NB & Anor v The Secretary of State for the Home Department [2010] UKUT 302 (IAC)

[2010] UKUT 302 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 1 February 2010
THE IMMIGRATION ACTS
Before
SENIOR IMMIGRATION JUDGE GLEESONSENIOR IMMIGRATION JUDGE SOUTHERN
Between
NBAppellantZDAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent for first Claimant: Mr Abid Mahmood and Mr Rupert Beloff, Counselinstructed by Blakemores Solicitors for second claimant: Mr C Jacobs, Counsel instructed by Howe & Co, SolicitorsMr A Payne, Counsel instructed by the Treasury Solicitor for Respondent
[1]The Court of Appeal decided in the present case that a failure by a party to comply with the provisions of the Procedure Rules is an “error of procedure” within the meaning of rule 59, and that rule therefore operates to preserve the validity of steps taken in the proceedings thereafter, unless the Tribunal exercises the discretion therein to order to the contrary.[2]The power may be exercised even when the point has not been raised by the appellant.[3]In the exercise of its discretion in relation to rule 23, the Tribunal must consider the nature and extent of the breach and this will entail a consideration of all material factors. These are likely to include:a. The length of the delay in the context of the strict time-limits under the Rules for filing and serving grounds of appeal, (19 days in a case when the time for appealing was 5 days).b. The Secretary of State’s action in misinforming the Upper Tribunal that she had complied with the requirements of rule 22(5)(a) as to the date when service had been effected.c. The Secretary of State’s failure to draw to the attention of the Tribunal her failure to have complied with rule 23(5)(b).d. Prejudice suffered by the applicant such as the effect of being notified by the Tribunal that the respondent is seeking permission to appeal when the appellant has not yet received the determination, the loss of the opportunity to protest that the Secretary of State’s application is out of time and the effect of the passage of time.e. Repugnance arising from the Secretary of State’s pursuing for any prolonged period her challenge to the decision of the Tribunal without the successful party being aware of that decision.f. The merits of the substantive application.g. The fact that the failure does not prevent a fair hearing is not decisive. DETERMINATION AND REASONS[1]These appeals, which were not linked before the original Immigration Judges or those who reconsidered the appeals, were listed together before the Court of Appeal and remitted together as both of them concerned the effect of paragraph 23(5)(i)(a) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, in cases where the respondent had failed to serve the Tribunal’s determination on an appellant before filing her application for reconsideration.[2]The first claimant is a citizen of Guinea and the second claimant is a citizen of Turkey. In each case, the claims succeeded before the first Immigration Judge, at least in part, and the respondent sought reconsideration. The respondent failed to serve the Immigration Judges’ determinations on the appellant ‘not later than the date on which the respondent makes [the reconsideration] application’. That is not disputed.[3]The facts as to delayed service of the determinations were that in each case the respondent sent his application for reconsideration by facsimile to the AIT within the time limited, but delayed in serving the determination on the claimant. The respondent did not serve the first claimant until 19 days after faxing his application for reconsideration, but the claimant asked the AIT for a copy and received that after only a four day delay. The second claimant’s copy of the favourable determination was posted on the day after the respondent faxed his reconsideration application to the Tribunal and was thus one, or perhaps two days late.

Paragraphs 23 and 59 of the Asylum and Immigration Tribunal (Procedure) Rules 2005

[4]The respondent’s responsibility as to service is set out at out in paragraph 23 of the Asylum and Immigration Tribunal (Procedure) Rules 2005:
“23 Special procedures and time limits in asylum appeals … (5) The respondent must— (a) serve the determination on the appellant— (i) if the respondent makes an application for permission to appeal against a decision of the Tribunal, by sending, delivering or personally serving the determination not later than the date on which the respondent makes that application; and … (b) as soon as practicable after serving the determination, notify the Tribunal on what date and by what means it was served. (6) If the respondent does not give the Tribunal notification under paragraph (5)(b) within 29 days after the Tribunal serves the determination on it, the Tribunal must serve the determination on the appellant as soon as reasonably practicable thereafter.”

… (5) The respondent must—

[5]That contrasts with the service provisions in the Immigration and Asylum (Procedure) Rules 2003: “Service of determination[3]5(1) Except where paragraph (2) applies, the appellate authority must send to every party written notice of the Tribunal’s determination on an application for permission to appeal.(2) Where an application for permission to appeal relates, in whole or in part, to a claim for asylum and- (a) the appellant- (i) is the person claiming asylum; and (ii) is in the United Kingdom; and (b) the Tribunal has refused permission to appeal, the appellate authority must send the determination to the Secretary of State, who must serve it on every other party.(3) Where paragraph (2) applies, the Secretary of State must notify the Tribunal when and how the determination was served on the appellant.”[6]The earlier rule restricts service by the respondent to unsuccessful asylum claims, with the Tribunal being required to serve determinations on immigration claimants and successful asylum claimants. That, with respect, is a more sensible formulation.[7]The respondent agrees that, in both these appeals, she did not comply with the new paragraph 23(5)(a)(ii) obligation, but argues that the subsequent proceedings were nevertheless valid by reason of the operation of paragraph 59, the failure to serve being, in her contention, a procedural error rather than one of substance:
“59 Errors of procedure (1) Where, before the Tribunal has determined an appeal or application, there has been an error of procedure such as a failure to comply with a rule— (a) subject to these Rules, the error does not invalidate any step taken in the proceedings, unless the Tribunal so orders; and (b) the Tribunal may make any order, or take any other step, that it considers appropriate to remedy the error.” [Emphasis added]
[8]There has been no suggestion that the original Immigration Judge’s determinations were invalid, so paragraph 59(2) is inapplicable. The effect of paragraph 59(1) is to keep effective any step in the proceedings unless or until the Tribunal exercises a discretion to treat that error a invalidating a step in the proceedings, or make an order, or take any other step it considers appropriate.

Second claimant’s appeal: grant of leave to remain

[9]In the case of the second claimant, the original Immigration Judge allowed the appeal on human rights grounds only (suicide risk), dismissing the asylum appeal. On 19 March 2010, after the hearing of this appeal, but before this determination was finalised, the respondent granted her leave to remain under a legacy exercise which is dispositive of her human rights appeal.[10]The second claimant served a timely notice under rule 17 indicating that she wished to revive and pursue the Refugee Convention appeal dismissed by the original Immigration Judge in 2006. Subsection 104 (4A) of the Nationality. Immigration and Asylum Act 2002 provides that an appeal under s 82(1) (against an immigration decision) shall be treated as abandoned where leave to enter or remain is granted, save as set out in subsection 104 (4B):
“104(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground relating to the Refugee Convention specified in section 84(1)(g) where the appellant – (a). is granted leave to enter or remain in the United Kingdom for a period exceeding 12 months, and (b). gives notice, in accordance with any relevant procedural rules (which may include provision about timing ), that he wishes to pursue the appeal so far as it is brought on that ground.”
[11]Section 84(1)(g) provides that it shall be a ground of appeal under section 82(1):
“84 (1)(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention…”
[12]The original Immigration Judge’s dismissal of the asylum appeal in January 2006 has stood unchallenged until now and it is not therefore clear why the second claimant considered that her Refugee Convention claim could be revived at this late stage. That element of her appeal is not treated as abandoned because she has been granted leave: it was dismissed in 2006 and she has never challenged that dismissal. The second claimant therefore has no Refugee Convention claim before this Tribunal. If her circumstances have changed, she would need to make a fresh claim to the Secretary of State.[13]As far as her human rights claim is concerned, the exception in s 104 (4B) does not avail her. The second claimant has been offered and accepted leave to remain in the United Kingdom and that is an end of her human rights appeal, which is statutorily abandoned.[14]Accordingly, there is no element of the second claimant’s appeal which is still before the Tribunal for determination. We record below the very helpful evidence given by her solicitor Mr Saldanha, and the useful skeleton argument and submissions by Mr Jacobs. We have given weight to them in considering the appeal of the first claimant, and we also had the advantage of a skeleton argument and oral submissions by Mr Mahmood on behalf of the first claimant.

Transitional provisions

[15]This determination was not completed before the AIT ceased to exist on 15 February 2010; the AIT was replaced by the First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber). Pursuant to Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.1.2010/21):
“4. Where the reconsideration of an appeal by the Asylum and Immigration Tribunal under section 103A of the 2002 Act has commenced before 15 February 2010 but has not been determined, the reconsideration shall continue as an appeal to the Upper Tribunal under section 12 of the 2007 Act and section 13 of the 2007 Act shall apply.”
[16]This remitted reconsideration therefore falls to be determined as though it were an appeal before the Upper Tribunal.

The history of the first claimant’s appeal

[17]We are concerned in this determination only with the first claimant’s appeal (hereafter ‘the claimant’). The claimant succeeded before the first Immigration Judge on both human rights and Refugee Convention grounds; the reconsideration (now overturned) substituted a decision dismissing both elements of her appeal on the same grounds.[18]The claimant did not raise the question of delayed service of the determination until the Court of Appeal grounds. SIJ Freeman granted leave, querying nevertheless whether the claimant should be permitted to pursue such a fundamental new issue so late in the day. However, it appears that in the Court of Appeal there was no difficulty perceived in allowing the claimant to do so.[19]Both appeals were considered together by the Court of Appeal on 17 November 2008, and the reconsideration determinations set aside. In each case, the respondent was ordered to pay 75% of the claimant’s agreed or assessed costs. The Court of Appeal judgment herein is reported as NB (Guinea), ZD (Turkey) v The Secretary of State for the Home Department [2008] EWCA Civ 1229. The judgment of Jackson LJ clarifies the task set for the AIT, and now the UT (IAC) to perform. “19. I have set out the provisions of paragraph 59(1) in part 1 above. There can be no doubt that the Secretary of State's failure to comply with paragraph 23(5)(a)(i) constitutes an ‘error of procedure’ within the meaning of paragraph 59(1). Paragraph 59(1) (a) expressly provides that such an error does not invalidate any step taken in the proceedings unless the tribunal so orders. The inexorable consequence of paragraph 59(1) is that the Secretary of State's failure to serve the immigration judge's decision on the date when he applied for reconsideration does not automatically invalidate the reconsideration proceedings. In my view the correct analysis of paragraph 59(1) is that in the case of procedural error, save where the rules expressly provide otherwise (e.g. rule 35), the AIT has a discretion as to whether or not subsequent steps in the proceedings are invalidated. Some procedural errors plainly will not have that Draconian consequence. However, a breach of paragraph 23(5)(a)(i) (the rule in issue in these proceedings) may well attract such a consequence. In each case the AIT must carefully consider the nature and extent of the Secretary of State's breach of paragraph 23(5)(a)(i) and the effect of that breach upon the claimant. It will undoubtedly be relevant if the claimant has suffered prejudice as a result of late receipt of the appeal decision. For example, he may lose the opportunity to protest that the Secretary of State's application for reconsideration is out of time (even though the rules do not confer upon him the right to make submissions in respect of the Secretary of State's application for reconsideration). However, mere absence of prejudice does not automatically give the Secretary of State a licence to delay serving the appeal decision. The proposition that the Secretary of State can pursue for any prolonged period his challenge to an AIT decision without the victorious party being aware of that decision is repugnant. The AIT should take that repugnance into account when deciding whether a) to allow reconsideration proceedings to go ahead or b) to declare those proceedings invalid. 20 Let me now consider how those principles should be applied to the two cases before this court. In NB's case there was a delay of 20 days between the Secretary of State applying for reconsideration and NB receiving a copy of the appeal decision from the Home Office. That probably means that the Home Office posted the appeal decision 19 days too late. That period of delay on the part of the Home Office cannot simply be brushed aside as immaterial. First of all the Secretary of State's application for reconsideration included the following statement:
“The determination of the AIT was served on the appellant by first class post on 23 November 2006”
That statement was incorrect on the evidence available to us. Secondly, during the course of the 20 day period NB received a letter from the AIT informing her that the Secretary of State had applied for reconsideration. She had no copy of the determination, and did not yet know what the Immigration Judge had decided. On 27 November her solicitors wrote to the AIT in the following terms:
“Our client has received a letter confirming the acknowledgement of an application for a review of the tribunal's determination. Nevertheless neither ourselves nor our client has received a copy of the tribunal's determination.”
It is, in my view, unfortunate that those solicitors needed to send this letter on a date four days after the Secretary of State had lodged his application for reconsideration. On 29 November NB's solicitors sent an email to the Home Office expressing similar concerns to those previously expressed in their letter to the AIT dated 27 November. It is clear from this correspondence that the Home Office and the AIT were well aware that the requirements of paragraph 23(5)(a)(i) had not been complied with. It therefore behoved the Secretary of State to draw this breach of paragraph 23 and the misstatement in his application for reconsideration to the attention of the AIT in the course of his ex parte application for reconsideration. In this regard see the decision of Mr Justice Maurice Kay in R (Cindo) v The Immigration Appeal Tribunal[2002] EWHC 246 (Admin) at paragraph 11. Even if the Secretary of State did not do so, it behoved the AIT as a specialist tribunal alerted to the relevant facts, to consider the matter. See rule 4 of the Procedure Rules. The AIT should have considered how to exercise its discretion under paragraph 59(1). The AIT did not order so. It simply proceeded to make an order for reconsideration.[21]Mr Payne for the Secretary of State submits that neither party raised the breach of paragraph 23(5)(i)(a) [sic] at the reconsideration hearing and it is now too late to take the point. He submits that in the absence of any order by the AIT under paragraph 59(1) of the Procedural Rules the error had automatically been cured. In support of this submission Mr Payne relies upon the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Jeyenthan [2000] 1 WLR 354 , in particular at page 366. I do not accept this argument. The original order for reconsideration was made on the basis of an erroneous statement in the Secretary of State's application. The AIT must now consider this matter on the correct factual basis. In my view this case should now be remitted to the AIT so that the tribunal can consider how to exercise its discretion in relation to the breach of paragraph 23(5)(a)(i) which has occurred. ”[20]The meaning of the judgment is plain: the Tribunal is to consider, and exercise, its paragraph 59 discretion on the facts. To the extent that the line of guidance determinations by the Tribunal indicated that paragraph 23(5)(a)(i) could be considered without reference to paragraph 59, they were no longer good law.

The hearing

[21]The Tribunal directed the filing of evidence and skeleton arguments before the hearing. We had the benefit in addition of oral evidence for the second claimant, supported by a witness statement, from Mr David Saldanha, a solicitor with Howe & Co. We have given Mr Saldanha’s statement and oral evidence weight, although his client’s appeal is not before us now due to the statutory abandonment of the human rights appeal.[22]Mr Saldanha has made a very detailed study of the Secretary of State’s practice over time in relation to paragraph 23 which has been very helpful to the Tribunal in this and other appeals.[23]Evidence from Mr Saldanha was considered and approved in Semere, R (on the application of) v Asylum and Immigration Tribunal [2009] EWHC 335 before Blake J at paragraphs 32-35 thereof:
“32. Mr. Saldanha is a solicitor in the firm of Howe and Co who had previously been appearing as an advocate before the AIT and its predecessors for some twenty years. He has made a witness statement in which he points to evidence of the practice of the former Immigration Appellate Authority to allow two working or business days for receipt of its determinations when calculating time to appeal to the former second tier authority. This was at a time before 2005 when the IAA had the responsibility for service of its own decisions. He indicates that there was no notification of a change in practice in 2005. He points out that in 2006 when the Home Office adopted the practice of postmarking envelopes with the date of posting it became apparent that the actual date of posting of determinations was one business day after the date that had been stamped by the Home Office on the AIT's determination as the date of promulgation, and this latter date could not be considered the date of posting. 33. This account is supported by the pertinent observations of Mr. Justice Hodge OBE when sitting as the President of AIT in the case of EY (Democratic Republic of Congo)[2006] UKAIT 00032. He observed: "[11] It is of the first importance, given the time limits in this jurisdiction, that the date of service by the Secretary of State is clear. Where asylum decisions are served by post by the Secretary of State it is consistently the case that the date of posting such determinations is unclear. [16]…It is within the knowledge of the Tribunal that in the majority of asylum cases the respondent does not give the Tribunal notification on what date and by what means determinations have been served. This is breaching Paragraph 23(5)(b). Senior immigration judges considering time limits are not assisted by this failure…. [19] The word "promulgation" has been used for many years within this jurisdiction. It appears on the front sheet of all determinations. It was traditionally completed by the administrative staff within the Tribunal with a date stamp. That stamp was the same date as that on which the determination was served by post on the parties. Where the determination is served by the Tribunal on the respondent alone the date is left blank. In asylum cases any date placed beside the word promulgation on the determination of the Tribunal is unlikely to be of great assistance in deciding when the document was served. It is not a matter for the respondent to add dates to determinations made by the Tribunal" 1. The Treasury Solicitor's letter of the 29th January 2009 does not dispute the evidence of Mr Saldanha, rather it gives some independent support for it. It states: "ADMU have no paper records reaching back to 2005. The only record of service is found on the UK Border Agency's computer system. This records the date that the determination would be sent to the post room to be sent out via royal mail, and the determination itself would have been date stamped prior to being sent to the post room. It is therefore possible that in cases where the determination was sent late in the day (or after the last post collection) the date stamp of the determination may not have reflected the day on which the determination was posted" 2. The letter continues that the 2005 franking machine has been superseded and it is now impossible to be sure that the date of sending was included in the franking machine in 2005. Since 15th October 2008 all AIT determinations are served by recorded delivery which acts as confirmation of the date when it was sent by the Home Office and when it was received by an appellant or his representatives.”
[24]At paragraph 39, Mr

Justice Blake said this:

“39. …The present application is concerned with events in July 2005 three months after the new rules came into force. The date stamping in the present case is precisely what the President of the AIT indicated should not occur. The evidence of Mr Saldanha supports the AIT's observation that the date stamping of the decision is not the same as evidence of sending, as does the response to it by the Treasury Solicitor.”