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

Frequent statutory changes to legal structures and procedures necessitate transitional provisions. Sometimes the pace of change and the complexity of the provisions produce anomalies and possibly unintended consequences. Parliament turned its attention to the immigration and asylum adjudication system in 1999 and, for present purposes, more radically in 2002 and 2004. Until 2002, the system for many years had taken the form of a right to appeal against a decision of the Secretary of State to an adjudicator, with a further right of appeal with leave to the Immigration Appeal Tribunal (“IAT”). The jurisdiction of the IAT was not limited to points of law. An applicant who was refused leave could challenge the refusal by resort to judicial review. A party dissatisfied with a substantive decision of the IAT could appeal to the Court of Appeal. This was a cumbersome system and it resulted in protracted litigation with an obvious potential for delay and abuse. By the Nationality, Immigration and Asylum Act 2002, two significant amendments were introduced. Appeals from an adjudicator to the IAT were restricted to appeals on points of law (section 101(1)) and conventional judicial review of a refusal of leave to appeal to the IAT was replaced by statutory review of the leave decision (section 101(2)). Statutory review was confined to a decision on the papers by a judge of the Administrative Court. His jurisdiction is limited to errors of law and his decision is final (section 101(3)).

The reform of the system by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was far more radical. It abolished the two tier appellate structure of adjudicator and IAT and replaced it with a single tier, now called the Asylum and Immigration Tribunal (“AIT”). The AIT started and the IAT ceased to exist on 4 April 2005. In place of the two tier appeal, provision is now made for “reconsideration” within, but at different levels of, the single tier.

The three cases before the Court are not cases which fall to be dealt with by the AIT entirely under the 2004 Act. They are a category of transitional case. In short, they are cases in which an adjudicator had made a decision and the IAT had given leave to appeal before 5 April 2005, but the IAT had not heard the substantive appeal before it ceased to exist. For such cases, the following transitional provisions were enacted.

By section 48(3)(a) of the 2004 Act, the Lord Chancellor was empowered to bring the relevant provisions of the Act into force by way of commencement orders. In particular, section 48(4)(a) provided that a commencement order “may make transitional or incidental provision” and, by section 48(5), transitional provision included making provision for proceedings which

The relevant commencement order was the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No.5 and Transitional Provisions) Order 2005 (the Commencement Order). Article 4 of the Commencement Order provides:

Article 5(2) then provides:

The rule-making power under section 106(1) of the 2002 Act (as amended by the 2004 Act) confers upon the Lord Chancellor the power to make rules

Of central importance in the present cases is section 106(1A), which provides that, in making rules under subsection (1), the Lord Chancellor

In the exercise of this rule-making power, the Lord Chancellor promulgated the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Procedure Rules”). Transitional provisions are contained in Rule 62. The present cases are concerned with Rule 62(7) which provides:

The literal meaning of the words I have emphasised is plainly that the AIT has no power to permit an applicant to amend his grounds of appeal, either by renewing grounds for which permission was expressly refused by the IAT or by the addition of new grounds. What the appellants in these three appeals are seeking to do is to circumvent the literal meaning of Rule 62(7). In each case, the AIT considered itself bound to hold the appellant to the grounds upon which the IAT had granted permission to appeal.

After the IAT granted permission in these cases and until 4 April 2005, it would have been possible for each appellant to apply to vary his grounds of appeal pursuant to Rule 20 of the Immigration and Asylum (Procedure) Rules 2003. The IAT could permit variations. It could even do so in relation to grounds for which it had earlier refused permission if it was satisfied that “because of special circumstances, it would be unjust not to allow the variation”. Alternatively, in relation to grounds for which permission had been refused at the time when permission for others had been granted, (or when permission had been refused on all grounds), a disappointed applicant could seek statutory review, provided he could show an error of law. None of the present appellants took that course. Anecdotally, it was common but not invariable for disappointed applicants to rely on Rule 20 rather than statutory review.

In a nutshell the problem is this: if a transitional applicant to the AIT has an arguable and potentially meritorious point of law for which the IAT, when granting permission on other grounds, either refused or was not asked to grant permission, is he now prevented by Rule 62(7) from raising or resurrecting it before the AIT? This is an important issue of principle. I shall approach it on the assumption that the point is arguable and potentially meritorious. It goes without saying that statutory review, although a possibility at the time in relation to rejected, but not wholly new, grounds of appeal, had ceased to be an available remedy in these cases long before 4 April 2005 because of the tight time limits within which it operates.

The authoritative decision of the AIT on Rule 62(7) is the starred decision JM (Rule 62(7); (human rights unarguable) Liberia [2006] UKAIT 00009. Mr C M G Ockleton, Vice-President, said (at paras 26-27):

Before this Court, the appellants are seeking to go much further than the AIT went in JM. They contend for either a construction of Rule 62(7) that is broader than the admittedly literal meaning of the language or the condemnation of the Rule on the basis that it is ultra vires and/or irrational. The position of the Secretary of State and of the Lord Chancellor (on behalf of both of whom Mr Eadie has instructions) is that the AIT analysed the problem correctly in JM.

Mr Husain, whose submissions were adopted by Mr Cooray and Miss Cronin, has set himself a difficult task. He contends for a construction which is the antithesis of the literal meaning of Rule 62(7). Moreover, he accepts that, to arrive at his proffered construction, it would be necessary to read words into the Rule so that it takes the form:

He also accepts that section 3 of the Human Rights Act 1998 is to no avail, not least because immigration appeals fall outside the catchment of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR): see Maaouia v France (2001) 33 EHHR 1007. However, he points to the concession by Mr Eadie that JM correctly established three reservations or exceptions, notwithstanding the literal meaning of the wording, and proceeds to submit that this is one of those rare cases in which it is necessary to read words into a statutory provision because otherwise the purpose of the statute would be seriously undermined. That there can be such rare cases is illustrated by, for example, R (Quintavalle) v Human Fertilisation and Embryology Authority [2005] UKHL 28. In identifying the purpose of the statute (and therefore of the Rules) Mr Husain points to the overriding objective set out in the Procedure Rules:

The words “fairly, quickly and efficiently” are derived from the rule-making power in section 106(1A) of the 2002 Act (as amended): see paragraph 8, above. Reliance is further placed on the “one-stop” policy which underlies this legislation, and its obvious corollary, the restriction of resort to judicial review. In R (Kariharan) v SSHD [2003] QB 933, Auld LJ said (at para 10):

He was there referring to the policy of the Immigration and Asylum Act 1999, but the same policy has continued and intensified under the 2002 and 2004 Acts. Thus, submits Mr Husain, given that policy and the overriding objective, the purpose of the statutory scheme would be seriously undermined if Rule 62(7) were construed in such a way that denied an applicant the opportunity to renew or amend his grounds in a single set of proceedings. He would be denied the fairness that demands that he be enabled to amend to include an arguable and potentially meritorious point and speed and efficiency would be compromised if his only remedy was statutory review or possibly some previously unconsidered form of judicial review.

I am unable to accept this approach to construction. It simply cannot be said that the purpose of the statutory scheme is seriously undermined by a literal construction of the unambiguous language of Rule 62(7). I shall return to the question whether there is a serious procedural gap productive of an unacceptable fairness deficit when I consider the ultra vires and irrationality challenges to Rule 62(7). At this stage I confine myself to the observation that if Parliament resolves to replace a two-tier appeal structure with a single tier and it makes transitional provision for pending cases, all in the interest of streamlining procedures, it is not bound to carry forward into the new system every procedural protection which transitional applicants had under the previous system. If there is a protection gap, it may raise questions of the kind that I shall next consider. However, when, as here, the transitional provision in issue is in clear and unambiguous language, no true question of construction arises. As a matter of construction, to borrow the words of the AIT, Rule 62(7) “means what it says”. The fact that it admitted of three reservations or exceptions in JM does not mean that it can be turned on its head so that thesis becomes antithesis. The points which Mr Husain seeks to make are more relevant to the next and more difficult issue.

The submissions on behalf of the Appellants relating to the legal validity, as opposed to the construction, of Rule 62(7) range far and wide. It seems to me that they can be reduced to this: (1) The Rule is beyond the powers upon which the Lord Chancellor relied when laying it before Parliament because the enabling provision, section 106(1A) of the 2002 Act, obliged him “to aim to ensure … that the rules are designed to ensure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible”. It is said that Rule 62(7) operates in an inherently unfair way. (2) Alternatively, if Rule 62(7) is intra vires, in the sense of being enabled by section 106(1A), it is nevertheless susceptible to a Wednesbury challenge on the ground that no reasonable Lord Chancellor or indeed Parliament could promulgate a Rule which has the effect of preventing an appellant to the AIT from raising by way of amendment or renewal an arguable and potentially meritorious point, provided that it can be considered without injustice to the other side – especially if it relates to an arguable breach of a right protected by the Refugee Convention or the ECHR.

Before considering these submissions, it is necessary to refer to the three exceptions or reservations to Rule 62(7) referred to by the AIT in JM and accepted by Mr Eadie. It seems to me that the first two do not advance the present submissions any more than they could on the issue of construction. The AIT is bound to consider a ground of appeal sanctioned by an order made by a High Court Judge on statutory review because that is the whole purpose of statutory review under the 2002 and 2004 Acts and it is implicit in their operation. Rule 62(7) was not and could not have been designed to affect that. Similarly with the second exception or reservation illustrated by SS (Somalia). The AIT is a statutory tribunal with jurisdiction defined and limited by statute. Consequently, Rule 62(7) was not and could not have been designed to prevent the Tribunal from ensuring that it remains within its jurisdiction. In truth, these are not “exceptions” at all. They are normative controls flowing from the structure of the primary legislation. The third of the matters referred to in JM, namely Robinson obvious points, arises in a different way. Robinson, which was decided in 1997, was a judicial artefact, the purpose of which was to ensure, within a narrow compass, that obvious points of Refugee Convention law did not go unconsidered, with the risk that this country might find itself to have breached its international obligations. It has survived the subsequent legislation: see Miftari v SSHD [2005] EWCA Civ 481. Its intended catchment was points not pleaded or advanced on behalf of the appellant rather than ones sought to be raised by or on his behalf by amendment or renewal. It will be necessary to consider it further in the course of this discussion.

Mr Husain’s starting point is the statement of Laws J in R v Secretary of State for Social Security, ex parte Sutherland [1996] EWHC Admin 208, at para 19:

No one questions that. It is therefore necessary to look first at those terms. Section 106(1A) of the 2002 Act provides that, in making the relevant rules, the Lord Chancellor

There are two significant features of that formulation. The first is that it is expressed not in terms of an unqualified obligation to ensure but as an obligation to “aim to ensure” that the rules are “designed to ensure”. The second is that the ultimate criteria – “fairly, quickly and efficiently as possible” – do not all pull in the same direction. The demands of fairness have in a sense to be traded against the other criteria and vice versa. In my judgment, this formulation makes it very difficult to say that Rule 62(7) is outwith the enabling vires. Accordingly, I prefer to approach the matter on a Wednesbury basis.

Put simply, the question here is whether a rule which prevents the Tribunal from considering the amendment or renewal of a ground of appeal which seeks to raise an arguable and potentially meritorious point of law, in the context of the Refugee Convention and/or the ECHR, satisfies the Wednesbury test of rationality. The case for the appellants is that Rule 62(7) creates an unacceptable protection gap. On behalf of the Secretary of State, Mr Eadie accepts that there is a gap. His submission is that, when one considers the position in the round, it is acceptable and not irrational.

In developing his submission, Mr Eadie makes three points which seem to me to be incontrovertible. (1) The test to be applied is the simple Wednesbury test, rather than the so-called “super-Wednesbury” test explained in R v Ministry of Defence, ex parte Smith [1996] QB 517. The authority for that proposition in this context is R (Javed) v SSHD [2002] QB 129, [2001] EWCA Civ 789, at paragraph 54. A restriction on the amendment or renewal of grounds of appeal is not, without more, a deprivation of a fundamental right. (2) In devising structures and procedures, the Lord Chancellor should be accorded a reasonable margin of discretionary judgment. (3) It is necessary for us to stand back and consider the structure and procedure as a whole. When we do so, we see (i) that we are concerned with a restriction which operates only at a preserved second-tier appeal; (ii) that an appellant who was refused leave to any extent by the IAT had access to the Administrative Court by way of statutory review; (iii) that a transitional appellant has had ample opportunity to formulate proper grounds of appeal; and (iv) that Rule 62(7) is concerned not with access to justice but with a limited procedural restriction in relation to a second-tier appeal during a period of time when, for good reasons, the appellate system is being changed from a two-tier to a single tier structure. In this respect the position is not as stark as that in R v SSHD, ex parte Saleem [2001] 1 WLR 443 which, upon proper analysis, is a case of denial of the fundamental right of access to justice.

These are important observations but, in my judgment, they do not face up to the real problem with Rule 62(7). For one reason or another, the position of an appellant who had been granted permission to appeal to the IAT before 4 April 2005 may not have had his appeal optimally formulated at that date. He may have been refused permission on some grounds on a legally erroneous basis. There may be subsequent developments which are susceptible to presentation as legal errors on the part of the original adjudicator as explained in R (Iran) v SSHD [2005] EWCA Civ 982. There may be more mature considerations on the part of the appellant’s legal advisers. As a result of any one or more of these or other considerations, the appellant may have the material to establish that the decision of the adjudicator that the Secretary of State has not caused this country to be in breach of its international obligations under the Refugee Convention on the ECHR was legally erroneous. Nevertheless, Rule 62(7) stands in his way.

In my judgment, it is no answer to say that such an appellant may have had, but missed, an opportunity to apply for statutory review. That could only have arisen in relation to grounds wrongly rejected by the IAT and, in any event, it would not have been unreasonable for an appellant’s advisers to have taken what we are told was the common but not universal course of resorting to the old Rule 20 before the IAT rather than statutory review. Nor is it any answer to say that obvious points will be picked up by the AIT on a Robinson basis. Robinson is concerned with the judicial grasping of obvious points which have not been advanced by or on behalf of the appellant, not with points which his advisers have advanced or wish to advance. At one point during the hearing we considered whether the way to mitigate Rule 62(7) might be to expand Robinson to cover rejected or new grounds but, after further reflection, no one is now inviting that course. In truth, it would be unworkable. An appellant who wished to enlarge his grounds would need to give notice to the respondent and to the AIT of his intention to make the application. At the hearing there would be two pleaded cases – the one originally permitted by the IAT and a second one, apparently not countenanced by Rule 62(7) but containing perhaps the most significant point now sought to be advanced.

I have come to the conclusion that Rule 62(7) is fundamentally flawed. The significance of Robinson is in its demonstration of the role of the courts and the Tribunal in ensuring that the United Kingdom does not fall foul of the Refugee Convention, even where an obvious point of Convention law has been missed by the practitioners. It surely applies on the same basis to the ECHR, where the argument is even stronger because, by section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with an ECHR right and courts and the Tribunal are “public authorities” for this purpose: section 6(3)(a). There is then a further logical stage in the argument. If it is incumbent upon the AIT to consider and decide Robinson obvious points which have not been advanced by the appellant notwithstanding Rule 62(7), given the rationale of Robinson there is no rational basis for excluding and deciding points of equal force which the appellant draws to the attention of the Tribunal, even though they were not embraced in the grounds of appeal sanctioned by the IAT. For these reasons, I consider that, when he promulgated Rule 62(7), the Lord Chancellor fell into legal error and the Rule cannot survive the Wednesbury challenge. It is axiomatic that the fact that the Rule as laid before Parliament survived the negative resolution procedure does not put it beyond the reach of judicial review: see O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200, 1210-1211, per Auld LJ and Javed (above).

Having come to this conclusion, I would wish to hear counsel on the form of relief. Before that, however, it is necessary to say something about these three appeals. Until now I have deliberately considered the point of principle without reference to the facts of the three cases.

It is not necessary to dwell on the detail of this case. Mr Eadie accepts that, in the event of the point of principle being decided in favour of the appellants, MA’s case must be remitted to the AIT to consider whether the grounds of appeal should be amended and, if so, for redetermination of the case by reference to the amended grounds.

Mr Eadie does not make the same concession in relation to this case. He points to a passage in the determination of the AIT in which it is made clear that, even if it had not been constrained by Rule 62(7), the Tribunal would not have permitted the amendment that was sought. However, I do not find its reasoning persuasive. It seems to be predicated at least in part on the assumption that one of the points (risk of ill-treatment as a homosexual from his father as well as from others) sought to be raised was a wholly new point. In reality, it was not. The Adjudicator had referred to the appellant’s evidence on the point but had not made a specific finding about it. There is also an issue as to whether another aspect of the appellant’s case – whether he would be able to lead an openly homosexual life in Kosovo – which was properly before the AIT was properly considered by it. It is not clear to me that it was. This issue is the subject of recent jurisprudence, some of it being referred to in the grounds of appeal and the skeleton argument which were before the AIT. It is deserving of more consideration than it received in the decision under appeal. In my judgment the appropriate course is for the appeal to be redetermined by the AIT, differently constituted, on which occasion consideration can be given not only to the original grounds of appeal but also to the question of whether any amendment should be permitted.

It is a striking feature of this case that, if the AIT had not considered itself to be constrained by the refusal by the IAT of permission to appeal on some grounds and by Rule 62(7), it would have wished to broaden its remit. It expressed serious misgivings about aspects of the determination of the adjudicator which it felt powerless to consider. Moreover, Mr Cooray submits, correctly in my view, that there is a potential interplay between ground 1 (upon which the IAT granted permission) and ground 7 (upon which permission was refused). It seems to me that the appropriate course in this case is for the case to be remitted to the AIT for redetermination, including consideration of whether the appellant should be permitted to reopen his original ground 7.

It follows that I would allow all three appeals. In so doing, I make it clear that this decision is not intended to give the green light to large numbers of applications to amend in transitional cases. It is not expected that the AIT will readily permit amendments save where it is persuaded that the proposed amendment relates to a point of law which is clearly arguable and potentially meritorious in the context of a possible breach of international obligations under the Refugee Convention or the ECHR. It does not follow from the existence of the power which I have identified that a party has an unfettered right either to reargue the case which he made when applying for permission to appeal to the IAT or to develop new grounds. It is unlikely that any refusal of an amendment could be successfully challenged in this Court save for perversity on Wednesbury grounds.

If my Lords agree, I would direct that counsel for the appellants make submissions in writing within seven days, addressing the form of relief in relation to the point of principle and the precise wording of the order for disposal in each case. Counsel for the Secretary of State should respond in writing within seven days thereafter. Nothing in this judgment should be read as indicating any view as to the eventual outcome of any of these cases when they are redetermined in the AIT. Moreover, its concern is exclusively with the position in transitional cases and not with the regime with new, post 4 April 2005 cases, in respect of which there may be a need for further consideration.

I agree.

I also agree.