KH v The Secretary of State for the Home Department [2008] UKAIT 68

Between
KHAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentDate 2008-09-10
[1]It is now established that save in exceptional circumstances the grant of an order for reconsideration means that a funding order will be made if applicable: see RS (Funding-meaning of ‘significant prospect’) Iran [2005] UKAIT 00138 and reg 6(3) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005.[2]Deciding whether there was a significant prospect that the appeal would be allowed upon reconsideration means considering what the position was “at the time when the appellant made the section 103A application”; it is not an exercise in hindsight based on how things appear later to an immigration judge in the light of further evidence and/or submissions. REVIEW OF FUNDING DETERMINATION[1]The appellant is a national of Turkey. In a funding determination notified on 8 April 2008 a panel comprising Designated Immigration Judge Billingham and Immigration Judge C H Bennett decided in a determination running to 7 pages to refuse to make a s.103D(3) order of payment of the appellant’s costs. This followed a 30-page determination notified on 10 July 2007 by the same panel dismissing the appellant’s appeal. The appellant’s representatives made an in-time application for a review of the refusal of the funding order. This application arises under reg 7 of the Community Legal Services (Asylum and Immigration Appeals) Regulations 2005 which provide for such a review to be carried out by a senior immigration judge who was not the member of the Tribunal, or a member of the constitution of the Tribunal, which made the original decision (reg 7(3)). I may carry out the review without a hearing or hold an oral hearing, if one is requested by the supplier or counsel. No oral hearing has been requested, hence my review has been carried out without a hearing. By reg 7(5) I may:
“(a) make an order under section 103D(3); or (b) confirm the Tribunal’s original decision”
.

Legal framework

[2]The relevant statutory provisions governing the making of an order for funding are set out in section 103D of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), rules 28A and 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the Procedure Rules) and the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 as amended with effect from 30 April 2007 by the Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007 (the CLS Regulations). Paragraph 15 of the Practice Directions as amended on 30 April 2007 is also relevant.[3]The power to make an order that an appellant’s costs be paid out of the relevant fund is set out in section 103D of the 2002 Act. Section 103D (1), (2) and (3) provide: “(1) On the application of an appellant under section 103A, the appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c.22). (2) Subsection (3) applies where an order for reconsideration is made -(a) under section 103A(1), and(b) on the application of the appellant. (3) The Tribunal may order payment out of that Fund of the appellant’s costs – (a) in respect of the application for reconsideration; (b) in respect of the preparation for reconsideration;(c) in respect of the reconsideration;” 4. Regulation 6 of the CLS Regulations provides: (1) The Tribunal must exercise the power to make an order under section 103D(3) in accordance with this regulation. (IA) The Tribunal may only make an order under section 103D(3) where- (a) it has reconsidered its decision on an appeal; or (b) an order for reconsideration has been made but the reconsideration does not take place or is not completed because:- (i) the appeal lapses, or is treated as abandoned or finally determined, by operation of an enactment; or (ii) the appeal is withdrawn by the appellant, or is treated as withdrawn because the respondent withdraws the decision or decision to which the appeal relates. (2) If the Tribunal allows an appeal on reconsideration, it must make an order under section 103D(3). (3) If the Tribunal dismisses an appeal on reconsideration, it must not make an order under section 103D(3) unless satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration. (3A) If an order for reconsideration is made but the reconsideration does not take place or is not completed, the Tribunal must not make an order under section 103D(3) unless it is satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration. (4) If, where paragraph (3) or (3A) applies, the Tribunal decides not to make an order under section 103D(3), it must give reasons for its decision.” (a) under section 103A(1), and (b) on the application of the appellant. (a) in respect of the application for reconsideration; (b) in respect of the preparation for reconsideration; (c) in respect of the reconsideration;” (i) the appeal lapses, or is treated as abandoned or finally determined, by operation of an enactment; or (ii) the appeal is withdrawn by the appellant, or is treated as withdrawn because the respondent withdraws the decision or decision to which the appeal relates.

Procedural history

[4]I have already made reference to the panel’s decisions relating to this case, but it is necessary to have regard to the fuller procedural history. On 29 December 2005 Immigration Judge Cohen dismissed the appellant’s appeal. On 27 January 2006 Senior Immigration Judge Jarvis ordered reconsideration. She found it arguable that the judge had erred in his apprehension of the true facts of the case concerning the history of the appellant’s claimed detentions, in his reasoning as to why the appellant was found to have no political profile and in failing to give adequate reasons for rejecting the evidence of a witness for the appellant. On 9 March 2007 Senior Immigration Judges Chalkley and Southern found that the immigration judge had materially erred in law, because of a misunderstanding by the immigration judge of the evidence before him, inadequate reasons for rejecting the evidence of the witness and a failure to assess the appellant’s explanation as to why he had been able to remain in Mersin [a part of Turkey] for a month without difficulty. Then on 10 July 2007 Designated Immigration Judge Billingham and Immigration Judge C H Bennett promulgated their determination dismissing the appellant’s appeal.[5]The reasons given by the panel in their subsequent decision on funding dated 8 April 2008 for finding that there was not a significant prospect that the appeal would be allowed on reconsideration were in summary: that Senior Immigration Judges Chalkley and Southern had rejected a number of alleged legal errors and had only found three legal errors; that the panel’s reasons for rejecting the appellant’s evidence “could and ought to have been appreciated and considered by his representatives at or before” January 2006; the absence of documentary evidence; and internal inconsistencies in the appellant’s evidence.

Discussion

[6]Plainly the panel decided in their discretion to refuse a funding order because they considered the requirement at reg 6 (3) of the CLS Regulations, that ”at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration”, had not been met.[7]Curiously, in view of the length of its decision on funding, the panel failed to refer to any case law dealing with reg 6(3). In particular they did not refer to RS(Funding – meaning of ‘significant prospect’) Iran [2005] UKAIT 00138 or toYH (Funding-regulation 8 - excluding costs) Sudan [2007] UKAIT 00095. In RS the Tribunal gave guidance on the meaning of the phrase “significant prospect”. It held, inter alia, that, in the majority of cases:(a) there is no material difference between the “significant prospect” test for the issue of a section 103D funding order under reg 6(3) and the “real possibility” test under rule 26(6) before reconsideration can be ordered under the Procedure Rules (para 16 of the determination); and(b) the initial views of the Senior Immigration Judge who ordered reconsideration should be regarded as the decisive factor in determining whether the funding order should be made within the terms of reg 6(3) (para 18 of the determination).[8]In RS, the Tribunal went on to give four examples of exceptional cases in which the preliminary view of the Senior Immigration Judge who ordered reconsideration might need to be revisited for the purposes of deciding a funding order application. These related to: materially misleading grounds; an order for reconsideration inadvertently made without reference to relevant law; unsupported allegations of bias or impropriety; and grounds that are pointless in the face of binding precedent.[9]Nor did the panel refer to any of the leading cases clarifying the nature of the reconsideration process, namely R(Wani) v SSHD and AIT [2005] EWHC 2815 Admin; JA (Practice on Reconsideration: Wani applied) [2006] Ecuador UKAIT 00013 or DK (Serbia)[2006] EWCA Civ 1747. In DK(Serbia) Latham LJ cited the AIT Practice Direction 14.4, which includes the following:
“[o]nly in exceptional circumstances can the decision contained in [the written reasons for finding that the original Tribunal made a material error lf law] be departed from or varied by the Tribunal which completes the reconsideration.”
[10]Why reference to these cases and this direction might have helped will become clear in a moment.[11]Bereft of any case law compass, the panel fell into a number of errors. Before setting these out, it is important to recall their reasoning. At para 6 the panel, having noted that one senior immigration judge had made an order for reconsideration and two senior immigration judges had found there was a material error of law in the determination by Immigration Judge Cohen, stated:
“But there is nothing in the papers before us to indicate that Mr Chalkely and Mr Southern were asked to consider, or that they in fact considered, the crucial question of whether the errors which they had identified made any difference to the ultimate conclusion… Because there was no consideration of whether the errors identified made any difference to the result, we do not consider that Mr Chalkley’s and Mr Southern’s having directed a re-hearing indicates that there was a significant prospect that the appeal would be allowed. A fortiori in respect of Miss Jarvis’s order for reconsideration – since her determination was on the basis of Mr Cohen’s determination and the notice of application. There was no opportunity for argument before her to the effect that the errors made no difference. … The matters to which we have referred above ought to have been apparent to a competent legal adviser in January 2006.No detailed examination can realistically be expected to be undertaken by a Senior Immigration Judge dealing with an application under s.103A or at the first stage of a reconsideration unless (in that latter case) the representative of the party who was successful at the original hearing places the relevant material before the Senior Immigration Judge or Judges to demonstrate that, whatever the deficiencies there may have been in the determination and/or reasoning process of the Immigration Judge, his ultimate conclusions were sound and ought to be upheld and that there were sound reasons which would have justified the conclusions which he reached. That was not done in this case”. 12. From the above it is clear that the panel considered, not only that one senior immigration judge had erred in making an order for reconsideration but that two senior immigration judges had subsequently erred in finding a material error of law. It may be thought extraordinary that in the absence of any glaring inadvertence the panel could seriously consider, as they did at para 6, that no fewer than three senior immigration judges were ignorant of the requirements of the 2002 Act and the Asylum and Immigration Tribunal (Procedure) Rules and the Tribunal Practice Directions. The order for reconsideration necessitated that the senior immigration judge concerned was satisfied, to use the wording of Rule 26(b), that “there is a real possibility that the Tribunal would decide the appeal differently on reconsideration”
. The two senior immigration judges could not have found a material error of law in this case unless, to use the wording of Rule 31(5) they were satisfied there was an “error of law which affected the Tribunal’s decision upon the appeal”. Of course, senior immigration judges are not infallible and, as the Practice Directions and RS recognise, there may be cases justifying departure from the general rule, if for example the senior immigration judge’s order or decision that there was a material error of law can clearly be seen to have been inadvertent in the light of binding precedent. But cases of this kind are clearly seen to be the exception. If the fact that one senior immigration judge had made an order was not seen as a reason for caution on the part of this panel, certainly the fact that two other senior immigration judges found actual material errors of law should have been. The panel’s disregard for such considerations bordered on the cavalier. 13. But in any event, the panel were wrong in their judgement. The errors the senior immigration judge identified were arguable legal errors giving rise to the real possibility that the Tribunal would decide the appeal differently on reconsideration. The implication that a senior immigration judge cannot safely decide that an order for reconsideration should be made unless he or she has heard arguments from both sides misunderstands the nature of this stage in the reconsideration process. So far as the subsequent decision by Senior Immigration Judges Chalkley and Southern is concerned, each of the three errors they identified was both a legal error and one which affected the Tribunal’s decision on appeal. 14. The panel cannot even be said to have been internally logical and consistent in their approach. If as it clearly implied, the senior immigration judges had failed to apply the correct legal tests both in making an order and in finding a material error of law, one would have expected the panel to have stated this in their substantive determination. But in their substantive 10 July determination dismissing the appellant’s appeal the panel said nothing about this. Nor did they say anything to indicate that they thought that the appellant’s representatives had misled the senior immigration judges previously involved in the case as to the facts or the law or the relevant background material or as to their preparation for the appeal. 15. A second point of error on the part of the panel was that none of the reasons they gave for considering that at the time of the decision to make an order there was not “a significant prospect that appeal would be allowed upon reconsideration” fell into any of the exceptional categories identified in RS. Admittedly RS did not seek to furnish an exhaustive list, but, again, what is clear from the reasoning in RS is that it would only be in an exceptional situation that the decision of the senior immigration judge who made the order would not be treated as the decisive factor. In giving their reasons for finding that there was not a significant prospect of the appeal being allowed on reconsideration the panel did not (as we shall see more fully in a moment) identify anything of an exceptional nature. 16. A third point of error was that the panel itself applied the wrong legal test. Contrary to what it asserted in para 6, a senior immigration judge is not confined by statute or anything stated in the Procedure Rules or Practice Directions to finding a material error of law only where satisfied that : ”the representative of the party who was successful at the original hearing places the relevant material before the Senior Immigration Judge or Judges to demonstrate that his ultimate conclusions were sound and ought to be upheld and that there were sound reasons which would have justified the conclusions which he reached”. 17. It is puzzling in the extreme why the panel should consider that the correct test should be one which places an onus on “the representative of the party who was successful at the original hearing”, especially since in this case the appellant had lost before the immigration judge. What is meant by “relevant material” is also far from clear. If there has not been any rule 32(2) notice then the material (at least if this term means to refer to evidence) would normally be the same as it was at the original hearing: see DK (Serbia). If the above is meant to refer to the conclusions of the original immigration judge, then as an observation that is only going to make sense in a case where the findings of fact of that judge were not infected by legal error. In the instant case, the original judge’s findings were clearly infected by legal error and the appellant’s credibility had to be considered afresh. The above statement is not only an unwarranted gloss, it is shot through with confusion. 18. The panel in this case also erred in failing to recognise that their task was not to decide what would have been the decision of the senior immigration judges had they had the benefit of the fuller evidence and submissions at the stages they were considering the case (whether to grant an order for reconsideration, whether to find a material error of law). Being required to consider whether “at the time when the appellant made the section 103A application” there was a significant prospect of success entails having regard to what was the state of the evidence and submissions at that time. Except possibly in very unusual cases, e.g. where it later becomes clear that the senior immigration judges have been misled as to the nature of the case, there is no place for analysis by hindsight. 19. Immigration judges tasked with determining a funding application should not seek to rewrite the legal framework for deciding whether to make an order for reconsideration or whether there is a material error of law. If in exceptional cases where some revisiting is required, it must be done by reference to the correct legal tests. 20. Given not only that a senior immigration judge made an order for reconsideration and that two senior immigration judges found a material error of law and that there were no exceptional circumstances surrounding their having done so, it is plain that the requirement of reg 6(3) of the CLS Regulations were met. At the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration. 21. Having reviewed the decision of the panel not to make an order under s.103D, and for the reasons given above, I exercise my discretion under reg 7 (5) of the CLS Regulations to make an order under section 103D(3) to cover all of the appellant’s costs in respect of the application for reconsideration, preparation for reconsideration and in respect of the reconsideration will be paid out of the relevant fund, within the meaning of rule 33 of the Procedure Rules. DR H H Storey (Senior Immigration Judge)