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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AM (Serbia) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 16 (25 January 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/16.html Cite as: [2007] EWCA Civ 16 |
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THE
SUPREME COURT
OF
JUDICATURE
COURT OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
IMMIGRATION
APPEAL TRIBUNAL
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
THE
PRESIDENT
OF THE
FAMILY DIVISION
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE HUGHES
____________________
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Appellants |
|
- and - |
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![]() ![]() |
Respondent |
____________________
of the
Handed Down Judgment
of
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the
Court)
for the
Appellant –
AM
(
Serbia
) (1)
Upali Cooray (instructed by Messrs Thompson & Co) for the
Appellant –
MA
(
Pakistan
) (
2
)
Raza Husain (instructed by Refugee Legal Centre) for the
Appellant –
MA
(
Sudan
) (
3
)
James Eadie (instructed by the
Treasury Solicitor)
for the
Respondent (1)
Philip Coppel (instructed by the
Treasury Solicitor)
for the
Respondent (
2
)
James Eadie (instructed by the
Treasury Solicitor)
for the
Respondent (
3
)
____________________
OF
JUDGMENT
Crown Copyright ©
Lord Justice Maurice Kay :
The
transitional provisions
"immediately before commencement …
(b) are awaiting determination bythe
Immigration Appeal Tribunal."
"(b) any appeal tothe
Immigration Appeal Tribunal which is pending immediately before commencement shall continue after commencement as an appeal to
the
Asylum and Immigration Tribunal."
"The
Asylum and Immigration Tribunal shall, after commencement, … subject to rules under section 106
of the
2002 Act deal with
the
appeal in
the
same manner as if it had originally decided
the
appeal and it was reconsidering its decision."
"(a) regulatingthe
exercise
of the
right
of
appeal …
(b) prescribing procedure to be followed … "
"shall aim to ensure –
(a) thatthe
rules are designed to ensure that proceedings before
the
Tribunal are handled as fairly, quickly and efficiently as possible, and
(b) thatthe
rules where appropriate confer on members
of the
Tribunal responsibility
for
ensuring that proceedings before
the
Tribunal are handled as fairly, quickly and efficiently as possible."
"Where –
(a) a party has been granted permission to appeal tothe
Immigration Appeal Tribunal against an adjudicator's determination before 4th April 2005, but
the
appeal has not been determined by that date, and
(b) by virtueof
a transitional provisions order
the
grant
of
permission to appeal is treated as an order
for the
Tribunal to reconsider
the
adjudicator's determination,
the
reconsideration shall be limited to
the
grounds upon which
the
Immigration Appeal Tribunal granted permission to appeal." (emphasis added)
The
problem
"We hold that, with three reservations, Rule 62(7) means what it says. We are not persuaded that there is any reason it should not mean what it says; and in our judgment it is not unfair to have required those, who sought to take advantageof the
existence
of
an appellate process to enlarge their grounds, to do so before
the
appellate process ceased to exist … there is in any event nothing in
the
Rules or
the
2002 Act which would enable us to give a meaning to Rule 62(7) other than that which it appears on its face to bear in restricting
the
ambit
of
a reconsideration in cases to which transitional provisions apply.
The
three reservations are as follows. First, in our view Rule 62(7) is to be read in
the
light
of
any order made on statutory review; such order is to be treated as though it were incorporated in
the
IAT's grant
of
permission to appeal. Secondly, Rule 62(7) cannot prevent a challenge to jurisdiction and so enlarge
the
jurisdiction
of the
Tribunal: see SS (Somalia) [2005] UKAIT 00167. Thirdly, there is also a need to make allowance
for
obvious points
of
Refugee Convention law in
the
Robinson [1998] QB 929 sense."
The
positions
of the
parties to
the
present appeals
Construction
"…the
reconsideration shall be limited to
the
grounds upon which
the
Immigration Appeal Tribunal granted permission to appeal, save where amendment is permitted by
the
Asylum and Immigration Tribunal in
the
interests
of
justice."
"The
overriding objective
of
these Rules is to secure that proceedings before
the
Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members
of the
Tribunal have responsibility
for
ensuring this, in
the
interests
of the
parties to
the
proceedings and in
the
wider public interest."
"…the
clear policy … is that all possible reasons
for
allowing a person to remain in
the
United Kingdom should normally be considered on a single occasion by
the Secretary of State
and on appeal, in one set
of
proceedings."
The
challenge to Rule 62(7): vires and nationality
(1) Vires
"… wherethe
executive has been allowed by
the
legislature to make law, it must abide strictly by
the
terms
of
its delegated authority."
"shall aim to ensure –
(a) thatthe
rules are designed to ensure that proceedings … are handled as fairly, quickly and efficiently as possible … "
The
three appeals
Conclusion
Lord Justice Hughes:
The
President
of the Family Division: