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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HC (2005 Procedure Rules ultra vires?) Iran [2005] UKAIT 00139 (06 October 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00139.html Cite as: [2005] UKAIT 139, [2005] UKIAT 00139, [2005] UKAIT 00139 |
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HC (2005 Procedure Rules ultra vires?) Iran
[2005] UKAIT 00139
Date of hearing: 04.10.2005
Date Determination notified: 06 October 2005
John Freeman
and
HC |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
This decision is reported for what we say at §§ 9-18 on the question of whether the Home Office are obliged to search NASS records for the address of any absent appellant, as well as on the point in the key-word.
It is not sufficient to rely on a procedural point, an applicant in the [appellant]'s position must condescend to the merits of his challenge to the adjudicator's decision.
Where the reconsideration is pursuant to an order under section 103A –
a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and
b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand.
If we are right in thinking that Makke is to be taken as applying to the new (2004 Act) procedure, in the light of the change in the legislation since the events with which it dealt (first effected in the 2002 Act, as originally enacted) requiring an error of law at first instance to found any further appeal (or now reconsideration), then it follows that the grounds must show some error of that kind affecting the merits of the decision. In this case they did not, so the appeal would fail in limine.
An adjudicator must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative –
a) has been given notice of the date, time and place of the hearing; and
b) has given no satisfactory explanation for his absence.
1. there is a duty on the part of the Secretary of State not knowingly to mislead in the material he places before the [appellate authorities];
2. "knowingly" embraces that which he ought to have known;
3. a breach of that duty may found judicial review on the basis that either
a. the decision was reached on a "wrong factual basis"; or
b. the proceedings were tainted with unfairness.
Judicial review was granted on that ground on the basis (see § 14) that "… there was potentially significant material [filed in Senköy] which officials knew or ought to have known materially detracted from the material which was still being advanced as "recent and authoritative" even though (§ 15) the judge declared himself "… anxious not to impose an unfair burden on the Secretary of State or to express myself in a way which might be thought to expose his officials to undue expectations in future cases."
If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or even perhaps inefficiency, and the result is to deny justice to an applicant, I would be very sorry to hold that the remedy of judicial review was not available.
(1) for a party to apply for reconsideration "on the grounds that the Tribunal made an error of law"; but
(2) The …court may make an order …
a. only if it thinks that the Tribunal may [our emphasis] have made an error of law …
What follows such an order is provided for, as we have seen (at 7) by r. 31.2; but Mr Toal argued that this was not the intention of Parliament in enacting § 103A at all. His argument is in effect that the possible error of law in § 103A (2) was to be the sole foundation for a complete reconsideration in terms of §§ 84-86 of the 2002 Act, applying originally to first instance appeals before an adjudicator, and left in force by its successor in relation to those before an immigration judge.
may make provision about reconsideration of a decision pursuant to an order under section 103A (1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard).
We cannot imagine any clearer statutory power than that to make the provisions set out in r. 31.2. While in the absence of any ambiguity, there would have been no discretion to refer to Hansard, Mr Toal made it clear, when we asked him, that he had no such material to show that Parliament meant otherwise. It would certainly have represented a complete departure from the approach set out in CA [2004] EWCA Civ 1165. While Mr Toal did not shrink from that suggestion, and it would of course have been open to Parliament in enacting a new (if piecemeal) statutory scheme, there is nothing whatever to show that was intended.
The original Tribunal did not make a material error of law and the original determination of the appeal stands.
John Freeman
approved for electronic distribution