NM (Iraq) v Secretary of State for the Home Department

LORD JUSTICE LAWS: In this asylum case Mr Chamberlain for the Secretary of State seeks to put in a late respondent's notice. It should have been filed with the court on 4th January 2007. It was not in fact filed until 1st February. Short reasons are given in the body of the notice itself. First it is said that the question to which the respondent's notice goes would have to be considered (in part at least) during the Christmas vacation. Thereafter it was necessary to take the advice of counsel and the views of policy officials. Moreover counsel was over some part of the relevant period abroad acting on behalf of another government agency. Lastly it is said the appellant would not be prejudiced by admitting the notice, given that the hearing of the substantive case was not due until 28th February. Manifestly it has in fact come on two days before that, today being the 26th.

Mr Jaisri resists this application. To our considerable surprise he says that although his solicitors apparently received the respondent's notice on 4th February, he himself did not receive it until today. That of course is not to be laid at the door of the Secretary of State and we will see in a moment whether it is to have any consequences.

Our view of this is that while we consider that the Treasury Solicitor (who is not without resources) and his client the Home Office could well have filed this notice rather sooner than they did, it ought to be admitted. These cases are not on all fours with ordinary private law litigation. If the point raised by the respondent's notice is good, it means that an original decision by an adjudicator here was not vitiated by any error of law. That in turn would mean that no appeal rights thereafter arose from it. It is in the public interest that that position should be upheld, if it is the correct position.

Accordingly we propose to let in the late notice.

LORD JUSTICE LAWS: This is an appeal with permission granted by Neuberger LJ (as he then was) on 19th December 2006 against the decision of the Asylum and Immigration Tribunal ("the AIT") given on 4th September 2006, by which the AIT dismissed the appellant's appeal against the decision of the Secretary of State which in its turn had been made on 24th April 2004. By that decision the Secretary of State had refused asylum and set removal directions.

The procedural history of this matter and indeed of this appeal itself is somewhat complicated and in some respects unusual. Although in the end the case turns on a relatively narrow question, it is necessary to explain the background.

The appellant appealed against the Secretary of State's decision of April 2004, as of course was his right. That appeal was first heard by an adjudicator, Mr Appleyard, who dismissed it on 30th July 2004. I shall have to return to that decision.

Permission to appeal against Mr Appleyard's decision to the Immigration Appeal Tribunal ("the IAT") was granted by Mr Mackey, Vice-President of the IAT, on 23rd November 2004. It is useful to notice at this stage that Mr Mackey should only have granted such permission to appeal if he perceived that there was an arguable error of law in the adjudicator's determination.

After the grant of permission there ensued a delay before the appeal was listed. In the meantime the adjudicators and the IAT were replaced by the AIT under the Nationality, Immigration and Asylum Act 2002 (as amended). Accordingly when the appeal was at length listed on 30th March 2006, it was constituted as a reconsideration under transitional provisions made in a commencement order pursuant to the Act of 2002 (as amended). It came before a senior immigration judge and two immigration judges. On 30th March 2006 the AIT concluded:

So it was that the matter came to be heard before a designated immigration judge and an immigration judge at a second stage reconsideration on 29th August 2006, leading to the decision of 4th September 2006 now under appeal.

In order to understand how the issues in the case arise, it is necessary at this stage to say a little about the process of reconsideration under the 2002 Act (as amended). By section 103A an application for a reconsideration may be made only on grounds that the Tribunal originally dealing with the matter made an error of law. Paragraph 31(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requires the Tribunal carrying out such a reconsideration, first, to decide whether the original Tribunal made a material error of law. If they decide it did not they are obliged to order that the original determination (here that of the adjudicator) should stand. By force of the procedure rules and also practice directions issued by the President of the AIT (Hodge J), whose text I need not with respect set out, a practice has evolved whereby in cases where the AIT initially conclude that there was an error of law in the original determination, the reconsideration may proceed to a second stage. At that second stage, given the nature of the error of law which has been identified, any necessary findings of fact will be made and the appeal will be determined.

Following the judgment of Collins J in R (Wani) v Secretary of State for the Home Department [2005] EWHC 2815 (Admin) and the decision of the AIT in JA (Practice on Reconsideration - Wani Applied) Ecuador [2006] UKAIT 00013, the practice required to be followed in this two-stage procedure is that all matters relating to the existence of a material error of law are to be conclusively determined at the first stage — and that decision is to be incorporated into the second-stage determination. At the second stage it is not open to the parties (save in exceptional circumstances) to reargue issues going to the existence or otherwise of a material error of law. That is the territory of the first stage. The occasion for questioning a first-stage conclusion that there was such an error is on appeal to this court. Such an appeal lies under the statute with permission after the end of the AIT process. If the reasons given at the first stage are too exiguous to be sensibly incorporated into the second-stage determination, then the author or authors of the first-stage decision should be asked to expand them into a form in which they can properly appear in the final determination. For all this see generally paragraphs 18 to 21 of JA (Ecuador).

In this case the first stage determination was arrived at (as I have indicated) on 30th March 2006. The AIT's decision of that date is headed "Reasons for the decision that there is an error of law in the determination". However all the AIT said was this:

This was not very satisfactory. The reasoning barely supports the conclusion that there had been an error of law; and a decision that in the interests of justice there should be a second-stage reconsideration (while readily understandable) does not focus on the only circumstance that can justify such a second-stage reconsideration, namely a finding of an error of law. We understand that the representative of the Secretary of State appearing before the AIT on that occasion made no submissions. It seems to us that that is a misfortune, not least given that the appellant was in person.

The second-stage reconsideration (as I have said) was constituted by the decision of 4th September 2006 now under appeal. The Home Office presenting officer on that occasion raised the question whether there had been any material error of law in the adjudicator's original determination. The AIT decided (paragraph 17) to deal with this as a preliminary issue. They referred to Collins J's decision in Wani (paragraph 29). They considered there had been no proper argument at the first stage as to whether there had been an error of law, so that exceptionally that question could be revisited at the second stage (paragraphs 31 and 32). After considering various candidates, as it were, as possible errors of law they concluded (paragraph 50) that the adjudicator's original determination was not flawed by any such error and accordingly upheld his decision and dismissed the appeal.

The grounds of appeal to this court on which Neuberger LJ granted permission were that the AIT were wrong not to follow the procedure effectively laid down in Wani and JA (Ecuador) in the light of the procedure rules and practice direction. It is said that the reasons given at the first stage were indeed exiguous — and so they were — and the Tribunal should have been asked to expand them in accordance with what was said in JA (Ecuador). It is implicit in the grounds of appeal that the AIT at the second stage should in fact have been loyal to the first-stage decision, by which it was directed that there be a hearing on all issues de novo.

The Secretary of State has with our permission put in a late respondent's notice. There is also a skeleton argument. It is accepted on his behalf that at the first stage the AIT did find an error of law in the original determination, though despite the title of their decision I am bound to say for my part I think that is somewhat doubtful. It is accepted also that at the second stage the AIT should not have gone beyond the first-stage finding and reopened the question of error of law. Indeed it is accepted that the AIT should have been loyal to the first-stage direction for a de novo hearing. However it is submitted that in fact the adjudicator's original decision was not vitiated by any material error of law. The first-stage determination that there was such an error was therefore itself erroneous. That error can however be corrected, not by the second-stage reconsideration but by this court on appeal at the end of the process. Accordingly, albeit the point arises on the respondent's notice, that is what we should now do.

On this approach we would conclude — as in truth the AIT at the second stage did, although they ought not to have entertained the issue — that the adjudicator made no error of law and so the appeal against the Secretary of State's decision falls to be dismissed.

That narrative of the course of events that has taken place here shows in my judgment a sorry state of affairs. I have to say that it is not clear to me that Mr Mackey in granting permission to appeal to the IAT in the first place in truth concentrated on the critical question whether there was an error of law arguably to be perceived in the adjudicator's reasoning, nor did the AIT in conducting the first-stage reconsideration. It is of the greatest importance, if this somewhat complex statutory scheme is to be operated efficiently in the interests of all who are concerned with it, that the adjudicative bodies at the various points in the system should concentrate their minds on what it is in truth that they have to decide: here, whether there was an arguable or actual error of law in the adjudicator's decision.

I accept for my part — though I have had some misgivings about it — that the Secretary of State is in all the events that have happened right to concede that the second-stage AIT should not have revisited the error of law issue. There may be exceptional circumstances where other considerations apply. Wani and JA (Ecuador) recognise as much. But in general the two-stage process can only be conducted properly (that is without waste of resources and of time, and without internal conflicts within the AIT about the same case) if the first-stage decision as to error of law is respected at the second stage. If there has been a mistake in the process, it is to be picked up in this court.

In the result then the appeal turns on the respondent's notice: was there an error of law in the adjudicator's decision? It is time at last to look briefly at the facts.

The appellant is an Iraqi national from Kirkuk in what is now the Kurdish Autonomous Zone or Area. He was born on 1st January 1978. He arrived in the United Kingdom on 16th October 2002 and claimed asylum. He asserted that his father was a former Ba'ath party member and a member of the Iraq Intelligence Service in Kirkuk. He claimed that if returned to Iraq he would be persecuted because of his association with his father. His account of his circumstances is crisply and helpfully summarised in the appellant's skeleton argument prepared by counsel as follows:

The adjudicator considered the question whether the appellant's account was to be believed. The Secretary of State had rejected his credibility. In paragraph 19 the adjudicator said this:

Mr Chamberlain for the Secretary of State submits that the adjudicator had simply rejected all aspects of the appellant's account, and that being so it followed as night the day that the appellant had not proved his case. But it seems to me that there is a difficulty with the reasoning in this paragraph. It was explored with Mr Chamberlain in the course of argument. The adjudicator rejects the appellant's claim that he had been detained and subjected to ill-treatment. But the reason he gives for rejecting that account — the only reason apparent on the face of the determination at least — is that if his father had been a member of the Ba'ath party as claimed that would not have taken place. However he also rejects the assertion that the appellant's father was indeed a member of the Ba'ath party.

It seems to me that it is difficult to avoid the conclusion that in those circumstances there is a contradiction internal to the adjudicator's reasoning. He has rejected the very premise upon which he based his conclusion about the appellant's own account of matters. Of course I accept in general terms that there will often be cases in which an appellant gives an account which itself involves different and perhaps contradictory elements; and in the ordinary way an adjudicator, if he has good reason to do so, may be entitled to reject the whole account. But where (as here) one part of the appellant's account hangs on another and the adjudicator rejects the first on the footing that the second may be true, if he then proceeds also to reject the second the kind of contradiction to which I refer arises. It seems to me therefore that there is a defect of reasoning amounting to an error of law in paragraph 19 of the determination.

That is however not the end of the matter. I should set out paragraphs 20 and 21 of the adjudicator's determination:

The adjudicator held then that even if the appellant's account had been a true one, because of the well-known changes in the situation in Iraq it would in fact be safe to return him. It is submitted by Mr Jaisri on his behalf that this reasoning is also defective because it pays no or insufficient account to the very fact that, on the premise under consideration, the appellant's father was indeed a member of the Ba'ath party. He says that was not dealt with adequately and accordingly there is here also a want of sufficient reasoning in the adjudicator's conclusion.

I find it useful in dealing with that to notice what was said by the AIT on 4th September 2006, albeit that for reasons I have given earlier it should have been from their point of view forbidden territory:

It seems to me that the reasoning in paragraphs 20 and 21 is perfectly sustainable. The gloss put upon the adjudicator's treatment of the objective material by the AIT is justified. I see no error of law in this second part of the adjudicator's conclusions, set out at paragraphs 20 and 21.

For those reasons I would hold that the adjudicator's decision is not flawed by any material error of law, albeit that there is an error as I have explained in paragraph 19. In those circumstances, this appeal falls to be dismissed. There was no proper basis on which the adjudicator's decision could have been subject to a successful appeal.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE WILSON: I also agree.