NH (Afghanistan) v Secretary of State for the Home Department

This is a renewed application for permission to appeal from a decision of the Asylum and Immigration Tribunal (“the AIT”), permission having been refused on the papers by Richards LJ.

The applicant is a national of Afghanistan who arrived in the United Kingdom in February 2003. He claimed asylum, which was refused, but he was given leave to remain as an unaccompanied minor. He did not appeal against the refusal of asylum. Eventually, the leave to remain expired and the Secretary of State refused to extend it. That did give rise to an appeal by the applicant.

At a hearing in May 2007 before Immigration Judge Dineen it was accepted by counsel on behalf of the applicant that no claim on asylum grounds or under the European Convention on Human Rights -- based on risk to him on return, i.e. Article 2 and 3 -- could be made in the absence of new evidence. This appears in paragraph 9 of that determination. The appeal was thus dealt with as an Article 8 appeal. The immigration judge held that the removal of the applicant would not interfere with the applicant’s right to private life or family life and in any event would not be disproportionate. Reconsideration was, however, ordered. It was ordered because of an arguable error in the immigration judge’s approach to Article 8. That was the basis on which reconsideration was sought by the applicant and it was the basis upon which reconsideration was ordered.

At the reconsideration hearing in December 2007 before Senior Immigration Judge Moulden, the applicant’s representative sought to raise a new ground of appeal by way of amendment. This was that the first immigration judge should have treated the evidence as amounting to a new asylum claim and a claim under Article 3 of the ECHR. Immigration Judge Moulden considered this application at some length but refused permission to amend. He noted that the applicant’s counsel had expressly conceded the point at the first hearing and that it was agreed now that that concession had been within the scope of counsel’s instructions on that occasion; nor, he said, did the point appear in the grounds of appeal. The immigration judge observed that the Secretary of State had expressly considered in his refusal decision of 20 February 2007 whether there was new evidence amounting to a fresh asylum claim and had decided that there was not. The first immigration judge had confirmed that, and no grounds of appeal against that had been lodged leading to reconsideration, nor had there been any application for judicial review. As for Article 8, the Senior Immigration Judge concluded that no error of law had been made.

The challenge now advanced to the decision made by Senior Immigration Judge Moulden is solely as to the refusal to consider a claim under the Refugee Convention and/or Article 3. It is said that the AIT is under an overriding duty to assure that appeals are conducted “justly” and that immigration decisions have to be made in accordance with the law. Mr Jacobs who appears this morning on behalf of the applicant -- not having appeared below -- argues that the concession at the first hearing was wrongly made. There were no removal directions in being when asylum was refused on 9 April 2003 and limited leave to remain until the applicant’s eighteenth birthday in May 2004 was granted. Consequently, the applicant could not have appealed against the refusal of asylum at that stage. That, I have to say, in itself is wrong, because section 83 of the 2002 Act had come into effect on 1 April 2003 and expressly provided for a right of appeal against the refusal of asylum in such circumstances. Nonetheless, Mr Jacobs presses the point that even if there could have been an appeal against the refusal of asylum, it was not then generally understood that there could have been an appeal in relation to an Article 3 claim. That, to my mind, does not add greatly to his case, because the issues which arise under Article 3 would also be covered by any asylum claim.

The other line of argument put forward is somewhat broader, however, which is that, under the well-known decision in Regina v SSHD ex p Robinson [1997] 3 WLR 1162, the first immigration judge should have, in effect, rejected counsel’s concession and dealt with the case on the basis that it involved an appeal against a refusal of asylum. Mr Jacobs contends that a concession on a point of law should be treated differently from one as to facts. No form of estoppel can arise where the concession is as the law and, if it is wrong, then that in effect should have no bearing on any subsequent consideration of the matter. He points out that under the decision in Robinson it is important that this country should ensure that it is not in breach of one of its obligations under the Convention. Notwithstanding the failure to appeal the earlier asylum decision, it is said that the Refugee Convention was properly put before the immigration judge, as was Article 3, and that it was open to him to deal with that matter, even though it had not been raised in advance at that particular hearing.

I say straight away that I cannot myself see how this can be properly arguable. It is all very well to say that it was obvious in the Robinson sense that the applicant could have appealed in May 2007 on asylum and could have raised Article 3 points at that stage; it was not obvious to counsel for the applicant who appeared on the first hearing before Immigration Judge Dineen and, moreover, when reconsideration was sought of that determination by Immigration Judge Dineen, the grounds did not raise this point. They were confined, as I have indicated, to Article 8 issues. The same is true of the order for reconsideration. How, I ask, in the light of all of that, can it be suggested that the point which is now advanced was an obvious point which the first immigration judge should have taken on board -- in particular, of course, in the face of an express concession by counsel?

The decision that there should be reconsideration was made on grounds which did not go beyond Article 8. By the stage of the reconsideration hearing, the asylum and Article 3 argument was patently a new ground which was raised on the morning of the hearing itself, with no advance notice. I entirely accept that, as a matter of law, one can seek to expand the scope of a reconsideration hearing, but, as was made clear in this court’s decision in DK (Serbia) v SSHD [2008] 1 WLR 1246, it is very exceptional for that to be allowed. Moreover, if one seeks to do that then, in effect, Rule 32 of the AIT Procedure Rules requires that advance notice be given of the fresh material which it is sought to put before the tribunal. Mr Jacobs frankly acknowledges Rule 32 was not complied with here.

The immigration judge, on my reading of his decision, did not take the view that there was some impenetrable legal barrier to him dealing with this particular point. He considered whether he should grant an adjournment to allow the scope to be widened, which would have necessitated an adjournment because the Secretary of State’s representative would have needed time to deal with this new matter. The immigration judge decided not to grant that adjournment. He took into account, so far as I can see, all relevant matters and did not take into account any irrelevant ones. The concession that was made at the first hearing was, to my mind, a perfectly relevant matter for him to bear in mind, particularly when Robinson arguments were being advanced before him. As Richards LJ said in refusing permission on the papers here, Senior Immigration Judge Moulden was, in my judgment, within his discretion to refuse to allow this new point to be argued with the adjournment which would have been necessary. There is nothing unlawful about that decision; it did not go outside the scope of discretion available to him. I can therefore see no prospect of a successful appeal in this case, and the renewed application therefore must be dismissed.