R v Secretary of State for the Home Department [2006] EWCA Civ 446

Case No C5/2005/1903[2006] EWCA Civ 446
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
(AIT NO. HX/03926/2003)
Venue Royal Courts of JusticeDate Thursday, 16 th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE RIX
LORD JUSTICE DYSON
Between
RAppellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M GILL QC (instructed by Messrs Maurice Nadeen & Atif Solicitors, LONDON, SW15 7TR) appeared for Appellant.MS P WHIPPLE (instructed by Treasury Solicitor, LONDON, WC2B 4TS) appeared for Respondent.
J U D G M E N T

LORD JUSTICE PILL:

[1]This is an application for permission to appeal, with the appeal to follow if permission is granted, from a determination of the Immigration Appeal Tribunal promulgated on 25 March 2004. Permission to appeal is granted.[2]The appellant, Mr R, is from Pakistan, a citizen of that state. He arrived in the United Kingdom on 14 November 1999 and claimed asylum on arrival. His application was refused by the Secretary of State for the Home Department for reasons set out in a letter. Removal directions were issued.[3]The appeal first went before an adjudicator in 2001 and the adjudicator’s determination is dated 15 March 2001. Permission to appeal to the IAT was given and by a determination of 11 February 2004 the case was, by consent, remitted to be heard by a different adjudicator. It came before an adjudicator, whose determination was dated 25 March 2004. The appellant was granted leave to appeal to the tribunal against a determination which dismissed the appellant’s appeals, both on human rights grounds and on asylum grounds. The tribunal held, in its determination of 15 June 2005, that the adjudicator had made an error of law but that it was not a material error. The adjudicator’s decision stood both in relation to the Refugee and the European Convention on Human Rights grounds.[4]It is accepted on behalf of the Secretary of State that the decision of the tribunal cannot stand and that there should be a remission to the tribunal as now constituted. The remaining issue is as to the terms upon which that remission should occur.[5]The tribunal considered the evidence before the adjudicator and the findings of fact. The tribunal stated at paragraph 7: “Rather, the Adjudicator has made an error of law in failing to look at the totality of the evidence, the objective evidence and the claim set in that context”.[6]At paragraph 10, the tribunal stated:
“In those circumstances, therefore, we find that it would be appropriate to take the appellant’s claim at its highest in terms of what he said happened before his departure and afterwards, in order to analyse what is the risk of return.”
[7]The evidence was then considered. Paragraph 17:
“In those circumstances, therefore, taking all that evidence into account and taking the appellant’s case at its highest, we accept that much of Mr Costello’s submissions about the poverty of the language to express proper reasons and the inadequacy of using rhetorical language certainly makes an unsatisfactory determination but, at the end of the day, notwithstanding identifying those errors of law, we do not find that even taking its case at its highest they make a material difference to the outcome of the case.”
[8]Paragraph 18:
“It did not seem to us, reflecting on the matter, that there was any purpose served, bearing in mind we were taking the case at its highest, that any further evidence by oral hearing was required.”
[9]Further consideration is given to facts and the tribunal continued:
“In those circumstances we, like the Adjudicator, have not had the material which would go to show a real and continuing risk of being ill-treated for political or other reasons.”
[10]It is accepted on behalf of the Secretary of State, and we agree, that the tribunal, having found an error of law in the adjudicator’s consideration of the evidence, did not itself conduct an adequate analysis of that evidence, and their failure to conduct that analysis amounts to an error of law. What it appears to me that the tribunal were doing was to approach the case on the basis that the factual evidence in favour of the applicant could, for present purposes, be accepted because it was not established that, taking the best view of that evidence, there was a risk on return. In our judgment that issue could not, however, be considered adequately without there having been a better analysis of the evidence and the limitations which had been found in the adjudicator’s approach to it than the one in fact conducted.[11]In those circumstances, Mr Manjit Gill QC, on behalf of the appellant, submits that the case should be remitted to a differently constituted tribunal, with a view to there being a complete rehearing. The Secretary of State takes a narrower view, and in her written submissions Miss Whipple states that there should be a direction to the AIT to consider the matter in light of the error of law found to be in the adjudicator’s determination, but otherwise the tribunal should decide the next steps in the case. On behalf of the appellant it is submitted that the tribunal should be directed that the reconsideration should be limited to the question whether, taking the appellant’s factual case at its highest, there is a future risk of persecution.[12]I add one further point, though it is not in my judgment material to the issue: this is a transitional case within the meaning of Rule 62 of the Asylum and Immigration Tribunal Procedure Rules 2005. This is a case where, under Rule 62(1), there was an application to the tribunal pending immediately before 4 April 2005. In those circumstances, Rule 62(7) provides that the reconsideration which occurred:
“Shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal.”
Neither party takes any point on that and, in my judgment, the permission to appeal to the tribunal was sufficiently broad to enable the tribunal to consider the issue as it did. Tribunal granted permission to appeal.”[13]In my judgment, the remission should be to a differently constituted tribunal. It should be for the purpose of a full fact-finding exercise. That should include giving the appellant an opportunity to give evidence. The tribunal should approach the evidence afresh and make its own findings of fact and draw its own conclusions in the case, and these should not be influenced by findings of fact made on previous occasions.[14]Mr Manjit Gill makes the further submission that the tribunal should be directed by this court not to read the previous determinations. He relies on the decision of the IAT in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Imm AR 1, where Mr Ockelton (Deputy President) said at paragraph 29:
“The law relating to the previous adjudicator’s determination when an appeal is remitted is of no relevance here. It is well-established that when an appeal is remitted for rehearing an adjudicator should have no regard to any previous determination, and should not even look at it except with the consent of all parties. But that is because the previous determination has been set aside. In cases such as the present, the determination has not been set aside. It remains in full force as the determination of the appellant’s original claim.”
In this case, too, the decision of the Adjudicator stands, but we do not regard that as a reason why, in this case, there should not be a full reconsideration of the evidence with a view to making findings of fact.[15]Mr Manjit Gill accepts that what the Vice-President said in that case is a departure from a practice which had been established in 1997 by Collins J and had been followed since that time. For the Secretary of State, Miss Whipple has made enquiries and her information is that, while for a time Mr Ockelton’s guidance on this point was followed, it is now longer followed, at least not invariably. It may be that there is no consistent practice at present in this respect.[16]Permission has been granted to appeal to this court on the point. In Swash v Secretary of State, C/2005/2685, granting permission on a number of grounds, Sedley LJ stated that the previous practice to which his attention had been drawn, the 1997 practice: “Needs reconsideration in the light of the Convention”; that is the European Convention on Human Rights.[17]It would not be appropriate for this court to make detailed comment upon an issue which is due for consideration in a contested case. The guidelines mentioned by Mr Ockelton were considered in this court in Djebbar v Secretary of State [2004] EWCA Civ 804. No specific reference to this aspect of the guidance appears in the judgments of this court. The court expressed the general principle as follows:
“The guidance is that the fundamental obligation of every special adjudicator independently to decide the appeal in respect of each new application on its own individual merits was preserved.”
The court does not apply principles of res judicata or estoppel:
“It would be positively disadvantageous for the Court to seek to invite it.”
[18]I respectfully agree with that principle. Applying it to the present application, it should in my judgment be borne in mind that there are substantial implications if the practice were to be as Mr Manjit Gill submits it should. For example, were a judgment of this court in a contested case where a remission was ordered, to be available to the tribunal, it would include almost inevitably extracts from and comments upon the earlier decision. Moreover, the tribunal would be entitled, as Mr Manjit Gill accepts, to look at a written statement of a witness which was before the adjudicator, but not, if the practice were to be as he submits it should, to permit the further evidence which the appellant gave to the tribunal in examination-in-chief and by way of cross-examination, to be before the tribunal which now has to consider the case. Mr Manjit Gill accepts that there could be application, and exceptions may be made, but the implications in my judgment are very considerable.[19]That being so, I would not be prepared to give the direction which counsel seeks. I would leave this to the tribunal to decide. They should first consider the judgment of this court and they may see fit to give an opportunity to counsel then appearing for the appellant to make the present submission without the tribunal having first considered the earlier decisions.[20]Beyond what I have said, I would direct that the conduct of the hearing be entirely a matter for the tribunal, applying its expertise including its expertise on procedural issues such as this one. On the basis I have indicated, I would allow this appeal.

LORD JUSTICE RIX: I agree.

LORD JUSTICE DYSON: I also agree.

Order

Application granted. Appeal allowed.