Rolls, referring to that and other reported cases, said that
'at the time of the IAT's decision in this case members of the IAT were under the misapprehension that, once permission to appeal on a point of law had been given, it was open to the IAT to review the Adjudicator's conclusions of fact.'
The same misapprehension appears to have obtained in the case before us.
31. The point is of some importance for the jurisdiction issue, because once it is assumed that the identification of any point of law opens the door to a general rehearing by the appellate body, the procedure becomes close to that in an ordinary civil appeal, where the appeal court does have all the powers of the lower court (CPR 52.10), and at least in the Court of Appeal has all the authority and jurisdiction of the court from which the appeal was brought (Supreme Court Act 1981, s 15(3)). That is very significantly different from the position of a tribunal, like the IAT, whose jurisdiction is limited to appeals on points of law. I would venture respectfully to agree with the similar observations, albeit in a different statutory context, of Mummery LJ in paragraph 42 of his judgment in Bangs v Connex South Eastern  EWCA Civ 14.
32. Some difficulty has been perceived in this connection from the continuation, by section 102(2) of the 2002 Act, of the IAT's power to receive evidence, including evidence of matters arising after the Adjudicator's decision. But this power is expressly limited to the receipt of evidence 'in reaching their decision on an appeal under section 101': that is, an appeal against an adjudicator's decision on a point of law. Therefore, as the President of the IAT stressed in paragraph 20 of the determination of the IAT in MA (fresh evidence) Sri Lanka  UKIAT 00161, such evidence must be relevant to showing that there was an error of law committed by the Adjudicator. And it may be added as a footnote that the more expansive view taken by this court in paragraph 92 of its judgment in E v Home Secretary  QB 1044 was, as the court itself emphasised, directed at the jurisdiction of the IAT before section 101 of the 2002 Act came into force.
33. In referring to that part of the President's determination I must not be taken as approving the further observations as to the need to look at evidence of events subsequent to the adjudicator's decision that are to be found in paragraphs 21-24 of that determination. The observations extracted from D (Croatia)  UKIAT 00032 that the President sets out are, with great respect, full of commonsense; but they are very difficult to reconcile with the limited jurisdiction of the IAT that I have referred to in paragraphs 30-31 above. Since there is no error of law in this case the point does not arise for decision. If it did, further consideration of the approach of the IAT in the Sri Lanka case might well have been necessary."
"(3) In considering –
(a) any ground mentioned in s 69, or(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken)."
This statutory provision was considered by the IAT in their starred decision in S & K (Croatia)  UKIAT 05613 at paras 19-22.
"[O]nce a material error of law is shown, I for my part would accept that the Tribunal must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case." (para 15)
"[T]he jurisdiction under s 101 of the 2002 Act forbids in effect the Tribunal 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." (para 30)
Part 12 The application of these principles to the five appeals
Part 13 A summary of the main points in this judgment
1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues;
2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision.
4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law.
5. At the hearing of an appeal the IAT had to identify an error of law in relation to one or more of the issues raised on the notice of appeal before it could lawfully exercise any of its powers set out in s 102(1) of the 2002 Act (other than affirming the adjudicator's decision).
6. Once it had identified an error of law, such that the adjudicator's decision could not stand, the IAT might, if it saw fit, exercise its power to admit up-to-date evidence or it might remit the appeal to the adjudicator with such directions as it thought fit.
7. If the IAT failed to consider an obvious point of Convention jurisprudence which would have availed an applicant, the Court of Appeal might intervene to set aside the IAT's decision on the grounds of error of law even though the point was not raised in the grounds of appeal to the IAT.
Part 14 Appeals to the Court of Appeal
A. R (Iran)
B. A (Afghanistan)
"So far as consideration of the human rights appeal is concerned I must consider whether there is substantial ground for believing that there is a real risk the appellant's rights under the ECHR will be breached as a result of the respondent's decision."
Turning to his findings, he said:
"I do accept the appellant's family are now in the UK some of whom have refugee status and some exceptional leave to remain. … I accept the appellant lives with his family. Indeed there has been no suggestion he does not. I accept he has a family life with them. I have considered carefully whether removal of the appellant to Afghanistan will be disproportionate having accepted it would be in pursuit of a legitimate aim and would interfere with his family life. His family have been offered international protection by the UK and some given indefinite leave to remain.
If the appellant were to be sent back to Afghanistan there is no evidence before me that he would be able to apply to return here or indeed at present whether he would be given any visa. In reality even if he were able to get a visa there would be the cost implications of trying to get funds together for the trip to this country. This might prove to be impossible in any regular way. Returning this appellant to Afghanistan would mean he would be separated from a family that has already undergone incredible upheaval and has come from a place that has endured the most awful recent history. In the above circumstances I believe his removal would be disproportionate. All of his close family are in the UK and separating him from his family again would in my view be disproportionate to the aim pursued."
"The adjudicator clearly fell into error either on the basis that there is not family life in this case or that if there is it is not of such a nature and quality as to render the claimant's removal disproportionate."
"We do not consider that the circumstances of this case indicate that removal would be disproportionate given the weight that should properly be attached to the maintenance of fair and effective immigration control."
No reference was made to Razgar, which had been decided in the House of Lords some months earlier, but the approach of the Tribunal was consistent with both Razgar and the later decision of the Court of Appeal in Huang v SSHD  EWCA Civ 105.
C. M and T (Afghanistan)
The Hisb-e-Islami and Gulbuddin Hekmatayar
"Hekmatyar was at one time supported by Pakistan and Saudi Arabia, but eventually Pakistan turned against him preferring to give support to the Taliban. Hekmatyar fled Kabul when the Taliban swept to power and was given refuge by the Iranians. His vocal opposition to the new president Karzai was an embarrassment to the Iranian government who expelled him in February 2002 and closed his offices in Tehran. A number of his supporters were detained in Kabul in April 2002, accused of conspiring to plant bombs. Hekmatyar himself remains elusive although there are reports that he is in Afghanistan. Hekmatyar was designated as a terrorist by the US on 19th February 2003."
The adjudicator's findings in M's case
M's appeal to the IAT
The adjudicator's findings in T's case
T's appeal to the IAT
"We have considered all the evidence presented to us as well as the oral submissions made on behalf of both the Appellant and Respondent. We have scrutinised the adjudicator's determination in the light of the evidence presented to him. We cannot identify an error of law on his part, material or otherwise. He considered all the evidence that was presented to him and made his findings. He found that, on the evidence before him, the Appellant was unlikely to be of adverse interest to the Northern Alliance on his return. His findings would have to be perverse to amount to an error of law. We are satisfied that the findings he made were not perverse but were properly open to him on the evidence before him and sustainable. It would not be appropriate for us to interfere with those findings."
The Issues in this Court in M and T
RS (Hibi-e-Islami – expert evidence) Afghanistan
"In a country where the rule of law has broken down and there is no realistic prospect of an individual establishing his innocence through due process, where there are incentives to detain and ill-treat those suspected of involvement with Hisb-e-Islami in the hope of obtaining information which may lead to senior wanted men and enormous rewards, there is a real risk that not only those who are genuinely active for Hisb-e-Islami but those suspected of such involvement, past and present, face similar risks.
Because of the conclusion that we must remit, this will not be a country guidance case but it is reported for the information relating to Hisb-e-Islami and in particular the opinions of [Dr Martin Lau, the expert witness]."
D. T (Eritrea)
"We are of the opinion that the adjudicator has not made any error in law. He has dealt with the evidence and argument submitted to him. It now appears that there may be new evidence of a risk on different grounds, namely the possibility that this Appellant on return might face the possibility of conscription, given that she is under 40 years of age and that she might be detained and ill-treated in Eritrea on return. Since the Appellant has failed to establish that the adjudicator made any error of law, however, the appropriate course is for the Appellant, through her representatives, to make further representations or a new claim on the basis of this new material to the Secretary of State for the Home Department."
We agree, and we would therefore dismiss this appeal.