MM (Zimbabwe) v Secretary of State for the Home Department

The appellant is a citizen of Zimbabwe who arrived in the United Kingdom on 29 August 2003. On arrival she had leave to enter as a visitor, but that soon expired. She overstayed and did nothing to regularise her immigration status until she claimed asylum on 24 April 2009. Her claim was rejected by the Secretary of State on 6 May 2009.

An appeal to the Asylum and Immigration Tribunal was dismissed by an Immigration Judge on 5 July 2009. She sought reconsideration of that decision and on 31 July 2009 reconsideration was ordered. On 7 December 2009 a Designated Immigration Judge found a material error of law in the determination by the first immigration judge. On 12 February 2010 at a second stage reconsideration the appellant's appeal was dismissed on asylum and human rights grounds. In the course of that decision the immigration judge applied the Country Guidance contained in RN (returnees) Zimbabwe CG [2008] UKAIT 00083.

Thereafter there occurred a succession of administrative errors in the Tribunal. It seems that initially they resulted from the fact that within days after the promulgation of the second stage reconsideration decision the Tribunal structure was modified, giving rise to the current structure of the First-tier Tribunal and the Upper Tribunal (Immigration and Asylum chamber).

The first error on the part of the Tribunal was that when it sent out the determination following second stage reconsideration it did so attaching forms which would have been appropriate for an appeal from the new First-tier Tribunal to the Upper Tribunal. That was not the appropriate procedure if the second stage consideration was to be challenged. This was apparent to the appellant's legal advisors. They utilised the forms that had been sent out, but made it clear that they were seeking permission to appeal to the Court of Appeal and inviting the forms be treated as supportive of such an application. It was procedurally correct of the legal advisers in the first instance to seek the permission of the Tribunal to pursue an appeal to the Court of Appeal. Nevertheless, that led to the second error on the part of the Tribunal. The application was considered by a Senior Immigration Judge on the basis that he was being asked for permission to appeal to the Upper Tribunal.

The next error was that the matter was considered by Blake J on 15 April 2010 when he purported to grant permission to appeal to the Upper Tribunal. For some reason that has not been explained, Blake J's order was not formally promulgated for over a year. That was not done until 1 June 2011.

Once that had been done the appellant's legal advisers were in a position to see the continuing problems. Steps were taken to have the proposed application for permission to appeal considered by a Senior Immigration Judge in the Upper Tribunal as an application for permission to appeal to the Court of Appeal in accordance with the appropriate transitional provisions. On 8 June 2011 Senior Immigration Judge Gleeson granted permission to appeal to this court for essentially the reasons that Blake J had had in mind when making his order granting permission to appeal to the Upper Tribunal. Accordingly, the appellant now has permission to appeal to this court.

That brings me to her grounds of appeal. The Immigration Judge had decided the second stage reconsideration by reference to the Country Guidance set out in RN. It is common ground that, but for the delays caused by the administrative errors in the Tribunal, her appeal to this court would have been heard timeously and would have been considered by reference to RN. It is also common ground that if that had occurred the appeal would probably have been successful. In the event, RN was replaced as relevant Country Guidance by a further decision of the Upper Tribunal, namely EM & Others (returnees) Zimbabwe CG [2011] UKUT 98 (IAC), which decision was promulgated on 14 March 2011. Counsel are also agreed that the appellant's prospects would be significantly reduced if the guidance in EM were now to be applied to her personal circumstances.

On behalf of the Secretary of State Ms Kate Grange accepts that the decision at second stage reconsideration was legally erroneous. To that extent she concedes that the present appeal to this court must succeed, but she submits that the appropriate disposal is now by way of a remittal to the Upper Tribunal where the case can be re-visited in the light of the up-to-date Country Guidance contained in EM. The case for the appellant is that the errors on the part of the Tribunal have been such that it is now inappropriate to remit the case. Instead it is submitted by Mr Burrett that we should allow the appeal "outright", although quite what that would require in terms of an order is something which Mr Burrett concedes to be difficult.

As a matter of jurisdiction this court has at its disposal powers both to remit and to re-make the decision itself by reason of the provisions of section 14 of the Tribunals Courts and Enforcement Act 2007.

The question whether the appellant's case should now be considered by reference to the earlier Country Guidance in RN rather than by reference to the later guidance in EN attracts these rival submissions. On behalf of the Secretary of State Ms Grange accepts that the Tribunal at second stage reconsideration made the error to which I have referred, but contends that in accordance with general principles the appellant's position must be considered by reference to the position, including the position as to Country Guidance which obtains now, not by reference to Country Guidance which was superceded almost a year ago. She submits that that is axiomatic, having regard to the general principle illustrated by the case of Ravichandran v SSHD [1996] Imm AR 1997 and in particular the concluding passages in the judgment of Simon Brown LJ.

The contrary submission by Mr Burrett is that the Tribunal's errors have prejudiced the appellant to the extent that it would now be "conspicuously unfair" if the appellant's case were not still dealt with on the basis of the Country Guidance in RN, which would have been extant at the time when the appellant's case would have been finalised but for the Tribunal's errors. The words "conspicuously unfair" are taken from recent authorities including Secretary of State for the Home Department v R (S) [2007] EWCA Civ 546 where Moore-Bick LJ stated at paragraph 71:

In the present case the Secretary of State was not herself, or through her officials, culpable in any way so far as the errors were concerned. The errors were entirely those of the Tribunal. Although there was a compounding of them, I do not consider that they have given rise to conspicuous unfairness or any other form of abuse of process. The cases in which "conspicuous unfairness" and legitimate expectation have been considered have generally been cases in which the Secretary of State has changed her policy on a relevant issue upon which she has some discretion. Save for one dictum at first instance, Mr Burrett is unable to point to any authority in which the Secretary of State has been fixed with a decision of conspicuous unfairness, where the unfairness has arisen not from matters arising within her own Department but within the Tribunal.

When one considers fairness to this appellant it is as well to keep in mind the factual background. She was for a long time an illegal overstayer. She waited until April 2009 before claiming asylum. Parts of her claim were found by the Tribunal to lack credibility.

As Ms Grange submits, by seeking to place continued reliance on RN the appellant is effectively seeking a windfall which she does not deserve and to which she is not entitled. There is nothing unfair or unjust about her asylum appeal being determined at this stage by reference to the current Country Guidance in EM.

The Secretary of State does not go so far as to say that we should remake the decision by dismissing the appellant's asylum appeal once and for all; the suggestion is that we should remit it to the expert Tribunal for further reconsideration. I agree. Accordingly, I would allow the appeal to this court but remit the case to the Upper Tribunal.

In the course of his submissions Mr Burrett also tried to raise a ground of appeal by reference to Article 8 of the ECHR. The appellant does not have permission to appeal on that ground. In any event, any new circumstances in relation to her Article 8 claim can, as Ms Grange concedes, be considered at the remitted hearing.

I agree with the order proposed by my Lord. For my part, I would just add that it seems to me essential that citations of the line of cases, beginning with the R (Rashid) v SSHD [2005] EWCA Civ 744, ought scrupulously to be coupled with the careful analysis of that decision given by Carnwath LJ in R (S) v SSHD [2007] EWCA Civ 546. The Rashid line of cases concerns decisions of the Secretary of State which are held to be unlawful, in part because of a change of practice for which there was no justification, undertaken in circumstances of conspicuous unfairness and which could be described as an abuse of power.

We have not, of course, in this case explored every possible permutation, so it is wrong to rule out the possibility, but it seems to me open to very considerable doubt indeed whether that line of cases can ever have any application either to judicial errors or to administrative errors in the office of the Tribunal, such as those which my Lord has catalogued as unhappily having occurred here. Conspicuous unfairness is not, in other words, a freestanding ground on which a court can act in the absence of unlawful action on the part of the Secretary of State. Moreover, it does not seem to me that there is any conspicuous unfairness in the circumstances of this case in this applicant's case being determined according to present facts and present Country Guidance.

I agree with both judgments.