F (Mongolia) v Secretary of State for the Home Department

In form, this is an appeal to this court in respect of an application for permission to apply for judicial review that was rejected on the papers as manifestly hopeless by Collins J, and on further application in court was dismissed by consent by Mr Nicholas Blake QC sitting as a Deputy Judge of the High Court. In substance, however, the appellants wish to paint on a broader canvas. In a note to this court the appellants’ advocates say:

Purpose. This hearing is so that the Court can express its views, for the benefit of the HL, as to whether R(G) v IAT [2004] EWCA Civ 1731 [2005] 1 WLR 1445 is wrongly decided and should not be followed. The hearing was directed on 5.3.07, the Court having declined both parties’ invitation to dismiss the appeal so as to facilitate a direct appeal to the HL.

That was not how the constitution of this court that gave permission to appeal saw the matter. That constitution indicated that there should be pursued the issue of whether R(G) v IAT [hereafter G] continued to bind this court, in the light of changes in the underlying legislation and of subsequent decisions of the House of Lords. That is plainly a quite different question from whether G was wrongly decided.

This judgment therefore only addresses the issue of whether this court is still bound by G. The correctness of the decision in G is not relevant to that enquiry, and in any event is not a matter for this court. That issue is therefore not addressed in the judgment. But so that there should be no misunderstanding, it should be stressed that we fully attended to the elaborate arguments addressed to us both on paper and orally seeking to establish that the decision in G was in any event incorrect. For my part I was entirely unpersuaded by those arguments, but for the reasons indicated it would not be appropriate to set out here the grounds on which I have reached that conclusion.

The two bases on which it was said that G did not bind us were, first, that the decision as to article 14 discrimination was inconsistent with two subsequent decisions of the House of Lords, A v SSHD [2005] 2 AC 68; and Clift v SSHD [2007] 2 WLR 24. Second, all that G decidedwas that to apply for judicial review was an abuse of process in the context of the 2002 Act. Because our case is governed by the present statutory review procedure, under the (inserted) section 103A of the 2002 Act, which was said to be significantly different from that considered in G, that case did not bind when applied to the new regime.

I think it fair to say that in oral argument counsel saw the article 14 point as by far the more fruitful field, and devoted most of that argument to that point. He was right not to put stress on the second complaint summarised in §3 above. For that complaint to be valid, it would have to be shown that the differences between the original 2002 Act scheme and the scheme inserted by section 103A were sufficiently great as to render inapplicable or irrelevant not merely the decision in G, but also the principles that this court applied in reaching that decision. That, as I shall demonstrate, cannot be done. But the point was not abandoned, and therefore must be addressed. I accordingly proceed as follows. First, as background to the rest of the argument, I describe the differences between the 2002 and 2004 schemes. Second, I set out the basis of the decision in G in respect of the availability of judicial review, and describe how that applies to the present case. Third, I deal with the separate argument that G is not binding on us in respect of the article 14 claim. I conclude that G is binding in all respects, and therefore that the appeal from Collins J must be dismissed.

Before the enactment of the 2002 Act the appellate structure in respect of decisions of the Secretary of State adverse to an applicant was (1) an appeal to an adjudicator on law and fact; then (2) an appeal to the IAT on law and fact, with the permission of the IAT; then (3) an appeal on a point of law to the Court of Appeal (and hence, potentially, to the House of Lords). The element in that system that prevented applicants from proceeding further without alternative recourse was the need for the permission of the IAT to bring an appeal before that tribunal, and accordingly the practice grew up of seeking to disturb permission decisions that were adverse to applicants by means of applications for Judicial Review of the IAT’s refusal of permission: see the account given by this court in §§ 50-52 of R(Sivasubramanian) v Wandsworth County Court [2003] 1 WLR 475.

It was in that context that section 101 of the 2002 Act added to the statutory regime by providing a statutory mechanism for complaining about permission decisions of the IAT. First (not directly relevant to the present point, and as I understand it not complained of in these proceedings) section 101(1) limited appeals from adjudicators to the IAT, which were still only available with the permission of the IAT, to appeals on points of law. Section 101 (2) and (3) then provided that a party aggrieved by a decision of the IAT might apply for a statutory review of that decision. That review was to be conducted by a single judge of the High Court: that is, a judge of the same status as, and drawn from the same judicial corps as, the judge who would hear a Judicial Review application. The review was by reference only to written submissions and the decision was stated to be final, thus excluding appeal to this court.

In G the claimants’ application for permission to appeal to the IAT was rejected, and that decision was upheld on statutory review by the High Court judge. The claimants then applied for Judicial Review of that same decision of the IAT, relying on the same grounds as they had advanced in the statutory review application to the High Court judge.

The new structure and procedures, introduced by amendments to the 2002 Act, and in particular by section 103A thereof, are comprehensively described in the judgment of this court in DK(Serbia) v SSHD [2006] EWCA Civ 1747, to which the interested reader can be confidently recommended. I refer here only the features relevant to the issue in this case.

The new regime replaced the previous appellate structure, of an Adjudicator and the IAT, with what is in form a single body, the Asylum and Immigration Tribunal [AIT]. However, the practice is for appeals against a decision of the Secretary of State to be considered by a single judge of the AIT. If he rejects that appeal, the applicant may apply to the AIT for it to reconsider its decision. That application is considered in the first instance by a Senior Immigration Judge [SIJ], a person of the status of the members of the former IAT. If he considers that there may have been an error of law, he will order reconsideration by a panel of the AIT, from which an appeal on a point of law can be taken to the Court of Appeal. If the SIJ does not make an order for reconsideration the claimant can use the existing procedure of an application for statutory reconsideration to a High Court Judge. That application continues to be considered on written submissions, and the decision of the High Court Judge continues to be final.

In the case of F the single judge of the AIT held that returning him to Mongolia would not expose him to a real risk of persecution for a Convention reason. An application for reconsideration was refused by a SIJ, on the grounds that it failed to demonstrate that the single judge might have erred in law. F then applied for statutory reconsideration. That application was rejected by Sir Michael Harrison, sitting as a Judge of the High Court, who like the SIJ held that there had been no arguable error of law. In the present Judicial Review application F challenges the decisions of the Secretary of State initially refusing asylum; of the single judge of the AIT rejecting the appeal against the decision of the Secretary of State; and of the SIJ refusing to order reconsideration; all on the same grounds as had been advanced before and had failed before Sir Michael Harrison.

A preliminary point should be noted. Although the present Judicial Review proceedings challenge all three asylum decisions that have been taken in F’s case, the real purpose of these proceedings is to complain about the unavailability of Judicial Review in respect of the refusal of permission to appeal to the second-tier appellate body: in G the IAT; in our case the panel of the AIT that undertakes a reconsideration if ordered by the SIJ. And that limitation of the case must, with respect, be correct. The first two decisions that are formally complained of in the Judicial Review proceedings, the original order of the Secretary of State and the decision of the single judge of the AIT, are already subject to further judicial consideration, and therefore none of the arguments that are advanced to assert the availability of Judicial Review of a refusal of a reconsideration decision by the SIJ could in any event apply to them.

So far as the decision to refuse permission was concerned, this court stated the nub of its conclusion in §23 of G:

It seems to us that the key finding made by [the trial judge] was that, in the light of the existing two-tier tribunal system, statutory review was a satisfactory judicial process for the question that it was designed to address. That is the critical issue. Does the procedure as a whole carry a satisfactory assurance that the rights of those entitled to asylum will be upheld?

Mr Fordham said that that was the wrong question, for reasons that he developed when criticising the decision in G, and with which I am unable to agree. But we are in any event bound by the court’s decision that that was the right question. We can only not apply that test in our case, or not apply it with the outcome reached in G, if there is something so different in the 2004 regime as compared to the 2002 regime as to make the principle inapplicable.

The appellant pointed to a number of differences between the regime that was under consideration in G and that which now obtains, which were said to deprive the decision in G of authority under the present regime. However, as set out in the application for Judicial Review, and relied on before us, the case rested heavily on the more stringent time-limits applied in statutory review, and what was said to be a new and restrictive approach to public funding. It will be plain that neither of those factors can reduce the relevance of previous authority to the legal questions at issue in a later case. And on the substance of the matter I would respectfully repeat what was said by Collins J in refusing permission in this case:

While there is now a one tier system, because of the transitional provisions in Schedule2, it is still in dealing with permission to appeal effectively a two tier system. An application for reconsideration (the equivalent of leave to appeal to the IAT) has first to be heard by a Senior Immigration Judge, who would before 2005 have been a member of the IAT. Only if he refuses is the application able to be renewed to a High Court judge.

Mr Fordham said that the new system was not truly a two-tier system, despite the view of a judge of leading experience in this field that it is, pointing to certain differences said to exist between the two systems in the weight given to the grounds on which permission is granted. But those differences, if indeed relevant at all to our concern about the refusal of permission, are on any view of only marginal significance. They do not change the new system to an extent that prevents the application to it of the principle formulated in G.

G directly addressed the matter complained of in the present case, that a refusal by the SIJ to order reconsideration can only be reviewed by a High Court Judge, whose decision on the review is final, and Judicial Review of the refusal to order consideration is not available. That feature of the system has not changed since G was decided.

Here Mr Fordham was able to put his case somewhat differently, because he claimed that the decision in G was inconsistent with subsequent authority in the House of Lords, in the shape of A and of Clift. That this court is bound not to follow a decision of its own that, though not expressly overruled, cannot stand with a subsequent decision of the House of Lords, is the third rule in Young v Bristol Aeroplane Co [1944] 1 KB 718 at p 725. That rule and its application was further considered at daunting length in §§ 42-63 of the judgments in this court in Johnson v Havering LBC [2007] 2 WLR 1097. This court concluded that there had to be shown the enunciation by the House of Lords of a clear principle that was plainly inconsistent with the approach to similar subject-matter of the Court of Appeal authority under attack. Nothing in A or Clift came anywhere near to meeting that test.

G held that article 14 does not apply, or at least does not apply per se, in the case of asylum seekers because they are not in an analogous position to others wishing to challenge the decisions of administrative tribunals in the ordinary courts: the latter group being the comparator asserted in G. To provide the statutory review process rather than Judicial Review was therefore not discriminatory in the relevant sense. That approach is objected to because it is said that the institution of statutory review does, contrary to the view of this court in G, discriminate against asylum seekers; they are by definition not British nationals; and therefore the discrimination is on grounds of nationality.

But A and Clift said nothing about, and of their nature could not have said anything about, the issue in G of whether the statutory review procedure relevantly discriminates against asylum seekers. All that is, or could be, relied on from A and Clift are the holdings that it was not permissible to discriminate on grounds of nationality amongst the members of two limited and discrete groups sharing the same relevant characteristics: in A, suspected terrorists; and in Clift, long-term prisoners seeking parole. For present purposes, the decisions say no more than that if differential treatment is discriminatory, it is a breach of article 14 for that discrimination to be on grounds of nationality. But that was already very well known, and this court in G said nothing to suggest otherwise. Its view was rather that because there was no discrimination the issue of discrimination on grounds of nationality did not arise. G is therefore not undermined by either A or Clift.

For the reasons set out this court is bound by G, and therefore the present appeal, and the application for permission to move for Judicial Review, must fail in limine, as Collins J rightly held. I would therefore dismiss the appeal.

I agree.

I also agree.