DK (Serbia) & Ors v Secretary of State for the Home Department

We are asked to consider these appeals together on the basis that each of them raises at least one of two issues as to which this court’s guidance is thought to be helpful. They are appeals from decisions of the Asylum and Immigration Tribunal (“the Tribunal”), which was created by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“The 2004 Act”). The effect of the 2004 Act was to replace the previous appellate structure consisting of two tiers, that is adjudicator and the Immigration Appeal Tribunal, with a one tier structure. As is now familiar, the consequence is that there is no appeal from the Tribunal, other than to the Court of Appeal; but there is provision for what is called a “reconsideration” of a decision by a Tribunal in the event of that decision arguably being infected by an error of law. This court has been asked to consider, firstly, what the scope of such a reconsideration should be, and secondly, what procedures should be adopted by the Tribunal in dealing with the reconsideration. I propose firstly, but shortly, to deal with the history of the statutory provisions, secondly to set those provisions out, together with the relevant rules and Practice Directions, and then deal with the two issues in general terms. Finally I shall apply these general conclusions to the particular appeals and applications before us.

I said that I would deal with this shortly, because it has been set out in extenso together with a valuable analysis of the jurisdiction of the Tribunal’s predecessor, the Immigration Appeal Tribunal, in the judgment of this court in R (Iran) –v-SSHD [2005] EWCA Civ 982. This judgment was concerned with the effects of the changes to the powers of the Immigration Appeal Tribunal as a result of the provisions of Section 101(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which provided that an appeal lay to the Immigration Appeal Tribunal solely on a point of law. The issue in the appeals considered in that case related to the question of the Immigration Appeal Tribunal’s power, having determined that there was an error of law, to make determinations of fact on the material before it, including any new material which it chose to admit, when deciding how to exercise its powers of disposal. The court concluded that the Immigration Appeal Tribunal, once it had identified an error of law, was entitled in particular in cases involving the Refugee Convention or rights under the European Convention on Human Rights, to consider the up to date position and, if necessary, to hear evidence in order to be able to decide on the appropriate disposal.

The court came to that conclusion, at least in part, on the basis of the decision of this court in Ravichandran [1996] Imm AAR 97 in which Simon Brown LJ held that in asylum cases the appellate structure created by the Act in force at the time was to be regarded as an extension of the decision making process. The result was described by Laws LJ in CA –v- SSHD[2004] EWCA (Civ) 1165 at paragraph 15 as follows:

There is no doubt that the 2002 Act, which first imposed the restriction on appeals to those in which a point of law arose, was passed in order to control the proliferation of appeals under the previous structure which sought to overturn adverse findings of fact by an adjudicator. The 2004 Act retains that essential filter for the new concept of reconsideration. And the clear objective, whilst ensuring that any decision is lawful, is to streamline the overall appellate process by removing one tier of decision making. Whether that objective has been achieved by the 2004 Act may be a moot point. But nonetheless we should, I think, approach the matter on the basis that Parliament cannot have intended to enlarge the scope for challenging initial determinations by the Tribunal, the equivalent of decisions by adjudicators, unless constrained to do so by clear language.

The 2004 Act effected the changes to which I have referred in paragraph 1 above by way of amendment to the 2002 Act. Section 103A of the 2002 Act, as amended, contains the provisions with which we are principally concerned. This provides:

The appropriate court may make an order under sub-section (1) –

An application under sub-section (1) shall be determined by reference only to –

A decision of the appropriate court on an application under sub-section (1) shall be final.

This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members.

In this section (the appropriate court) means –

In relation to an appeal decided in England or Wales, the High Court,

It was appreciated that the section, operated in accordance with its terms, would impose significant burdens on the High Court; as a result Schedule 2 to the 2004 Act contains provisions modifying the arrangements for applications for reconsideration of appeals. This empowers the Lord Chancellor to make an Order that the function of “the Court” should be exercised by a member of the Tribunal. The Lord Chancellor has made an Order the effect of which is that ever since the commencement of the 2004 Act, applications for reconsideration have been dealt with by Senior Immigration Judges of the Tribunal. Provision is made by paragraph 30 of the Schedule for applicants to renew their applications in writing to the High Court in the event of the senior Immigration Judge declining to order reconsideration.

The procedural rules are contained in the Asylum and Immigration Tribunal (Procedure) Rules (2005) (SI 2005/230) (“the rules”). These provide, in relation to reconsiderations, as follows:

The immigration judge may make an order for reconsideration only if he thinks that –

the Tribunal may have made an error in law; and

there is a real possibility that the Tribunal would decide the appeal differently on reconsideration.

Where the reconsideration is pursuant to an order under section 103A-

Subject to paragraph (2) the Tribunal must substitute a fresh decision to allow or dismiss the appeal.

In carrying out the reconsideration, the Tribunal –

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

must have regard to any directions given by the Immigration Judge or Court which ordered the reconsideration.

In this rule, a “material error of law” means an error of law which affected the Tribunal’s decision upon the appeal.

If a party wishes to ask the tribunal to consider evidence which was not submitted on any previous occasion when the appeal was considered, he must file with the Tribunal and serve on the other party written notice to that effect which must –

indicate the nature of the evidence: and

explain why it was not submitted on any previous occasion.

A notice under (2) must be filed and served as soon as practicable after the parties have been served with the order for reconsideration.

If the tribunal decides to admit additional evidence, it may give directions as to –

the manner in which: and

the time by which,

I shall return to the effect of the rules relating to reconsiderations when I have set out the practice directions. There is, however, one aspect of the Tribunal’s powers on reconsideration which is significant. By rule 14, an appellant “may vary his grounds of appeal only with permission of the Tribunal”. By rule 29 (and rule 27(2)(b)(i)) the Tribunal is given, on a reconsideration, all the procedural powers which can be exercised by the Tribunal when hearing the original appeal, except those contained in rule 14.

For completeness, I should say that the rules have been amended by the Asylum and Immigration Tribunal (Procedure)(Amendment) Rules 2006: but these make no changes which are relevant to the issues before us.

The transition from the unamended 2002 Act procedure to the procedure under the Act as amended by the 2004 Act is dealt with by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005. By article 4, any appeal or application to an adjudicator pending immediately before commencement is to continue as an appeal or application to the Tribunal; and any appeal to the Immigration Appeal Tribunal pending before commencement is to continue after commencement as an appeal to the Tribunal. The two procedures are assimilated by treating any application for permission to appeal to the Immigration Appeal Tribunal which is still pending as an application for reconsideration; and in any pending appeal the permission granted to appeal is treated as the grounds for reconsideration for the purposes of rule 27 of the rules. By rule 62(7) the reconsideration is limited to those grounds.

The statutory provisions are supplemented by practice directions originally given by the President of the Tribunal on the 4^th April 2005. These directions provided as follows in relation to the procedure on reconsideration:

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 that 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.

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.

Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made the 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.

By 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.

Rule 62(7) provides that in the case of an appeal described in para 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.

Subject to paragraph 14.12, on or after 14^th 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 issue to be considered at the hearing is whether the Adjudicator made a material error of law and, if so, whether on the basis of that adjudicators findings of fact, the appeal should be allowed or dismissed.

Where the Tribunal decides 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.

This was the practice direction which governed all the cases before us. However, some significant amendments have been made to that practice direction in the latest version, which was promulgated on the 8^th November 2006. These amendments directly affect some of the issues with which we have been concerned in argument. As this judgment is intended to be of help for the future, it is obviously necessary to set out the changes to the practice direction in order to be able to determine the extent to which it deals with any of the procedural problems with which we are concerned.

The latest direction (with the amendments and additions underlined or sidelined by me) provides:

(as before).

Where the Tribunal acting under paragraph 14.2 adjourns the hearing or 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 sent to the parties before the next reconsideration hearing.

The written reasons for finding that the original Tribunal made a material error of law shall be incorporated in full, in, and form part of, the determination of the Tribunal which completes the reconsideration of the appeal. Only in very exceptional circumstances can the decision contained in those written reasons be departed from or varied by the Tribunal which completes the re-consideration (see R(Wani) –v- SSHD and AIT [2005] EWHC 2815 Admin: JA (Practice on Reconsideration: (Wani applied Ecuador [2006] UK AIT 00013.)

The two substantive changes to the appeal structures under the 2002 Act and its predecessors, as I have already said, are that, first, there is now only one appellate body to which an appellant can appeal from a decision of the Secretary of State, and, second, that the appeal to a second level specialist tribunal from the appellate authority has been replaced by the right to seek “reconsideration” of the appellate authority’s decision if it has erred in law.

In one respect these changes replicate the previous position. Reconsideration is only ordered if there is an arguable error of law; and, on reconsideration, the first question that the Tribunal has to answer is whether or not there has been an error of law. It is only if it can discern such an error that it can proceed to “reconsider” the substance of the appeal. This is provided for in the rules to which I have referred, and is reflected in both practice directions.

That brings us to the nub of the problem raised by the first issue which we have to consider, namely the scope of the reconsideration once an error of law has been identified. This has been considered by the Tribunal itself in AH(Scope of Section 103 Reconsideration) Sudan [2006] UKAIT 00038. The head note to the determination reads as follows:

the reconsideration is of the appeal as a whole; therefore

it is not limited to the grounds of review or the grounds upon which reconsideration is ordered, but

it is limited to the grounds of appeal to the Tribunal (including any variation allowed under Rule 14 by the original decision maker)

no directions can limit the issues before the Tribunal on a reconsideration.

The way those issues are dealt with can be limited by directions. In particular

the tribunal has the earlier determination before it and can and properly should adopt any parts of it that are not vitiated by error of law.

In deciding whether there is a material error of law within the meaning of Rule 31(2) and (5) the Tribunal is similarly not restricted to matters raised in the grounds for review and any reply, but

At the first stage of the reconsideration it is unwilling to allow parties to raise matters that – despite having had an opportunity to do so – they have not raised previously or have been specifically rejected as arguable in the order for reconsideration or for direction, and

if it wishes to raise issues of its own motion it will need to ensure that the parties are given an adequate opportunity to deal with them.”

In this determination, the Tribunal, presided over by Mr Ockelton (Deputy President) considered in detail the provisions of the 2004 Act and of the rules. His conclusion was that there was no justification to be found in the 2004 Act or in the rules for restricting the scope of a reconsideration, either in relation to the question as to what, if any, error or errors of law could be identified in the original decision, or as to the scope of the reconsideration if any such error of law has been found. The only constraint implicit in the structure is that the reconsideration is restricted to the grounds of the original appeal, subject to the caveat that there might be an obvious point of convention law so far overlooked (see below). This, the Tribunal reasoned, was the necessary consequence of rule 14 being omitted from the powers of the Tribunal on reconsideration. It concluded that rule 31(4) did not empower the Tribunal to restrict the scope of a reconsideration to the grounds upon which the reconsideration had been ordered, but only to “have regard” to directions given by the immigration judge ordering the reconsideration, and limiting submissions or evidence to specified issues. Rule 31(3) required the Tribunal, having identified a material error of law, to “substitute a fresh decision”. It further concluded, bearing in mind in particular the decision of this court in R-v- SSHD ex p Robinson [1998] QB 929 that part of the recommendation might involve an issue which was obvious but had not formed part of the appeal. Its conclusions on this aspect of the case were as follows:

What we do find, in Rules 31(Procedure for Reconsideration) 32 (Evidence on Reconsideration), and 45 (Directions) are powers to restrict submissions or evidence (particularly new evidence) on reconsideration and to impose limits on judicial time spent on reconsideration: for example the matters to be the subject of examination or cross examination of witness, or the issues to be addressed at a hearing can be restricted. Decisions under Rules 31 and 32 and Directions under Rule 45 are matters of good housekeeping. If (despite some material error of law) an issue or matter has been properly and satisfactorily dealt with in the first decision, there is no reason why further time should be spent on it in the reconsideration. Although the tribunal reconsidering the appeal has all the grounds of appeal before it, it also has – indeed it has just been considering – the previous decision, then it must be at liberty to adopt those parts which it considers are sound. The principle perhaps goes further than that. Because the process is reconsideration, we would incline to the view that in general the Tribunal should always adopt those parts of a previous decision which are not shown to be unsound.

It follows from what we have just said that the reference in Rule 27(2) to directions given under Rule 45 is not itself a reference which enables the Tribunal, on making an order for reconsideration, to restrict the issues or grounds which are before the Tribunal. It may give directions about the way those issues are to be dealt with and Rule 31(4)(b) requires the Tribunal to have regard to – not to be bound by - those direction. Directions under Rule 45 cannot, however, altogether exclude any issue.”

This subject was touched on by this court in Mukarkar –v- SSHD C52005/2539. In that appeal the Court concluded that what the AIT had identified as errors of law justifying reconsideration in effect amounted to no more than disagreement with the factual judgments made by the adjudicator. In his concurring judgment, Sedley LJ said this:

The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something that was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by a limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination.”

At first sight this would appear to be in conflict with the conclusion of the Tribunal presided over by Mr Ockleton. It is, however, important to note that the views expressed by Sedley LJ had not, as far as I am aware, been the subject of any argument in the course of the hearing. This court had not been concerned with the jurisdictional question with which we are seized in the present cases. But it is clearly consistent with the spirit of last sentence of paragraph 26 of the Tribunal’s determination.

For my part, I consider that the reasoning of the Tribunal was essentially sound as to the jurisdictional ambit of a reconsideration. But that does not provide the complete answer to what should be the scope in practice of any particular reconsideration. The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.

In the first instance, in relation to the identification of any error or errors of law, that should normally be restricted to those grounds upon which the immigration judge ordered reconsideration, and any point which properly falls within the category of an obvious or manifest point of Convention jurisprudence, as described in Robinson (supra). Therefore parties should expect a direction either from the immigration judge ordering reconsideration or the Tribunal on reconsideration restricting argument to the points of law identified by the immigration judge when ordering the reconsideration. Nothing in either the 2004 Act or the rules, however, expressly precludes an applicant from raising points of law in respect of which he was not successful at the application stage itself. And there is no appellate machinery which would enable an applicant who is successful in obtaining an order for reconsideration to challenge the grounds upon which the immigration judge ordered such reconsideration. It must however be very much the exception, rather than the rule, that a Tribunal will permit other grounds to be argued. But clearly the Tribunal needs to be alert to the possibility of an error of law other than that identified by the immigration judge, otherwise its own decision may be unlawful.

As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing: Parliament chose not to use that concept, presumably for good reasons. And the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act, which is that the process of reconsideration is carried out by the same body as made the original decision. The right approach, in my view, to the directions which should be considered by the immigration judge ordering reconsideration or the Tribunal carrying out the reconsideration is to assume, notionally, that the reconsideration will be, or is being, carried out by the original decision maker.

It follows that if there is to be any challenge to the factual findings, or the judgments or conclusions reached on the facts which are unaffected by the errors of law that have been identified, that will only be other than in the most exceptional cases on the basis of new evidence or new material as to which the usual principles as to the reception of such evidence will apply, as envisaged in rule 32(2) of the Rules. It is to be noted that this rule imposes the obligation on the parties to identify the new material well before the reconsideration hearing. This requirement is now underlined in the new Practice Direction 14A. This sets out in some detail what is required in such a notice.

Ms Webber in the course of her submissions indicated that there were very real practical difficulties for appellants in being able to meet the requirements of rule 32(2) because of funding constraints. Her concern was that where a successful appellant was facing a reconsideration he or she would not know what the error of law ultimately identified, if any, would be. In those circumstances, an appellant should not be expected to prepare a rule 32(2) notice on a contingency, but should be entitled to await the determination of the first stage of the reconsideration. Leaving aside, for the moment, the question of whether or not reconsideration should always be conducted in two separate parts in such circumstances, which is the effect of her submissions, and to which I shall return later, the rule does not require the party in question to produce the evidence, but to identify the nature of the evidence. It seems to me that the Tribunal and the other party, are entitled to be given a clear indication before the reconsideration commences the nature of any new evidence or material upon which either party intends to rely which is capable of affecting the scope of the reconsideration. Such a notice, together with any reply under rule 30 (2) are necessary documents for ensuring that a reconsideration is carried out economically, effectively, and fairly.

Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them.

It became clear during argument that there are no seriously contentious issues of principle which arise in any of these cases. But there are clearly some practical problems which have arisen as a result of the way in which reconsiderations have, in practice, proceeded. As is apparent from the practice directions reconsideration is usually dealt with in two stages, albeit in many cases at one hearing which is clearly preferable. The first stage is the determination of whether or not there has been any error of law; and the second stage, if an error of law has been identified, is the reconsideration of the substance of the appeal. In a simple, straightforward case, identification of the error of law should enable the Tribunal to resolve the substance of the reconsideration without the need for any evidence or new material, and without the need for any adjournment. That is recognised by paragraph 14.1 of both practice directions. The determination in such a case will consist of the Tribunal’s conclusions as to the law, and its decision on the appeal.

The difficulties which have been brought to our attention arise from the more complex cases, and in particular cases where it is not necessarily easy to predict what error or errors of law may be found and therefore how they might impinge on the various findings in the original decision. Ms Webber appeared at one time to suggest that in all such cases the Tribunal should proceed to deal with the first stage only, and give its determination on that stage before turning to the second stage in the light of that determination. But I think at the end of the day she accepted that that was not a procedure which could be prescriptive in any particular category of case. And in many ways, it is difficult to give any answer to this part of the case without essentially applying it to a given set of facts. For the test must always be the simple one: has the reconsideration been conducted fairly? In some cases as I have already said, a single hearing should suffice; in other cases this might be wholly inappropriate because it fails to give either party a fair opportunity to deal with the substance of the reconsideration: the error or errors of law identified by the Tribunal, if any, may result in the need to consider evidence or material not available in the initial hearing.

However, there are some general comments which may be helpful. The first relates to the stage at which the immigration judge considers the application for reconsideration. By rule 27(2) (b) he can give directions for the reconsideration which can include directions as to how the reconsideration should be dealt with in the event that the Tribunal agrees with him as to the error of law which he had identified. As Sedley LJ indicated in Mukarkar, this provides an early opportunity for the structure of the reconsideration to be put in place. Clearly, since the Tribunal only has to “have regard" to any such directions it may not provide the final shape for the reconsideration. This will clearly have to be determined by the Tribunal itself in the light of the material before it at the initial reconsideration hearing, and in particular, any reply under 31(2) or notice under rule 32(2). But that should not inhibit the immigration judge from giving directions if it is possible for him to do so.

At the initial hearing the Tribunal should have been provided with any reply from the party other than the one on whose application the order for reconsideration was made, as well as any notices under rule 32 (2). Between them, together with the notice of application and then order for reconsideration and directions (if any), the issues to be determined at the initial hearing should be clearly identifiable. On the assumption that there has not been a previous directions hearing, which could conceivably be appropriate in a particularly complex case, the procedure for the reconsideration should sensibly form the first part of the hearing. Both parties can then make submissions as to whether they consider that the reconsideration can be disposed of at the initial hearing or whether it will be either necessary or desirable for the initial hearing to be restricted to the identification of any error or errors of law, with the second stage being adjourned until that had been determined. At the same time the Tribunal can determine finally what, if any, limitations should be imposed upon submissions or evidence pursuant to rule 31(4).

Whatever decision the Tribunal makes as to the procedure to be followed on reconsideration, the parties will have had their opportunity to make submissions. It seems to me, however, that the practice direction quite rightly starts from the assumption that the reconsideration should be dealt with at one hearing unless good reason is shown to the contrary. And the requirements for notice under rule 32 (2) and the reply under rule 31 (2) play a critical part in enabling the Tribunal to come to a sensible decision as to the procedure to be adopted. If a party has not filed a rule 32 (2) notice, the Tribunal is entitled to assume that there is no further evidence or material it wishes to put before the Tribunal for the purposes of the reconsideration. And if he has not filed a reply, the Tribunal is entitled to assume that the party other than the one on whose application the reconsideration was ordered does not wish to rely on any arguments or material other than those upon which the original decision was based.

If the Tribunal considers that it is necessary to determine the first stage separately, and then adjourn or transfer the second stage in accordance with the practice direction, it seems to me imperative that the written reasons for its finding should be sufficiently full and clear for the parties to be able to understand how the Tribunal’s conclusion will impact upon the scope of the second stage of the reconsideration (see Wani). It may be sensible for the Tribunal when giving its reasons, to consider what directions, if any, it considers appropriate under Rule 31(4) other than any directions that may have been given at the beginning of the initial hearing. The Tribunal should be prepared to give the parties an opportunity to make submissions in relation to any such directions either in writing or at the commencement of the second stage hearing.

I now turn to the individual appeals and applications.

This is an appeal from a decision of the Tribunal on a reconsideration, dated the 5^th April 2006. It was a reconsideration dealt with under the transitional provisions. The appellant’s appeal was first heard by an adjudicator, Ms Flynn and determined on the 23^rd July 2004. His appeal was dismissed both on asylum and human rights grounds. Permission to appeal was granted in November 2004 on the grounds that the adjudicator’s findings were thoroughly confused, and failed to address the issue of internal relocation. The first reconsideration hearing was on the 23^rd January 2006. The Tribunal concluded that there had indeed been an error of law. It concluded that the adjudicator’s findings were “plainly contradictory” and vitiated her findings of fact. As a result it directed that the appellants’ case should be considered afresh so that findings on all issues, including credibility and internal relocation could be made. Having heard the evidence, the Tribunal at the second stage hearing concluded that the appellant’s entire account was “completely unreliable”. It went on to find that even if it had believed the appellant, nonetheless there was nothing to prevent the appellant from relocating.

The appellant is a Nigerian whose claim to the asylum protection of this country was based on his ethnicity. He was an accountant and owned a water transport business. In February 1998 one of his boats was seized by members of his mother’s tribe and used in an attack against villages belonging to a rival tribe, the Ijaw. He was arrested and tortured by the police on suspicion of involvement in the attack, but released. In April 1998 his house was set on fire and his father was left paralysed. In July 1998 his brother was killed. Both attacks were carried out by the Ijaw. The police took no action. In September 1998 he left Nigeria for the Lebanon where he and his wife spent three years and then to the Netherlands where they stayed for one year. He and his wife then attempted to get to Ireland but his wife was stopped by the authorities in the United Kingdom. The appellant then claimed asylum.

The Respondent concluded that the appellant had no real reason to fear further retaliation from the Ijaw in revenge . He could relocate elsewhere in Nigeria. And the fact that he had spent a year in the Netherlands before coming to this country and claiming asylum cast doubt on the credibility of his claim to be in genuine need of international protection.

At his appeal before the adjudicator, the appellant stated that he had sought to escape from the Ijaw, whom he feared were still looking for him, eventually by going into hiding in Garki. That was an area where there was unrest between Christians and Muslims. He is a Christian. It was in those circumstances he felt that he had to leave Nigeria. He was convinced that if he returned, he would be targeted by the Ijaws wherever he went. As far as his failure to claim asylum in the Netherlands was concerned, he understood that to claim asylum in the Netherlands he would have to pretend that he was not a Nigerian, which he was not prepared to do.

The adjudicator said this about the appellant’s account:

The respondent contended that the appellant’s failure to claim asylum in the Netherlands undermined his claim. I bear in mind the judgment of Simon Brown LJ in R –v- Uxbridge Magistrates (Ex parte Adimi) CO/1167/99 that there is some element of choice as to where asylum may be claimed and “any merely short term stopover” en-route to such intended sanctuary cannot forfeit the protection of the Article. Simon Brown LJ quoted from the UNHCR’s Handbook which “also covers a person who transits an intermediate country for a short period of time without having applied for or received, asylum there. No strict time limit can be applied to the concept “coming directly” and each case must be judged on its merits.

It was in the light of those paragraphs in the adjudicator’s decision that the IAT first gave leave, describing the findings as “confused”. The Tribunal at the initial hearing, agreed that there was an error of law which it described in these terms:

At the second stage reconsideration, the Tribunal concluded, as I have already said, that the appellant’s “entire account is completely unreliable and is fabricated.” It did so in part because of the amount of time that the appellant had spent in the Lebanon and the Netherlands without claiming asylum. Further it concluded that even if it had believed the appellant, it did not consider that he could bring himself within the Geneva Convention. The Tribunal then set out the fact that there had been a cease fire in operation in the Niger delta and that to some extent the violence there had been brought under control. It did not accept that there was any real risk of the appellant being of interest to the Ijaw tribe if he returned to the Niger Delta some seven or eight years after the events had taken place. Further it concluded that there was “nothing to prevent the appellant from relocating to the south of the country.” It did so on the basis that the CIPU report stated that Nigerians could move freely within Nigeria and that it was possible for them to relocate to another part of the country to avoid persecution from non state agents. Further it did not consider that there was any reason why the appellant could not have remained in Garki, which is near Abuja, safely.

Mr Gill QC submits that this decision is flawed in a number of respects. First and of most relevance to the general issue which we are considering, the Tribunal reopened the issue of credibility when there was no justification for doing so. The true error of law was in misapplying Adimi, so as to produce the apparently contradictory finding that the appellant had no well founded fear of persecution. The Tribunal should have proceeded on the basis that the adjudicator had made a clear finding as to credibility which should not have been interfered with. Further, the Tribunal was not entitled on the material before it to conclude that internal relocation was an option for this appellant. Quite apart from the fact that his evidence, which was to be accepted on the basis of the adjudicator’s findings as to credibility, was to contrary effect, the Tribunal clearly made an error in suggesting that he could relocate to the south of Nigeria, which is precisely where all his troubles started, and did not identify how the cease fire was of relevance .

There is no doubt that the adjudicator’s reasoning was seriously defective. However there is equally no doubt that the adjudicator had made a clear finding in paragraph 30 that the appellant’s evidence was credible. It was because she found it credible that she concluded that he had a genuine subjective fear of persecution. The problem came when she turned to the question of whether or not, objectively speaking, he could properly be said to have a well founded fear of persecution. In determining that question she purported to use the case of Adimi, and the fact that he had failed to claim asylum in the Netherlands. It is difficult to see how that provided a proper explanation for the conclusion to which she came. Accordingly the Tribunal was right to give permission to appeal; and the Tribunal was right to conclude that there was a discernible error of law.

However it does not seem to me that the error of law in any way vitiated the findings of the adjudicator as to the appellant’s credibility. In those circumstances, there was no justification for directing that the whole of the appellant’s appeal should be reconsidered including the issues of credibility. To that extent the Tribunal’s decision is itself legally flawed. However, that did not preclude the Tribunal from considering whether or not the appellant’s genuine subjective fear of persecution was well founded on the facts. That only partly involved an assessment of the appellant’s credibility. It required an evaluation of the true risk to him, bearing in mind the account that he had given, in the light of the conditions in Nigeria at present, and in particular the length of time that had passed since the events which gave rise to his subjective fear. It was the conclusion of the adjudicator in that respect which was vitiated by the error of law. And the Tribunal was clearly entitled to consider internal relocation, as to which the adjudicator had made no findings.

As I have already indicated, the Tribunal considered both these aspects of the appellant’s appeal on the basis that his account was correct. It seems to me that there is some force in Mr Gill’s submission that the tribunal appears to have made a mistake in stating that the appellant could relocate to the south of the country. But taking its conclusions in the round, it seems to me that it was saying that in a country the size of Nigeria there really was no sensible argument for saying that he could not relocate to a place where he would not be at risk from the Ijaw. Further it was entitled to conclude that the passage of time meant that he was no longer at risk. That did not depend in any way upon the credibility of the appellant. It was an evaluation by an expert Tribunal of the likely risks were this appellant to be returned to Nigeria. In my judgment those findings were findings to which the Tribunal was entitled to come and with which this court should not interfere.

I would dismiss this appeal

This is an appeal from the decision of the Tribunal dated 9^th March 2006 on a reconsideration, again under the transitional provisions from a determination by an adjudicator of the 28^th September 2004. The adjudicator had allowed the appellant’s appeal from the refusal of the respondent to accept her asylum claim, both on asylum grounds and on human rights grounds. The respondent was given permission to appeal. The Tribunal dealt with both stages of the reconsideration at the initial hearing. It recorded the appellant’s position as to the procedure to be adopted as follows:

The appellant is a citizen of Nigeria. She came to the United Kingdom in May 2004 and claimed asylum shortly thereafter. The basis of her claim was that she was a Christian and feared persecution by the Muslims. She had left Nigeria shortly after serious violence between Muslims and Christians had occurred in her area. On the 2^nd May 2004 a riot had broken out in which 600 people had died, most of them Muslims. On the 13^th May 2004 Muslims attacked Christians in Kano. Her parents had been killed. She had lost contact with her husband. She was pregnant. It was in those circumstances that she was befriended by someone who took her to Lagos and arranged for her travel to the United Kingdom. She could not readily go back to Nigeria because, for reasons due to her father’s marriage, she would be unlikely to be accepted by family or kin. She would therefore be a single mother, and accordingly at significant risk of persecution and ill treatment in Nigeria.

The adjudicator accepted her evidence. He was also satisfied that a woman without support and with a small child would be at significant risk of persecution and ill treatment in Nigeria. He concluded that there was evidence that insufficient protection was provided by the state authorities for woman in the appellant’s position. He concluded that as a vulnerable single women she formed a member of a social group which was, for that reason, at risk of persecution, and accordingly entitled to the protection of the Geneva Convention. For substantially the same reasons, he considered that she had shown that there was a real risk that she would be subjected to torture or inhuman or degrading punishment in Nigeria.

In the respondent’s grounds of appeal to the Immigration Appeal Tribunal, the respondent submitted that the material before the adjudicator could not justify the conclusion that the appellant formed part of a social group, that in any event all she described was discrimination and not persecution, and that the evidence came nowhere near establishing that the discrimination amounted to torture or inhuman or degrading treatment.

In dealing with the reconsideration, it is apparent as I have indicated above, that consideration was given to the question of whether or not the first and second stages of the reconsideration should be dealt with separately. There is some suggestion that the determination does not accurately record Mr Lewis’s stance. But what is clear is that the appellant had not served a rule 32(2) notice nor a reply indicating that in the event of the Tribunal concluding that there had been an error of law, it would wish to put before the Tribunal further evidence or material. In the absence of such a notice, or a reply, it seems to me that the Tribunal was entitled to determine for itself whether or not the material before it enabled it to deal with the reconsideration at one hearing.

The Tribunal clearly considered that all the material that was necessary to come to a conclusion was available to it. It concluded that, applying the decision of the House of Lords in Shah and Islam [1999] 2AC 629, the appellant could not establish that she belonged to a social group for the purposes of the Geneva Convention, and that there was no other basis on which she could claim the protection of the Convention. In those circumstances, it was not necessary to consider the issue of relocation, as to which the adjudicator had made no findings. The Tribunal further dismissed the appeal on human rights grounds without giving any express reasons.

We are only concerned in this judgment with the procedural complaint that the Tribunal should have dealt solely with the first stage of the reconsideration and adjourned the second stage for further evidence or material, in particular evidence and material as to the up to date position in Nigeria. It seems to me that the answer to this complaint is that, provided the material upon which the Tribunal came to its decision was sufficient to justify that decision, there was no procedural unfairness. We are not concerned, in these proceedings, with the substantive merits of the appeal. It will be for the Court dealing with those issues to determine whether the Tribunal was indeed justified in concluding that it had sufficient material upon which to come to a determination, and whether its determination can stand. In my view, for the reason I have given above, in the absence of any rule 32(2) notice or reply which could have justified the Tribunal ordering a two stage determination, the appellant cannot complain, on procedural grounds, that the Tribunal exercised its undoubted discretion as to how to proceed in a way which this court could properly categorise as perverse, or unfair.

This appeal is accordingly adjourned for a hearing on the merits.

In this appeal, the respondent accepts that the Tribunal, on reconsideration, misunderstood the facts, so that it made an error of law. The only question is whether, in allowing the appeal by consent, we should order a full reconsideration, that is a reconsideration of both stage 1, namely whether the adjudicator made an error of law, and if so, what error of law, and a second stage reconsideration of the substance of the applicant’s appeal or whether the appropriate order is to remit simply for a second stage reconsideration.

The appellant is a citizen of Serbia/Montenegro, from Kosovo. He came to this country and claimed asylum on the 30^th October 2001. The respondent refused to grant asylum and gave directions for his removal on the 6^th December 2001. That appeal was not heard until the 23^rd July 2004. The adjudicator concluded that his account was credible and that he had established that he had faced persecution from non-state agents, namely Albanian extremists in his home village. He further found that the occupying force, KFOR would not be able to provide a sufficiency of protection should he continue to reside in his home village. He went on to consider internal relocation, and concluded that it would be unreasonable or unduly harsh for him to relocate in Kosovo at that time.

The respondent applied for permission to and was granted leave to appeal on the grounds that the adjudicator had failed to take into account two country guidance cases, BS (IFA mixed ethnicity) Kosovo CG [2002] and BK (Blood Feuds Serbia and Montenegro) CG [2004] UKIAT 00156; the latter had been promulgated shortly before the hearing before the Adjudicator. Both these cases were relevant to the issue of relocations. The Tribunal, on reconsideration, held that the adjudicator had made an error of law and concluded that there was nothing that indicated that it would be unduly harsh for the appellant to relocate in Kosovo, and, accordingly, substituted a decision dismissing the appellant’s appeal.

In coming to the conclusion that it did, the Tribunal would appear to have misunderstood the facts of the precipitating event which resulted in the appellant leaving Kosovo. This involved an attack on the family home after which the Tribunal mistakenly concluded that the attackers had no interest in the appellant, whereas the evidence was to the contrary effect. The respondent accepts that this is sufficiently significant to justify the appeal to this Court being allowed.

As I have said, the only question is whether the matter should be returned to the Tribunal to reopen the reconsideration in its entirety, or merely for it to reconsider the substance of the appeal, on the basis that the original Tribunal had correctly identified the error of law. I have no doubt that the latter is the proper course even though one of the country guidance cases had been promulgated only shortly before the adjudicator’s original hearing; they were both nonetheless relevant matters which should have been put before the adjudicator. He is not to be blamed. The respondent was not represented. And the appellant’s legal representative did not draw his attention to them. Nonetheless, his failure to take them into account meant that his decision cannot stand. There was no reply, nor was there any notice under rule 32(2). In those circumstances, I can see no justification for interfering with the tribunal’s conclusion in relation to the first stage of the reconsideration. The matter should be remitted for a rehearing of the second stage, on the basis of the error of law identified by the Tribunal.

This is an application for permission to appeal in another case involving an appellant from Kosovo. He arrived in the United Kingdom illegally on the 4^th June 1999, aged 16 and claimed asylum on the same day. He was eventually put in touch with the Social Services, who placed him with a family. The respondent refused his application for asylum on the 16^th February 2001. He appealed; but his appeal was not heard until the 27^th July 2005. In the meantime, he had remained with the foster family with whom he had been placed. By the time of the hearing before the immigration judge, he had lived with them for almost six years. In two witness statements, he described how he felt that he had become part of that family; and this was confirmed in a witness statement by his foster-mother.

The immigration judge concluded that the account that he gave of the circumstances in which he left Kosovo was credible, but that the situation in Kosovo had changed so that he did not have a well founded fear of persecution for the purposes of his claim to asylum under the Geneva Convention. She concluded, however, that to remove him from this country would be a breach of his rights under Article 8 of the European Convention on Human Rights. She did so, in a rather confused judgment, on two bases. First she stated that although the appellant did not fall within the terms of a one off policy that those from Kosovo who had applied for asylum before the 2^nd October 2000 and had a dependent child should be permitted to remain, nonetheless the appellant could properly be regarded as falling within that policy. She therefore purported to direct the Secretary of State to treat him as eligible under this policy so that, as she put it “the appellant’s removal would not be in accordance with the law”. She further concluded that his removal would not be proportionate partly because of the fact that he was not given the benefit of the one off policy, and that his mental condition had justified special consideration, but also “the abject failure of the respondent to consider this appellant’s application within a reasonable time and the failure to explain the extraordinary delay”.

Not surprisingly, the respondent applied for a reconsideration, partly on the grounds that the immigration judge had purported to have exercised a power, that is to direct the respondent to treat the appellant as entitled to the benefit of a policy, which she did not have. He further submitted that, in any event, the material before the immigration judge could not satisfy a Tribunal properly directing itself that the case was truly exceptional so as to justify departure from the rules. Reconsideration was ordered on these grounds. The Tribunal, which dealt with both stages of the consideration at the initial hearing, concluded that the immigration judge had indeed erred in law. She had no power to make the directions that she purported to make. That had infected her decision on the balance to be struck under Article 8. Further, the delay in determining the appeal did not in itself justify the conclusion that the interference with his Article 8 rights was disproportionate. Further, neither his medical condition nor the interference with his private and family life revealed any circumstances which could properly be described as truly exceptional.

It is clear from the Tribunal’s determination, that the question whether or not the reconsideration should be fully dealt with at the initial hearing, or that the initial hearing should simply deal with the first stage and then adjourn for a second stage hearing in the event that an error of law had been identified, was raised and considered. The Tribunal records the fact that Mr Henderson (Counsel then instructed on behalf of the appellant) had invited the tribunal to adjourn for a second stage reconsideration, asserting that further evidence would be required including medical evidence, although that evidence had not been obtained before the initial hearing. Having concluded that the immigration judge’s decision had been infected by an error of law, as I have indicated above, the tribunal dealt with Mr Henderson’s submission as follows, in paragraph 50:

Ms Webber on behalf of the appellant before us submits, as I have already indicated in an earlier stage of this judgment, that it is unfair to expect the appellant, in such circumstances, to be ready with evidence at the time of the initial hearing because of the constraints on funding, which we fully accept. But the problem she faces is that there was no reply nor a notice under rule 32(2) before the Tribunal setting out what sort of material or evidence the appellant would seek to rely on in the event that an error of law had been identified. I repeat that the rules do not require the evidence to be available at the time of the initial hearing of the reconsideration. But they do require an appellant such as this appellant to have identified by way of reply, or notice under rule 32(2) what issue or issues are to be raised and what new material or new evidence would be relevant. In their absence, it will only be in exceptional circumstances that this Court could conclude that the exercise of the Tribunal’s discretion as to whether or not to adjourn for a second stage hearing could be held to be perverse. There is no material before us to suggest that it was perverse in the present case.

Accordingly I would refuse permission to appeal in relation to the procedural ground of appeal, and adjourn the balance of the application to be listed on notice to the respondent, with the appeal to follow if permission granted. This essentially relates to the Article 8 arguments arising in particular out of the delay in dealing with the appellants appeal. Counsel for the appellant will have to consider carefully the consequences for this application of the decision of this court in HB(Ethiopia) and Others –v- the Secretary of State for the Home Department. [2006] EWCA Civ 1713

The appellant is a citizen of Uganda who arrived in the United Kingdom on the 12^th October 1993 and was originally granted six months leave to enter as a visitor. A fortnight later she applied for asylum which was refused on the 24^th May 1995. Her appeal to the adjudicator was finally dismissed on the 30^th March 1998. The adjudicator however made a recommendation that, exceptionally, she should be permitted to remain. By letter dated the 18^th May 1998, the respondent made it clear that he was not prepared to accept the recommendation and the appellant had no basis to stay in the United Kingdom. The appeal with which we are concerned was against a decision of the respondent of the 19^th April 2005 to remove her as an illegal entrant, her claims to remain having been refused. The immigration judge concluded that her only claim to remain was on the basis that her removal would be contrary to Article 8 of the European Convention on Human Rights. Having reminded herself that in the light of this court’s decision in Huang the circumstances must be truly exceptional, she found that they were, on the basis firstly that the appellant was subjected to unreasonable delay on the part of the respondent, and that the interference with the private life that she had created over the years were disproportionate to the objective of maintaining a firm and fair immigration policy.

On the respondent’s application, a reconsideration was ordered on the grounds that the case could not be properly described as truly exceptional. The Tribunal, on reconsideration, concluded, in essence, that there were two bases on which the Immigration Judge had erred in law. First, it appeared that she had taken the view that the inexcusable delay related, at least in part, to the respondent’s failure to make it clear that the appellant could not remain in this country, whereas, in fact, the respondent had told her in no uncertain terms in May 1998 that he was not prepared to accept the adjudicator’s recommendation. Secondly, and perhaps more important, she had erred in concluding that the facts could properly be described as exceptional so as to permit a departure from the rules. The Tribunal went on to consider the substance of the reconsideration at the initial hearing and concluded that the facts could not be described as so exceptional as to permit her to claim that her removal would be disproportionate in Article 8(2) terms.

Whilst there is no doubt that in appeals in which Article 8 is invoked, the extent of the family or private life with which removal will interfere is of great importance, that does not mean that in every such case, it will be necessary to bring up to date evidence to the Tribunal, be it at the initial hearing, or at an adjourned hearing, as to the current position. In cases like the instant case, where it is apparent on its face that the appellant will have established a private, and maybe family life, it will only be necessary to adduce new material or evidence if there has been any significant change since the original hearing. The Tribunal on reconsideration, will inevitably take into account the fact that whatever private or family life has been established, will have continued since the original decision. There was nothing in the material before the Tribunal which could have justified the conclusion that an adjournment for consideration of the second stage would have assisted it in coming to a proper conclusion.

In those circumstances, I would refuse the application in so far as it relates to the procedural grounds, but adjourn the balance of the application to be heard on notice, with the appeal to follow on the same basis as in DK.

The appellant who is 67 claimed that she was born in Somalia, and left that country in September 2001 travelling to the United Kingdom via Ethiopia, arriving on the 15^th October 2001. She entered using false documentation, on the basis of which she was granted leave to remain. When she applied for further leave, that was refused. She appealed on the basis that she was entitled to asylum, and that her removal would be a breach of Articles 3 and 8 of the European Convention on Human Rights. The adjudicator having heard the evidence, concluded that she was not a credible witness and dismissed her claim under the Geneva Convention. Further, he rejected her claim under Article 3 of the European Convention on Human Rights. As far as the Article 8 claim is concerned, however, he accepted that the appellant had been living throughout her stay in this country with her daughter who had indefinite leave to remain in this country. The adjudicator concluded that she had established a family life here as a result and that the interference with that family life as a result of her removal would amount to a breach of Article 8.

The respondent applied for a reconsideration on the grounds that the adjudicator was not entitled on the facts to conclude that the interference would indeed be a breach of article 8. The tribunal dealt with both stages at the initial hearing. It concluded that the facts could not justify the conclusion that the appellant’s removal from the United Kingdom would be disproportionate, so as to amount to a breach of Article 8(2). It did so having considered with some care the evidence of the appellant before the adjudicator as to her life in this country, and the family remaining in Africa. It concluded, bearing in mind the fact that the appellant had deliberately set out for the United Kingdom with the intention of remaining in this country, and in the light of the fact that the adjudicator did not consider that her evidence was truthful as to conditions in Somalia, that her removal would not be a breach of Article 8(2). Her appeal was accordingly dismissed.

There is an unfortunate dispute as to what happened at this hearing. Mr Fouladuand who appeared for her, has stated clearly in a witness statement that he had asked for the reconsideration to be adjourned in the event of a finding that the adjudicator had made an error of law; and this submission was rejected by the Tribunal. The Tribunal, however, in paragraph 10 of its determination stated:

This is another case where there was nothing before the tribunal by way of reply or notice under rule 32(2) to suggest that there was anything to be produced by way of new material or evidence which could have assisted the appellant on the reconsideration. The fact that the request was made to permit oral evidence to be heard goes nowhere near meeting the requirements of rule 32(2) as to the content of that evidence. The only points made by Mr Fouladuand were by way of challenge to the credibility findings of the adjudicator. As the errors of law identified by the tribunal in no way infected the adjudicator’s credibility findings, there was no justification for the Tribunal reopening on the reconsideration, the adverse findings of fact made by the adjudicator. That being so, in the absence of any reply or rule 32(2) Notice identifying new material or evidence which could have assisted the Tribunal in relation to the aspect of the appeal which could properly be reconsidered, that is to say the aspects of the appellant’s case which were not infected by the adverse findings of fact, there seems to me to be no justification in concluding that the Tribunal should have adjourned the second stage of the reconsideration. In those circumstances, I can see no proper basis upon which permission to appeal should be granted in relation to the procedure adopted by the tribunal. The balance of the application for permission to appeal is adjourned, to be heard on notice, with appeal to follow, if permission is granted.