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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> YF (pre-commencement remittal, basis of reconsideration) Eritrea [2005] UKAIT 00126 (6 September 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00126.html Cite as: [2005] UKAIT 126, [2005] UKAIT 00126, [2005] UKIAT 00126 |
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YF (pre-commencement remittal – basis of reconsideration) Eritrea [2005] UKAIT 00126
Date of hearing: 15 June 2005
Date Determination notified: 6 September 2005
Secretary of State for the Home Department | APPELLANT |
and |
|
YF | RESPONDENT |
Guidance as to correct approach to findings of fact made previously when an appeal has been remitted to an adjudicator for a fresh hearing before 4 April 2005, but the rehearing has not taken place by that date
Background
"The appeal appears to be in time being received on the last day (17 November 2003) according to the Faxed date. The grounds of appeal appear to raise arguable issues.
This application for permission to appeal is granted."
Application to serve reply
"The other party to the appeal [i.e. the appellant in the present instance] must file and serve a reply not later than 5 days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal."
Basis of reconsideration
"My findings above lead me to reject as credible the appellant's account of his detention, ill-treatment in and escape from Sawa camp and the means by which he arranged to travel to the United Kingdom."
In essence, the adjudicator rejected the appellant's evidence in relation to the core elements of his account.
Respondent's submissions
"I have already mentioned the passage in Symes and Jorro on Asylum Law and Practice, to which I was referred, to the effect that the benefit of positive findings on credibility is not something of which an asylum seeker should be lightly deprived. Whilst the case quoted in the footnote to that passage does not appear to be direct authority for the proposition, it is nevertheless a proposition with which I agree. In this case the claimant is not, strictly speaking, being deprived of the benefit of the adjudicator's positive credibility findings, but the benefit of those positive credibility findings is being put at risk and that, in my view, is not something that should be done lightly, especially bearing in mind that the adjudicator heard and saw the claimant giving oral evidence and being cross-examined."
"7. We are satisfied that there are errors of law in the determination. In particular the adjudicator assessed the risk on return incorrectly. She should have asked herself whether there was a reasonable likelihood or real risk that the appellant would be subjected to article 3 ill-treatment on return rather than the test she used in paragraph 9.8.
8. Accordingly we allow the appeal to the extent it be remitted for a fresh hearing before an adjudicator other than Miss D M Lambert."
Conclusions
"However, in exercising this jurisdiction that, I have to bear in mind the terms in which Vice President Mr Lane granted permission to appeal and then remitted the case. Despite ordering a fresh hearing, he plainly indicated that this should focus on just one issue, namely, whether in view of her generally positive credibility findings, the Adjudicator had given legally sustainable reasons for not accepting the arrest warrants."
"With this in mind I sought the views of the parties as to the basis on which the fresh hearing should proceed. Both agreed with me that it was appropriate in this case to confine the issue to that concerning the arrest warrant."
At paragraph 7, the Tribunal stated inter alia:
"The Tribunal who remitted this case clearly intended that the issue should be confined."
Finally, the Tribunal recorded at paragraph 10 inter alia:
"Since it is agreed between the parties that we should proceed on the basis of Mrs Bird's positive credibility findings, it is useful to remind ourselves what these amounted to and in what way she qualified them."
Statutory provisions
"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."
Those provisions give no guidance as to the basis on which such a reconsideration, if ordered, should then take place.
Procedure Rules
"27(2) Where an immigration judge makes an order for reconsideration --
(a) his notice of decision must state the grounds on which the Tribunal is ordered to reconsider its decision on the appeal; and
(b) he may give directions for the reconsideration of the decision on the appeal which may --
(i) provide for any of the matters set out in rule 45(4) which he considers appropriate to such reconsideration; and
(ii) specify the number or class of members of the Tribunal to whom the reconsideration shall be allocated.
31(4) In carrying out the reconsideration, the Tribunal --
(a) may limit submissions or evidence to one or more specified issues; and
(b) must have regard to any directions given by the immigration judge or court which ordered the reconsideration.
45(4) Directions of the Tribunal may, in particular --
….
(f) limit –
….
(iv) the issues which are to be addressed at the hearing…"
Once again, those provisions are of limited assistance to the issue which is before us.
Practice Directions
" The immigration judge who has decided to make an order for reconsideration:
(a) must state the grounds on which the Tribunal is ordered to reconsider its decision (rule 27(2)(a)); and
(b) will (amongst other things) decide under rule 27(2)(b) whether to direct that a CMR [case management review] hearing be held before the reconsideration hearing takes place and whether to make a direction as to the evidence to be adduced at the hearing initially fixed for the reconsideration (as to which, see paragraph 14)."
"14.1 Subject to paragraph 14.12, where an appeal has been ordered under section 103A to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and, if so, whether, on the basis of the original Tribunal's findings of fact, the appeal should be allowed or dismissed.
14.2 Where the Tribunal decides that the original Tribunal made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.
14.3 Where the Tribunal acting under paragraph 14.2 adjourns the hearing, its determination, produced after the adjourned hearing has taken place, will contain the Tribunal's reasons for finding that the original Tribunal made a material error of law.
14.4 Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be attached to, and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal.
14.5 The references in paragraph 14.1 to 14.4 to the original Tribunal include references to an adjudicator in any case where, by virtue of article 6 of the Commencement Order, the order under section 103A is made in respect of the decision of an adjudicator.
14.6 Under article 5 of the Commencement Order, any appeal that was pending before the IAT immediately before 4 April 2005 shall on and after that date be dealt with in the same manner as if the Tribunal had originally decided the appeal and was reconsidering its decision.
14.7 Rule 62(7) provides that, in the case of an appeal described in paragraph 14.6, the reconsideration shall be limited to the grounds upon which the IAT granted permission to appeal. In most cases, those grounds will require the Tribunal to decide whether the adjudicator made a material error of law.
14.8 Subject to paragraph 14.12, on and after 4 April 2005, and in the absence of any direction to the contrary, the parties to any appeal that falls to be dealt with as described in paragraph 14.6 should assume that the issues to be considered at the hearing will be whether the adjudicator made a material error of law and, if so, whether, on the basis of that adjudicator's findings of fact, the appeal should be allowed or dismissed.
14.9 Where the Tribunal decides that the adjudicator made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.
14.10 The provisions of paragraph 14.3 and 14.4 shall apply in relation to paragraph 14.9 as they apply in relation to paragraph 14.2 but with the modification that the references to the original Tribunal shall be interpreted as referring to the adjudicator.
14.11 Where, immediately before 4 April 2005, an appeal was pending before an adjudicator, having been remitted to an adjudicator by a court or the IAT, it will already have been decided that the original adjudicator's determination cannot stand. The Tribunal will accordingly proceed to re-hear the appeal.
14.12 In the case of a reconsideration of a fast track appeal, the Tribunal reconsidering the appeal is required by rule 23 of the Fast Track Rules to reconsider its decision on the appeal at the reconsideration hearing, subject to the qualifications described in rule 23(1) of those Rules. The Tribunal's power to adjourn a fast track appeal that remains as such is governed by rule 28 of those Rules.
14.13 The parties to any fast track appeal which is being reconsidered by the Tribunal on or after 4 April 2005 will be expected to attend with all necessary witnesses and evidence that may be required if the Tribunal should decide that it is necessary to re-hear the appeal. It will be unusual for the Tribunal to adjourn the reconsideration hearing but, if it does so, paragraph 14.4 will, so far as appropriate, apply.
14.14 The preceding provisions of this paragraph and paragraph 13 are subject to article 9 of the Commencement Order in the case of certain "old" appeals, where the issue is not restricted to whether the adjudicator made an error of law."
Documentary evidence
Oral evidence
Burden and standard of proof
Findings and conclusions
Reporting
Decision
Signed Dated: 5 September 2005
L V Waumsley
Senior Immigration Judge
Approved for electronic distribution