Miftari v Secretary of State for the Home Department

In paragraph 40 of his judgment in Mlauzi v Secretary of State [2005] EWCA Civ 128 the Vice-President of this court said:

It is now well known that Parliament revoked the power of the Immigration Appeal Tribunal to hear appeals on fact in relation to any decision by an Adjudicator which was made after the first week of June 2003. For a long time the effect of this decision appears not to have percolated through to those who practise before the IAT, and the IAT itself made a number of determinations in which it did not clearly identify the point of law which alone gave it jurisdiction to hear the appeal.

The present appeal is yet another example of the difficulties to which the failings identified by the Vice-President have given rise.

Mr Miftari is an ethnic Albanian citizen of Serbia and Montenegro (Kosovo), aged 58. He first arrived in the UK in 1999 under the Kosovan Humanitarian Evacuation Programme; thereafter decided that it was not safe to return; and claimed asylum here on 26 June 2000. That asylum claim was rejected by the adjudicator, and is no longer pursued. Mr Miftari however resists return to Kosovo on the ground that, because of his state of health, return would be in breach of this country’s obligations under articles 3 and 8 of the ECHR. Although there was some criticism of the medical evidence and of the adjudicator’s handling of it, it is accepted for the purposes of this appeal that Mr Miftari is at least suffering from a form of PTSD, with potential for self-harm, which raises issues about the available treatment should he be returned to Kosovo. The extent of his illness; and the medical position in Kosovo; are however matters of controversy, to which I shall have to return.

The Adjudicator accepted evidence from a consultant psychiatrist that there was a significant level of mental illness in Kosovo, and a paucity of qualified psychologists and psychiatrists. The incidence was 1 psychiatrist for each 90,000 of population, whereas the ratio in the UK was 1:30,000. Having recorded that evidence, in paragraph 21 of his determination, the Adjudicator set out the view of the UK experts that Mr Miftari needed many months of psychological treatment, which had not yet become available in the UK. He then, in paragraph 29, recorded that the municipality from which Mr Miftari comes, Gjilan, was a region with almost 300,000 inhabitants but, on the information then to hand, no mental health services, the one acute ward having been diverted to other purposes. He then continued, at paragraph 30:

In all the circumstances it is clear that the Appellant would have to establish an exceptional case to satisfy the criteria under Articles 3 and 8. In this case I consider that an exceptional case has been made out. He is 58 years of age and appears to be an old man because of his mental health problems……..[The consultant psychiatrists] agreed that the Appellant is suffering symptoms of PTSD. I accept that the Appellant’s mental health would deteriorate if returned and I agree with the reports and conclusions of [the consultant psychiatrists]. I am satisfied that the Appellant will be subjected to inhuman or degrading treatment if returned to Kosovo and therefore Article 3 is applicable. I am also of the view that it would not be appropriate for the Appellant to be removed to Kosovo and that his removal would constitute a breach of Article 8(2) of the ECHR. I am satisfied that any interference with his private moral or family life would not be necessary and proportionate in the circumstances of this particular case.

He accordingly allowed the appeal on human rights grounds.

The Secretary of State sought permission to appeal to the IAT. The grounds that he advanced are of crucial importance in the present appeal, and the relevant parts of them must be set out in full:

The IAT accepted that the Adjudicator was entitled to come to the view that he did as to the diagnosis of PTSD, but continued, in a passage that again must be set out in full:

The appeal to this court was based on one ground only:

Whether the Tribunal’s conclusion that consideration of the availability of medical services in Kosovo should be extended beyond the Appellant’s home region of Gjilan was an error of law in the light of UNMIK’s objection to returning people other than to their place of origin

That question was sought to be supported by reference to material emanating not only from UNMIK but also from the UNHCR that had come into existence after the date of the IAT’s determination, and which was alleged to cast doubt on the IAT’s conclusions as to the liberty of Mr Miftari to move outside the Gjilan region that had been assumed in paragraph 15 of its determination, quoted above.

However, on reading the papers it became apparent to the court that the case presented an earlier and much more substantial difficulty. It is accepted, as for instance recorded in the extract set out in paragraph 1 above, that the IAT only has jurisdiction to consider points of law. If no point of law was properly before the IAT, then it had no jurisdiction to entertain the appeal of the Secretary of State. Since the issue is one of jurisdiction it cannot be waived by the parties, either by agreement or by accident. It was properly agreed on behalf of the Secretary of State by Miss Laing (who had not previously had the conduct of the case) that, if the IAT had no jurisdiction to entertain the appeal to it, then an appeal to this court in respect of whatever determination that the IAT made must succeed: however little that point had so far been ventilated in the proceedings in this court.

We accordingly invited, and received in extensive form, submissions upon the jurisdiction issue.

The Secretary of State’s case was:

Perversity Miss Laing contended that for the Adjudicator to have concluded as he did on the basis of the material before him was perverse. That, if correct, would undoubtedly involve an error of law; but it is a strong charge to make and maintain, not least in a case where no one had made any such suggestion until the day before the appeal opened in this court. In paragraph 27 of his judgment in CA v Secretary of State [2004] EWCA Civ 1165 Laws LJ pointed out that perversity means what it says. What it says, in most dictionaries, is that a person is perverse if he wilfully or determinedly ignores or refuses to follow sense or guidance relevant to his decision. I would find it difficult to convict the Adjudicator of that fault. As the passage from his determination that is extracted at paragraph 3 above demonstrates, he certainly saw himself as applying the jurisprudence of articles 3 and 8.

A more promising line of attack for the Secretary of State is that the Adjudicator’s conclusions demonstrate that, although he considered himself to be applying the relevant jurisprudence, he could not have properly understood that jurisprudence.

Articles 3 and 8. We were reminded of the very stringent conditions that have to be met before deportation on grounds of asylum policy will be found to be in breach of these articles. For article 3, N v Secretary of State [2004] 1 WLR 1182 required humanitarian considerations so pressing that they could not in reason be resisted by the domestic authorities. For article 8, the House of Lords in R(Razgar) v Secretary of State [2004]2 AC 368 indicated in paragraph 20 of the speech of Lord Bingham of Cornhill that article 8 would be engaged only in a small minority of exceptional cases, the nature of that minority being identified in paragraph 59 of the speech of Baroness Hale of Richmond when she said:

“only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control”

Mr Miftari’s case is far from trivial and excites considerable sympathy, both in his circumstances in this country and in any of the various competing hypotheses as to the conditions awaiting him in Kosovo. Miss Laing however argued that his case came nowhere near to the prospect of death within a matter of months that was held insufficient to halt the deportation in N; or the threat of suicide that persuaded only a bare majority of the House of Lords in Razgar to discharge the Secretary of State’s certificate. It is fair to the Adjudicator to record that both of those authorities were decided after the date of his determination. However, they did no more than set out the then existing jurisprudence in cogent and accessible form. I agree with Miss Laing that if the Adjudicator had had that jurisprudence fully in mind he could not have reached the conclusion that he did. He made a reference to the need for the case to be “exceptional”, but plainly did not appreciate how very exceptional cases have to be in order to attract either article 3 or article 8. That amounted to an error of law, which was apparent on the face of the determination.

Construction Miss Laing submitted that the only basis for what was said to be the Adjudicator’s assumption that Mr Miftari would be returned to Gjilan was an UNMIK note of 7 July 2003. I deal with that assumption in paragraph 17 below. Accepting for the moment that that was indeed the Adjudicator’s view, Miss Laing argued that the Adjudicator could only have reached it by misconstruing the note; which on its true construction referred only to UNMIK policy with regard to displaced members of minority communities, and not therefore to ethnic Albanians such as Mr Miftari. A mistake in construing a document was an error of law.

I cannot accept that argument in the terms in which it was put. Where a document seeks to achieve a change in the legal relations between parties (for instance a deed or conveyance, or a simple contract), then if a judge misconstrues it he will, necessarily, reach a conclusion as to those relations that is incorrect as a matter of law. But where a document is relied on simply as evidence of a state of fact, as was the 7 July 2003 note, a misunderstanding by the judge will be on the same level as a misunderstanding of any other evidence: it will cause an error on his part as to fact, but not as to law. Appreciating this difficulty, Miss Laing resourcefully reformulated the point to meet the particular situation of this case by saying that the only evidence that the Adjudicator had as to where Mr Miftari would be returned was the 7 July 2003 note. If, as she contended, the note did not demonstrate the point, the Adjudicator had reached his conclusion on the basis of no evidence at all: which way of proceeding did entail an error of law.

I am minded to think that Miss Laing is correct in reading the note as she does. The Adjudicator therefore committed the error of law identified in her alternative argument if he indeed did hold that Mr Miftari would be returned only to Gjilan. I therefore go on to that issue, which engages the error of law identified by the IAT.

Health provision in Kosovo It will have been noted from paragraphs 15 and 16 of the IAT’s determination, quoted above, that the error of law that was considered by the IAT to give it jurisdiction to review the facts of the case as at the date of the hearing before them was the failure of the Adjudicator to give consideration to return to Kosovo generally. I am far from satisfied that the Adjudicator did indeed make that error. It is quite right that his concluding paragraph, extracted in paragraph 3 above, was immediately preceded by an account of the lack of psychiatric services in Gjilan. However, earlier in the determination, under a general heading “Conclusions and Findings,” the Adjudicator had set out the position as to psychiatric services in Kosovo, not as a separate point, but as part of the report of the expert consultant psychiatrists on Mr Miftari’s state of health, and the likely effect on it of a return to Kosovo at large: which was the eventuality that the doctors plainly had in mind. The Adjudicator specifically recorded that he accepted the doctors’ reports and conclusions. Accordingly, and although the determination of the Adjudicator could well have been clearer on the point, I cannot accept that he did confine his analysis of Mr Miftari’s position on return to the medical facilities available to him in Gjilan.

That has the consequence that the error of law in the shape of reaching a conclusion on the basis of no evidence that is discussed in paragraph 15 above did not in fact arise, because the Adjudicator did not reach, or at least can not be clearly shown to have reached, the conclusion that is criticised. It also has the consequence that the error on the basis of which the IAT claimed jurisdiction, as set out at the end of paragraph 15 of its determination, was not in fact made.

However, and with further reference to that alleged error, I am at a loss to see how, if the error had been made as set out by the IAT, it would have amounted to an error of law. The argument is that the Adjudicator wrongly assumed that Mr Miftari would be returned to Gjilan and be obliged to stay there, so that he disabled himself from considering the general facilities in Kosovo that would be available to Mr Miftari. That is simply an error as to what in fact would happen to Mr Miftari if he was deported. The legal rule or principle said to be infringed by the Adjudicator’s finding was never articulated, and remains totally obscure.

In the event, therefore, the only error of law discernible in the Adjudicator’s determination is that set out in paragraph 13 above, that he misconstrued the jurisprudence of article 3 and article 8.

It will be convenient first to consider the second of Miss Laing’s arguments, that even if no point of law was raised by the grounds of appeal to the IAT, the IAT nonetheless had jurisdiction because an error of law had indeed been made by the Adjudicator: because if that argument is correct we do not need to concern ourselves with the meaning or construction of the grounds.

I am however unable to accept that argument, which is incorrect both on principle and on authority. Although the point has not, so far as I am aware, been specifically considered in any of the cases that have addressed the new IAT regime, this court has been clear that identification of a point of law is a necessary preliminary to the IAT having jurisdiction to entertain an appeal. That was plainly said in Mlauzi by Latham LJ at paragraph 26 and by Brooke LJ at paragraph 40. It was also clearly assumed by the Master of the Rolls when delivering the judgment of this court in B v Secretary of State [2005] EWCA Civ 61, a case to which I shall have to return.

So far as principle is concerned, three points arise. First, the grounds are the basis, and the only basis, on which permission to appeal is granted or refused. The Vice-President who considers that application must determine jurisdiction on the basis of the grounds; subject, if he does discern a point that the parties have not taken, to his being able to invite an amendment of the grounds. But all that must take place within the boundary of the grounds as finally formulated. Second, as the Master of the Rolls said in paragraph 18 of the judgment of the court in B:

“the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal…with the recent limitation of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction”

That means that the IAT can only consider what is legitimately found in the actual or amended grounds. It does not have jurisdiction to consider anything that is not there found. Third, whilst a court will not ordinarily be required, in the absence of the point being raised, to consider whether it has jurisdiction to take a particular case, that is not so of the IAT. It has to consider 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.

I conclude, therefore, that the IAT only had jurisdiction to consider the appeal to them if a point of law could be found within the formulated grounds.

The text is set out in paragraph 4 above. I have no hesitation in saying that it reveals no allegation of error of law, and in particular does not assert the one error as to the reach of articles 3 and 8 that the Adjudicator did clearly make: see paragraphs 12-13 above. Miss Laing found herself in considerable difficulty in contending otherwise. The point does not admit of much elaboration, but the following further observations may be made

First, the only one of the errors on the part of the Adjudicator that the Secretary of State now relies on that is even arguably asserted in the grounds is that identified by the IAT in its paragraph 15, as discussed in paragraphs 17-19 above. That complaint can be extracted from the wording of ground 2. However, for the reasons already set out that error did not involve any point of law. Further, even if that error had been one of law, it would not have given the IAT jurisdiction to consider the wider error as to misunderstanding of articles 3 and 8, because those issues were never raised in the grounds and therefore were not on the IAT’s “agenda”: to use the expression of the Master of the Rolls quoted in paragraph 23 above. Second, while ground 3 is extremely difficult to construe, on one view it asserts that jurisprudence has determined that inability to access health care because of financial constraints cannot found a case under article 3. That might be some sort of assertion of a point of law were the issue relevant; but since there is no trace in the Adjudicator’s determination of any reliance on the point (as the IAT itself indeed recorded in paragraph 17 of its determination), it is difficult to see how it could found an appeal against his decision. Third, Miss Laing placed some reliance on the criticism of the Adjudicator in the second sentence of paragraph 17 of the IAT’s determination, as showing that the article 3 and 8 issue had in fact been addressed by them. If they had taken that step, it would not have been open to them, because the jurisdiction so to do had not been laid in the grounds. But the most obvious construction of what the IAT said is not that they were asserting misunderstanding of the jurisprudence, but that they were simply disagreeing with the Adjudicator’s assessment of the facts to which he applied that jurisprudence: which, as Maurice Kay LJ pointed out in the course of argument, was in line with the thrust of the Secretary of State’s submissions reported in paragraph 9 of the IAT’s determination.

I conclude therefore that no error of law is identified in the grounds put to the IAT; that accordingly the IAT had no jurisdiction to entertain the appeal to it; and that therefore, for the reason indicated in paragraph 7 above, the appeal to this court must succeed.

I have noted above that the Secretary of State submitted that, if all else failed, this court should recognise, as I do, that an error of law was in fact committed by the Adjudicator, and put that error right by not interfering with the determination of the IAT. I am afraid that that argument, attractive though it is in general terms, does not respect the limited powers of this court. We are seised of an appeal from the IAT, not of an appeal from the Adjudicator. If it is the case, as it is, that the IAT had no jurisdiction to consider the matter before it, then this court must say so and quash the IAT’s determination. It may be unfortunate that that leaves the determination of the Adjudicator in place, but that consideration cannot displace the principle of fidelity to the limited (statutory) jurisdiction not only of the IAT but also of this court.

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.

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.

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 Bangsv Connex South Eastern [2005] EWCA Civ 14.

Some difficulty has been perceived in this connexion 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*[2004] UKIAT00161, 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 [2004] 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.

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) [2004] 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.

I would allow the appeal. Since the grounds on which I do so bear no resemblance to those before the court, for the sake of good order the appellant must within fourteen days prepare and file amended grounds that comply with the decision of this court.

In paragraph 41 of his judgment in Mlauzi the Vice-President directed that in the light of the decision in that case the Crown should look anxiously at all other pending appeals that entail the point that has arisen in that case and in this, to determine whether it is really able to resist those appeals. I shall hope to be told on delivery of judgment that that has indeed been done.

I agree, subject to the two points made by Maurice Kay, LJ, in his judgment which I have read in draft and with which I agree. Perversity has long been equated with Wednesbury unreasonableness, with the consequence that there is an error of law if a decision is one to which no reasonable decision-maker, properly instructing himself on the law, could have come on the evidence before him. I too regard Robinson as remaining good law under the current immigration and asylum regime.

As no error of law was properly formulated in the grounds of appeal to the Immigration Appeal Tribunal and as, for the reasons given by Buxton LJ, what the Tribunal purported to characterise as an error of law was not one, I agree that the Tribunal did not have jurisdiction to consider the appeal of the Secretary of State and that, accordingly, the appeal to this court must succeed. This is an unfortunate state of affairs because I consider that the Secretary of State had a potentially unanswerable case before the Adjudicator and the Tribunal but it was not advanced in a way which allowed it to succeed.

I wish to add two observations. The first is that, whilst perversity is a demanding concept, I would not give it as strict a meaning as Buxton LJ does in paragraph 10. It embraces decisions which are irrational or unreasonable in the Wednesbury sense, even if there is no wilful or conscious departure from the rational. A finding of fact which is wholly unsupported by the evidence is capable of amounting to an error of law by this analysis.

The second is to reflect upon the continuing status of Regina v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929. It 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). I do not understand that approach to have been abrogated by the recent narrowing of the jurisdiction of the Tribunal or by the current Immigration and Asylum Appeals (Procedure) Rules. Rule 18(2) provides that, when determining an application for permission to appeal, the Tribunal

“is not required to consider any grounds of appeal other than those included in the application.”

As I understand it, the purpose of that provision was to put an end to the previous common practice of applying for permission to appeal in an inchoate way and adding grounds or further grounds piecemeal thereafter. The rationale of Robinson still holds good. Rule 18(2) does not prevent the Tribunal from considering unformulated, Robinson – obvious Convention points and it should continue to do so. Nothing in B or any of the recent authorities discounts Robinson. On the other hand, there is no authority of which I am aware that would enable the Secretary of State to invoke the same principle. At one point it seemed that Miss Laing was minded to submit that, because the Adjudicator was obviously wrong in his application of Articles 3 and 8, the jurisdiction of the Tribunal, and therefore this court, could arise on a Robinson basis. However, that is not the basis upon which the Tribunal proceeded and I do not consider that it can avail the Secretary of State in this case. Indeed, on the material to which we have been referred and without the benefit of fuller submissions, I am not convinced that Robinson can ever avail him. As originally propounded, it seems to be something of a one-way street. If that now arguably engages Article 6, it will have to be considered on a future occasion.