AM (Cameroon), R (on the application of) v Asylum & Immigration Tribunal & Anor

This is the judgment of the court.

By judgments dated 21^st February 2007 we granted AM permission to apply for judicial review of certain interlocutory decisions and indeed the final decision of Immigration Judge Sacks relating to her appeal under section 82 of the National Immigration and Asylum Act 2002 (the Act). We thought it arguable that certain interlocutory decisions which had resulted in AM not being able to put in the evidence of two witnesses, and which had refused her an adjournment on the grounds of ill health so that she could not give evidence herself, had prevented a fair hearing. We thought it was arguable that his final decision, to dismiss her appeal on the ground that her version of events was not credible, had been reached in breach of natural justice.

One problem with which we had to wrestle and with which we still must wrestle is that, in addition to applying for permission to move for judicial review, AM had made an application under section 103A and Bean J had made a decision under that section dismissing the application, a decision which under that section was “final”. We thought it arguable that AM should be entitled to be placed back in the position before that decision of Bean J was made because of an error by the court in failing to list the Judicial Review proceedings for an oral hearing prior to any decision under section 103A.We adjourned the substantive application to a further hearing before the same constitution. That hearing took place on 4^th December 2007.

The facts and circumstances are fully spelt out in the judgment of Hooper LJ ([2007] EWCA Civ 131) and the problems that the case raises and its context appear from all three judgments. Much of the relevant authority is cited in those judgments and we accordingly take those judgments as read.

At the substantive hearing two matters remained open for argument; first whether the court should entertain the complaints advanced where there existed the decision of Bean J under section 103A which, in substance, had rejected those complaints and whose decision under section 103A was by virtue of 103A (6) “final”. Second, if so, whether on the facts of the case judicial review should be granted, this question containing two elements – was judicial review appropriate where a form of judicial review on paper under section 103A existed, and if it was appropriate whether there had been a breach of natural justice in this case such that the decision or decisions of the immigration judge should be set aside.

As we made clear in our previous judgments this is a very troublesome case. It is troublesome because it was clearly Parliament’s intention that section 103A would introduce a speedy form of judicial review of appeals in immigration cases. Furthermore decisions of the court, including the Court of Appeal, have sought to give effect to that intention. The section provides for an application to have a decision reconsidered to be made on paper without an oral hearing to a High Court Judge; the opportunity to have that review is “only once in relation to an appeal” and the decision of the High Court judge is “final”. The Court of Appeal in R (G) v AIT, R (M v AIT) [2005] 1 WLR 1445 has held that the paper procedure “provides adequate and proportionate protection of the asylum seeker’s rights” and that accordingly it was proper for a court “to decline to entertain an application for judicial review of issues which have been or could have been the subject of statutory review.” The exception contemplated by that decision was that “Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review.” [See quotation in paragraph 106 of Hooper LJ’s judgment]. To contemplate that exception, covering more than the rarest of cases, would be contrary to Parliament’s intentions and the key question is whether this case falls within that exception.

It is important to add and emphasise that the courts have also been firm in resisting challenges to interlocutory decisions since, if the alleged error persists in the final determination, that decision can be challenged under section 103A and, if exceptions to that approach are common, again the delays which Parliament was intending to curtail will be reintroduced.

On the other hand, if circumstances reveal a denial of justice in the reaching of a decision, to allow that decision to stand is difficult to contemplate. Furthermore, if a mistake by the court may have led to a “final” decision being reached under section 103A, there must arise a question as to whether the claimant should be disadvantaged by such a ruling.

In considering this case on this occasion we plan to consider the matter in stages. Obviously the fact that there has been a section 103A decision and that decision is final is an important factor and if that decision is not to have effect as a final decision it has in some way to be set aside or declared of no effect. If it cannot be set aside or in some way ignored that must be the end of the matter. The first question thus has to be whether that decision can be set aside or said to have no effect.

The main argument of Mr Rabinder Singh QC for AM for being able to ignore the section 103A decision was originally on the following lines. By reference to such authorities as Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 he argued that a decision reached contrary to natural justice is a nullity. If the decision or decisions of the immigration judge were reached in breach of natural justice, those decisions were a nullity. Thus (he argued) since Bean J reached a decision under section 103A by reference to a decision that was a nullity, the decision of Bean J itself must be a nullity, or a decision which can simply be ignored once the underlying decision has been declared a nullity.

We are not persuaded that this line of argument is valid. We can understand the argument that a decision which would otherwise be final may itself be a nullity or not a decision to which the section applies, because that decision itself has been reached in breach of natural justice, but that is not the suggestion in this case. Indeed since Bean J’s decision was a judicial decision the concept of it being a “nullity” may not be apposite at all. That concept is applicable to decisions of administrative tribunals not to decisions of a High Court Judge (see in Re Racal Communications Ltd [1980] 3 WLR 181 and the speech of Lord Diplock at 188C ). If Bean J’s decision was itself reached in breach of natural justice, other processes for reopening the decision or holding the decision was not a decision within the section, might be available, but since breach of natural justice vis à vis Bean J is not alleged the allegation of breach of natural justice cannot itself provide a route for setting aside or being able to ignore his decision.

If Bean J’s decision is to be set aside or ignored it has to be done by a virtue of something which affects that decision itself or the way it was reached. There cannot be any doubt that under section 103A Bean J had the jurisdiction to examine the question whether the immigration judge “may have made an error of law” (section 103A(2)(a)). Undoubtedly that would include the question whether arguably there had been a breach of natural justice in relation to the process by which the immigration judge’s decision was reached. As Mr Chamberlain forcefully points out, and as indeed Waller LJ commented in his previous judgment, the very allegations made in the application for judicial review were allegations repeated in the section 103A paper application. If, therefore, Bean J has decided that the immigration judge has not made an error of law in a way which is finally binding, no fellow High Court Judge or Court of Appeal could interfere with it.

The question is whether there were circumstances affecting the way in which Bean J reached his decision which could lead to the court, i.e. a fellow High Court Judge (remembering we are dealing with an appeal from Stanley Burnton J), being entitled to set aside his decision or ignore his decision. One can see from our previous judgments that there were certain things which concerned us about the way the matter came before Bean J and indeed our judgments would indicate an instinctive feeling that this substantive application should be considered as at a time when there was no decision of Bean J. The question is whether there is a juridical basis for giving effect to our instincts.

The application for judicial review was issued before any decision was promulgated by the immigration judge. The claim form requested an order “staying the hearing and determination of the appeal until she had been given a reasonable opportunity to stabilize her medical condition and attend to give evidence”, and requested that “this matter to be considered urgently and in any event no later than 4 p.m. on Wednesday 24 August 2005”. At the stage when the claim form was issued, and prior to any final decision, the section 103A procedure was not open to AM, and thus the only means of seeking to stop the immigration judge dealing with the matter if he had unfairly refused the admission of evidence or an adjournment or was acting so unfairly as to disqualify him from sitting on the appeal, was by virtue of judicial review. A court considering that application would have to consider whether interlocutory decisions should be challenged if they were going to persist in the final decision, but certainly if the allegations went so far as to make it arguable that the immigration judge should not be sitting on the appeal at all, that would form a basis for arguing that judicial review of the interlocutory decisions should be permitted. As Rix LJ said in paragraph 114 of his judgment, whether because the claim was not filed until 25 August 2005 or because a box was inappropriately ticked we know not, the claim for a stay was not placed before a judge until 14 September by which time the immigration judge’s decision had been promulgated and a stay was refused by Hodge J on that basis.

But Hodge J noted even then, post-final decision, that this was a case in which the question might arise as to whether the appropriate way to challenge the decisions of the immigration judge was “by judicial review or by following the more obvious route of applying for reconsideration”.

The application was then considered on paper by Beatson J. He adjourned the matter into open court for an oral hearing with both sides present stating that the case was “materially different from the case of G & M” and that “the defendant’s summary grounds of resistance do not address the question why, notwithstanding this distinction, lodging an application for judicial review on 8 September constituted an abuse of process”. [We are not clear where he got the date 8 September from, but if he had said 25 August the position would be stronger still]. He thus prima facie was of the view that this case fell within the exception pointed up in G & M. He further stated “There is no application before me of the decision of the Senior Immigration Judge not to reconsider the tribunal decision. If there is one pending it would be appropriate for it to be considered at the same time as the application to move for judicial review”.

When (in the light of Beatson J’s remarks) an application under section 103A was lodged with the court, those representing AM enclosed the same, under cover of a letter which was marked for the attention of Beatson J and drew attention to Beatson J’s direction.

That direction was not complied with. Mr Chamberlain has argued before us that it was rightly not complied with. He submits in his skeleton as follows:-

We would respectfully disagree. Mr Chamberlain says that these paragraphs are a criticism of the decision of Beatson J and not of the failure in the court to abide by that decision. That is as may be, but it was certainly not for the court staff to take the view that Beatson J’s direction should not be adhered to. Furthermore we do not accept the criticism of Beatson J. If there are exceptions as indicated in G & M and, even if only arguably this case fell within the exceptions, it was not only sensible that the application for judicial review came on with any application under section 103A, but right that it should be dealt with before any section 103A decision was reached. The failure to comply with Beatson J’s direction was thus a serious error by the court for which AM and her advisers had no responsibility whatever.

If the direction of Beatson J had been complied with, there would have been an oral hearing of AM’s application for judicial review before there was any section 103A decision. That would have involved a judge considering whether the case was one where it was appropriate to give permission to move for judicial review, or whether the matter should be dealt with under the section 103A procedure.

The minimum justice seems to require is that AM should be entitled to have the clock stopped at a moment in time when there was no section 103A decision. But can that be achieved?

In our view it is possible to reach that result by the application of the principle which allows, in exceptional circumstances, a judgment, although final and perfected, to be withdrawn by the court that made it – a principle applied in Taylor v Lawrence [2003] QB 528 so far as the Court of Appeal is concerned. The same principle has been held to exist so far as the High Court is concerned but only in the situation in which the High Court is sitting as an appellate court - see Seray-Wurie v Hackney London Borough Council [2002] EWCA Civ 909. But in our view the reason why it has not so far been suggested that the principle applies to judgments of the High Court, other than when sitting at the appellant level, is because so far as High Court judgments are concerned, in the normal course there is the remedy of an appeal, and this principle is only necessary to prevent injustice where there is no other remedy.

It is right to mention that there is a CPR Rule, not, it is fair to say, referred to in argument before us, CPR 3.1 (7) which at first sight could be said to give a general power to any court to reopen its own judgments. It provides:-

CPR 3.1 is dealing with case management powers but CPR 3.1(7) is not apparently limited to such decisions. However it cannot, as has already been said in SCT Finance Ltd v Bolton [2002] EWCA Civ 56 at para 58, be construed as conferring a power on the court at any time “simply to reverse itself because it has changed its mind”. Patten J, as the note in the White Book reflects, has suggested limitations on the power conferred by the rule and his view has been endorsed by the Court of Appeal, again as the notes reflect. The note reads:-

We mention the above for completeness and do not suggest that CPR 3.1(7) does give some general power to reverse what would otherwise be a final decision under section 103A. If there is to be such a power it must be by reference to something akin to the Taylor v Lawrence jurisdiction.

It is in our view important to see how the Court of Appeal in Taylor v Lawrence reasoned that they had the power to reopen decisions of the Court of Appeal. Lord Woolf quoted a passage from the speech of Lord Diplock in Bremer Vulcan [1981] AC 909, 977 and then said “the final words of Lord Diplock “the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice” express the situation here under consideration exactly.” A court is there to administer justice and it must have an inherent power to see that it does not become the instrument of injustice. It was important in its reasoning that the party seeking to reopen the decision did not have a remedy elsewhere such as an appeal to the House of Lords. The reasoning in Serray-Wurie was to the same effect. It was concerned with situations where the High Court had made a decision on appeal and had then refused permission to appeal to the Court of Appeal so that there could be no appeal to the Court of Appeal from that decision. To prevent injustice in exceptional circumstances a Taylor v Lawrence jurisdiction was held to exist in the High Court.

In holding that the Court of Appeal had jurisdiction to reopen its own final orders “to avoid real injustice in exceptional circumstances” Lord Woolf in the judgment of the court relied on passages from the judgments Re J (a Minor) [2000] CA Transcript 230. Examples of where a court might set its own decision aside were “a factor which was outside the ambit of the decision itself. For instance, that the court had read the wrong papers in order to come to a decision . . . or as Lord Donaldson had put it “If, for example, a Lord Justice had pre-read two cases and, owing to mischance and perhaps the absence of counsel . . . it was never brought home to him that the case on which counsel was addressing him was not in fact the case to which he was applying his mind. We can see that, in those circumstances, it could be argued that there had not been a decision and if there was no decision, quite plainly s 54(6) does not apply.” [Section 54(6) now repealed prevented there being an appeal from a single Lord Justice refusing leave to appeal].

Returning to the circumstances under section 103A, if the court staff had made a mistake in placing papers relating to a section 103A application before a judge and if a decision were taken on the wrong papers, it should, we suggest, be obvious that the court must have power to set aside a decision which was otherwise final. That court would not be a Court of Appeal. It would be the court which made the decision which must have the power to set aside that decision.

The question is whether in this case of AM we are dealing with the type of mistake which brings into play the above jurisdiction. In considering that question it seems to us that it is not just the type of mistake that is material, but also the consequences of the mistake i.e. the degree of injustice that might be suffered if the mistake of the court is not rectified.

It seems to us that the type of mistake made by the court in this instance was of the kind that could give rise to very serious consequences and could thus give rise to the exercise of the Taylor v Lawrence jurisdiction. It is in considering the next stage that the extent of any injustice can be examined.

Before we leave this stage it is right to note that there were documents in the papers placed before Bean J including Beatson J’s direction and the letter from AM’s solicitors from which Bean J might have picked up the fact that Beatson J’s direction was not being adhered to, but it is unsurprising that his attention would not be focusing on that aspect, and the mistake of the court was in not listing the application for judicial review for an oral hearing before any decision was taken under section 103A.

As to whether it is right to exercise the jurisdiction that will depend on the consequences. One tests that, as it seems to us, by seeking to analyse what would have happened if the direction of Beatson J had been adhered to before there existed any decision under section 103A, and comparing that with AM’s present position

That takes us to the second stage of the process. If the court had done what it should have done and listed the application for judicial review with both parties present before the oral hearing, the Treasury Solicitor would have had to make up his mind in the light of Beatson J’s comments whether the defendants would take their stand on the basis that section 103A was the only appropriate route, without answering any of the allegations made with statements from the immigration judge and tribunal staff, or take that stand but answer the allegations. If he took the first course there would be no answer to the allegations. If he took the latter course the evidence would have been as it was before us.

Counsel for AM would then have sought to argue that this was a case where a full judicial review should take place and that it was unsuitable for the section 103A procedure. Counsel for the Treasury Solicitor would have argued that section 103A was the appropriate procedure.

In Waller LJ’s previous judgment he was inclined to think that a judge would have refused to allow a full judicial review and would have ruled that section 103A was the appropriate remedy. He was also inclined to feel that if section 103A had been used that must mean that the actual decision of Bean J must stay in place. We now believe that that inclination was wrong for a number of reasons. First, if there had been oral argument and even if there had been before the judge the evidence that is now before the court, including the statements of the immigration judge and the court staff, it is, we suppose, possible that, rather than having to decide whether the allegations made had produced a total denial of justice, a judge might have considered that since under section 103A the test was whether there “may” have been an error of law, section 103A provided the quickest and most appropriate route. It would not have required a decision on whether there had been any breach of natural justice. A ruling could have been made that there may have been an error of law and the matter should be reconsidered. What however seems to us difficult to contemplate, if oral argument had been allowed, is that a judge could properly have concluded that there was no arguable error and thus decide as Bean J did. As Hooper LJ reflects at paragraph 83 of his judgment Bean J would have been corrected on his misapprehension that AM might have instructed her solicitors not to take part in the proceedings. He would also have had emphasised in oral argument the letter of 17^th August, to which he makes no reference. Oral argument would, as it has before us, have made it impossible to hold there was nothing arguable in the allegations being made.

Second, we are all persuaded that a judge would actually have been wrong in this case to use the section 103A procedure and simply send the matter back for reconsideration. Our reason for that view has various threads. First, the section 103A procedure itself is not well-suited to resolving disputes arising on evidence not before the tribunal (see CPR 54.33(3)). Second, to send the matter back for reconsideration by one immigration judge into the conduct of another of the kind alleged in this case, does not seem to us appropriate. We have been referred to XS (Kosovo) – Adjudicator’s Conduct – Psychiatric Report) Serbia/Monte Negro [2005] UKIAT 00093, but that was a case where the AIT (an appeal tribunal) examined the conduct of an adjudicator. The review exercise required is more properly conducted by the High Court in its supervisory jurisdiction. Third, section 103A only gives one opportunity to challenge an appeal decision. If AM was right in her allegations, she had never had a fair hearing at all. It would be quite wrong that an unfair hearing, and one that possibly should never have taken place before the particular immigration judge, should count as a hearing at all so as to bring into play the guillotine that section 103A imposes. Third, AM in fact brought her challenge before the decision of the immigration judge had been promulgated. She was saying that the immigration judge should never have decided her case without evidence from her two witnesses and herself and if she was right in the charges she made, she was entitled to have relief which brought about that result, i.e. wiped that immigration judge’s rulings and hearing from the slate.

Thus it seems to us that judicial review of the normal kind would have been appropriate and this case falls within the exception identified in G & M. That then brings us to the third stage. A decision would have then have had to be taken on the evidence as to whether there had been the breach of natural justice. As to this final stage, the decisions and actions of the immigration judge must be looked at independently and cumulatively.

To suggest that the appeal could be dealt with in AM’s absence and without the evidence she wished to call without the appellant being prejudiced, when the issue was her credibility, is not a view any reasonable judge acting fairly could take.

Not to take any heed of statements even though supplied late when AM had not given evidence herself is indicative of an unbalanced view towards AM’s appeal.

Not to have adjourned at least to September, which was all that was asked, was unfair. There was no request for an indefinite adjournment, and yet the making of such a request was said to be “the point of the reasoning behind my refusal”.

What appears to have happened is that the immigration judge felt that his authority was being challenged; and he also thought, at least initially, that someone was attempting to pull the wool over his eyes as to AM’s ill- health. He determined that those representing AM and indeed AM herself should be shown who was in control; why, otherwise, reserve the case to himself? Clearly there was some form of falling out between those representing AM and the judge and it is clear that he misjudged the seriousness of AM’s condition, at least initially. That led him to act in a way which gave the appearance of lack of impartiality. AM’s advisers may also, as a result, have been themselves led to act unwisely. We are doubtful, for example, whether to appear and request an adjournment and then pointedly take no further part rather than struggle as best one could was wise. But on any view it seems to us that AM has simply not had any fair hearing of her appeal through no fault of her own, and the real cause of that having happened was the conduct of the immigration judge.

AM has established, and would have established if the case had been listed for an oral hearing before there was a section 103A decision, that this is one of those rare cases where the traditional judicial review was appropriate. She has also established that, if that application had been heard before there was a section 103A decision, she would have been entitled to an order that (1) the application to take her witnesses’ evidence by telephonic link should be set aside and reconsidered, (2) that the decision of the immigration judge not to adjourn her appeal should be set aside and thus (3) that the decision on the appeal itself should be set aside, and her appeal considered afresh. It follows also that she has established that if the decision of Bean J is not set aside AM would suffer a serious injustice for which there is no other remedy and that his decision should have been set aside by Stanley Burnton J.

We should perhaps add this. The position of immigration judges is not easy. Applications for adjournments must be commonplace and by the rules they are encouraged to resist them. Applications based on the grounds of ill health have to be scrutinised with care. But at all times, in seeking to carry out that difficult task, the judge must remember above all that those who come before them must feel that justice has been fairly administered. In seeking to carry out that difficult task on this occasion this judge fell below what is required.

We would order (1) that Judge Sacks’ refusal to reconsider the application to have evidence taken by telephonic link should be set aside and reconsidered by a different immigration judge and (2) that Judge Sacks’ decision on AM’s appeal be set aside and her appeal be heard by that or some other, different immigration judge.