AS (India) & Anor v Secretary of State for the Home Department

These two applications for permission to appeal have been listed for hearing together because they both raise the same preliminary issue: whether the Court of Appeal has jurisdiction to hear the appellants’ appeals under Section 103B of the Nationality, Immigration and Asylum Act 2002 (“The Act”).

This hearing is confined to that preliminary issue. We are not at this stage considering whether permission to appeal should be granted if we consider that the Court of Appeal does have jurisdiction to hear the appeals. In both cases the Asylum and Immigration Tribunal (“the AIT”) considered an appeal by the appellant. In AS’s case her appeal was dismissed, and in RA’s case his appeal was allowed. In both cases reconsideration was ordered: in the case of AS by Charles J on 25 July 2008, and in the case of RA by Senior Immigration Judge Allen on 6 April 2009. In the case of AS the reconsideration hearing was held by Senior Immigration Judge Roberts on 29 August 2008. In a determination promulgated on 12 September 2008 he issued a notice under Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Rules”) in which he concluded that there had been no immigration decision which carried a right of appeal so that:

“The Tribunal (rather belatedly) declines to accept the notice of appeal. No further action will be taken on it.”

In the case of RA the consideration hearing was held by Senior Immigration Judge Warr on 15June 2009. In a determination promulgated on 18 June 2009 he concluded that RA had had no in country right of appeal and:

“For these reasons, the immigration judge had no jurisdiction to deal with the appeal and the Secretary of State’s challenge succeeds.

Accordingly I substitute a fresh decision:

The purported appeal is dismissed for want of jurisdiction.”

At this stage we are not concerned with whether the Senior Immigration Judges’ determinations were or were not correct. The only question is whether the Court of Appeal has jurisdiction to consider the appellants’ contentions that they were not correct. It might have been thought that this question had been answered by the decision of this court in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78. In that case the appellant JH’s appeal had been allowed by an immigration judge. The Secretary of State appealed, reconsideration was ordered and a fresh decision dismissing the appeal was substituted. On an appeal under Section 103B the Court of Appeal set aside that decision and remitted the case, by consent, to a differently constituted tribunal. On that reconsideration Senior Immigration Judge Spencer concluded that the Asylum and Immigration Tribunal had no jurisdiction to entertain JH’s appeal. He said that he was obliged by Rule 9(2)(6) of the rules to take no further action and his decision, expressed as a decision that JH had no right of appeal, was promulgated on 19September 2007.

The Secretary of State contended that there was no right of appeal against that decision. The relevant statutory provisions are set out in paragraphs 5 and 6 of the judgment of Richards LJ, with whom Laws and Wall LJJ agreed:

“Rule 9 of the Procedure Rules provides:

‘9(1) Where (a) a person has given notice of appeal to the Tribunal; and (b) there is no relevant decision, the Tribunal shall not accept the notice of appeal.

(2)

Where the Tribunal does not accept a notice of appeal, it must (a) notify the person giving the notice of appeal and the respondent; and (b) take no further action.’

6.

The tribunal’s power to reconsider one of its decisions and the right to bring a further appeal to the Court of Appeal following a reconsideration by the tribunal are governed respectively by ss.103A and 103B of the 2002 Act, which provide in material part:

103A. Review of Tribunal’s decision

(1)

A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal

(2)

The appropriate court may make an order under subsection (1) -

(a)

only if it thinks that the Tribunal may have made an error of law, and

(b)

only once in relation to an appeal.

…

(7)

In this section a reference to the Tribunal’s decision on an appeal does not include a reference to –

(a)

a procedural, ancillary or preliminary decision, or

(b)

a decision following the remittal under Section 103B…

103B. Appeal from the Tribunal following reconsideration

(1)

Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(2)

In subsection (1) the reference to reconsideration is to reconsideration pursuant to –

(a)

an order under section 103A(1), or

(b)

remittal to the Tribunal under this section …

(4)

On an appeal under subsection (1) the appropriate appellate court may –

…

(c)

remit the case to the Tribunal…”

Having set out those statutory provisions, Richards LJ continued in paragraphs 7 and 8 of his judgment:

“7.

For the Secretary of State, Mr Beer submits that the SIJ’s decision was not a decision taken after reconsideration of the appeal, so as to engage a right of appeal under s.103B(1), but was taken pursuant to rule 9 of the Procedure Rules and was a procedural or preliminary decision within the meaning of s.103A(7). Although the case had been remitted by the Court of Appeal for a fresh reconsideration, what happened thereafter was that the SIJ expressly declined to reconsider the case, on the ground that the tribunal lacked jurisdiction to accept the appeal in the first place. Mr Beer seems to reinforce his case by policy arguments, containing that Parliament must have intended that tribunal decisions on procedural or preliminary points would be final and could not be subject to appeal (though judicial review might still lie).

8.

I have no hesitation in rejecting those submissions. In this case the tribunal had moved far beyond the rule 9 stage. The notice of appeal had been accepted by the tribunal and the appeal had already been determined and reconsidered once. The case had then gone to the Court of Appeal and had been remitted for a fresh reconsideration. That was how it came before the SIJ. I think it plain that his decision was reached on a reconsideration pursuant to the remittal and that the conditions for a further appeal to the Court of Appeal under s.103B(1) and (2) were therefore satisfied. Although the SIJ referred to rule 9, it makes no sense to treat his decision as having been made under rule 9 or as a procedural or preliminarily decision of the kind referred to in s.103A(7). It happens from time to time that the tribunal, on the determination of an appeal or on reconsideration, decides that the tribunal lacks jurisdiction to entertain the appeal. I see no good reason of principle or policy why such a decision should be excluded from the review or appeal under s.103A of s.103B. In the unusual circumstances of the present case, where a decision on jurisdiction is made for the first time on a second reconsideration, it would in my view be extraordinary if no right of appeal existed. I am satisfied that a right of appeal does exist.”

On behalf of the Secretary of State, Miss Chan submitted that this court has no jurisdiction to consider these applications for permission to appeal, and the appellant’s remedy, in so far as one is available to them, is to seek permission to challenge the Senior Immigration Judge’s decisions by way of judicial review. It can be seen that precisely that submission was raised on behalf of the Secretary of State in JH (see paragraph 7 of JH above). Miss Chan submitted that JH can be distinguished from the present appeals because in JH there was a remittal by consent from the Court of Appeal and there has been no such remittal in the present appeals. She submits that the ratio of JH is that the Court of Appeal:

“can choose to hear an appeal if unusual circumstances, akin to those in JH, are present, notwithstanding the existence of a prior finding that the Asylum and Immigration Tribunal lacked jurisdiction to consider an appeal.”

In effect, her submission is that JH should be confined to its own very unusual facts. I do not accept that submission. The fact that the remittal from the Court of Appeal was by way of a consent order does not appear to have played any part whatsoever in the court’s decision in JH. While the Court considered the fact that the AIT’s decision on jurisdiction was made for the first time on a second reconsideration would make it “extraordinary” for there to be no right of appeal against such a decision, its principal conclusion, in my judgment, was that there was “no good reason of principle or policy” why a decision on the determination of an appeal or on a reconsideration that the tribunal lacked jurisdiction should be excluded from review or appeal under Section 103A or Section 103B (see paragraph 8 of the judgment of Richards LJ above).

JH, in my view, also answers Miss Chan’s further submission that conditions laid down in Section 103B(1) have not been met because the appellants’ appeals to the AIT have not been “reconsidered”. Reconsideration for the purposes of subsection 103B(1) is defined by subsection (2) as:

“reconsideration pursuant to –

(a)

an order under Section 103A(1) or

(b)

a remittal to the tribunal.”

In these appeals there has been no remittal and Miss Chan submits that, although reconsideration was ordered under Section 103A(1) in both cases, no such reconsideration took place. The Senior Immigration Judge simply dismissed the appeals as invalid. In JH the court was in no doubt that the Senior Immigration Judge’s decision that, by reason of Rule 9(2)(b) of the Procedure Rules, JH had no right of appeal “was reached on a reconsideration pursuant to the remittal” and that:

“Although the SIJ referred to Rule 9, it makes no sense to treat his decision as having been made under Rule 9 or as a procedural or preliminary decision of the kind referred to in s.103A(7).”

The fact that the Senior Immigration Judges’ decisions in these appeals were made pursuant to orders under Section 103A(1), rather than a remittal under Section 103B, does alter their character. They were reached on a reconsideration of the appellant’s appeals and it would make no sense to treat them as a procedural or preliminary decision of the kind referred to in Section 103A(7).

In her oral submissions before us, Ms Chan raised one further issue which had not been raised on behalf of the Secretary of State in the case of JH. Subsection (3) of Section 103B provides that:

“An appeal under subsection (1) may be brought only with the permission of (a) the Tribunal, or (b) if the Tribunal refuses permission, the appropriate appellate court"

Ms Chan submitted that in the present cases the Tribunal has not refused permission to appeal. In my judgment, for much the same reasons as given by Richards LJ as to the practical characteristics of the decision in question in that case, where the tribunal has been ordered, either under Section 103A(1) or Section 103B, to reconsider an appeal and it declines to do so and declines to take any further action on the appeal, that is to be treated as a refusal by the tribunal of permission to appeal for the purposes of Section 103B(3).

For these reasons, I would answer this preliminary issue in the affirmative. The Court of Appeal does have jurisdiction to consider these appeals.

It has not been necessary, in order to decide the present question, to undertake an in-depth analysis of the meaning of jurisdiction, but since it may be relevant to do so in other cases I take the liberty of mentioning the discussion of this topic in my judgment in the case of Watt v Ahsan [2005] EWCA Civ 990 at paragraph 15 onwards, a passage which was approved without elaboration on further appeal [2007] UKHL 51. There is a potentially critical distinction between what I there called constitutive jurisdiction and adjudicative jurisdiction. The decisions at issue in the present cases are arguably examples of the latter, not the former. This distinction, however, has not had to feature in today’s argument, as to which I am in full agreement with the reasoning of my Lord, Sullivan LJ. In particular, I agree that in the era of the Civil Procedure Rules it is not an attractive proposition that an error of the present kind, if error it was, has to be processed by way of an application for judicial review -- in other words, that it is not necessarily non-justiciable but that justice has to be separately secured by a circuitous and arguably inappropriate route.