Swash v Secretary of State for the Home Department [2006] EWCA Civ 1093

Case No C5/2005/2685[2006] EWCA Civ 1093
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26th July 2006
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE BUXTONLORD JUSTICE SEDLEY
Between
Mr Rafiq SWASHAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Alun Jones QC & Amanda Jones (instructed by Messrs Malik & Malik) for AppellantLisa Giovenetti (instructed by Treasury Solicitor) for Respondent
JudgmentLord Phillips CJ
[1]This appeal is brought, with permission granted by Sedley LJ, pursuant to section 103B of the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The decision appealed against is the dismissal, on reconsideration, by the Asylum and Immigration Appeal Tribunal (‘the Tribunal’), of an appeal by Mr Swash against the decision of the Secretary of State dated 10 September 2004 refusing to grant the appellant further leave to remain in the United Kingdom or to vary his leave to remain in the United Kingdom. The appeal raises a point of general application regarding the approach to be adopted by the AIT on reconsideration of an appeal when it has concluded that there was an error of law in the original determination which vitiated all findings of fact made by the Immigration Judge. The procedural history[2]The appellant is a national of Afghanistan, of Turkmen ethnicity. He was born on 30 March 1986. He arrived in the United Kingdom on 9 July 2002, aged 16, and claimed asylum or leave to remain on the ground that he would face mistreatment due to imputed political opinion and ethnicity. For the purposes of this claim the appellant completed a Statement of Evidence, but was not interviewed because of his youth. His claim for asylum was rejected on 16 August 2002, but he was granted exceptional leave to remain until he reached the age of 18, on the ground that he was an unaccompanied child for whom there was no adequate reception available in his own country.[3]When he reached the age of 18, the appellant applied for further leave to remain. He was interviewed on 5 September 2004 and his application was refused on 10 September 2004.[4]The appellant appealed, contending both that he was entitled to asylum and that to remove him to Afghanistan would infringe his rights under articles 2 and 3 of the European Convention on Human Rights. For present purposes it suffices to record that the immigration adjudicator, Mr Lawrence dismissed his claim on the principal ground that he did not believe the most material parts of his evidence.[5]The appellant then applied for permission to appeal to the Immigration Appeal Tribunal. His application had not been heard by 4 April 2005, when the provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 came into force that created a unified appeal system for Immigration and Asylum claims. Under the transitional arrangements his appeal fell to be dealt with as an application to the Tribunal for reconsideration of the adverse decision.[6]On 14 April 2005 a Senior Immigration Judge ordered reconsideration of the decision on the ground that it might contain an error of law and that there was a real possibility that the Tribunal would reach a different decision on reconsideration.[7]On 26 August 2005 there was a hearing before a panel consisting of a Senior Immigration Judge and one other Immigration Judge. The panel held that there had been errors of law in the determination in that:
“the Adjudicator did not apply the correct standard of proof when considering the evidence, that he did not place appropriate weight on the documentary evidence which was provided by the Appellant and also (although this was not highlighted in the grounds) did not properly consider the Expert’s report.”
This decision constituted the first stage of the reconsideration by the Tribunal. The proceedings were then transferred in order that there could be a fresh hearing before another Immigration Judge, Mr Suchak. That judge also found that material parts of the appellant’s evidence were not credible. He substituted a decision dismissing the appeal both on asylum grounds and on human rights grounds.[8]The judge’s reasons disclosed that he had knowledge of the reasoning of the adjudicator who had made the decision on the original appeal. Thus at paragraph 40 he stated:
“The Immigration Judge at the previous hearing did not find him to be a credible witness. It is therefore essential that I reach a conclusion as to the appellant’s credibility.”
At paragraph 44 he stated:
“The appellant was asked about his efforts to make contact with his family in Afghanistan. In his interview he stated that he did not know what had happened to them. I am aware that the previous Immigration Judge considered that his credibility was damaged relating to this part of his evidence. The appellant told me that he had tried through Red Cross but without any success. He was aware that credibility was in issue relating to this but it did not occur to him (or his advisers) that some documentary evidence of his efforts to locate his family should be produced.”
The grounds of appeal[9]The following grounds of appeal were advanced by Mr Alun Jones QC:
“Ground One – the Immigration Judge was wrong to refer to the first determination without being invited to do so, without inviting submissions about whether or not it should be read, and without telling the parties of his intention. Ground Two – the Immigration Judge appears wrongly to have been influenced by the previous adverse credibility finding.”
In supporting these grounds Mr Jones submitted that a practice that had been established under the previous regime should have been applied when the reconsideration was adjourned to Mr Suchak. In order to consider this submission it is necessary to compare the two regimes. The legal framework[10]Under the un-amended 2002 Act an initial appeal against an immigration decision lay to an immigration adjudicator. Section 101 of the Act gave a right of appeal, with the permission of the Immigration Appeal Tribunal (IAT), to the IAT against the adjudicator’s determination on a point of law. By section 102 the powers of the IAT on such an appeal included remitting the appeal to an adjudicator for further fact finding, often in effect a complete re-hearing. Remission for a re-hearing was a procedure in force under earlier legislation in 1996, when the practice relied on by the appellant has its origin.[11]The new regime under the amended 2002 Act merges the adjudicators and the IAT into a single appellate Tribunal. An appeal from the decision of the Secretary of State lies to the Tribunal on a point of law. An appeal lies from the Tribunal to the High Court for an order requiring the Tribunal to reconsider its decision on the ground that it made an error of law. Under a filter mechanism, intended to be temporary, such an appeal has first to be considered by the Tribunal itself which may, as it did in this case, direct that the appeal be reconsidered – see paragraph 30 of Schedule 2 to the 2004 Act. It was pursuant to this procedure that the order for reconsideration of Mr Lawrence’s decision was made on 14 April 2005. The practice relied on by the appellant[12]In R v Secretary of State for the Home Department ex parte Ahmed Aissaoui [1997] Imm AR 184 the IAT had remitted an appeal to be heard de novo by another adjudicator. The second adjudicator, when dismissing the appeal, recorded in his determination that the determination of the first adjudicator had been on file and that he had “had the advantage of having perused it”. The applicant sought permission to move for judicial review on the ground that it had been improper for the second adjudicator to have read the determination of his colleague. In dismissing the application, Collins J held at p. 187:
“It is no doubt inevitable that the previous determination will be on the file. It may be inevitable that the adjudicator looks at it. It seems to me that there is no reason in principle why he should not, provided, of course, that he does not allow it in any way to influence the decision that he has to make on a fresh consideration of the whole case. It may be that it would be desirable that steps were taken not to include such a decision in the papers, because that would avoid any question of a suggestion that the adjudicator had been wrongly influenced in any way by it; but that does not seem to me to be in the least essential and adjudicators can surely be trusted to carry out their functions in a proper fashion.”
[13]In Dritan Gashi v Secretary of State for the Home Department (2001) Appeal No: 01TH02902 the IAT, after referring to the statement by Collins J that I have just cited, set out the following principles by way of guidance:
“(1) As a general rule it is best practice for an adjudicator hearing an appeal de novo not to read the Determination of a previous adjudicator unless expressly invited to do so, so as to avoid any misunderstanding of what has influenced him. There is no prohibition, however, on reading the Determination. (2) If the adjudicator considers it appropriate to read the Determination, he should not do so until he has told the parties of his intention, and invited their comments. (3) There will be instances where parties invite him to read the Determination because, for example, the findings of fact have been accepted, and the re-hearing is to consider the conclusions to be drawn from those findings. This invitation should be recorded in his Determination. (4) The previous record of proceedings, and not the earlier Determination, can if necessary provide confirmation of what evidence was given at a previous hearing. (5) If an Appellant does not attend the de novo hearing, an adjudicator may rely on the evidence given at the previous hearing when forming his independent view of the case, but without reference to an earlier Determination. (6) Parties seeking to challenge a Determination on the basis that an adjudicator has read a previous Determination should only do so where there are clear grounds for challenge, other than the mere fact of reading the Determination. Reading a previous Determination of itself is not a proper ground of appeal.”
Submissions[14]Mr Jones submitted that neither Collins J’s statement nor the principles laid down in Gashi went far enough. It conflicted with fair process for a judge conducting a re-hearing to have before him a previous decision where the facts found in that decision had been invalidated by appeal. Such a situation gave rise to an appearance of bias and was, of itself, sufficient grounds to invalidate the decision on the re-hearing. Mr Jones recognised, however, that it was not necessary to pitch his case as high as this. By way of alternative submission, he contended that the previous practice should be followed under the new regime and that if, contrary to that practice, the judge conducting the re-hearing had before him the original decision, it was essential that he should make this known to the parties, so that they could register any objection, or deal with any matters in the first determination that they feared might influence the judge.[15]For the Secretary of State, Miss Giovannetti submitted that the principles laid down in Gashi had no application to the new regime introduced by the 2004 Act. Those principles applied where, under the old regime, the IAT ordered that an appeal should be determined de novo by a different adjudicator. Under the new regime, reconsideration had to be conducted by a single body, the Tribunal, and it was implicit in the scheme that that body would have to consider the original decision in order to perform its statutory function of reconsideration.[16]In support of this submission Miss Giovannetti referred us to the following passage in the judgment of the Tribunal, presided over by Mr Ockelton, in AH (Sudan) v Secretary of State for the Home Department [206] UKAIT 00038 at paragraph 26:
“If (despite some material error of law) an issue or matter has been properly and satisfactorily dealt with in the first decision, there is no reason why further time should be spend on it in the reconsideration. Although the Tribunal reconsidering the appeal has all the grounds of appeal before it, it also has – indeed it has just been considering – the previous decision, and it must be at liberty to adopt those parts which it considers are sound. The principle perhaps goes further that that. Because the process is a reconsideration, we would incline to the view that in general the Tribunal should always adopt those parts of a previous decision which are not shown to be unsound.”
Discussion[17]I was not persuaded by Mr Jones that if the second judge had before him the decision of the first judge a presumption of bias would arise. In civil litigation in England, where, on appeal, a case is remitted for a re-hearing by a different judge, it is common place that that judge will have before him the original decision. This is also, I believe, the position under the civil law systems, where there is usually an automatic right of appeal on law and fact. I would endorse the conclusion of Collins J in Aissaoui that an adjudicator, or immigration judge, can be trusted to carry out his duties without being improperly influenced by a decision that has been held to be invalid.[18]Equally I was not wholly persuaded by Miss Giavonnetti’s argument. The passage from AH upon which she relied was not addressing the situation where, in a case such as the present, the AIT holds that an error of law has invalidated all findings of fact made by the original Immigration Judge. Rule 31(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides:
“Where an order for reconsideration has been made, the Tribunal must reconsider an appeal as soon as reasonably practicable… .”
Where the Tribunal decides that the original Tribunal made an error of law Rule 31(3) requires the Tribunal to substitute a fresh decision to allow or dismiss the appeal. The following part of the AIT Practice Direction is relevant to this stage of the proceedings:
“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.”
This is precisely what occurred in the present case.[19]I can see no reason why, as a matter of procedure, when the AIT transfers proceedings to a new Immigration Judge in order for that judge to make a fresh decision whether to allow or dismiss an appeal, the principles in Gashi should not be capable of application. Having said that, it seems to me that there are good reasons for not applying those principles to the new regime.[20]Miss Giovannetti is correct to say that the new regime requires the Tribunal to consider the original determination. In many cases the error of law identified by the Tribunal will not invalidate all, or indeed any, of the facts found. In such circumstances, where the Tribunal transfers the proceedings to enable additional facts to be found, the Immigration Judge to whom the proceedings are transferred will need to see the original decision. I consider that it would not be satisfactory to attempt to formulate principles governing when the judge should and when he should not see the original decision. It seems to me more satisfactory that, as a general rule, a judge to whom proceedings are transferred in the course of the reconsideration of an appeal should receive the original decision. Even if the findings of fact are invalidated for a reason of law, such as the application of the wrong standard of proof, issues identified in the original decision may well be of assistance to the judge to whom the transfer has been made. In those circumstances the judge must be careful not to be influenced by the discredited findings, but that is a typical requirement of a judge and one well within a judge’s capability.[21]Special circumstances may arise where the interests of justice require that proceedings be transferred to a judge who is not aware of the terms of the original determination, although I believe they will be rare. In such circumstances, the panel of the Tribunal which identifies the error of law can direct that the proceedings be transferred to a judge who is not to be provided with the original determination. In the absence of such an order, the parties should proceed on the premise that the judge to whom the matter is transferred will have received the original decision. If any application is to be made to him or her not to read it, it must be made promptly after transfer is ordered and must give proper grounds. What happened in this case?[22]This appeal has proceeded on the premise that the decision of Mr Lawrence was before Mr Suchak. I am not certain that this premise is correct. The statement “I am aware that the previous Immigration Judge considered that his credibility was damaged relating to this part of his evidence” does not strike me as the language of a judge who had the previous decision before him. Plainly, however, in some way or another Mr Suchak had learnt of the content of the previous decision. We have no documents that evidence any directions or information that may have been given when the proceedings were transferred to Mr Suchak.[23]What is clear, for Mr Jones’ junior, who represented Mr Swash before Mr Suchak confirms this, is that the advocates on each side proceeded on the assumption that Mr Suchak had no knowledge of the findings in the previous decision and no mention was made of it in the course of the hearing. The question arises whether this state of affairs rendered the proceedings unfair, or casts doubt on Mr Suchak’s decision, so that it should be set aside and a further reconsideration ordered.[24]Mr Jones submitted that the passages in Mr Suchak’s decision at paragraphs 40 and 42 demonstrated that he had been influenced in his findings by those made by Mr Lawrence. I do not agree. All that those passages indicate is that the Immigration Judge was aware that the appellant’s credibility was in issue and that this was a matter which required particular care. This would in any event have been apparent from the appellant’s cross-examination by the advocate for the Secretary of State.[25]I have carefully considered the reasons given by the Immigration Judge for his decision. I can find no fault with them – indeed Mr Jones did not suggest that there was any ground for criticising them other than their reference to the previous decision.[26]For these reasons I have concluded that there is no reason to question the decision reached in this case and would dismiss this appeal.

Lord Justice Buxton:

[27]I agree that the procedure in future should be as the Lord Chief Justice sets out in §§ 20-21 of his judgment. I would venture respectfully to add only two further observations.[28]First, it is highly desirable that this area of the law, already encumbered with what are, or at least what are perceived by practitioners to be, technical rules of procedure, should be as simple and straightforward as possible. That objective would not be advanced by placing on the President of the AIT an obligation to formulate rules, or to make decisions, about the permissibility of the second judge seeing the first determination; and much less so if, as I would fear, a satellite jurisprudence were to grow up round that obligation.[29]Second, it would not of course be acceptable to take such an uncomplicated view if that threatened the just resolution of the appeal by the second judge. But we are here dealing with experienced judges, well able to identify what in the first determination they can properly take into account.

(i) of its judgment in Field v Barnet LBC [2004] EWCA Civ 1307:

“Trained decision-makers should not be treated as inferior beings intellectually unable to approach the task with an open mind. The fair-minded and informed observer would have that in mind.”
It is that same assurance of the professionalism of the Immigration Judge that enables a realistic approach to be taken to the present issue of whether and in what circumstances he should be permitted to see a previous determination. Lord Justice Sedley:[30]I agree that this appeal fails on the grounds explained by the Lord Chief Justice. For my part, however, I would wish to give a somewhat different emphasis to the principles which he sets out at paragraphs 20 and 21 of his judgment.[31]Rule 32(1) of the procedure rules allows “any note or record” taken at a previous hearing to be used in evidence. This answers the need, which will arise from time to time, to compare what is being said at a remitted reconsideration hearing with what was said at the original hearing. But it says nothing about the use of the original determination itself.[32]While I agree that there is no reason in principle why this should not be seen by the immigration judge conducting the substantive reconsideration, there may be case-specific reasons for his or her not seeing them. Such reasons are likely to relate to the fairness, or the appearance of fairness, of the second hearing. How common or rare such cases will be I do not think we can say, but I would respectfully endorse what Collins J said in Ex parte Aissaoui [1997] Imm AR 184, at 187:
“It may be that it would be desirable that steps were taken not to include such a decision in the papers, because that would avoid any suggestion that the adjudicator had been wrongly influenced in any way by it; but that does not seem to me to be in the least essential, and adjudicators can surely be trusted to carry out their functions in a proper fashion.”
In this light it would be open to the President of the AIT, if he thinks it appropriate, to give directions about the routine inclusion or exclusion of the superseded determination when a reconsideration is transferred.[33]This question, it should be stressed, is distinct from the question whether a transferred reconsideration hearing should reopen all or only a part or parts of the original determination. Issues of finality, which may arise in such cases, do not arise here.