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URL: http://www.bailii.org/uk/cases/UKIAT/2005/00126.html
Cite as: [2005] UKIAT 00126, [2005] UKAIT 00126, [2005] UKAIT 126

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YF (pre-commencement remittal – basis of reconsideration) Eritrea [2005] UKAIT 00126

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 15 June 2005

Date Determination notified: 6 September 2005

Before

Mr L V Waumsley (Senior Immigration Judge)

Mr F Appleyard (Immigration Judge)

Between

Secretary of State for the Home Department	APPELLANT
and
YF	RESPONDENT

For the appellant: Mr A Rhys-Davies of counsel, instructed by White Ryland, solicitors

For the respondent: Ms J Donnelly, Home Office Presenting Officer

DETERMINATION AND REASONS

Guidance as to correct approach to findings of fact made previously when an appeal has been remitted to an adjudicator for a fresh hearing before 4 April 2005, but the rehearing has not taken place by that date

The respondent has appealed with permission against the determination of an adjudicator (now an Immigration Judge), Miss D M Lambert, sitting in Bradford, in which she dismissed the appeal of the appellant, a citizen of Eritrea, against the respondent's decision to refuse him leave to enter the United Kingdom after refusing an application for asylum made by him, but allowed his appeal against that decision on human rights grounds only. By virtue of article 5(1)(a) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005, the appeal now takes effect as a reconsideration pursuant to an order under article 5(2) of that Order.

Background

The appellant arrived in United Kingdom on 3 September 2002. He applied for asylum on arrival. The grounds on which he did so may be stated shortly. He said that although he had been born in Ethiopian, he was of Eritrean ethnicity. He had been deported by the Ethiopian authorities to Eritrea when he was 20 years old. He had then been recognised by the Eritrean authorities as an Eritrean citizen. He worked as a military driver in Eritrea between October 1998 and June 2000.

However, in June 2000, he was injured badly when the Army lorry which he was driving was hit by artillery fire. He was in hospital for three months receiving treatment for an eye injury. He then received further treatment as an outpatient for another three months. He was required to return to military service in December 2000, but refused to do so.

As a consequence of that refusal, he was detained by the military authorities in January 2001, and was held in detention at a camp in Sawa until August 2002. He was ill-treated during that detention. However, in August 2002, he managed to escape from military custody with one of the other detainees. They travelled together to Sudan. He managed to make contact with one of his cousins in the United States. His cousin provided the funds which were used to pay an agent to bring the appellant to the United Kingdom via Zimbabwe. He applied for asylum on arrival in the United Kingdom.

The respondent rejected the appellant's account. On 6 November 2002, the appellant was notified of the respondent's decision to refuse his asylum application, and five days later, the appellant was given notice of the respondent's decision to refuse him leave to enter the United Kingdom.

The appellant exercised his right to appeal to an adjudicator. This is the appeal which came before Miss Lambert on 15 October 2003. In her determination, which was promulgated on 30 October 2003, she dismissed the appeal on asylum grounds. However, she allowed it on human rights grounds only.

The respondent then applied to the former Immigration Appeal Tribunal for permission to appeal against the adjudicator's determination. That application was determined by a Vice President (Mr G Warr) on 29 March 2004. He granted permission to appeal in the following terms:

"The appeal appears to be in time being received on the last day (17 November 2003) according to the Faxed date. The grounds of appeal appear to raise arguable issues.

This application for permission to appeal is granted."

The respondent's appeal was heard by the Immigration Appeal Tribunal on 17 February 2005. By its determination, which was notified on 25 February 2005, the Tribunal allowed the appeal to the extent that it was remitted for a fresh hearing before an adjudicator other than Miss Lambert. This is the appeal which is now before us, albeit as a reconsideration, rather than an appeal.

Application to serve reply

At the start of the hearing, Mr Rhys-Davies, who appeared for the appellant, applied for permission to serve a reply under rule 30(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 so as to enable the appellant to challenge the adjudicator's decision to dismiss his appeal on asylum grounds. We drew his attention to the provisions of rule 30(2) which read as follows:

"The other party to the appeal [i.e. the appellant in the present instance] must file and serve a reply not later than 5 days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal."

Mr Rhys-Davies acknowledged that the appellant was unable to comply with that time-limit. He also confirmed that there was no provision in the Procedure Rules to which he could direct us which would enable us to extend the appellant's time for a filing and serving his proposed reply. In the circumstances, he conceded that it was no longer open to the appellant to challenge the adjudicator's decision in relation to his asylum appeal. He was right to do so. The reconsideration before us is therefore confined to the issue of the adjudicator's decision to allow the appeal on human rights grounds only.

Basis of reconsideration

Both representatives invited us to make a ruling as to the basis on which the reconsideration would take place. Ms Donnelly, who appeared for the respondent, submitted that the adjudicator's findings of fact should stand, and that the reconsideration should be conducted on the basis of those findings. Mr Rhys-Davies submitted that the contrary should apply, and that it would be incumbent upon us to arrive at fresh findings of fact on the basis of the evidence to be adduced before us.

The adjudicator's findings of fact are set out at paragraphs 9.1 to 9.5 (inclusive) of her determination. For present purposes, it suffices to set out the findings which appear at paragraph 9.5 in the following terms:

"My findings above lead me to reject as credible the appellant's account of his detention, ill-treatment in and escape from Sawa camp and the means by which he arranged to travel to the United Kingdom."

In essence, the adjudicator rejected the appellant's evidence in relation to the core elements of his account.

Respondent's submissions

We heard submissions first from Ms Donnelly in support of her submission that those adverse credibility findings should stand. She stated that she was relying principally on the reported determination (now no longer reported) of this Tribunal in SA (old-style remittal -- reconsideration -- approach) Burundi [2005] UKAIT 00102 , which relied in turn on the judgment of Sir Michael Harrison sitting in the High Court of Justice, Queen's Bench Division, Administrative Court, in R v Immigration Appeal Tribunal, ex parte Ghanbarpar [2005] EWHC 123 (Admin). She argued that ex parte Ghanbarpar was authority for the proposition set out at paragraph 29 of that judgment in the following terms:

"I have already mentioned the passage in Symes and Jorro on Asylum Law and Practice, to which I was referred, to the effect that the benefit of positive findings on credibility is not something of which an asylum seeker should be lightly deprived. Whilst the case quoted in the footnote to that passage does not appear to be direct authority for the proposition, it is nevertheless a proposition with which I agree. In this case the claimant is not, strictly speaking, being deprived of the benefit of the adjudicator's positive credibility findings, but the benefit of those positive credibility findings is being put at risk and that, in my view, is not something that should be done lightly, especially bearing in mind that the adjudicator heard and saw the claimant giving oral evidence and being cross-examined."

Ms Donnelly submitted that it was a question of fairness that the principle referred to by Sir Michael Harrison should cut both ways. He had held that an appellant should not lightly be deprived of the benefit of positive credibility findings reached by an adjudicator who had heard him give oral evidence. In like manner, the respondent should not lightly be deprived of the benefit of adverse credibility findings reached by an adjudicator who had heard oral evidence.

She referred us to paragraphs 7 and 8 of the determination of the Immigration Appeal Tribunal remitting the appeal in the following terms:

"7. We are satisfied that there are errors of law in the determination. In particular the adjudicator assessed the risk on return incorrectly. She should have asked herself whether there was a reasonable likelihood or real risk that the appellant would be subjected to article 3 ill-treatment on return rather than the test she used in paragraph 9.8.

8. Accordingly we allow the appeal to the extent it be remitted for a fresh hearing before an adjudicator other than Miss D M Lambert."

She argued that it was clear from the Tribunal's determination that the problems with the adjudicator's determination did not relate to her findings of fact. They related to her assessment of the risk on return. Her findings of fact should therefore be adopted as the basis of our reconsideration. We did not find it necessary to invite Mr Rhys-Davies to respond on behalf of the appellant.

Conclusions

In arriving at our conclusions on this issue, we have not found the determination in SA of any real assistance. The Tribunal was dealing in that case with a different situation from the one which is before us. This is clear from a number of the passages which appear in the determination. In particular, at paragraph 5, the Tribunal stated:

"However, in exercising this jurisdiction that, I have to bear in mind the terms in which Vice President Mr Lane granted permission to appeal and then remitted the case. Despite ordering a fresh hearing, he plainly indicated that this should focus on just one issue, namely, whether in view of her generally positive credibility findings, the Adjudicator had given legally sustainable reasons for not accepting the arrest warrants."

At paragraph 6, the Tribunal stated inter alia:

"With this in mind I sought the views of the parties as to the basis on which the fresh hearing should proceed. Both agreed with me that it was appropriate in this case to confine the issue to that concerning the arrest warrant."

At paragraph 7, the Tribunal stated inter alia:

"The Tribunal who remitted this case clearly intended that the issue should be confined."

Finally, the Tribunal recorded at paragraph 10 inter alia:

"Since it is agreed between the parties that we should proceed on the basis of Mrs Bird's positive credibility findings, it is useful to remind ourselves what these amounted to and in what way she qualified them."

There was no such agreement between the parties to the reconsideration now before us. In addition, we can see no indication, either in the terms in which the Vice President granted permission to appeal or in the determination remitting the appeal for a fresh hearing that it was intended, either by the Vice President who granted permission or by the Immigration Appeal Tribunal when remitting the appeal, that the reconsideration now before us should be confined to a particular issue or issues, or that it should be conducted on the basis of the findings of fact made by the adjudicator.

Turning now to the judgment in ex parte Ghanbarpar, it is clear from paragraph 1 that it was a judgment made on an application for judicial review to quash the determination of the Immigration Appeal Tribunal remitting the appeal for a new hearing. As such, the judgment is not one which is strictly binding on us. Although the judge endorsed the proposition referred to at paragraph 29 of his judgment that "the benefit of positive findings on credibility is not something of which an asylum seeker should be lightly deprived", it is to be noted that he was not purporting to lay down any binding principle of general application. In particular, he was not seeking to assert that the contrary proposition should also apply, namely that the Secretary of State should not lightly be deprived of the benefit of adverse credibility findings made by an adjudicator or immigration judge who has heard oral evidence.

In principle, we can see no logical reason why the converse proposition should not apply equally. Fairness requires that both parties should be faced with a level playing field. If an appellant whose evidence has been believed by an adjudicator or immigration judge is not lightly to be deprived of the benefit of positive findings of fact, we see no reason why the respondent should be deprived any more readily of the benefit of a finding rejecting an appellant's evidence in similar circumstances. However, in the absence of any binding authority on the point, it is necessary for us to arrive at our own conclusion on this issue.

Statutory provisions

Our starting point for so doing is the statutory provisions which appear in section 103A of the Nationality, Immigration and Asylum Act 2002 as amended. However, they are of little assistance in deciding the issue which is before us. For present purposes, it will suffice to set out section 103A(1), which reads as follows:

"A party to an appeal under section 82 or 83 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 the appeal."

Those provisions give no guidance as to the basis on which such a reconsideration, if ordered, should then take place.

Procedure Rules

The Asylum and Immigration Tribunal (Procedure) Rules 2005 are likewise of limited assistance. The only provisions which are arguably of any relevance are those which appear in rules 27(2), 31(4) and 45(4)(f)(iv) in the following terms:

"27(2) Where an immigration judge makes an order for reconsideration --

(a) his notice of decision must state the grounds on which the Tribunal is ordered to reconsider its decision on the appeal; and

(b) he may give directions for the reconsideration of the decision on the appeal which may --

(i) provide for any of the matters set out in rule 45(4) which he considers appropriate to such reconsideration; and

(ii) specify the number or class of members of the Tribunal to whom the reconsideration shall be allocated.

31(4) In carrying out the reconsideration, the Tribunal --

(a) may limit submissions or evidence to one or more specified issues; and

(b) must have regard to any directions given by the immigration judge or court which ordered the reconsideration.

45(4) Directions of the Tribunal may, in particular --

….

(f) limit –

….

(iv) the issues which are to be addressed at the hearing…"

Once again, those provisions are of limited assistance to the issue which is before us.

Practice Directions

Of more assistance are the Practice Directions made by the President of this Tribunal on 4 April 2005. Those Directions were made pursuant to the power conferred on him by section 107 of the 2002 Act and paragraphs 7 of Schedule 4 to that Act. At paragraph 13 is the section dealing with reviews. The only part of it which is relevant for present purposes is paragraph 13.9 which reads as follows:

" The immigration judge who has decided to make an order for reconsideration:

(a) must state the grounds on which the Tribunal is ordered to reconsider its decision (rule 27(2)(a)); and

(b) will (amongst other things) decide under rule 27(2)(b) whether to direct that a CMR [case management review] hearing be held before the reconsideration hearing takes place and whether to make a direction as to the evidence to be adduced at the hearing initially fixed for the reconsideration (as to which, see paragraph 14)."

Paragraph 14 deals with the procedure to be followed on the reconsideration. It is necessary to set out the whole of this paragraph as follows:

"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.

14.5 The references in paragraph 14.1 to 14.4 to the original Tribunal include references to an adjudicator in any case where, by virtue of article 6 of the Commencement Order, the order under section 103A is made in respect of the decision of an adjudicator.

14.6 Under article 5 of the Commencement Order, any appeal that was pending before the IAT immediately before 4 April 2005 shall on and after that date be dealt with in the same manner as if the Tribunal had originally decided the appeal and was reconsidering its decision.

14.7 Rule 62(7) provides that, in the case of an appeal described in paragraph 14.6, the reconsideration shall be limited to the grounds upon which the IAT granted permission to appeal. In most cases, those grounds will require the Tribunal to decide whether the adjudicator made a material error of law.

14.8 Subject to paragraph 14.12, on and after 4 April 2005, and in the absence of any direction to the contrary, the parties to any appeal that falls to be dealt with as described in paragraph 14.6 should assume that the issues to be considered at the hearing will be whether the adjudicator made a material error of law and, if so, whether, on the basis of that adjudicator's findings of fact, the appeal should be allowed or dismissed.

14.9 Where the Tribunal decides that the adjudicator 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.

14.10 The provisions of paragraph 14.3 and 14.4 shall apply in relation to paragraph 14.9 as they apply in relation to paragraph 14.2 but with the modification that the references to the original Tribunal shall be interpreted as referring to the adjudicator.

14.11 Where, immediately before 4 April 2005, an appeal was pending before an adjudicator, having been remitted to an adjudicator by a court or the IAT, it will already have been decided that the original adjudicator's determination cannot stand. The Tribunal will accordingly proceed to re-hear the appeal.

14.12 In the case of a reconsideration of a fast track appeal, the Tribunal reconsidering the appeal is required by rule 23 of the Fast Track Rules to reconsider its decision on the appeal at the reconsideration hearing, subject to the qualifications described in rule 23(1) of those Rules. The Tribunal's power to adjourn a fast track appeal that remains as such is governed by rule 28 of those Rules.

14.13 The parties to any fast track appeal which is being reconsidered by the Tribunal on or after 4 April 2005 will be expected to attend with all necessary witnesses and evidence that may be required if the Tribunal should decide that it is necessary to re-hear the appeal. It will be unusual for the Tribunal to adjourn the reconsideration hearing but, if it does so, paragraph 14.4 will, so far as appropriate, apply.

14.14 The preceding provisions of this paragraph and paragraph 13 are subject to article 9 of the Commencement Order in the case of certain "old" appeals, where the issue is not restricted to whether the adjudicator made an error of law."