V, R (on the application of) v Asylum and Immigration Tribunal & Anor [2009] EWHC 1902 (Admin)

[2009] EWHC 1902 (Admin)Case No CO/3479/09
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/07/2009
Before
MR JUSTICE HICKINBOTTOM
Between
The Queen on the application of VClaimantAsylum and Immigration TribunalDefendant
Geoffrey Robertson QC and S Chelvan (instructed bySolicitors Unit, Immigration Advisory Service) for Claimant for The Defendant did not appear.Steven Kovats (instructed by the Treasury Solicitor) for Interested PartyHearing Hearing dates: 8 July 2009
Judgment

Introduction

[1]The claimant, V, was born on 18 October 1987. He is a Colombian national who entered the United Kingdom on 1 August 1989, as a 22 month old baby, with his mother, and has resided in this country ever since.[2]He was granted exceptional leave to remain until 25 April 1999, in line with his mother who had applied for refugee status. A later application for indefinite leave in line with his father was unsuccessful. On 10 November 2005, the claimant was refused registration as a British citizen on the grounds of his character and conduct. On 25 November 2005, he requested indefinite leave to remain on the basis of 14 years residence in the United Kingdom. In the meantime, his father and three siblings (in 2002) and mother (2006) were all granted indefinite leave to remain, and his father has been granted British citizenship.[3]The claimant’s application for indefinite leave was refused by the Secretary of State for the Home Department (“the Secretary of State”, the Interested Party) in a decision dated 13 June 2008, which rejected his request and continued:
“Furthermore, in view of your history of criminal activity and your propensity to re-offend if you remain in the United Kingdom, the Secretary of State deems it to be conducive to the public good to make a deportation order against you…”
[4]The claimant appealed that decision to the defendant, the Asylum & Immigration Tribunal (“the AIT”). As a result, the Secretary of State gave further consideration to the matter and issued a supplemental letter dated 5 November 2008 which, although accepting that the claimant had indeed been in the United Kingdom for 14 years, upheld the earlier decision. In that supplemental decision letter, the Secretary of State relied on evidence that the claimant was a member of a criminal gang and, in particular, evidence of the(i) involvement in the murder of a 15 year-old youth, F, in 2006,(ii) his brandishing of a sawn-off shotgun earlier in the evening of F’s murder,(iii) three spent convictions, and(iv) criminal intelligence purportedly showing him as being associated with criminal gangs.[5]The appeal first came before the AIT on 9 December 2008, and directions were given that submissions would be heard in respect of a number of preliminary issues, notably: i) the appropriate standard of proof to be applied in respect of the factual matters upon which the Secretary of State’s decision to deport was based; ii) whether the AIT has jurisdiction to determine whether an appeal is an abuse of process; and iii) if so, whether, in the particular circumstances of this appeal, the Secretary of State was acting abusively in seeking to rely upon the evidence he had identified, as set out above.[6]Those preliminary issues were considered by a panel of the AIT (Senior Immigration Judge Pinkerton and Designated Immigration Judge G Davis, “the AIT panel”) on 22 December 2008. A reserved decision was promulgated on 13 January 2009 in which (at paragraph 27) the panel concluded:
“Having considered the submissions, both oral and written and having considered the authorities to which we were referred we find the following: (i) The AIT has no express power to determine whether conduct of an appeal by either party to it is an abuse of process. Although the concept of abuse of process has application in the field of immigration and asylum appeals, that application is restricted - EG (Abuse of process - legitimate expectation) Serbia and Montenegro [2005] UK AIT 74. It is not necessary or appropriate for us to attempt to define how the application is restricted since in this appeal we find that no substantial risk to the fairness of the proceedings has been shown to exist. (ii) In general the AIT is required to hear and determine on its merits a valid appeal although in an exceptional case a party can seek judicial review of an interlocutory decision of the Tribunal - R (AM (Cameroon)) v AIT [2008] EWCA Civ 100. (iii) We are not engaged in a quasi-criminal trial since deportation proceedings are not criminal proceedings. It is our task to hear and consider all relevant evidence placed before us. It will be open to either party to make submissions on admissibility and, if admitted, weight. (iv) If the Tribunal is said to have erred in law the appropriate remedy is to seek re-consideration after the determination of the appeal.”
The AIT panel consequently decided that the appeal should proceed to a full hearing on its merits.[7]It is that decision which the claimant now seeks to judicially review. On 27 April 2009, Philip Mott QC sitting as an additional judge of this court directed that there be a rolled-up hearing of the application for permission with (if permission be granted) the substantive application immediately to follow. He also directed that the claimant’s substantive appeal before the AIT (then listed for 5 May 2009 for four days) be stayed pending the resolution of these judicial review proceedings. This is the reserved judgment from that rolled-up hearing.

The Claimant’s Case

[8]With regard to the jurisdiction of this court, it was common ground between Mr Geoffrey Robertson QC for the claimant and Mr Steven Kovats of Counsel for the Secretary of State that the Administrative Court has jurisdiction to judicially review any interlocutory decision of the AIT. That must be correct. The AIT is a public body, entirely the creature of statute (created by section 81(1) of the Nationality, Immigration and Asylum Act 2002, “the 2002 Act”), and is as much subject to the supervisory jurisdiction of the High Court as any statutory tribunal or other public body. The issues before me are whether, in its determination of 13 January 2009, the AIT erred in law: if so, whether that supervisory jurisdiction should be exercised to grant relief: and, if so, what form that relief should take.[9]Mr Robertson submitted that the Secretary of State is being abusive of the AIT procedure in relying upon the evidence he does rely upon, or any part of it. The claimant having been acquitted of the murder of F, the issue as to whether he did kill him is res judicata and gives rise to a res judicata estoppel: the verdict of the jury cannot be questioned in any court for any purpose. Therefore, to allow evidence to be adduced before the AIT that he did murder F is impermissible. Particularly unconscionable, Mr Robertson says, is the reliance of the Secretary of State on a victim impact statement from the deceased’s mother, which can have no probative value and can only be prejudicial. The evidence that the claimant had a sawn-off shot gun earlier in the evening of the murder (which was never the subject of a criminal charge) came from an anonymous witness at the murder trial, and the claimant is unable effectively to challenge that evidence because he does not know who gave that evidence. Consequently, the Secretary of State should not be allowed to rely upon that evidence either. Similarly, the criminal intelligence evidence found in a statement from a police officer together with an 800-page CRIS report of data collected is mainly from unnamed second-hand hearsay sources. Again, these allegations cannot be effectively challenged because of the nature of the evidence and its anonymous sources. Finally, the previous convictions relied upon are spent, and relate to minor crimes committed when V was a youth. None is in relation to an offence of violence, and all were the result of guilty pleas before the Youth Court. To allow reliance upon these in a deportation appeal would be, Mr Robertson contends, contrary to the spirit of the Rehabilitation of Offenders Act.[10]That is the sum of the evidence that the Secretary of State relies upon to defend his decision to deport the claimant, in respect of which the burden of proof falls upon him: and, Mr Robertson submitted that, in seeking to rely upon any of this evidence, the Secretary of State is abusing the procedures of the AIT. He submitted that, consequently, the AIT erred in allowing the appeal to proceed to a hearing on its merits. The panel ought to have ruled that reliance upon any of this evidence is an abuse of process: and then used its inherent powers to prevent such an abuse, effectively (as I understand the submission) to strike out the Secretary of State’s defence of the appeal which would have had the inevitable consequence of the claimant’s appeal being allowed. An integral part of this error on the tribunal panel’s part, it was submitted, was their failure to determine the relevant standard of proof which the Secretary of State has to satisfy in relation to the facts which form the basis of his decision to that the claimant be deported.[11]For those reasons, Mr Robertson submitted that the AIT panel erred in law in their determination. With regard to relief, although there are other potential routes of challenge open to the claimant (at least in the future), Mr Robertson contended that this is an exceptional case in which the court’s jurisdiction should be exercised now to determine that the Secretary of State’s conduct of the proceedings before the AIT is abusive, to quash the AIT’s decision of 13 January 2009 not to find that the Secretary of State’s reliance on that evidence is an abuse, and to allow the appeal. The matter should then be remitted back to the AIT with a direction effectively to allow the claimant’s appeal which, without any evidence from the Secretary of State to support his decision to deport, is bound to succeed.[12]Those submissions gave rise to debate before me on a number of issues. First, does the AIT have jurisdiction to deal with an alleged abuse of process? Second, if the AIT has that jurisdiction, is the Secretary of State being abusive of the AIT’s process by relying upon the identified evidence with regard to the murder, the shotgun, spent convictions and official intelligence? Third, what is the correct standard of proof the Secretary of State must satisfy in relation to the facts upon which he bases his decision to deport? The vital initial question for me to consider in respect of each of those issues is, of course, merely whether the AIT panel erred in law in the manner in which they dealt with that particular issue.[13]However, before I come to that question, it would be helpful if I were to deal with the following: i) the relevant legislative background (paragraphs 14-21 below): ii) the parties’ contentions in relation to each of the three underlying issues I have identified (paragraphs 22-51 below): and iii) a fourth area of debate, namely the correct approach of this court to the exercise of its judicial review jurisdiction over an interlocutory decision of the AIT such as this (paragraphs 52-60 below).

Legislative Background

[14]By section 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”), a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. That is confirmed by paragraph 363 of the Immigration Rules (HC395) (“the Rules”), made under section 3(2) of the 1971 Act.[15]By section 5(1) of the 1971 Act:
“Where a person is under section 3(5)… above liable to deportation, then… the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.”
That is again confirmed by the Rules (Paragraph 362).[16]Section 82(1) and (2)(j) of the 2002 Act provides that, where the Secretary of State decides to make a deportation order, there is a right of appeal against that decision to the AIT. Section 86 provides: “(3) [The Tribunal] must allow the appeal in so far as it thinks that -(a) a decision against which the appeal is brought … was not in accordance with the law (including immigration rules), or(b) a discretion exercise in making a decision against which the appeal is brought… should have been exercised differently. (4) … (5) In so far as sub-section (3) does not apply, the Tribunal shall dismiss the appeal.” (a) a decision against which the appeal is brought … was not in accordance with the law (including immigration rules), or (b) a discretion exercise in making a decision against which the appeal is brought… should have been exercised differently.[17]The procedure of the AIT is governed by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No 230) (“the Procedure Rules”), made under section 106 of the 2002 Act, the overriding objective of which is set out in rule 4:
“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 interest of the parties to the proceedings and in the wider public interest.”
[18]The Procedure Rules give the AIT very wide powers to manage individual cases. Rule 43(1) provides that the tribunal may, subject to the rules themselves, decide the procedure to be followed in relation to any appeal for application. Rule 45(1) empowers the tribunal to give directions to the parties relating to the conduct of any appeal. Rule 45(4)(d)(i) empowers the tribunal to direct that a particular matter be dealt with as a preliminary issue.[19]So far as evidence is concerned, strict rules of evidence are waived by rule 51(1):
“The Tribunal may allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal…, even if that evidence would be inadmissible in a court of law.”
However, subject to an exception in relation to forged documents (which has no application in this case), “the Tribunal must not take account of any evidence that has not been made available to all the parties” (rule 51(7)).[20]Following a determination on an appeal, section 103A of the 2002 Act provides for further challenges against that tribunal decision as follows:
“(1) A party to an appeal… 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.

(a) a procedural, ancillary or preliminary decision…”

The “appropriate court” means, in the first instance, a Senior Immigration Judge (section 26 of and paragraph 30 of schedule 2 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004). If the Senior Immigration Judge decides not to order reconsideration, an appellant in England and Wales may renew his application to a Judge of the High Court (section 103A(9) of the 2002 Act). If both Senior Immigration Judge and the High Court refuse to order reconsideration, the order of the AIT stands: the statutory scheme provides no further opportunity for challenge.

(a) a procedural, ancillary or preliminary decision…”

[21]However, where a substantial point of law has arisen, the statutory scheme allows for that point to be referred to the higher courts by two routes. First, on an application under section 103A, the Senior Immigration Judge or High Court, if they think that the matter raises a question of law of such importance that it should be decided by the appropriate appellate court (i.e. in England & Wales, the Court of Appeal), it may refer the appeal to that court - and that court can then make any decision that the tribunal could have made on the appeal (section 103C (1) and (2)). Second, if reconsideration by the AIT is ordered, the reconsidered decision of the AIT can be appealed direct to the appellate court when again that court can make any order that the tribunal could have made on the appeal (section 103B(1) and (4)). Discussion Issue 1: AIT and the Abuse of Process

Discussion

[22]As I have indicated, in relying upon the evidence that he does rely upon, Mr Robertson submitted that the Secretary of State is being abusive of the AIT’s process, and the AIT erred in failing to use its inherent powers to prevent such an abuse.[23]However, whilst I consider that the AIT (like other tribunals) does have weapons in its procedural armoury to prevent its process being abused, with respect to Mr Robertson, I consider that this submission was, at least, wrongly focussed.[24]As I have said (paragraph 8 above), the AIT is purely a creature of statute: and, in my judgment, it does not - and cannot - have any inherent powers on the same basis as the High Court. The High Court is, of course, also a creature of statute - it was created by section 16 of the Judicature Act 1873 - but, at its inception, it was endowed with the powers vested in or capable of being exercised by the courts whose jurisdictions were transferred into it, including common law powers that had been exercisable by the superior courts since the earliest days of the common law (see Metropolitan Bank v Pooley (1885) 10 App Cas 210 at pp 220-1, per Lord Blackburn). Those historical powers are only exercisable by the High Court because it is a superior court of record with a unique constitutional position: and in any event, as I have indicated, they have been expressly maintained in the High Court by the relevant legislation (see, most recently, section 19(2) of the Supreme Court Act 1981). Neither the AIT nor any other so-called “inferior” court or tribunal can have inherent powers in that sense. An inferior tribunal derives its powers exclusively from the statute creating it: and it therefore only has - and can only have - the powers given to it by the statutes and rules that govern its jurisdiction and procedure.[25]I was referred to some authorities that suggest such tribunals do or may have “inherent powers”. Some of the cases, at the highest level, appear to suggest that every court and tribunal has an inherent general power to regulate its own procedure. For example, in O’Toole v Scott [1965] AC 939 at page 959, in the advice given by Lord Pearson on behalf of the Judicial Committee, he referred to “… the inherent right of a judge or magistrate to regulate the proceedings in his court”. In Simms v Moore [1970] 2 QB 327 at pages 331-2, in the context of those powers in the magistrates’ court, Lord Parker CJ said that: “No statute, whether the Summary Jurisdiction Act 1848 or the Magistrates’ Courts Act 1952, has abrogated that right”.[26]Later cases do not go so far. For example, in the face of a submission by Mr Robertson himself that a magistrates’ court as the creature of statute had no inherent jurisdiction, in R v Malvern Justices ex p Evans [1988] 1 QB 540 at pages 550H-551A, Watkins LJ, whilst confirming that “justices have an inherent power to regulate the procedure in their own court”, questioned whether that went so far as to warrant an assumption that that enabled justices to sit in camera “casting aside… the hallowed notion of open justice”. Before me, Mr Robertson relied upon that passage as confirming the principle that inferior tribunals have inherent powers in relation to their own procedure: as he did the judgment of Scott Baker J (as he then was) in R (The Secretary of State for the Home Department) v Immigration Appeal Tribunal [2001] EWHC 261 (Admin), [2001] QB 1224, where he said, of the AIT’s predecessor (the Immigration Appeal Tribunal): “The tribunal, in my judgment quite correctly, pointed out that it has only those powers that are given to it by the statutes and rules that govern its jurisdiction and procedure. It has no inherent powers save those which enable it to prevent its processes being abused. Without these it could not function properly as a tribunal. What it does not have is power to deal with appeals in a way which is not permitted by the governing statutes or rules”. (emphasis added).[27]However, those cases represent a retreat from the proposition that all courts and tribunals have an inherent power generally to regulate their own procedure. They display a far more restricted approach to the so-called “inherent powers” of tribunals, namely a restriction to powers that are necessary for the proper functioning of the tribunal. That approach is generally reflected in the more recent cases, which make clear that inferior courts and tribunals do not have an open-ended general power to regulate their own procedure (see, e.g., Akewushola v The Secretary of State for the Home Department [2000] 1 WLR 2295 at 2301E-H per Sedley LJ, and The Secretary of State for Defence v The President of the Pensions Appeal Tribunal [2004] EWCA 141 (Admin) at [25] and following per Newman J).[28]The use of the term “inherent powers” as applying to inferior tribunals in these cases must mean something different from the term as used of the High Court: and it seems to me that the references are not to the historical powers of the superior courts inherent in the High Court, but to powers that can properly be implied into the statutory scheme on the usual principles of statutory interpretation. It is well-settled law that it is justifiable to imply words into legislative provisions where there is an ambiguity or an omission and the implied words are necessary to remedy such defect (see, e.g., Elloy De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] AC 69 at page 77H).[29]In some statutory schemes it is necessary to imply many or even most of a tribunal’s powers. For example, in R (IB) 2/04, a tribunal of Social Security Commissioners held that it was necessary to imply all powers of a social security appeal tribunal - because the relevant statute gave a right of appeal but did not expressly give the appeal tribunal any powers at all (see, particularly, paragraph 12 of that decision).[30]What is “necessary” by way of implication will depend upon the nature of the tribunal and its work, and of course the express powers that are given to it by the legislative scheme. However, in respect of any tribunal with a judicial function, it must be assumed (at least in the absence of the clearest wording) that Parliament intended the tribunal to deal with cases fairly and justly: and, consequently, provisions that are not incompatible with the express rules can be readily implied insofar as they are necessary for achieving fairness and justice. As Lord Bridge said in Lloyd v McMahon [1987] AC 625, at pages 702-3:
“My Lords, the rules of so-called natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on a body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”
(emphasis added). The implication of procedural rules on this basis is therefore little more than the practical application of the rules of natural justice read in the context of the tribunal’s express statutory powers.[31]Whilst the decision to deport does not impact on “civil rights” so as to engage Article 6 of the European Convention on Human Rights (Manaouia v France (2001) 33 EHRR 42), this application of the rules of fairness has effect in respect of decisions even if they do not have such impact.[32]In addition to that general assumption, the Procedure Rules of the AIT expressly state that their overriding objective is to secure that appeals are dealt with “as fairly… as possible”, and members of the tribunal are given particular responsibility for ensuring this (see rule 4, quoted at paragraph 17 above). That informs the application of the assumption insofar as the Procedure Rules are concerned.[33]If that is the jurisprudential basis for the powers of tribunals that are not express, does the AIT have a power to strike out abusive proceedings as Mr Robertson contends? That is an issue which has exercised the AIT and its predecessor for some time. In EG (Abuse of process - legitimate expectation) Serbia and Montenegro [2005] UKAIT 74 it was considered that, at best:
“The concept of abuse of process has a restricted application in the field of immigration and asylum appeals”
(at paragraph 35: in paragraphs 35 and following Ouseley J discusses why abuse of process cannot simply be imported from the civil justice system into asylum and immigration appeals). I was referred to a number of cases where the tribunals have been concerned with the difficulty of appeals in which appellants have relied upon grounds which are (e.g.) duplous or entirely inconsistent with a previous claim, in which the tribunal has at least considered whether they have a jurisdiction effectively to strike out such claims. I well understand that such cases are problematic: but whether it is necessary to imply such a power on the principles I have outlined is not something with which I have to grapple. Those cases - in which a claimant brings an appeal which is wholly meritless - are far away from the facts and circumstances of the case before me, where the complaint is in respect of the fairness of the proceedings if the Secretary of State is allowed to rely upon evidence that the claimant considers is of no weight and the rehearsal of which will or may be prejudicial to him.[34]In my view, despite Mr Robertson’s able submission, the real issue raised by the claimant in this case is not well put in terms of whether in the circumstances the Secretary of State’s response to the appeal should be “struck out” as an abuse of the tribunal’s procedure: but whether deployment of the identified evidence will be so procedurally unfair to the claimant that it will breach the rules of the AIT, including provisions which should be implied on the basis of the principles above. The fairness of the proceedings in that sense is a matter which has to be looked at in the round, and usually more appropriately done at the end of the proceedings when the procedure can be considered and an informed decision taken as to whether the procedure as a whole has breached the rules of natural justice and/or, if applicable, Article 6. However, Mr Robertson submitted that none of this evidence can be admitted against the claimant and the fairness of the proceedings maintained: admitting it or any of it would inevitably mean that the proceedings will be in breach of the rules of natural justice. To leave matters until the end of the proceedings would, he submitted, not only be wasteful of time and costs, but would be irremediably unfair and unjust to the claimant. It would be unfair to require him, needlessly, to go through a second set of proceedings in which evidence as to what if any part he played in the murder of F would be considered: or, indeed, to put him through any further proceedings which will inevitably be in breach of the rules of natural justice. Mr Robertson accepted, properly, that to succeed with this submission he must show that the rules of natural justice would inevitably be breached if the matter were to proceed to a hearing on merits, as the AIT determined on 13 January 2009.[35]I accept that, given that the AIT is enabled to take steps to avoid injustice, if there will be an inevitable breach of the rules of natural justice if the case proceeds to a hearing on its merits, then that is something which the tribunal can, should and arguably must take steps to avoid: and it would be at least arguable that the AIT panel erred by not taking such steps in their 13 January 2009 decision.

Issue 2: Evidence relied upon by the Secretary of State

[36]However, if the matter were allowed to proceed, would such a breach be inevitable? Mr Robertson submitted that, if the Secretary of State were allowed to rely upon any of the evidence he proposed to rely upon, then it would. That requires some consideration of the categories of evidence the Secretary of State does rely upon. However, in doing so, it is important to remember two over-arching points, namely that(i) the strict rules of evidence are waived by rule 51(1) of the Procedure Rules (see paragraph 19 above), and(ii) the question of evidential weight is quintessentially a matter for the tribunal.[37]In terms of categories of evidence, the Secretary of State proposes to rely upon, first, evidence that the claimant murdered, or was associated with those who murdered, F. The claimant was charged with the murder of that young man but, at the trial in 2006, at the close of the prosecution case, the charge was withdrawn from the jury on the basis that there was insufficient evidence to enable a jury properly directed properly to convict him. The jury were consequently directed to find the claimant not guilty, which verdict they duly returned. In his decision to stop the case, His Honour Judge Morris QC (at transcript, page 11E) found that the evidence against the claimant was “significantly more tenuous than that against” another youth not before the court. The judge clearly considered that there was insufficient evidence against the claimant for a jury properly to convict him: and, importantly says Mr Robertson, on the judge’s direction, the jury therefore found him not guilty.[38]In those circumstances, Mr Robertson submitted that “the matter is res judicata”, i.e. the issue as to whether the claimant killed F cannot be reconsidered by any court or tribunal, the Crown Court verdict that he did not being conclusive for all relevant purposes. Any proceedings that mount a collateral attack on the jury’s verdict are an abuse of process. In support of that proposition, Mr Robertson relied upon Hunter v The Chief Constable for the West Midlands [1982] AC 529, which set out as a principle that it is an abuse of process to initiate “proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intended plaintiff had a full opportunity of contesting that decision in the court by which it was made.”[39]I cannot accept that submission.[40]First, res judicata estoppel has no place in respect of a verdict made in criminal proceedings: DPP v Humphreys [1977] AC 1. Mr Robertson submitted that issue estoppel rarely arose on the basis of a criminal conviction, because it was rare that the parties and issues in the subsequent proceedings were the same (as they would have to be if there were to be a consequent estoppel): but, that did not mean that the concept would not apply in appropriate circumstances. However, the House of Lords opinions in Humphreys are not based solely upon identity of issue and parties; but rather the “inappropriateness” of drawing the principle of issue estoppel into the criminal law. For example, Lord Salmon said (at page 43):
“Take the not infrequent case in which a jury decides an issue in the defendant’s favour not because they are satisfied that their solution is correct but because they are left in doubt as to whether the contrary has been proved. In such a case, surely it would be artificial and unjust if the defendant, who, quite rightly in my view, enjoys many advantages, should be given the added bonus that that issue should be left thereafter to be presumed for ever to have been irrevocably decided in his favour as between himself and the Crown.”
[41]In any event, the parties and issues in the AIT proceedings are different from those in the criminal proceedings. In the criminal proceedings, the parties were the Crown Prosecution Service and the claimant: before the AIT, they are the claimant and the Secretary of State. I am unconvinced by Mr Robertson’s argument that the state is unseverable for these purposes. In any event, the issues are clearly different. The only issue for the Crown Court was whether, on the criminal standard of proof, the prosecution had overcome the burden of proving that the claimant murdered F. The ultimate issue for the Secretary of State is whether it is conducive to the public good to deport the claimant. Even if the underlying facts upon which the Secretary of State relies are looked at individually, the issue is whether, on the civil burden of proof (with which I deal below), the claimant murdered F or is associated with those that did murder him (which the Secretary of State has made clear is an alternative basis upon which he acts).[42]Further, Mr Robertson’s submission that the verdicts of criminal courts are conclusive for the purposes of future legal proceedings appears to me to be inconsistent with the provisions of section 11-13 of the Civil Evidence Act 1968, which amongst other things make convictions conclusive evidence in later defamation proceedings, but only prima facie evidence in other civil proceedings.[43]For those reasons, I cannot say that the AIT is unable to take into consideration the evidence that the Secretary of State puts forward in relation to the murder of F. Given the acquittal of the claimant and the comments of Judge Morris when he stopped the trail as against the claimant for want of evidence, of course the Secretary of State may have an uphill struggle in persuading the tribunal that the claimant did murder F: but that is a matter for the tribunal. As is the extent to which that evidence may show that the claimant is a member of a criminal gang and/or associated with those who did murder F, which are in any event matters relied upon by the Secretary of State.[44]Finally in relation to the evidence relating to the murder of F, I should mention the victim impact statement from F’s mother. Again, whilst the weight of that may be doubtful, its weight is a matter for the tribunal. Whilst of course this evidence cannot go to the issue of whether the claimant murdered F, in my view it cannot be said that that statement is incapable of having any weight in relation to whether the Secretary of State erred in deciding that it is conducive to the common good for a deportation order to be made against the claimant. Although it may be obvious without specific evidence, if and insofar as the Secretary of State properly considers that F was associated with the murder of F, then it seems to be possible for him to take into account the effects such crimes have on members of the public, including the victim’s family. I was unimpressed by the submission that the AIT would be unduly and inappropriately prejudiced by this evidence: AIT members are professional judges, not lay jurors, who are well-able to maintain the proper degree of objectivity in considering the appropriate weight (if any) to give this evidence. That is a matter to which I return below (paragraph 62).[45]The rest of the evidence relied upon by the Secretary of State can be dealt with more shortly. The sawn-off shotgun evidence and the material derived from the intelligence operation, Operation Alliance, can usefully be dealt with together - because the claimant’s complaint is that, as this evidence is anonymised, the claimant is unable properly or fairly to challenge it. In addition, it is said that none of the evidence has resulted in any charges being laid against the claimant, and, in the case of the official intelligence, much suffers from being second-hand hearsay.[46]However, whilst I see that this evidence inevitably loses considerable weight by being anonymous and (in part) hearsay, thereby preventing any direct challenge to the relevant witnesses, I cannot say that this evidence must inevitably be given no weight by the tribunal - or that to admit the evidence at all will inevitably deny the claimant a fair hearing. As I have indicated, the decision to make a deportation order does not engage Article 6, and evidence can be taken into account by the AIT even if it would not be admissible in other fora. Part of the expertise in AIT tribunal members is that they are able properly to consider such evidence and what weight (if any) to give to it. It is not the case, in my judgment, that by allowing the Secretary of State to rely upon this evidence, that will inevitably render the proceedings unfair to the claimant or in breach of the rules of natural justice.[47]Finally, the Secretary of State relies upon the claimant’s three previous convictions for(i) going equipped (when aged 15, for which he received a referral order in 2002),(ii) taking a motor vehicle without consent (when aged 16, for which he again received a referral order in 2002) and(iii) handling stolen goods (when aged 17, for which he received a supervision order in 2005). Mr Robertson submits that these are old and fall short of major crime by a long way, so that it is disproportionate to allow them to be used by the Secretary of State in defence of such a draconian step as a decision to deport: but further he submitted that, to allow the Secretary of State to rely upon them, is contrary to the spirit of the Rehabilitation of Offenders Act 1974.[48]Section 7(3) of the 1974 Act provides that spent convictions can be admitted in later proceedings, where “justice cannot be done in the case except by admitting or requiring evidence relating to the spent convictions.” Again, I understand the force of Mr Robertson’s submission that these convictions may be accorded little weight: but, I say again, weight is a matter for the tribunal, as is the prior question as to whether they should be taken into account at all under section 7(3). The AIT panel cannot be criticised for considering that the question as to whether justice can or cannot be done without admitting the spent convictions should be taken at the merits hearing, in the light of all the evidence adduced and submissions made at that hearing. It is a decision which arguably should be taken in that full context.

Issue 3: Standard of Proof

[49]Mr Robertson submitted that the appropriate standard of proof to the fact-finding exercise at the substantive hearing is “the heightened civil standard of high probability (which is in fact the criminal standard)” (Summary Grounds, paragraph 33). Whether such a submission can survive In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2008] 3 WLR 1 and In re D [2008] UKHL 33; [2008] 1 WLR 1499 is a moot point (see, e.g., my comments in R (A) v Independent Appeal Panel for the London Borough of Sutton [2009] EWHC 1223 (Admin)). What is clear is that, in the context of immigration and asylum claims, traditionally the concept of a variable standard of proof has been widespread. Mr Kovats submitted that, after The Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153, in relation to deportation cases, the concept has no place, because the decision of the Secretary of State is essentially an evaluative one: but, he submitted, if there were a standard of proof, it would be the civil standard simple.[50]These are issues that will no doubt have to be grappled with by some court on some occasion - but not in my view by this court, today. The court is properly reluctant to consider such issues in a vacuum, without the benefit of having a factual matrix in which the appropriateness of any legal rulings be measured. Whatever I would determine to be the appropriate standard of proof, it is likely that that would generate an appeal - possibly by both claimant and interested party - and I fear that the Court of Appeal would be as reluctant as I to deal with such an issue in a factual vacuum. Indeed, in this case, it may be that the issue may prove to be entirely hypothetical. The standard of proof may be found to be irrelevant - because, on the evidence, the AIT may be satisfied that, whatever the standard of proof, it would (or would not) be satisfied in any event.[51]In any event, I am wholly unpersuaded that the AIT panel erred in not making a preliminary ruling in relation to the standard of proof. It was properly open to them to consider that this would be better considered in the context of a full merits hearing.

Issue 4: Approach of the High Court to Judicial Review of AIT Interlocutory Decisions

[52]There was much common ground as to the correct approach of this court to considering a judicial review of an interlocutory decision of the AIT - although Mr Robertson and Mr Kovats disagreed as to the proper application of that approach to the facts of this case.[53]Whilst the courts have stressed that judicial review is “a cornerstone of the rule of law in this country and one that judges guard jealously” (R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731; [2005] 1 WLR 1445 (“G”) at [13] per Lord Phillips MR, they have been particularly cautious and slow to use judicial review where an alternative remedy is available. Judicial review is a remedy of last-resort.[54]G concerned, not section 103A, but the now redundant procedure under section 101 of the 2002 Act, which allowed a right of appeal from a decision of the Immigration Appeal Tribunal but only subject to permission. Where the tribunal itself did not give permission, then that decision was subject to review by the High Court: but only by way of a paper application, rather than by way of oral hearing. The Court of Appeal upheld the decision of Collins J ([2004] EWCA Civ 1104; [2004] 1 WLR 2953) to the effect that it would be contrary to Parliament’s intention and an abuse of process for judicial review to be pursued on grounds that were or could have been relied upon in the statutory review procedure “unless there are exceptional circumstances”.[55]The Court of Appeal set out cogent reasons as to why this court should exercise restraint when considering any application for judicial review where the statutory review procedure was available. It concluded (at [26]) that the scheme:
“… provides adequate and proportionate protection of the asylum seeker’s rights. It is accordingly a proper exercise of the court’s discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review.”
The court went on to say (at [27]):
“… [O]ur decision concerns only cases, such as the two before us, in which the application for judicial review is co-extensive with the available statutory review. Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review.”
[56]Despite the change of statutory review procedure from that in section 101 to that in section 103A, the principles set out in G still hold good (R (F (Mongolia)) v Asylum and Immigration Tribunal [2007] EWCA Civ 769; [2007] 1 WLR 2523).[57]Mr Robertson properly points out that interlocutory decisions of the AIT are not subject to the section 103A procedure (section 103A(7) of the 2002 Act, quoted at paragraph 20 above). However, that point was considered in R (Wani) v The Secretary of State for the Home Department [2005] EWHC 2815 (Admin), in which Collins J made clear that, normally, interlocutory decisions of the tribunal would not be amenable to judicial review because of the availability of the statutory review procedure in respect of the final determination of the tribunal. He said (at [24]-[25]):
“The court undoubtedly has jurisdiction to consider claims such as this [i.e. applications for judicial review of an interlocutory decision of the AIT], but will not in general entertain challenges to interlocutory decisions on the ground that the challenge is premature…. The proceedings should be allowed to take their course and, if the tribunal was wrong to find errors of law where none existed, the remedy lies to the Court of Appeal. While that approach may sometimes be modified in relation to a decision to adjourn proceedings, it will normally apply to a decision such as is in issue in this case which amounts to a preliminary ruling. If, as I believe, the parties must see the reasons and are able in the circumstances which I have set out in this judgment to argue against them, there is all the more reason to refuse to entertain proceedings for judicial review. I am satisfied that the court should not permit claims such as these. They are premature and can only create delays which are manifestly contrary to the intention of Parliament as appears from rule 31(1) of the procedure Rules. There is no prejudice to the aggrieved party since, if the alleged error persists in the final determination, there is a right of appeal to the Court of Appeal. And it is always possible that he will succeed in the appeal. Accordingly, I am satisfied that it would normally be an abuse of process of the court to seek to pursue claims such as this. I have learnt that it is dangerous to say “never” in this jurisdiction, but I find it difficult to conceive of circumstances in which a claim would be proper.”
Following G and F (Mongolia), clearly the comments are equally applicable where the route of challenge is, not directly to the Court of Appeal, but by way of statutory review under section 103A. Paragraph (iv) of the AIT panel’s decision (set out in paragraph 6 above) chimes with all of these comments about section 103A, and the proper approach to interlocutory challenges.[58]Mr Robertson submits that these cases (together with cases such as R (AM (Cameroon) v Asylum and Immigration Tribunal [2008] EWCA Civ 100; [2008] 1 WLR 2062) are authority for the proposition that, although judicial review will not usually be entertained by way of challenge to an interlocutory decision of the AIT, such challenges will be allowed in exceptional circumstances. He submitted that the circumstances of this case are exceptional because, without the intervention of this court,(i) time and effort will needlessly be wasted in dealing with an inherently flawed merits hearing: and(ii) the claimant will be denied the right to a fair hearing which is, Mr Robertson submitted, the hallmark of an exceptional case: and a section 103A review after the event would be inadequate[59]However, I am not persuaded that this case is exceptional. It is possible that, by dealing with these issues as preliminary issues some time and effort may be saved: but it is equally possible that, by dealing with the issues as preliminary issues rather than in the context of a full issues hearing, time, effort and expense might be wasted. Certainly, I do not consider that the possibility of savings takes this case into the exceptional category. It was also suggested by Mr Robertson that this was a test case - or at least the Secretary of State was viewing it as a test case. The evidence for that is limited to the fact that the Secretary of State has asked for permission to rely upon the decision of 13 January 2009 in other cases: and he submitted evidence that there are currently 35 people who have been served with deportation orders as a result of Operation Alliance, which was the operation that resulted in the official intelligence in respect of the claimant which the Secretary of State relies upon. However, these cases are necessarily fact-specific. Mr Kovats confirmed that a number are proceeding through various stages of challenge. If there are common issues, then it is open to the parties to seek to coordinate the challenges in some sensible and practical way. However, unless and until such application is made, I am not persuaded that this case can be an effective test case for others.[60]I accept that this court would be entitled to interfere in exercise of its supervisory capacity, if, as a result of the AIT panel’s decision, the claimant would inevitably be denied a fair hearing. However, for the reasons I set out below, I do not consider that to be the case.

The Legality of the AIT Determination

[61]Mr Robertson submitted that the AIT panel erred in not finding that the Secretary of State was abusing the procedure of the AIT in seeking to rely upon the identified evidence, and not deciding, as a preliminary issue, what the correct standard of proof was. For the following reasons, I do not find that submission compelling.[62]The AIT is a specialist tribunal, the approach and decisions of which warrant particular respect. As Baroness Hale said of the AIT in AH (Sudan) v The Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678 at [30]:
“This is an expert tribunal charged [by Parliament] with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right…. They and they alone are the judges of the facts…. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently….”
Whilst those comments were made in the context of appeals on the substantive law, they apply equally to challenges by way of judicial review where the tribunal’s application of their own procedures is questioned. Its judges have notable experience in applying their own Procedure Rules (including rule 51(1), which allows a wide ambit of evidence to be introduced before it) and the general tenets of natural justice to matters that come before them. That especially applies to Senior Immigration Judges, who have particular expertise and experience within their own field.[63]The AIT has wide powers to regulate its own procedure. The decision by the panel on 13 January 2009 to allow the case to go forward to an early merits hearing was effectively a case management decision for the tribunal, that was well within their discretion to make. Had it not been for this challenge, the merits hearing would have taken place and the matter determined on its merits over two months ago. It is not the fault of the AIT or the Secretary of State that the matter was not determined then.[64]In particular, it has an express power (in rule 51(1)) to consider evidence that would not be admissible in other fora. It is therefore clearly the intention of Parliament that, irrespective of strict admissibility, a wide range of evidence may be placed before and considered by the tribunal, with the tribunal to determine its relevance and weight. Evidence that may be inadmissible in other places may be irrelevant or of little relevance, and be accorded little or no weight: but these are essentially matters for the tribunal to determine.[65]Looking at the evidence that the Secretary of State seeks to rely upon in the appeal, for the reasons set out above, the acquittal of the claimant for F’s murder did not create any issue estoppel: and, before the AIT, it is open to the Secretary of State’s to rely on evidence that the claimant murdered F. In any event, it is open to him to rely upon the evidence as showing that the claimant, even if he did not murder F, is associated with those who did. Neither is it an abuse for the Secretary of State to rely upon the evidence from anonymous witnesses (concerning the sawn-off shot gun, and from the official intelligence), although the weight to be given to such evidence is necessarily limited. Whether the spent convictions are relied upon depends upon whether the tribunal eventually find that they fall within the proviso in section 7(3) of the 1974 Act, which is itself dependent upon the evidence as a whole. The relevance of, and the weight given to, all of this evidence is entirely a matter for the tribunal. The AIT panel cannot be criticised for not deciding that the evidence (or any part of it) must necessarily be irrelevant or be given no weight, and therefore should not be admitted at all. Indeed, these are the very sorts of evidential issue that are properly left to the AIT for consideration and determination.[66]Therefore, I do not consider that the AIT panel did err in deciding that, in seeking to rely upon the identified evidence, the Secretary of State was not acting abusively of the tribunal process: or that, by allowing the Secretary of State to adduce that evidence before the tribunal, the AIT proceedings would inevitably be procedurally unfair to the claimant to the extent that the rules of natural justice would inevitably be breached. That seems to me to be the meaning of the final paragraph of the AIT panel’s decision at paragraph (i) (quoted at paragraph 6 above): they did not consider that they had to concern themselves with the application of the “abuse of process” doctrine, because they were unconvinced that to allow the AIT to consider the evidence relied upon by the Secretary of State would not give rise to inevitable unfairness in the proceedings. I agree. Certainly, that was a proper conclusion for the AIT panel to draw: and they did not err in drawing it.[67]Nor, in my view, can they be criticised for not deciding as a preliminary issue the correct standard of proof. The standard of proof may not be relevant on the facts of this case. In any event, it is a sensible approach (and certainly a lawful approach) to leave the standard of proof to be dealt with in the context of the evidence itself on a merits hearing, rather than make a hypothetical finding in a vacuum.[68]Consequently, I do not consider that the AIT panel erred in law in allowing the matter to proceed to a merits hearing. Indeed, although the procedure adopted in a specific case is a essentially matter for the tribunal to determine - within the generous ambit given them by the Procedure Rules - I consider the AIT panel’s decision of 13 January 2009 to leave evidential matters (including consideration of the appropriate standard of proof) in this case to the full merits hearing to be understandable and sensible. As the panel correctly pointed out (paragraph (iii) of their decision: quoted at paragraph 6 above), consideration of the merits of an appeal on all of the available evidence is the primary function of the tribunal. Certainly that decision was, in my judgment, patently lawful.

Conclusion

[69]Mr Kovats submitted that the application for judicial review had not been made as soon as practicable, and therefore permission should not be granted as a result of the delay. However, I have considered the evidence and submissions in relation to the claimant’s funding difficulties, and would not shut out the claim on the basis of delay. Given the submissions that were made before me, I consider that the appropriate course is that I should give permission to judicially review: but, for the reasons I have given, dismiss the substantive application.[70]Unless the form of the order can be agreed, I shall hear submissions in relation to costs, any other subsidiary matters and the appropriate form of the order.

Cited in 8 later judgments