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CO/524/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London WC2A 2LL
Thursday, 10 February 2000
B E F O R E
MR JUSTICE TUCKER
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
BETWEEN:
THE QUEEN
and
IMMIGRATION APPEAL TRIBUNAL
Respondent
ex parte
JANET WANYOIKE
Applicant
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Ms Sophie Henderson (instructed by Immigration Advisory Service,
London
SE1 4YB) appeared on behalf of the Appellant.
Ms Kassie Smith (instructed by Treasury Solicitor, London, SW1H 9JS)
appeared on behalf of the Respondent.
Judgment
As Approved by the Court
Crown Copyright ©
Thursday, 10 February 2000
JUDGMENT
MR JUSTICE TUCKER:
Janet Wanyoike is a 27 year old Kenyan national, and a member of the Kikuyu
tribe. She applies for Judicial Review of the decision of the Immigration
Appeal Tribunal dated 13 January 1999 to maintain its refusal on 30 October
1998 to grant her leave to appeal. The Applicant was dissatisfied with the
determination of a Special Adjudicator dismissing her appeal from a refusal by
the Secretary of State for the Home Department to grant asylum. The
determination was promulgated on 5 October 1998, and was deemed to have been
received by the Applicant on 7 October. Therefore in accordance with Rules
13(2) and 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996, any
application for leave to appeal to IAT, together with all the grounds of
appeal, had to be made within 5 working days, i.e. by 14 October.
On 8 October, so well within the time limit, the Applicant applied to IAT for
leave to appeal. By Rule 13(3), "An application for leave shall be made by
serving upon the Tribunal Form A2, which shall be (ii) accompanied by the
original or a copy of the special adjudicator's determination, together with
all the grounds relied on." The Applicant appeared to comply with that
requirement - the application was faxed to the Tribunal at 10.20 hours and it
was accompanied by the Grounds of Appeal. These were set out in 6 numbered
paragraphs. But there was a seventh, which read: "Further grounds of appeal
may follow from the Immigration Advisory Service Tribunal Unit."
Later the same day, at 16.31 hours, further grounds were submitted, set out in
a document containing 4 paragraphs. This was of course also within the time
limit, and was before the matter had been considered by the Tribunal, though it
is questionable whether these further grounds could be said to have
"accompanied" the requisite form. Unfortunately, however, due to an admitted
administrative or procedural error, these further grounds were not brought to
the attention of the Tribunal until after the application had been considered,
and leave had been refused.
By Rules (13)4 and 42(6). "An application for leave shall be decided not
later than 10 [working] days after its receipt by the Tribunal." Thus in the
present case the Tribunal had until 22 October to decide the application. The
strict timetable prescribed by the Rules is reinforced by the provisions of
Rule 13(5): "When the Tribunal fails to decide any application for leave under
this rule within the time prescribed, the application shall be deemed to have
been granted".
The Tribunal did decide the matter within the prescribed timetable, -
on 13 October. However, the Chairman did so on consideration only of the
original grounds, and not of the further grounds.
In the course of his determination, the Chairman referred to the grounds
submitted in support of the application, which were attached, and said "no
further grounds have been submitted." This determination was notified to the
Applicant on 30 October, and the error was then noticed. The matter was taken
up in correspondence. The Applicant's advisors asked if the determination
could be reconsidered in the light of the additional grounds, and suggested
that the Tribunal had the power to correct its error. The reaction of the
Tribunal was that it was entitled to determine the application on the grounds
which accompanied the notice of appeal, and that "The determination dated 13
October 1998 stands." However, when it was pointed out that the further
grounds were faxed to the Tribunal prior to the date of the determination, it
was agreed to bring them to the attention of the Chairman. By letter of 13
January 1999 it was stated that the Chairman "has had a good look at it and has
decided that the original determination stands." It is the decision contained
in this letter that the Applicant now seeks to impugn, though the relief sought
is the quashing of the earlier decision also.
On behalf of the Applicant, Miss Henderson submits that because two sets of
grounds were put in, and because the second set was not considered, it means
that the application was not considered by the Tribunal, and that leave to
appeal must be deemed to have been given. Miss Henderson submits that she does
not have to show that the further grounds were meritorious, though she accepts
that she has to shown that the Applicant has some grounds of succeeding in an
appeal to IAT.
Miss Henderson's submission is limited to a situation such as the present,
where both sets of grounds were submitted before the Tribunal reached its
decision. She concedes that if the Tribunal had determined the application
before receipt of the further grounds, then the Applicant could have had no
complaint. Miss Henderson also accepts that all grounds ought to go in with
the application. This is a recognition of the correctness of the judgment of
Laws J. (as he then was) in R v IAT ex parte Mubassir (1998) Imm
A R 304. At page 308 Laws J. said that:
"the scheme contemplated by the draftsmen here is that a single document
shall be put in by the appellant within the 5 days prescribed and the Tribunal
are to react to that document by the grant or refusal of leave within 10 days
of its receipt."
And in a later passage on the same page, Laws J. said that:
"the basis of my judgment ought to emphasise to appellants seeking leave to
appeal to the Tribunal the need to put their grounds in the application
document when it goes to the Tribunal."
I agree with these observations. The IAT is under great pressure. Not only
does it have to work within the strict timetables laid down by the Rules, but
it has a very great number of cases to consider. It behoves applicants and
their advisors who I recognise are also under time constraints, to ease the
task of the Tribunal and to ensure that applications for leave to appeal are
properly and concisely formulated before submission to the Tribunal, and that
all the grounds on which they seek to rely are included in one document
accompanying the notice of application. If grounds are sent in piecemeal, as
occurred in the present case, then the burden placed on the Tribunal is
unnecessarily increased, and the possibility of errors occurring, is
heightened.
However that may be, Miss Henderson submits that the Appellant is entitled to
submit further grounds, provided these are submitted within the 5 day limit,
and that in the present case the Tribunal should have considered them and
taken them into account. Miss Henderson alternatively submits that having been
served on the same day, the two sets of grounds complied with the rules that
they should accompany the application notice. I do not agree with this
alternative submission. I do not consider that the further grounds accompanied
the notice in Form A2, as they should have done. Nevertheless, in the past it
has been the practice of the Tribunal to consider further grounds submitted
within the 5 day period as Counsel for the Respondent, Miss Smith, has
conceded, and as Laws J. in Mubassir said would not be inconsistent with
the construction of the rules. A recent Note to all Appellants and Respondents
from the newly appointed President of the IAT, makes it clear that this
practice will no longer obtain, save in exceptional circumstances.
What then is the effect of the Tribunals failure to consider these further
grounds, until after the decision had been reached ? There is strong authority
for the proposition that a statutory tribunal does not possess any inherent
power to rescind or review its own decisions. (See the judgment of Sedley LJ
in Akewushola v SSHD (1999) Imm AR 594 at page 600). Further:
"If something has gone procedurally wrong which is capable of having affected
the outcome, it is to the High Court if necessary on a consensual application -
that recourse must be had. I say "which is capable of having affected the
outcome" because, it is strongly arguable, although not necessary to decide,
that in the present case an application to the High Court would not have
succeeded." (Ibid). Miss Henderson submits that these observations were made
obiter, but I do not agree. In my view Sedley LJ was dealing with an issue
which the Court of Appeal had to determine, i.e. What power, if any, does a
Chairman or a full Tribunal possess to rescind a determination once given ?
Miss Henderson submits that in any event the Court in Akewushola was
only considering the position of the IAT when determining an appeal, and that
the decision does not affect the power of a Chairman in his decision whether or
not to grant leave to appeal. Miss Henderson seeks to distinguish between a
determination (e.g. of a Special Adjudicator or of the full IAT on the one
hand, and a decision of a Chairman sitting on his own on the other.) I see no
warrant for such a distinction. Incidentally I observe that in the present
case the first decision to refuse leave is referred to on the face of the
document as a determination.
Miss Henderson relies on the decision of the Divisional Court in R v
Kensington & Chelsea Rent Tribunal ex parte MacFarlane(1974)3 AER
390 as authority to the contrary view to that expressed by the Court of Appeal
in Akewushola. I confess I do not find pronouncements on the rules and
practices of rent tribunals a quarter of a century ago of any assistance in
resolving the present problem.
I therefore conclude that the Chairman had no power to have another look at
his original determination or to decide whether or not it should stand.
Accordingly the matter should be approached on the basis that the later
decision did not constitute a fresh decision: it was a nullity and must be
disregarded. The only determination of the Tribunal was that of the 13
October, reached without consideration of the further grounds. The question is
whether that determination is thereby invalidated. Although there was, as I
have said, a practice at that time to consider further grounds, there was in my
opinion no obligation upon the Tribunal to do so even though it had not yet
reached its decision. The only obligation was that imposed by the Rules. i.e.
to consider all the grounds relied upon which accompanied the notice. In my
judgment the determination reached on 13 October was a valid decision, taken
within the prescribed time limit. It is not open to the Applicant to allege
that the Tribunal has failed to decide her application within the time limit or
to contend that her application should be deemed to have been granted. In
considering the further grounds the Tribunal was acting in its discretion and
outside the Rules.
In any event it is debatable whether the fresh unconsidered, grounds are
capable of having affected the outcome. If they had been taken into account,
is it possible that leave to appeal would have been granted, and would the
substantive appeal have had some prospect of success ?
This involves a comparison between the old grounds and the new, and an
analysis of the issues raised by each of them. In her skeleton argument, Miss
Henderson describes the new grounds as "supplementary grounds". Miss Smith,
however, submits that some of them, notably grounds 1 and 2, merely reiterate
what had been in the original grounds and therefore submits that these points
had already been taken into account, and the new grounds would have made no
difference to the IAT's decision to refuse the application. Ground 3 was not
included in the first set of grounds, but is in Miss Smith's submission doomed
to failure. It asserts that persecution cannot only be defined as detention or
arrest and that the SA erred in taking too narrow a view of persecution and
placed too little weight on the subjective fear of the appellant and the
objective evidence of her injuries. The SA quite clearly did not find that
persecution had to be detention or arrest: she merely observed correctly that
A had never been detained or arrested in Kenya [18]. The IAT had already
considered the SA's assessment of A's subjective evidence and the medical
evidence when considering A's original grounds of appeal [22]. The SA
carefully considered the medical evidence, and expressly found, as she was
entitled to, that the various scars and injuries seen on the Applicants body
were related to beatings at her first claimed attack, or to her escape.
In my judgment Miss Smith's analysis is correct. The new grounds added
nothing, or nothing of any substance or merit, to the original grounds, and in
my opinion when closely examined would not have affected the outcome.
In conclusion I come to the view that the first, and as I have found, the only
valid determination by the IAT was a decision which the Tribunal were entitled
to reach. It was a lawful, reasonable and rational decision and the
application to grant Judicial Review is refused.
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