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Neutral Citation Number: [2007] EWCA Civ 16 |
|
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Case No: C5/2005/2781 |
IN
THE
SUPREME COURT
OF
JUDICATURE
COURT
OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE
IMMIGRATION
APPEAL TRIBUNAL
|
|
Royal Courts of Justice Strand, London, WC2A 2LL
|
|
|
25th January 2007 |
B e f o r e :
THE
PRESIDENT
OF THE
FAMILY DIVISION
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE HUGHES
____________________
Between:
____________________
(Transcript
of the
Handed Down Judgment
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Official Shorthand Writers to
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Court)
____________________
Kathryn Cronin (instructed by Messrs Wilson & Co)
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
)
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord Justice Maurice Kay :
- Frequent statutory changes to legal structures and procedures necessitate transitional provisions. Sometimes
the
pace
of
change and
the
complexity
of the
provisions produce anomalies and possibly unintended consequences. Parliament turned its attention to
the
immigration and asylum adjudication system in 1999 and,
for
present purposes, more radically in 2002 and 2004. Until 2002,
the
system
for
many years had taken
the
form
of
a right to appeal against a decision
of the Secretary of State
to an adjudicator, with a further right
of
appeal with leave to
the
Immigration Appeal Tribunal ("IAT").
The
jurisdiction
of the
IAT was not limited to points
of
law. An applicant who was refused leave could challenge
the
refusal by resort to judicial review. A party dissatisfied with a substantive decision
of the
IAT could appeal to
the
Court
of
Appeal. This was a cumbersome system and it resulted in protracted litigation with an obvious potential
for
delay and abuse. By
the
Nationality, Immigration and Asylum Act 2002, two significant amendments were introduced. Appeals from an adjudicator to
the
IAT were restricted to appeals on points
of
law (section 101(1)) and conventional judicial review
of
a refusal
of
leave to appeal to
the
IAT was replaced by statutory review
of the
leave decision (section 101(
2
)). Statutory review was confined to a decision on
the
papers by a judge
of the
Administrative Court. His jurisdiction is limited to errors
of
law and his decision is final (section 101(
3
)).
The
reform
of the
system by
the
Asylum and Immigration (Treatment
of
Claimants etc) Act 2004 was far more radical. It abolished
the
two tier appellate structure
of
adjudicator and IAT and replaced it with a single tier, now called
the
Asylum and Immigration Tribunal ("AIT").
The
AIT started and
the
IAT ceased to exist on 4 April 2005. In place
of the
two tier appeal, provision is now made
for
"reconsideration" within, but at different levels
of
,
the
single tier.
The
three cases before
the
Court are not cases which fall to be dealt with by
the
AIT entirely under
the
2004 Act. They are a category
of
transitional case. In short, they are cases in which an adjudicator had made a decision and
the
IAT had given leave to appeal before 5 April 2005, but
the
IAT had not heard
the
substantive appeal before it ceased to exist.
For
such cases,
the
following transitional provisions were enacted.
The
transitional provisions
- By section 48(
3
)(a)
of the
2004 Act,
the
Lord Chancellor was empowered to bring
the
relevant provisions
of the
Act into force by way
of
commencement orders. In particular, section 48(4)(a) provided that a commencement order "may make transitional or incidental provision" and, by section 48(5), transitional provision included making provision
for
proceedings which
"immediately before commencement …
(b) are awaiting determination by
the
Immigration Appeal Tribunal."
The
relevant commencement order was
the
Asylum and Immigration (Treatment
of
Claimants etc) Act 2004 (Commencement No.5 and Transitional Provisions) Order 2005 (
the
Commencement Order). Article 4
of the
Commencement Order provides:
"(b) any appeal to
the
Immigration Appeal Tribunal which is pending immediately before commencement shall continue after commencement as an appeal to
the
Asylum and Immigration Tribunal."
- Article 5(
2
) then provides:
"
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."
The
rule-making power under section 106(1)
of the
2002 Act (as amended by
the
2004 Act) confers upon
the
Lord Chancellor
the
power to make rules
"(a) regulating
the
exercise
of the
right
of
appeal …
(b) prescribing procedure to be followed … "
Of
central importance in
the
present cases is section 106(1A), which provides that, in making rules under subsection (1),
the
Lord Chancellor
"shall aim to ensure –
(a) that
the
rules are designed to ensure that proceedings before
the
Tribunal are handled as fairly, quickly and efficiently as possible, and
(b) that
the
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."
- In
the
exercise
of
this rule-making power,
the
Lord Chancellor promulgated
the
Asylum and Immigration Tribunal (Procedure) Rules 2005 ("
the
Procedure Rules"). Transitional provisions are contained in Rule 62.
The
present cases are concerned with Rule 62(7) which provides:
"Where –
(a) a party has been granted permission to appeal to
the
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 virtue
of
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
literal meaning
of the
words I have emphasised is plainly that
the
AIT has no power to permit an applicant to amend his grounds
of
appeal, either by renewing grounds
for
which permission was expressly refused by
the
IAT or by
the
addition
of
new grounds. What
the
appellants in these three appeals are seeking to do is to circumvent
the
literal meaning
of
Rule 62(7). In each case,
the
AIT considered itself bound to hold
the
appellant to
the
grounds upon which
the
IAT had granted permission to appeal.
- After
the
IAT granted permission in these cases and until 4 April 2005, it would have been possible
for
each appellant to apply to vary his grounds
of
appeal pursuant to Rule 20
of the
Immigration and Asylum (Procedure) Rules 2003.
The
IAT could permit variations. It could even do so in relation to grounds
for
which it had earlier refused permission if it was satisfied that "because
of
special circumstances, it would be unjust not to allow
the
variation". Alternatively, in relation to grounds
for
which permission had been refused at
the
time when permission
for
others had been granted, (or when permission had been refused on all grounds), a disappointed applicant could seek statutory review, provided he could show an error
of
law. None
of the
present appellants took that course. Anecdotally, it was common but not invariable
for
disappointed applicants to rely on Rule 20 rather than statutory review.
The
problem
- In a nutshell
the
problem is this: if a transitional applicant to
the
AIT has an arguable and potentially meritorious point
of
law
for
which
the
IAT, when granting permission on other grounds, either refused or was not asked to grant permission, is he now prevented by Rule 62(7) from raising or resurrecting it before
the
AIT? This is an important issue
of
principle. I shall approach it on
the
assumption that
the
point is arguable and potentially meritorious. It goes without saying that statutory review, although a possibility at
the
time in relation to rejected, but not wholly new, grounds
of
appeal, had ceased to be an available remedy in these cases long before 4 April 2005 because
of the
tight time limits within which it operates.
The
answer
of the
AIT
The
authoritative decision
of the
AIT on Rule 62(7) is
the
starred decision JM (Rule 62(7); (human rights unarguable) Liberia [2006] UKAIT 00009. Mr C M G Ockleton, Vice-President, said (at paras 26-27):
"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 advantage
of 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
- Before this Court,
the
appellants are seeking to go much further than
the
AIT went in JM. They contend
for
either a construction
of
Rule 62(7) that is broader than
the
admittedly literal meaning
of the
language or
the
condemnation
of the
Rule on
the
basis that it is ultra vires and/or irrational.
The
position
of the Secretary of State
and
of the
Lord Chancellor (on behalf
of
both
of
whom Mr Eadie has instructions) is that
the
AIT analysed
the
problem correctly in JM.
Construction
- Mr Husain, whose submissions were adopted by Mr Cooray and Miss Cronin, has set himself a difficult task. He contends
for
a construction which is
the
antithesis
of the
literal meaning
of
Rule 62(7). Moreover, he accepts that, to arrive at his proffered construction, it would be necessary to read words into
the
Rule so that it takes
the
form:
"…
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."
- He also accepts that section
3 of the
Human Rights Act 1998 is to no avail, not least because immigration appeals fall outside
the
catchment
of
Article 6
of the
European Convention on Human Rights and Fundamental Freedoms (ECHR): see Maaouia
v
France (2001)
33
EHHR 1007. However, he points to
the
concession by Mr Eadie that JM correctly established three reservations or exceptions, notwithstanding
the
literal meaning
of the
wording, and proceeds to submit that this is one
of
those rare cases in which it is necessary to read words into a statutory provision because otherwise
the
purpose
of the
statute would be seriously undermined. That there can be such rare cases is illustrated by,
for
example, R (Quintavalle)
v
Human Fertilisation and Embryology Authority [2005] UKHL 28. In identifying
the
purpose
of the
statute (and therefore
of the
Rules) Mr Husain points to
the
overriding objective set out in
the
Procedure Rules:
"
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
words "fairly, quickly and efficiently" are derived from
the
rule-making power in section 106(1A)
of the
2002 Act (as amended): see paragraph 8, above. Reliance is further placed on
the
"one-stop" policy which underlies this legislation, and its obvious corollary,
the
restriction
of
resort to judicial review. In R (Kariharan)
v
SSHD [2003] QB 933, Auld LJ said (at para 10):
"…
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."
- He was there referring to
the
policy
of the
Immigration and Asylum Act 1999, but
the
same policy has continued and intensified under
the
2002 and 2004 Acts. Thus, submits Mr Husain, given that policy and
the
overriding objective,
the
purpose
of the
statutory scheme would be seriously undermined if Rule 62(7) were construed in such a way that denied an applicant
the
opportunity to renew or amend his grounds in a single set
of
proceedings. He would be denied
the
fairness that demands that he be enabled to amend to include an arguable and potentially meritorious point and speed and efficiency would be compromised if his only remedy was statutory review or possibly some previously unconsidered form
of
judicial review.
- I
am
unable to accept this approach to construction. It simply cannot be said that
the
purpose
of the
statutory scheme is seriously undermined by a literal construction
of the
unambiguous language
of
Rule 62(7). I shall return to
the
question whether there is a serious procedural gap productive
of
an unacceptable fairness deficit when I consider
the
ultra vires and irrationality challenges to Rule 62(7). At this stage I confine myself to
the
observation that if Parliament resolves to replace a two-tier appeal structure with a single tier and it makes transitional provision
for
pending cases, all in
the
interest
of
streamlining procedures, it is not bound to carry forward into
the
new system every procedural protection which transitional applicants had under
the
previous system. If there is a protection gap, it may raise questions
of the
kind that I shall next consider. However, when, as here,
the
transitional provision in issue is in clear and unambiguous language, no true question
of
construction arises. As a matter
of
construction, to borrow
the
words
of the
AIT, Rule 62(7) "means what it says".
The
fact that it admitted
of
three reservations or exceptions in JM does not mean that it can be turned on its head so that thesis becomes antithesis.
The
points which Mr Husain seeks to make are more relevant to
the
next and more difficult issue.
The
challenge to Rule 62(7): vires and nationality
The
submissions on behalf
of the
Appellants relating to
the
legal validity, as opposed to
the
construction,
of
Rule 62(7) range far and wide. It seems to me that they can be reduced to this: (1)
The
Rule is beyond
the
powers upon which
the
Lord Chancellor relied when laying it before Parliament because
the
enabling provision, section 106(1A)
of the
2002 Act, obliged him "to aim to ensure … that
the
rules are designed to ensure that proceedings before
the
Tribunal are handled as fairly, quickly and efficiently as possible". It is said that Rule 62(7) operates in an inherently unfair way. (
2
) Alternatively, if Rule 62(7) is intra vires, in
the
sense
of
being enabled by section 106(1A), it is nevertheless susceptible to a Wednesbury challenge on
the
ground that no reasonable Lord Chancellor or indeed Parliament could promulgate a Rule which has
the
effect
of
preventing an appellant to
the
AIT from raising by way
of
amendment or renewal an arguable and potentially meritorious point, provided that it can be considered without injustice to
the
other side – especially if it relates to an arguable breach
of
a right protected by
the
Refugee Convention or
the
ECHR.
- Before considering these submissions, it is necessary to refer to
the
three exceptions or reservations to Rule 62(7) referred to by
the
AIT in JM and accepted by Mr Eadie. It seems to me that
the
first two do not advance
the
present submissions any more than they could on
the
issue
of
construction.
The
AIT is bound to consider a ground
of
appeal sanctioned by an order made by a High Court Judge on statutory review because that is
the
whole purpose
of
statutory review under
the
2002 and 2004 Acts and it is implicit in their operation. Rule 62(7) was not and could not have been designed to affect that. Similarly with
the
second exception or reservation illustrated by SS (Somalia).
The
AIT is a statutory tribunal with jurisdiction defined and limited by statute. Consequently, Rule 62(7) was not and could not have been designed to prevent
the
Tribunal from ensuring that it remains within its jurisdiction. In truth, these are not "exceptions" at all. They are normative controls flowing from
the
structure
of the
primary legislation.
The
third
of the
matters referred to in JM, namely Robinson obvious points, arises in a different way. Robinson, which was decided in 1997, was a judicial artefact,
the
purpose
of
which was to ensure, within a narrow compass, that obvious points
of
Refugee Convention law did not go unconsidered, with
the
risk that this country might find itself to have breached its international obligations. It has survived
the
subsequent legislation: see Miftari
v
SSHD [2005] EWCA Civ 481. Its intended catchment was points not pleaded or advanced on behalf
of the
appellant rather than ones sought to be raised by or on his behalf by amendment or renewal. It will be necessary to consider it further in
the
course
of
this discussion.
(1) Vires
- Mr Husain's starting point is
the
statement
of
Laws J in R
v Secretary of State for
Social Security, ex parte Sutherland [1996] EWHC Admin 208, at para 19:
"… where
the
executive has been allowed by
the
legislature to make law, it must abide strictly by
the
terms
of
its delegated authority."
- No one questions that. It is therefore necessary to look first at those terms. Section 106(1A)
of the
2002 Act provides that, in making
the
relevant rules,
the
Lord Chancellor
"shall aim to ensure –
(a) that
the
rules are designed to ensure that proceedings … are handled as fairly, quickly and efficiently as possible … "
- There are two significant features
of
that formulation.
The
first is that it is expressed not in terms
of
an unqualified obligation to ensure but as an obligation to "aim to ensure" that
the
rules are "designed to ensure".
The
second is that
the
ultimate criteria – "fairly, quickly and efficiently as possible" – do not all pull in
the
same direction.
The
demands
of
fairness have in a sense to be traded against
the
other criteria and vice versa. In my judgment, this formulation makes it very difficult to say that Rule 62(7) is outwith
the
enabling vires. Accordingly, I prefer to approach
the
matter on a Wednesbury basis.
(
2
)
The
Wednesbury challenge
- Put simply,
the
question here is whether a rule which prevents
the
Tribunal from considering
the
amendment or renewal
of
a ground
of
appeal which seeks to raise an arguable and potentially meritorious point
of
law, in
the
context
of the
Refugee Convention and/or
the
ECHR, satisfies
the
Wednesbury test
of
rationality.
The
case
for the
appellants is that Rule 62(7) creates an unacceptable protection gap. On behalf
of the Secretary of State
, Mr Eadie accepts that there is a gap. His submission is that, when one considers
the
position in
the
round, it is acceptable and not irrational.
- In developing his submission, Mr Eadie makes three points which seem to me to be incontrovertible. (1)
The
test to be applied is
the
simple Wednesbury test, rather than
the
so-called "super-Wednesbury" test explained in R
v
Ministry
of
Defence, ex parte Smith [1996] QB 517.
The
authority
for
that proposition in this context is R (Javed)
v
SSHD [2002] QB 129, [2001] EWCA Civ 789, at paragraph 54. A restriction on
the
amendment or renewal
of
grounds
of
appeal is not, without more, a deprivation
of
a fundamental right. (
2
) In devising structures and procedures,
the
Lord Chancellor should be accorded a reasonable margin
of
discretionary judgment. (
3
) It is necessary
for
us to stand back and consider
the
structure and procedure as a whole. When we do so, we see (i) that we are concerned with a restriction which operates only at a preserved second-tier appeal; (ii) that an appellant who was refused leave to any extent by
the
IAT had access to
the
Administrative Court by way
of
statutory review; (iii) that a transitional appellant has had ample opportunity to formulate proper grounds
of
appeal; and (iv) that Rule 62(7) is concerned not with access to justice but with a limited procedural restriction in relation to a second-tier appeal during a period
of
time when,
for
good reasons,
the
appellate system is being changed from a two-tier to a single tier structure. In this respect
the
position is not as stark as that in R
v
SSHD, ex parte Saleem [2001] 1 WLR 443 which, upon proper analysis, is a case
of
denial
of the
fundamental right
of
access to justice.
- These are important observations but, in my judgment, they do not face up to
the
real problem with Rule 62(7).
For
one reason or another,
the
position
of
an appellant who had been granted permission to appeal to
the
IAT before 4 April 2005 may not have had his appeal optimally formulated at that date. He may have been refused permission on some grounds on a legally erroneous basis. There may be subsequent developments which are susceptible to presentation as legal errors on
the
part
of the
original adjudicator as explained in R (Iran)
v
SSHD [2005] EWCA Civ 982. There may be more mature considerations on
the
part
of the
appellant's legal advisers. As a result
of
any one or more
of
these or other considerations,
the
appellant may have
the
material to establish that
the
decision
of the
adjudicator that
the Secretary of State
has not caused this country to be in breach
of
its international obligations under
the
Refugee Convention on
the
ECHR was legally erroneous. Nevertheless, Rule 62(7) stands in his way.
- In my judgment, it is no answer to say that such an appellant may have had, but missed, an opportunity to apply
for
statutory review. That could only have arisen in relation to grounds wrongly rejected by
the
IAT and, in any event, it would not have been unreasonable
for
an appellant's advisers to have taken what we are told was
the
common but not universal course
of
resorting to
the
old Rule 20 before
the
IAT rather than statutory review. Nor is it any answer to say that obvious points will be picked up by
the
AIT on a Robinson basis. Robinson is concerned with
the
judicial grasping
of
obvious points which have not been advanced by or on behalf
of the
appellant, not with points which his advisers have advanced or wish to advance. At one point during
the
hearing we considered whether
the
way to mitigate Rule 62(7) might be to expand Robinson to cover rejected or new grounds but, after further reflection, no one is now inviting that course. In truth, it would be unworkable. An appellant who wished to enlarge his grounds would need to give notice to
the
respondent and to
the
AIT
of
his intention to make
the
application. At
the
hearing there would be two pleaded cases –
the
one originally permitted by
the
IAT and a second one, apparently not countenanced by Rule 62(7) but containing perhaps
the
most significant point now sought to be advanced.
- I have come to
the
conclusion that Rule 62(7) is fundamentally flawed.
The
significance
of
Robinson is in its demonstration
of the
role
of the
courts and
the
Tribunal in ensuring that
the
United Kingdom does not fall foul
of the
Refugee Convention, even where an obvious point
of
Convention law has been missed by
the
practitioners. It surely applies on
the
same basis to
the
ECHR, where
the
argument is even stronger because, by section 6
of the
Human Rights Act 1998, it is unlawful
for
a public authority to act in a way which is incompatible with an ECHR right and courts and
the
Tribunal are "public authorities"
for
this purpose: section 6(
3
)(a). There is then a further logical stage in
the
argument. If it is incumbent upon
the
AIT to consider and decide Robinson obvious points which have not been advanced by
the
appellant notwithstanding Rule 62(7), given
the
rationale
of
Robinson there is no rational basis
for
excluding and deciding points
of
equal force which
the
appellant draws to
the
attention
of the
Tribunal, even though they were not embraced in
the
grounds
of
appeal sanctioned by
the
IAT.
For
these reasons, I consider that, when he promulgated Rule 62(7),
the
Lord Chancellor fell into legal error and
the
Rule cannot survive
the
Wednesbury challenge. It is axiomatic that
the
fact that
the
Rule as laid before Parliament survived
the
negative resolution procedure does not put it beyond
the
reach
of
judicial review: see O'Connor
v
Chief Adjudication Officer [1999] 1 FLR 1200, 1210-1211, per Auld LJ and Javed (above).
- Having come to this conclusion, I would wish to hear counsel on
the
form
of
relief. Before that, however, it is necessary to say something about these three appeals. Until now I have deliberately considered
the
point
of
principle without reference to
the
facts
of the
three cases.
The
three appeals
(1)
MA
(
Sudan
)
- It is not necessary to dwell on
the
detail
of
this case. Mr Eadie accepts that, in
the
event
of the
point
of
principle being decided in favour
of the
appellants,
MA
's case must be remitted to
the
AIT to consider whether
the
grounds
of
appeal should be amended and, if so,
for
redetermination
of the
case by reference to
the
amended grounds.
(
2
)
AM
(
Serbia
)
- Mr Eadie does not make
the
same concession in relation to this case. He points to a passage in
the
determination
of the
AIT in which it is made clear that, even if it had not been constrained by Rule 62(7),
the
Tribunal would not have permitted
the
amendment that was sought. However, I do not find its reasoning persuasive. It seems to be predicated at least in part on
the
assumption that one
of the
points (risk
of
ill-treatment as a homosexual from his father as well as from others) sought to be raised was a wholly new point. In reality, it was not.
The
Adjudicator had referred to
the
appellant's evidence on
the
point but had not made a specific finding about it. There is also an issue as to whether another aspect
of the
appellant's case – whether he would be able to lead an openly homosexual life in Kosovo – which was properly before
the
AIT was properly considered by it. It is not clear to me that it was. This issue is
the
subject
of
recent jurisprudence, some
of
it being referred to in
the
grounds
of
appeal and
the
skeleton argument which were before
the
AIT. It is deserving
of
more consideration than it received in
the
decision under appeal. In my judgment
the
appropriate course is
for the
appeal to be redetermined by
the
AIT, differently constituted, on which occasion consideration can be given not only to
the
original grounds
of
appeal but also to
the
question
of
whether any amendment should be permitted.
(
3
)
MA
(
Pakistan
)
- It is a striking feature
of
this case that, if
the
AIT had not considered itself to be constrained by
the
refusal by
the
IAT
of
permission to appeal on some grounds and by Rule 62(7), it would have wished to broaden its remit. It expressed serious misgivings about aspects
of the
determination
of the
adjudicator which it felt powerless to consider. Moreover, Mr Cooray submits, correctly in my view, that there is a potential interplay between ground 1 (upon which
the
IAT granted permission) and ground 7 (upon which permission was refused). It seems to me that
the
appropriate course in this case is
for the
case to be remitted to
the
AIT
for
redetermination, including consideration
of
whether
the
appellant should be permitted to reopen his original ground 7.
Conclusion
- It follows that I would allow all three appeals. In so doing, I make it clear that this decision is not intended to give
the
green light to large numbers
of
applications to amend in transitional cases. It is not expected that
the
AIT will readily permit amendments save where it is persuaded that
the
proposed amendment relates to a point
of
law which is clearly arguable and potentially meritorious in
the
context
of
a possible breach
of
international obligations under
the
Refugee Convention or
the
ECHR. It does not follow from
the
existence
of the
power which I have identified that a party has an unfettered right either to reargue
the
case which he made when applying
for
permission to appeal to
the
IAT or to develop new grounds. It is unlikely that any refusal
of
an amendment could be successfully challenged in this Court save
for
perversity on Wednesbury grounds.
- If my Lords agree, I would direct that counsel
for the
appellants make submissions in writing within seven days, addressing
the
form
of
relief in relation to
the
point
of
principle and
the
precise wording
of the
order
for
disposal in each case. Counsel
for the Secretary of State
should respond in writing within seven days thereafter. Nothing in this judgment should be read as indicating any view as to
the
eventual outcome
of
any
of
these cases when they are redetermined in
the
AIT. Moreover, its concern is exclusively with
the
position in transitional cases and not with
the
regime with new, post 4 April 2005 cases, in respect
of
which there may be a need
for
further consideration.
Lord Justice Hughes:
- I agree.
The
President
of the Family Division:
- I also agree.
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