QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (WANI)
|- and -
|Secretary of State for the Home Department & the A.I.T.
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)
Robin Tam (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant was not represented
Crown Copyright ©
Mr Justice COLLINS :
"I am prepared to accept that the appellant is an Ahmadi and that he practises his religion in a sincere spirit. I also accept his evidence as to the extremely objectionable behaviour which he has received at the hands of Islamic fundamentalists in Pakistan. As I have indicated above there were one or two incidents evidenced about which I have some reservation. For example I am not sure that he can properly be described as a teacher although he could possibly be described as a proselytiser. One point which was made by the Home Office was that he was not really at risk of persecution by fundamentalists (in the plural) but had simply been targeted by the abovementioned Javed. I personally think this is far too narrow a submission and I am prepared to accept the evidence as to the wider basis of objectionable behaviour. It seems to me that having accepted that the appellant is an Ahmadi and having accepted his evidence as to the treatment which he has received in Pakistan I must now on the basis both of his own evidence and of the objective evidence form a view as to what is likely to happen should he return to Pakistan".
"I accept that the appellant has been assaulted on occasions and that he has suffered serious physical ill-treatment. I do not however consider that his evidence brings him within the scope of Articles 2 or 3".
He concluded, however, that the claimant was entitled to asylum and that there would be a breach of Article 9 (Freedom of religion) so that his appeal was allowed under both Conventions.
"The A.I.T. shall, after commencement, subject to [procedure rules] deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision".
"(1) A party to an appeal … 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 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".
"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 should stand".
A material error of law is defined in paragraph (5) to mean an error of law which affected the Tribunal's decision upon the appeal.
"14.1. Subject to paragraph 14.12, where an appeal has been ordered under section 103A to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and, if so, whether, on the basis of the original Tribunal's findings of fact, the appeal should be allowed or dismissed.
14.2. Where the Tribunal decides that the original Tribunal made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.
14.3. Where the Tribunal acting under paragraph 14.2 adjourns the hearing, its determination, produced after the adjourned hearing has taken place, will contain the Tribunal's reasons for finding that the original Tribunal made a material error of law.
14.4. Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be attached to, and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal."
"If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, than the special adjudicator should apply it in his favour but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the Tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum seeker which does not appear in the decision, he should grant leave to appeal. If it does not do so, there will be a danger that this Country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do."
For my part, I see no reason in principle why those observations should be limited to Convention points favourable to an appellant. But I recognise that there is authority of the Court of Appeal which suggests that they may be so limited: see Miftari v Secretary of State for the Home Department  EWCA 481 and so I accept that in transitional cases such as the present s.62(7) must be applied in all cases except where a Convention point favourable to an appellant which passes the Robinson test is identified. I reach this conclusion with some reluctance having regard to what I have said in paragraph 15 above, but I must apply the Rule in accordance with the guidance provided by the Court of Appeal. Robinson also makes the more general point that in other reconsideration cases which are not covered by Rule 62(7) the Tribunal should only be prepared to listen to arguments seeking to raise new grounds or otherwise challenge the findings of the Tribunal which dealt with the first hearing if they are truly new and obvious and would have a strong prospect of success.
"1. Contradictory findings made by the Immigration Judge, for example paragraph 4.
2. Findings were unclear and confusing.
3. Objective material was not adequately taken into account in making the findings.
4. The determination is too short, with insufficient reasoning.
5. Error of law in allowing the asylum appeal while dismissing the Article 3 claim.
6. Error of law in allowing the appeal under Article 9 while finding Article 3 not engaged, contrary to the C.A. judgment in Ullah and Do (the authority at the time of the hearing)."
MR JUSTICE COLLINS: For the reason I which I have set out in the judgment, copies of which have been given in advance, I am proposing to dismiss this claim.
Are there any subsequent orders that need to be made?
MR MOSS: My Lord, on behalf of the Secretary of State, I apply for the First Defendant's costs in this matter. My Lord, this is a contested rolled-up hearing and in my submission the costs should follow the event. The Secretary of State accepts that there was an important issue at stake in this matter, but the single exercise, as Mr Tam described it, was very fully set out in the Secretary of State's summary grounds of defence.
MR JUSTICE COLLINS: Yes, but one of the arguments that you lost was equally important, which was disclosure of the pink form.
MR MOSS: That is right. What the Secretary of State does say about is that although the Claimant is publicly funded in this matter, this is a case that is obviously going to be ongoing before the AIT and it is not impossible that there might be future costs orders made against the Secretary of State, and the costs of these proceedings.
MR JUSTICE COLLINS: The Tribunal has now power to award costs, does it, except on a reconsideration?
MR MOSS: My Lord, no, but of course it is conceivable because of your Lordship's judgment that this matter might come before the Court of Appeal.
MR JUSTICE COLLINS: That is up to the Court of Appeal. That does not concern me at all, if someone takes it to the Court of Appeal, whether via the AIT or from me, although I cannot quite see there is much scope for either side to appeal my decision.
MR MOSS: My Lord, the submission that I make is that the point on which the Secretary of State won was the main argument in this case, the single exercise point, and that is the basis of my application.
MR JUSTICE COLLINS: The Claimant is publicly funded, is he not?
MR COORAY: My Lord, yes.
MR JUSTICE COLLINS: I know that votes matter, and so on, but really is this a case where it is sensible to ask for costs. You are never going to get anything, are you?
MR MOSS: My Lord, so be it.
MR JUSTICE COLLINS: Mr Cooray, so far as costs are concerned, I am inclined to say no order.
MR COORAY: Yes, my Lord. I am not raising that matter. I believe that this is an important issue, and, while I have taken note of your Lordship's judgment, there are two issues that concern me. That is firstly although through a circuitous route the Claimant can go to the Court of Appeal and challenge the initial decision or the preliminary decision of the AIT, today, with restricted legal aid, it would be impossible and also very long. Secondly, on the merits of the matter, your Lordship has agreed at least in large part with my submissions.
MR JUSTICE COLLINS: I have agreed that the reasons are inadequate. But the result would have been the same. What I am getting at is that I do not think you are right to say that there was no error of law in the Adjudicator's decision. Unfortunately both the adjudicators and the Senior Immigration Judge's decisions were bad, as far as reasons are concerned.
MR COORAY: The difficulty, my Lord, is that of course under the Rules only those specific areas which have been considered and where the AIT has granted leave can be considered by the transferred AIT.
MR JUSTICE COLLINS: There is nothing, is there, that is missing so far as consideration is concerned?
MR COORAY: My Lord, the main point I was trying to make is that I am seeking your leave to appeal to the Court of Appeal.
MR JUSTICE COLLINS: Yes, I thought you were.
MR COORAY: Because there is an important issue involved in this.
MR JUSTICE COLLINS: No, Mr Cooray, I do not think this is an appropriate case to grant leave to appeal, partly of course, or largely, perhaps, because it seems to me that there is no factual merit in the claim in as much as you would not succeed in establishing, even if I had been with you on the question as to whether judicial review was an appropriate remedy, you would not have succeeded in persuading me that judicial review would be granted. Accordingly, if this issue is to go further this is not the right way. If on the reconsideration the view is taken that there was indeed no error of law then you can take it, or try to take it to the Court of Appeal from there, if you lose the substantive appeal. You may win the substantive appeal, in which case the whole thing becomes academic anyway. So, no, I am not going to grant leave to appeal. You will want presumably the usual detailed assessment order for legal aid?
MR COORAY: Yes.
MR JUSTICE COLLINS: That of course you can have. I make it clear that although I have indicated that to take judicial review in this sort of situation would be an abuse of the process, I was not suggesting, and I hope it is clear that I was not suggesting that this application was an abuse of the process because this application was important to sort out the proper practice of the Tribunal.